High Court · 2024
Legal Reasoning
7 findings. We have considered paragraph no. 10 of the affidavit-in-replyof the respondent which refers to the serious offences having beencommitted by the petitioner namely sand smuggling, wrongful restraint,causing hurt by endangering life, rioting, violation of environment Rules,criminal intimidation, etc. This demonstrates that not only last twooffences but previous four offences have also been taken into account.We find that earlier material is extraneous. On one hand it is projectedthat only last two offences are considered and on other hand previousrecord has also been considered. We are of the considered view thatsubjective satisfaction is arbitrary and unsustainable.13.The last offence was registered on 13.04.2023. Impugnedorder was passed on 07.10.2023, after delay of five months. LearnedAPP has drawn our attention to paragraph no. 7 of affidavit-in-reply todemonstrate that delay has been explained. On 08.06.2023 and09.06.2023, in-camera statements were recorded. On 20.06.2023, theywere verified by the Sub Divisional Police Officer. On 07.08.2023,respondent no. 2 – Detaining Authority received proposal. Impugnedorder was passed on 07.10.2023.14.It reveals that there is unexplained delay of about 54 daysfrom 13.04.2023 (registration of the last offences) till 08.06.2023 inrecording of statements. We further find unexplained delay of two 8 months from receipt of proposal on 07.08.2023 till final order ofdetention was passed on 07.10.2023. Unexplained delay in the matter isfatal. In this regard, we are guided by the principles laid down in thefollowing matters :1.Pradeep Nilkant Paturkar Versus. S. Ramamurthi and Others,AIR 1994 SCC 656 ;2.Austin William Luis Pinto Versus Commissioner of Police, GreaterMumbai and Others, 2005 ALL MR (Cri.) 28 ;3.Jaggu Sardar @ Jagdish Tiratsingh Labana VersusCommissioner of Police Thane, in Criminal Writ Petition Stamp No.15876 of 2023 ;4.Digambar @ Digambar Vitthal Dagdade Versus DistrictMagistrate, Latur, in Criminal Writ Petition No. 1736 of 2023.15.We find substance in the submissions of learned counsel inrespect of subjective satisfaction and delay. The impugned order is liableto be quashed being arbitrary. We, therefore, pass the following order : ORDERi.Criminal Writ Petition is allowed.ii.Order dated 07.10.2023, passed by respondent no. 2and order dated 24.11.2023, passed by respondent no. 4, arequashed and set aside. 9 iii. The petitioner shall be set at liberty forthwith.iv.Rule is made absolute.[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ] Thakur-Chauhan/-
Arguments
1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1774 OF 2023Bunty @ Santosh s/o. Dattatray KothambireAge. 36 years, Occ. Agri.,R/o. Autewadi, Tq. Shrigonda,Dist. Ahmednagar. ....PetitionerVersus1.The State of Maharashtra.2.The District Magistrate,Ahmednagar, Dist. Ahmednagar.3.The Secretary,Advisory Board, Government of Maharashtra,Mantralaya, Mumbai.4.The Section Officer,Government of Maharashtra,Mantralaya Mumbai.....Respondents. ....Advocate for Petitioner : Mr. N.B. NarwadeAPP for Respondent : Mr. V.K. Kotecha…CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ. Judgment reserved on : 29 February 2024 Judgment pronounced on : 06 March 2024JUDGMENT (PER : SHAILESH P. BRAHME, J.) :1.Rule. Rule is made returnable forthwith. Heard litigatingsides finally with their consent. 2 2.The petitioner is challenging order of detention dated07.10.2023, passed by respondent no. 2 – District Magistrate,Ahmednagar, as well as order of confirmation dated 24.11.2023, passedby respondent no. 4 under the provisions of the Maharashtra Preventionof Dangerous Activities of Slumlords, Bootleggers, Drug Offenders,Dangerous Persons, Video Pirates, Sand Smugglers and PersonsEngaged in Black Marketing of Essential Commodities Act, 1981,(hereinafter referred to as ‘the Act’ for the sake of brevity andconvenience).3.By impugned orders, the petitioner has been declared to bedangerous person as well as sand mafia and committed for one year. Forsubjective satisfaction, respondent no. 2 – Detaining Authorityconsidered two offences bearing C.R. No. 325 of 2023, registered on25.03.2023 and C.R. No. 198 of 2023, registered on 13.04.2023.Additionally, the preventive action taken against the petitioner underSections 107, 109 and 110 of Code of Criminal Procedure, order ofexternment dated 20.09.2022 and two in-camera statements of thewitnesses with their verification have been considered.4.The Detaining Authority has recorded as follows :“8.After going through the record put before me, Ipersonally satisfied that you are a dangerous person forthe life of the society, as per the provisions of Sec 2 (B- 3 1) of 2015 of Maharashtra Prevention of DangerousActivities of Slumlords, Bootleggers, Drug Offenders,Dangerous Persons, Sand Mafia and Video Pirates Act,1981.9.I am also satisfied that you are a habitualoffender which affects the peaceful life of the society.You are committing crimes, such as sand theft, seriousinjury with dangers weapon, unlawful assembly due towhich public order is now in danger. Preventive actionstaken against you as per the provisions of law in forceare found insufficient to stop your illegal acts. Due tothese illegal acts public order is in danger and day today life of the society is also affected. As your illegalactivities are became danger to the life of the society itis necessary to detain you under the provisions of underSec 3 (2) of Maharashtra Prevention of DangerousActivities of Slumlords, Bootleggers, Drug Offenders,Dangerous Persons, sand Mafia and Video Pirates Act,(VV of Maharashtra Act 1981).”5.Learned counsel for the petitioner would submit thatsubjective satisfaction is not for intelligible reasons, in view of theoffences considered by the Authority. Record reveals that previousoffences have also been considered. He would further submit that thefinding recorded in above referred paragraph nos. 8 and 9 of the groundsof detention are perverse. It is further submitted that there is unexplaineddelay from registration of the last offences till passing of the final order.6.Learned counsel also invited our attention to the judgmentand order dated 03.11.2022, passed by the Divisional Commissioner, 4 Nashik, quashing order of externment dated 20.09.2022. Lastly, it issubmitted that there was no material on record to show that activities aredetrimental to the public order. A reliance has been placed on AmeenaBegum Versus The State of Telangana and others, 2023 LiveLaw (SC)743.7.Learned APP supports impugned orders. He seeks to relyupon affidavits-in-reply. He would submit that there is adequateincriminating material against the petitioner which is rightly appreciatedby the Detaining Authority. There is no perversity or arbitrariness inarriving at subjective satisfaction. It is further submitted that timelinehas been specifically followed by the authorities. The delay as contendedby the petitioner has been properly explained in the affidavit-in-reply. Byrelying on the judgment of Hasan Khan Versus State of Rajasthan,passed by Rajasthan High Court – Jodhpur on 05.01.2022, the petition isprayed to be dismissed.8.We have considered rival submissions advanced across thebar. We have perused relevant material placed on record includingaffidavits-in-reply. Petitioner is declared to be dangerous person as wellas sand mafia by the Detaining Authority. Though, as many as sixoffences are registered against him only last two offences bearing C.R. 5 No. 325/2023 and 198/2023 have been taken into account. C.R. No.325/2023 is under Section 379 read with 34 of IPC and 3/15 of theEnvironment Protection Act. Another C.R. No. 198/2023 is also underthe self same provisions. Though, there is order of externment passed bythe Sub Divisional Magistrate, Shrigonda-Parner, on 20.09.2022,subsequently it has been quashed by Appellate Authority on 03.11.2022.No offence has been registered during the period of 20.09.2022 to03.11.2022.9.Respondent no. 2 – Detaining Authority has recorded inparagraph no. 8 that the petitioner is a dangerous person. In paragraphno. 9, it is further recorded that he is involved in sand theft, causinggrievous injury and unlawful assembly. Considering the offencesregistered against the petitioner, record does not show that he is involvedin any of the offence under the Arms Act. Last two offences pittedagainst him do not show use of any weapon. Hence, subjectivesatisfaction of petitioner having used dangerous weapon is perverse.Similarly, both the offences do not show any element of unlawfulassembly. There are no allegations of any offence falling under ChapterXVI of IPC. Despite that, he has been brought within the ambit ofdangerous person. Findings of subjective satisfaction being dangerousperson and sand mafia is perverse. 6 10.The petitioner is alleged to have committed offence underSection 379 of IPC and under section 3/15 of the Environment ProtectionAct, on two occasions. We have gone through the substance of the FIR.First offence speaks about illegal transportation of one brass sand.Another offence pertains to illegal transportation of half brass sand,albiet with the use of vehicles. This material in our considered view isscanty to hold him as sand mafia. Besides that we do not find anyelement of prejucide to public order. The material pitted against thepetitioner does not show any compelling circumstance to resort to drasticdraconian action against him under the Act. Ordinary penal law wouldhave been resorted to for curbing his activities.11.Our attention is invited to judgment of the Supreme Court inthe matter of Ameena Begum (supra), to demonstrate difference betweenlaw and order and public order, from paragraph nos. 39, 40 and 50. Byapplying those principles to the present matter, we have no hesitation tohold that activities of the petitioner cannot be said to be detrimental topublic order.12.We have noticed that the Detaining Authority has recordedin paragraph nos. 8, 9 and 10 that the petitioner is a habitual offender andhis activities are prejudicial to the public order. In-camera statements ofboth the witnesses have also been taken into account to record the