Yash S/O. Anil Tekam vs The State Of Mah. Thr Its Secretary ...
2021 Latest Caselaw 15924 Bom

                                    1                            CWP 457.21 (J) (1).odt




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

     CRIMINAL WRIT PETITION NO.457 OF 2021


     Shri Yash s/o Anil Tekam,
     Aged 20 years,
     Occupation-Labour,
     R/o. Plot No.15-A, Dobi Nagar,
     Near Tamilnadu Transport, Waddhamna,
     Police Station, Wadi, Tah. and District-
     Wadi.                                           ..          Petitioner



                     .. Versus ..



     1]       State of Maharashtra, through its
              Secretary, Department of Home,
              Mantralaya, Mumbai-32.

     2]       State of Maharashtra, through
              Police Commissioner, Nagpur City,
              District-Nagpur.

     3]       State of Maharashtra, through
              Police Station Officer, Wadi Police Station,
              Wadi.                                 ..    Respondents



                           ..........
     Mr. A.B. Moon, Advocate for the petitioner,
     Mr. S.S. Doifode, APP for the respondents.
                           ..........


                     Coram:       M.S. Sonak and
                                  Pushpa V. Ganediwala, JJ.

                     Reserved on   : 15.11.2021.
                     Pronounced on : 17.11.2021.




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                                 2                                CWP 457.21 (J) (1).odt



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

Heard the learned counsel for the parties.

2. Rule was issued in this petition on 2.7.2021. The

pleadings are complete and therefore, at the request of the

learned counsel for the parties, the matter was taken up for final

disposal.

3. The challenge in this petition is to the order dated

17.4.2021 issued by the Commissioner of Police, Nagpur City,

Nagpur preventively detaining the petitioner under the

provisions 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 said Act).

4. Mr. Moon, the learned counsel for the petitioner

raised several grounds in support of his petition. He submitted

that the subjective satisfaction for exercising for such drastic

step was not correctly reached. He submitted that the two

instances referred to in the impugned detention order relate to

simple law and order issues and not to public order issues. He

submitted that the instances were stale and the proximity test

was not fulfilled. He submitted that the 'in camera' statements

relied upon by the detaining authority are blissfully vague and

not of any credence. He submitted that in both the instances

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the petitioner was enlarged on bail and the detaining authority

failed to take into consideration the bail orders and the

conditions subject to which the petitioner was enlarged on bail.

He submitted that there was no proper communication of the

grounds since the translations furnished to the petitioner were

patently defective. He submitted that the impugned detention

order violates the constitutional mandate of Article 22 and

therefore deserves to be set aside. Mr. Moon, the learned

counsel for the petitioner, relied on 2021 ALL MR (Cri) 2585

(Ganesh @ Gajaraj Sainath Patil .vs. The State of Maharashtra

and others, 2021 ALL MR (Cri) 1028 (Rakesh Mohan

Gadekar .vs. State of Maharashtra and another) and 2021 ALL

MR (Cri) 1394 (Elizabeth Ranibhai Prabhudas Gaikwad .vs. The

State of Maharashtra and another).

5. Mr. Doifode, the learned APP, defended the impugned

order, based on the grounds referred to in the impugned order

itself as well as the reasoning disclosed in the affidavit filed to

oppose the grounds of reliefs in this petition. He submitted that

the two instances when read with the 'in camera' statements

afforded sufficient cause for issuing the impugned detention

order. He submitted that the adequacy of material cannot be

looked into in such matters. He submitted that the detaining

authority was aware of the petitioner's release on bail, but given

the in-camera statements, the detaining authority has correctly

recorded the satisfaction that the preventive detention was

4 CWP 457.21 (J) (1).odt

necessary despite the bail order. He submits that there was no

defect in the translations and in any case such trivial defects

cannot vitiate the impugned detention order. He submits that

the petitioner was alleged to have hurt the residents in open or

public places and therefore, the issue of public order was indeed

involved in the matter. Mr. Doifode, the learned APP,

distinguished the decision relied upon by Mr. Moon, the learned

counsel for the petitioner, and submitted that this petition

deserves dismissal.

6. The rival contentions fall for our consideration.

7. In this case, the detaining authority has relied upon

the following two instances for passing of the detaining order :

Sr. Police      Under Section              Date        of C.C.     No.     & Remarks
No. Station Cr.                            Offence/FIR    Date
    No.
1   Wadi          324, 506, 34, IPC        29/10/2020     216/2020,            Court
    433/2020                                              28/12/2020           Pending
                                                          C.C.
                                                          No.218/2020
                                                          08/01/2020
2   Wadi          143, 147, 149, 294, 24/01/2021          19/2021              Court
    28/2021       324, 504, 506 IPC                       17/02/2021           Pending
                                                          C.C.
                                                          No.944/2021
                                                          02/03/2021

8. In addition to the aforesaid instances, the detaining

authority has also relied upon two in-camera statements

recorded sometime by the end of February-2021.

5 CWP 457.21 (J) (1).odt

9. There is and there can be no dispute about the

proposition that order of preventive detention under the said Act

can be made inter alia on the ground that the proposed detenue

is a threat to 'public order' as opposed to 'law and order'.

10. The first instance on which the impugned detention

order is based is Crime No.433/2020 registered on 29.10.2020

i.e. almost six months before the issuance of the impugned

detention order dated 17.4.2021. This instance can hardly offer

any live nexus for arriving at subjective satisfaction that the

petitioner needed to be preventively detained under the

provisions of the said Act. Besides, the said instance alleges the

commission of offenses under Sections 324, 506, 34 of the

Indian Penal Code. A perusal of the record concerning this

instance makes it clear that the same has no nexus with the

issue of public order but at the highest relates to the issue of law

and order. This is a case where the petitioner alleged to have

hurt an individual and further hurled abuses at him. Such an

instance even if coupled with the other instance i.e. Crime

No.28/2021 cannot be regarded as some instance having

proximity or live nexus with the issues of public order. Based

upon such an instance, therefore, the impugned detention order

could not have been issued.

11. The second instance is Crime No.28/2021 registered

6 CWP 457.21 (J) (1).odt

on 24.1.2021. This instance alleges the commission of offenses

under Sections 143, 147, 149, 294, 324, 504, 506 of the Indian

Penal Code. Again, from the perusal of the documents in

support of this instance, it is difficult to hold that this instance

has nexus with the issues of public order as opposed to law and

order. However, Mr. Doifode, the learned APP, pointed out that

there is a reference to Sections 143, 147, 149 of IPC in addition

to Sections 294, 324, 504, 506 of the Indian Penal Code and

therefore this instance relates to threat to public order. Even if

we proceed on such a basis, the question is whether such

solitary instance could form the basis for the issuance of the

impugned detention order.

12. Incidentally in the case of Ganesh Patil (supra), the

detention order was passed on a single criminal proceeding

alleging that the detenue was involved in the commission of

offenses under Sections 307, 341, 323, 504, 506, 143, 147, 148,

149 of the Indian Penal Code along with two in-camera

statements. The Division Bench of this Court, after examining

several precedents, concluded that based upon such an

instance, no order of preventive order could have been made

under the provisions of the said Act. The Division Bench relied

upon the decision of the Hon'ble Apex Court in the case of Arun

Ghosh .vs. State of West Bengal, 1970 (1) SCC 98 in which the

distinction between disturbance of public order and simple acts

of law and order came to be explained. Hon'ble Apex Court held

7 CWP 457.21 (J) (1).odt

that these are matters of degree and the detaining authority has

to apply its mind to the same.

13. Mr. Doifode, the learned APP, however, submitted

that the two instances cannot be read in isolation but have to be

considered along with the two 'in camera' statements. The 'in

camera' statements, unfortunately, provide no significant details

and to a great extent are quite vague. The 'in camera'

statements came to be recorded a month after the petitioner

was released on bail in Crime No.28/2021.

14. The 'in-camera statements' speak about some

instances in the third week of February 2021. Again, from the

perusal of the transcript, it does appear that the allegations are

not quite specific and consequently verifiable. In Rakesh

Gadekar (supra), the Division Bench of this Court did not

approve reliance on similar generalized and unverifiable

statements to sustain the order of detention.

15. The order granting bail had imposed several stringent

conditions. If the impugned detention order or rather the

grounds in support of the impugned detention order are

perused, it is apparent that the detaining authority had not

applied its mind to such stringent conditions imposed upon the

petitioner in the order dated 25.1.2021, by which the petitioner

was enlarged on bail. The bail order dated 25.1.2021 had

8 CWP 457.21 (J) (1).odt

directed the petitioner to remain in his residential house during

the lockdown period. The order had also directed the petitioner

to attend the Police Station as and when called by the

Investigating Officer in writing and to co-operate with the

investigating agency. The order was made on 25.1.2021 and the

impugned detention order has been made on 17.4.2021. There

is no allegation that the petitioner had breached the conditions

on which he was enlarged on bail.

16. In the peculiar facts of the present case as well, the

reasoning in Elizabeth Gaikwad (supra) can be said to be

attracted. This is because the detaining authority, in the

present case, does not seem to have applied its mind to the

stringent conditions imposed upon the petitioner for his

enlargement on bail. This was a relevant circumstance and

consequently constituted relevant material. Hence, the

impugned detention order, which ignores such relevant material

stands vitiated.

17. For the aforesaid reasons, we are satisfied that the

impugned detention order warrants interference. The impugned

detention order is therefore quashed and set aside. The

petitioner is directed to be released forthwith, unless his

detention is required in any other matter.

9 CWP 457.21 (J) (1).odt

18. Rule is made absolute. There shall be no order as to

costs.

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