High Court · 2024
Facts
1 1072.Cri.WP-87-2024.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Writ Petition No. 87 / 2024Shahjadkhan @ Lalla Salim KhanAge : 25 years, R/o Katya File, Shani Peth Jalgaon,Taluka & District Jalgaon. ...PetitionerVersus1.District Magistrate,Jalgaon.2.State of MaharashtraThrough Deputy Secretary, Home Department (Special),Mantralaya, Mumbai.3.The Superintendent,Yerwada Central Prison, Pune. ..Respondents _ _ _Advocate for the Petitioner : Mr. Rupesh A. Jaiswal A.P.P. for Respondents /State : Mr. G.A. Kulkarni _ _ _ CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ. RESERVED ON : 28 MARCH 2024 PRONOUNCED ON : 4 APRIL 2024JUDGMENT [ Per Shailesh P. Brahme, J. ] :.Rule. Rule is made returnable forthwith. Heard the matterfinally with the consent of both the parties. 2 1072.Cri.WP-87-2024.doc 2.Being aggrieved by the order of detention dated 27.10.2023passed by the respondent no.1/Magistrate under Section 3(1) ofthe Maharashtra Prevention of Dangerous Activities of SlumlordsBootleggers, Drug-Offenders, Dangerous Persons, Video Pirates,Sand Smugglers and Persons Engaged in Black-Marketing ofEssential Commodities Act, 1981 (hereinafter referred to as theMPDA Act for the sake of brevity and convenience), the petitionerhas approached this Court. He is in imprisonment since 28.10.2023.3.The respondent no.1/District Magistrate arrived at thesubjective satisfaction considering three offences, in-camerastatements and three preventive actions taken against thepetitioner. The detaining authority has held the petitioner asdangerous person.4.Learned Counsel for the petitioner tenders on record writtensubmissions alongwith judgments and a compilation comprising ofthe documents served upon the petitioner. Following submissionsare put-forth based on the grounds taken in the memo of writpetition :(i)Translation of documents was not furnished to thepetitioner, causing prejudice to his right to make effectiverepresentation.(ii)An illegible document was supplied which is at page no.277part of record of C.R. No.170/2023.(iii)Representation of the petitioner was not decided andcommunicated to him. 3 1072.Cri.WP-87-2024.doc (iv)In-camera statements are not reliable.(v)Bail orders are not considered.(vi)There is unexplained delay in securing approval of Section3(3) of the Act.5.Per contra, learned APP seeks to rely on affidavits-in-reply tosupport impugned order. All the submissions of the Counsel forthe petitioner are contended to be meritless. It is beingvehemently contended that the petitioner is involved in seriousoffences and has not even spared public servant. His criminalactivities show incriminating trend of committing offence byforming unlawful assembly. The subjective satisfaction of thedetaining authority is contended to be reasonable and plausible.Learned APP would submit that every precaution has been takento adhere to the time line prescribed in the act.6.We have considered rival submissions advanced across thebar. The petitioner also tenders additional affidavit/rejoinder.Following incriminating material alongwith in-camera statements ispitted against the petitioner :DETAILS OF THE OFFENCES REGISTERED RECENTLY WITHIN SIX MONTHSSr.No.Police StationC.R. NumberDate of RegistrationNature of Offence 1Shani Peth.145/202310.08.2023Under Sections 143, 147, 148, 149, 336,323, 504, 506 of I.P.C. read withSection 37(1)(3) for breach of Section135 of Mumbai Police Act, 1951. 2Shani Peth.147/202310.08.2023Under Sections 353, 332, 336, 337,186, 143, 147, 148, 139 of I.P.C. readwith Section 37(1)(3) for breach ofSection 135 of Mumbai Police Act, 1951. 3Shani Peth.170/202312.09.2023Under Sections 327, 341, 323, 504, 506of I.P.C. 4 1072.Cri.WP-87-2024.doc PREVENTIVE ACTION 1Shani Peth.54/202321.08.2023Under Section 110(e)(g) of theCriminal Procedure Code, 19732Shani Peth.02/202308.09.2023Under Section 151 of theCriminal Procedure Code, 19733Shani Peth.13/202311.09.2023Under Section 144(2) of theCriminal Procedure Code, 19737.Undisputedly petitioner is involved in above offences whichare falling under Chapter XVI and XVII of IPC. He was actuallydetained on 28.10.2023. Order of detention was approved underSection 3(3) of the MPDA Act by the State Government on06.11.2023. The Advisory Board recommended preventive actionon 13.12.2023. The impugned order was confirmed on 28.12.2023.Petitioner made representation on 12.12.2023, which wasultimately rejected on 01.02.2024. 8.Learned Counsel for the petitioner refers to transfercertificate of the petitioner. It reveals that the petitioner had leftschool on 31.03.2007 when he was in 7th standard. He appears tobe conversant with Marathi and Hindi. We are shown certaindocuments served upon the petitioner which are in English. Thoseare Injuries certificates, medical papers, memos, production order,applications for bail and orders thereon. Those are relevantdocuments of which translation has not been furnished. Thepetitioner was served with these documents when he was in jail. Itwas incumbent upon the detaining authority to supply translationto enable the petitioner to make representation.9.Learned APP would submit that while serving the documents
Legal Reasoning
7 1072.Cri.WP-87-2024.doc Therefore, the judgment cited may not enure to the benefit of thepetitioner.14.Further reliance is placed on the judgment in the matter ofMrs. Jayshree Rajendra Waghmare Vs. Commissioner of Police,Pune City and Ors., Criminal Writ Petition Stamp No.10685/2023.In that matter also, number of documents were illegible. In thepresent matter, only one document which is not relied upon by thedetaining authority, is illegible. Hence ratio of the judgment is notapplicable. Same is the case with the next judgment rendered inthe matter of Manmoorat R. Pandey Vs. Commissioner of Police,Thane and Ors., Criminal Writ Petition Stamp No. 19927/2023. Weare of the considered opinion that the judgment is distinguishable.15.Order of detention was passed on 27.10.2023.Representation was made on 12.12.2023. We have gone throughparagraph no.12 of affidavit-in-reply. It is stated thatrepresentation was received on 18.12.2023. Immediately, it wassubmitted to State Government. It was rejected on 01.02.2024.Another grievance of the petitioner is that rejection has not beencommunicated to him. Additional affidavit reiterates that therejection has not been communicated, which is not controverted byrespondents. 16.We find that the respondents/authorities have failed toexplain delay in deciding the representation. Althoughrepresentation was made on 18.12.2023, respondent no.2 wasunder obligation to decide it as early as possible. It is 8 1072.Cri.WP-87-2024.doc incomprehensible as to why representation was kept pending,when Advisory Board recommended the detention on 13.12.2023and when the State Government was seized of the matter on28.12.2023. The representation should have been decided on orbefore 28.12.2023. Rejection of representation on 01.02.2024would indicate want of promptitude. No endeavour has beenmade by the respondents to show that rejection has been dulycommunicated to the petitioner. We find substance in submissionof learned Counsel for the petitioner. 17.Our attention is invited to in-camera statements recorded on15.09.2023. In-camera statement of witness A has been assailed toshow that the incident of 09.08.2023 narrated by the witnesswould constitute FIR of C.R. No.145/2023 and 147/2023. Both thewitnesses would disclose habitual and criminal tendency of thepetitioner. The statements are corroborative in nature. Both thestatements indicate potential of the petitioner causing prejudiceto the public order. We do not find any merit in the submissionsthat the statements are vague and unreliable.18.Three offences were relied upon by the detaining authority.In C.R. No.145/2023, a notice under Section 41A was served uponthe petitioner. In remaining both offences, he was released on bailby reasoned order. We have gone through the orders of bail. Thegrounds of objection only make mention of orders of bail and notbeyond that. The reasons assigned by the regular Criminal Courtenlarging the petitioner on bail, should have been considered bythe detaining authority. It is non-application of mind to form 9 1072.Cri.WP-87-2024.doc subjective satisfaction without considering reasons of bail.19.In this regard, learned Counsel for the petitioner has rightlyrelied upon the judgments in the matter of Digambar @ DigambarVitthal Dagdade Vs. District Magistrate Latur & Ors., CriminalWrit Petition No. 1736/2023; Nilesh Sunil Pendulkar Vs. DistrictMagistrate, Ahmednagar & Ors., Criminal Writ PetitionNo.1820/2023 and Sachin Abhaysingh Chavan Vs. DistrictMagistrate, Jalgaon & Ors., Criminal Writ Petition No.1763/2023.We propose to follow the views taken in the judgments.20.We have considered affidavit-in-reply dated 16.02.2024 toexamine whether there is unexplained delay for seeking approvalof Section 3(3) of the MPDA Act. It is stated in paragraph no.3 thatapproval was granted by the State Government on 06.11.2023. Weare also shown paragraph no.8 of reply dated 05.02.2024. There isno reason to doubt the sequence of events narrated therein. Wefind no explanation is forthcoming for delay from 02.11.2023 to06.11.2023. In our considered view unexplained delay vitiatesimpugned order. Learned Counsel for the petitioner has rightlyreferred to judgments of Hetchin Haokip Vs. State of Manipurand Ors. 2018 ALL SCR (Cri) 1240 and Aatish s/o Ravindra KharatVs. State of Maharashtra and Ors. Criminal Writ PetitionNo.1794/2023. 21.Net analysis of our discussion is that constitutional right ofthe petitioner for making effective presentation has beenhampered. The subjective satisfaction is shrouded with doubt for 10 1072.Cri.WP-87-2024.doc non-consideration of orders of bail. There is unexplained delay offour days in granting approval. The impugned order is notsustainable in law.ORDER(i)The Criminal Writ Petition is allowed in prayer clause (b).(ii)Rule is made absolute in the above terms. SHAILESH P. BRAHME MANGESH S. PATIL JUDGE JUDGENaJeeb..
Arguments
5 1072.Cri.WP-87-2024.doc alongwith grounds of objection in paragraph no.16, it was statedthat any shortfall or flaws in the documents including legibilitycould be communicated to the detaining authority. Despite that,no communication was made by the petitioner. We are not readyto accept this submission because it has come on record thatpetitioner has no knowledge of English. He is educated up to 7thstandard in Marathi medium. These facts have not been disputedby the respondents.10.Learned Counsel for the petitioner relies upon the judgmentof Yogesh Nandu Pujari Vs. Commissioner of Police, Thande &Ors., 2013 ALL MR (Cri) 1779. We have considered relevantparagraph no.8 and 9. In that matter, the grievance was that vitaldocuments were not supplied to the detenue. In the case in hand,we are dealing with grievance that the petitioner was notfurnished with translated documents. Therefore, ratio laid downtherein cannot be made applicable.11.The petitioner relies on judgment of Ketan Gorakh DarekarVs. Commissioner of Police, Pune City & Ors., Criminal WritPetition No.16438/2023 and Hadibandhu Das Vs. DistrictMagistrate, Cuttack, 1968 CJ(SC) 114. It is laid down by theSupreme Court as follows :“6.The grounds in support of the order served on the appellant ran intofourteen typed pages and referred to his activities over a period of thirteen years,beside referring to a large number of court proceedings concerning him and otherpersons who were alleged to be his associates. Mere oral explanation of acomplicated order of the nature made against the appellant without supplying him 6 1072.Cri.WP-87-2024.doc the translation in script and language which he understood would, in ourjudgment, amount to denial of the right of being communicated the grounds andof being afforded the opportunity of making a representation against the order.The order made by the District Magistrate, Cuttack not having been followed upby service within five days as provided by Section 7(1) of the communication tohim of the grounds on which the order was made must be deemed to havebecome invalid and any subsequent detention of the appellant was unauthorised.” .We find merit in the submissions of the learned Counsel forthe petitioner. Right to make effective representation has beeninfringed in the present matter. 12.Learned Counsel for the petitioner refers to a documentwhich is part and parcel of C.R. No.170/2023, last offence pittedagainst petitioner. It is contended that the order passed byTahasildar cum Executive Magistrate, Jalgaon is illegible. We arealso unable to read the documents, but the purport of thedocuments has not been made clear by either of the parties.Pertinently, only one document is alleged to be illegible. It has notbeen demonstrated as to what prejudice has been caused topetitioner.13.We have considered judgment in the matter of ChandraShekhar Ojha Vs. A.K. Karnik, Assistant Secretary, HomeDepartment, Bombay and Others, 1981 CJ (Bom) 40. In thatmatter number of documents were illegible and those wereconsidered by the detaining authority while passing order ofdetention. No precaution was taken to supply legible copies to thedetenue. In the present case, only one illegible document wassupplied and detaining authority has not referred the document.