High Court

Legal Reasoning

11931.2024WP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL WRIT PETITION NO. 1931 OF 2024 Nikhil S/o Ganesh Ranjwan Age : 20 years, Occ : Education, R/o Behind Finix Hospital, Jalna Road, Shahunagar, Beed, Tq. & Dist. Beed. ..PETITIONER -VERSUS-1.The State of MaharashtraThrough Dy. Secretary Home Department, Mantralaya, Mumbai-322.The State of MaharashtraThrough District Magistrate, Beed. 3.The State of MaharashtraThrough Superintendent of Central Jail, Aurangabad. 4.The Assistant Police Inspector,Shivajinagar Police Station, Tq. & Dist. Beed. ..RESPONDENTS...Advocates for the petitioner : Mr. A.R. Hange & Mr. R.G. Hange APP for Respondent- State : Mr. A.D. Wange …CORAM :SMT. VIBHA KANKANWADI ANDROHIT W. JOSHI, JJ.DATED : 14th JANUARY, 2025., 2024.JUDGMENT (PER ROHIT W. JOSHI, J.) :.Rule. Rule made returnable forthwith. Heard finally with 21931.2024WP.odtthe consent of the learned Advocates for the respective parties. 2.The present petition is filed under Article 226 of theConstitution of India in order to challenge the order of preventivedetention dated 05.02.2024 passed by the District Magistrate, Beedunder Section 3(1) of the Maharashtra Prevention of DangerousActivities of Slumlords, Bootleggers, Drug-Offenders/ DangerousPersons, Video Pirates, Sand Smugglers and Persons Engaged in Black-Marketing of Essential Commodities Act, 1981 ( Hereinafter referred toas “MPDA” for the purpose of brevity) and the subsequent order dated07.11.2024 passed by Respondent No.1 confirming the said order dated05.02.2024. 3.Respondent No.4 had submitted a proposal for passingorder of preventive detention against the Petitioner. The said proposalsubmitted by Respondent No.4 was forwarded by the Superintendent ofPolice, Beed to Respondent No.2 on 12.01.2024. The Superintendent ofPolice had verified in-camera confidential statements recorded on26.12.2023 and 28.12.2023 before forwarding the proposal. Based onthe proposal, Respondent No.2 passed order of preventive detentionagainst Petitioner on 05.02.2024. Simultaneously on the same day, theorder of committal also came to be passed by Respondent No.2. The 31931.2024WP.odtgrounds for detention were also prepared on 05.02.2024. The order ofpreventive detention dated 05.02.2024 was approved by RespondentNo.1 on 14.02.2024 in terms of Section 3(3) of the MPDA. 4.The order of preventive detention dated 05.02.2024 couldnot be served upon the Petitioner. The Petitioner was served with thesaid order on 15.09.2024 i.e. after a period of 7 months and 10 days.The Petitioner is lodged in Harsul Jail, Aurangabad pursuant to theorder of preventive detention dated 05.02.2024 passed against him.The Petitioner made a representation to the Advisory Board on15.09.2024. The matter was referred to the Advisory Board underSection 10 of the MPDA on 03.10.2024. The Advisory Board affordedopportunity of hearing to the Petitioner and there were positive opinionfor continuation of preventive detention on 23.10.2024. Based on thesaid opinion, Respondent No.1 has passed order dated 07.11.2024confirming the order of preventive detention. 5.The Petitioner, who is aggrieved by the said order, haschallenged the same in the present petition invoking extra ordinaryjurisdiction under Article 226 of the Constitution of India. 6.Shri Rajendra Hange, learned counsel for the Petitioner 41931.2024WP.odtdraws our attention to the grounds of detention. He states that perusalof the grounds for detention recorded by Respondent No.2 willdemonstrate that two FIRs registered on 31.10.2023, vide CrimeNo.341/2023 and Crime No.250/2023 have been taken intoconsideration by Respondent No.2. He states that these FIRs have beenregistered during the course of agitation for Maratha Reservation. Hehas taken us through the FIRs in both the matters. Perusal thereof willdemonstrate that the FIRs are registered against around 600 to 700people and around 50 persons have been identified in both theoffences. The names of said 50 persons approximately are mentioned inboth the FIRs. The other two FIRs are registered on 20.08.2019 and29.06.2023. The learned counsel submits that although these two FIRshave not been taken into consideration, the first FIR registered in theyear 2019 is far remote. As regards, second FIR registered on29.06.2023, he states that the same is not very serious in nature, in asmuch as, the highest offence in the said FIR is pertaining to Section 324of the IPC. As regards two FIRs on the basis of which subjectivesatisfaction is arrived at by Respondent No.2, he states that it iscompletely unjust and illegal to place a person under preventivedetention for participating in a political protest. He states that thePetitioner has been singled out while placing him under preventivedetention, in as much as, such action has not been taken against other 51931.2024WP.odtpersons, who had participated in the protest. He, therefore, submitsthat the subjective satisfaction is guided by completely extraneousconsideration, which vitiates the order of preventive detention. He alsodraws our attention to the fact that the order of preventive detentiondated 05.02.2024 was served on the petitioner on 15.09.2024 after aperiod of 7 months and 10 days and argues that the live link betweenthe incident and order of preventive detention is completely broken byenormous delay in serving the order and implementing the same. Asregards two in-camera confidential statements, he criticizes the samesaying that the allegations are almost identical, and therefore, the samedo not inspire confidence. He also states that the said statements arenot sufficient to remotely suggest that the alleged acts of the petitionerare detrimental to public order. He states that the allegations made atthe best raise inference of the petitioner indulging in acts adverselyaffecting law and order, which cannot be a ground to place thepetitioner under preventive detention. He sums up the submissionsstating that action on the part of Respondent Nos.1 and 2 is absolutelyhigh handed and illegal, resulting in breach of right to life and personalliberty which is guaranteed under Article 21 of the Constitution ofIndia. He also argues that since the provisions of law i.e. MPDA havenot been properly followed in true spirit, the guarantee of equalitybefore law and equal protection of law enshrined under Article 14 of 61931.2024WP.odtthe Constitution of India is also breached.7.As against the above submissions, Mr.A.D. Wange, learnedAPP submits that the petitioner is habitual offender. He has become anuisance to the general safety and security of the public at large,necessitating the action of preventive detention against him. He drawsour attention to the CCTV footage panchnama dated 03.11.2023relating to F.I.R. No.250/2023, which shows that the petitioner wasindulging in stone pelting during the course of agitation. He has alsodrawn attention to the CCTV footage panchnama in relation to CrimeNo.577/2023 showing aggressive posturing of the petitioner holdingsaffron flag. He states that the case of the petitioner, therefore, cannotbe equated with other persons, who participated in the protest. Asregards the delay, learned APP states that the petitioner wasabsconding, and therefore, could not be served with the order ofpreventive detention. He further states that the petitioner cannot drawadvantage on account of delay in serving the order of preventivedetention upon him since he was absconding.8.We have heard the respective submissions as aforesaid andperused the record of the case, particularly the grounds of detentiondated 05.02.2024. Perusal of the grounds of detention will demonstrate 71931.2024WP.odtthat in all four FIRs have been referred therein. The first FIR isregistered on 20th August, 2019, which is very remote in point of time.The second offence is registered on 29.06.2023 in which the highestoffence is punishable under Section 324 of the IPC i.e. causing simplehurt with weapon. The said two FIRs have not been considered byRespondent No.2 as foundation for placing the petitioner underpreventive detention. As per Respondent No.2, the need to place thepetitioner under preventive detention was felt on the basis of thesubsequent two FIRs registered against him on 31.10.2023. As regardsthe FIRs registered on 31.10.2023, undisputedly the said FIRs areregistered in relation to protest in support of demand for MarathaReservation. It appears that the petitioner was part of a political rallywhich took ugly violent turn. Perusal of the two FIRs will demonstratethat around 600 to 700 people were a part of the said political rally.Around 50 people could be identified and have been actually named inthe FIRs. It is surprising that on the basis of such FIRs, RespondentNo.2 has arrived at subjective satisfaction to take drastic action againstthe petitioner of placing him under preventive detention. There can beabsolutely no justification for curtailing liberty of an individual merelyon the ground of participation in a political rally, although the samemay have taken ugly violent turn. Respondent No.2 has not recordedthat the petitioner was the person, who had organized the said rally or 81931.2024WP.odtthat he was the person, who instigated violence during the rally. It istrue that the CCTV footage records that the petitioner was seen peltingstone on a shop during the course of violence, the panchnama showssuch acts were committed by other persons as well. It is quite possiblethat when the protest took violent turn some wrong was committed bythe petitioner at the heat of moment. However, that by itself, cannot bea ground to curtail his liberty by placing him under preventivedetention. Two FIRs have been registered under Sections 307, 308 andother provisions of the IPC as also Sections 4 and 5 of the ExplosiveSubstances Act, 1908 and Sections 3 and 4 of the Prevention ofDamage to Public Property Act, 1984. The petitioner was not foundwith any explosive substance or any dangerous weapon. He was merelyseen pelting stone. On that basis, he could not have been singled outfor curtailing his liberty by an order of preventive detention. Although,we cannot sit in appeal in order to determine the sufficiency of materialon the basis of which the subjective satisfaction is arrived at by thecompetent detaining authority, we can certainly in exercise of our writjurisdiction determine whether the material on the basis of whichsubjective satisfaction was arrived at is relevant or irrelevant. We findthat the said material is absolutely irrelevant and extraneous for thepurposes of arriving at subjective satisfaction. 91931.2024WP.odt9.We also find favour with the submission of the learnedcounsel for the petitioner that the petitioner could not have beensingled out. Perusal of the reply filed by Respondent No.2 does notdemonstrate that similar action was taken against other persons, whowere found to be indulging in similar activities during the course ofsaid protest.10.Two FIRs are registered on 31.10.2023. The incidents hadoccurred in political rally held on 30.10.2023. The order of preventivedetention is served on the petitioner on 15.09.2024, though it is passedon 05.02.2024. The inordinate gap between the date of passing of theorder and date on which the same is served on the petitioner and isimplemented by placing him in prison completely breaks the live linkbetween the alleged acts on the basis of which the subjectivesatisfaction is recorded. The explanation offered by Respondents is thatthe petitioner was absconding, and therefore, the order could not beserved on him and for the same reason, he could not be placed underpreventive detention immediately after passing of the order. Section 7of the MPDA provides for procedure to be adopted in case where thedetenue is absconding. From the order of confirmation dated07.11.2024 and also from the affidavit-in-reply filed by RespondentNo.2, it does not appear that the Respondents have taken recourse to 101931.2024WP.odtthe procedure contemplated by Section 7 of the MPDA. The learnedAPP confirmed that recourse to Section 7 of the MPDA was not taken.In such circumstances, we are unable to accept the explanation offeredby the Respondents that the order could not be served andimplemented immediately since the petitioner was absconding. We findfavour with the submission advanced by the learned counsel for thepetitioner that inordinate delay of 7 months and 10 days in betweenthe date of order and date of service and implementation of the samecompletely disrupts the live link. The said reason by itself is goodenough for quashing order of preventive detention.11.We also find that there is an inordinate delay in the matterof processing the proposal. Respondent No.4 has recorded in-cameraconfidential statements on 26.12.2023 and 28.12.2023. Based on thesaid statements, he has forwarded the proposal to the Superintendentof Police, Beed on 02.01.2024. The Superintendent of Police hasthereafter forwarded the proposal to Respondent No.2 after a period of10 days i.e. on 12.01.2024. The order of preventive detention is passedthereafter on 05.02.2024 i.e. after a gap of 23 days. Thus, from thedate of first step of initiation of the proposal till the date of passing oforder a period of over one month has lapsed. There is no plausibleexplanation for this delay of one month. This by itself is enough to 111931.2024WP.odtdemonstrate that there was no immediate pressing need for placing thepetitioner under preventive detention.12.We have also perused two confidential in-camerastatements. The allegations in both the statements certainly haveresemblance. Apart from this, the said statements taken on their facevalue do not demonstrate that the petitioner is a threat to public order.At the best, it may be inferred that he is criminal who creates law andorder situation intermediately. The statements also cannot be pressedinto service to curtail liberty of the petitioner by placing him underpreventive detention.13.In view of the reasons aforesaid, we are of the consideredopinion that the action of preventive detention has resulted in violationof the fundamental right vested with the petitioner under Article 21 ofthe Constitution of India, in as much as, he has been deprived of rightto life and personal liberty without following due process of law andfurther the action is also not strictly in accordance with procedureestablished by law. As a consequence of aforesaid, the guarantee ofequality before law and equal protection of laws, which is alsofundamental right under Article 14 of the Constitution of India is alsobreached. The order of preventive detention dated 05.02.2024 as also 121931.2024WP.odtconfirmation order dated 07.11.2024 are liable to be quashed and setaside. Hence the following order :-ORDER I)The Writ Petition stands allowed.II)The detention order dated 05.02.2024 bearing No.2024/RB-Desk-1/Pol-1/MPDA-03 passed by respondent No.2 as well as theapproval order dated 14.02.2024 and the confirmation order dated07.11.2024 passed by respondent No.1 stand quashed and set aside.III)Petitioner - Nikhil S/o Ganesh Ranjwan 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/