Bombay High Court
Nagesh Laxman Takmoge vs The State Of Maharashtra And Anr on 27 October, 2016
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3522 OF 2016
Nagesh Laxman Takmoge ]
Age 44 years, residing at C-7 ]
Vishwakaran Park, Jule ]
Solapur 413004, Solapur ]
District Solapur ].. Petitioner
Vs.
1. The State of Maharashtra ]
Through Home Department, having ]
Office at Mantralaya, Mumbai ]
]
2. The Commissioner of Police, ]
Solapur City, having office at ]
Solapur ].. Respondents
....
Mr. A.P. Mundargi Senior Advocate along with Mr. B.D. Joshi i/b
Mr. Sarang S. Aradhye, Advocate for the Petitioner
Mr. J.P.Yagnik A.P.P. for the State
....
CORAM : SMT.V.K.TAHILRAMANI AND
MRS. MRIDULA BHATKAR, JJ.
RESERVED ON : OCTOBER 18, 2016
PRONOUNCED ON : OCTOBER 27, 2016
JUDGMENT [PER SMT. V.K.TAHILRAMANI, J. ] :
1 This a petition preferred by the petitioner / detenu -
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Nagesh Laxman Takmoge challenging the order of detention
passed against him by the Commissioner of Police, Solapur
City. The said order of detention has been passed under the
provisions of the Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers, Drug Offenders,
Dangerous Persons and Video Pirates Act, 1981 (hereinafter
referred to as the "MPDA Act"). In view of the fact that the
detenu is a dangerous person and his activities are prejudicial
to the maintenance of public order, hence, to prevent the
detenu from acting in any manner prejudicial to the
maintenance of public order, the order of detention has been
issued. The order of detention has not yet been executed and
hence, this is a petition at the pre execution stage i.e. at a
stage prior to the service of the order of detention on the
detenu.
2 The original files relating to the detention order and grounds
of detention as well as documents accompanying the same
have been produced for our perusal by the learned APP. The
grounds of detention set out the activities of the detenu as a
dangerous person within a meaning of clause (b-1) of Section
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2 of the MPDA Act. In the grounds of detention, there is a
reference to recent incidents in which the detenu was involved
based on which, the order of detention has been issued.
3 The learned A.P.P. has raised a preliminary objection
that this petition at the pre-execution stage is wholly
misconceived and is untenable since it does not fall under any
of the five exceptions carved out by the Apex Court in the case
of Additional Secretary to the Government of India and
others Vs. Smt. Alka Subhash Gadia and Another 1. In the
decision in the case of Alka Gadia, the Supreme Court has
observed that it is not correct to say that the Courts have no
power to entertain the grievances against any detention order
prior to its execution. The Courts have the necessary power
and they have used it in proper cases although such cases
have been few and the grounds on which the Courts have
interfered with them at the pre-execution stage are necessarily
very limited in scope and number viz. where the Courts are
prima facie satisfied (i) that the impugned order is not passed
under the Act under which it is purported to have been passed,
(ii) that it is sought to be executed against a wrong person, (iii)
1 1992 Supp (1) S.C.C. 496
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that it is passed for a wrong purpose, (iv) that it is passed on
vague, extraneous and irrelevant grounds or (v) that the
authority which passed it had no authority to do so.
4 Relying on the decision in the case of Alka Gadia, the
learned A.P.P. contended that this is not a case where either (i)
the impugned order is not passed under the MPDA Act, under
which is purported to have been passed; or (ii) the order is
sought to be executed against a wrong person; (iii) the order of
detention has been passed for a wrong purpose, or (iv) the
order is passed on vague, extraneous and irrelevant grounds or
(v) the authority which passed the order had no authority to
pass the order. In the facts and circumstances before us it is
urged that, none out of the five exceptions carved out by the
Apex Court in Alka Gadia's case can be pressed into service to
justify entertaining this petition at the pre-detention stage.
5 In reply to the preliminary objection, Shri. Mundargi,
the learned senior counsel appearing for the detenu urged that
this case squarely falls under either the 3 rd or 4th exception
mentioned above viz. that the order is passed for a wrong
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purpose [exception (iii)] or that it is passed on vague,
extraneous or irrelevant grounds [exception (iv)] carved out by
the Apex Court. Mr. Mundargi submitted that on 27.6.2016
there was an incident of hot exchange of words between the
petitioner and the police of Vijapur Naka Police Station,
Solapur. The petitioner was arrested and was kept in police
custody. While in custody, on 28.6.2016 the police asked the
petitioner to remove his clothes and thereafter video shooting
of the petitioner was done by the local police and the video
clipping thereof was made viral. In view of this, it was
submitted that the order of detention was issued for a wrong
purpose i.e. not to secure the public order but to humiliate the
petitioner.
6 We have perused the detention order and the
grounds of detention for the limited purpose of considering the
contention that the order has been passed for a wrong
purpose. The activities of the detenu as mentioned in the
grounds of detention clearly show that he is a dangerous
person and his activities are prejudicial to the maintenance of
public order, hence, it is necessary to detain him. It may be
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stated here that whatever is alleged by the petitioner, is
alleged against the local police of Vijapur Police Station. There
is no allegation that the detaining authority was in any way
concerned with the incident which took place on 28.6.2016.
This alleged incident has taken place at the police station and
not in the office of Commissioner of Police i.e. the detaining
authority. The detaining authority is the highest ranking officer
in the city, he is a highly responsible person and we find that
there was sufficient material before him to be subjectively
satisfied that it was necessary to issue the order of detention.
Thus it cannot be said that the detention order is issued for a
wrong purpose.
7 The second ground which is raised is that the order of
detention has been passed on extraneous grounds. We have
perused the detention order and the grounds of detention. The
grounds of detention set out the recent activities of the detenu
which clearly show that the petitioner is a dangerous person
and that his activities are prejudicial to the maintenance of
public order. Suffice it to say that the grounds of detention
categorically record the subjective satisfaction of the detaining
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authority that the petitioner is a dangerous person and is
indulging in activities prejudicial to the maintenance of public
order and hence, it is necessary to detain the detenu. It is in
the light of the incidents mentioned in the grounds of detention
that the detaining authority has recorded its subjective
satisfaction that the detenu is a dangerous person, hence, to
prevent the detenu from indulging in activities which are
prejudicial to the maintenance of public order, it is necessary to
detain the detenu. The detention order is passed on not one
but three incidents. We must also bear in mind that section 5-
A of the MPDA Act clearly provides that where a person has
been detained in pursuance of an order of detention under
section 3 which has been made on two or more grounds, such
order of detention shall be deemed to have been made
separately on each of such grounds. It is further provided in
sub-section (a) of section 5-A that such order shall not be
deemed to be invalid or inoperative merely because one or
some of the grounds is or are - (i) vague, (ii) non-existent, (iii)
not relevant, (iv) not connected or not proximately connected
with such person, or (v) invalid for any other reason
whatsoever. Even assuming for some far-fetched reason that
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one of the grounds is extraneous, after perusing the grounds of
detention, we are of the opinion that there is sufficient material
to come to the conclusion that the detenu is a dangerous
person and he is acting in a manner prejudicial to the
maintenance of public order. We must make it clear that
since a specific contention has been raised, we are expressing
this view for the limited purpose of holding that the detenu's
case does not fall under either exception (iii) or (iv) carved out
by the Apex Court in Alka Gadia's case.
8 While considering the preliminary objection, we must
bear in mind the distinction between the existence of power
under Article 226 in the High Court and its exercise. In Alka
Gadia's case, the Apex Court, was dealing with the appeal filed
by the Additional Secretary to the Govt. of India against the
order passed by this Court at a pre-detention / pre-execution
stage. The Apex Court dealt with the self imposed restrictions
and limitations on the powers of the High Court under Article
226 and of the Apex Court under Article 32 of the Constitution,
in such cases. In para 12 of the judgment in the case of Alka
Gadia, the Apex Court discussed the law on the subject and
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then concluded in para 30 observing that there was a
difference between the existence of the powers and its
exercise. The powers under Article 226 and 32 are wide and
untrammelled by any extraneous restrictions and can reach
any executive order resulting in civil or criminal consequence.
However, the courts have, over the years, evolved certain self
restraints for exercising these powers. This has been done in
the interests of the administration of justice and for better and
more efficient and informed exercise of the said powers. This
jurisdiction, by its very nature, has to be used sparingly. To
permit a detenu to challenge the order of detention in a given
case even before it is executed would, perhaps, frustrate the
very purpose of the order and of the law under which it is
made. Though the courts have powers to entertain a grievance
against the order of detention prior to its execution, the Apex
Court has clearly spelt out the limited categories of cases
where such exercise was permissible. In this view of the
matter, the appeal filed by the Additional Secretary to the
Govt. of India was allowed and the order passed by this Court
was set aside.
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9 This Court in Criminal Writ Petition No. 648 of 1996
decided on 2nd July, 1996 in the case of Gauri Shankar Jakhalia
Vs. The Jt. Secretary, Department of Revenue, Ministry of
Finance, Govt. of India, New Delhi and others 2 relying upon
the ratio of the decision in Alka Gadia's case (supra), refused
to entertain the writ petition at the pre-execution stage.
Against the order passed by this Court, S.L.P. No. 1825 of 1996
preferred by Gauri Shankar Jakhalia has been dismissed by the
Apex Court on 30th July, 1996.
10 In view of the above, it cannot be said that the order
has been passed on vague, extraneous or irrelevant grounds.
It also cannot be said that the order has been passed for a
wrong purpose. In the circumstances, the challenge to the
order of preventive detention cannot be upheld at pre-
execution stage. Hence, petition must fail.
11 However, we may observe that the findings which we
have recorded in this judgment are in the context of examining
the challenge to the order of detention at pre-execution stage.
After the execution of the order, it is obvious that the
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prospective detenu will be entitled to challenge the said order
on all permissible grounds and all contentions in that behalf are
expressly kept open.
12 Subject to what is observed above, we pass the
following order.
13 The Petition is rejected. Rule is discharged.
[ MRS. MRIDULA BHATKAR, J.] [ SMT. V.K.TAHILRAMANI,J. ]
kandarkar
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