High Court
Legal Reasoning
crwp2039.24.j-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 2039 OF 2024 Rameshwar @ Papya s/o Suryakant BajgudeAge 21 years, Occ. Labour,R/o. Ganesh Nagar, Adarsh Colony,Latur, Tq. and district Latur ...Petitioner versus1.The State of MaharashtraSection Officer (Special) Home Department, Government of Maharashtra Mantralaya, Mumbai - 322.The District Magistrate and Collector,District Latur 3.The Superintendent of Police,District Latur 4.The Deputy Superintendent of PoliceDistrict Latur 5.Police Inspector,Vivekanand Chowk Police StationDistrict Latur ...Respondents ...Mr. Y.G. Birajdar h/f Mr. N.S. Shinde, advocate for the petitioner Mr. A.R. Kale, APP for Respondents ….. CORAM:SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ.DATED:4th FEBRUARY, 2025 JUDGMENT (PER SANJAY A. DESHMUKH, J.) :- 1.Rule. Rule made returnable forthwith. By consent of learned crwp2039.24.j-2- advocates for the parties, the petition is heard finally at admissionstage. 2.By invoking the powers of this Court under Article 226 of theConstitution of India, the petitioner challenges the order of detention,dated 07.11.2024, passed by District Magistrate, Latur (Exhibit B). 3.Learned advocate for the petitioner has pointed out to us theimpugned order and the material in support of it, relied upon by therespondent authority, while passing the impugned order. Learnedadvocate for the petitioner pointed out the grounds of objectionsraised in the writ petition that mandatory procedure is not followed asper sub-section (2) of 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(hereinafter for the sake of brevity referred to as the “MPDA Act”).The authorities did not consider that the petitioner was not arrested inany crime and he was served with the notice under Section 41 ofCr.P.C.. thus, he is not a dangerous person. The detaining authoritybelieved the in-camera statements, without subjective satisfaction.The delay caused for processing the said action was also notconsidered by the authority while passing the impugned order.
Decision
crwp2039.24.j-3- 4.The learned APP for the respondents strongly opposed thepetition and submitted that the authority has rightly concluded thatthe petitioner is a dangerous person. Respondent No.2 DistrictMagistrate, Latur forwarded the comprehensive report to the policeregarding illegal activities of the petitioner, which are prejudicial tothe maintenance of the public order, and therefore, the preventiveaction against the petitioner is justified. Accordingly, a proposal wasdrawn up as per the MPDA Act. 5.The learned A.P.P. further submits that respondent No.5 sentrequisition to respondent No.2 and thereafter respondent No.2 cameto the conclusion, on the basis of that requisition, that the powersunder Section 3 of the MPDA Act are required to be exercisedagainst the petitioner, as he is a dangerous person. Learned A.P.P.lastly prayed for dismissal of the writ petition. 6.The following cases registered against the petitioner weretaken into consideration:- SrNoPoliceStationCr.No.SectionOffenceLodgeddateArrestdateBaildateCourtCaseNumberCurrentStage01.ShivajiNagarPoliceStation,Latur.334/2020324,323,504,506R.W. 34of I.P.C12/10/2020GavenoticeU/s. 41(1)(a) ofCr.P.C.GavenoticeUIs. 41(1)(a) ofCr.P.C.R.C.C. No.1645/2021date08/10/21PendingbeforeCourt crwp2039.24.j-4- 02.ShivajiNagarPoliceStation,Latur.337/2020452,427,504,506R.W. 34of I.P.C.13/10/2024GavenoticeU/s. 41(1) (a) ofCr.P.C.on Dt.18/11/2020GavenoticeU/s. 41(1) (a) ofCr.P.C.on Dt.18/11/2020R.C.C. No.360/2021Date22/03/21PendingbeforeCourt03.ShivajiNagarPoliceStation,Latur.414/2020324,504,506 ofI.P.C.29/11/20GavenoticeU/s. 41(1)(a) ofCr.P.C.GavenoticeU/s. 41(1)(a) ofCr.P.C.onR.C.C. No.186/2021Date08/02/21PendingbeforeCourt04.ShivajiNagarPoliceStation,Latur.271/2020336,323,427,504,R.W. 34of I.P.C.10/07/2021GavenoticeU/s. 41(1) (a) ofCr.P.C.on12/07/2021GavenoticeU/s. 41(1) (a) ofCr.P.C.onDt.12/07/2021S.C.C.No.456/202203/03/22PendingbeforeCourt05.ShivajiNagarPoliceStation,Latur.478/2022122 (K),of M.P.Act,195124/11/2022GavenoticeUIs. 41(1)(a) ofCr.P.C.GavenoticeUIs. 41(1) (a) ofCr.P.C.S.T.C. No.348/2022Date03/03/22Matterclosed.byconviction ofRs.500/-06.ShivajiNagarPoliceStation,Latur.58/2023122 (K),of M.P.Act,195111/02/2022GavenoticeU/s. 41(1) (a) ofCr.P.C.on Dt.10/12/23GavenoticeU/s. 41(1) (a) ofCr.P.C.on Dt.10/12/23R.C.C. No.1078/2023Date18/06/23PendingbeforeCourt07.ShivajiNagarPoliceStation,Latur.89/2024379ofI.P.C.20/02/2024---------UnderInvestigation08.VivekanandChowkPoliceStation,Latur.639/20244, 25 ofArmsAct195914/10/2024GavenoticeU/s. 41(1) (a) ofCr.P.C.on Dt.14/10/24GavenoticeU/s. 41(1) (a) ofCr.P.C.On Dt.14/10/24---UnderInvestigation09.VivekanandChowkPoliceStation,Latur.NCR1076/24352,351 (2)(3)ofBNS30/10/2024---------UnderInvestigation crwp2039.24.j-5- 7.We have perused the impugned order, the materiel relied uponby the authorities and the grounds of objections raised in the petition. 8.In the in-camera statement of witness “A”, dated 29.10.2024,he states that in order to extort money, the petitioner threatened himon the point of a sharp weapon. On 13.10.2024, around 10.30 p.m.when this witness, after closing his shop, was proceeding on hismotorcycle to his house, at Chhatrapati Chowk, the petitioner and hisfriend stopped him and forcibly took an amount of Rs.500/- from hispocket for the purpose of drinking liquor. The petitioner alsothreatened to kill this witness if he discloses that incident to anybody.He did not go to the police for lodging the report because of fear andterror of the petitioner. He behaves in the same manner with otherpeople in the society. He also threatens and harasses the person,who raises voice against him. He harasses the women and girls. Hehas created terror at Khadgaon road, Latur and Ausa Road, Latur aswell as in surrounding areas.9.Witness “B” has stated in his confidential statement that thepetitioner is habitual in extorting money. The petitioner used tothreaten the people by sharp weapon to extort money. He harassesthe women and girls by abusing them in the filthy language. This crwp2039.24.j-6- witness has also stated a specific incident that on 17.09.2024, atabout 9.45 p.m. after closing the hotel, when he was proceeding tohis house, the petitioner with his friend came on a motor cycle, whichwas without number plate. The petitioner stopped him. Thepetitioner was having sickle in his hand and by showing it to thiswitness, he took out an amount of Rs.700/- from his pocket. Thepetitioner also threatened him that if he lodges a report against him,he will kill him. The people in the surrounding area are living underfear due to terror of the petitioner. 10.The alleged two incidents stated by these two witnesses are ofindividual nature. From a bare reading of the statements, it cannot beheld that because of alleged acts of the petitioner, there was a threatto the public order. The detaining authority did not consider thisaspect in its proper perspective and without subjective satisfaction,came to the conclusion that the acts of the petitioner, as stated bythese two witnesses, are dangerous to public at large and affect thepublic order. In this context, it would be beneficial for us to rely uponthe decision of the Hon’ble Supreme Court in the case of Arjun vs.The State of Maharashtra and others, reported in MANU/SC/1330/2024, wherein in para 17, the Hon’ble Supreme Court, held asunder:- crwp2039.24.j-7- “17.…. In any case the statements which were stereotypeeven if taken on its face value would show that the threatgiven to the said witnesses is between the appellant and thesaid witnesses. The statements also do not show that thesaid witnesses were threatened by the appellant in thepresence of the villagers which would create a perception inthe mind of the villagers that the appellant herein is a threatto the public order.” 11.As far as the delay caused in the process of preventive actionagainst the petitioner is concerned, the confidential statements ofwitnesses are recorded on 29.10.2024. The proposal was submittedon 30.10.2024. The proposal was forwarded by the Superintendentof Police, Latur on 05.11.2024. The detention order was passed on7.11.2024. The grounds of detention were served on the petitioneron 08.11.2024. The report was sent to the Government on07.11.2024. The approval order was passed by the StateGovernment on 14.11.2024. The matter was referred to the AdvisoryBoard after three weeks from the date of actual detention. It wasplaced before the authority and after hearing the petitioner - detenue,after seven weeks, the Advisory Board has confirmed the impugnedorder. This shows the unreasonable delay of seven weeks is causedfor processing the proposal, however, the same is not explained. It isunreasonable delay which affects the liberty of the individual ascontemplated in Article 21 r.w. Article 22(2) of the Constitution ofIndia. From the unreasonable delay caused in proceeding against the crwp2039.24.j-8- petitioner, cannot be held that the petitioner was dangerous person. 12.If the facts of the case and the reasons stated above, areconsidered together alongwith the law laid down in Nenavath Bujjietc. Vs. State of Telangana and others [2024 SCC OnLine SC367], in which the Hon’ble Supreme Court held that preventivedetention being a draconian measure, any order of detention as aresult of a capricious or routine exercise of powers must be nipped inthe bud and must be struck down at the first available threshold.Thus, it cannot be held that the petitioner is responsible for disturbingthe public order and normal laws are not sufficient to prevent him.There is no factual and legal ground to detain the petitioner forlikelihood of causing of disturbance of public order. The AdvisoryBoard has approved the detention of the petitioner, however it hasfailed to consider that the alleged in camera statements are notsufficient to hold that alleged acts were causing public order. 13.The petitioner was never arrested but released on bail in thecrimes shown in chart, which were relied upon in the matter. Noattempt was made to cancel his bail, as he is dangerous person orfor likelihood of causing issue of public order. Mere filing of numberof cases against the petitioner is not sufficient to detain him. Therewas no such relevant materiel and legal ground to proceed against crwp2039.24.j-9- the petitioner for passing the order of detention, showing that his actsare prejudicial to the maintenance of public order and therefore, hisliberty deserves to be curtailed. 14.The fundamental right and liberty of the petitioner is certainlyaffected. Therefore, we are of the view that the impugned order isillegal and not sustainable, as held by the Hon'ble Supreme Court inthe case of Ameena Begum Vs. The State of Tamilnadu and Ors.,[2023 LiveLaw (SC) 743], in which the Hon’ble Supreme Court heldthat discretion must be exercised in accordance with the statute.However, if statute is silent, the authority cannot act whimsically orarbitrarily and it should be guided by reasonableness and fairness;and also in the case of Phulwari Jagdambaprasad Pathak Vs. R.H. Mendonca and Ors., (2000 (6) SCC 751), the Hon’ble SupremeCourt held that satisfaction of detaining authority shall not be basedon stray incidents. Therefore, the impugned order requiresinterference. 15.Mere completion of formalities mechanically is not sufficient todetain the petitioner without subjective satisfaction. We hold thatthere is no substance in the grounds of detention to invoke Section 3of the MPDA Act against the petitioner. The reasons assigned in theimpugned order are not satisfactory and not sustainable Thus, the crwp2039.24.j-10- impugned order deserves to be set aside. The petitioner deserves tobe released forthwith, if not required in any other crime. Hence, thefollowing order :-O R D E RI)The writ petition stands allowed in terms of prayerclauses (A) and (B). II)The detention order dated 7th November, 2024passed by the learned district Magistrate andCollector, Latur, is quashed and set aside. III)Petitioner - Rameshwar @ Papya s/o SuryakantBajgude shall be released forthwith, if not required inany other offence. IV)Rule is made absolute in the above terms. (SANJAY A. DESHMUKH, J.) (SMT. VIBHA KANKANWADI, J.)rlj/