Chotu Mohan Naidu vs The Commissioner Of Police And Anr
2021 Latest Caselaw 11620 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL WRIT PETITION NO. 1833 OF 2021

Shri. Chotu Mohan Naidu
Age 30 yrs, R/o Near Renuka
Mata Mandir, Rest Camp Rd,
Cathay Colony, Devlali Camp,
Nashik.                                                    ...PETITIONER

         Versus

1.       The Commissioner of Police
         Nashik City.

2.       The State of Maharashtra
         Through Addl. Chief Secretary
         to Government of Maharashtra
         Mantralaya, Home Department,
         Mantralaya, Mumbai.

3.       The Superintendent
         Nashik Road Central Prison
         Nashik.                                           ...RESPONDENTS
                                                ...
Ms. Jayshree Tripathi for petitioner.
Mr. J.P. Yagnik, APP for State.
                                              ...
                                        CORAM : S. S. SHINDE &
                                                  N. J. JAMADAR, JJ.

RESERVED ON : 12th AUGUST, 2021.

PRONOUNCED ON: 24th AUGUST, 2021.

JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and heard with the consent

of learned counsel for the parties.

Bhagyawant Punde, PA





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2. This petition is filed with following substantive prayer:-

b. The order of Detention bearing No. 2021/ MPDA/ DET- 05/ CB -79 dated 05.03.2021 issued under Section 3 of

be quashed and set aside and on quashing the same the Petitioner be ordered for release forthwith;

3. Learned counsel for the petitioner submits that order of detention

is passed by the detaining authority mechanically in a very casual and cavalier

manner, which shows total non application of mind on the part of detaining

authority. It is submitted that on same set of allegations and facts three

proceedings were initiated against the petitioner. Firstly, chapter proceedings

under Section 107 of Cr.P.C. were initiated on 27.05.2020 and petitioner was

asked to execute an interim bond. Accordingly, he executed bond for keeping

peace and tranquility. Secondly, externment proceedings were initiated against

the petitioner and the petitioner was externed on 02.08.2020 for a period of 6

months from Nashik City/district. The said chapter proceedings and

externment proceedings were initiated against the petitioner on the basis of

old and stale registered criminal case of the year 2014 and another C.R. No.

133 of 2020 under Section 324, 141, 143, 144, 146 and 149 of IPC and

Section 135 of Maharashtra Police Act. The externment period of six months

was completed on 02.02.2021. Immediately, in the next month i.e. on

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05.03.2021 the detaining authority passed the detention order on the basis of

same registered case vide C.R. No. 133 of 2020. It is submitted by the learned

counsel for the petitioner that there was no other material whatsoever to

consider for passing the detention order. The respondent authorities have

taken in all three preventive actions one after another for single solitory

offence. The said action taken by the respondent authorities including the

detaining authority is not legally permissible and sustainable in law. When the

petitioner was asked to execute an interim bond of Rs. 10,000/- for keeping

good behaviour and thereafter he has not committed any offence, there was no

question of either initiating externment proceedings or passing the detention

order.

4. The detention order passed against the petitioner is under Section

3 of the MPDA Act, categorizing him as a dangerous person. If the definition

of the dangerous person as defined under Section 2(b-1) of MPDA Act is read

in proper perspective, the requirement of said section is that a person who by

himself or as a member of gang habitually commits an offence under Chapter

XVI or XVII of IPC or any of the offences punishable under Arms Act, 1959,

in that case only, such person can be categorized as a dangerous person. In the

criminal history of the petitioner shown in the proceedings, there is mention

of one criminal case registered in the year 2014 and later on one registered in

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the year 2020. The two in-camera statements of witnesses are recorded after a

gap of six months. If the said statements are minutely perused, it cannot be

said that the activity of the petitioner would be covered under the definition of

dangerous person.

5. While passing the impugned order the respondent-authority has

taken into consideration the old and stale criminal case of 2014 and C.R. No.

133 of 2020. It is submitted that the said C.R. No. 133 of 2020 and the

initiation of detention proceedings against the petitioner has no live link and

nexus inasmuch as the said C.R. No. 133 of 2020 was registered

approximately eight months prior to the passing of detention order. Learned

counsel for the petitioner also invites our attention to the various grounds

taken in the petition and submits that the petition deserves to be allowed.

6. In support of aforesaid contentions, the learned counsel for the

petitioner placed reliance on following judgments: Darpan Kumar Sharma Vs.

State of T.N. & Ors1 Mustakmiya J. Shaikh Vs. M.M. Mehta Comm. Of

Police2, Rashidmiya @ Chhava Shaikh Vs. Police Comm Ahmedabad & Ors 3,

Dinesh Vitthal Patil Vs. State of Maharashtra & Ors 4, Sultan Yakub Qureshi

1 2003 SCC (Cri) 537 2 (1995) 3 SCC 237 3 (1989) 3 SCC 321 4 2012 ALL M.R. (Cri) 3582

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Vs. Comm of Police Solapur & Ors 5, Jay @ Nunya Bhosale Vs. Comm of Police Pune & Ors6, Ajay Dixit Vs. State of U.P. & Ors 7, Mrs. Mrunali Lonare Vs. Comm. Of Police & Ors8 and Rushikesh Tanaji Bhoite Vs. State of Maharashtra & Ors9.

7. On the other hand, Mr. Yagnik, the learned APP appearing for

State invites our attention to the averments in the affidavits filed by Mr.

Deepak Pandey, Commissioner of Police, Nashik City and Mr. Sanjay

Khedekar, Deputy Secretary Government of Maharashtra, Home Department

(Special), Mantralaya, Mumbai. It is submitted that the detaining authority

has perused the material and considered the in-camera statements of witnesses

and arrived at the subjective satisfaction before passing the impugned order of

detention. The detaining authority arrived at the subjective satisfaction that

the activities of the petitioner need to be prevented by taking preventive

action, since those activities are affecting public order adversely. It is submitted

that all the legal requirements have been complied with before passing the

impugned order of detention. Learned APP invites attention of this Court to

the statements recorded in-camera and submits that alleged activities of the

petitioner certainly created threat to the public order.

6    2015 ALL MR (Cri) 4437
7    AIR 1985 SC 18

9    2012 CRI L.J. 1334 SC

Bhagyawant Punde, PA





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8. We have given careful consideration to the submission of learned

counsel for the petitioner and learned APP for State. With their able assistance

we carefully perused the pleadings and grounds taken in the petition,

annexures thereto and replies filed by the Respondent-State. It is not in

dispute that relying upon C.R. No. 133 of 2020, three proceedings were

initiated against the petitioner one after another. In a chapter proceedings the

petitioner filed a interim bond of Rs. 10,000/- for keeping good behaviour

and thereafter he did not commit any offence, except the alleged incidents

mentioned in the in-camera statement of two witnesses. We find considerable

force in the submission of learned counsel for the petitioner that, on the basis

of said C.R. No. 133 of 2020 the respondent-authority could not have

initiated multiple proceedings i.e. chapter proceedings, externment

proceedings and passing of detention order.

9. We have carefully perused the grounds of detention so also replies

filed by the respondents and other documents on record, however, we do not

find that live link is established between registration of C.R. No. 133 of 2020

and passing of the order of detention. It is stated in the grounds of the

detention that the reference made to the case registered in 2014 is only to

point out the history of the petitioner, however, it is difficult to rely upon the

statement of respondent that consideration of said case by the detaining

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authority did not influence his mind. If the old and stale cases are not to be

considered for passing the detention order, the reference of such cases is

unwarranted. The Hon'ble Supreme Court in the case of Khaja Bilal Ahmed

Vs. State of Telangana & Ors. [Criminal Appeal No.1876 of 2019 @ SLP

(Crl.) No.5487 of 2019] in paragraph 15 of the said decision observed as

under :-

In the present case, the order of detention states that the fourteen cases were referred to demonstrate the "antecedent criminal history and conduct of the appellant". The order of detention records that a "rowdy sheet" is being maintained at PS Rain Bazar of Hyderabad City and the appellant "could not mend his criminal way of life" and continued to indulge in similar offences after being released on bail. In the counter affidavit filed before the High Court, the detaining authority recorded that these cases were "referred by way of his criminal background... (and) are not relied upon". The detaining authority stated that the cases which were registered against the appellant between 2009 and 2016 "are not at all considered for passing the detention order" and were "referred by way of his criminal background only". This averment is plainly contradictory. The order of detention does, as a matter of fact, refer to the criminal cases which were instituted between 2007 and 2016. In order to overcome the objection that these cases are stale and do not provide a live link with the order of detention, it was contended that they were not relied on but were referred to only to indicate the antecedent background of the detenu. If the pending cases were not considered for passing the order of detention, it defies logic as to why they were

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referred to in the first place in the order of detention. The purpose of the Telangana Offenders Act 1986 is to prevent any person from acting in a manner prejudicial to the maintenance of public order. For this purpose, Section 3 prescribes that the detaining authority must be satisfied that the person to be detained is likely to indulge in illegal activities in the future and act in a manner prejudicial to the maintenance of public order. The satisfaction to be arrived at by the detaining authority must not be based on irrelevant or invalid grounds. It must be arrived at on the basis of relevant material; material which is not stale and has a live link with the satisfaction of the detaining authority. The order of detention may refer to the previous criminal antecedents only if they have a direct nexus or link with the immediate need to detain an individual. If the previous criminal activities of the appellant could indicate his tendency or inclination to act in a manner prejudicial to the maintenance of public order, then it may have a bearing on the subjective satisfaction of the detaining authority. However, in the absence of a clear indication of a causal connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future.

[Emphasis supplied]

10. We have carefully perused the in-camera statements of 'A' and 'B'

witness and we are of the opinion that the alleged activities of the petitioner

stated by said witnesses, at most would pose danger to the law and order and

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certainly not to the public order. If those two in-camera statements of

witnesses are excluded from consideration what remains is C.R. No. 133 of

2020 registered against the petitioner. However, as already observed on the

basis of said C.R. No. 133 of 2020 two proceedings i.e. chapter proceeding

and externment proceedings were initiated against the petitioner, and

petitioner executed an interim bond of Rs. 10,000/- in said chapter

proceedings for keeping good behaviour and he was externed for six months

pursuant to initiation of externment proceedings. Therefore, third time

initiation of detention proceedings against the petitioner on the basis of same

offence i.e. C.R. No. 133 of 2020, would be travesty of justice and would

amount to double jeopardy and article 22 of the Constitution of India would

come into picture. On the basis of solitary offence i.e. C.R. No. 133 of 2020

the impugned order of detention cannot be legally sustained. As already

observed, it is evident from allegations made by witnesses in the in-camera

statement that the solitary assault on one individual/individuals can hardly be

said to disturb the public peace or bring public order in jeopardy so as to bring

the case within the purview of the Act providing preventive detention. The

Hon'ble Supreme Court in the case of Darpan Kumar Sharma (supra), in

paragraph 5 observed thus:-

"5. The basis upon which the petitioner has been detained in the instant case is that he robbed one Kumar at the point of knife a sum

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of Rs. 1000. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound, to some extent, affect the peace prevailing in the locality and it may also affect law and order but the same need not affect maintenance of public order. Under the definitions in the Act, it is stated that in the case of "goonda" the acts prejudicial to public order are "when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect adversely, or are likely to affect adversely, the maintenance of public order". [Section 2(a)(iii)] The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause disturbance of the public order is a question of degree and the extent of the reach of the act upon the society; that a solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so as to bring the case within the purview of the Act providing for preventive detention."

11. In the light of discussion in foregoing paragraphs, in our

considered view, the order of detention cannot be legally sustained and

therefore, deserves to be interfered with. Hence, the following order:-

ORDER

A) The writ petition is allowed.

B) The impugned order of detention dated 05.03.2021 bearing No. 2021/MPDA/DET-05/ CB-79 passed by Respondent No. 1, is quashed and set aside.

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C) Consequently, the petitioner is directed to be released forthwith unless required in any other case.

                  D)     Rule is made absolute in the above terms.

                  E)     The writ petition stands disposed of.

                  F)     Parties to act upon an authenticated copy of this
                         order.



      ( N. J. JAMADAR, J.)                                       (S. S. SHINDE, J.)




Bhagyawant Punde, PA