Bombay High Court
Ganesh Alias Gajaraj Sainath ... vs The State Of Maharashtra And Ors on 29 June, 2021
Bench: S.S. Shinde, Abhay Ahuja
1 Judgment-WP 846-21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.846 OF 2021
Ganesh alias Gajaraj Sainath Patil
Age : 25 years, Occ: Nil,
residing at - Urun Islampur, Tal-Walwa,
Dist-Sangli
(At present detained in the Sangli District Prison)
(Through the mother of Petitioner
Pramila Sainath Patil) ... Petitioner
Vs.
1. The State of Maharashtra
(Through the Additional Chief Secretary,
Home Department, having offce at
Mantralaya, Mumbai).
2. The Collector and District
Magistrate, Sangli
having offce at Sangli-Miraj Road,
Vijaynagar, Sangli.
3. The Superintendent
Sangli District Prison, Sangli. ... Respondents
-------
Mr. Satyavrat Joshi i/by Mr. Sumant Deshpande for Petitioner.
Mrs.M.H. Mhatre, APP for the Respondents-State.
-------
CORAM : S.S. SHINDE AND
ABHAY AHUJA, JJ.
RESERVED ON : 3RD JUNE, 2021.
PRONOUNCED ON : 29TH JUNE, 2021.
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JUDGMENT : (PER ABHAY AHUJA, J.)
1. Rule. Rule made returnable forthwith. With the consent
of learned counsel appearing for Petitioner and the Respondents-
State and its offcials, heard fnally.
2. By this Petition, fled under Article 226 of the
Constitution of India, Petitioner is challenging the order of detention
dated 19th January, 2021 (hereinafter called "Detention Order")
issued under 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 (the "MPDA
Act") by Respondent No.2-Collector & District Magistrate, Sangli
(the "Detaining Authority").
3. Pursuant to the Detention Order, by a committal order
dated 19th January, 2021 passed by Respondent No.2, Petitioner has
been detained in the Sangli District Prison.
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4. Petitioner contends that Respondent No.2 has mainly
relied upon the following three grounds based on which the
impugned Detention Order has been passed :-
i) an offence registered against Petitioner at the
Islampur Police Station on 23rd August, 2020
vide C.R. No.636/2020,
ii) two in-camera statements dated 26th November,
2020 and 30th November, 2020 and
iii) the criminal antecedents of the detenu as
contained in Paragraph 6 of the Grounds for
Detention.
5. Petitioner has challenged the Detention Order on the
grounds as mentioned in the Petition. However, Mr. Satyavrat Joshi,
learned counsel for Petitioner presses for the following grounds as
discussed hereunder.
6. The frst ground that is being taken up on behalf of
Petitioner is that the two in-camera statements, which have been
relied upon by the Detaining Authority for passing the Detention
Order, are without recording the subjective satisfaction of the
Detaining Authority. The Detaining Authority has himself not
personally verifed the truthfulness of the two in-camera
Mugdha 3 of 40
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statements, so as to ascertain that witnesses are not willing to come
forward to give evidence in public against Petitioner by reason of
apprehension on their part as regards the safety of their person or
property. He submits that the Grounds for Detention do not mention
that he has ascertained the facts mentioned in the in-camera
statements, either from the person recording it, i.e., from the police
inspector of Islampur Police Station or from the Sub-Divisional
Police Offcer (S.D.P.O.), who has verifed it. He submits that a mere
reproduction of the contents of the in-camera statements do not
show subjective satisfaction as envisaged in law. He also submits
that no effort was made by the Detaining Authority to discuss the
matter, either with the police inspector or the S.D.P.O. to verify the
authenticity of the statements, so as to ascertain that witnesses are
not willing to come forward to give evidence in public against
Petitioner by reason of apprehension on their part as regards the
safety of their person or property. On behalf of Petitioner, the
decision of this Court in the case of Shahjahan w/o. Kalimkhan
Samshadkhan Pathan Vs. State of Maharashtra & Anr., (2016) ALL
MR (Cri) 4233 is being relied upon.
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7. Learned counsel's next argument is that there is a
difference/variance in the Marathi as well as English versions of the
Grounds for Detention, as a result of which Petitioner has not been
able to make effective representation to the Home Department and,
therefore, the Detention Order passed by the Detaining Authority is
bad in law, illegal and deserves to be quashed and set aside.
8. He draws our attention to Paragraph 6 of the Grounds
for Detention dated 19th January, 2021 to submit that the years of
the C.R. numbers mentioned in Marathi are at variance from the
years mentioned in the English version of the said grounds and,
hence, there is material variance in the two orders, thereby making
the said order liable to be set aside. For the sake of completeness,
Paragraph 6 of the Grounds for Detention in Marathi, which is
annexed at Page 23 of the Petition, is reproduced hereunder :-
"6. rqepk HkqrdkGkrhy bfrgkl vls n'kZforks dh] rqEgkl dk;n;kpk tjkgh
vknj ukgh vkf.k dk;n;kl u ?kkcjrk lrr o okjaokj xqUgs dj.;kph rqeph
izo`Rrh vkgs- rqeP;k fo:/n bLykeiqj iksyhl Bk.ks ;sFks
I. bLykeiqj iksyhl Bk.ks xq- j- ua- [email protected] Hkk-na-fo-l- dye 326]
325] 143] 147] 149] 504-
II. bLykeiqj iksyhl Bk.ks xq- j- ua- [email protected] Hkk-na-fo-l- dye 435]
143] 149-
III. bLykeiqj iksyhl Bk.ks xq- j- ua- [email protected] Hkknld 307] 427] 323]
Mugdha 5 of 40
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504] 506] 143] 144] 149 eiksdkd 135-
IV. bLykeiqj iksyhl Bk.ks xq- j- ua- [email protected] Hkknld 447] 143] 144]
147] 149] 506] 427 eiksdkd 135-
V. bLykeiqj iksyhl Bk.ks xq- j- ua- [email protected] Hkk-na-fo-l- dye 452]
504] 506] 34-
VI. bLykeiqj iksyhl Bk.ks xq- j- ua- [email protected] Hkk-na-fo-l-d 307] 143]
147] 148] 149] 504] 506-
VII. bLykeiqj iksyhl Bk.ks xq- j- ua- [email protected] Hkk-na-fo-l- dye 307]
341] 323] 504] 506] 143] 147] 148] 149-
mijksDr izek.ks xqUgs nk[ky vlwu] v- ua- 1 rs 6 gs xqUgs U;k;izfo"B vlwu
v- ua- 7 gk xqUgk riklkoj vkgs- ;ko#u Li"V gksrs dh] rqEgh lkrR;kus
xqUgsxkjh dkjok;kr O;Lr vlwu] R;k lektklkBh vR;ar /kksdknk;d vkgsr-"
Also, Paragraph 6 on Page 17 of the Petition of the
English version of the Grounds for Detention is reproduced as
under:-
"6. Your past history shows that you have no respect for
the law and that you have a tendency to commit
crimes over and over again without fear of the law.
i. Islampur Police Station, C.r.No. 208/2020 u/s 326,
325, 143, 147, 149, 504 of IPC.
ii. Islampur Police Station, C.r.No. 264/2020 u/s 435,
143, 149 of IPC.
iii. Islampur Police Station, C.r.No. 303/2020 u/s 427,
323, 504, 506, 143, 144, 149 of IPC, Bombay Police
Act 135.
iv. Islampur Police Station, C.r.No. 614/2018 u/s 447,
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143, 144, 147, 149, 506, 427 of IPC, Bombay Police
Act 135.
v. Islampur Police Station, C.r.No. 283/2019 u/s 452,
504, 506, 34 of IPC.
vi. Islampur Police Station, C.r.No. 409/2019 u/s 307,
143, 147, 148, 149, 504, 506 of IPC.
vii. Islampur Police Station, C.r.No. 636/2019 u/s 307,
341, 323, 504, 506, 143, 147, 148, 149 of IPC.
This reveals that you are continuously engaged in
criminal activities and they are very dangerous to the
society. Sr.no.1 to 6 are pending before the court of
law and Sr. No. 7 is pending for investigation."
9. He submits that a cursory glance at the two versions
indicates the variance, which is material to the case of Petitioner in
as much as due to this variance, Petitioner was unable to make
effective representation to the Home Department.
10. Learned counsel for Petitioner refers to and relies upon
the decision of this Court in the case of Yogesh Nandu Pujari Vs.
Commissioner of Police, Thane & Ors., 2013 ALL MR (Cri) 1779 to
further his contentions. He quotes Paragraphs 8, 9 and 10 of the
said decision, which reads as under :-
"8. A priori, it would necessarily follow that the injury
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certifcates Exhibit - 'F' collectively, which formed
part of the compilation of documents accompanying
the grounds of detention served on the detenu, were
relied upon by the Detaining Authority to form his
subjective satisfaction. The concomitant of this
fnding is that said documents are vital documents
and will have to be considered as "ground" within
the expansive meaning of expression "grounds of
detention". This legal position, in our opinion, is no
more res integra. The Apex Court in the case of
Khudiram Das vs. the State of West Bengal and Ors,
(1975) 2 SCC 81 had occasion to answer the same.
The Apex Court has expounded the meaning of
expression "grounds". It is held that it means all the
basic facts and "materials which have been taken
into account" by the Detaining Authority in making
the order of detention and on which, therefore, the
order of detention is based. This statement of law is
enunciated on the basis of the reported cases and
Authorities referred to in Paragraph 6 of the
reported decision.
9. In our opinion, therefore, the Petitioner is justifed
in contending that his right to make effective
representation has been abridged within the
meaning of Article 22(5) of the Constitution of
India, as has been expounded by the Apex Court in
catena of decisions. We do not intend to multiply the
Mugdha 8 of 40
9 Judgment-WP 846-21.odt
Authorities cited before us by both the sides, except
to mention that in the fact situation of the present
case, we have no hesitation in taking the view that
the injury certifcates, in the words of the Detaining
Authority himself, were relied upon documents for
forming subjective satisfaction that it is imperative
to detain the Petitioner to prevent him from
indulging in prejudicial activities in future.
Accordingly, this Petition ought to succeed.
10. As aforesaid, the Petitioner has raised other point
articulated in ground 'h' of the Petition. However, we
do not intend to dilate on the said ground, in view of
the favourable fnding recorded on the frst point
urged by the Petitioner. Accordingly, we hold that
continued detention of the Petitioner is illegal and
vitiated. It is hit by the vice of Article 22(5) of the
Constitution of India, of denial of right to make
effective representation at the earliest opportunity."
11. He submits that as in the case of Yogesh Nandu Pujari
(supra), in this case also the difference in the two versions of
Paragraph 6 in the Grounds for Detention clearly suggest that all
the basic facts and material have not been taken into account by the
Detaining Authority in as much as the years of the C.R. numbers
referred to in Paragraph 6 are basic facts, which will have to be
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10 Judgment-WP 846-21.odt
considered within the expression "grounds" of detention and if
these C.R.s are the documents on which Detaining Authority has
relied upon for forming subjective satisfaction that it is imperative
to detain Petitioner to prevent him from indulging in prejudicial
activities in future, then there should not have been any variance in
the years mentioned against the C.R.s in the English and Marathi
versions. He accordingly submits that on this ground alone, the
Petition ought to be quashed and set aside.
12. It is next submitted that in so far as the in-camera
statements are concerned, the same do not mention the place where
the alleged incident occurred. He refers to the portions of the two in-
camera statements, where the place at which the alleged incident
occurred, has been conspicuously kept blank. He submits that
however while passing the Detention Order, the place of alleged
incident is mentioned in the substance of the statement of the two
in-camera statements. He takes us to the frst in-camera statement
dated 26th November, 2020, which is at page 312 of the Petition as
well as the statement dated 30th November, 2020, which is at Page
26 of the Petition to submit as to how the place of incident has been
left blank, whereas in the Detention Order the same is very clearly
Mugdha 10 of 40
11 Judgment-WP 846-21.odt
set out as Islampur. The relevant portion at Page 312 of in-camera
statement dated 26th November, 2020 is reproduced as under :-
"uksOgsacj 2020 efgU;kP;k ifgY;k vkBoM;kr la/;kdkGh 07-00 ok-
ps lqekjkl eh ,dVkp ;sFkqu jksMus ek>s ?kjkdMs tkr
vlrkuk] leksj eyk xtjkt ikVhy ;kus jLR;kr vMoqu]
ek>sdMs iS'kkph ekx.kh dsyh- R;kosGh] eh R;kyk ek>sdMs iSls ukghr]
vls Eg.kkyks vlrk] R;kus ek÷;k iksVkr cqDdh ek#u eyk f'kohxkG
d#u] eyk jLR;koj [kkyh ikMqu rks eyk ykFkkcqD;kauh ek# ykxyk o
Eg.kkyk dh ^rq eyk vksG[kr ukghl dk\ rqyk tkLr pjch vkyh vkgs
dk;\ vls rks Eg.kr vlrkuk eh vksjMwykxysus vktqcktqps yksd rsFks
tek gksow ykxys] R;kosGh] xtjkt ikVhy ;kus R;kps toGhy pkdw dk<qu
rks yksdkaps fn'ksus nk[kor yksdkaps vaxkoj /kkoqu xsY;kus] teysys yksd
lSjkoSjk iGqu xsys R;kosGh] R;kus ek>s 'kVkZps ojhy f[k'kkrhy [email protected]&
#i;s cGtcjhus dk<wu ?ksrys o ne fnyk dh] ^dks.kkyk cksy'khy vxj
iksyhlkr rdzkj dj'khy rj rqyk egkxkr iMsy* v'kh /kedh nsoqu fu?kqu
xsyk- xtjkt ikVhy gk xqUgsxkj vlY;kus o R;kph ng'kr vlY;keqGs eh
lq/nk ?kkc#u ;kckcrph iksfylkar rdzkj dsyh ukgh- vxj] lnjpk izdkj
dks.kkykgh lkaxhryk ukgh- ijarq] vkt jksth eyk iksyhlkauh foÜoklkr
Äsoqu lkaxhrys dh] rqEgkayk dks.kR;kgh dksVkZr tkos ykx.kkj ukgh o rqEgh
tckc fnyk gs dks.kkykgh vkEgh lkax.kkj ukgh- rlsp] rqeps uko dksBsgh
dG.kkj ukgh] vls lkaxqu foÜokl fnY;kus] eh tckc fnyk vkgs- "
Also the relevant portion at Page 26 of the in-camera
statement dated 30th November, 2020 is reproduced as under :-
"vkWDVkscj 2020 efgU;kP;k nql&;k vkBoM;kr lk;adkGh 06-30 ok-
ps lqekjkl eh ek>s eksVj lk;dyo:u dkekfuehRr e/;s xsyks
gksrks- dke laioqu eh ijr eksVjlk;dyo:u bLykeiwjdMs ;sr
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vlrkuk e/;s xtjkt lkbZukFk ikVhy ;kus R;kph eksVjlk;dy
ek>s eksVj lk;dyps vkMoh ek:u] eyk Fkkacoqu ek>sdMs iS'kkph ekx.kh
d: ykxyk- R;kosGh] eh R;kyk ek>sdMs iSls ukghr] vls Eg.kkyks
vlrk] R;kus ek>s dkuk[kkyh pkiM ekjyh o eksVjlk;dyo:u [kkyh
mr:u ek>s 'kVkZph dkWyj idMwu f'kohxkG d# ykxyk o ^eh dks.k vkgs
rqyk ekghr ukgh dk* vls rks vksjMwu Eg.kr vlrkuk] rsFkwu
tk.kkjs&;s.kkjs yksd tek >kys- R;kosGh] xtjkt ikVht ;kus R;kpstoGhy
dks;rk ckgsj dk<qu] rks dks;rk teysy;k yksdkauk nk[koqu] ^dks.k e/;s
vkyk] rj] eh ,dk&,dkyk rksMhu* vls Eg.kkyk- R;kosGh] rsFks teysys
yksd ?kkc:u lSjkoSjk iGqu xsys- rsOgk] R;kus ek>s iWUVps f[k'kkrhy
[email protected]& #i;s cGtcjhus dk<wu ?ksrys o ne fnyk dh] ^dks.kkyk
cksy'khy vxj dksBs rdzkj dj'khy] rj rqyk eh ftoar lksM.kkj ukgh*
vls Eg.kwu] rks R;kps eksVjlk;dyo:u fu?kwu xsyk- xtjkt ikVhy gk
xqUgsxkj vlY;kus o rks [kqu'kh LoHkkokpk vlY;keqGs] ehlq/nk ?kkcjyks
gksrks- R;keqGs ?kjh ;soqu lnjpk izdkj eh dks.kkykgh lkaxhryk ukgh] vxj]
R;kpsfo:/n iksyhl Bk.ksl rdzkj dsysyh ukgh- ijarq] vkt jksth eyk
iksfylkauh foÜoklkr Äsoqu lnj ?kMysY;k izdkjkckcr rqEgkal dksBsgh
m?kMi.ks lk{khlkBh tkos ykx.kkj ukgh o rqEgh fnysyk tckc xqIr Bsoyk
tkbZy] v'kh geh fnY;kus] eh ek>k tckc fnyk vkgs-"
13. He submits that, therefore, material particulars
necessary for making effective representation to the Home
Department have not been provided thereby vitiating the Detention
Order. Moreover, he submits that without the mention of the place
in the in-camera statements, the Detention Order is based on
extraneous material and deserves to be quashed and set aside.
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Learned counsel for Petitioner submits that in the circumstances,
the Petition ought to be allowed in as much as the Detention Order
clearly shows a complete non-application of mind and on this
ground alone the Detention Order deserves to be set aside.
14. It is further submitted that though the Grounds for
Detention refer to the two in-camera statements in Paragraph 4, but
the reference therein is to C.R. No.636 of 2020, registered at
Islampur Police Station. Reliance by the Detaining Authority only on
one solitary C.R. does not constitute or habit and, therefore,
Petitioner cannot be a dangerous person under the MPDA Act.
15. Learned counsel for Petitioner further submits that
there has to be a live link between the past incidents and the
Detention Order, which is absent in this case. He submits that C.R.
relied upon in the Grounds for Detention is of 23rd August, 2020 and
the in-camera statements are of 26 th November, 2020 and 30th
November, 2020, whereas the detention proceedings were initiated
on 7th January, 2021 and the Detention Order was issued on 19 th
January, 2021. Therefore, the C.R. relied upon, has been registered
on 23rd August, 2020, much prior to the Detention Order dated 19 th
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January, 2021. He submits that therefore there is no live or
proximate link between C.R. No.636 of 2020 and the Detention
Order on the basis of which the Detaining Authority has purportedly
recorded his subjective satisfaction. He submits that on this ground
alone Petition ought to be dismissed. He seeks to rely upon the
decision of this Court in the case of Mrunalini Virendra Lonare Vs.
Commissioner of Police and Ors. (Criminal Writ Petition No.245 of
2014) in support of his contention.
16. Learned counsel for Petitioner submits that prior to his
detention, Petitioner was externed. He submits that the detention is
a drastic step. He submits that the detention without trial is a
serious encroachment on the fundamental right of a citizen. He
submits that as held in a recent decision of the Bombay High Court
in the case of Ajay Nagesh Nagmode Vs. The State of Maharashtra
(Writ Petition No.1117 of 2021), if ordinary law can take care, then
there is no need to invoke a special Act like MPDA Act. He therefore
submits that the Detention Order ought to be set aside.
17. On the other hand, learned APP Mrs. Mhatre has
rebutted the contentions raised on behalf of Petitioner stating that
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none of the grounds raised on behalf of Petitioner merit any
consideration. With respect to the in-camera statements, learned
APP submits that frstly the Detaining Authority is not required to
personally verify the in-camera statements. It is submitted that
insofar as the alleged improper verifcation of the in-camera
statements is concerned, the position of law had been recently
reiterated by this Court in its judgment dated 19 th March, 2020
passed in Criminal Writ Petition No. 336 of 2021 (Pravin Ganpat
Kakad Vs. Commissioner of Police, Nashik City, Nashik and Others).
In the said judgment, this Court had relied upon an earlier judgment
of Division Bench of this Court passed in the case of Santosh
Kashinath Kamble Vs. State of Maharashtra and Ors. (judgment
and order dated 3/4 March 2016 in Criminal Writ Petition No. 4510
of 2015). It was laid down categorically in these judgments that no
specifc format of verifcation was provided under the law and that
as long as a Senior Offcer had verifed the in-camera statements
and truthfulness of the same was believed by the Detaining
Authority, no fault could be found with such in-camera statements.
It is the subjective satisfaction of the Detaining Authority. Also, it is
not necessary for such authority to discuss the issue with
subordinates. However, the Detaining Authority has seen the in-
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camera statements, as can be seen from Paragraph 4 of the Grounds
for Detention, has personally satisfed himself. She submits that
there is a subjective satisfaction which has been arrived at by
application of mind.
18. As far as the ground of variance in the Marathi and
English versions of the Grounds for Detention (Page 23 and Page
17) are concerned, learned APP frstly submits that all the years of
the C.R.s are correctly mentioned in the original Marathi version
and nowhere it is stated in Petitioner's statement that he was not
familiar with Marathi; infact, Petitioner also had a working
knowledge of English. She submits that the alleged variance is
simply a typographical error and has no bearing on Petitioner's
right to effective representation. She submits that therefore the
decision in the case of Yogesh Nandu Pujari (supra) would not have
any application to Petitioner's case as the said error does not and
cannot affect Petitioner's ability to make effective representation to
the Home Department.
19. Learned APP further submits that in any event the
Detaining Authority has not relied upon the past history and
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Paragraph 6 of the Grounds for Detention as can be seen from
Paragraph 1 thereof, which states that the grounds are mentioned
in Paragraph 4(b)(i) and 4(b)(ii). Paragraph 1 of the Grounds for
Detention is quoted as under :-
"1. In pursuance of section '8' 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 (Amendment 1996, 2009,
2015, 2017 and 2018) read with Article 22(5) of
the Constitution of India, I hereby communicate to
you the grounds as mentioned in paragraph No.4
below on which a detention order has been made
by me on this day against you under sub section
(1) of section 3 of the said Act. Copies of the
documents placed before me are enclosed, except
the names and identifying particulars of the
witnesses/victims in connection with the grounds
mentioned in paragraph No.4(b)(i) and 4(b)(ii)
below, which cannot be furnished to you in the
public interest and for which I claim privilege."
She submits that therefore this ground deserves to be
rejected.
20. Further she submits that it is true that the place of the
incident was blanked out in the statements provided to the detenu
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18 Judgment-WP 846-21.odt
to protect the witnesses. Moreover, she submits that the originals of
the two in-camera statements clearly mention the place and,
therefore, it cannot be said that there is non-application of mind by
the Detaining Authority or that the Detention Order is based on
extraneous material. She submits that all the necessary particulars
have been provided to Petitioner for making effective
representation and, therefore, Petitioner is raising a frivolous
grounds.
21. Learned APP submits that C.R. No.636 of 2020 does
have a live link with the Detention Order particularly because of the
two in-camera statements of November, 2020. She urges that
Petitioner is a dangerous person as can be seen from the C.R., the in-
camera statements and the criminal antecedents in Paragraph 6 of
the Detention Order and a threat to public order and therefore the
Detention Order ought to be sustained.
22. Learned APP further submits that even otherwise
Petitioner has not availed of the facility contained in Paragraph 14
of the Grounds for Detention, which permits making of
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19 Judgment-WP 846-21.odt
representation for any insuffciency/mistake, which is quoted as
under :-
"14- vki.kkl vls iq<s vlsgh dGfo.;kr ;srs dh] ;k lkscrP;k dkxni=ke/;s
=qVh] derjrk vlY;kl] okpuh; ulY;kl fdaok dkxni=k lanHkkZr
dks.krhgh rdzkj vlY;kl] vki.kkl dkjkx`g v/kh{kdkaps ekQZrhus
ftYgknaMkf/kdkjh ;kauk dsOgkgh vfHkosnu djrk ;sbZy o
ftYgknaMkf/kdkjh ;kapsdMqu vko';d rh dkxni=s iqjfo.;kr ;srhy-"
23. We have heard Mr. Satyavrat Joshi, learned counsel
appearing for Petitioner and Mrs. Mhatre, learned APP for the State
and with their able assistance we have perused the Petition,
documents fled therewith, the Detention Order, Grounds for
Detention as also the record produced before us.
24. With respect to the frst ground regarding there being no
subjective satisfaction of the Detaining Authority with respect to
the two in-camera statements alleging that the Detaining Authority
has not himself personally verifed the truthfulness of the in-camera
statements, so as to ascertain that witnesses are not willing to come
forward to give evidence in public against Petitioner by reason of
apprehension on their part as regards the safety of their person or
property, we have seen the original record. Firstly, we fnd that the
Mugdha 19 of 40
20 Judgment-WP 846-21.odt
Special District Police Offcer has verifed the statements of the two
witnesses, the truthfulness of the incident and the fear expressed
by the witnesses. Further in the Grounds for Detention, the
Detaining Authority i.e. Respondent No.2 has in Paragraph 4
referred to such an exercise carried out by the S.D.P.O. It is
submitted by the Detaining Authority that in view of the verifcation
done by S.D.P.O. about the truthfulness and apprehension expressed
by the in-camera witnesses, he has come to the conclusion that the
statements of the in-camera witnesses were true. A perusal of the
judgments of this Court, on which learned APP has placed reliance
i.e. Pravin Ganpat Kakad (supra) and Santosh Kashinath Kamble
(supra), also shows that there is no specifc format laid down in law
regarding verifcation of the in-camera statements. The law requires
that a superior offcer verifes the correctness of such in-camera
statements and that the Detaining Authority refers to such
verifcation and thereupon records satisfaction about the
truthfulness of the same. Moreover, in Paragraph 8 of the Grounds
for Detention, it has been specifcally stated by the Detaining
Authority that he has carefully gone through the material placed on
record and that he is subjectively satisfed that Petitioner is acting
in a manner prejudicial to the maintenance of public order.
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21 Judgment-WP 846-21.odt
Considering the aforesaid, we are of the opinion that the
requirement of law in this regard stood satisfed and there is no
substance in the said ground raised on behalf of Petitioner. In view
of our above observation that S.D.P.O. has personally verifed the in-
camera statements, the fear expressed by the witnesses, it would
not be necessary for us to deal with the decision of Shahjahan w/o.
Kalimkhan Samshadkhan Pathan (supra) relied on behalf of
Petitioner.
25. With respect to the ground regarding variance in the
Marathi and English version of the Grounds for Detention is
concerned, it is observed that the reference to the year in
Paragraph 6 of the Grounds for Detention in respect of three out of
seven items, the year in the original Marathi version is 2018, but
with respect to the English version, it is 2020. This is simply a
typographical error in the English version and can hardly be said to
be a material variance; much less a variance which could lead to
Petitioner being unable to make effective representation to the
Home Department. When we specifcally asked learned counsel
appearing for Petitioner as to how error in the years in respect of
the three C.R.s mentioned in Paragraph 6 has affected his
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22 Judgment-WP 846-21.odt
opportunity to make effective representation to the Home
Department, he was unable to give any answer. Learned counsel for
Petitioner could not demonstrate how such minor errors had
prevented Petitioner from moving an effective and purposeful
representation. Therefore, there is no substance in the said ground
raised on behalf of Petitioner and the same is rejected. Moreover,
Petitioner could have pointed out these typographical errors to the
Detaining Authority pursuant to Paragraph 14 of the Grounds for
Detention and could have got the same clarifed which he has failed
to do. It would therefore not be necessary for us to deal with the
decision of Yogesh Nandu Pujari (supra) cited by learned counsel for
Petitioner, as the said decision would not apply to this in view of
what we have observed above.
26. Coming to the ground raised by Petitioner regarding
blanking of the place of incident in the in-camera statements
furnished to him, we have taken a look at the original fle and note
that the places blanked out have been mentioned in the two in-
camera statements but only in the copies supplied to Petitioner the
same has been blanked out. Therefore, the contention on behalf of
Petitioner that the Detention Order was based on extraneous
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23 Judgment-WP 846-21.odt
material does not hold any water. The copies of the in-camera
statements supplied to Petitioner contains all material particulars
and of which no grievance has been raised on behalf of Petitioner.
We also agree with the submission made by learned APP, that the
places have been blanked out to protect the witnesses. In view of the
aforesaid, it cannot be said that material particulars necessary for
making effective representation to the Home Department had not
been provided to Petitioner. The submission of non-application of
mind by the Detaining Authority on this ground is also therefore
rejected. In this regard it would be useful to refer to the decision of
this court in the case of Firoz Khan alias Aabu S/o. Ajijkhan Alias
Pappu Pahelwan Vs. State of Maharashtra & Anr., 2011 ALL MR
(Cri) 3481, where it has been held to the effect that once the detenu
has been informed suffcient particulars of the material allegations
against him so as to enable him to make an effective representation
there is no merit in the grievance that certain particulars were left
blank.
27. The next ground raised on behalf of Petitioner pertains
to the reliance placed by the Respondent No.2-Detaining Authority
on only one criminal proceeding bearing C.R. No. 636 of 2020,
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24 Judgment-WP 846-21.odt
registered on 23rd August, 2020 against Petitioner and two in-
camera statements to arrive at the subjective satisfaction and that
there is no live link in the matter. A perusal of the Grounds for
Detention show that although reference to earlier criminal
proceedings registered between the year 2018 and 2020 have been
made in Paragraph 6, but it has been specifcally stated in
Paragraph 1 that the Detention Order is based only on grounds in
Paragraph 4(b)(i) and 4(b)(ii), which refer only to C.R. No.636 of
2020 under Sections 307, 341, 323, 504, 506, 143, 147, 148, 149 of
IPC. Even learned APP has submitted that the subjective
satisfaction of the Detaining Authority is only on the basis of C.R.
No.636 of 2020 and the two in-camera statements and not on the
basis of the criminal antecedents in Paragraph 6 of the Grounds for
Detention stating that the same is only past history. Therefore, it
becomes clear that the Detention Order is based only on the
aforesaid CR No.636 of 2020 dated 23rd August, 2020 read
alongwith the two in-camera statements recorded in November,
2020.
28. The question is whether the aforesaid material i.e. the
single criminal proceeding dated 23 rd August, 2020 for offences
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25 Judgment-WP 846-21.odt
under Sections 307, 341, 323, 504, 506, 143, 147, 148, 149 of the
IPC, alongwith the two in-camera statements, would be suffcient for
the Detaining Authority to reach its conclusion that Petitioner is a
"dangerous person" as defned under Section 2(b-1) of the MPDA
Act and that it was necessary to issue the Detention Order so as to
maintain public order as per Section 3(1) of the MPDA Act.
29. "Dangerous person" as defned in the MPDA Act is
quoted as under :-
"2. Defnitions. In this Act, unless the context
otherwise requires,--
(a) ......
(b) ......
(b-1) "dangerous person" means a person, who
either by himself or as a member or leader of a
gang, habitually commits, or attempts to commit
or abets the commission of any of the offences
punishable under Chapter XVI or Chapter XVII of
the Indian Penal Code or any of the offences
punishable under Chapter V of the Arms Act,
1959. (LIV of 1959;).
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26 Judgment-WP 846-21.odt
Also, Section 3(1) of the MPDA Act is relevant and is
quoted as under :-
"3(1) The State Government may, if satisfed
with respect to any person that with a view to
preventing him from acting in any manner
prejudicial to the maintenance of public order, it
is necessary so to do, make an order directing
that such person be detained."
30. A perusal of the defnition of dangerous person shows
that when a person either individually or as a member of a gang
habitually commits or attempts to commit or abets the commission
of offences punishable under Chapters XVI and XVII of the Indian
Penal Code or any offences punishable under Chapter V of the Arms
Act, he would stand covered under the said defnition. Further
under Section 3(1) of the MPDA Act may with a view to preventing
a person from acting in any manner prejudicial to maintenance of
public order issue a Detention Order against that person.
31. It is therefore signifcant that such a person should be
habitually committing such offences, which disturbs public order.
Detention without any such opportunity is a drastic step and has to
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27 Judgment-WP 846-21.odt
be justifed on the basis of material that can demonstrate that the
detenu is a dangerous person and that he has been habitually
indulging in such activities, which results in disturbance of public
order. Section 2(b-1)of the MPDA Act defnes a dangerous person
which is quoted as above in Paragraph 29. In our view, a solitary act
as referred to in a lone C.R. No.636 of 2020 would not constitute a
habit, particularly observing that admittedly and statedly the cases
referred to in Paragraph 6 of the Grounds for Detention are only
past history, and not being the grounds as contained in Paragraph 4
of the said Grounds for Detention. In this context, a decision of our
Court in the case of Jay @ Nunya Rajesh Bhosale Vs. The
Commissioner of Police, Pune & Ors. cited in 2015 ALL MR (Cri)
4437 is relevant, where also this Court, while dealing with a similar
situation of solitary act, observed as under :-
"10. Thus, a perusal of the Section 2(b-1) would show
that if the person singly or as a member or a leader
of a gang "habitually commits" or attempts to
commit or abets the commission of any offence
punishable under Chapter XVI or Chapter XVII of
the IPC or Chapter V of the Arms Act, he would be a
dangerous person in terms of Section 2(b-1) of the
MPDA Act. Just as a single swallow does not make
a summer a solitary act, does not constitute a
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28 Judgment-WP 846-21.odt
habit. In the instant case, after the three incamera
statements are excluded from consideration as the
verifcation of all the incamera statements by the
ACP was not furnished to the detenu and CR No.
3088 of 2015 cannot be taken into consideration,
for the reasons stated in paragraph 7 above by us,
that leaves us to only with CR No. 91 of 2015. We
shall now proceed to examine whether on the basis
of this CR, the detenu can be held to be a dangerous
person so as to sustain the order of detention.
11. On applying 5-A of MPDA Act, only CR No. 91 of
2015 remains. In such case it can be held that the
detention order is issued only on the basis of CR No.
91 of 2015. This solitary act would not constitute a
"habit". In our view on the basis of the said solitary
CR No. 91 of 2015 it cannot be said that the
petitioner - detenu "habitually commits" or
attempts to commit or abets the commission of any
of the offences mentioned in Section 2(b-1) of the
MPDA Act and since the detenu has been detained
as he is a "dangerous person", the impugned
detention order would not be sustainable in law."
Therefore, in our view Petitioner could not be defned to
be a dangerous person and detained without a trial.
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29 Judgment-WP 846-21.odt
32. Further, in the case of Arun Ghosh Vs. State of West
Bengal, 1970 (1) SCC 98, the Supreme Court had the occasion to
deal with Section 3(2) of the MPDA Act to consider the difference
between public order and law and order. In that case, it was held
that disturbance of public order is to be distinguished from acts
directed against individuals which do not disturb the society to the
extent of causing a general disturbance of public tranquility. It was
held therein that it is the degree of disturbance and its effect upon
the life of the community in a locality which determines whether
the disturbance amounts only to a breach of law and order. The
question whether a man has only committed a breach of law and
order or has acted in a manner likely to cause a disturbance of the
public order is a question of degree and the extent of the reach of
the act upon the society. Paragraph 3 of the said decision is
relevant, which is quoted as under :-
"3. The submission of the counsel is that these are
stray acts directed against individuals and are not
subversive of public order and therefore the
detention on the ostensible ground of preventing
him from acting in a manner prejudicial to public
order was not justifed. In support of this
submission reference is made to three cases of this
Court: Dr. Ram Manohar Lohia v. State of Bihar;
Pushkar Mukherjee and Others v. State of West
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30 Judgment-WP 846-21.odt
Bengal and Shyamal Chakraborty v. The
Commissioner of Police, Calcutta and Another. In
Dr. Ram Manohar Lohia's case this Court pointed
out the difference between maintenance of law and
order and its disturbance and the maintenance of
public order and its disturbance. Public order was
said to embrace more of the community than law
and order. Public order is the even tempo of the
life of the community taking the country as a
whole or even a specifed locality. Disturbance of
public order is to be distinguished from acts
directed against individuals which do not disturb
the society to the extent of causing a general
disturbance of public tranquility. It is the degree of
disturbance and its affect upon the life of the
community in a locality which determines
whether the disturbance amounts only to a breach
of law and order. Take for instance, a man stabs
another. People may be shocked and even
disturbed, but the life of the community keeps
moving at an even tempo, however much one may
dislike the act. Take another case of a town where
there is communal tension. A man stabs a member
of the other community. This is an act of a very
different sort. Its implications are deeper and it
affects the even tempo of life and public order is
jeopardized because the repercussions of the act
embrace large Sections of the community and
incite them to make further breaches of the law
and order and to subvert the public order. An act
by itself is not determinant of its own gravity. In
its quality it may not differ from another but in its
potentiality it may be very different. Take the case
of assault on girls. A guest at a hotel may kiss or
make advances to half a dozen chamber maids. He
may annoy them and also the management but he
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31 Judgment-WP 846-21.odt
does not cause disturbance of public order. He may
even have a fracas with the friends of one of the
girls but even then it would be a case of breach of
law and order only. Take another case of a man
who molests women in lonely places. As a result of
his activities girls going to colleges and schools are
in constant danger and fear. Women going for their
ordinary business are afraid of being waylaid and
assaulted. The activity of this man in its essential
quality is not different from the act of the other
man but in its potentiality and in its affect upon
the public tranquility there is a vast difference.
The act of the man who molests the girls in lonely
places causes a disturbance in the even tempo of
living which is the frst requirement of public
order. He disturbs the society and the community.
His act makes all the women apprehensive of their
honour and he can be said to be causing
disturbance of public order and not merely
committing individual actions which may be taken
note of by the criminal prosecution agencies. It
means therefore that the question whether a man
has only committed a breach of law and order or
has acted in a manner likely to cause a
disturbance of the public order is a question of
degree and the extent of the reach of the act upon
the society. The French distinguish law and order
and public order by designating the latter as order
publique. The latter expression has been
recognised as meaning something more than
ordinary maintenance of law and order. Justice
Ramaswami in Writ Petition No. 179 of 1968 drew
a line of demarcation between the serious and
aggravated forms of breaches of public order
which affect the community or endanger the
public interest at large from minor breaches of
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32 Judgment-WP 846-21.odt
peace which do not affect the public at large. He
drew an analogy between public and private
crimes. The analogy is useful but not to be pushed
too far. A large number of acts directed against
persons or individuals may total up into a breach
of public order. In Dr. Ram Manohar Lohia's case
examples were given by Sarkar, and Hidayatullah,
JJ. They show how similar acts in different
contexts affect differently law and order on the
one hand and public order on the other. It is
always a question of degree of the harm and its
effect upon the community. The question to ask is :
Does it lead to disturbance of the current of life of
the community so as to amount to a disturbance of
the public order or does it affect merely an
individual leaving the tranquility of the society
undisturbed? This question has to be faced in
every case on facts. There is no formula by which
one case can be distinguished from another."
33. Also, the Hon'ble Supreme Court in the case of T. Devaki
Vs. Government of Tamil Nadu and others, reported in (1990) 2 SCC
456 held that there is a basic difference between 'Law and order'
and 'public order'. The question whether a man has committed only
a breach of law and order or has acted in the manner prejudicial to
public order, is a question of degree and extent of the reach of the
act upon the society. It was held that a solitary assault on one
individual can hardly be said to disturb public peace or place public
order in jeopardy so much as to bring the case within the purview of
Mugdha 32 of 40
33 Judgment-WP 846-21.odt
preventive detention law. Such a solitary incident can only raise a
law and order problem and no more. As can be seen from Paragraph
3 of the Grounds for Detention, C.R. No.636 of 2020 has been
registered on 23rd August, 2020, under Sections 307, 341, 323, 504,
506, 143, 147, 148, 149 of IPC, where Petitioner, who is stated to be
in friendship with an accused, against whom complainant had fled a
complaint for assault with weapons and for beating him, pursuant to
which Petitioner was arrested on 24th August, 2020 in connection
with the investigation, remanded to police custody on 28 th August,
2020 and released on bail on 23 rd September, 2020. This, in our
view, appears to be one solitary assault on one individual, which can
hardly be said to disturb public peace or public order, so as to bring
Petitioner within the purview of preventive detention law. This case,
therefore, prima facie appears to be a case of law and order rather
than a public order. Applying the abovesaid position of law to the
facts of the present case shows that the contention raised on behalf
of Petitioner appears to have merit.
34. In our view, therefore, on a plain reading of the quoted
Sections as well as the decisions on the cases of Arun Ghosh (supra)
and T. Devaki (supra) it could not be said that Petitioner is a
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34 Judgment-WP 846-21.odt
dangerous person, who has been habitually indulging in such
activities resulting in disturbance of public order.
35. In the present case, the Respondent No. 2-Detaining
Authority admittedly has specifcally relied upon only the aforesaid
C.R. No.636 of 2020 dated 23rd August, 2020 and the two in-camera
statements to issue the Detention Order. A perusal of the contents of
the in-camera statements as quoted in the Detention Order, would
show that the witnesses have referred to incidents that occurred in
October 2020 and November 2020. In such a situation, when the
Detaining Authority itself has placed reliance on a singular criminal
proceeding and two in-camera statements, it becomes crucial that
there is a live link established between the criminal proceeding
relied upon and the Detention Order issued by the Detaining
Authority.
36. The lone C.R. No.636 of 2020 was registered under
Sections 307, 341, 323, 504, 506, 143, 147, 148, 149 of IPC on 23 rd
August, 2020. While the frst in-camera statement is of 26 th
November, 2020 and the second in-camera statement is of 30 th
November, 2020 and the Detention Order has been issued on 19 th
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35 Judgment-WP 846-21.odt
January, 2021. There is a gap of about fve months between the date
of the C.R. and the Detention Order and the two statements in the
month of November appear to be recorded only to fll in this gap.
Keeping in mind this gap between the registration of one C.R. and
the Detention Order, we are of the view that there is hardly a
proximate or live link between the material on which the authority
has placed reliance and the Detention Order. Petitioner's reliance
upon the decisions in the cases of Mrunalini Virendra Lonare
(supra) as well as Ajay Nagesh Nagmode (supra) are also apt.
37. Further, in this context, reference to a decision of 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] is also relevant, where the Hon'ble Supreme Court
has considered the concept of live and proximate link in the context
of the subjective satisfaction to be arrieved at by the Detaining
Authority. Paragraph 15 of the said decision authored by Hon'ble
Justice Dr. Dhananjaya Y Chandrachud is quoted as under :-
"15. 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
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36 Judgment-WP 846-21.odt
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 affdavit fled 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 defes logic as to
why they were referred to in the frst 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
satisfed 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
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37 Judgment-WP 846-21.odt
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."
38. It is important to note that in the facts of the present
case also there is a reference to seven cases as a matter of
background history only whereas the Detention Order is based on
one solitary crime registered and two in-camera statements. The
Grounds for Detention do refer to those cases but do not consider
them a ground for issuing the Detention Order which is based on a
solitary C.R. No. 636 of 2020. In fact as recorded earlier learned
APP has also clearly stated that the past incidents referred to in
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38 Judgment-WP 846-21.odt
Paragraph 6 of the Grounds for Detention are not the ground for the
subjective satisfaction arrived at by the Detaining Authority. As per
the above decision of the Hon'ble Supreme Court, 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 and a
proximate 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/link with the immediate need to
detain and individual. Admittedly, the seven cases in the previous
history referred to in Paragraph 6 of the Grounds for Detention
neither appear to have any direct nexus nor a live link with the
immediate need to detain the Petitioner under the MPDA Act. Even
the Detention Order, as we have observed earlier, does not have a
live or proximate link to the lone C.R. registered. As held in the
abovereferred decision of the Supreme Court, 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. Also going by the aforesaid decision, such material will
have no bearing on the probability of the detenu engaging in
prejudicial activities in the future.
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39 Judgment-WP 846-21.odt
39. The nature of offence registered against Petitioner can
be taken care of by the process of ordinary law, where Petitioner
would get an opportunity of dealing with the evidence at the trial.
40. In the circumstances, on the basis of the material placed
on record and the specifc criminal proceeding, as also in-camera
statements relied upon by the Detaining Authority and the
discussion as above, we are not convinced that such an
extraordinary step of issuance of Detention Order was justifed. The
nature of such Detention Order is drastic and extraordinary
because it results in detaining a person without recourse to the
process of trial under ordinary law. Detention without trial is a
serious encroachment on the fundamental right of a citizen. It has
to be based on proper subjective satisfaction recorded on the basis
of cogent material indicating that unless such a drastic step is
taken, that the person is a dangerous person, there would be
disturbance to public order. In view of what we have observed above
and on the basis of the material placed before us, we are not
satisfed that such a drastic action of issuing the impugned
Detention Order was justifed in the facts and circumstances of the
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40 Judgment-WP 846-21.odt
present case. As far as cases under Indian Penal Code are
concerned, law may take its own course. Therefore, we are inclined
to allow the Writ Petition.
41. Accordingly, the Writ Petition is allowed.
42. The impugned Detention Order dated 19th January, 2021
issued by the Respondent No.2, The Collector and District
Magistrate, Sangli, is quashed and set aside.
43. Consequently, Petitioner is directed to be released
forthwith unless required in any other case.
44. Rule is made absolute in the above terms.
45. The record produced before us is returned herewith.
(ABHAY AHUJA, J.) (S.S. SHINDE, J.)
Mugdha 40 of 40
