StateMr. Amar v. Lavte CORAM
Legal Reasoning
JUDGMENT948 Cri.WP-422-2024.docxIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 422 OF 2024Sachin @ Bedkya Shyam KaleAge : 20 years, Occu. Labour R/o Pardhiwada, Hingoli Tq. and Dist. Hingoli.…Petitioner~ Versus ~1.The State of Maharashtra,through the Additional Chief Secretary, Home DepartmentMantralaya, Mumbai 400 032.2.The District CollectorCollector Office, Hingoli,Dist. Hingoli.3.Sub-Divisional Police Officer,Sub-Division Hingoli (Rural)Dist. Hingoli.4.Police Inspector,Police Station Hingoli (City) Tq. & Dist. Hingoli.5.The Superintendent of Jail,Harsul Central Prison,Aurangabad.…Respondents APPEARANCESAdvocate for the petitioner Mr. Shashikant E. ShekadePage 1 of 105 April 2024 JUDGMENT948 Cri.WP-422-2024.docxAPP for the Respondent Nos. 1 to 5/StateMr. Amar V. Lavte CORAM:MANGESH S. PATIL &SHAILESH P.BRAHME, JJ.DATE :5 APRIL 2024ORAL JUDGMENT(Per Shailesh P. Brahme, J.) :.Rule. Rule is made returnable forthwith. Heard matterfinally with the consent of both the parties.2. The petitioner is assailing order dated 15.09.2023passed by the respondent no.2/District Magistrate underSection 3(1) of the Maharashtra Prevention of DangerousActivities of Slumlords Bootleggers, Drug-Offenders,Dangerous Persons, Video Pirates, Sand Smugglers andPersons Engaged in Black-Marketing of EssentialCommodities Act, 1981 (hereinafter referred to as the MPDAAct for the sake of brevity and convenience). 3.The respondent no.2/District Magistrate recorded thatthe petitioner is a dangerous person and his activities areprejudicial to the public order. Though sponsoring authorityforwarded papers of eight offences registered against himalongwith orders of preventive action, only last two offenceswere considered. The subjective satisfaction has been arrivedat on following material :i.Offence bearing C.R. No. 678/2023 registered on07.08.2023 under Sections 457 and 380 of the Indian PenalCode.ii.Offence bearing C.R. No.709/2023 registered on20.08.2023 under Sections 457 and 380 of the Indian PenalCode.Page 2 of 105 April 2024
Legal Reasoning
JUDGMENT948 Cri.WP-422-2024.docxiii.Preventive action in Chapter Case No.184/2021 of19.07.2021 under Section 107 of the Code of CriminalProcedure.iv.Externment Proceeding No.10/2022 decided on31.03.2023, externing the petitioner for one year underSection 56 of the Maharashtra Police Act.v.Two in-camera statements. 4.Learned Counsel for the petitioner submits that thedetaining authority committed patent illegality in arriving atsubjective satisfaction based on two offences. There is nomaterial to indicate that the activity of the petitioner wasdetrimental to public order. Orders enlarging petitioner onbail have not been considered by the detaining authority. In-camera statements are unreliable, improperly verified andliable to be discarded. It is further submitted that thepetitioner is not involved in offences pitted against him.Those were registered against unknown person. There isnothing incriminating against him. 5.Learned Counsel for the petitioner seeks reliance uponthe following judgments :iNilesh Sunil Pendulkar Vs. District Magistrate, Ahmednagar and Others. 2024 SCC onLineBom 694.iiRushikesh Tanaji Bhoite Vs. State of Maharashtra and Ors.(2012) 2 SCC 72iiiAmeena Begum Vs. State of Telangana and Ors.(2023) 9 SCC 587vAshokrao Vs. State of Maharashtra and Ors.(2023) SCC OnLine Bom 347 6.Learned APP Mr. Amar V. Lavte vehemently opposes thesubmission of the petitioner and supports impugned order.Page 3 of 105 April 2024 JUDGMENT948 Cri.WP-422-2024.docxHe submits that the petitioner has indulged into aggravatedform of criminal activity which is evident from order ofexternment. It is further submitted that there is cogentmaterial against the petitioner to arrive at subjectivesatisfaction and no fault can be found in the impugned order.It is further submitted that in both offences pitted againsthim, stolen articles have been recovered at his instance.Veracity of the crime cannot be gone into in the proceedingof detention. He would further submit that in-camerastatements have been properly verified and reliable. Lastly itis submitted that the criminal activities of the petitioner,indicate disturbance to the public order. 7.Learned APP seeks to rely on following judgments :i.Smt. Phulwari Jagadambaprasad Pathak Vs. R.H. Mendonca and Others, 2000 AIR SCW 2727ii.Borjahan Gorey Vs. State of W.B.AIR 1972 SC 2256iii.Vinod Vithal Rane and Others Vs. R.H. Mendonca and Others, 2001 Bom.C.R.(Cri) 5378.We have considered rival submissions advanced acrossthe bar. We have also gone through relevant papers of thematerial pitted against petitioner by the detaining authority.We have also considered affidavit-in-reply filed by therespondent no.2. Glaring feature of the case in hand is thatthe petitioner has suffered order of externment passed underSection 56 of the Maharashtra Police Act on 31.03.2023. Hewas externed for one year from Hingoli City. This order hasnot been challenged by him. During the operation of theorder, he indulged in offences pitted against him on22.08.2023 and 29.08.2023 committing breach of the order.Page 4 of 105 April 2024 JUDGMENT948 Cri.WP-422-2024.docx9.It reveals from record that on 12.09.2023, in-camerastatements of the witnesses were recorded. Those wereverified on 13.09.2023. The proposal was forwarded by thesponsoring authority on 14.09.2023. The impugned orderwas passed on 15.09.2023. It was approved under Section3(3) of the MPDA Act on 25.09.2023. The Advisory Boardtendered its opinion on 28.10.2023. It was confirmed on31.10.2023.10.We have gone through the relevant papers of theinvestigation of C.R. No.678/2023 and 709/2023. Both theoffences are punishable under Sections 457, 380 of IPC.First Information Reports do not disclose name of thepetitioner as those were against unknown person. But oninvestigation, involvement of the petitioner surfaced.Interestingly, in both the offences the Investigating Officerrecorded memorandum under Section 27 of the IndianEvidence Act and recovery panchnama. The stolen articleshave been discovered by the petitioner. Investigation in boththe offences is in progress. The petitioner has been releasedon bail in both the offences. 11.We propose to examine the submission of subjectivesatisfaction in above backdrop. Both the offences fall underChapter XVI and XVII of IPC which is sine qua non to declaredetenue as a dangerous person as defined under Section 2(b-1) of MPDA Act. Though complaints were lodged againstunknown persons, during the course of investigationinvolvement of the petitioner is transpiring. Incriminatingmaterial has been collected against him. There is recovery ofstolen articles at his instance. Although both the offences arePage 5 of 105 April 2024 JUDGMENT948 Cri.WP-422-2024.docxindividual centric, however, if cumulative effect on the basisof the material pitted against the petitioner is considered,there is every reason to believe that his activities aredetrimental to the public order. In-camera statements,prevention action taken against the petitioner under Section107 of Cr.P.C. and order of externment would definitelydisclose the gravity of the notorious activity of the petitioner.The detaining authority is justified in holding that thepetitioner has indulged in activities prejudicial to the publicorder. 12.Learned APP relies on judgment of Supreme Court inthe matter of Phulwari Jagadambaprasad Pathak (supra).Following is the relevant paragraph :16. Then comes the crucial question whether 'in-camera' statements ofpersons/witnesses can be utilised for the purpose of arriving at subjectivesatisfaction of the detaining authority for passing the order of detention. Ourattention has not been drawn to any provision of the Act which expressly orimpliedly lays down the type of material which can form the basis of a detentionorder under section 3 of the Act. Preventive detention measure is a harsh, but itbecomes necessary in larger interest of society. It is in the nature of a precautionarymeasure taken for preservation of public order. The power is to be used with cautionand circumspection. For the purpose of exercise of the power it is not necessary toprove to the hilt that the person concerned had committed any of the offences asstated in the Act. It is sufficient if from the material available on record thedetaining authority could reasonably feel satisfied about the necessity for detentionof the person concerned in order to prevent him from indulging in activitiesprejudicial to the maintenance of public order. In the absence of any provisionspecifying the type of material which may or may not be taken into consideration bythe detaining authority and keeping in view the purpose the statute is intended toachieve the power vested in the detaining authority should not be unduly restricted.It is neither possible nor advisable to catalogue the types of materials which canform the basis of a detention order under the Act. That will depend on the facts andsituation of a case. Presumably, that is why the Parliament did not make anyprovision in the Act in that regard and left the matter to the discretion of thedetaining authority. However, the facts stated in the materials relied upon should betrue and should have a reasonable nexus with the purpose for which the order ispassed. .In view of above ratio, learned APP is right inPage 6 of 105 April 2024 JUDGMENT948 Cri.WP-422-2024.docxcontending that veracity of the crime is not a relevant factor.The submission of the learned Counsel for the petitioner thatthe petitioner is falsely implicated in the offences and there isno incriminating material is unsustainable. 13.The petitioner has already suffered order of externmentpassed on 31.03.2023. That was in operation for one year.That was not challenged by him. He committed offencesregistered on 22.08.2023 and 29.08.2023. He has indulgedin criminal activities, committing breach of order ofexternment. This is aggravated form of misconduct. We havealready taken a view in the matter of Aakash BhagwatChonde Vs. State of Maharashtra and Others, decided on31.01.2024 in Criminal Writ Petition No.1810/2023 andVishal Bhika Koli (Sonwane) Vs. State of Maharashtra andOthers, decided on 13.02.2024 in Criminal Writ PetitionNo.1781/2023 that if a detenue indulges in criminal activityin breach of an order of externment in force, the action fordetention cannot be faulted with. We find the subjectivesatisfaction is reasonable and probable. Learned APP hasrightly relied upon the judgment of the Division Benchrendered in the matter of Vinod Vitthal Rane. We haveconsidered paragraph no.15 of the judgment which lays downthat the Court cannot sit over the subjective satisfactionrecorded by the detaining authority. In that matter also, thedetenue had suffered order of externment under Section 56of the Bombay Police Act.14.Learned Counsel for the petitioner refers to latestjudgment of the Supreme Court in the matter of AmeenaPage 7 of 105 April 2024 JUDGMENT948 Cri.WP-422-2024.docxBegum (supra). In that judgment, the difference between the‘law and order’ and ‘public order’ has been explained by theHon’ble Apex Court. We have cautiously gone through thejudgment. After following the principles laid down therein, wehave assessed the subjective satisfaction. We find noillegality in holding that activities of the petitioner aredetrimental to the public order.15.The petitioner was enlarged on bail in both theoffences. Reasons assigned for enlarging him on bail, havenot been taken into account by the detaining authority.Learned Counsel seeks to rely upon the judgment of NileshSunil Pendulkar, Rushikesh Tanaji Bhoite and Ameena Begum(supra) in this regard. In all these judgments, position of lawhas been reiterated. However the case in hand shows adistinguishing feature of commission of the offences whenorder of externment was in-force. Therefore by implication ofSection 5(A) of MPDA Act, even if the submission of learnedCounsel for the petitioner has a merit, impugned orderwould, still, be legally sustainable. 16.In-camera statements are criticized by the petitioner.We have gone through the statements which were verified byadditional Superintendent of Police. Verification is endorsedon the statements which reflects authenticity andtruthfulness. It is tried to be canvassed by the learnedCounsel for the petitioner that the District Magistrate did notverify the statements. We do not find any statutory provisionto mandate verification by the detaining authority. There isdue verification by higher police personnel. The statementsPage 8 of 105 April 2024 JUDGMENT948 Cri.WP-422-2024.docxcorroborate material pitted against him to demonstrate terrorestablished by the petitioner in the vicinity. In our consideredview statements are reliable and corroborate the subjectivesatisfaction of the detaining authority.17.The learned Advocate for the petitioner relies on thejudgment in the matter of Ashokrao (supra). He refers toparagraph no.19 and 20. In facts and circumstances of thatcase, it is recorded as follows :19. In the present case, though the two In-camera statements refer to acts of the Detenuwhich might amount to extortion, there does not appear to be any detail of the fearpsychosis that might have been created by those acts or that the same were committed at apublic place.20. In fact a reading of the affidavit on the question of verification of the In-camerastatements itself would lead us to believe that the In-camera statements are unreliable andneed to be discarded for the following reasons. Though there is a reference to the Authorityverifying the statements by discussing/interacting with the witnesses, and the concernedAssistant Commissioner of Police and Deputy Commissioner of Police, a perusal of thestatements reveals that other than only endorsing that the Authority had done averification, there is no reference that the content of the statements was verified by theDetaining Authority i.e. the District Magistrate or that the Detaining Authority hasverified that the witnesses were unwilling out of fear of the Detenu to depose against him.It is evident that the subjective satisfaction of the Authority was arrived at withoutcomplying with verification as was required by law. 18.In the case in hand, in-camera statements have beenconsidered by the detaining authority and in paragraph no.5satisfaction has been recorded after gist of the statements ofeach witness. This is adequate exercise of jurisdiction by thedetaining authority. Personal verification by the detainingauthority is not contemplated. Therefore ratio laid down inthe matter of Ashokrao (supra) is not attracted. 19.The impugned order has not been assailed on othergrounds like delay, breach of statutory procedure or violationPage 9 of 105 April 2024 JUDGMENT948 Cri.WP-422-2024.docxof principles of natural justice. We have gone throughaffidavit-in-reply and the relevant record. We do not find anybreach of statutory procedure or time line prescribed. We donot find merit in the petition.20.Criminal Writ Petition is dismissed. Rule is discharged. (SHAILESH P. BRAHME, J) (MANGESH S. PATIL, J)NAJEEB//Page 10 of 105 April 2024