Bombay High Court
Shamim Makhmood Khan vs Amitabh Gupta And Ors on 8 March, 2021
Bench: S.S. Shinde, Manish Pitale
1/10 Judgment WP-108-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.108 OF 2021
Shamim Makhmood Khan ]
Resident of A.D.Camp Chowk, 1140, ]
in front of Aaina Majjid, ]
Bhavani Peth, Pune ]
] .. Petitioner
VERSUS
1. Shri Amitabh Gupta ]
Commissioner of Police, ]
Pune City ]
]
2. The State of Maharashtra ]
]
3. The Superintendent of Jail, ]
Yerwada Central Prison, Pune ]
]
4. The Secretary, ]
Advisory Board (MPDA), ]
Mantralaya, Mumbai ] .. Respondents
Ms.Misbaah Solkar for the Petitioner.
Mrs.M.H.Mhatre, APP for the Respondents/State.
CORAM : S.S.SHINDE &
MANISH PITALE, JJ.
RESERVED ON : 24th FEBRUARY, 2021
PRONOUNCED ON : 08th MARCH, 2021
JUDGMENT (PER MANISH PITALE, J.)
1. Rule. Rule made returnable forthwith. With the consent of
learned counsel appearing for the parties, heard finally.
M.M.Salgaonkar
2/10 Judgment WP-108-21.doc
2. This writ petition is filed by mother of the person, who is
detained as per detention order dated 10 th October, 2020, issued by
respondent No.1 under Section 3(2) 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 (for
short, "the MPDA Act"). According to respondent No.1, the said
order was necessitated to prevent the detenu from acting in any
manner prejudicial to the maintenance of the public order. While
issuing the said detention order, in the grounds of detention,
respondent No.1 referred to the offences registered against the
detenu as also two in-camera statements.
3. Ms.Solkar, learned counsel appearing for the petitioner, in
support of challenge raised on behalf of the detenu, submitted that
the impugned detention order deserved to be set aside on the
grounds that respondent No.1 had placed reliance on the extraneous
material, there was delay in passing the detention order when
compared with the dates of the alleged offences, there was nothing
to show that public order would be disturbed by the detenu and that
the detenu was already in custody when the detention order was
issued. Learned counsel for the petitioner relied upon ground (A) of
the petition in support of the contention pertaining to extraneous
material relied upon by respondent No.1. She relied upon ground
(B) in support of her contention pertaining to the question of public
order. Reliance was placed on grounds (C) and (D) in support of the
contention regarding delay in passing the detention order and
absence of live link between the alleged offence and the issuance of
the detention order. She relied upon ground (K) in respect of in-
M.M.Salgaonkar
3/10 Judgment WP-108-21.doc
camera statements being relevant to the question of disturbance of
public order. Learned counsel for the petitioner relied upon
judgment of this Court in case of Pawan Tukaram Kudale Vs. The
Commissioner of Police1 and the judgment in the case of Pradeep
Nilkanth Paturkar Vs. S.Ramamurthi & Ors.2
4. On the other hand, Mrs.Mhatre, learned APP appearing on
behalf of the respondents, submitted that there was no substance in
the contentions raised on behalf of the detenu. It was submitted
that the grounds of detention clearly distinguish between the
previous offences that were merely referred to as the background in
which the detention order was passed and the specific offences,
which were relied upon for passing the detention order. On this
basis, it was claimed that the ground pertaining to extraneous
material raised on behalf of the detenu was, without any substance.
As regards the question of public order, learned APP relied upon the
judgment of the Hon'ble Supreme Court in the case of Amanulla
Khan Kudeatalla Khan Pathan Vs. State of Gujarat & Ors. 3 to contend
that the detention order was passed on correct appreciation of law.
On the question of the detenu already being in custody, it was
submitted that the same could not be the reason for preventing
respondent No.1 from issuing the detention order, which was
otherwise justified in the facts and circumstances of the case. As
regards absence of live link and alleged delay in issuance of the
detention order, learned APP invited attention of this Court to the
reply filed by respondent No.1, particularly paragraph 12 thereof to
show that there was no delay and further that the in-camera
1 2019 ALL MR (Cri) 503
2 1993 Supp (2) SCC 61
3 (1999) 5 SCC 613
M.M.Salgaonkar
4/10 Judgment WP-108-21.doc
statements indicated the necessity to issue the detention order.
5. It is settled position of law that detention orders are to be
scrutinized with utmost care because the freedom of an individual is
curtailed otherwise than under usual process of law. The Courts
have been zealous in protecting the liberty of the individual while
scrutinizing the correctness of detention orders and much emphasis
is placed on the requirement of following the settled law while
issuing such detention orders by the detaining authority.
6. In the present case, according to the petitioner, respondent
No.1-detaining authority, took into consideration extraneous
material while issuing the detention order. In this regard, attention
of this Court was invited to paragraph 3.1 of the detention order
wherein offences registered against the detenu between the year
2016 to 2019 were stated. Learned counsel appearing for the
petitioner submitted that these very offences were the basis of
earlier detention order passed against the detenu. It was submitted
that earlier detention order had been already set aside by the
Division Bench of this Court by its judgment and order dated 21 st
February, 2020 passed in Criminal Writ Petition No.07 of 2020. By
relying upon the said earlier order of this Court, as also the
judgment of the Division Bench of this Court in the case of Pawan
Tukaram Kudale (supra), it was submitted that the impugned order
deserved to be set aside as extraneous material was relied upon.
7. But, a perusal of the detention order would show that the
detaining authority specifically stated in paragraph 3.1 itself, after
referring to the aforesaid offences registered against the detenu, that
M.M.Salgaonkar
5/10 Judgment WP-108-21.doc
the detention order was not based on the said offences and then in
paragraph 4 of the detention order, it was specifically sated that the
detaining authority was relying upon the offences recently registered
against the detenu in May and June, 2020. Considering the specific
statements made in the detention order, we are of the opinion that
the aforesaid contention raised on behalf of the detenu cannot be
accepted.
8. As regards delay in issuance of the detention order and there
being absence of live link, it needs to be appreciated as to which
offences formed the basis of issuance of the detention order and the
date when the detention order was issued. According to learned
counsel appearing on behalf of the petitioner, while the offences in
question were registered on 27th May, 2020 and 27th June, 2020, the
detention order was issued on 10th October, 2020. Reference to the
in-camera statements also shows that although the statements of the
witnesses were recorded on 2nd September, 2020, the instances
described by the said witnesses pertained to May, 2020 and June,
2020.
9. In response, it was stated on behalf of respondent No.1 that
there was indeed a live link between the said instances, statements
of the in-camera witnesses and the detention order, because the in-
camera statements were recorded on 2nd September, 2020
whereafter the file was forwarded to D.C.P. (Zone I), who in turn
endorsed the file on 11th September, 2020. The entire proposal
alongwith compilation was placed before the Additional
Commissioner of Police Western Region on 16th September, 2020.
The DCP Crime endorsed the file on 24 th September, 2020. It is then
M.M.Salgaonkar
6/10 Judgment WP-108-21.doc
stated on behalf of respondent No.1 in the reply that during the said
period, two more proposals pertaining to other detenus were placed
before him and that eventually, the detention order was issued on
10th October, 2020. On this basis, it was claimed that there was a
live link discernable from the material on record and that there was
no delay in issuing the detention order.
10. We have perused the material on record and we find that the
dates of registration of offences on which reliance is placed in the
detention order are 27th May, 2020 for C.R.No.701 of 2020,
pertaining to offences punishable under Sections 324, 323, 504 read
with Section 34 of the Indian Penal Code ("IPC") and 27th June,
2020 for C.R.No.608 of 2020, pertaining to the offences punishable
under Sections 353, 332, 352, 504, 506 read with Section 34 of the
IPC and Section 4/25 of the Arms Act as also Section 3 of the
Epidemic Diseases Act, 1897. These offences were registered as far
back as in May and June, 2020. The incidents in respect of which
the in-camera statements were recorded, pertained to the second
week of June and 21st June, 2020, which are also before four months
prior to the issuance of the detention order. In this backdrop, even if
these in-camera statements of the witnesses were recorded on 2 nd
September, 2020, that in itself would not justify the delay in
issuance of the detention order, which was issued on 10 th October,
2020.
11. Learned counsel appearing for the petitioner is, therefore,
justified in contending that the live link had snapped and there was
delay in issuance of the detention order. In this regard, learned
counsel appearing for petitioner, is justified in relying upon the
M.M.Salgaonkar
7/10 Judgment WP-108-21.doc
judgment of the Hon'ble Supreme Court in the case of Pradeep
Nilkanth Paturkar (supra) wherein it was held as follows :
"13. Coming to the case on hand, the detention order
was passed after 5 months and 8 days from the date of the
registration of the last case and more than 4 months from
submission of the proposal. What disturbs our mind is that
the statements from the witnesses A to E were obtained only
after the detenu became successful in getting bail in all the
prohibition cases registered against him. That too in the later
part of March, 1991. These statements are very much
referred to in the grounds of detention and relied upon by the
detaining authority along with the registration of the cases
under the Act.
14. Under the above circumstances, taking into
consideration of the unexplained delay whether short or long
especially when the appellant has taken a specific plea of
delay, we are constrained to quash the detention order.
Accordingly we allow the appeal, set aside the judgment of
the High Court and quash the impugned detention order. The
detenu is directed to be set at liberty forthwith."
12. Applying the said position of law to the facts of the present
case, we are inclined to accept the contention raised on behalf of the
detenu. In this context reliance placed by learned APP on the
judgment of this Court in the case of Omkar Chandrashekhar Kapare
Vs. The Commissioner of Police, Pune (Judgment & Order dated 28th
January, 2019 passed in Criminal Writ Petition No.4456 of 2018), is
not justified because the said case is distinguishable on facts, on
question of delay in issuance of the detention order. In the said case,
on facts, this Court found that there was proper explanation
furnished on behalf of the detaining authority and therefore, it could
not be said that there was delay in issuance of the detention order.
M.M.Salgaonkar
8/10 Judgment WP-108-21.doc
13. As regards the question of in-camera statements of the
witnesses demonstrating disturbance of public order, which would
justify the issuance of the detention order, we are of the opinion
that there is a clear distinction between "law and order" and "public
order". The two offences registered against the detenu in May and
June, 2020 indicate offences against individuals. The in-camera
statements of the witnesses pertaining to the alleged incidents in the
second week of June and 21st June, 2020, were recorded much later
i.e. on 2nd September, 2020 and the said statements also do not
justify reaching a conclusion that there was disturbance of public
order.
14. In order to reach a conclusion that there was every likelihood
of disturbance of public order, if detention order is not issued against
the detenu, specific material ought to have been brought on record.
On the basis of alleged offences against individuals, it would not be
possible to reach a conclusion that if the detenu was not kept behind
bars, it would be prejudicial to the maintenance of public order.
Even in the case of Amanulla Khan Kudeatalla Khan Pathan (supra)
on which reliance is placed by the learned APP, the distinction
between "law and order" and "public order" has been clearly stated.
It has been categorically held that degree of disturbance and its
impact upon the even tempo of life of the society or the people of a
locality determines whether the disturbance caused by such activity
amounts only to a breach of "law and order" or it amounts to breach
of "public order". Applying the test evolved in the aforesaid
judgment on which the learned APP has placed reliance, we are of
the opinion that in the present case, respondent No.1 was not
justified in issuing the detention order against the detenu.
M.M.Salgaonkar
9/10 Judgment WP-108-21.doc
15. As regards the contention raised on behalf of the detenu that
since he was in custody when the detention order was issued, the
order stood vitiated, we are of the opinion that merely because a
person is in custody, it cannot be said that the detention order
cannot be issued against such a person. The requirement of law is
that the detaining authority has to be aware of the fact that the
detenu is already in custody and despite that fact, the detaining
authority is of the opinion that the order of detention needs to be
issued against such a person. In paragraph 8 of the detention order,
the detaining authority has specifically referred to the fact that bail
application of the detenu is pending and there is likelihood that he
would secure bail. It is thereupon that the detaining authority has
referred to the tendencies and inclinations of the detenu,
necessitating issuance of the detention order. Therefore, it becomes
clear that the said contention raised on behalf of the detenu cannot
be accepted.
16. But, since, we have already held that in the present case, the
live link stood snapped as the offences on the basis of which, the
detention order was issued were registered in May and June, 2020
and the alleged incidents referred to by the witnesses also took place
in June, 2020, thereby showing delay in issuance of the detention
order, we are inclined to allow the present writ petition.
Additionally, we have found that the detention order is not
sustainable on the question of disturbance of public order also.
17. In view of the above, the writ petition is allowed and the
impugned detention order dated 10th October, 2020 is quashed and
set aside. Accordingly, the detenu shall be released forthwith, unless
M.M.Salgaonkar
10/10 Judgment WP-108-21.doc
required in any other case.
18. Rule is made absolute in the above terms.
19. The writ petition stands disposed of accordingly.
(MANISH PITALE, J.) (S.S.SHINDE, J.)
M.M.Salgaonkar
