High Court
Legal Reasoning
1Criminal Writ Petition 35 of 2025.odtTHE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL WRIT PETITION NO. 35 OF 2025Gopal S/o Kailas Pange Age. 34 Yrs, Occu. Labor, R/o. Ranmala, Tq Dhule, Dist. Dhule.... PetitionerVersus1.District Magistrate, Dhule,District Dhule.2.The State of Maharashtra, Through the Additional Chief Secretary, Govt. of Maharashtra, Home Department Mantralaya, Mumbai-32.3.The Jail Superintendent,Central Prison, Dist. Nashik.... Respondents…Mr. Chaitanya C. Deshpande, Advocate for Petitioner.Mr. G. A. Kulkarni, APP for Respondents.…CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE :21st March, 2025.J U D G M E N T : (Per Sanjay A. Deshmukh, J.) 1 Rule. Rule made returnable forthwith. The petition isheard finally with the consent of the learned Advocates for the parties. 2Criminal Writ Petition 35 of 2025.odt 2By invoking the powers of this Court under Article 226 ofthe Constitution of India, the petitioner has challenged the order ofdetention, dated 22nd April, 2024, passed by respondent No.1 –District Magistrate, Dhule in DANDAPRA/KAVI/MPDA/01/2024 underSections 3(2) of the Maharashtra Prevention of Dangerous Activitiesof Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons,Video Pirates, Sand Smugglers and Persons engaged in BlackMarketing of Essential Commodities Act, 1981 (hereinafter referred toas the “MPDA Act”). 3The learned counsel for the petitioner has pointed out theimpugned order and the material, which was relied upon and suppliedto the petitioner by the detaining authority at the time of passing of theimpugned order. The learned counsel for the petitioner pointed outthe grounds of detention in the impugned order, particularly, groundNo.1, as per the following charts:-“ धुळेजि(cid:6)ल्ह्यातीलमोहाडीनगर/ चाळीसगांवरोडपोलीसस्टेशनयेथेदखलपात्रगुन्ह्यांचीमाहिहतीखालील प्रमाणेआहे.अ.क्र पोलीसस्टेशनगुरनं गुन्हादाखलहिदनांक अटकहिदनांककलमसद्यस्थिस्थती१ मोहाडीनगर१६०/२०१६२९/१२/२०१६०२/०१/२०१७ भादंहिवकलम३२४,३२३,५०४,५०६न्यायप्रहिवष्ट 3Criminal Writ Petition 35 of 2025.odt२ मोहाडीनगर१६३/२०१६३०/१२/२०१६०२/०१/२०१७ भादंहिवकलम३२३,३२४,५०४,५०६न्यायप्रहिवष्ट३ मोहाडीनगर०४/२०१९१०/०१/२०१९ अटकनाही(फौ.प्र.सं. क. ४१(१) (अ) ची नोटीसअदा) भादंहिवकलम३२३,३२४,५०४,४२७न्यायप्रहिवष्ट४ मोहाडीनगर६९/२०२०२७/०७/२०२०२९/०७/२०२० भादंहिवकलम३०७,४३६,४५२,१४३,१४७,१४९,४२७,५०४,५०६न्यायप्रहिवष्ट५ मोहाडीनगर२०३/२०२२२८/०२/२०२२२०/०८/२०२२ भादंहिवकलम ३९२प्रमाणेन्यायप्रहिवष्ट६ चाळीसगांवरोड१८७/२०२२०७/०७/२०२२२३/०८/२०२२ भादंहिवकलम३२३,३२४,५०४, ५०६न्यायप्रहिवष्ट७ मोहाडीनगर३२/२०२३२२/०२/२०२३ अटकनाही(फौ.प्र.सं. क. ४१(१) (अ) ची नोटीसअदा) भादंहिवकलम३२३,३२४,५०४,५०६न्यायप्रहिवष्ट८ मोहाडीनगर३९४/२०२३२७/१२/२०२३२८/१२/२०२३ भादंहिवकलम३५४,५०६न्यायप्रहिवष्ट९ मोहाडीनगर०३/२०२४०६/०१/२०२४१२/०१/२०२४ भादंहिवकलम३२६, ५०४,५०६पोलीसतपासावरप्रत्वंहि:त धुळेजि(cid:6)ल्ह्यातीलमोहाडीनगरपोलीसस्टेशनयेथेदाखलअदखलपात्रगुन्ह्यांचीमाहिहतीखालीलप्रमाणेआहे.अ.क्रपोलीसस्टेशन पनाकारजि(cid:6).नं. गुन्हादाखलहिदनांककलमसद्यस्थिस्थती१ मोहाडीनगर९/२०२१२०/०१/२०२१३२३,५०४,५०६२ मोहाडीनगर३५/२०२११७/०३/२०२१५०४,५०६३ मोहाडीनगर२०/२०२३२८/०१/२०२३५०४,५०६४ मोहाडीनगर२१/२०२३२९/०१/२०२३३२३,५०४,५०६५ मोहाडीनगर२५/२०२३१९/०२/२०२३३२३,५०४,५०६६ मोहाडीनगर३१/२०२३०४/०३/२०२३३२३,५०४,५०६७ मोहाडीनगर४२/२०२३०५/०४/२०२३५०४,५०६८ मोहाडीनगर२९/२०२४१२/०२/२०२४५०४,५०६
Legal Reasoning
4Criminal Writ Petition 35 of 2025.odt( मोहाडीनगर/ चाळीसगांवरोडपोलीसस्टेशनस्टेशनजि(cid:6)धुळे) येथीलप्रतित:ंधात्मककाय<वाहीचातपशिशलअ.क्रपोलीस स्टेशनचेनाव दाखलहिदनांक रजि(cid:6)ष्टरक्रमांककलमसद्यस्थिस्थती१ मोहाडीनगर११/११/२०२०१५/२०२० फौ(cid:6)दारीप्रहिक्रयासंहिहता, १९७३चेकलम११०२ मोहाडीनगर२२/०३/२०२१५५/२०२१ फौ(cid:6)दारीप्रहिक्रयासंहिहताचे कलम१०७३ मोहाडीनगर१४/०३/२०२२३३/२०२२ फौ(cid:6)दारीप्रहिक्रयासंहिहताचे कलम१०७४ मोहाडीनगर३०/१२/२०२२१६९/२०२२ फौ(cid:6)दारीप्रहिक्रयासंहिहताचे कलम१०७५ मोहाडीनगर१५/०५/२०२३३७/२०२३ फौ(cid:6)दारीप्रहिक्रयासंहिहताचे कलम१०७६ मोहाडीनगर१६/०२/२०२४१७/२०२४ फौ(cid:6)दारीप्रहिक्रयासंहिहताचे कलम१०७ अलीकडील०६महिहन्याच्याआतदाखलगुन्ह्याचातपशिशलअ.क्रपोलीसस्टेशनगुरनं गुन्हादाखलहिदनांक अटकहिदनांककलमसद्यस्थिस्थती१मोहाडीनगर३९४/२०२३२७/१२/२०२३ अटकनाही(फौ.प्र.सं. क. ४१(१) (अ) ची नोटीसअदा) भादंहिवकलम३५४,५०६म.न्यायालयात दोषारोपपत्र दाखलकरणेवरप्रलंहि:त२मोहाडीनगर०३/२०२४०६/०१/२०२४१२/०१/२०२४ भादंहिवकलम३२६, ५०४,५०६ पोलीसतपासावर३मोहाडीनगर२९/२०२४१२/०२/२०२४ अंटकनाही( अदखलपात्रगुन्हा) भादंहिवकलम५०४, ५०६ अदखलगुन्हापात्र4It is the contention of the detaining authority that there aretwo in-camera statements, which are recorded by the detainingauthority. 5Criminal Writ Petition 35 of 2025.odt5The learned counsel for the petitioner pointed out thegrounds of objections raised in the petition and submitted that thedetaining authority has not arrived at the subjective satisfaction as thetwo in-camera statements are certainly not establishing the issue ofthreat to public order on the part of the petitioner. The allegedoffences for which the petitioner is held liable for detention, are notshowing that the petitioner is a habitual offender. Therefore, the saidaction is drastic, illegal and not sustainable as it causes injustice tothe petitioner. There is inordinate delay caused for taking actionagainst the petitioner. He submitted that the requisites of Section 3(2)of the MPDA Act are not established against the petitioner. Thepetitioner is not a dangerous person as defined under the MPDA Act.The action is taken on the basis of crimes from which element ofpublic order is not establishing. Those cases are pending in whichbail was granted to the petitioner. No action for cancellation of bail istaken against the petitioner. From the said ground, it is clearlyestablishing that the action taken against the petitioner is against theprovisions of the MPDA Act which does not establish requisites. Theaction taken against him is also against the Article 22(5) of theConstitution of India. The reasons and circumstances given by theconcerned authority are not acceptable and sustainable in the eyes of
Decision
6Criminal Writ Petition 35 of 2025.odtlaw. The reasons show that there is no subjective satisfaction of thedetaining authority. The detaining authority has failed to apply itsmind and has not considered these material aspects in its properperspectives while passing the impugned order. It is lastly prayed toallow the writ petition by quashing and setting aside the impugnedorder. 6The learned APP for the respondents submitted that thepetitioner is a ‘dangerous person’ as defined under the MPDA Act.There are two in-camera statements of the witnesses about which thesubjective satisfaction has been arrived at by the detaining authority.There is neither legal nor factual error on the part of the detainingauthority while recording the in-camera statements of the witnesses.The petitioner has created grave terror in the surrounding area.Therefore, general people are not ready to proceed against him bylodging the report for taking criminal action which can be seen fromthe in-camera statement A & B witnesses. This is sufficient to holdthat because of the petitioner, there is an issue of public order in thearea in which criminal activities of the petitioner are going on. Nodelay is caused in taking the action and passing the impugned order.The petitioner is involved in number of crimes, which are serious.Therefore, he comes under the category of dangerous person as per 7Criminal Writ Petition 35 of 2025.odtthe MPDA Act. The activities of the petitioner could not have beenstopped, except upon his detention under the MPDA Act. No legal orfactual error is committed by the detaining authority while passing theimpugned order. He, therefore, lastly prayed to dismiss the writpetition. 7We have perused the impugned order of detention andthe grounds upon which it is based as well as the objections raised bythe petitioner in the petition. 8As far as the cases registered against the petitioner uponwhich the authority has relied upon are concerned, there are threecharts as given above, in which it has been pointed out that thepetitioner is involved in the serious crimes. The fourth chart showsthat three cases are registered against the petitioner under Sections354, 323, 504 and 506 of the Indian Penal Code, 1860. In the thirdcrime i.e. Crime No.29 of 2024, the charge-sheet is not yet filed.From these three crimes, it is not pointed out that bail was not grantedto the petitioner. On the contrary, in these three cases, admittedly, thepetitioner is released on bail immediately after his arrest. Theallegations in the three cases against the petitioner are of personalnature. 8Criminal Writ Petition 35 of 2025.odt 9As far as two in-camera statements are concerned, thefirst in-camera statement of witness-A is recorded about the incidentof 9th February, 2024, which occurred at 08:00 pm, in which the saidwitness-A has stated that when he was proceeded to his house by hismotorcycle, the petitioner under the influence of liquor was standing infront of his house. At that time, the petitioner abused him. Afterseeing this, the neighbourers of the said witness-A got scared andwent inside their houses. The petitioner slapped the said witness-Aand said, “You have to stay properly here. Do you even know who Iam? Don’t mess (take risk) with me”. Thereafter, suddenly, the wifeof the said witness-A opened the door and out of fear, the saidwitness-A quickly went inside his house and closed the door. Thepetitioner then started hurling abuses and kicked the door and thenwent away. Because of the fear of the petitioner, the witness-A couldnot lodge the report. The ordinary people residing in that area, arehaving fear of their lives and the properties. 10In in-camera statement of witness-B, he stated that on14th August, 2023, the day of the Pola festival, at around 6:00 PM, thesaid witness-B took his pair of bullocks to the Khanderao MaharajTemple in Ranmala village for Darshan. At that time, several farmers 9Criminal Writ Petition 35 of 2025.odtfrom the village and nearby areas gathered in the Chowk in front ofthe Khanderao Temple with their bullocks. The petitioner came thereand started to abuse informant without any reason. The petitionershouted loudly again and picked up a wooden log, and said, “Didn’tyou hear me?” Fearing him, the people hurriedly took their bullocksand left that place. 11The witness-B stated that he was also leaving with hisbullocks, the petitioner stopped him by assaulting on his back with thestick and threatened him to leave that place quickly. Because of hisimmense fear, the said witness-B could not lodge the report. Witness-Bfurther stated that generally the petitioner is having the wooden log oriron rod in his hand. Some times, the petitioner carries folded knife. Thesaid witness-B was having fear that if he is going to lodge report, thepetitioner being dangerous person, may assault him. Therefore, he didnot lodge the report. The said witness-B further stated that because ofover acts of the petitioner there is danger to the public at large and thereis unreasonable stress in the society. Because of the fear of thepetitioner, nobody is daring to make complaint against him. Thepetitioner has been imprisoned for multiple times in many crimesregistered against him, yet his conduct remains unchanged. The peoplein Ranmala Chowk are under constant fear and after seeing the 10Criminal Writ Petition 35 of 2025.odtpetitioner, they leave that place. 12In paragraph No.11 of the impugned order, the authorityhas noted the satisfaction about the criminal background of thepetitioner and therefore, it has come to the conclusion that thepetitioner is a dangerous person. 13We have perused all the documents relied upon by theauthority, particularly, the two in-camera statements of witnesses Aand B recorded by the detaining authority. From the statements of thetwo in-camera witnesses, it is clear that those alleged incidents are ofpersonal nature against them. These material aspects are notconsidered by the detaining authority. Those are not sufficient toarrive at the conclusion by subjective satisfaction that the petitioner isa habitual offender and he is a dangerous person for the public atlarge and because of him, there is constant fear and issue of publicorder arose. In the case of Mustakmiya Jabbarmiya Shaikh Vs.M.M. Mehta, [1995 (3) SCC 237], the statements of in-camerawitnesses were not accepted as those anti-social activities amountingto public order issue was not proved against the petitioner. As per thelaw laid down in the case of Ameena Begum Vs. The State ofTamilnadu and Ors., [2023 LiveLaw (SC) 743], the fairness and 11Criminal Writ Petition 35 of 2025.odtreasonableness on the part of the detaining authority is lacking. Thedetaining authority has failed to apply the criteria that the acts of thepetitioner are dangerous and it affects the public order, which isdifferent from the law and order. The acts of the petitioner did notcause disturbance to the current life of the public at large, so as tocause disturbance of public order. On the contrary, the record showsthat it merely affects on the individual living and the tranquility of thesociety at large remained undisturbed as held in the case of KanuBiswas Vs. State of West Bengal, [1972 (3) SCC 831], wherein areference was made to the decision in the case of Dr. Ram ManoharLohia vs. State of Bihar and Ors. [1966 (1) SCR 709]. 14Therefore, we are of the view that the detaining authorityhas failed to exercise its discretion in accordance with the section 3 ofthe MPDA Act. The authority has not acted as per the provisions ofthe MPDA Act. 15Though the impugned order has been approved by theAdvisory Board, we are of the view that it has not considered theabove foundational factual aspects as held in the case of Smt.Hemlata Kantilal Shah Vs. State of Maharashtra and another,[(1981) 4 SCC 647]. 12Criminal Writ Petition 35 of 2025.odt 16Further the proposal was sent on 28th March, 2024. Thestatements of in-camera witnesses are recorded on 16th February,2024 and 19th February, 2024. Those statements were verified on 7thMarch, 2024. The detention order was passed on 22nd April, 2024.The grounds of detention were served on the petitioner on the sameday. The report was sent to the State Government on 23rd April, 2024on the second day of passing of detention order. The detention orderwas approved by the State Government on 2nd May, 2024. TheAdvisory Board heard the petitioner on 28th May, 2024 and the orderof detention was confirmed on 7th June, 2024. If the period requiredfor processing of the action and passing of the impugned order andgranting of approval etc., there appears no need of taking urgentaction to secure object of maintaining public order against thepetitioner to control his activities, which affects the public at large andcreate an issue of public order. 17Considering all these aspects and the reasons discussedabove as well as the law laid down in the above authorities and fromthe criminal cases registered against the petitioner relied upon by theauthority and statements of witnesses A and B, we are of the view thatthe petitioner had not created issue affecting public order. He had not 13Criminal Writ Petition 35 of 2025.odtcaused disturbance to the public order. He is not dangerous personas per Section 3 of the MPDA Act.18The Advisory Board though approved the detention of thepetitioner, we are of the view that there is no reliable relevant materialto proceed against the petitioner to categorize him as a dangerousperson. By passing the impugned order, the fundamental rights,particularly, the liberty of the petitioner as per Article 21 of theConstitution of India is affected and there is no legal as well as factualground for the passing of impugned order. Therefore, we areconstrained to hold that the impugned order is illegal and notsustainable. The same deserves to be quashed and set aside. Thepetition deserves to be allowed. Hence, the following order:-O R D E RI.The writ petition stands allowed. II.The detention order passed by respondent No.1 – DistrictMagistrate, Dhule in DANDAPRA/KAVI/MPDA/01/2024,dated 22.04.2024 as well as approval order dated02.05.2024 and the confirmation order dated 07.06.2024,are hereby quashed and set aside. 14Criminal Writ Petition 35 of 2025.odt III.Petitioner Gopal Kailas Pange shall be released forthwith, ifnot required in any other offence. IV.Rule is made absolute in the above terms. [ SANJAY A. DESHMUKH, J. ] [ SMT. VIBHA KANKANWADI, J. ] nga