High Court
Legal Reasoning
WP-1077-24.odtindulged in the said criminal activity. It has been specifically averred in thepetition that the petitioner himself has surrendered before the policeauthorities and even he has not been arrested therein. The petitioner,therefore, did not press his application for bail. If same is the case stated bythe petitioner on oath, it indicates the law and order enforcing authoritieshave not resorted to the ordinary law of land by not arresting the petitioner inthe said crime.11.The next crime i.e. C.R. No. 263 of 2023 was lodged by thepetitioner’s real brother alleging him that on 02nd December, 2023 thepetitioner had intercepted him while he was returning from his village in hiscar. The petitioner allegedly threatened his real brother with pistol. Thereason of giving threats was that he would give information to the LocalCrime Branch of Beed as regards petitioner’s criminal activities. In our view,allegations in the said F.I.R. appears to be individual centric. The petitionerallegedly threatened his real brother. Considering the nature of offenceallegedly committed by the petitioner against his brother, it even appears thathe was not arrested in the said crime.12.Then there are two in-camera statements recorded on 04thDecember, 2023 and 06th December, 2023 respectively. The witness (A)stated that on one day in December 2023 the petitioner intercepted andthreatened him with a pistol. The reason for threatening was the witnessused to inform the police about the petitioner’s criminal activities. The7 / 9 WP-1077-24.odtwitness further testified that the passers by ran away on having seen theincident. The second in-camera statement is pertaining to the petitioner tohave threatened the witness (B) and robbed him of Rs.5,500/- forconsumption of alcohol. It was 01:00 p.m. of a day in the month ofDecember 2023. The witness testified that on having seen the incident, thenearby shop owners downed the shutters and went home.13.In our view, both these statements are as vague as could be. Thewitnesses did not give date or day of the incident. The same necessarilycaused prejudice to the petitioner in his defence, since he could have comewith a case of alibi, if any. If we look at the criminal history of the petitioner,except one crime registered in January 2023, we do not find any crime tohave been registered against him for extortion or robbery.14.In short, in all the crimes relied on, the petitioner has not evenbeen arrested. The same appears to be the case in relation to the crime,being C.R. No. 263 of 2023 registered at the instance of his real brother.The said crime was individual centric. The first crime was fall out of a politicalissue. When the concerned police station officer could have arrested thepetitioner in both the crimes, said exercise has not been carried out. Thenwhat remains is the two in-camera statements which do not give exact day ordate of the incident which materially caused prejudice to the petitioner in hisdefence. We, therefore, find the order impugned herein to have not beenpassed with the subjective satisfaction by the detaining authority. We are,8 / 9 WP-1077-24.odttherefore, inclined to allow the petition. Criminal writ petition, therefore,succeeds, in terms of following order :-Impugned order of detention of the petitioner dated 09th January,2024 passed by Respondent No.2 – District Magistrate, Beed in file no.2024/RB-DESK-1/POL-1/MPDA-01 and confirmation order dated 29thFebruary, 2024 passed by Respondent No.1 – Home Department (Special),State of Maharashtra in file no. MPDA-0124/CR.21/Spl-3B are hereby setaside. The petitioner be released forthwith, if not required in any other case.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD9 / 9
Arguments
WP-1077-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1077 OF 2024Samadhan Baburao KhindkarAge: 27 years, Occu.: Contractor,R/o Belwadi, Beed,Tq. & Dist. Beed..PETITIONERVERSUS1. State of Maharashtra Through its Section Officer, Home Department (Special), Mantralaya, Mumbai-322. The District Magistrate, Beed, Tq. & Dist. Beed3. The Superintendent of Jail, Central Jail Harsool, Aurangabad Dist. Aurangabad..RESPONDENTS....Mr. S.S. Gangakhedkar, Advocate for petitionerMs. V.N. Patil Jadhav, A.P.P. for respondents....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 31st JULY, 2024PRONOUNCED ON : 05th AUGUST, 2024JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.Rule. Rule made returnable forthwith. Heard finally with theconsent of learned counsel for the parties.2.The challenge in this petition is to an order dated 09th January,2024 passed by Respondent No.2 – District Magistrate, Beed under Section1 / 9 WP-1077-24.odt3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords,Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, SandSmugglers and Persons engaged in Black Marketing of EssentialCommodities Act, 1981. (‘MPDA Act’), detaining the petitioner for a period oftwelve months so as to prevent him from indulging in activities prejudicial tothe maintenance of public order. The said detention order has beenconfirmed by Respondent No.1 – State of Maharashtra, in Department ofHome vide order dated 29th February, 2024.3.Learned counsel for the petitioner would submit that only twocrimes and two in-camera statements were relied on to pass the detentionorder. The first crime, being C.R. No. 250 of 2023, was registered againstnot less than 200 persons. The incident was a fall out of Maratha ArakshanAndolan. Even mere presence of the petitioner in the group would in no waycould be termed him to have indulged in arson and rioting. In one similarcrime, the petitioner had been to the police station and police authorities hadassured him of removing his name from the charge-sheet since hisinvolvement in the said crime was not surfaced. The police authorities wentback on the said statement. According to learned counsel, these specificaverments in the petition have not been traversed by the sponsoringauthority in affidavit-in-reply. The other crime, being C.R. No. 263 of 2023was registered by none other than real brother of the petitioner. It wasindividual centric. The allegations of the report lodged by the petitioner’sbrother would indicate the petitioner to have abused him and threatened with2 / 9 WP-1077-24.odta pistol. It was arising out of a family dispute. So far as regards in-camerastatements are concerned, learned counsel would submit that there was nolive link. The in-camera statements are nothing but got up witnesses injustification for putting up the proposal for detaining the petitioner. One of thein-camera statements pertains to the incident which had allegedly happenedwith the petitioner’s brother, who lodged the F.I.R. Those statements havenot been verified by the competent authority. According to learned counsel,interference with the impugned order is, therefore, warranted.4.Learned counsel for the petitioner relied on the Apex Courtjudgment in case of Ameena Begum Vs. State of Telangana & Ors., 2023LiveLaw (SC) 743 to observe thus :-“52.In Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14, Hon'bleE.S. Venkataramiah, J. (as the Chief Justice then was) observed:32....It is well settled that the law of preventive detention is a hardlaw and therefore it should be strictly construed. Care should be takenthat the liberty of a person is not jeopardised unless his case fallssquarely within the four corners of the relevant law. The law ofpreventive detention should not be used merely to clip the wings of anAccused who is involved in a criminal prosecution. It is not intended forthe purpose of keeping a man under detention when under ordinarycriminal law it may not be possible to resist the issue of orders of bail,unless the material available is such as would satisfy the requirementsof the legal provisions authorising such detention. When a person isenlarged on bail by a competent criminal court, great caution should beexercised in scrutinising the validity of an order of preventive detentionwhich is based on the very same charge which is to be tried by thecriminal court.”5.Learned A.P.P. would, on the other hand, took us through theorder of detention to submit that there was rise in the criminal activities of the3 / 9 WP-1077-24.odtpetitioner. Not less than six crimes were registered against him, besidespreventive action taken under Section 110 of the Cr.P.C. Thereafter, againthe petitioner indulged in criminal activities. Due to his threats, aggrievedpersons do not come forward to lodge report against him. The order ofdetention and reasons given therein are self speaking. Same suggests thedetaining authority to have passed the impugned order on subjectivesatisfaction. According to her, threatening the persons with the revolverwould necessarily spread panic in the society. The crime, C.R. No. 250 of2023 indicates that public property was indiscriminately damaged. Houses ofparticular political figures were targeted. The petitioner was taken intocustody on the spot. The sponsoring authority had every reason to put up aproposal apprehending the petitioner to be likely to revert back to similaractivities which would be prejudicial to the maintenance of public order.According to her, the order impugned herein is flawless. She, therefore,urged for dismissal of the petition.6.Considered the submissions advanced. Perused the order ofdetention and material in the nature of in-camera statements relied on.7.Paragraph no.3.1 of the impugned order gives a chart of fivecrimes registered against the petitioner during the period from 24th March,2017 to 02nd December, 2023. While paragraph no.3.2 speaks of final bondto have been obtained from the petitioner regarding his assurance tomaintain peace and not to indulge in criminal activities. It was a bond for a4 / 9 WP-1077-24.odtperiod of twelve months. The period thereof came to an end on 28th March,2024. The first three crimes in the chart were committed during 2017 to2023. The same has no proximity with the order of detention. Those crimeswere pending against the petitioner and he is on bail therein. The law wouldtake its own course in regard to those crimes.8.Only last two crimes viz. C.R. No. 250 of 2023 registered on 30thOctober, 2023 for the offences punishable under Sections 143, 147, 148,149, 151, 152, 120(b), 307, 308, 353, 332, 336, 337, 338, 342 and 436 of theI.P.C. r/w Sections 3 and 4 of Prevention of Damage to Public Property Act,Section 7 of Criminal Law Amendment Act r/w Section 135 of MaharashtraPolice Act and C.R. NO. 263 OF 2023 registered on 02nd December, 2023 forthe offences punishable under Sections 341, 504 and 506 of the I.P.C. andunder Section 3/25 of Arms Act have proximity or live link with the impugnedorder. It has been specifically mentioned in paragraph no.3.1 of thedetention order that the offences mentioned below (in the chart in paragraphno.3.1) were referred only to show the petitioner’s criminal history. It hasspecifically been observed therein that those crimes have not been relied onfor passing the order of detention, but are only referred to show hishabituality.9.Paragraph no. 4 of the impugned order speaks of petitioner’sinvolvement in the commission of crimes that took place in the immediatepast which triggered the sponsoring authority to put up the proposal for5 / 9 WP-1077-24.odtpetitioner’s detention. Those are the two crimes which have in fact beenreferred to at serial nos. 5 and 6 (last two crimes) in the chart given inparagraph no.3.1. The detaining authority herself has observed in the veryparagraph that all the crimes listed in the said chart have not been relied onfor passing the order of detention. Reference to those crimes is only made toshow the petitioner’s past history. While, on the other hand, the order ofdetention is passed on the last two crimes given in the said chart. Be that asit may. Let us advert to those two crimes to find whether the detainingauthority was really justified in exercising her subjective satisfaction inpassing the order.10.In paragraph no.5.1.2 it has been observed that the complaintwas lodged by one Kiran Pawar, the Police Sub-Inspector attached withBeed City Police Station. It was lodged on 31st October, 2023 pertaining tothe incident that took place on the previous evening. The gist of the F.I.R.indicates that the group of 200-250 persons assembled in Beed city. Thegroup members were holding flags, sticks, stones and were giving slogansfavouring one community and a leader, who was demanding Marathareservation. It has further been averred that the said mob pelted stones onvarious shops and the hospitals. The mob members indulged in arson,damaged public properties as well. Members of the mob pelted stones atpolice personnel, who were on bandobast duty. Name of the petitionerfigures at Sr.No.15 as one of the members. It has also been mentionedin the F.I.R. that CCTV footages were examined to find the petitioner6 / 9