High Court
Legal Reasoning
WP-1093-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1093 OF 2024Shaikh Arbaaz @ T Baba Jafar ShaikhAge: 23 years, Occu.: Labour,R/o Valimamu Dargah, Jalna,Tq. & Dist. Jalna..PETITIONERVERSUS1. State of Maharashtra Through Section Officer, Home Department (Special), 2nd Floor, Mantralaya, Mumbai2. The District Magistrate, Collector Office, Jalna3. The Superintendent Central Prison, Harsool, Aurangabad..RESPONDENTS....Mr. R.V. Gore, Advocate for petitionerMr. G.A. Kulkarni, A.P.P. for respondents....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 26th JULY, 2024PRONOUNCED ON : 22nd 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, under Article 226 of the Constitutionof India, is to order dated 27th December, 2023 passed by Respondent No.21 / 12 WP-1093-24.odt– District Magistrate, Jalna directing detention of the petitioner for a period oftwelve months, in exercise of power under Section 3(2) of the MaharashtraPrevention of Dangerous Activities of Slumlords, Bootleggers, DrugOffenders, Dangerous Persons, Video Pirates, Sand Smugglers and Personsengaged in Black Marketing of Essential Commodities Act, 1981 (‘MPDAAct’). The petitioner came to be detained with effect from 01st January, 2024.The order of detention has been approved by Respondent No.1 – StateGovernment in Department of Home on 04th January, 2024 and then afterreceipt of report of the Advisory Board confirmed the same on 21st February,2024. The detention order is passed to prevent the petitioner, as adangerous person, from indulging in activities, causing disturbance or breachof maintenance of public order.3.Learned counsel for the petitioner would submit that although tencrimes were registered against the petitioner, seven cases are triable by theCourt of J.M.F.C. Only two cases are serious, being punishable underSection 307 of the I.P.C. Those are pending adjudication. Law will take itsown course in regard to those crimes. He would further submit that crime,C.R. No. 324 of 2021 was registered against 150 persons. The petitionerwas not the main accused therein. While another crime, C.R. No. 319 of2022 was registered against not less than 80-90 unknown persons. Thepetitioner again has been falsely implicated therein. Same is the submissionof learned counsel as regards crime, C.R. No. 343 of 2023. According tohim, it was registered against four unknown persons. He would further2 / 12 WP-1093-24.odtsubmit that an offence under the Arms Act has been registered against thepetitioner, falsely implicating him on the basis of secret information. Thepetitioner was released on bail in all the cases pending against him.4.Learned counsel would further submit that order impugned hereinwas passed without there being subjective satisfaction on the part of thedetaining authority. He would further submit that the petitioner received anotice from the Secretary, Advisory Board communicating him the case tohave been referred to the board. The date of hearing was fixed and hearingwas to be held through video conferencing. According to learned counsel,the petitioner did not understand in what way he would represent himselfbefore the Advisory Board. He could not file his representation nor has hebeen given hearing. He even did not understand the charges levelledagainst him. He was, therefore, deprived of a fair trial before the fact findingcommittee i.e. the Advisory Board. The order impugned herein is challengedmainly on the following grounds :-(I) Not offered an opportunity to represent himself before theAdvisory Board and/or failure to grant him opportunity of hearing.(II) Non-compliance of provisions of Section 10 of the MPDA Act,and therefore, it constituted violation of Article 22(5) of theConstitution of India.(III)This ground in the writ petition has been given up onreceipt of information from the Department of Home, Mantralaya,Government of Maharashtra. The said ground pertains to non-adherence of timeline given in the MPDA Act.3 / 12 WP-1093-24.odt(IV)The in-camera statements of witnesses – ‘A’ and ‘B’indicate them to have been recorded just to fill up the gapbetween the alleged last crime registered against the petitionerand the proposal for his detention.(V)Both the in-camera statements are vague. Even ifthose are accepted as it is, would indicate them to be the cases ofmaintenance of law and order and not public order.(VI)No live link between the old cases and the order ofdetention. Old cases have been considered for passing the orderof detention.(VII)Copies of police papers have not been served on thepetitioner in relation to the crimes listed in paragraph no.2 of theorder of detention. The same materially caused prejudice inmaking effective representation against the order of detention.Learned counsel, therefore, ultimately urged for allowing thepetition.5.Learned A.P.P. would, on the other hand, submit that the order ofdetention is self speaking. All the ten crimes registered against the petitionerare referred to in paragraph no.2 of the order have been considered.Although the first crime is dated 29th March, 2021, there is a live linkbetween/among each and every crime registered against him thereafter.Moreover, two chapter proceedings, one under Section 107 and the otherunder Section 110 of the Cr.P.C. did not yield result. Even proceeding forexternment of the petitioner was required to be resorted to. Learned A.P.P.4 / 12 WP-1093-24.odttook us through the order of detention wherein gist of each and every crimeregistered against the petitioner has been recorded. He then adverted ourattention towards two in-camera statements of witnesses – ‘A’ and ‘B’ andsubmitted that the persons did not come forward to lodge report against thepetitioner in view of his terror in the vicinity. According to him, sufficiency orinsufficiency of the material cannot be a subject of judicial review. He thentook us through the affidavit-in-reply filed by the detaining authority andurged for dismissal of the petition.6.Considered the submissions advanced. Perused the order ofdetention and the affidavit-in-reply. Before turning to the factual matrix, weneed to refer to certain provisions of the MPDA Act, which read thus :-“2. In this Act, unless the context otherwise requires,—(a) “acting in any manner prejudicial to the maintenance of publicorder” means—(iv) in the case of a dangerous person, when he is engaged, or ismaking preparation for engaging, in any of his activities as adangerous person, which affect adversely, or are likely to affectadversely, the maintenance of public order;Explanation. - For the purpose of this clause (a), public order shallbe deemed to have been affected adversely, or shall be deemedlikely to be affected adversely, inter alia if any of the activities ofany of the persons referred to in this clause, directly or indirectly,is causing or calculated to cause any harm, danger or alarm or afeeling of insecurity, among the general public or any sectionthereof or a grave or widespread danger to life or public health ordisturbance in public safety and tranquility or disturbs the day today life of the community by black- marketing in the essentialcommodities which is resulting in the artificial scarcity in thesupply of such commodities and rises in the prices of essential5 / 12 WP-1093-24.odtcommodities which ultimately causes inflation or disturbs thelife of the community by producing and distributing pirated copiesof music or film products, thereby resulting in a loss of confidencein administrations ;(b-1) “dangerous person” means a person, who either by himselfor as a member or leader of a gang, habitually commits, orattempts to commit or abets the commission of any of the offencespunishable under Chapter XVI or Chapter XVII of the Indian PenalCode or any of the offences punishable under Chapter V of theArms Act, 1959.”7.The order of detention impugned herein reads thus :-“1)That upon perusal of the documents produced before me,you have created terror and had caused public nuisance within thelimits of Sadar Bazar, Jalna Police Station and within nearby vicinity.You are habitual of committing crimes such as attempt to murder,obstructing government work, rioting by gathering persons with illegalmeans, damaging public property, violating government orders,creating terror by possessing illegal weapons, voluntarily causing hurt,obscene abuse and giving death threats etc.In order to prevent you from committing crimes, preventiveaction has already been taken as per CRPC Section-107, 110 andexternment action per section 56 of Bombay Police Act, but the saidpreventive action are in vain, on the contrary, you have committedcrimes in ascending order. You have created terror and are disturbingthe public order by creating fear in the minds of public and causingdamage to their lives and property. By committing crimes such asattempt to murder, obstructing government work, rioting by gatheringpersons with illegal means, damaging public property, creating terror bypossessing illegal weapons, voluntarily causing hurt and by usingthreats you have disturbed the Public peace and order and havedisrupted the Public life. Due to your criminal and dangerous activities,terror has been created in Sadar Bazar, Jalna Police Station and nearbyareas and public life in that area has been disrupted.2)The details about the recent crimes registered against you atSadar Bazar, Jalna Police Station, and the preventive actions carried outagainst you are as follows -6 / 12 WP-1093-24.odtSr.No.PoliceStationC.R. No.SectionsFiling DateCurrentStatus1SadarBazar, Jalna235/2021324, 504, 34 of IPC29.03.2021Pendingadjudication2SadarBazar, Jalna324/2021307, 353, 333, 143, 145,147, 148, 149, 427, 188,269, 270 of IPC r/wSection 4/25 of IndianArms Act, Section 51(b) ofDisaster Management Actand Sections 3 and 4 ofPublic Property DamageAct11.05.2021Pendingadjudication3SadarBazar, Jalna325/2021324, 504, 506, 34 of IPC11.05.2021Pendingadjudication4SadarBazar, Jalna984/2021324, 323, 504, 506, 143,147, 148, 149 of IPC23.07.2021Pendingadjudication5SadarBazar, Jalna319/2022143, 145, 146, 147, 149,153, 120(b) of IPC r/wSection 135 of BombayPolice Act15.04.2022Pendingadjudication6SadarBazar, Jalna801/2022143, 147, 148, 149, 427,504, 506 of IPC r/wSection 4/25 of IndianArms Act08.10.2022Underinvestigation7SadarBazar, Jalna343/2023324, 323, 34 of IPC03.05.2023Pendingadjudication8SadarBazar, Jalna408/2023324, 34 of IPC20.05.2023Pendingadjudication9SadarBazar, Jalna685/2023307, 34 of IPC27.08.2023Underinvestigation10SadarBazar, Jalna687/2023143, 147, 148, 149, 324,294, 336, 337 of IPC r/wSection 4/25 of IndianArms Act28.08.2023UnderinvestigationPreventive actions :Sr. No.Police StationChapter Case No. and SectionFiling Date1Sadar Bazar, Jalna121/2022 Section 107 Cr.P.C.28.04.20222Sadar Bazar, Jalna39/2022 Section 110(e)(g) Cr.P.C.27.05.2023Externment action :Sr.No.Police StationExternment Order No.SectionDisposal1Sadar Bazar,Jalna12/2022 Dt.16/07/2022Sent to SDM Jalna vide Out.No. 3686/2022 dtd.16.07.202256 of BombayPolice ActStayed7 / 12 WP-1093-24.odt8.Paragraph no.3 of the order records that all the ten crimes havebeen considered for passing the order of detention. The order of detentionwas served on the petitioner in Marathi language as well. Service of thedetention order alongwith a bunch of documents containing 719 pages is afact admitted by the petitioner in the petition itself. He did not place onrecord those documents so as to find which of the material documents ismissing therefrom and the same caused prejudice in not preferring effectiverepresentation against the order of detention. In the order of detention itself,the petitioner was apprised of his right first to make representation to thedetaining authority and then to make a representation to the StateGovernment. Averments in the petition are axiomatic that the petitioner tohave been aware of the matter to have been referred to the Advisory Board.He even received a notice of hearing. The hearing appears to have takenplace through video conferencing. He, therefore, cannot be heard to say thathe was not offered fair opportunity of hearing before the Advisory Board.9.The definition of ‘dangerous person’ itself indicates habituality ofthe concerned indulging in the offences falling under Chapter XVI and XVII ofthe I.P.C. In the first blush it may appear that the crimes registered in themonth of March and May 2021 are stale and have no bearing on passing ofthe impugned order. List of the offences registered against the petitionerwould go a long way to indicate that he went on committing those offencesone after the other, with a short interval. One of the crimes registeredagainst the petitioner pertains to indulging in communal violence. True, the8 / 12 WP-1093-24.odtother three crimes pertain to offences punishable under Section 324 readwith Section 34 of the I.P.C. The fact is, however that the victims of thiscrime are different. Two of the ten offences are punishable under Section307 of I.P.C. Even two chapter proceedings were initiated against him, oneuner Section 107 and another under Section 110 of Cr.P.C. The same tooappears to have not yielded any result. When every time the victim isdifferent, it would be difficult to assume that each and every offence isindividual centric and it has no bearing on the question of maintenance ofpublic order. At the cost of repetition, it needs to be observed that five of theten crimes registered against the petitioner were allegedly committed inprosecuting the common object of unlawful assembly. True, the petitionerwas on bail in all the crimes registered against him.10.Moreover, there are two in-camera statements of the witnesses ‘A’and ‘B’. They gave their statements on the condition of anonymity. Witness‘A’ refers to the incident that took place in the second week of July 2023,while witness ‘B’ speaks of the incident that took place in the first week ofAugust 2023. Close reading of the judgment of Apex Court in case ofPhulwari Jagdambaprasad Pathak Vs. R.H. Mendonca, 2000 AIR (SC)2527 would indicate that the in-camera statements therein also did notcontain day, date and time of the incident allegedly committed against thewitnesses.11.In case of Ameena Begum Vs. State of Telangana & Ors., AIR2023 SC 4273, it has been observed in paragraph no.17 as under :-9 / 12
Decision
WP-1093-24.odt“17.In a different context, we may take note of the decision inSama Aruna v. State of Telangana (2018) 12 SCC 150 where, S.A.Bobde, J. (as the Chief Justice then was) while construing theprovisions of the Act, held:“16. There is little doubt that the conduct or activities of thedetenu in the past must be taken into account for coming to theconclusion that he is going to engage in or make preparations forengaging in such activities, for many such persons follow a pattern ofcriminal activities. But the question is how far back? There is no doubtthat only activities so far back can be considered as furnish a cause forpreventive detention in the present. That is, only those activities so farback in the past which lead to the conclusion that he is likely to engagein or prepare to engage in such activities in the immediate future can betaken into account.”12.So far as ground of time gap between the last crime registeredagainst the petitioner and the order of detention is concerned, it has beenobserved in case of The Collector & District Magistrate, W.G. Dis. Eluru,Andhra Pradesh Vs. Sangala Kondamma, 2005 AIR (SC) 1165 as under :-“Last activity 3 months prior to order of detention – No illegality if thefacts placed before the detaining authority are proximate to each otherand the last of the fact mentioned is proximate to the order of detentionthen the early incidents cannot be treated as stale and detention ordercannot be set aside.”13.The writ petition is silent to take exception to the impugned orderon the ground of delay in passing the same, post receipt of proposal in thatregard. For want of pleading, the same cannot be addressed since thedetaining authority loses his right to respond thereto and explain the delay, ifany, occurred in passing the order. Needless to mention, the order ofdetention is an administrative action.10 / 12 WP-1093-24.odt14.So far as regards the petitioner was on bail in the crimesregistered against him is concerned, we propose to rely on the followingdecisions of the Apex Court:-(i) Vijaykumar Vs. Union of India and Others, (1988) 2 SCC 57has observed :“Whether the offence for which detenue was jailed was bailable or notimmaterial for the purpose of preventive detention.”(ii) Mohd. Salim Khan Vs. Shri.C.C.Bose, Deputy Secretary tothe Government of West Bengal and Anr., 1972 AIR (SC) 1670, wherein itis observed thus:-"A. West Bengal (Prevention of Violent Activities) Act, 1970 (President'sAct 19 of 1970), Sections 3(1) and 3(3) - Detention order afterdischarge of petitioner in criminal case - A valid order of detentioncould be passed against him in connection with those very incidents.”(iii) Nenavath Bujji etc. Vs. The State of Telangana and Ors.,AIR 2024 SC 1610, observed thus:-“25. The power of preventive detention is qualitatively different frompunitive detention. The power of preventive detention is aprecautionary power exercised in reasonable anticipation. It may ormay not relate to an offence. It is not a parallel proceeding. It does notoverlap with prosecution even if it relies on certain facts for whichprosecution may be launched or may have been launched. An order ofpreventive detention, may be made before or during prosecution. Anorder of preventive detention may be made with or without prosecutionand in anticipation or after discharge or even acquittal. The pendency ofprosecution is no bar to an order of preventive detention. An order ofpreventive detention is also not a bar to prosecution. [See: HaradhanSaha Vs. the State of W.B., 1974 Cri. L.J. 1479]”11 / 12 WP-1093-24.odt15.For all the aforesaid reasons, we are of the considered view thatregistration of not less than ten crimes against the petitioner and thepreventive measures, such as chapter cases initiated against him, provedfutile, the detaining authority, in the facts and circumstances of the case, wasjustified in passing the order impugned herein. We do not find the authorityconcerned to have not been subjectively satisfied in passing the order.16.In our view, therefore, criminal writ petition lacks merit. Same is,therefore, dismissed. Rule stands discharged.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD12 / 12