Vasudev Mahadev Surve vs The State Of Maharashtra, Home ...
2021 Latest Caselaw 17535 Bom

                                                   1                                  crwp592.21.odt


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

              CRIMINAL WRIT PETITION NO.592 OF 2021

     Vasudev Mahadev Surve,
     Aged about 50years, Occu. Tractor Driver,
     R/o Hata, Tq. Balapur, Dist. Akola
                                                                     ...PETITIONER

                                   ...V E R S U S...

1. The State of Maharashtra,
   Home Department (Special),
   Through its Section Officer,
   Second Floor, Main Building,
   Mantralaya, Mumbai-32.

2. Collector & District Magistrate,
     Akola. Distt. Akola.                                       ...RESPONDENTS
-------------------------------------------------------------------------------------------
Shri Suyash Agrawal, Advocate for the petitioner.
Shri S.S. Doifode, A.P.P. for respondents.
-------------------------------------------------------------------------------------------
         CORAM:- M.S. SONAK AND PUSHPA V. GANEDIWALA, JJ.

DATE :- 16th DECEMBER, 2021

ORAL JUDGMENT : (M.S. SONAK, J.)

Heard Shri Suyash Agrawal, learned counsel for the

petitioner, and Shri S. S. Doifode learned Additional Public

Prosecutor for the respondents.

2. The challenge in this petition is to the impugned

detention order dated 20.05.2021 and it is confirmation order

dated 28.06.2021 detaining the petitioner preventively for 12

months in terms of Section 12(1) of the Maharashtra Prevention 2 crwp592.21.odt

of Dangerous Activities of Slumlords, Smugglers and Persons,

Video Pirates, Stand Smugglers and Persons engaged in Black

Marketing of Essential Commodities Act, 1981 (for short 'the said

Act').

3. The learned counsel for the petitioner submitted that

several grounds render the impugned detention order vulnerable.

However, to begin with he pointed out that the three cases which

the detaining authority has taken into consideration were cases

under the Maharashtra Prohibition Act, 1949, and in all these

three cases the police authorities did not even deem it appropriate

to arrest the petitioner. He, therefore, submits that after hardly

one or two months from this, there was no question of the

Detaining Authority being satisfied that the petitioner should be

preventively detained under the provisions of said Act. He submits

that even otherwise the grounds of the detention order point out

to routine law and order situations for which the drastic power of

preventive detention could not have been exercised. Shri Suyash

Agrawal learned counsel for the petitioner, therefore, submits the

impugned detention order warrants interference.

4. Shri S.S. Doifode, learned Additional Public

Prosecutor points out that the cumulative effect of all the three 3 crwp592.21.odt

cases has been taken into consideration by the Detaining

Authority. He submits the Detaining Authority, in addition, has

referred to the in-camera statements which suggest the witnesses

are not coming forward to depose against the petitioner. He,

therefore, submits that there is no illegality in the impugned

detention order and this petition may be dismissed.

5. We have considered the rival contentions and also

perused the material on record. According to us, the impugned

detention order is vulnerable in this case and warrants

interference.

6. The impugned detention order in paragraph 5 states

that the same is based on three incidents/offenses and the in-

camera statements. Paragraph 5 of the impugned detention order

reads thus:

"05. Recently you have committed following 03 offences in the contravention

of Maharashtra Prohibition At, 1949. This clearly shows that, you did not have

any respect for the normal law of the land and it also shows your tendency

likely to revert to the similar activities.

This detention is based on said offences and the in-camera statements.

Sr. No.            Police Station C.R. No./Date Under Section Present status
5-1               Ural             85/2021        U/s 65(e)(d) Court Pending
                                   Dt.            (f)         of
                                   12/03/2021     Maharashtra
                                                  Prohibition
                                                  Act, 1949
                                      4                         crwp592.21.odt


5-2            Ural         128/2021     U/s 65 of Police
                            Dt.          Maharashtra Pending
                            28/03/2021   Prohibition
                                         Act, 1949
5-3            Ural         151/2021     U/s 65(f) of Police
                            Dt.          Maharashtra Pending
                            12/04/2021   Prohibition
                                         Act, 1949
                                                                  "

7. The record bears out that in the above three cases

registered under Section 65 of the Maharashtra Prohibition Act,

1949, the authorities did not even deem it appropriate or

necessary to arrest the petitioner. Some material allegedly held by

the petitioner was seized and thereafter, the petitioner was not

even arrested. All these cases were instituted hardly one to two

months before the impugned detention order was issued on

20.05.2021.

8. The circumstance that the police authorities did not

even deem it necessary or appropriate to arrest the petitioner for

the three offenses which are now relied upon to make the

impugned detention order does not appear to have been put

before the detaining authority by the sponsoring authority.

Assuming that this aspect was indeed put up to the detaining

authority, we are satisfied that the detaining authority has not at

all applied its mind to this vital circumstance. Neither the

impugned order nor the return reflects any application of mind to 5 crwp592.21.odt

this vital aspect. This according to us, amounts to non-application

of mind to relevant and vital circumstances and this is sufficient to

vitiate the impugned detention order.

9. Besides, we have also perused the two in-camera

statements relied on by the detaining authority. Apart from the

issue as to whether these statements have been appropriately

verified or not, we are satisfied that these statements, at the

highest, point to a situation that can be addressed under normal

law enforcement provisions. Based on such in-camera statements,

the drastic power of preventive detention could not have been

exercised.

10. There are other grounds raised by learned counsel for

the petitioner in support of the petition. However, now that we are

satisfied that the impugned detention order is vulnerable for the

aforesaid reasons, do not think it necessary to address the other

grounds that have been raised.

11. For the aforesaid reasons, we set aside the impugned

detention order/ confirmation order and direct that the petitioner

be released forthwith unless his detention is necessary for any

other matter.

6 crwp592.21.odt

12. The rule is made absolute in this Petition. There shall be

no order for costs.

(Pushpa V. Ganediwala, J.) (M.S. Sonak, J.)

Wagh

Signed By:SURESH RAOSAHEB WAGH Personal Assistant to the Hon'ble Judge Signing Date:17.12.2021 10:39