High Court
Legal Reasoning
1Writ Petiton 1506 of 2023.odtTHE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL WRIT PETITION NO. 1506 OF 2023Sunil @ Sonu Muralidhar MagarAge. 27 years, Occ: LabourR/o. Ganesh Nagar, Garkheda ParisarPundaliknagar, Aurangabad.... PetitionerVersus1.The State of MaharashtraThrough The Secretary,Home Department [Special], 2ND floor, Main Building,Mantralaya, Mumbai.2.The Section Officer,Home Department [Special], 2ND floor, Main Building, Mantralaya, Mumbai.3.The Commissioner of Police,Aurangabad.4.The SuperintendentAurangabad Central Prison,Aurangabad.... Respondents…Mr. A. K. Bhosle, Advocate for Petitioner.Mr. A. R. Kale. APP for Respondents. …CORAM :R. G. AVACHAT andSANJAY A. DESHMUKH, JJ.RESERVED ON:22nd December, 2023. PRONOUNCED ON :16th January, 2024. 2Writ Petiton 1506 of 2023.odtJ U D G M E N T : (Per Sanjay A. Deshmukh, J.) 1 Rule. Rule made returnable forthwith and heard finally bythe consent of the parties. 2This writ petition is filed to challenge the order of detentiondated 28th June, 2023 passed by respondent No.3/Commissioner ofPolice, Aurangabad under Section 3 of the Maharashtra Prevention ofDangerous Activities of Slumlords, Bootleggers, Drug-Offenders,Dangerous Persons, Video Pirates, Sand Smugglers and PersonsEngaged in Black-Marketing of Essential Commodities Act, 1981 (forshort “MPDA Act”).3Background facts are as under:The respondents initiated proposal for taking actionagainst the petitioner under section 3 of the MPDA Act. It was allegedthat activities of this petitioner created terror in the mind of public atlarge. He has committed serious offenses like voluntarily causinghurt, robbery, dacoity, causing death and grievous hurt, for the casesfiled under Chapters XVI and XVII of the IPC. The result of hisactivities was that the peoples were remaining under his constant fearand terror. The list of the offenses committed by this petitioner is asunder: 3Writ Petiton 1506 of 2023.odtSr.No.Police StationC.R. No. & U/sDate ofRegistrationPresentStatus1Pundaliknagar 107/2021 u/s 324, 323, 504, 506, 34 IPC29/03/2021Pending trial2Harsul27/2022 u/s 394, 395 IPC.23/02/2022Pending trial3MIDC Cidco83/2023 u/s 397, 394, 325, 323, 34 IPC14/02/2023PendingInvestigation4MIDC Cidco90/2023 u/s 394, 34 IPC.18/02/2023Pending trial4The authority further relied upon the in-camera statementsof two witnesses recorded on 7th June, 2023 and 9th June, 2023,which were verified by the concerned police officer. After consideringCrime No.83 of 2023, dated 14th February, 2023, registered for theoffences punishable under Sections 397, 394, 325 and 323 read with34 of the IPC and Crime No.90 of 2023, dated 18th February, 2023,registered for the offences punishable under Section 394 read with 34of IPC and the in-camera statements of two witnesses, the detainingauthority recorded its subjective satisfaction that the petitioner is adangerous person and action taken against him under normal law ofthe land is found to be insufficient and ineffective to deter him fromindulging in criminal activities prejudicial to the maintenance of publicorder. Thus, it was observed that criminal activities of the petitionerare disturbing the normal tempo of life of citizens of Aurangabad city. 4Writ Petiton 1506 of 2023.odt5The learned counsel for petitioner pointed out that allegedcrimes took place on 14th February, 2023 and 18th February, 2023 withMIDC Cidco Police Station. However, the name of the petitioner is notmentioned in the reports. Bail was granted in both the crimes on 3rdApril, 2023 and 24th April, 2023. The bail orders are not challenged bythe respondents. The proposal was not thereafter, immediatelymoved for taking action under the provisions of the MPDA Act againstthis petitioner. Therefore, the impugned order vitiates, as it is illegaland bad in law. The in-camera statements of the witnesses are vaguein nature, which are relied upon by the authority. The representationwas sent by the petitioner on 25th August, 2023 to Respondent No.3.It was decided on 6th September, 2023. The delay caused fordeciding said representation is not properly explained. There is nolive link for subjective satisfaction to pass such order of detention.The report was not promptly sent as per Section 3(3) of MPDA Act tothe State Government. The learned counsel for petitioner submittedthat the fundamental rights of the petitioner to move freely ascontemplated under Article 19 of the Constitution of India is affectedby said illegal order. The detention order is not legal and correct. It islastly prayed to quash and set aside the said order.6In the affidavit in reply submitted on behalf of respondent 5Writ Petiton 1506 of 2023.odtNo.3, it is submitted that the petitioner is a dangerous person andafter subjective satisfaction, considering his criminal activities on thebasis of Crime No.83 of 2023 and Crime No.90 of 2023, as well as,the in-camera statements of the witnesses, the detention order ispassed by giving sufficient reasons. The grounds raised by thepetitioner are misleading. Considering ground of detention, the writpetition deserves to be dismissed. 7The Joint Secretary, Government of Maharashtra, HomeDepartment (Special) submitted affidavit and contended that theimpugned order is passed on 28th June, 2023. The report underSection 3(3) of the MPDA Act was received by the Home Departmenton 30th June, 2023. The State Government approved the order on 7thJuly, 2023. The representation of the petitioner was received on 29thAugust, 2023 and it was decided on 6th September, 2023 by applyingthe mind. It is also submitted that when the representation of thepetitioner was received on 29th August 2023 by the Central Prison,Aurangabad, remarks were called from the Commissioner of Police,Aurangabad by email dated 29th August, 2023 sent by Special Branch-3B Desk of Home Department. The remarks of the detaining authoritywere received on 4th September, 2023, late evening by e-mail. Theremarks were placed before respondent No. 2 on 5th September, 2023
Legal Reasoning
6Writ Petiton 1506 of 2023.odtand it was forwarded to the Joint Secretary on same day. On 6thSeptember, 2023, the Joint Secretary forwarded it to the AdditionalChief Secretary (Home). On 6th September, 2023, the Additional ChiefSecretary considered the remarks of the detaining authority andrejected the said representation.8According to the respondents there is no delay caused forconsidering and deciding representation of the petitioner. Thematerial, particularly, two crimes and in-camera statements wererightly considered and relied upon for passing the said order. It islastly prayed to reject the writ petition. 9The learned APP for the State submitted that delaycaused for considering the representation of the petitioner is properlyexplained. There was subjective satisfaction of the detainingauthority. There is live link between the commission of these twocrimes and passing of the impugned order. It is lastly prayed to rejectthe writ petition. 10Perused the impugned order and all the relevant papers. 11The learned counsel for petitioner submitted the case ofPradeep Nilkanth Paturkar Vs. S. Ramamurthi and ors., 1994 AIR
Decision
7Writ Petiton 1506 of 2023.odt(Supreme Court) 656), in which the law is laid down that detentionorder passed after 5 months and 8 days from the date of registrationof the last crime, taking into consideration the unexplained delay,whether short or long, the order of detention was quashed. TheHonourable Supreme Court in paragraph 13 and 14 held as under:“13.Coming to the case on hand, the detention order waspassed after 5 months and 8 days from the date of theregistration of the last case and more than 4 months fromsubmission of the proposal. What disturbs our mind is thatthe statements from the witnesses A to E were obtained onlyafter the detenu became successful in getting bail in all theprohibition cases registered against him, that too in the laterpart of March, 1991. These statements are very muchreferred to in the grounds of detention and relied upon by thedetaining authority along with the registration of the casesunder the Act:14.Under the above circumstances, taking intoconsideration of the unexplained delay whether short or longespecially when the appellant has taken a specific plea ofdelay, we are constrained to quash the detention order.Accordingly we allow the appeal, set aside the judgment ofthe High Court and quash the impugned detention order.The detenu is directed to be set at liberty forthwith.”12In the present case, Crime No.83 of 2023 was registeredon 14th February, 2023 and Crime No.90 of 2023 was registered on 8Writ Petiton 1506 of 2023.odt18th February, 2023. There is delay of 4 months and 10 days forpassing the detention order from the date of registration of last crime.13As far as the two in-camera statements of the witnessesare concerned, these two statements are recorded on 7th June, 2023and 9th June, 2023, in which the incidents in the month of May, 2023and first week of June, 2023 are alleged to have been occurred. 14It is an admitted fact that in these two crimes, bail isgranted by the learned Additional Sessions Court to this petitioner on3rd April, 2023 and 24th April, 2023, but those orders are notchallenged by the respondents, in which it is ordered that there is nosubstance and concrete prima-facie material against the petitioner.Thus, there is insufficient material to proceed against the petitioner.Further, there is no live link between these two crimes and passing ofthe detention order, when there is four months span. There is nojustification on the part of the respondents as to why stale crimes offour months prior to the detention order were taken into considerationfor arriving at subjective satisfaction. The impugned order does notshow that reasons recorded by the learned Additional SessionsJudge, Aurangabad while granting bail, were considered by thedetaining authority as held in the case of Pradeep Nilkanth Paturkar 9Writ Petiton 1506 of 2023.odt(supra). Thus, the detaining authority failed to apply its mind whilerecording subjective satisfaction.15Considering these two grounds that there is no subjectivesatisfaction by application of mind on the part of the detainingauthority, we hold that there is no material to justify the conclusion thatthe acts of the petitioner are detrimental to the maintenance of publicorder. Also there is no proper explanation on the part of therespondents as to why the representation dated 25th August, 2023was not decided within reasonable time. Therefore, we hold that theimpugned order is not legal and sustainable, which is passed contraryto the provisions of Section 3 of the MPDA Act. 16The writ petition deserves to be allowed. The impugnedorder deserves to be quashed and set aside. Hence, the followingorder:O R D E RI.The writ petition is allowed in terms of prayer clause (c).II.The order dated 28th June, 2023 passed by respondentNo.3, is hereby quashed and set aside. 10Writ Petiton 1506 of 2023.odtIII.The petitioner be released forthwith, if not required in anyother crime. IV.Rule is made absolute in above terms. [ SANJAY A. DESHMUKH, J. ] [ R. G. AVACHAT, J. ] nga