High Court · 2025

Legal Reasoning

wp-300-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.300 OF 2025Sharukh alias Shahrukh Yunus KhatikAge: 32 years, R/o. Lakhani Park, Navapur,Taluka Navapur, District Nandurbar... PetitionerVersus1.District Magistrate,Nandurbar.2.The State of MaharashtraThrough Addl. Chief Secretaryto Government of MaharashtraMantralaya, Home Department,Mantralaya, Mumbai.3.The SuperintendentNashik Central Prison,Nashik... Respondents…Mr. Rupesh A. Jaiswal h/f Ms. Jayshree Tripathi, Advocate for the petitioner.Mr. A. M. Phule, APP for respondents/State.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.DATE : 04 APRIL 2025 JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Mr. Rupesh A. Jaiswal holding for learnedAdvocate Ms. Jayshree Tripathi for the petitioner and learned APP Mr. A.M. Phule for the respondents – State.[1] wp-300-2025-J.odt2.Rule. Rule made returnable forthwith. The petition is heard finallywith the consent of the learned Advocates for the parties.3.The petitioner challenges the detention order dated 29.10.2024bearing No.Home/Desk-2/MPDA-D.O.-1/WS-406/2024 passed byrespondent No.1 as well as the approval order dated 07.11.2024 and theconfirmation order dated 18.12.2024 passed by respondent No.2, byinvoking the powers of this Court under Article 226 of the Constitution ofIndia.4.Learned Advocate for the petitioner has taken us through theimpugned orders and the material which was supplied to the petitionerby the detaining authority after passing of the order. He submits thatthough several offences were registered against the petitioner, yet forthe purpose of passing the impugned order, all the five offences wereconsidered i.e. (i) Crime No.782 of 2021 registered with Navapur PoliceStation, District Nandurbar for the offences punishable under Sections326, 325, 143, 147, 148, 149, 323 and under Section 3 punishable underSection 25 of the Arms Act, (ii) Crime No.289 of 2023 registered withNavapur Police Station, District Nandurbar for the offences punishableunder Sections 353, 307, 427 read with Section 34 of Indian PenalCode, (iii) Crime No.1182400324423 of 2024 registered with KakraparPolice Station, Gujarat State for the offences punishable under Sections[2] wp-300-2025-J.odt65, 81, 83, 119(b), 116(b), 98(2) of the Gujarat Prohibition Act, 1949, (iv)Crime No.384 of 2024 registered with Navapur Police Station, DistrictNandurbar for the offences punishable under Sections 307, 324, 323,504, 143, 147, 148, 149 of Indian Penal Code and (v) Crime No.453 of2024 registered with Navapur Police Station, District Nandurbar for theoffences punishable under Sections 65E, 83, 86, 108 of MaharashtraProhibition Act. Learned Advocate for the petitioner submits that thedetaining authority has considered old and stale cases to come to theconclusion that the petitioner is a bootlegger. There was no live link inrespect of Crime No.782 of 2021 and Crime No.289 of 2023, which werealso considered for passing the detention order. As regards CrimeNo.1182400324423 of 2024 registered with Kakrapar Police Station,Gujarat State under Section 65(e), 81, 83, 119(b), 116(b), 98(2) of theGujarat Prohibition Act and Crime No.453 of 2024 registered withNavapur Police Station, District Nandurbar for the offences punishableunder Sections 65E, 83, 86, 108 of the Maharashtra Prohibition Act, itappears that the CA reports were not received. Therefore, in fact, thematerial placed before the detaining authority has not been consideredby him properly and, there was no subjective satisfaction arrived at,before passing of the order or to arrive at the conclusion, that thepetitioner is a bootlegger. He further submits that though the petitionerhas been released on bail in all of the offences, which were considered,[3] wp-300-2025-J.odtyet the bail orders have not been considered at all. He further submitsthat as regards statements of in-camera witnesses ‘A’ and ‘B’ areconcerned, the incident in both the cases are personal in nature. At themost law and order situation would have been created. Therefore, theimpugned order is illegal and cannot be allowed to sustain. 5.Per contra, the learned APP strongly supports the action takenagainst the petitioner. He submits that the petitioner is a dangerousperson as defined under Maharashtra Prevention of Dangerous Activitiesof Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons andVideo Pirates Act, 1981 (hereinafter referred to as the “MPDA Act”). Thedetaining authority has relied on the two in-camera statements and thesubjective satisfaction has been arrived at. There is no illegality in theprocedure adopted while recording the in-camera statements of thewitnesses. Due to the terror created by the petitioner, people are notcoming forward to lodge report against him and, therefore, it affects thepublic order. Learned APP relies on the affidavit-in-reply of Dr. MittaliSethi, the District Magistrate, Nandurbar/detaining authority. Shesupports the detention order passed by her and tries to demonstrate asto how she had arrived at the subjective satisfaction. She further statesthat her order has been approved by the State Government and also bythe Advisory Board. Thereafter, the confirmation has been given. Thematerial before the detaining authority was sufficient to arrive at the[4] wp-300-2025-J.odtsubjective satisfaction. So also, the affidavits-in-reply of Dr. RajendraTanaji Bhalwane, Deputy Secretary, Government of Maharashtra, HomeDepartment, Mantralaya, Mumbai and Ms. Aruna Arjunrao Mugutrao,Adult, Superintendent, Nashik Road Central Prison, Nashik have alsobeen produced. Further, the statements of in-camera witnesses ‘A’ and‘B’ show that ordinary law would not have curtailed the bootleggingactivities of the petitioner. Therefore, no fault can be found in theimpugned order. 6.Before considering the case, we would like to take note of thelegal position as is emerging in the following decisions :-(i) Nenavath Bujji etc. Vs. State of Telangana and others,[2024 SCC OnLine SC 367], (ii)Kanu Biswas Vs. State of West Bengal, [1972 (3) SCC831] wherein reference was made to the decision in Dr. RamManohar Lohia vs. State of Bihar and Ors. [1966 (1) SCR 709];(iii)Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, [1995(3) SCC 237];(iv)Pushkar Mukherjee and Ors. Vs. The State of WestBengal, [AIR 1970 SC 852];(v) Phulwari Jagdambaprasad Pathak Vs. R. H. Mendonca andOrs., (2000 (6) SCC 751) and;(vi)Smt. Hemlata Kantilal Shah Vs. State of Maharashtra [5] wp-300-2025-J.odtand another, [(1981) 4 SCC 647].7.Taking into consideration the legal position as summarized above,it is to be noted herein as to whether the detaining authority whilepassing the impugned order had arrived at the subjective satisfactionand whether the procedure as contemplated has been complied with ornot. In Nenavath Bujji (Supra) itself it has been reiterated by theHon’ble Supreme Court that illegal detention orders cannot be sustainedand, therefore, strict compliance is required to be made, as it is aquestion of liberty of a citizen. The first and the foremost fact that isrequired to be considered is that the first two offences those have beenconsidered are dated 19.12.2021 and 10.06.2023 respectively. The lastoffence that was registered against the applicant was on 15.08.2024.The order of detention has been passed on 29.10.2024. Therefore, it canbe said that there was no live link between the offences those have beenallegedly occurred on 19.12.2021 and 10.06.2023 and the detentionorder. As regards Crime No.384 of 2024 is concerned, the facts wouldshow that at the most law and order situation would have been createdand not the public order. As regards Crime No.1182400324423 of 2024registered with Kakrapar Police Station, Gujarat State and Crime No.453of 2024 registered with Navapur Police Station, District Nandurbar, theCA reports were not before the detaining authority on the date of passingof the detention order. Therefore, how much percentage of ethyl alcohol[6] wp-300-2025-J.odtwas found therein could not have been gathered by the detainingauthority. Further, as regards chapter cases are concerned, one wasunder Section 107 of the Code of Criminal Procedure in 2022, whereinbond of one year has been taken from 08.09.2022 and second wasunder Section 56 of the Maharashtra Police Act, wherein notice ofexternment proceeding was served on the petitioner and the saidproceeding was dropped on the request of police station, as they want toinitiate stronger action against the petitioner. Whether those preventiveactions were taken to the logical end or not has not been mentioned.Whether those actions would have curtailed the activities of thepetitioner was one of the factor to be considered. Further, it is not statedas to why preventive action under Section 93 of the Code of CriminalProcedure has not been taken. Another important point to be noted isthat though the petitioner was released on bail in all the offences whichwere considered for passing the detention order, yet the detainingauthority has not considered the bail orders while passing the detentionorder. We would like to rely on the decision in Joyi Kitty Joseph Vs.Union of India and Ors., [Criminal Appeal No.___ of 2025 (arisingout of Special Leave Petition (Crl.) No.16893 of 2024) decided by theHon’ble Supreme Court on 06.03.2025], wherein reliance has beenplaced on the decision in Ameena Begum v. State of Telangana andothers, [(2023) 9 SCC 587] and it has been observed that preventive[7] wp-300-2025-J.odtdetention is impermissible when the ordinary law of the land is sufficientto deal with the situation was per incuriam to the Constitution Benchdecision in Haradhan Saha vs. State of W.B. [(1975) 3 SCC 198], in thelimited judicial review available to constitutional courts in preventivedetention matters. However, in Ameena Begum (Supra), the Hon’bleSupreme Court explained the true distinction between a threat to “lawand order” and acts “prejudicial to public order” and it is stated that itcannot be determined merely by the nature or quality of the actcomplained of, but in the proper degree and extent of its impact on thesociety. Further, it is observed that “When bail was granted by thejurisdictional Court, that too on conditions, the detaining authority oughtto have examined whether they were sufficient to curb the evil of furtherindulgence in identical activities; which is the very basis of the preventivedetention ordered. The detention order being silent on that aspect, weinterfere with the detention order only on the ground of the detainingauthority having not looked into the conditions imposed by theMagistrate while granting bail for the very same offence; the allegationsin which also have led to the preventive detention, assailed herein, toenter a satisfaction as to whether those conditions are sufficient or not torestrain the detenu from indulging in further like activities.” 8.As regards in-camera statements of witnesses ‘A’ and ‘B’ areconcerned, the incidents in both the cases would show that general[8] wp-300-2025-J.odtpublic was not involved. At the most law and order situation would havebeen created. Therefore, these grounds do not justify the impugnedorder.9.Thus, taking into consideration the above observations and thedecisions of the Hon’ble Apex Court, at the most, the statements as wellas the offences allegedly committed would reveal that the petitioner hadcreated law and order situation and not disturbance to the public order.Though the Advisory Board had approved the detention of the petitioner,yet we are of the opinion that there was no material before the detainingauthority to categorize the petitioner as a dangerous person orbootlegger. 10.For the aforesaid reasons, the petition deserves to be allowed.Hence, following order is passed :-ORDERI)The Writ Petition is allowed.II)The detention order dated 29.10.2024 bearingNo.Home/Desk-2/MPDA-D.O.-1/WS-406/2024 passed byrespondent No.1 as well as the approval order dated 07.11.2024and the confirmation order dated 18.12.2024 passed by respondentNo.2, are hereby quashed and set aside.[9] wp-300-2025-J.odtIII)Petitioner - Sharukh alias Shahrukh Yunus Khatik shall bereleased forthwith, if not required in any other offence.IV)Rule is made absolute in the above terms. [ SANJAY A. DESHMUKH ][ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[10]