Mr. Vitthal Manohar Kogde (In ... vs The State Of Maharashtra, Thr. Its ...
2022 Latest Caselaw 7922 Bom

                                                            3.wp264.2022jud.odt




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

               CRIMINAL WRIT PETITION NO. 264 OF 2022

Mr. Vitthal Manohar Kogde (in Jail)
Age 22 years, R/o. Sukali,
Taluka Barshitakli, Dist. Akola
                                                 .. Petitioner

                  Versus

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

2. District Magistrate,                         .. Respondents
Akola, Dist. Akola.
3. Police Station Officer,
Police Station Barshitakli,
Akola, Dist. Akola.


Mr. R.R. Vyas, Advocate for petitioner.
Mr. S.S. Doifode, APP for respondents.


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

DATE : 17/08/2022

ORAL JUDGMENT: [PER : Manish Pitale, J. ]

By this writ petition, the petitioner has challenged

detention order dated 27.12.2021, passed by the respondent No.2 -

District Magistrate, Akola and subsequent order dated 04.02.2022,

passed by the respondent No.1 - State, confirming the detention order

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passed by the respondent No.2. The said order was passed under

Section 3 of 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

MPDA Act").

(2) Mr. Vyas, learned counsel appearing for the

petitioner submitted that the detention order stood vitiated for the

reason that the detaining authority - respondent No.2 recorded in the

impugned detention order that it was aware of the fact that the

petitioner was on bail in all the cases that found mention in the

detention order. It was brought to our notice that total five criminal

proceedings registered against the petitioner were taken into

consideration and specific reliance was placed on two such

proceedings along with in-camera statements of witnesses, while

issuing the detention order. It was submitted that while the bail order

pertaining to the criminal proceeding at Serial No.5 in paragraph 3 of

the detention order was placed before the detaining authority, as

regards the criminal proceedings at serial Nos.1 to 3 in the said

paragraph, neither the bail applications nor the bail orders were placed

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before the detaining authority. According to the learned counsel for

the petitioner, this vitiated the detention order in the light of settled

position of law laid down by the Hon'ble Supreme Court in the case of

Rushikesh Tannaji Bhoite Vs. State of Maharashtra and Ors., (2012) 2

SCC 72 and subsequent judgments.

(3) It was further submitted that the detention order

also stood vitiated for the reason that translations of relevant

documents were not supplied to the petitioner, particularly injury

report and report of medical examination of the victim in respect of

specific offence, which was taken into consideration by the detaining

authority while issuing the impugned detention order. On this basis, it

was submitted that the petition deserved to be allowed.

(4) Mr. Doifode, learned APP appearing for the

respondent Nos.1 to 3 submitted that insofar as the non-supply

translations of various documents is concerned, the petitioner was not

entitled to raise the said ground for the reason that no prejudice was

suffered by the petitioner, in the light of the fact that he chose not to

prefer any representation. Having not submitted a representation, it

could not lie in the mouth of the petitioner to say that he was

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prejudiced by non-supply of translations of some of the documents.

Insofar as the aspect of failure of placing bail orders before the

detaining authority is concerned, it was submitted that specific

reliance in paragraph 4 of impugned detention order was placed on

two proceedings, in one of which the petitioner was released on bail

and a copy of the bail order was admittedly placed before the

detaining authority.

(5) We have heard the learned counsel for the rival

parties in the backdrop of the material available on record. We find

that the aspect of non-supply of translations of the aforesaid

documents may not necessarily accrue to the benefit of the petitioner,

for the reason that he did not choose to submit a representation. In

the absence of any prejudice demonstrated in that regard, the learned

APP is justified in contending that it cannot lie in the mouth of the

petitioner that non-supply of translations had caused prejudice, in the

peculiar facts and circumstances of the present case.

(6) But, insofar as ground pertaining to failure to place

the bail orders before the detaining authority is concerned, we are of

the view opinion that there is substance in the contention raised on

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behalf of the petitioner. A perusal of the detention order shows that

in paragraph 3 thereof, the detaining authority has referred to five

criminal proceedings. In paragraph 4, the detaining authority has

relied upon proceedings at serial Nos.4 and 5 and there is no dispute

about the fact that the bail order pertaining to the proceedings at serial

No.4 was indeed to place before the detaining authority. But, it is

significant that in paragraph 10, the detaining authority while

recording subjective satisfaction has specifically recorded that "I am

aware that now you are on bail in all above cases".

(7) The aforesaid sentence clearly gives an impression

that although in paragraph 4 of the impugned detention order

reference was made to the criminal proceedings at serial Nos.4 and 5,

the detaining authority stated its awareness about the petitioner being

released on bail in all the criminal proceedings finding reference in

paragraph 3 of the detention order. In the criminal proceedings at

serial Nos.1 to 3, the petitioner was released on bail and admittedly

copies of the bail orders pertaining to the said proceedings were not

placed before the detaining authority. This vitiated the subjective

satisfaction as per the law laid down by the Supreme Court in the case

of Rushikesh Bhoite (supra).

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(8) The learned counsel appearing for the petitioner is

also justified in relying upon the recent judgment of the Supreme

Court in the Mallada K Sri Ram Vs. State of Telangana and Ors.,

(2022) SCC Online SC 424 , wherein the Supreme Court has

emphasized upon the stringent test to be applied while considering the

validity of such detention orders for the reason that the powers of

preventive detention are exceptional and even draconian. Applying

the stringent standards laid down by the Supreme Court in the

aforementioned judgments, this Court is of the opinion that the

petitioner has indeed made out case for interference in the impugned

detention order.

(9) Another aspect of the matter is that as per the

material available on record, with reference to the criminal

proceedings initiated against the petitioner, the concerned authorities

had also initiated proceedings for externment by issuing notice dated

31.07.2021. It appears that the said initiation of the proceedings did

not lead to any order of externment against the petitioner and yet, on

20.12.2021, the present proceeding leading to the impugned detention

order was initiated. The said procedure adopted by the respondents

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further demonstrates that the impugned detention order deserves

interference.

(10) In view of the above, the petition is allowed in terms

of prayer clauses 1 and 2 which reads as follows:

"1. Call for the record of order dated 04/02/2022, (Annexure I) passed by respondent No.1, Secretary, Department of Home, Mantralaya, Mumbai-32 so also order dated 27/12/2021 (Annexure II) bearing No.619/2021 passed by respondent No.2, District Magistrate, Akola, Dist. Akola.

2. Upon perusal of the same, quash and set aside order dated 04/02/2022 (Annexure I) passed by respondent No.1, Secretary, Department of Home, Mantralaya, Mumbai-32 so also order dated 27/12/2021 (Annexure II) bearing No.619/2021 passed by respondent No.2, District Magistrate, Akola, Dist. Akola in the interest of justice."

(11) Accordingly, the petitioner shall be released from

detention forthwith.

               (12)                      Rule made absolute in above terms.




                                [G.A.SANAP, J.]                      [MANISH PITALE J.]

               Prity


Signed By:PRITY S GABHANE
Reason:
Location:
Signing Date:18.08.2022 18:21
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