High Court
Facts
Cri.W.P. No.1528/2023:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1528 OF 2023Shaikh Akhtar Shaikh RashidAge 30 years, Occu. Labour,R/o Achanak Nagar, Near Bilal Masjid,Gandhinagar, Beed, Taluka and District Beed. … PETITIONERVERSUS1)The State of Maharashtrathrough the Dy. Secretary, Home Department (Special),Mantralaya, Mumbai – 400 0322)The District Magistrate,Office of the District Magistrate, Collectorate, Nagar Road, Beed,Taluka and District Beed.3)The Superintendent of Police,Beed, Taluka and District Beed.4)The Sub-Divisional Police Officer,Beed, Taluka and District Beed.5)The Police Inspector,Peth Police Station, Beed,Taluka and District Beed.… RESPONDENTS.......Mr. Menezes Joslyn A. Advocate for petitionerMrs. V.N. Patil Jadhav, A.P.P. for respondents ....… CORAM : R.G. AVACHAT ANDSANJAY A. DESHMUKH, JJ.Date of reserving judgment : 7th November, 2023Date of pronouncing judgment : 30th November, 2023 Cri.W.P. No.1528/2023:: 2 ::JUDGMENT (PER R.G. AVACHAT, J.) : Rule. Rule made returnable forthwith and taken up forfinal hearing at admission stage with the consent of learned counselfor the parties. 2.The challenge in this Writ Petition, under Article 226 ofthe Constitution of India, is to an order dated 21/8/2023, passed bythe District Magistrate, Beed (respondent No.2), detaining thepetitioner 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(M.P.D.A. Act for short). The order of detention has been confirmedby the State of Maharashtra in Department of Home (respondentNo.1) vide order dated 28/8/2023. The period of detention is for 12months. The detention is on the ground of the activities of thepetitioner, being a dangerous person, were prejudicial tomaintenance of public order.3.Heard. The challenge is mainly on the ground of non-subjective satisfaction by the detaining authority. The learnedcounsel for the petitioner would submit that, the petitioner wasgranted bail in the crimes which have been relied on by thedetaining authority for passing the order impugned in this WritPetition. There is about two months delay between registration of
Legal Reasoning
Cri.W.P. No.1528/2023:: 9 ::14.The aforesaid activities and the crimes registeredagainst the petitioner are said to have potential to causedisturbance to maintenance of public order. The sponsoringauthority (Police Station, Peth Beed), therefore, put up the proposalfor the petitioner’s detention under the M.P.D.A. Act. Relying on theaforesaid material, the order impugned herein was passed. Boththe crimes registered against the petitioner pertain to bailableoffences. The petitioner was not arrested in any of those crimes. Itis not that in bailable offence the accused cannot be arrested. If aperson is arrested in case of a bailable offence, he has to begranted bail. In both the crimes, the investigating officer had issuedthe petitioner notice under Section 41-A of the Code of CriminalProcedure. The same suggests the investigating officer did not findthe petitioner’s arrest imminent in both the crimes. In our view, byno stretch of imagination, both the crimes could be said to havepotential as to cause disturbance of maintenance of public order.Both the crimes were individual centric. In case of Amina BegumVs. State of Telangana (2023 INSE 788), it has been observed :“32.We may refer to the decision of theConstitution Bench of this Court in Ram ManoharLohia v. State of Bihar (1966) 1 SCR 709, wherethe difference between “law and order” and“public order” was lucidly expressed by Hon’bleM. Hidayatullah, J. (as the Chief Justice then was)in the following words :“54.*** Public order if disturbed, mustlead to public disorder. Every breach of thepeace does not lead to public disorder. When Cri.W.P. No.1528/2023:: 10 ::two drunkards quarrel and fight there isdisorder but not public disorder. They can bedealt with under the powers to maintain lawand order but cannot be detained on theground that they were disturbing public order.Suppose that the two fighters were of rivalcommunities and one of them tried to raisecommunal passions. The problem is still oneof law and order but it raises theapprehension of public disorder. Otherexamples can be imagined. Thecontravention of law always affects order butbefore it can be said to affect public order,itmust affect the community or the public atlarge. A mere disturbance of law and orderleading to disorder is thus not necessarilysufficient for action under the Defence ofIndia Act but disturbances which subvert thepublic order are.55.It will thus appear that just as ‘publicorder’ in the rulings of this Court (earliercited) was said to comprehend disorders ofless gravity than those affecting ‘security ofState’, law and order’ also comprehendsdisorders of less gravity than those affecting‘public order’. One has to imagine threeconcentric circles. Law and order representsthe largest circle within which is the nextcircle representing public order and thesmallest circle represents security of State. Itis then easy to see that an act may affect lawand order but not public order just as an actmay affect public order but not security of theState.”15.So far as regards in-camera statements areconcerned, we are of the view that those are vague. It is very riskyto rely on in-camera statements alone to hold the order of Cri.W.P. No.1528/2023:: 11 ::preventive detention. When the sponsoring authority even did notfind a case to arrest the petitioner in both the crimes, it is difficult toassume the very authority to find a case to put up a proposal todetain the petitioner under M.P.D.A. Act. In short, in our view, thematerial relied on was rationally not sufficient to pass an order ofpreventive detention under Section 3 of the M.P.D.A. Act. We,therefore, find it to be a fit case to set aside the same. In the result,the petition succeeds. Hence the order : O R D E R(i)The Criminal Writ Petition is allowed in terms of prayerclause (B).(ii)The petitioner be set at liberty forthwith if not required inany other case.Rule made absolute in above terms. (SANJAY A. DESHMUKH, J.) (R.G. AVACHAT, J.)fmp/-
Arguments
Cri.W.P. No.1528/2023:: 3 ::the last crime and the date of order of detention. As such, there isno live link between the two. The crimes relied on were stale andremote in point of time. Turning to the in-camera statements of thewitnesses, learned counsel would submit that, those were stereotype. The incidents referred to in those statements are of themonth of July 2023. The police officer could have lodged the F.I.R.relying on the in-camera statements. The statements have beenrecorded while the petitioner was on bail. It was just difficult toimagine that those witnesses came forward to give their statementswhile the petitioner was on bail. They, however, did not dare tocome forward while the petitioner was behind the bars. Accordingto learned counsel, at the most it would be a case of law and orderand not maintenance of public order. According to him, personalliberty is most cherished. Detention without a trial is frowned upon.Learned counsel for the petitioner ultimately urged for allowing thepetition.4.The learned A.P.P. would, on the other hand, submitthat, there were not less than six crimes registered against thepetitioner, besides a preventive action under Section 110 of theCode of Criminal procedure. The learned A.P.P. took us through theorder of detention, the affidavit-in-reply filed by the detainingauthority and the police papers of the crimes relied on. Accordingto her, the graph of the criminal activities of the petitioner wasascending. There was lull in his activities, only on account of there Cri.W.P. No.1528/2023:: 4 ::being Corona pandemic Covid-19. The victims did not comeforward to speak against the petitioner. Such was his terror in thevicinity. The learned A.P.P. reiterated the order of detention toultimately submit the same to have been passed after having beensubjectively satisfied with the material placed before the detainingauthority. She ultimately urged for dismissal of the petition.5.Considered the submissions advanced. Perused theorder of detention, in-camera statements and the police papersrelied on. Before appreciating the grounds of challenge, it would beapposite to have a glance at the relevant provisions of the M.P.D.A.Act.6.Section 2(a) of the M.P.D.A. Act reads as under : “2.In this Act, unless the context otherwise requires,(a)“acting in any manner prejudicial to themaintenance of public order” means –(i) to (iii). . . . . . . . . . . . .(iv)in the case of a dangerous person, when he isengaged, or is making preparations for engaging, inany of his activities as a dangerous person, whichaffect adversely, or are likely to affect adversely, themaintenance of public order.. . . . . . . . . . . . . . . . . . . . . (b-1)“dangerous person” means a person, who eitherby himself or as a member or leader of a gang,habitually commits, or attempts to commit or abets thecommission of any of the offences punishable underChapter XVI or Chapter XVII of the Indian Penal Cri.W.P. No.1528/2023:: 5 ::Code or any of the offences punishable under ChapterV of the Arms Act, 1959.”Explanation :- For the purpose of this clause (a),public order shall be deemed to have been affectedadversely, or shall be deemed likely to be affectedadversely, inter alia if any of the activities of any of thepersons referred to in this clause, directly or‘indirectly’ is causing or calculated to cause any harm,danger or alarm or a feeling of insecurity, among thegeneral public or any section thereof or a grave orwidespread danger to life or public health ordisturbance in public safety and tranquility or disturbsthe day to day life of the community by black-marketing in the essential commodities which isresulting in the artificial scarcity in the supply of suchcommodities and rises in the prices of essentialcommodities which ultimately causes inflation ordisturbs the life of the community by producing anddistributing pirated copies of music or film products,thereby resulting in a loss of confidence inadministration.7.True, there were 7 crimes registered against thepetitioner during the period from May 2021 to July 2023. First 2crimes were registered in the year 2021. Third one was registeredin April 2023. The crimes referred to in the order of detention areas follows :Sr.No.PoliceStationCrime No. & UnderSectionDate ofregistrationPresent status1.Peth BeedCr.No.76/2021: 188 IPC, 18(c), 18-A, 65(17) of Drugs and Cosmetics Act r/w S.3, 7 of Essential Commodities Act01/05/2021Pending trial 2.Peth BeedCr.No.149/2021: 354, 354D, 504, 506, 34 of IPC06/08/2021Pending trial Cri.W.P. No.1528/2023:: 6 ::3.Neknoor Cr.No.265/2021: 420, 406,201, 34 of IPC12/11/2021Pending trial 4.Peth BeedCr.No.97/2023: 457, 380 IPC25/04/2023Pending trial 5.Peth BeedCr.No.131/2023: 379, 34 IPC03/06/2023Pending trial6.Peth BeedCr.No.124/2023: 324, 323,504, 506, 34 IPC22/05/2023Pending investigation7.Peth BeedCr.No.179/2023: 341, 323,504, 506 IPC19/07/2023Pending Investigation8.Peth BeedChapter Case14/06/2023Final Bond 8.Close reading of the order of detention would, however,indicate that the detaining authority has relied on the two crimesvide C.R. No.124/2023 and 179/2023 and two in-camerastatements. It is true that, the past criminal activities may bereferred to as a prelude. We have perused the police papers of thefourth and fifth crimes registered against the petitioner in respect ofthe offence of theft. The F.I.Rs. in both those crimes wereregistered against unknown person. In one of the two crimes, theinvolvement of the petitioner was surfaced only based on thestatement of a co-accused. In another one, the petitioner wasfound to have been in possession of a operation table, allegedlystolen from a Primary Health Centre. There were no papersrelating to identification of the alleged stolen table recovered fromthe petitioner’s possession. Had those two crimes been relied onfor passing the order of detention, we would have ignored thosepapers considering the nature of material (police papers relied on). Cri.W.P. No.1528/2023:: 7 ::9.The learned A.P.P. submitted that, subjectivesatisfaction of the detaining authority cannot be a matter of judicialreview. She would further submit that, sufficiency or insufficiency ofthe material relied on also could not be a matter of judicial review.We may partially agree with her submissions. The question iswhether the material relied on was rationally sufficient to form abasis for order of detention. Let us, therefore, advert to the crimesand the in-camera statements relied on.10.First one is C.R. No.124/2023, registered on22/05/2023. It pertains to the offences punishable under Sections324, 323, 504, 506 read with Section 34 of the Indian Penal Code.The offences are bailable one. The investigating officer appears tohave had issued the petitioner a notice under Section 41-A of theCode of Criminal Procedure. The F.I.R. therein was lodged by thevictim himself. A perusal thereof suggests that, the victim wascalled by the petitioner and his associates. He was asked toaccompany them to commit theft. When he declined to join them,all the four, including the petitioner, beat him up. The assault wasmade by the co-accused. The petitioner allegedly held his legs soas to facilitate the co-accused to mount an assault on the victim. 11.The other crime being C.R. No.179/2023, registered forthe offences punishable under Sections 341, 323, 504, 506 of theIndian Penal Code. The F.I.R. is dated 19/7/2023. The victim Cri.W.P. No.1528/2023:: 8 ::himself lodged the F.I.R. It has been alleged therein that, on thegiven day i.e. on 19th July itself, he was proceeding towards hishouse via Chandni Chowk. The petitioner intercepted him. Hecaught hold of his collar and slapped on his face. The reason forthe assault was the informant (victim) to have reported to the policethe petitioner to have committed theft. The petitioner even gavethreats to his life. One Shaikh Mubin Shaikh intervened. He toowas abused by the petitioner. Passers-by gathered at the scene ofoffence. The petitioner then left.12.Then there are two in-camera statements. One of thewitnesses stated in the statement that in July 2023, he wasproceeding to buy mutton. The petitioner intercepted him. Hefished out a Kukri and gave life threats. The reason behind thesame was, the witness had asked businessmen not to pay thepetitioner money.13.The second witness has stated that, in the very month(July), the petitioner intercepted him and made a demand of moneyfor consumption of alcohol. When the witness told the petitioner tohave no money, he was robbed of a sum of Rs.700/-. When thewitness asked the petitioner to return his money, the petitioner gavehim a punch. The witness raised cries. The passers-by startedrunning helter-skelter, fearing the petitioner. Shop owners downedthe shutters of their respective shops.