High Court · 2024
Facts
1 Cr. WP. 156 / 2024IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 156 OF 2024Sayedu @ Syed Karim S/o Syed Husain,Age:-31 years, Occu:- LabourR/o- Sailani Nagr, Aundha (N)Tq. Aundha(N) Dist Hingoli. .. Petitioner Versus1) State of Maharashtra, Through its Principal Secretary, Home Department, Mantralaya, Mumbai.2) Collector/District Magistrate, Hingoli.3) Superintendent of Police, Hingoli.4) PSO, Police Station, Aundha (N) Dist. Hingoli. .. RespondentsANDCRIMINAL APPLICATION NO. 402 OF 2024 INCRIMINAL WRIT PETITION NO. 156 OF 2024(SAYEDU @ SYED KARIM S/O SYED HUSAIN VS.THE STATE OF MAHARASHTRA AND OTHERS)...Advocate for petitioner / applicant : Mr. Uttam L. Talegaonkar (Through Legal Aid)APP for the respondent – State : Mr. G.A. Kulkarni... CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON : 12 MARCH 2024PRONOUNCED ON : 19 MARCH 2024ORDER (MANGESH S. PATIL, J.) :Under Article 226 of the Constitution of India, the petitioneris challenging the order of detention passed by the respondent no. 2 –the District Magistrate, Hingoli under section 3(2) of the MaharashtraPrevention of Dangerous Activities of Slumlords, Bootleggers [Drug- 2 Cr. WP. 156 / 2024offenders, Dangerous persons and video pirates] Act, 1981 (hereinafter‘MPDA Act’) on a proposal submitted by respondent nos. 3 and 4under section 3(1).2.With the consent of both the sides, the matter is heardfinally at the stage of admission. 3.The impugned order which is subsequently confirmed bythe respondent no. 1 under section 3(3) of the MPDA Act is based onfollowing criminal record and the preventive action.Sr.No.Name ofPoliceStationCrime Registration No.Arrest date andStation Diary entryof the accusedpersonCourt CaseNo.Present Stageof the Crime1AundhaNagnath86@2021 Section 307] 353]332]120B]336]341]143]147]148]149]506]188]427 of Indian Penal Code withSec. 135 of Maharashtra Police Act with Sec. 3,7 of Prevention of Damage to Public Property Act Released on 27.08.2021 since High Court has granted pre-arrest bail. R.C.C. No.210@2022Sub judice2AundhaNagnath43@2023 Section 326]324]323]143]147]149 of Indian Penal Code withSection 4@25 Indian Arms ActDate 27-03-2023 Time13-28 Station Diary Entry 20@2023--UnderInvestigation3AundhaNagnath179@2023 Section 354¼A½]294]323]143]147] 149 of Indian Penal CodeDate 28-05-2023 Time04-35 Station Diary Entry 04@2023--UnderInvestigation4AundhaNagnath186@2023 Section 153A of Indian Penal CodeDate 01-06-2023 Time22-30 Station Diary Entry 31@2023--UnderInvestigation5AundhaNagnath201@2023 Section 341]504]506]323 of Indian Penal CodeSaid accused is released by giving notice on 08-06-2023 RCC No.201@2023Sub judicePreventive ActionSr.NoName ofPolice StationChapter Case No. and Date SectionResult1AundhaNagnath08@2023Date 22@04@2023110 Cr.P.C.01 Year longterm Bond hasbeen taken 3 Cr. WP. 156 / 2024Besides, statements of two anonymous witnesses recorded have alsobeen relied upon to brand the petitioner as a ‘dangerous person’. 4.Learned advocate for the petitioner would submit that thepetitioner is an activist of an organization and had made attempts tounravel the illegal activities of police personnel which has triggeredthem to recommend his preventive detention. He has been implicatedin false cases, three of which are still under investigation and the one ispending trial. He has been released on bail.5.Apart from such general arguments and the stand of thepetitioner, the learned advocate would rely upon following grounds forsubstantiating his prayer for quashment of the impugned order.i)Subjective satisfaction is not reasonable and plausible andis rather arbitrary and perverse.ii)The crimes against the petitioner relied upon by thedetaining authority have no potential to disturb public order.iii)Opportunity of making representation by serving therelevant documents has not been extended and there isviolation of Article 22(5) of the Constitution of India.iv) Statements of the anonymous witnesses have not beenverified and copies thereof were not given to the petitioner.
Legal Reasoning
4 Cr. WP. 156 / 2024v)No order of preventive detention could have been legallypassed and approved at a stretch for 12 months.vi)The grounds of detention are not communicated to thepetitioner within the statutory time prescribed under section 8(1)of the MPDA Act.vii)The papers were not placed before the Advisory Boardwithin three weeks of the detention as is contemplated undersection 10 of the MPDA Act.viii) The petitioner has been detained for more than threemonths without the matter being considered by the AdvisoryBoard.ix)The detention order has not been approved by therespondent no. 1 within 12 days under section 3 of the Act. 6.To buttress his submissions, the learned advocate for the petitioner would rely upon the following decisions :-i) Lallan Prasad Chunnilal Yadav Vs. B. Ramamurthi and others;(1992) 3 Supreme Court Cases 498ii) Balu S/o Waman Patole Vs. The Commissioner of Police and others (Criminal Writ Petition no. 155 of 2019 Judgment dated 26-03-2019)7.Per contra, the learned APP would submit that all themandatory process under different provisions of the MPDA Act havebeen meticulously followed. There is no breach. Subjective satisfactionis based on the objective material and is plausible one. This Court inexercise of the powers under Article 226 of the Constitution of Indiacannot substitute such satisfaction. The offences committed by the 5 Cr. WP. 156 / 2024petitioner relied upon by the detaining authority are falling underChapter XVI of the Indian Penal Code. It has taken into considerationsuch four offences committed in a span of three months. Thestatements of anonymous witnesses have been taken intoconsideration after verification. There is no delay. Opportunity ofmaking representation was extended after the petitioner was servedwith all the grounds of detention. There is no procedural lapse and thepetition be dismissed.8.We are alive to the limitations on the powers of this Courtin exercise of the powers under Article 226 of the Constitution of India. 9.It is trite that since the impugned order is of preventivedetention, affecting the fundamental rights of the petitioner, theprovisions of the MPDA Act and the impugned action will have to bestrictly in accordance with and within the time frame prescribed underdifferent provisions of the MPDA Act.10.It is necessary to note that the respondent no. 2 detainingauthority has filed affidavit in reply. It expressly mentions about thegrounds of detention having been served to the petitioner in thestatutory time. To be precise, it mentions that after receipt of theproposal together with the papers, the statements of the anonymouswitnesses were verified by the Sub Divisional Police Officer, HingoliMr. P.G. Deshpande. 6 Cr. WP. 156 / 202411.Taking up different grounds in seriatim, as far as ground ofvalidity of subjective satisfaction is concerned, four offences committedbetween February 2023 and June 2023 would demonstrate that in themonth of February, he was involved in a crime committed as a memberof an unlawful assembly. The incident had taken place on 27-02-2023.The injured therein had expressly stated about the accused personsincluding the petitioner herein having assaulted him. The petitionerwas carrying a knife with which he assaulted him and was admitted in ahospital. Crime no. 179 of 2023 was committed on 27-05-2023. He isalleged to have outraged modesty of the informant, again as a memberof an unlawful assembly and in furtherance of the common object. Hewas thereafter booked on 01-06-2023 for the offence punishable undersection 153-A of the Indian Penal Code for broadcasting a video on hismobile with an intent to create enmity between two religions.On 08-06-2023 in crime no. 201 of 2023 without any rhyme andreason, he allegedly wrongfully restrained complainant after hurlingabuses and even threatened him.12.Apart from these four crimes, three of which are underChapter XVI of the Indian Penal Code, statements of two anonymouswitnesses have also been considered by the detaining authority. It isalleged by first witness that on 25-05-2023 in evening while he waspassing from Tipu Sultan chowk, Aundha Nagnath, the petitioner withhis accomplices threatened him at the point of knife, demanded money 7 Cr. WP. 156 / 2024and picked up Rs.850/- from his pocket and threatened him of direconsequences if the matter was reported to police. The secondwitness has stated that on 04-06-2023 at about 8.00 pm when he wasin Sailani nagar, Aundha Nagnath in connection with his work, thepetitioner accosted him, abused and beaten him without any reason. Itis pertinent to note at this place that apart from the specific stand beingtaken in the affidavit in reply filed by the respondent no. 2 – DistrictMagistrate, the statements have been duly verified by the SubDivisional Police Officer.13.The afore-mentioned material considered by the detainingauthority to reach a conclusion that he is a dangerous person, theoffences being peculiar in nature, in our considered view, is a plausibleone. The two of the offences have been committed by him as a part ofthe unlawful assembly. He has already been booked under section153-A of the Indian Penal Code which is an offence which inherentlyhas the potential of disturbing the public order. The statements of theanonymous witnesses also indicate that without any animosity thepetitioner has the tendency to terrorize the citizens. In view of suchmaterial, one can safely observe that the subjective satisfactionreached by the detaining authority is based on objective material whichit has considered in the proper perspective.14.Coming to the ground regarding violation of Article 22(5) ofthe Constitution of India, the affidavit in reply expressly mentions about 8 Cr. WP. 156 / 2024the grounds of detention having been served to the petitioner with allthe necessary documents and about having extended him opportunityto make representation. It has been expressly mentioned in paragraphno. 16 of the affidavit in reply that the information about detention andthe place of detention was given to the petitioner’s relative Syed AltafSyed Hussain on 27-06-2023. The grounds of detention and otherrelevant papers were served upon him on 29-06-2023 in presence ofthe jail authorities. There is no material to demonstrate that these arefactually incorrect statements. Rather we have been shown the originalpapers which clearly bear signatures and thumb impressions of thepetitioner with the dates. Consequently, it cannot be said that eitherthe documents and grounds of detention were not furnished to him orthat he was not extended any opportunity of making a representation.15.Coming to the next ground, as has been already observedherein-above, apart from the statement in the affidavit in reply of theDistrict Magistrate, the statements of the anonymous witnesses bearspecific endorsement of the Sub Divisional Police Officer about havingverified the statements by enquiring with the witnesses. It also bearsthe acknowledgment of the petitioner about having received the copies.16.As far as the period of detention in the impugned order andthe approval, suffice for the purpose to observe that the issue issquarely covered by decision in the matter of T. Devaki V. 9 Cr. WP. 156 / 2024Government of Tamil Nadu; (1990) 2 SCC 456. Even paragraphno. 79 in Ameena Begum V. State of Telangana; (2023) 9 SCC 587,sets the issue at rest.17.As regards the timeline prescribed under different sectionsof the MPDA Act, the impugned order was passed on 27-06-2023. Hewas actually detained on the same day. The grounds of detention wereserved upon him on 29-06-2023 together with all the papers. Thosewere explained to the petitioner in Marathi by the jail authority.Acknowledgment was obtained from the petitioner about havingreceived the grounds of detention. Each of these papers bear hissignature and thumb impression of 27-06-2023 and 29-06-2023. Theorder of detention was approved under section 3(3) on 07-07-2023.18. Therefore, apparently, so far as the timeline prescribedunder section 3 and 8 seems to have been followed.19.However, in ground no. 17 of the petition, it has beenexpressly averred that the order of detention and papers were notplaced before the Advisory Board within three weeks of the detentionas contemplated under section 10 of the MPDA Act. However, thoughit has been denied in the affidavit in reply, the reply is conspicuouslysilent as to exactly on what date, the papers were placed before theAdvisory Board. It has merely been mentioned that the Advisory Board 10 Cr. WP. 156 / 2024heard the petitioner through video conference on 27-07-2023.Paragraph no. 22 and 23 read as under :-22. With reference to ground No. XVII, I say and submit thatthe grounds of detention were communicated and placedbefore the advisory board in the stipulated time period asmentioned in the Act. There is no violation of any section ofMPDA Act. Hence the petition filed by the petitioner deservesto be dismissed and kindly be dismissed in the interest ofjustice.23. With reference to ground No. XVIII, I say and submit thatdeponent No. 02 has passed the order of detention on date27/06/2023 under section 3 of the MPDA Act 1981 and thepetitioner was given chance to be heard before the Hon’bleAdvisory Board for which the Video Conference was kept ondate 27/07/2023. The petitioner was heard by Hon’ble AdvisoryBoard, and the Board found that there is no point in the saypleaded by the petitioner for which the Hon’ble Advisory Boardrecommended the confirmation to the order of detention passedby the deponent no. 02 and all the rules and regulations arecompletely followed while passing the order. There is noviolation of any section of MPDA Act. Hence the petition filedby the petitioner deserves to be dismissed and kindly bedismissed in the interest of justice.20.When section 10 requires the papers to be placed beforethe Advisory Board within three weeks of the actual detention, it wasimperative for the respondents to have disclosed this ground not onlyby filing appropriate affidavit but even by producing the documents toestablish the fact that the papers were actually placed before theAdvisory Board within three weeks of actual detention which happenedon 27-06-2023. In our considered view, this lapse would go to the rootof the impugned order.21.In substance, though we are not with the petitioner inrespect of other aspects and grounds being raised by him for
Decision
11 Cr. WP. 156 / 2024impugning the order of detention, absence of any material todemonstrate strict compliance with section 10 of the MPDA Act whichmandates the papers to be placed before the Advisory Board withinthree weeks of actual detention, in our considered view, would vitiatethe impugned order.22.The writ petition is allowed.23.The petitioner shall be set at liberty forthwith.24.Pending application is disposed of.25.We quantify the fees of advocate for the petitioner - ShriUttam L. Telgaonkar to be Rs.3,000/- (Rs. Three Thousand), to be paidby High Court Legal Service Sub-Committee at Aurangabad. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/