Sultan Yakub Qureshi vs The Commissioner Of Police
2021 Latest Caselaw 5016 Bom

                Dusane                                   1/14               Cri. WP 610.2021.doc

                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CRIMINAL APPELLATE JURISDICTION
            Digitally
            signed by
            Bhalchandra
Bhalchandra G. Dusane
G. Dusane   Date:
            2021.03.19
                                             WRIT PETITION NO.610 OF 2021
            15:52:11
            +0530




                          Sultan Yakub Qureshi
                          Age : 30 years,
                          R/o : 278, Hajimai Chowk Masjid,
                          Shukrawar Peth, North Kasba,               ....    Petitioner
                          Solapur.                                           (Detenu)

                                      Vs.

                          1. The Commissioner of Police
                             Solapur

                          2. The State of Maharashtra
                             Through Additional Chief Secretary
                             to Government of Maharashtra,
                             Home Department, Mantralaya,
                             Mumbai - 400 026

                          3. The Superintendent,
                             Yerwada Central Prison, Pune

                          4. The Secretary,
                             Advisory Board for M.P.D.A.
                             C/o Home Department,
                             Mantralaya, Mumbai                      ....      Respondents

                                                              ---

                          Ms. Jayashree Tripathi i/by Mr. U.N. Tripathi for Petitioner.
                          Mr. J.P. Yagnik, APP for Respondent-State.
 Dusane                                2/14          Cri. WP 610.2021.doc

                 CORAM : S.S. SHINDE &
                         MANISH PITALE, JJ.

                 JUDGMENT RESERVED ON   : 01.03.2021
                 JUDGMENT PRONOUNCED ON : 19.03.2021


     JUDGMENT (PER MANISH PITALE, J.)

1. Heard respective Counsel. Rule. Rule made returnable

forthwith with the consent of the parties.

2. By this Writ Petition, the Petitioner has challenged

detention order dated 9th November, 2020 passed by the Respondent

No.1, Commissioner of Police, Solapur 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 (hereinafter referred to as "MPDA Act" for

short), whereby the Petitioner has been detained. The detention order

and the grounds of detention were served upon the Petitioner. His

representation stood rejected, as a consequence of which, the Petitioner

is before this Court challenging the detention order on various grounds.

Dusane 3/14 Cri. WP 610.2021.doc

3. The learned counsel, Ms. Jayashree Tripathi appearing for

the Petitioner raised two specific grounds to challenge the detention

order. These are grounds (c) and (f). Ground (c) raised on behalf of

the Petitioner pertains to definition of "dangerous person" under the

provisions of MPDA Act. It is emphasized that only two F.I.Rs. have

been referred to and relied upon in the detention order, which pertain

to offences under the Maharashtra Animal Preservation Act and

Prevention of Cruelty of Animals Act. It is submitted the said offences

do not indicate that the Petitioner has unleashed reign of terror or that

he is a habitual offender, who has become dangerous for the lives and

property of the society. It is further submitted that the recent F.I.R.

registered against the Petitioner under Section 302 of the Indian Penal

Code also does not demonstrate that the activities of the Petitioner can

be said to be prejudicial to public order, because he is merely alleged to

be owner of vehicle which dashed some police personnel. The learned

counsel relied upon judgments of the Hon'ble Supreme Court in the

case of Rashidmiya @ Chhava Ahmedmiya Shaik Vs. Police

Commissioner, Ahmedabad and Another, reported in (1989) 3 Supreme Dusane 4/14 Cri. WP 610.2021.doc

Court Cases, 321 and Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta,

Commissioner of Police and Others, reported in (1995) 3 Supreme

Court Cases, 237.

4. Ground (f) pressed into service on behalf of the Petitioner

raised the issue that two in-camera statements relied upon by the

Respondent No.1, detaining authority, were recorded after a long gap

from the time when the Petitioner was arrested and then released on

anticipatory bail in connection with the FIRs registered against him. It

was submitted that such in-camera statements were recorded only to

fill the gap and show as if the detention order dated 9 th November,

2020 was justified. On this basis, it was claimed that the detention

order stood vitiated. In this regard, the learned counsel appearing for

the Petitioner relied upon judgment of the Hon'ble Supreme Court in

the case of T.A. Abdul Rahman Vs. State of Kerala and Others , reported

in (1989) 4 Supreme Court Cases, 741 and judgments of this Court in

the case of Austin William Luis Pinto Vs. Commissioner of Police ,

Greater Mumbai and Ors, reported in 2005 ALL MR (Cri.) 28 and in

Criminal Writ Petition No.6041 of 2019 in Narendra @ Chotya Dusane 5/14 Cri. WP 610.2021.doc

Mahadev Balkawade Vs. The Commissioner of Police, Pune City and

Others (Judgment dated 9th January, 2020) and in the case of Aalam

Yosuf Shaikh Vs. The Commissioner of Police, Pune and Ors , reported in

2018 ALL MR (Cri.) 1908.

5. On the other hand, Mr. J.P. Yagnik, learned APP submitted

that there was no substance in both grounds sought to be raised on

behalf of the Petitioner. As regards the first ground, it was submitted

that the material on record, particularly the FIRs registered against the

Petitioner and the in-camera statements demonstrated that the

Petitioner was a habitual offender and that he was covered under the

expression "dangerous person" under the MPDA Act. In this regard, the

learned APP relied upon judgment of the Hon'ble Supreme Court in the

case of Phulwari Jagdambaprasad Pathak (Smt.) Vs. R.H. Mendonca

and Others, reported in (2000) 6 Supreme Court Cases, 751. As

regards the alleged delay in recording of in-camera statements, the

learned APP submitted that the crucial aspect in such cases was the

time period that had elapsed between recording of in-camera

statements and issuance of detention order. In the present case, the in-

Dusane 6/14 Cri. WP 610.2021.doc

camera statements were recorded on 16th October, 2020 and 20th

October, 2020, while the detention order was immediately issued on 9 th

November, 2020. Therefore, there was no substance in the contentions

raised on behalf of the Petitioner in this regard. Learned APP relied

upon the judgment of this Court in the case of Deepak Govind

Murudkar Vs. Mr. R.H. Mendonca & Ors , reported in 2001 ALL MR

(Cri.) 357.

6. Heard learned counsel for the rival parties and perused the

material on record, as also the judgments relied upon by the learned

counsel. In matters concerning challenge to detention orders, Courts

have always zealously protected the rights of detenu, particularly the

rights guaranteed under Article 22 of the Constitution of India. Any

lacunae in the process of issuing a detention order are frowned upon

and the detention orders stand set aside on the slightest of defect in the

process of issuance of such detention orders. This is because liberty of

an individual is sought to be curtailed by using the extraordinary power

of issuance of detention orders, which is significantly distinct from the

ordinary process of law. In this backdrop, the specific grounds of

challenge raised on behalf of the Petitioner need to be considered.

Dusane 7/14 Cri. WP 610.2021.doc

7. The first ground of challenge pertains to the question as to

whether the Petitioner answers the description of "dangerous person"

as defined under 2(b-1) of MPDA Act. The requirement of the said

Section is that a person can be categorised as a "dangerous person"

who habitually commits or attempts to commit or abets the commission

of offences punishable under Chapter XVI or Chapter XVII of the Indian

Penal Code or any offences punishable under Chapter V of Arms Act.

The definition also refers to such a person who may be committing such

offences either by himself or as a member of a gang.

8. In the case of Rashidmiya @ Chhava Ahmedmiya Shaik Vs.

Police Commissioner, Ahmedabad and Another (supra), the Hon'ble

Supreme Court considered the definition of "dangerous person" under

the Gujarat Act, which is parimateria to the definition under the MPDA

Act. It was held in the said judgment that for a person to be brought

within the aforesaid definition of dangerous person, it must be shown

that he has habitually committed or attempts to commit the offences

enumerated in the said definition. The said case was concerned with Dusane 8/14 Cri. WP 610.2021.doc

the offences registered under Section 307 of Indian Penal Code and

Section 25 of Arms Act. Yet, the Hon'ble Supreme Court held that the

detenu therein could not be covered under the definition of "dangerous

person" because there was nothing to show that he was habitually

committing such offences. Similarly in the case of Mustakmiya

Jabbarmiya Shaikh Vs. M.M. Mehta, Commissioner of Police and

Others, (supra), the Hon'ble Supreme Court referred to parimateria

definition of dangerous person in the Gujarat Act and held that for a

person to be covered under the said definition, there should be positive

material to indicate that such person is habitually committing or

attempting to commit or abetting the commission of offences specified

in the definition.

9. Applying the said position of law to the facts of the present

case, it becomes evident that the Petitioner cannot be covered under the

definition of "dangerous person" under 2(b-1) of MPDA Act, on the

basis of material brought on record. The two FIRs on which the

Respondent No.1 has placed reliance pertain to offences under

Maharashtra Animal Preservation Act, 1976 and the Maharashtra Dusane 9/14 Cri. WP 610.2021.doc

Keeping & Movement of Cattle in Urban Areas Control Act, 1976, as

also the Prevention of Cruelty of Animals Act. The learned APP has

pointed out that these offences are not the offences that are relied

upon, but they have been referred to only to highlight the previous

criminal history of the Petitioner. The only other F.I.R. on which

reliance is placed, does include offences under Sections 302, 307 and

other such provisions of the Indian Penal Code, alongwith offences

under the above-mentioned Acts.

10. But, apart from the said latest F.I.R. dated 22 nd May, 2020,

showing registration of offences under the Indian Penal Code against

the Petitioner, there is no other instance of registration of offence relied

upon by the Respondent No. 1. Even under the said F.I.R. registered on

22nd May, 2020, wherein offence under Section 302 of the Indian Penal

Code has been registered, the only allegation against the Petitioner is

that he is the owner of the jeep which was driven in a rash manner

causing injury to Police personnel, one of whom died. The material on

record shows that the said jeep was being driven by somebody else and

that the Petitioner was not even present at the place of incident. Apart Dusane 10/14 Cri. WP 610.2021.doc

from this, there is no other offence registered against the Petitioner

under the Indian Penal code. Thus, it becomes clear that the Petitioner

cannot be said to be a habitual offender to be covered under the

definition of dangerous person and the said singular F.IR. registered on

22nd May 2020, could not become the basis for the Petitioner to be

labelled as a dangerous person for issuance of the order of detention.

The judgment in the case Phulwari Pathak (Smt.) Vs. R.H. Mendonca

and Others (supra) relied upon by the learned APP cannot be of any

assistance for defending the detention order, because the allegations

against the Petitioner clearly do not make out a case for holding him to

be a dangerous person as defined under MPDA Act, thereby suggesting

that his detention was necessary, in absence of which public order

would be prejudicially affected.

11. As regards the second ground raised on behalf of the

Petitioner, the material on record shows that the F.I.R. relied upon by

Respondent No.1 was registered on 22 nd May 2020, while the in-camera

statements were admittedly recorded after a gap of four months i.e. on

16th October 2020 and 22nd October 2020. The in-camera statements Dusane 11/14 Cri. WP 610.2021.doc

also referred to alleged incidents that occurred in the second and third

week of August 2020, which was two months prior to recording of in-

camera statements. These dates do show that the in-camera statements

seem to have been recorded after a long gap from registration of

aforesaid F.I.R. on 22nd May 2020 and the alleged incidents of August

2020, in respect of which the witnesses made allegations in the in-

camera statements. These facts indicate that the material was prepared

in the month of October for issuance of detention order on 9 th

November 2020. Even though the gap between recording of in-camera

statements and the issuance of the detention order is not much, the

long time duration between the F.I.R. and recording of in-camera

statements is glaring and this proves to be fatal for the detention order.

12. In this regard, the learned counsel for the Petitioner is

justified in relying upon the judgment of this Court in the case of

Aalam Yosuf Shaikh Vs. The Commissioner of Police, Pune and Ors ,

(supra), wherein this Court in similar facts held that when the incident

alleged in the in-camera statements had occurred much earlier in point

of time, its narration and recording in a delayed manner, indicated that Dusane 12/14 Cri. WP 610.2021.doc

the detention order was not sustainable. This position has been

recognised in the judgment of this Court in the case of Austin William

Luis Pinto Vs. Commissioner of Police , Greater Mumbai and Ors

(supra). On the other hand, the judgment relied upon by the learned

APP in this context in the case of Deepak Govind Murudkar Vs. Mr. R.H.

Mendonca & Ors. (supra) cannot be of any assistance because in the

said case, it was laid down that the delay in issuance of detention order

has to be computed from the date of last in camera statement. But, the

argument in the present case is on a different footing and it is

supported by the aforementioned judgments in favour of the Petitioner.

13. In view of above, we are of the opinion that the Petitioner

has succeeded in demonstrating that the impugned detention order

deserves to be quashed and set aside on both the grounds specifically

raised on behalf of the Petitioner.

14. Accordingly the Writ Petition is allowed.

15. The impugned detention order dated 9 th November, 2020

issued by the Respondent No. 1, Commissioner of Police, Solapur is

quashed is set aside.

Dusane 13/14 Cri. WP 610.2021.doc

16. Consequently, the Petitioner is directed to be released

forthwith, unless required in any other case.

17. In paragraph 10 above, the following observations have

been made :

"Even under the said F.I.R. registered on 22 nd May, 2020, wherein offence under Section 302 of the Indian Penal Code has been registered, the only allegation against the Petitioner is that he is the owner of the jeep which was driven in a rash manner causing injury to Police personnel, one of whom died. The material on record shows that the said jeep was being driven by somebody else and that the Petitioner was not even present at the place of incident. Apart from this, there is no other offence registered against the Petitioner under the Indian Penal code. Thus, it becomes clear that the Petitioner cannot be said to be a habitual offender to be covered under the definition of dangerous person and the said singular F.IR. registered on 22nd May 2020, could not become the basis for the Petitioner to be labelled as a dangerous person for issuance of the order of detention."

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     .           It is made clear that the above quoted observations made in

paragraph 10 are limited to decision of the present petition and that the

Petitioner would not be entitled to rely upon the same in any other

proceedings.

18. Rule is made absolute in above terms.

     ( MANISH PITALE, J.)                                (S.S. SHINDE, J.)