High Court
Legal Reasoning
crwp1888.24.j-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD18 CRIMINAL WRIT PETITION NO. 1888 OF 2024 Dipak @ Lolya Tarasingh Mohil @ ThakurAge 28 years, Occ. Nil,R/o. Chiraggalli, Itwara,district Nanded ...Petitioner versus1.The State of MaharashtraThrough SecretaryHome Department, Mantralaya, Mumbai 2.The District Magistrate, NandedTq. And district Nanded ...Respondents ...Advocate for the Petitioner : Mr. Ravindra J. Nirmal APP for Respondents: Smt. P.R. Bharaswadkar ….. CORAM:SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ.DATED:29th JANUARY, 2025 JUDGMENT (PER SANJAY A. DESHMUKH, J.) :- 1.Rule. Rule made returnable forthwith. The petition is heardfinally with the consent of the learned Advocates for the parties. 2.By invoking the powers of this Court under Article 226 of theConstitution of India, the petitioner challenges the order of detention,dated 19/03/2024, passed by section officer to Government ofMaharashtra, Home department in MPDA-0224/CR-84/SPL-3B and crwp1888.24.j-2- order dated 01/02/2024 in no.2014/RB-1/DESK-2/T-4/MPDA/CR-08passed by District Magistrate. 3.Learned Advocate for the petitioner has taken us through theimpugned orders and the material which was supplied to thepetitioner by the detaining authority after passing of the order.Learned advocate submits that the offences referred in the groundsof detention are pending the investigation and the action under theMaharashtra Prevention of Dangerous Activities of Slumlords,Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates,Sand Smugglers and Persons engaged in Black Marketing ofEssential Commodities Act, 1981 (hereinafter referred to as the“MPDA Act”) is not justifiable. Learned advocate further submits thatrespondent nos.1 and 2 have erroneously interpreted the provisionsof MPDA Act while passing the detention order without affording anopportunity of being heard to the petitioner. The two in camerastatements, which are recorded by the detaining authority are nothelpful to arrive at the subjective satisfaction. There is delay causedfor taking action against the petitioner. He further submits that thealleged offences do not constitute that the petitioner is a habitualoffender and based on the said the action taken against the petitioneris a drastic one. Learned advocate for the petitioner further submitsthat detention order is not sustainable in the eyes of law as it causes
Decision
crwp1888.24.j-3- injustice to the petitioner. 4.The learned APP for the respondents submits that thepetitioner is a dangerous person as defined under the provisions ofMPDA Act. The detaining authority has relied on two in-camerastatements and the subjective satisfaction has been arrived at. Thereis no error committed by the detaining authority while recording thein-camera statements of the witnesses. Due to the grave terrorcreated by the petitioner, the people in surrounding area are notcoming forward to lodge report against the petitioner and, therefore,it affects the public order. There is absolutely no delay in passingthe order and the impugned order came to be passed immediatelyupon receipt of the proposal. The petitioner is involved in seriouscrimes against the body and property and, therefore, he has been putin the category of dangerous person as per the MPDA Act. Theactivities of the petitioner could not have been stopped except uponhis detention. There is no error committed by the detaining authoritywhile passing the impugned order. The learned A.P.P. therefore,prays for dismissal of the writ petition. 5.Considered the submissions advanced by learned advocatesfor both the sides. Perused the order of detention. Beforeconsidering the case on merits, it would be proper to take intoconsideration the judicial pronouncements of the Hon’ble Supreme crwp1888.24.j-4- Court in the following cases:- (i) Nenavath Bujji etc. Vs. State of Telangana and others,[2024 SCC OnLine SC 367], in which the Hon’ble SupremeCourt held that preventive detention being a draconianmeasure, any order of detention as a result of a capricious orroutine exercise of powers must be nipped in the bud and mustbe struck down at the first available threshold.(ii)Ameena Begum Vs. The State of Tamilnadu andOrs., [2023 LiveLaw (SC) 743]; in which the Hon’ble SupremeCourt held that discretion must be exercised in accordancewith the statute. However, if statute is silent, the authoritycannot act whimsically or arbitrarily. It should be guided byreasonableness and fairness. (iii) Kanu Biswas Vs. State of West Bengal, [1972 (3)SCC 831] wherein reference was made to the decision in Dr.Ram Manohar Lohia vs. State of Bihar and Ors. [1966 (1)SCR 709];. In this case, the Honourable Supreme Court heldthat the test to be adopted for the act affects law and order orpublic order is : Does it lead to disturbance of the current of lifeof community so as to amount to a disturbance of public orderor does it affect merely an individual leaving the tranquility ofthe society undisturbed. crwp1888.24.j-5- (iv)Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta,[1995 (3) SCC 237]; in which the Hon’ble Supreme Court heldthat mere dragging and beating a businessman on public roadand beating a witness doubting that he was informing thepolice about his anti-social activities is not relevant fordetention order.(v)Pushkar Mukherjee and Ors. Vs. The State of WestBengal, [AIR 1970 SC 852]; in which the Hon’ble SupremeCourt held that there must be subjective satisfaction and notobjective satisfaction. The validity of detention can bechallenged on the ground of mala-fides or that ground suppliedare vague or irrelevant.(vi) Phulwari Jagdambaprasad Pathak Vs. R. H.Mendonca and Ors., (2000 (6) SCC 751), in which theHon’ble Supreme Court held that satisfaction of detainingauthority shall not be based on stray incidents.(vii)Smt. Hemlata Kantilal Shah Vs. State of Maharashtraand another, [(1981) 4 SCC 647], in which the Hon’bleSupreme Court held that advisory board has discretion to grantsuch representation in the particular circumstances. crwp1888.24.j-6- 6.Perused the impugned order of detention as well as all therelevant documents. 7.Taking into consideration the legal position as discussedabove, it is to be noted here as to whether the detaining authoritywhile passing the impugned order had arrived at the subjectivesatisfaction and whether the procedure as contemplated has beencomplied with or not. In Nenavath Bujji (Supra) itself it has beenreiterated by the Hon’ble Supreme Court that illegal detention orderscannot be sustained and, therefore, strict compliance is required tobe made, as it is a question of liberty of a citizen. As aforesaid, thedetaining authority has considered Crime No.253 of 2023 lodged withItwara Police Station, District Nanded. Perusal of the FIR wouldshow that the informant arrested the petitioner with a weapon i.e.Khanjir on 10.8.2023 at 11.30 p.m. Here, we have intentionally takenthe contents of the FIR into consideration to see as to whether publicorder was involved. But except possessing of the weapon i.e.Khanjir by the petitioner, there appears to be no other public orderissue involved. From the FIR the clear mens-rea cannot begathered, but it appears to be totally personal as the informant wasknowing the petitioner. crwp1888.24.j-7- 8.As regards the in-camera statements, it can be seen that boththe statements are in respect of extortion of money from theindividuals at the instance of the petitioner by giving them threats.Statement of “A” is in respect of extortion of an amount of Rs.3000/-in the month of July, 2023 whereas the statement of “B” is in respectof extortion of an amount of Rs.2,000/- in the month of August, 2023.No specific date is mentioned in both the statements. The allegedtwo incidents are individual in nature. Here also issue of public orderwas not involved. Thus, it is to be noted that the detaining authorityhas not considered these material aspects in its proper perspectiveswhile passing the detention order. Therefore, it cannot be said thatthe material before the detaining authority was sufficient to arrive atthe subjective satisfaction. Though the impugned order has beenapproved by the Advisory Board, we are of the opinion that the pointswhich we have discussed above were not considered by the AdvisoryBoard in view of the law laid down in the authority of Smt. HemlataKantilal Shah Vs. State of Maharashtra and another (supra). 9.There is unreasonable delay of 12 days caused for passing oforder of approval from the date of issuance of detention order. Threeweeks delay is caused to refer the matter to Advisory Board. Afterseven weeks, detenue was heard by the Advisory Board. Thus delayis unreasonably caused at the hands of respondent Nos.1 and 2. crwp1888.24.j-8- 10.Taking into consideration the above reasons and ratio in thedecisions of the Hon’ble Apex Court, in the case of Nenavath Bujjietc. Vs. State of Telangana and others (supra) at the most, the incamera statements as well as the offences allegedly committedwould reveal that the petitioner had not created issue of law andorder situation and not caused disturbance to the public order.Though the Advisory Board had approved the detention of thepetitioner, yet we are of the opinion that there was no relevantmaterial before the detaining authority to categorize the petitioner asa dangerous person or bootlegger. The fundamental rights of thepetitioner are affected. We hold that the impugned order is therefore,illegal and not sustainable in the eyes of law. 11.For the aforesaid reasons, the petition deserves to be allowed.Hence, the following order :-O R D E RI)The writ petition is allowed. II)The detention order dated 19/03/2024 passed bysection officer to Government of Maharashtra, Homedepartment in MPDA-0224/CR-84/SPL-3B AND Orderdated 01/02/2024 in no.2014/RB-1/DESK-2/T-4/MPDA/CR-08 passed by District Magistrate, Nanded crwp1888.24.j-9- are hereby quashed and set aside.III)Petitioner Dipak @ Lolya Tarasingh Mohil @ Thakurshall be released forthwith, if not required in any othercrime.IV)Rule is made absolute in the above terms. (SANJAY A. DESHMUKH, J.) (SMT. VIBHA KANKANWADI, J.)rlj/