Hrithik S/O Sudhir Borkar vs State Of Mah. Thr. Its Dep. Of Home ...
2022 Latest Caselaw 7498 Bom

                                     1                                901 criwp10.22 (J).odt


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


             CRIMINAL WRIT PETITION NO. 10 OF 2022


PETITIONER                 : Hrithik S/o Sudhir Borkar,
                             Aged about 20 years, Occu. Labourer,
                             R/o Mukundwadi, Akot Fail, Akola,
                             District Akola.

                                           VERSUS

RESPONDENTS                 : 1] State of Maharashtra,
                                 Through its Department of Home,
                                 Mantralalya, Mumbai.

                              2] District Magistrate,
                                 Akola, Dist. Akola.

                              3] Superintendent of Central Jail,
                                 Nashik, Dist. Nashik.

----------------------------------------------------------------------------------------------
          Mr. A. M. Tirukh, Advocate for the petitioner
          Mr. S. S. Doifode, A.P.P. for the respondents
----------------------------------------------------------------------------------------------

            CORAM : MANISH PITALE and G. A. SANAP, JJ.

DATE : AUGUST 02, 2022.

ORAL JUDGMENT (PER : Manish Pitale, J.)

1. Rule. Rule is made returnable forthwith. Heard finally by

the consent of the rival parties.

2 901 criwp10.22 (J).odt

2. By this petition, the petitioner has challenged the order

dated 21.09.2021, passed by the respondent no.2 - District Magistrate,

Akola 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 "the MPDI Act" for short), detaining the petitioner for a period of

one year, as also the order dated 08.11.2021, passed by the respondent

no.1 - State of Maharashtra, confirming the said order of detention

passed by respondent no.2.

3. Mr. A.M. Tirukh, learned counsel appearing for the

petitioner (detenue) raised various grounds of challenge while seeking

quashment of these two orders. Firstly, it was submitted that the copies

of relevant documents were not placed before the Detaining Authority,

thereby indicating that subjective satisfaction of the Detaining

Authority while passing the order dated 21.09.2021 stood vitiated.

Under this ground, various shades have been highlighted by the

learned counsel appearing for the petitioner to the effect that in the 3 901 criwp10.22 (J).odt

first place, entire copy of the order granting bail to the petitioner in

respect of a particular offence, upon which the detention order was

based, were not placed before the Detaining Authority. According to

the learned counsel appearing for the petitioner, placing only the

operative portion of the bail order was not enough as the reasons for

granting such bail were clearly a relevant consideration for the

Detaining Authority before reaching the conclusion that the petitioner

ought to be detained. It was further submitted that perusal of the

impugned order would show that although specific reliance was placed

on only two offences registered against the petitioner i.e. crime nos.

810/2021 and 252/2021, in the impugned order at paragraph 10, the

Detaining Authority has specifically referred to the fact that the

petitioner had been granted bail in all the cases mentioned in the

detention order. It was submitted that there were as many as 13 earlier

cases specifically stated in the detention order and therefore, the bail

orders pertaining to all these cases ought to have been placed before

the Detaining Authority. In support of said contentions, the learned

counsel appearing for the petitioner has relied upon the judgments of

the Hon'ble Supreme Court and this Court in the cases of Elizabeth 4 901 criwp10.22 (J).odt

Ranibhai Prabhudas Gaikwad .vs. State of Maharashtra and another,

reported in 2021 All M.R. (Cri.) 1394 ; Abdul Sathar Ibrahim

Manik .vs. Union of India and others, reported in AIR 1991 SC 2261 ;

Sunil Pandharinath Dhotre .vs. The Commissioner of Police, Nashik

and others, reported in 2021 All M.R. (Cri.) 2859 ; and Ratnamala

Mukund Balkhande and others .vs. State of Maharashtra and others

(Judgment and order dated 01.07.2022 in Cri. Writ Petition No. 820

of 2021).

4. The second ground raised on behalf of the petitioner was

that there was no live link between the offences, upon which reliance

was placed, and the detention order, considering the time gap between

the two. It was emphasized that while the first case was registered as

far back as on 01.04.2021 and the second case was registered on

01.07.2021, the detention order was passed much later on 21.09.2021.

It was submitted that the statements of the witnesses appear to have

been recorded only to fill the gap between the registration of offences

and issuance of the detention order, thereby showing that, in fact, the

live link had snapped and that the detention order stood vitiated on 5 901 criwp10.22 (J).odt

that ground. In support of these submissions, the learned counsel

appearing for the petitioner placed reliance on the judgments of this

Court in Dinkar Namdeo Sawant .vs. State of Maharashtra and

another, reported in 2013 All M.R. (Cri.) 3874 ; and Mohamad Ishaq

Mohamad Ismail Shaikh .vs. Sanjay Barve and others, reported in

2020 All M.R. (Cri.) 1930.

5. The third ground raised on behalf of the petitioner was

that even if the offences taken into account by the Detaining Authority

were to be relied upon, including the past history of the petitioner, at

worst, it might be a case of disturbance of law and order, but not

public order. By relying upon the words used in Section 3 of the

MPDA Act, the learned counsel appearing for the petitioner

emphasized that extreme order of detention could be passed under the

said provision, only if the actions of the petitioner, could in any

manner be said to be prejudicial to the maintenance of public order.

On this aspect of the matter, the learned counsel has relied upon the

recent judgment of the Hon'ble Supreme Court in the case of Mallada

K. Sri Ram .vs. The State of Telangana and others (Judgment and 6 901 criwp10.22 (J).odt

order dated 04.04.2022 in Criminal Appeal No. 561 of 2022).

6. On the basis of the aforesaid contentions, learned counsel

appearing for the petitioner submitted that the impugned detention

order was vitiated and that it deserved to be set aside. On that very

basis, it was submitted that the order passed by the respondent no.1

confirming the detention order passed by the respondent no.2,

deserved to be set aside.

7. On the other hand, Mr. S.S. Doifode, learned Additional

Public Prosecutor for the respondents countered the contentions raised

on behalf of the petitioner and submitted that no prejudice was

suffered by the petitioner, only because operative portion of the bail

order was placed before the Detaining Authority when the detention

order was passed. It was submitted that there were other modes and

material available before the Detaining Authority, including the

application, whereby Police Custody Remand was prayed for and the

order passed thereon and other such documents placed before the

Detaining Authority. It was submitted that merely because the portion 7 901 criwp10.22 (J).odt

containing the reasons in the bail order was not placed before the

Detaining Authority, it could not be said that the entire detention

order stood vitiated.

8. It was further submitted that there was no question of

absence of live link in the present case for the reason that one of the

offences relied upon by the Detaining Authority pertained to July,

2021, the in-camera statements were recorded in August-2021 and the

impugned detention order was issued on 21.09.2021. It was further

submitted that the question as to whether the material on record

indicated threat to public disorder was based on subjective satisfaction

of the Detaining Authority, after taking into consideration the entire

material on record. According to the learned Additional Public

Prosecutor, perusal of the detention order would show that the

Detaining Authority indeed took into consideration the past conduct

and history of the petitioner, which was a relevant factor. In order to

support the aforesaid contentions, the learned Additional Public

Prosecutor relied upon the judgments of the Hon'ble Supreme Court

in Mrs. Saraswati Seshagiri .vs. State of Kerala and another, reported in 8 901 criwp10.22 (J).odt

AIR 1982 SC 1165 ; and in The District Magistrate, Nowgong and

another .vs. Sarat Mudoi, reported in AIR 1984 SC 43.

9. The learned Additional Public Prosecutor also relied upon

the judgment of Hon'ble Supreme Court in Haridas Amarchand Shah

of Bombay .vs. K. L. Verma and others , reported in AIR 1989 SC 497

to contend that merely because there was failure on the part of the

Sponsoring Authority to place on record few documents, ought not to

vitiate the detention order, as long as relevant and material information

was in fact placed on record before the Detaining Authority. On this

basis, it is submitted that the writ petition deserves to be dismissed.

10. Heard Mr. A. M. Tirukh, learned counsel appearing for

the petitioner, Mr. S.S. Doifode, learned Additional Public Prosecutor

for the respondents and perused the material on record.

11. This Court proposes to consider each contention raised on

behalf of the petitioner on the basis of the material available on record

and the position of law brought to our notice. Before proceeding 9 901 criwp10.22 (J).odt

further in the matter, it needs to be appreciated that under Section 3 of

the MPDA Act, the State Government can indeed issue an order

detaining a person, provided it is satisfied that such detention of a

person is necessary, failing which it would be prejudicial to

maintenance of public order. In a series of judgments over a period of

time, the Hon'ble Supreme Court has indicated that the aforesaid

power retained in the State is an extreme power, to be used in

exceptional circumstances. In the aforesaid recent judgment in the case

of Mallada K Sri Ram .vs. State of Telangana (supra) , the Hon'ble

Supreme Court has gone to the extent of observing that the power of

preventive detention is exceptional and even draconian. It is

specifically observed that Article 22 of the Constitution of India was

specifically inserted and extensively debated in the Constituent

Assembly to ensure that the exceptional powers of preventive

detention do not devolve into a draconian and arbitrary exercise of

state authority. In other words, strict and stringent standards have

been applied by the Courts while considering the question as to

whether a detention order has been vitiated. At times, the contentions

raised on behalf of detenues may appear to be hyper-technical, but 10 901 criwp10.22 (J).odt

since the State in such cases is exercising an exceptional power, the

standard expected from the State while issuing such detention orders is

expected to be very high and unexceptionable.

12. It is in this backdrop that we proceed to consider the

challenge raised in this petition. The first ground raised on behalf of

the petitioner is that while the Detaining Authority specifically relied

upon two offences i.e. Crime No. 252/2021 and 810/2021. The

petitioner was granted bail, insofar as Crime No. 810/2021 is

concerned, but entire copy of the bail order was not placed before the

Detaining Authority. It was brought to the notice of this Court that

the bail order was dated 03.08.2021 and the Sponsoring Authority

placed before the Detaining Authority only the operative portion of

the said order, which specifies the conditions on which bail was

granted. It is clear that the part of the bail order which contained the

reasons why bail was granted to the petitioner, was never supplied to

the Detaining Authority.

13. In this context, the learned counsel appearing for the 11 901 criwp10.22 (J).odt

petitioner was justified in relying upon judgment in Sunil

Pandharinath Dhotre .vs. The Commissioner of Police, Nashik and

others, (supra), wherein this Court, in identical circumstances,

observed as follows :

"20. From the record and the affidavit-in-reply filed by the respondent, it is clear that the Sponsoring Authority while forwarding the proposal to the detaining authority did not place the detailed order of the Sessions Court stating the reasons while granting the bail to the detenu. It is seen that only operative part was forwarded by the Sponsoring Authority to the detaining authority. The order passed by the learned Sessions Judge while releasing the detenu on bail was a wider piece of evidence and ought to have been forwarded to the detaining authority by the Sponsoring Authority. For coming to this conclusion we draw support from the observations made by this Court in the case of Mukesh @ Mukya Ramesh Desaikar .vs. Vivek Phansalkar and ors., Criminal Writ Petition NO. 194 of 2020."

While making the aforesaid observations, this Court relied upon the

judgment of the Hon'ble Supreme Court in the case of Rushikesh Tanaji

Bhoite .vs. State of Maharashtra, (Judgment and order dated 04.01.2012, in

Criminal Appeal No. 24/2012), wherein it was specifically held that full text

of the order granting bail in favour of the detenu was necessary to be placed

before the Detaining Authority, so as to facilitate an appropriate decision 12 901 criwp10.22 (J).odt

regarding subjective satisfaction for issuing detention order.

14. This is significant for the reason that the Detaining Authority

must necessarily be made aware about the reasons given by the Court while

granting bail so that the Detaining Authority can apply its mind as to why,

despite the reasons given by the competent court to grant bail to the detenu,

it is still necessary to exercise the aforesaid power to issue the detention

order, ostensibly for maintenance of public order. The significance of

placing the entire bail order before the Detaining Authority has been

emphasized in that context.

15. We are of the opinion that learned Additional Public

Prosecutor is not justified in raising the aspect of prejudice in this context.

Reliance placed on the judgment in the case of Haridas Amarchand Shah of

Bombay .vs. K.L.Verma and others (supra) in this context is also not

justified, for the reason that in the very judgment, the Hon'ble Supreme

Court has clearly stated that relevant and vital documents ought to be placed

before the Detaining Authority for reaching subjective satisfaction. We are

of the opinion that in view of the aforesaid position of law requiring entire

text of the bail order to be placed before the Detaining Authority, such a 13 901 criwp10.22 (J).odt

document in its entirety forms a relevant and vital document, which ought

to have been placed before the Detaining Authority and placing only the

operative portion of the bail order vitiated the detention order.

16. Insofar as second ground pertaining to absence of live link is

concerned, it is an admitted position that Crime No. 252/2021 was

registered on 01.04.2021, which was more than five months prior to issuance

of the detention order and Crime No. 810/2021 was registered on

01.07.2021, which was also more than two and half months prior to issuance

of the detention order, dated 21.09.2021. There is no dispute about the fact

that there were in-camera statements of two persons recorded in August-

2021, but the question would be as to whether recording of such in-camera

statements would keep the link live, justifying issuance of the impugned

detention order. In this regard, the learned counsel appearing for the

petitioner is justified in relying upon the judgment of this Court in Mohd.

Ishaq Mohd. Ismail Shaikh .vs. Sanjay Barve and others (supra) , wherein this

Court, in similar circumstances, held that live link had snapped and the

duration of about two and half months from registration of the offence or

recording in-camera statements and issuance of the detention order was

enough to indicate that the detention order had been vitiated. Therefore, on 14 901 criwp10.22 (J).odt

this ground also, the detention order is found to have been vitiated.

17. Insofar as third ground regarding "law and order" and "public

order" is concerned, the said has been deliberated upon by the Hon'ble

Supreme Court for a long period of time. The aforesaid aspect was

considered by the Hon'ble Supreme Court, as far back as in 1966, in Ram

Manohar Lohiya .vs. State of Bihar, reported in AIR 1966 SC 740, wherein a

distinction was made between the aforesaid two expressions and it was held

that the material available on record may indicate a law and order issue, as

opposed to public order because the public order, if disturbed, would

necessarily lead to public disorder.

18. The aforesaid judgment finds reference in the recent judgment

in Mallada K. Sri Ram .vs. State of Telangana and others (supra) and while

reiterating the said position, the Hon'ble Supreme Court has held that a

mere apprehension of breach of law and order is not sufficient to meet the

the standard of adversely affecting the "maintenance of public order". If the

ordinary law can take care of a particular situation, invoking the exceptional

and draconian power of detaining a person will not be justified.

15 901 criwp10.22 (J).odt

19. In this context, the learned Additional Public Prosecutor

placed much emphasis on past conduct and in that regard relied upon the

judgments of the Hon'ble Supreme Court in Saraswati Seshagiri .vs. State of

Kerala and another (supra) and in the District Magistrate Nowgong and

another .vs. Sarat Mudoi (supra). But, we are not impressed with the said

submission, simply for the reason that in the present case even if entire list of

the offences registered against the petitioner is to be taken into

consideration, wherein he has been admittedly released on bail in all the

matters, it cannot be said that the ordinary law would not take care of the

situation. The Detaining Authority invoking the exceptional and draconian

power under Section 3 of the MPDA Act, is not justified on the basis of the

material available on record. On this ground also, the impugned detention

order stands vitiated.

20. Insofar as specific contention raised on behalf of the petitioner

that since the Detaining Authority, in the detention order, referred to the

fact that the petitioner was on bail in all the cases and therefore, all the bail

orders ought to have been placed on record, we are of the opinion that the

said contention need not be deliberated upon for the reason that we have

already rendered findings in favour of the petitioner hereinabove.

16 901 criwp10.22 (J).odt

21. In view of the above, the Criminal Writ Petition is allowed.

The impugned detention order dated 21.09.2021, passed by the respondent

no.2 -District Magistrate, Akola is hereby quashed and the impugned order

dated 08.11.2021 passed by the Respondent no.1 - State, confirming the said

detention order is also quashed. Consequently, petitioner - Hrithik S/o

Sudhir Borkar be released from detention forthwith.

22. Rule is made absolute in the above terms. The petition stands

disposed of.

                                     ( G. A. SANAP, J.)               (MANISH PITALE, J.)

                      Diwale




Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:04.08.2022
11:02