Firoj S/O. Imam Khan (In Jail) vs Commissioner Of Police Nagpur ...
2017 Latest Caselaw 3870 Bom

                                        1                                      CRIWP127.17.odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               : NAGPUR BENCH : NAGPUR.


              CRIMINAL WRIT PETITION NO. 127 OF 2017


 PETITIONER            : Firoj S/o Imam Khan,
                         Age about 46 years, Occu. Tea stall,
                         R/o Khalashi Line, Mohan Nagar,
                         Nagpur. (At present in Yerwada prison, Pune)

                                              VERSUS

 RESPONDENTS: 1. Commissioner of Police,
                 Nagpur City, Nagpur.

                          2. State of Maharashtra,
                             Through Under Secretary,
                             Home Department (Special),
                             Mantralaya, Mumbai.

  ----------------------------------------------------------------------------------------------
            Mr. R. K. Tiwari, Advocate for the petitioner.
            Mr. S. S. Doifode, A.P.P. for respondent nos.1 and 2.
  ----------------------------------------------------------------------------------------------

                      CORAM : PRASANNA B. VARALE and
                               MURLIDHAR G. GIRATKAR, JJ.

DATE : JULY 01, 2017.

ORAL JUDGMENT (Per P. B. Varale, J.)

Rule. Rule is made returnable forthwith. Heard finally

with the consent of the learned counsel for the parties.

                                   2                             CRIWP127.17.odt


 2]               By the present petition, the petitioner is challenging the

order passed by the respondent no.1 - Commissioner of Police,

Nagpur City, Nagpur, dated 22.10.2016, (hereinafter referred to as

'the detention order' for the sake of brevity), thereby detaining the

petitioner for the period of one year, exercising the powers conferred

under 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' for

the sake of brevity). The said order was approved by the respondent

no.2 - State of Maharashtra, after seeking opinion from the Advisory

Board.

3] Mr. Tiwari, the learned counsel for the petitioner

vehemently submitted that the order passed against the petitioner

suffers from breach of principle of natural justice, namely no

opportunity of hearing was granted to the petitioner as it was

informed to the petitioner that his right to submit representation is

extinguished in view of the approval of the order by the respondent

no.2. The learned counsel then vehemently submitted that the

detention order passed against the petitioner is clearly unsustainable

3 CRIWP127.17.odt

on the ground of non-application of mind. The learned counsel

submitted that the ground raised by the petitioner namely non-

application of mind leads to the other ground namely depriving the

petitioner to approach the competent forum with an effective

representation. The learned counsel for the petitioner then

submitted that the so called and alleged material against the

petitioner, on the basis of which the detention order is passed, is

neither substantiated with the material nor there is a live link

between the material alleged and the ultimate order of detention.

4] Mr. Tiwari, the learned counsel in his detailed

submissions, invited our attention to the material placed on record in

support of his submissions. The learned counsel submitted that the

statements of witnesses are also recorded belatedly. The learned

counsel placed reliance on some reported judgments of this Court in

support of his submissions. The learned counsel vehemently

submitted that the translation of the material provided to the

petitioner was not the true translation and on the contrary, the

translation provided to the petitioner completely changed the tenor

and texture of the material and thus, the petitioner was unable to

4 CRIWP127.17.odt

submit an effective representation, which is the pre-requisite for

passing the detention order.

5] Mr. Doifode, the learned Additional Public Prosecutor

for the respondents supports the order impugned in the petition.

6] With the assistance of both the learned counsel, we have

gone through the material placed on record. On a perusal of the

material, we find considerable merit in the submissions of the

learned counsel for the petitioner. The petitioner was served with

the detention order intimating the grounds of detention. Perusal of

the grounds for detention stated in the impugned order show that

the petitioner is continuously engaged in the commission of

bootlegging, violent and desperate activities since 2013. It is further

stated that the activities of the petitioner are of such a nature that

the people residing in the said area are under reign of terror. It is

then stated in the order that there are certain serious offences

registered against the petitioner under the Indian Penal Code and

Indian Arms Act and though, the cases registered against the

petitioner are not considered while issuing the detention order, they

5 CRIWP127.17.odt

are referred to show that the petitioner is having criminal

antecedents and the copies of the first information report, lodged

against the petitioner are supplied to the petitioner.

7] Insofar as reference made to the past criminal record of

the petitioner is concerned, we find that majority of the cases

registered against the petitioner are either under the Maharashtra

Gambling Act or under the Mumbai Prohibition Act. The learned

counsel for the petitioner submitted that in most of the cases the

petitioner is either enlarged on bail or acquitted of the offence and

this fact is not taken into consideration by the respondent

authorities. The learned counsel for the petitioner vehemently

submitted that the translation of the material supplied to the

petitioner is completely erroneous or is contrary to the facts. The

learned counsel for the petitioner invited our attention to the

reference made in the detention order in respect of complaint, dated

20.4.2016 and the offence registered vide Crime No. 4257/2016

under Section 294, 506B, 186 IPC read with Section 12(a) of

Maharashtra Gambling Act. He invited our attention to the reference

made at Clause 8.1.1 in that behalf in the detention order. The said

6 CRIWP127.17.odt

material read thus - "During interrogation before the panchas the said

person introduced himself as Firoj Khan, aged 45 years, R/o Mohan

nagar, Khalashi Line, Sadar, Nagpur i.e. you. During personal search

of you, one blue pen worth Rs.10, cash Rs.350 and white letter of

Kalyan and Kuber satta in which number related to satta worth

Rs.00/- were seized from you as per panchanama.". The translation

provided to the petitioner read that the police squad on receiving

secret information reached to the spot and found one person wearing

white pathani dress and was indulged in the act of illegal gambling.

It is then stated that the said person fled away from the spot and

then he was apprehended and was arrested by the police authority.

The learned counsel for the petitioner, by inviting our attention to

the copy of the panchanama placed on record, submitted that as per

said panchanama, cash amount of Rs.350/-, one blue ball pen, and

two chits having numbers were seized. The panchanama then states

that at the spot of the incident, one Rukhsar Firoz Khan was present

wearing yellow salwar suit. Cash mount of Rs.350/- was found under

a rubber piece and blue ball pen and the chits were found at the cash

counter. The learned counsel for the petitioner vehemently

submitted that there is a contra material on the face of record about

7 CRIWP127.17.odt

presence of the petitioner and about the material namely the cash

amount and a ball pen. The learned counsel then invited our

attention to the material i.e. application seeking Magisterial Custody

Remand (MCR) before the learned Magistrate, in which it is stated

that the petitioner fled away from the spot and cash amount and

blue ball pen was found and seized on the spot. The learned counsel

then submitted that the petitioner in the said crime had applied for

his release on cash surety and by order dated 23.09.2016, he was

released on his executing personal bond and cash security.

8] Mr. Tiwari, the learned counsel then submitted that the

respondent no.1 authority mechanically passed the order without

even considering the material and this act of the authority is clearly

an act of non-application of mind. The learned counsel then invited

our attention to the another complaint referred to at Clause 8.2.1 of

the impugned order i.e. incident dated 23.4.2016 and for the same

incident, Crime No. 171/2016 was registered on the complaint of

Iftar Khan Mustafa Khan. The learned counsel submitted that in the

detention order, it is stated that the petitioner and his wife along

with one worker Umesh alias Ammu Paisadeli and other 5-6

8 CRIWP127.17.odt

associates abused and threatened the complainant and assaulted the

uncle of the complainant by fist blows and kicks. The learned

counsel further invited our attention to the report lodged on

23.4.2016 at the instance of Iftar Khan Mustafa Khan. On a perusal

of the said report, it reveals that one Nikhil Tamshetwar reached on

the spot and started abusing the complainant and his uncle Jamil on

account of demand of money. It further reveals that there is a

reference of one Umesh alias Ammu in words as Ammu @ Umesh,

who is working in a pan kiosk, run by Rukhsar Firoz Khan and Firoz

Khan.

9] We find considerable merit in the submission of Mr.

Tiwari, the learned counsel for the petitioner that in the detention

order, it is wrongly referred that the petitioner and his associates

assaulted the complainant by fist blows and kicks. The material

referred to above clearly show that in the complaint of the

complainant itself, there is no reference of presence of the petitioner

on the spot. The learned counsel submitted that there is also an

error in the detention order at clause 8.2.3. It is stated that on

24.4.2016, the petitioner and his associates were arrested and were

9 CRIWP127.17.odt

produced before the learned J.M.F.C., who remanded them to the

Magisterial Custody till 27.4.2016. The learned counsel then invited

our attention to the copy of Arrest Register and it reveals that on

24.4.2016, one Nikhil, Ammu alisa Umesh, Vijay and Shubham were

the persons who were arrested and presented before the learned

Magistrate. Mr. Tiwari, the learned counsel for the petitioner

submitted that the petitioner had approached this Court for grant of

anticipatory bail and his application was allowed. The petitioner was

arrested on 16.09.2016 and was immediately released in view of the

order passed by this Court allowing the application. Thus, it is

submitted by the learned counsel for the petitioner that the

observations in the detention order by the authority concerned are

completely in contrast to the record and the same shows non-

application of mind by the authority concerned. The learned counsel

then submitted that in the detention order at Clause 8.2.4, it is stated

that on 25.4.2016, the associates of the petitioner namely Firdos and

Deepak were arrested and produced before the learned Magistrate,

who remanded them to MCR till 27.4.2016. He then by inviting our

attention to the translation of the said order supplied to the

petitioner submitted that in the said translation it is stated that on

10 CRIWP127.17.odt

25.4.2016, associate of the petitioner by name Rehana was arrested

and ws produced before the learned Magistrate. It is stated in the

translation that the learned Magistrate sent the petitioner to MCR till

27.4.2016. The learned counsel for the petitioner submitted that the

translation is completely contrary to Clause 8.2.4 of the detention

order. There is also omission of names in the translation, which is

the part of the detention order in 8.2.4. Then, the learned counsel

invited our attention to Clause 8.2.6 of the detention order. It is

stated that on 26.4.2016, associate of the petitioner namely Smt.

Rukhsar was arrested and was produced before the learned

Magistrate, who remanded her to police custody remand till

27.4.2016. The learned counsel then invited our attention to the

order passed by the learned Judicial Magistrate, First Class, Court

No.10, Nagpur, dated 26.4.2016, a copy of which is placed on record

at page 353 and submitted that the said accused was produced

before the learned Magistrate on 26.4.2016 and a document placed

on record at page 417 of the petition shows that Rukhsar Firoz Khan

was arrested on 26.4.2016 and the investigating agency sought MCR

of Rukhsar and other accused. The learned counsel submitted that

the detention order and its translation both suffer from a complete

11 CRIWP127.17.odt

non-application of mind. The learned counsel thus was justified in

submitting that the authority, who had failed to consider the material

in its proper perspective and when there is total non-application of

mind in the detention order as well as when there is erroneous

translation of even the basic material facts, the petitioner was

deprived of submitting an effective representation. The learned

counsel then also submitted that even there is no satisfaction of the

authority in view of the statements recorded by the authority to

suggest that the activities of the petitioner are causing an

apprehension in the mind of the residents of local area. He also

submitted that the statements of the witnesses were recorded

belatedly and as such, there is no live link.

10] In view of the material referred to above by us, we are of

the opinion that the authority committed a serious error of non-

application of mind while considering the material against the

petitioner and providing a completely erroneous translation to the

petitioner, thereby depriving the petitioner of his right of making an

effective representation. Mr. Tiwari, the learned counsel for the

petitioner rightly placed heavy reliance on the judgment of this Court

12 CRIWP127.17.odt

in 2013 All M.R. (Cri) 3870 in the case of Niyazuddin @ Sonu

Sirajuddin Ansari .vs. State of Maharashtra and another ; 2003

Cri.L.J. 2368 in the case of Dharma alias Kumar Sonadi Tewar .vs.

M. N. Singh and others, ; and 2002 All M.R. (Cri.)1812 in the case

of Mrudula Mahendra Master .vs. State of Maharashtra and

another.

11] Mr. Tiwari, the learned counsel for the petitioner also

relied on the following judgments of this Court in support of his

submission that there is no live link between the material referred to

in the detention order i.e. stale offences registered against the

petitioners and unexplained delay in recording the statements of

witnesses, namely 2017 All M.R. (Cri.) 2066 in the case of Bhushan

Vijay Rane .vs. the State of Maharashtra ; 2017 All M.R.(Cri.) 952

in the case of Naeem Abdulla Khan .vs. The Commissioner of

Police, Mumbai and others and 2017 All M.R. (Cri.) 869 in the

case of Arjun Balkrishna Sonavane .vs. State of Maharashtra.

Though, there is no dispute on the proposition of law reflected in

these judgments, as we find that the order of detention passed

against the petitioner suffers from non-application of mind by the

13 CRIWP127.17.odt

respondent -authorities, we may not go into these aspects.

12] In the result, the criminal writ petition is allowed. The

impugned order dated 22.10.2016 passed by the respondent no.1 is

quashed and set aside.

Rule is made absolute accordingly with no order as to costs.

                          JUDGE                             JUDGE
 Diwale