Lahu Shrirang Gatkal vs The State Of Maharashtra And ...
2017 Latest Caselaw 1782 Bom

                                1      CRI-WP-132-17.odt


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

      CRIMINAL WRIT PETITION NO.132 OF 2017 
                      
Lahu Shrirang Gatkal,
Age : 40 years, 
Occ. Suspended Police Personnel,
r/o. Nath Nagar, Jawahar Colony,
Aurangabad,
presently in Central Jail,
Harsul, Aurangabad                  ..Petitioner

              Vs.

1.    The State of Maharashtra,
      Through the Secretary,
      Home Department (Special), 
      2nd Floor, Main Building,
      Mantralaya, Mumbai

2.    The Section Officer
      Home Department (Special),
      2nd Floor, Main Building,
      Mantralaya, Mumbai

3.    The Commissioner of Police,
      Aurangabad

4.    The Police Inspector,
      Osmanabad Police Station,
      Aurangabad                        ..Respondents

                         --
Mr.H.D.Deshmukh, Advocate for petitioner

Mr.S.B.Yawalkar, APP for respondents 
                         --




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                                  2             CRI-WP-132-17.odt


               CORAM         :  S.V. GANGAPURWALA AND
                                SANGITRAO S. PATIL, JJ. 
               RESERVED ON  :  APRIL 05, 2017
               PRONOUNCED ON :  APRIL 18, 2017


JUDGMENT (PER SANGITRAO S. PATIL, J.) :

Rule, returnable forthwith. With the

consent of the learned Counsel for the petitioner

and the learned APP for the respondents, heard

finally.

2. The petitioner has challenged the order

dated 10.10.2016 passed by respondent no.3 -

Commissioner of Police, Aurangabad under sub-

section (1), Section 3 of the Maharashtra

Prevention of Dangerous Activities of Slumlords,

Bootleggers, Drug Offenders, Dangerous Persons,

Video Pirates, Sand Smugglers and Persons Engaged

in Black Marketing of Essential Commodities Act,

1981 ("M.P.D.A. Act", for short) for detention of

the petitioner under the said Act as well as the

order dated 17.10.2016 passed by respondent no.1

3 CRI-WP-132-17.odt

approving the order dated 10.10.2016 passed by

respondent no.3 and further the order dated

28.11.2016 passed by respondent no.1 under sub-

section (1) of Section 12 of the M.P.D.A. Act

confirming the order of detention dated 10.10.2016

and directing the detention of the petitioner for

a period of one year from the date of detention.

3. The learned Counsel for the petitioner

mainly challenges the order of detention of the

petitioner on the following grounds :-

(i) Non-communication of the grounds of order

of detention to the petitioner within five days

from the date of detention;

(ii) Insufficiency of material to detain the

petitioner and non-application of mind by

respondent no.3 while passing the order of

detention;

(iii) Non mentioning of the period of detention

in the order.

4 CRI-WP-132-17.odt

4. The learned Counsel for the petitioner

submits that as per sub-section (1), Section 8 of

the M.P.D.A. Act, when a person is detained in

pursuance of a detention order, the authority

making the order shall, as soon as may be, but not

later than five days from the date of detention,

communicate to him the grounds on which the order

has been made and shall afford him the earliest

opportunity of making a representation against the

order to the State Government. He submits that in

the present case, the compliance of this provision

had not been made by respondent no.3 till

15.10.2016. The order of detention was served upon

the petitioner on 15.10.2016. The petitioner could

not make a representation to respondent no.1

against the order of detention dated 10.10.2016.

Respondent no.3 approved the order dated

10.10.2016 on 17.10.2016 itself, whereby he was

informed that his right to make representation to

5 CRI-WP-132-17.odt

respondent no.1 has been terminated. The learned

Counsel submits that the petitioner has been

denied a valuable right to make representation

against the order of detention. Therefore, the

impugned order of detention dated 10.10.2016 is

liable to be vitiated. In support of this

contention, he relied on the judgment in the case

of Sunil s/o. Sadashiv Ghate Vs. The State of

Maharashtra and ors., 2000(4)Mh.L.J. 386, wherein

it has been held that in case the detaining

authority fails to inform the detenu of his right

to make a representation against the order of

detention, it would vitiate the order.

5. As against this, the learned A.P.P.

submits that the order of detention dated

10.10.2016 was served on the petitioner on the

same day and the reasons for passing that order

along with the copies of the documents relied on

by respondent no.3 were served on the petitioner

on 14.10.2016 i.e. within five days from the date

6 CRI-WP-132-17.odt

of passing the detention order. The petitioner

was aware of his right to make representation

against the order of detention. As such, according

to the learned A.P.P., there is no breach of sub-

section (1) of Section 8 of the M.P.D.A. Act and

no prejudice has been caused to the petitioner.

6. We have perused the original record of

the proceedings conducted by respondent no.3. The

record shows that the petitioner has received the

order of detention on 10.10.2016 itself. The

petitioner has signed in token of receipt of the

said order on 10.10.2016 itself. His statement

also has been recorded by respondent no.3 on the

same day, wherein he states that the intimation in

respect of his detention should be given to his

brother namely, Ankush Shrirang Gatkal and he

should be provided with the reasons and other

documents (in Marathi script) in respect of his

detention. A notice was addressed to the brother

of the petitioner intimating him about detention

7 CRI-WP-132-17.odt

of the petitioner from 10.10.2016 onwards,

however, it seems that the brother of the

petitioner refused to accept that notice and

accordingly, a panchnama came to be prepared to

that effect by the Serving Officer, which is on

record.

7. The letter dated 14.10.2016 was addressed

by respondent no.3 to the Superintendent, Central

Prison, Aurangabad, requesting him to serve upon

the petitioner the note containing the reasons for

detention as well as other documents. The Officer

of the Prison, accordingly, served the said

documents upon the petitioner on 14.10.2016

itself. The petitioner has signed all the papers

(Sr. Nos.1 to 263) on 14.10.2016 itself in token

of receipt thereof. With this documentary

evidence, the bare words of the petitioner, that

the order of detention was not served on him

immediately when he was detained and the documents

supporting the said detention order, were not

8 CRI-WP-132-17.odt

served upon him within five days from the date of

detention, cannot be believed.

8. The notice of detention of the petitioner

was attempted to be served upon the brother of the

petitioner, but he refused to accept the same.

Therefore, it cannot be said that the intimation

about detention of the petitioner was not given to

his near relative.

9. Respondent no.3 has complied with the

provisions of sub-section (1), Section 8 of the

M.P.D.A. Act. The petitioner, thus, was afforded

earliest opportunity of making representation

against the order of detention passed by

respondent no.3.

10. The learned Counsel for the petitioner

submits that six crimes are shown to have been

registered against the petitioner as mentioned in

the grounds of detention. There was a Chapter case

9 CRI-WP-132-17.odt

under Section 107 of the Code of Criminal

Procedure filed against the petitioner in the year

2009. He submits that out of six criminal cases,

one each pertains to the years 2009, 2012, 2013

and 2014 and two pertain to the year 2016. There

were two more crimes bearing nos.9 of 2012 and 11

of 2012 on the basis of which, Sessions Case

Nos.354 of 2014 and 353 of 2014, respectively,

were instituted. The petitioner has been acquitted

by the Court in these cases. He then submits that

the petitioner has been acquitted by the Court in

the Criminal Case arising out of Crime No.96 of

2013, while the proceedings of Crime No.99 of 2016

came to be quashed by the Hon'ble High Court. He

submits that false cases have been filed against

the petitioner, however, respondent no.3 did not

apply his mind properly and passed the detention

order against the petitioner without there being

sufficient material to pass the same. He submits

that since the petitioner has given statement

10 CRI-WP-132-17.odt

against some of the Assistant Commissioners of

Police, he has been victimised.

11. On the other hand, the learned A.P.P.

submits that the petitioner was serving as a

Police Constable and was indulged in the criminal

activities. He was indulged in illegal excavation

and transportation of sand. He was creating

terror amongst the persons, who used to come in

his way of doing illegal activities. Nobody dares

to speak against him. Because of the fear of the

petitioner, the witnesses did not dare to depose

against him before the Court. Therefore, in some

cases, he has been acquitted. The learned A.P.P.

submits that respondent no.3 considered the

criminal antecedents of the petitioner, in-camera

statements of the witnesses as well as the

allegations made against him by the informants in

the reports on the basis of which, criminal cases

were instituted against the petitioner and after

applying his mind to the facts of the cases

11 CRI-WP-132-17.odt

registered against the petitioner, rightly passed

the order of detention.

12. As seen from the grounds of detention of

the petitioner, the following cases were

registered against him, when the order of

detention was passed :-

Sr.         Police               C.R.   No.   and   under  Present 
No.        Station               Section                  status of 
                                                           the case
 1       Osmanpura               38/2009   u/s.   294,   509  Pending 
                                 of IPC                        Trial
 2         Satara                12/2012 u/s. 143, 353,  Pending 
                                 323,   504   of   IPC.,   135  Trial
                                 of B.P. Act 
 3       Georai,                 96/2013 u/s. 143, 147,  Pending 
        Dist. Beed               148,   323,   504,   506   of  Trial
                                 IPC; 3, 4, 5, 7/25 of 
                                 Arms Act
 4    Chikalthana, 118/2014   u/s.   307,  Pending 

Aurangabad 353, 323, 504, 506 of Trial Rural IPC 5 Chikalthana, 99/2016 u/s. 307, 323, Under Aurangabad 506, 34 of IPC Investigat Rural -ion 6 Osmanpura 175/2016 u/s. 307 of Under IPC Investigat

-ion

12 CRI-WP-132-17.odt

Preventive Action

Sr. Police Chapter Case number Status No. Station and Section 1 Osmanpura 192/2009, u/s. 107 Released on of Cr.P.C. final bond of Rs.5,000/-

13. In paragraph 4(i) of the petition, there

is reference of Crime No.9 of 2012 registered in

Satara Police Station, Dist. Aurangabad for the

offence punishable under Section 395 of Indian

Penal Code ("I.P.C.", for short) and Crime No.11 of

2012 registered in Police Station, Begumpura, for

the offences punishable under Section 363, 341,

342, 353, 332 and 395 of I.P.C., which were

registered against the petitioner, on the basis of

which Sessions Case Nos.354 of 2014 and 353 of

2014, respectively, were instituted against him.

The petitioner has produced the judgments delivered

in those cases by the learned Additional Sessions

Judge, Aurangabad on 15.05.2015. The said judgments

make it clear that the witnesses did not state

13 CRI-WP-132-17.odt

anything adverse against the petitioner and

therefore, the petitioner came to be acquitted.

The petitioner has further produced the judgment

dated 08.12.2016 passed in Sessions Case No.85 of

2016 by the learned Additional Sessions Judge,

Beed, arising out of Crime No.96 of 2013, wherein

also, none of the prosecution witnesses deposed

against the petitioner and therefore, he came to be

acquitted. The copy of the order dated 21.12.2016

passed in Writ Petition No.1596 of 2016 by this

Court has been produced by the petitioner, which

shows that consequent upon amicable settlement

between the petitioner and the informant, Crime

No.I-99 of 2016 registered against the petitioner

in Chikalthana Police Station, Aurangabad for the

offences punishable under Sections 307, 323, 506

read with Section 34 of I.P.C. came to be quashed

and set aside. Two cases arising out of Crime

No.118 of 2014 and 175 of 2016 seem to be still

pending against the petitioner.

14 CRI-WP-132-17.odt

14. The grounds mentioned in the judgments and

orders, whereby the petitioner has been acquitted

or the criminal proceeding has been quashed and set

aside against him in Crime No.99 of 2016, support

the contention of respondent no.3 that the

witnesses do not dare to state anything against the

petitioner. From this factual position, an

interference can be drawn that either the

prosecution witnesses were won-over or pressurised

by the petitioner. It does not appear to be natural

and probable that all the aggrieved persons, who

lodged reports against the petitioner, would come

before the Court simply to say that the reports

were lodged because of some misunderstanding. In

the circumstances, from the results of these cases,

which are in favour of the petitioner, it cannot be

said that respondent no.3 passed the order of

detention without application of mind and without

sufficient evidence, with a view to victimise the

petitioner.

15 CRI-WP-132-17.odt

15. The contention of the learned Counsel for

the petitioner that since the petitioner gave

statement against some Assistant Commissioners of

Police, against whom enquiry was being held for

sexual harassment of a lady Police Constable, the

petitioner has been victimised. We do not find any

force in this contention. The copy of the

representation dated 21.10.2016 made by the

petitioner is on record. There is no whisper in

the said representation about victimisation of the

petitioner on the above mentioned ground. This

ground seems to have been taken up by way of

afterthought.

16. There are in-camera statements of two

witnesses who have specifically stated as to how

the petitioner behaved with them high-handedly

creating fear in their minds. It is common

knowledge that many persons go on suffering torture

of a person having muscle power instead of lodging

16 CRI-WP-132-17.odt

reports to the Police Station, which sometimes may

invite wrath of such a big-shot. Therefore, only

because reports have not been lodged against such

person, by the persons who know the language of

silence only, it cannot be said that such person

needs no action as has been taken against the

petitioner. We have perused the record disclosing

the criminal activities of the petitioner. We are

satisfied that the said record is sufficient to

invite action of detention of the petitioner under

the provisions of sub-section (1), Section 3 of the

M.P.D.A. Act.

17. The learned A.P.P. cited the judgments in

the cases of Magarpansingh Pimple Vs. State of

Maharashtra, 2006(1) BCR(CRI)88 and Adil Chaus s/o.

Hamad Chaus Vs. The Commissioner of Police,

Aurangabad and ors., 2012 All M.R.(Cri.) 1123,

wherein it has been held that if the detaining

Officer is satisfied that with a view to preventing

17 CRI-WP-132-17.odt

any person from acting in any manner prejudicial to

the maintenance of public order, it is necessary to

detain him he may make an order directing that such

person be detained. The order of detention based

on subjective satisfaction of the detaining Officer

cannot be interfered with in exercise of writ

jurisdiction. The learned APP further cited the

judgment of the Hon'ble Apex Court in the case of

Abdul Sathar Ibrahim Manik:Ibrahim Shareef M.

Madhafushi Vs. Union of India, 1992(1)SCC 1,

wherein it has been observed that the detention

cannot be invalidated on the ground that there were

no antecedents. It being a question of satisfaction

of the detaining authority on the basis of the

material placed before him, even a solitary

incident which has been detected may speak volumes

about potentialities of the detenu and merely on

the ground that there were no antecedents, the

detention order cannot be quashed.

18 CRI-WP-132-17.odt

18. The learned Counsel for the petitioner

submits that the period of detention has not been

mentioned in the detention order dated 10.10.2016

and therefore, it is liable to be quashed.

19. The learned A.P.P. controverts this

submission by relying on the decision in the case

of Amar alias Amarsingh Gulabsingh Rathod Vs. State

of Maharashtra and anr., 2003 All M.R.(Cri.) 1671,

wherein it has been held in paragraph 11, that the

order of detention is not vitiated on the ground of

failure on the part of the detaining authority in

specifying the period of detention in the order of

detention.

20. Moreover, in the final order dated

28.11.2016 passed by respondent no.1, there is

specific mention that the detention of the

petitioner would be for a period of one year from

the date of his detention i.e. 10.10.2016.

Therefore, the detention order passed by respondent

19 CRI-WP-132-17.odt

no.3 would not stand vitiated on the ground that

there is no mention of specific period of

detention.

21. The learned Counsel for the petitioner

submits that as per Section 13 of the M.P.D.A. Act,

the maximum period for which any person may be

detained in pursuance of any detention order made

under this Act, which has been confirmed under

Section 12, shall be 6 months from the date of

detention. This submission cannot be accepted.

Earlier, the period of detention was 6 months,

however, the words "12 months" were substituted for

the words "6 months" by the Maharashtra Act No.24

of 1988. Thus, the maximum period would be 12

months and not 6 months.

22. Considering the above facts and

circumstances of the case, we do not find any

substance in the Writ Petition. The impugned order

of detention as well as the orders of approval and

20 CRI-WP-132-17.odt

confirmation thereof, need no interference. The

Writ Petition is liable to be dismissed and

accordingly, dismissed. The Rule is discharged.

         Sd/-                                  Sd/-
[SANGITRAO S. PATIL, J.]              [S.V. GANGAPURWALA, J.]
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