High Court

Legal Reasoning

1 cri wp 1860.23IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1860 OF 2023Arjun Khushal Dhabade,Age : 36 years, R/o Gondhawani Ward No. 1,Shrirampur, Dist. Ahmednagar,Dist. Ahmednagar... PetitionerVersus1.District Magistrate,Ahmednagar.2.The State of Maharashtra,(Through the Secretary HomeDepartment (Spl.) Mantralaya,Mumbai.3.The Superintendent,Nashik Central Prison, Nashik... RespondentsMs. Jayashree Tripathi, Advocate a/w Shri Rupesh A. Jaiswal, Advocate for the Petitioner.Shri K. N. Lokhande, A.P.P. for the Respondent Nos. 1 to 3.CORAM :MANGESH S. PATIL ANDSHAILESH P. BRAHME, JJ.CLOSED FOR JUDGMENT ON :14.02.2024JUDGMENT PRONOUNCED ON:23.02.2024JUDGMENT (Per Shailesh P. Brahme, J.) :-.Rule. Rule is made returnable forthwith. Heard both thesides finally with their consent.2.The petitioner challenges order dated 07.10.2023 passed 2 cri wp 1860.23U/Sec. 3(1) of the Maharashtra Prevention of DangerousActivities of Slumlords, Bootleggers, Drug Offenders andDangerous Persons and Video Pirates Act, 1981 (hereinafterreferred as to the ‘M.P.D.A. Act’ for the sake of brevity andconvenience) directing his detention for a term of one year,passed by respondent No. 1/District Magistrate. He is committedto prison on 07.10.2023.3.The grounds of detention are founded on registration of anoffence with Shrirampur Taluka Police Station bearing CR. No.183/2023 for the offences punishable U/Sec. 379 r/w Sec. 34 of theIndian Penal Code and Section 3 and 15 of the EnvironmentProtection Act, in camera statements of two anonymouswitnesses, preventive action U/Sec. 110(e)(g) of the Code ofCriminal Procedure and an order of externment passed U/Sec. 55of the Maharashtra Police Act. Though there were other offencesregistered against the petitioner only offence stated above beinglast offence has been considered for arriving at the subjectivesatisfaction. The detaining authority has found the petitioner tobe dangerous person and sand mafiya. He is recorded tobe indulging in illegal activities, prejudicialy affecting publicorder. 4.The respondents have filed affidavit in reply disclosing thesequence of events, incriminating material pitted against thepetitioner and the manner in which the subjective satisfactionhas been arrived at. It transpires that in camera statementswere recorded on 03.06.2023. They were verified by the Sub 3 cri wp 1860.23Divisional Police Officer, Shrirampur on 21.06.2023. Report tothat effect was submitted on 08.07.2023. On 14.08.2023 theproposal was submitted to the respondent/detaining authority.On 07.10.2023 the impugned order was passed. It was approvedU/Sec. 3(2) of the M. P. D. A. Act by order dated 17.10.2023. Theproposal was presented to the advisory board on 17.10.2023. Thepetitioner was heard on 08.11.2023. Impugned order wasconfirmed on 24.11.2023.5.Ms. Jayashree Tripathi, learned counsel for the petitionerhas placed on record synopsis, written submissions and somejudgments. She has also placed on record photo copy of vehicleparticulars, supplementary statement and first informationreport in CR No. 183/2023 registered with Shrirmapur TalukaPolice Station. She advanced following submissions, to challengethe impugned order :I.Only offence pitted against the petitioner is CR. No.183/2023 which cannot be said to be disturbance to public order.Normal law of land would have been sufficient to deal with theactivity of the petitioner.II.There is nothing incriminating against the petitioner inCR. No. 183/2023 which is a solitary incidence considered by thedetaining authority. The vehicle involved in the offence inquestion does not belong to the petitioner.III.The petitioner has been shown to be absconding in CR. No. 4 cri wp 1860.23183/2023, whereas, he is regularly attending the proceedings ofSessions Case No. 40 of 2022 pending before the AdditionalSessions Judge, Shrirmapur which is emanating from CR No.254/2017.IV.The subjective satisfaction of the detaining authority isshrouded with doubt and there is non application of mind. Thepetitioner was neither arrested, nor served with notice U/Sec.4(1-A) of the Code of Criminal Procedure.V.There is unexplained delay of 75 days in consideringrepresentation dated 31.10.2023 which was done on 24.01.2024.Further there is delay of six months from April 2023, when lastinstance occurred as cited in in camera statement.VI.There is unexplained delay from forwarding proposal on10.08.2023 to passing of impugned order.6.The learned counsel for the petitioner seeks to rely uponfollowing judgments :(i)Rekha Vs. State of Tamilnadu and another reported in 2011 CJ (SC) 700.(ii)Ammena Begum Vs. State of Telangana reported in 2023 Live Law (SC) 743.(iii)Harish Pahwa Vs. State of U. P. reported in (1981) 2 SCC 710.(iv)Mahesh Kumar @ Banti Vs. Union of India and others 5 cri wp 1860.23reported in (1990) 3 SCC 148.(v)Rajamal Vs. State of T. N. reported 1999 (1) LJ (SC) 265.(vi)Judgment in the case of Akash Hodade in Criminal Writ Petition No. 391 of 2023.(vii)Ranbir Singh Vs. S. T. George Joseph reported in 1988 CJ (SC) 490.(viii)Prakash Chandra Yadav Vs. State of Jharkhand reported in 2023 Live Law (SC) 529.(ix)Pradeep Nilkant Paturkar Vs. S. Ramamurthi and others reported in AIR 1994 SCC 656.(x)Judgment in the matter of Jaggu Sardar J. T. Labana Vs. Comm. Of Police Thane and others in Cri. W. P. (S.T.) No. 15876/2023.(xi)Austin William Luis Pinto Vs. Commissioner of Police Greater Bombay reported in 2005 All MR Cri. 28.(xii)Judgment dated 08.02.2024 passed in Criminal Writ Petition No. 1736 of 2023 in the matter of Digambar @ Digambar Vitthal Dagdade Vs. The District Magistrate Latur and others.7.The learned Assistant Public Prosecutor has referred toaffidavit in reply to support his submissions. Additionally, threedocuments are placed on record to substantiate the case of thestate. They are, viz minutes of meeting dated 20.10.2023 held bythe advisory board, communication dated 24.01.2024 made bythe respondent No. 1 and the letter dated 29.01.2024.8.We have considered rival submissions of the litigating 6 cri wp 1860.23sides. We have gone through the papers placed on record andthe judgments cited.9.It reveals from record that the detaining authority hasconsidered solitary offence bearing CR. No. 183/2023 punishableU/Sec. 379 r/w Sec. 34 of the I. P. Code and Sec. 3, 15 of theEnvironment Protection Act, though five more offences wereregistered against the petitioner earlier. In camera statementsof two witnesses, preventive action U/Sec. 110 of the Cr. P. C.and externment order U/Sec. 55(1) of the Maharashtra Police Acthave also been considered.10.The learned counsel for the petitioner has vehementlycriticized subjective satisfaction based upon solitary offenceregistered against the petitioner. An endeavour is made byreferring to first information report, supplementary statementand vehicle particulars collected in pursuance of CR. No.183/2023 to show that vehicle involved in the offence belongs toone Sanjay Garsal and not the petitioner. However, in our view,the detaining authority is not expected to embark upon anenquiry into merits of the offence or prosecution. Criminalantecedents would be considered for the subjective satisfaction.The offence in question shows involvement of the detenue. It isfor the competent Court to consider the plea of the petitionerregarding innocence and ownership of the vehicle in question.11.Our attention is invited to the roznama of Sessions CaseNo. 40 of 2022. Roznama dated 18.08.2023, 29.08.2023 and 7 cri wp 1860.2308.09.2023 is shown to us to point out that the petitioner waspresent before the Court. It is submitted that the petitioner wasnot absconding as such, which is wrongly recorded against him.It is contended that his presence could have been secured eitherby arresting him or by resorting to Section 41(1-A) of the Cr. P.C. But to our mind just because of the fact that presence of thepetitioner could have been secured or recourse could have beentaken to notice U/Sec. 41(1-A) of the Cr. P. C. cannot be a groundto find fault with the subjective satisfaction.12.A solitary instance showing criminal activity or tendency ofa detenue is also sufficient along with supervening circumstancesto take drastic action against the detenue. There are in camerastatements, the preventive action in Chapter Case No. 102/2021U/Sec. 110(e)(g) of the Cr. P. C. and an order of externment dated09.06.2022 which weighs over the detaining authority to arriveat a subjective satisfaction against the petitioner. We do not findany defect in subjective satisfaction or any inherent illegality.We, therefore, do not approve the submission of the petitioner onthe count of impugned action having been based on only on onecriminal case.13.It is a matter of record that the petitioner was externed byorder dated 09.06.2022 for fifteen months from Ahmednagardistrict. Order of externment was final and operative. Duringits operation, on 16.04.2023 the petitioner has committed offencebearing CR. No. 183/2023 punishable U/Sec. 379 r/w Sec. 34 ofthe I. P. Code and Sec. 3 and 15 of the Environment Protection 8 cri wp 1860.23Act. This was committed in breach of order of externment withinthe limits of Shrirampur Taluka. This indicates that evenpreventive action against the petitioner was not adequate to curbhis activities. This conduct fortifies the subjective satisfaction ofthe detaining authority that the petitioner is habitual offenderand has no respect for law and the orders of the competentauthority.14.We have been consistently holding that if detenue indulgesin the criminal activities by violating the terms of order ofexternment, then that in itself amounts to aggravated form ofmisconduct. We have declined to exercise our discretion in suchcases. We would like to refer to our judgment dated31.01.2024 in the matter of Aakash Bhagwad Chonde Vs.The State of Maharashtra and others. Following are therelevant paragraphs :“20. We find substance in the submissions of the learnedAddl.P. P. This conduct of the petitioner is detrimental tothe ground being taken by the petitioner and thesubmissions made on his behalf against the impugnedorder. This aspect of the matter has also been considered bythe detaining authority. Committing an offence by violatingorders of externment is aggravated form of criminalantecedents. We find that there is no illegality or perversitycommitted by the detaining authority in appreciating thematerial on record to come to the conclusion that thepetitioner is a dangerous person. 21. Considering the material produced against thepetitioner, criminal antecedents and his conduct, we are notinclined to exercise the jurisdiction in favour of the 9 cri wp 1860.23petitioner to uphold the submissions of the learned counselfor the petitioner in respect of delay or non considerationof orders of bail. The petitioner has not tendered anyexplanation for violation of orders of externment. Ratherthis circumstance would substantiate the impugned order todemonstrate that ordinary law of the land has been fallingshort to prevent the activities of the petitioner.”15.The impugned order was passed on 07.10.2023.Representation was made by the petitioner on 31.10.2023. Thelearned A. P. P. would rely upon letter dated 24.01.2024 issuedby the Section Officer of the respondent No. 2 intimating thepetitioner rejection of his representation. In letter dated29.01.2024 issued by the self same authority giving instruction tothe learned A. P. P. of this Court, shows that the representationof the petitioner was received on 02.11.2023. Remarks werecalled for from the respondent No. 1/District Magistrate on03.11.2023 and those were received on 20.01.2024. The proposaltravelled from Section Officer to Joint Secretary. It wasultimately rejected on 24.01.2024. The consumption of time forarriving at a final decision has been properly explained by thelearned A. P. P. We are of the considered view that there is noinordinate delay in deciding the representation, so that it can besaid that Article 22(5) of the Constitution has been compliedwith.16.The petitioner has placed reliance upon the judgment ofthe Supreme Court in the matter of Harish Pahwa Vs. State ofUttar Pradesh (supra). Paragraph No. 3 of the judgment is shownto us. The facts are distinguishable. Further, judgment of the 10 cri wp 1860.23Supreme Court in the matter of Mahesh Kumar @ Banti Vs. Unionof India and others (supra) is referred to. We have gone throughthe principles laid down in paragraph Nos. 16 to 19 of thejudgment. In the case in hand, we have already recorded thatthere is explanation tendered by the learned A.P.P. and we haveaccepted the same. This judgment is also of no avail to thepetitioner.17.The learned counsel for the petitioner has further reliedupon the judgment of the Supreme Court in the matter ofRajamal Vs. State of Tamilnadu (supra). We have considered theprinciples laid down in paragraph Nos. 8 to 11 of the judgment.The judgment underlines the purport of Article 22(5) of theConstitution of India, which cannot be disputed. We have takencare to examine whether there is adherence to the constitutionalprovisions in the case in hand.18.Next judgment referred by the learned counsel for thepetitioner is in the matter of Akash Annasaheb Hodade Vs. TheDistrict Magistrate, Latur in Cri. W. P. No. 391 of 2023 (supra).Relevant paragraphs are paragraph Nos. 14 to 16. We have alsogone through the judgment of the Supreme Court in the matterof Ranbir Singh Vs. T. George Joseph District Magistrate Meerut(supra). We are shown the latest judgment of the Supreme Courtin the matter of Prakash Chandra Yadav @ Mungeri Yadav Vs. TheState of Jharkhand and others (supra). These judgments are basedon the fact situations containing in those individual cases, whichaccording to us are conspicuously absent in the matter in hand. 11 cri wp 1860.2319.In camera statements were recorded on 03.06.2023. Theimpugned order was passed on 07.10.2023. The delay of about sixmonths has not been explained, is the contention of thepetitioner. We have gone through paragraph No. 8 of theaffidavit in reply. The statements of the witnesses were verifiedon 21.06.2023. Thereafter report was submitted on 08.07.2023 tothe respondent No. 1 through Additional Superintendent ofPolice. On 10.08.2023 the proposal was submitted to thedetaining authority through the Superintendent of Police. Theproposal appears to have been reached on 14.08.2023.Thereafter the impugned order was passed. The explanationappears to be convincing. Authorities have adhered to theprocedural safeguards.20.The learned counsel for the petitioner would refer to thejudgment in the matter of Rekha Vs. State of Tamilnadu throughSec. To Government and another (supra). We are shown paragraphNos. 5, 7, 9 to 11 of the judgment to buttress that there would bemeticulous compliance of the procedural safeguards in thematters of preventive detention. We have considered theprinciples laid down by the Supreme Court and carefullyexamined the matter in hand. On facts we have recorded thatthere is subjective satisfaction arrived at by following timelycompliances. Importantly, present case is example of aggravatedform of misconduct, which needed to be tackled sternly.21.The applicant has also referred to judgment of theSupreme Court in the case of Ameena Begum Vs. The State of 12 cri wp 1860.23Telangana and others (supra) to buttress that there is differencebetween law and order and public order and present case wouldbe at the most that of disturbance to law and order. We are alsoshown relevant paragraph Nos. 45, 47 and 51 of the judgment.We reiterate that the case in hand reflects aggravated form ofmisconduct of the petitioner which disqualifies the petitioner toclaim any discretion.22.It is contended by the petitioner that there is unexplaineddelay from 10.08.2023 to 07.10.2023. For that purpose relianceis placed on the judgment of the Supreme Court in the matter ofPradeep Nilkanth Paturkar Vs. S. Ramamurthi (supra). We haveconsidered paragraph Nos. 3, 4, 9 and 13 of the judgment. Thecase in hand shows that there was active consideration of theproposal at various stages. The time consumed has been properlyexplained in para (7) of the affidavit in reply. We have notnoticed any indifferent attitude of any authority in the process.Therefore, the judgment is not helpful to the petitioner.23.Next judgment cited on this point is in the matter of JagguSardar @ Jagdish Tiratsingh Labana Vs. Commissioner of PoliceThane and others (supra). Our attention is invited to paragraphNos. 15 to 20. We have already recorded that the delay has beenexplained in the present matter. Therefore, we are not preparedto follow the decision cited. On this point next judgment cited isin the matter of Austin William Luis Pinto Vs. Commissioner ofPolice, Greater Mumbai and others (supra). We are of theconsidered view that this judgment also would be of no avail to 13 cri wp 1860.23the petitioner. Lastly, our judgment in the matter of Digambar @Digambar Vitthal Dagdade Vs. The District Magistrate Latur andothers (supra) is brought to our notice. In that matterrepresentation was neither rejected nor was it conveyed to thedetenue. In case in hand there is communication dated24.01.2024 to show rejection of representation and itscommunication. In the judgment cited there was no explanationfor delay of six months, which is not fact in the case in hand. Weare not inclined to follow the decisions cited by the learnedcounsel for the petitioner.24.The respondents have referred to implication of Section 5Aof the Act. Even if it is presumed that the petitioner wouldsucceed on the point of defective subjective satisfaction on someother ground, still the entire impugned order will not getvitiated. The offence pitted against the petitioner has beendemonstrably committed in breach of order of externment. Thereis no explanation tendered by the petitioner in this regard. Onthis solitary ground order of detention is sustainable byimplication of Section 5-A of the MPDA Act.25.For the reasons stated above, we do not find any merit inthe criminal writ petition. We, therefore, dismiss the criminalwrit petition. Rule is discharged.[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ]bsb/Feb. 24