High Court
Legal Reasoning
101621.2024WP.odtpurpose of the present matter. In any case, we find that while applyinghis mind to the material provided to him for arriving at subjectivesatisfaction, Respondent No.2 – detaining authority ought to haveverified as to whether the provisions of the Acts under which offenceswere registered were prima facie attracted or not. It is apparent thatrespondent No.2 has not done so. Non-application of mind is, therefore,writ large on the face of reasons for detention recorded by RespondentNo.2. 9.As regards offence under Section 142 of the MaharashtraPolice Act, the allegation against the petitioner is that an externmentorder was passed against him and he had visited Vasmat city fromwhere he was externed while the said order was in operation. Breach ofthe order of externment is an offence under Section 142 of the said Act.We are of the considered opinion that when a situation i.e. breach ofexternment order has been suitably addressed by taking recourse toregular law under statutory provisions i.e. the Maharashtra Police Act,action of preventive detention was completely unwarranted. 10.Perusal of two F.I.Rs. will demonstrate that the saidoffences gave rise to law and order problem and not public orderproblem. There is marked distinction between law and order and publicorder. 111621.2024WP.odt11.Distinction between the terms “law and order” and “publicorder” has been explained by the Hon’ble Supreme Court in variousjudgments from time to time. The Hon’ble Supreme Court has in thematter of Ram Manohar Lohia Vs. State of Bihar reported AIR 1960 SC633 held that in contravention of law always affects order, however,before it can be said to affect “public order”, it must be shown that itaffects the community or public at large. The Hon’ble Supreme Courthas categorized offences into three parts, viz:- (i) “law and order”,(ii) “public order” and “security of the State”. In the words of theHon’ble Supreme Court these three categories of offences are likeconcentric circles, largest being law and order, next being public orderand smallest being security of the State. Therefore, every offence whichmay affect law and order will not affect public order. Just as an actmight affect public order may not affect security of the State. Therefore,in every case of preventive detention, the Court must carefully examineas to whether the offence/s stated to be committed by the detenuefall/s within the category of law and order or public order. The order ofpreventive detention can be justified only if the offence falls under latercategory and not the previous one. Similar distinction has been made inthe matters of Pushkar Mukherjee Vs. State of West Bengal reported in(1969) 1 SCC 10, Shyamlal Chakraborty Vs. Commissioner of Police, 121621.2024WP.odtCulcutta reported (1970) 1 SCR 762 and State of Uttar Pradesh Vs.Sanjai Pratap Gupta reported in (2004) 8 SCC 591. In the matters ofRam Manohar Lohia (supra) and Sanjay Gupta (supra), the Hon’bleSupreme Court has held that an offence can be said to affect publicorder only it affects the community or general public at large. It isstated that the action must be such that it disturbs even tempo of life ofthe community at large. The Hon’ble Supreme Court has explained bygiving illustrations that act of theft, vandalism and even murder areexamples of mere breach of law and order whereas acts such ascommunal riots, caste clashes etc., are offences affecting public order.The said principles laid down by the Hon’ble Supreme Court from timeto time have been reiterated recent in the matter of Nenavath Bujji etcVs. State of Telangana reported in AIR 2024 SC 1610 and held that thedistinction between law and order and public order is one of degreeand extent of the reach of the act in question in the society at large. Anoffence can be said to affect public order adversely only it is of suchnature as to disturb the normal tempo of life of members of communityat large. If the offence affects a few individuals only then it will be alaw and order issue and not public order issue. Even if the offencescommitted in public view it can not be said that it affects public orderadversely, unless it directly affect the tempo of life of general public.The Hon’ble Supreme Court while dealing with pari materia provisions 131621.2024WP.odtfor the State of Telangana held that in order to term a person as“gunda” which is same as a dangerous person under MPDA, he must bein the habit of adversely affecting public order or creating public ordersituation. An habitual offender, who creates law and order problemwill, therefore, not be an habitual offender/dangerous person for thepurpose of laws relating to preventive detention. 12.Respondent No.2 has also relied on two in-camerastatements. In-camera statement dated 18.05.2024 marked as “A” refersto an attempt to commit theft in house of the witness. This obviouslywas not an attempt to commit offence adversely affecting public order.Likewise the statement marked “B” stated to be recorded on 17.05.2024also indicates that the petitioner had committed theft of billy goat andwas carrying the same on his motorcycle and on being asked about thesame, he misbehaved with the said witness and went away leaving thebilly goats at the spot. Apart from these specific allegations bothstatements made general allegations without referring to any particularincident. Both these statements do not remotely indicate that thepetitioner has caused any public order problem. 13.For the reasons aforesaid, we are of the opinion that thepetition deserves to be allowed. Hence, we pass the following order:- 141621.2024WP.odtORDER I)The Writ Petition stands allowed.II)The detention order dated 27.05.2024 bearing No.2024DC-1/KAVI-255/2024/1697 passed by respondent No.2 as well as theapproval order dated 05.06.2024 and the confirmation order dated30.08.2024 passed by respondent No.1 stand quashed and set aside.III)Petitioner - Jogindersingh Ranjitsingh Chavan shall be releasedforthwith, if not required in any other offence.IV)Rule is made absolute in the above terms.[ROHIT W. JOSHI][ SMT. VIBHA KANKANWADI] JUDGEJUDGEsga/
Arguments
11621.2024WP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL WRIT PETITION NO. 1621 OF 2024 Jogindersingh Ranjitsingh Chavan Age : 25 years, Occ : Labour, R/o Railway Station Road, Shikalkari Vasti, Basmat, Tq. Basmat, Dist. Hingoli, Maharashtra..PETITIONER -VERSUS-1.The State of MaharashtraThrough Hon’ble Secretary, Home Department (Special), Mantralaya, Mumbai. 2.The Collector and District Magistrate of Hingoli,Dist. Hingoli, Maharashtra. ..RESPONDENTS...Advocate for the petitioner : Mr. Shaikh Faiyazuddin APP for Respondent- State : Mrs. P.R. Bharaswadkar …CORAM :SMT. VIBHA KANKANWADI ANDROHIT W. JOSHI, JJ.DATED : 9th JANUARY, 2025., 2024.JUDGMENT (PER ROHIT W. JOSHI, J.) :.The petitioner has filed the present petition under Article226 of the Constitution of India, in order to challenge the order ofpreventive detention dated 27.05.2024 issued by Respondent No.2 inexercise of powers under Section 3(1) and (2) of the MaharashtraPrevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders/ Dangerous Persons, Video Pirates, Sand Smugglers andPersons Engaged in Black-Marketing of Essential Commodities Act, 21621.2024WP.odt1981 (Hereinafter referred to as “MPDA” for the purpose of brevity).The said order is approved vide order dated 05.06.2024 passed byRespondent No.1 under Section 3(3), which is also impugned in thepetition. The petitioner has been placed under preventive detention onthe ground that he is a “dangerous person” within the meaning ofSection 2(b-1) of MPDA. The grounds of detention dated 27.05.2024have been communicated to the petitioner on the date of his detention.The detaining authority has referred to 15 offences registered againstthe petitioner from 11.08.2022 till 05.05.2024. Apart from this, oneexternment proceeding under Section 55 of the Maharashtra Police Actis also referred to. As per the grounds of detention, the detainingauthority has taken into consideration last two offences registeredagainst the petitioner, viz :- (I) F.I.R. No.82/2024 dated 09.02.2024, forthe offences punishable under Sections 353, 332, 212, 189, 504 readwith Section 34 of the Indian Penal Code and Section 4/25 of the ArmsAct and Section 142 of the Maharashtra Police Act and (ii) F.I.R.No.250/2024 dated 05.05.2024 for the offences punishable underSection 142 of the Maharashtra Police Act and Section 4/25 of theArms Act. It is stated that during the course of confidential enquiry, thePolice Inspector, Police Station, Vasmat City has recorded in-camerastatements of two witnesses, who have agreed for recording theirstatements on condition of anonymity. 31621.2024WP.odt2.The Advisory Board has expressed opinion afterconsidering the representation of the petitioner that there are sufficientgrounds for continuing preventive detention of the petitioner. 3.Shri Shaikh Faiyazuddin, learned counsel for the petitionersubmits that the two offences, which are stated to be taken intoconsideration by the detaining authority are not relating to breach ofpublic order. He states that at the best the said offences can be said tobe relating to law and order and by no stretch of imagination it can besaid that public order has been adversely affected due to the same. Hepoints out that with respect to the offence registered vide F.I.R.No.250/2024, the Police has merely issued a notice under Section41A(1) of the Code of Criminal Procedure and has not arrested him. Hecontends that the Police Authority itself has not considered the saidoffence to be a serious offence. With respect to the second offenceregistered vide F.I.R. No.82/2024, he states that he was arrested inrelation to the said offence on 05.05.2024 and subsequently releasedon bail on 10.05.2024. He contends that taking the averments in thesaid F.I.R. on its face value at best Section 4/25 of the Arms Act andSection 142 of the Maharashtra Police Act can be attributed to him. Theother sections are not attributable to him. He criticizes the order ofpreventive detention on the ground that for alleged breach of the 41621.2024WP.odtexternment order passed under Section 55 of the Maharashtra PoliceAct, prosecution under Section 142 of the said Act is already initiatedagainst him. He would go on to submit that when recourse can be andin fact has been taken to ordinary law in order to meet the situation,Respondent No.2 could not resort to shortcut method by passing orderof prevention detention. With respect to the offence under Arms Act, hestates that the detention order does not refer to any notification underthe said Act and as such, the offence under the said Act is not madeout. Apart from this, he states that the order refers to 15 offences in alland although it is stated that only the aforesaid two offences have beentaken into consideration, in fact all 15 offences have been consideredby the detaining authority. He states that since stale offences have beentaken into consideration. The order stands vitiated on the ground thatirrelevant considerations have weighed with detaining authority whilepassing the impugned order of preventive detention. 4.Per contra, Smt. P.R. Bharaswadkar, learned APP hasstrenuously argued that the petitioner has become a threat to thesociety at large, he has willfully violated the order of externmentpassed against him on more than one occasion, crime is his sole sourceof income and as such he is threat to public law and order. She statesthat although the detaining authority has made a reference to offences 51621.2024WP.odtregistered against the petitioner, the said references are only for thepurpose of understanding his background. She states that only twooffences, which are in proximity, have been taken into considerationeffectively for passing the order of preventive detention. She points outfrom the F.I.R. that on both occasions when the petitioner wasapprehended while he has entered Vasmat City limits in breach ofexternment order, he was found possessing a knife. She made elaboratereference to the offence registered vide Crime No. 82/2024 to contendthat the petitioner and his family members had even threatened thepolice authorities while they had been to his house for apprehendinghim on learning that he had entered city limits in defiance toexternment order. She further states that the petitioner is a history-sheeter. Victims and witnesses of crime committed by him do not feelsafe to depose against him or even to speak about his criminal activitiesdue to fear. She contends that having regard to totality ofcircumstances, it was found essential to curtail his liberty by placinghim under preventive detention. She buttresses the submissions bypointing out that even orders of externment did not deter him fromentering city limit with deadly weapons. She also states that all theprocedural safeguards like confirmation of order by the StateGovernment, reference to Advisory Board, opportunity of hearing bythe Advisory Board and a final order by the State Government upon 61621.2024WP.odtconsidering positive report by the Advisory Board have been followedin the present matter. She sums of the submissions urging that thepetition be dismissed. 5.At the outset we state that although subjective satisfactionfor preventive detention is arrived at on the basis of two offences, viz:-Crime No.82/2024 and Crime No.250/2024, we find upon perusal ofgrounds of detention that in fact all the 15 offences registered againstthe petitioner have been taken into consideration by respondent No.2.There is a specific reference to all the offences in paragraph 4.3.Respondent No.2 has observed by making a reference to the said 15offences that complainants in the said 15 cases were belonging todifferent caste, religion, occupations and different age group anddifferent accomplices were involved with the petitioner in the saidoffences. The offences were committed within the jurisdiction ofdifferent Police Stations. Two offences are punishable with sentence ofover 7 years and deadly weapons like iron sickle, sword, iron pipe andwood stick were used while committing the offence. It is thus clear thatall 15 offences have been taken into consideration while passing theimpugned order of detention. The order of detention is dated27.05.2024, respondent No.2 has referred to 13 offences registeredfrom 11th August, 2022 to 2nd September, 2023. These offences are not 71621.2024WP.odtin proximity of time. It is apparent that old and stale offences havebeen taken into consideration while arriving at subjective satisfaction toplace the petitioner in preventive detention. Since irrelevant materialhas weighed with Respondent No.2 while passing order of preventivedetention, the subjective satisfaction stands vitiated. 6.As regards the two offences, which according toRespondent No.2 have been actually taken into consideration, the firstoffence was registered on 09.02.2024, vide Crime No.82/2024. Theoffence is registered under Sections 353, 332, 212, 189, 504 read withSection 34 of the IPC, section 4/25 of the Arms Act and Section 142 ofthe Maharashtra Police Act. Perusal of the F.I.R. in Crime No.82/2024demonstrates that the informant is Police person posted at Vasmat CityPolice Station. He states that a secret informer revealed to him that thepetitioner had entered the limits of Vasmat city in breach of theexternment order and was present at his house. This information wasreceived while he was on patrolling duty along with Police Inspectorand other police personnel. He states that on gathering thisinformation, the Police Party reached the house of the petitioner. Onnoticing the Police Party, the petitioner jumped out of a window in thehouse and climbed the tin shed of his house with a view to flee fromthe spot. He states that the Police Party had apprehended him and 81621.2024WP.odtwhile he and Police Inspector were taking him in Police Van, his fathertook out a knife and threatened them. His father and brother created aruckus and terror at the spot. They along with mother of the petitionerhad indulged in a scuffle with the police personnel and could becontrolled only when the appropriate force was used against them. Asregards this offence, the contents of the F.I.R. will demonstrate thatoffence under Section 142 of the Maharashtra Police Act and sections189 and 504 of the IPC were committed by the petitioner, in as muchas, he had breached the externment order. The offence under Section353 i.e. assault or use of criminal force to deter public servant fromdischarging his duty, Section 332 i.e. voluntarily causing hurt to deterpublic servant from performing his duty and Section 212 i.e.harbouring an offender are attributable to the other accused persons,viz:- parents and brother of the petitioner. The offence under the ArmsAct is also attributable to Ranjitsingh, father of the petitioner and not tothe petitioner. A perusal of F.I.R. will further demonstrate that it is noteven alleged that incident had occurred infront of people at large orthat it had caused any terror of fear amongst the people, who wereallegedly present. The said offence at best can be said to be law andorder issue and not public order issue. 7.Crime No.250/2024 came to be registered on 05.05.2024 91621.2024WP.odtfor the offences under Section 142 of the Maharashtra Police Act andSection 4/25 of the Arms Act. The informant is Assistant PoliceInspector at Police Station, Vasmat City. He states that on 05.05.2024,while conducting all out operation with other police persons, he waspatrolling in different areas in Vasmat City, he received secretinformation that the petitioner had breached the externment order andwas roaming within the city limits with a knife. He states that at around1:30 a.m., the Police Party reached the house of the petitioner and onseeing the Police Party, he was trying to flee from house. He was thenapprehended with a knife which was concealed in his shirt. 8.As regards both these offences, the first thing is to benoticed is that reasons recorded by the detaining authority as also F.I.Rsdo not mention that the Central Government has issued notification inthe official gazette as contemplated under Section 4 of the Arms Actprohibiting acquisition, possessing and carrying of arms with respect toVasmat city or District Hingoli at the relevant time. Section 25 of theArms Act provides for punishment for various offences under the saidAct including breach of any of the provisions of the said Act. In theabsence of any prohibitory notification as contemplated by Section 4,offence under Section 4/25 of the Arms Act does not appear to havebeen committed. This is a prima facie opinion expressed only for the