Zamiruddin S/O Alimuddin vs The State Of Mah. Dep. (Special) ...
2022 Latest Caselaw 8510 Bom

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

             CRIMINAL WRIT PETITION NO. 419 OF 2022


      Zamiruddin s/o Alimuddin @ Jammu
      Alimuddin, Aged about 23 years,
      Occ.: Labour, R/o. Barde Plot,                   .. Petitioner
      Nr. Taha Masjid, Akot, Dist. Akola

                        Versus

  1. The State of Maharashtra
     Home Department (Special), Through its
     Section Officer, Second Floor, Main
     Building, Mantralaya, Mumbai - 32                .. Respondents

  2. Collector and District Magistrate,
     Akola, Dist. Akola.


Mr. Sagar Katkar, Advocate for Petitioner.
Mr. S.S. Doifode, APP for Respondent Nos.1 & 2.


                           CORAM          :   MANISH PITALE, &
                                              VALMIKI SA MENEZES, JJ.

                    RESERVED ON :             11/08/2022
               PRONOUNCED ON :                29/08/2022



JUDGMENT : [PER : VALMIKI SA MENEZES, J.]

Rule. Heard finally by consent of the learned counsel

for the parties.

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(2)                    By this writ petition, the Petitioner before us has

impugned order dated 05.01.2022, passed by the Section Officer to the

Government of Maharashtra, Home Department (Special), Mantralaya,

Mumbai i.e. Respondent No.1 in a proceeding in MPDA

No.1121/CR.371/Spl.-3B, which confirms detention order dated

25.11.2021 bearing No.DESK-2/HA/HOME/WS-539/2021 passed by the

District Magistrate, Akola i.e. Respondent No.2 herein, authorizing the

detention of the Petitioner for a period of twelve months.

(3) It is the case of the Petitioner that he was detained by

the District Magistrate, Akola, under the provisions of Section 3(1) 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 'of the Act of 1981'), by the detention order dated 08.11.2021

passed by Respondent No.2 on the grounds which were made known to

him through a family member, without actually supplying the same to the

Petitioner to enable him to file an objection before the said Authority.

It is further the case of the Petitioner that after he was

made aware of the order dated 08.11.2021, he made a representation

before the Respondent No.1 - Advisory Board of the Government of

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Maharashtra on 10.12.2021, wherein he has placed before the said

Authority, crucial facts, amongst which he placed details of orders of bail

passed in pending Criminal cases against the detenu; he further argued

that the representation also elucidates the fact that at least two of the

criminal cases in which Charge-Sheets were filed against the detenu

before the concerned Criminal Courts, had culminated in acquittal of the

detenu, one of which was passed before order dated 08.11.2021 was

passed by the District Magistrate, and the other order of acquittal, was

passed prior to the pronouncement of the order of confirmation dated

05.01.2022 by the Respondent No.1.

(4) He further argued that none of these orders had been

considered or even referred to in the impugned order dated 05.01.2022 by

the Respondent No.1, thus, vitiating the entire process of satisfaction

being recorded by the Detaining Authority, since, the Detaining Authority

did not advert to the findings in the above referred orders granting bail or

judgments of acquittal. On these facts pleaded in the petition, Shri Sagar

Katkar, learned counsel for the Petitioner submits that grounds for

detention of the Petitioner, more specifically contained in paragraph 3

thereof and detailed in a chart containing ten criminal cases filed against

the Petitioner were not sustainable. He took us through the record of

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three of those criminal cases at Serial Nos.3, 7 and 9 of the said chart,

wherein orders of bail releasing the Petitioner have been passed by the

concerned Criminal Courts, specifying the reasons for release of the

detenu in the said orders. He further submits that none of these orders

were placed by the sponsoring Authority before the District Magistrate, to

enable him to refer to their contents and to the reasons stated therein for

release of the detenu, to enable the Authority to come to a proper

satisfaction that notwithstanding the reasons stated in the bail orders, the

detention of the Petitioner would actually be required.

(5) He further submitted that in two other criminal cases

referred to in the detention order dated 08.11.2021, more specifically

those at serial Nos.8 and 10 of the said chart referred to in paragraph 3 of

the detention order, the concerned Criminal Courts had acquitted the

detenu; he took us through the representation filed before the Advisory

Board on 10.12.2021 by the Petitioner under Section 3(3) of the said Act,

wherein he points out that the Police Authorities, while applying for the

detention of the Petitioner, had neither brought to the notice of the

Detaining Authority, nor to the notice of the Respondent No.1 confirming

Authority, the fact that the Petitioner had been acquitted of charges in at

least two of the criminal cases referred to in the impugned order. He

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further submits that applying the ratio of the judgments passed by this

Court in Ratnamala Mukund Balkhande Vs. State of Maharashtra and Ors.,

in Criminal Writ Petition No.820/2021 by its judgment dated 01.07.2022,

in Shakir Khan Zakir Khan Vs. State of Maharashtra and anr., passed in

Criminal Writ Petition No.916/2021 by its judgment dated 14.07.2022

and in Hrishi @ Sarjerao Baban Takele Vs. The District Magistrate, Sangli

and Ors., reported in (2018) ALL M.R. (Cri.) 516, the impugned order

stands vitiated for non-consideration of the reasons stated by the

Competent Criminal Courts while acquitting or granting bail to the

Petitioner, as the case may be, in the various criminal cases referred to in

the impugned order passed by the District Magistrate.

(6) It is further submitted that a Division Bench of this

Court in judgment dated 27.10.2021 passed in Criminal Writ Petition

No.477/2021 in the case of Indragol Debaji Ramchawre Vs. The State of

Maharashtra and anr., whilst referring to the judgment of the Hon'ble

Supreme Court rendered in Elizabeth Ranibhai Prabhudas Gaikwad Vs.

State of Maharashtra and anr. reported in 2021 All.M.R. (Criminal) 1394,

has specifically laid down that non-consideration of the bail orders or non-

communication of bail orders to the Detaining Authority would vitiate the

detention orders passed against the Petitioner.

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(7)                  Per contra, Shri S.S.Doifode, learned Assistant Public

Prosecutor appearing for Respondent Nos.1 and 2,             supporting the

impugned orders, contended that, though it may be true that the

concerned orders granting bail to the Petitioner may not have been placed

before the District Magistrate for consideration of the reasoning contained

in the said orders he contended that there is a reference in paragraph 10

of the order passed by the District Magistrate that he was aware that the

Petitioner was released on bail in all the ten cases referred to in paragraph

3 of the impugned order, and on that basis, the satisfaction recorded by

the Authority on being aware of the orders of bail, could not have been

said to be vitiated for non-consideration of such orders.

(8) We have considered the submissions of the learned

counsel appearing for the parties and we have gone through the entire

record of the petition. In Hrishi @ Sarjerao Baban Takele (supra) and

more particularly paragraph 8 and 9 thereof, a Division Bench of this

Court, after referring to a judgment of the Hon'ble Supreme Court in the

case of Rushikesh Tanaji Bhoite Vs. State of Maharashtra and Ors. reported

in 2012 ALL SCR 1373, has held that non-placement of detailed order of

anticipatory bail granted to the detenu or even not furnishing a copy

thereof, vitiates the entire order of detention.

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We quote herein the reasoning of the Hon'ble Supreme

Court in Hrishi @ Sarjerao Baban Takele (supra):

"7. In relation to ground (d) and (i) Mr. Tripathi is relying on the decision of the Supreme Court in the case of Rushikesh Tanaji Bhoite vs. State of Maharashtra & Ors., reported in 2012 Cri.L.J. 1334 : [2012 ALL SCR 1373]. Mr. Tripathi placed reliance on paragraphs 8, 9 and 10 of the said decision. Mr. Tripathi pointed out that in paragraph 8, it is observed as under :

8........However, the detention order or the grounds supplied to the Detenu do not show that the Detaining Authority was aware of the bail order granted in favour of the Detenu on August 15, 2010"

Mr. Tripathi pointed out that in the present case also, the detention order or grounds of detention do not show any awareness of the detaining authority whether the detenu was in custody or was released on bail.

8. Mr. Tripathi pointed out that in the case of Rushikesh Bhoite (2012 ALL SCR 1373) (supra) in paragraphs 9 and 10 of the said decision, it is observed as under:

9. In a case where Detenu is released on bail and is enjoying his freedom under the order of the Court at the time of passing the order of detention, then such order of bail, in our opinion, must be placed before the Detaining Authority to enable him to reach at the proper satisfaction."

(9) In the case of Ratnamala Mukund Balkhande (supra)

cited by the learned counsel for the Petitioner, a Division Bench of this

Hon'ble Court, after referring to the judgment of the Hon'ble Supreme

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Court in Elizabeth Ranibhai Prabhudas Gaikwad (supra) and another

judgment of the Hon'ble Supreme Court in Abdul Sattar Ibrahim Manik

Vs. Union of India and Ors. (AIR) 1991 SC 2261 , applying the ratio laid

down by the Hon'ble Supreme Court in the said two cases has held as

under:

"8. In this case, although, seven crimes registered against the detenu formed the material for reaching the subjective satisfaction of the detaining authority, admittedly, in five of the crimes, in which the detenu was on bail, no bail orders were placed before the detaining authority. This lacuna, in our opinion, has vitiated the satisfaction reached by the detaining authority as it was deprived of opportunity to consider relevant material, though available.

9. Of course, it is submitted by learned APP that these five crimes were only considered as indicative of the previous criminal activity and therefore it was not necessary for the detaining authority to consider the reasons for which the detenu was granted bail in each of these crimes. In our respectful submission the argument cannot be accepted. The law settled by Hon'ble Apex Court in the case of Abdul Sathar Ibrahim Manik (supra), is clear in this regard. Hon'ble Supreme Court has in clear terms observed that in the case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. Hon'ble Supreme Court further held that in such a case, the bail application and the order granting bail must necessarily be placed before the authority and the copies should also be supplied to the detenu. It would then mean that, whenever previous crimes registered against the detenu are considered as indicative of continuous criminal activity of the detenu, the detaining authority must also consider the reasons for which the detenu was granted bail in those previously registered crimes. This is because of the fact that

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those reasons would enable the detaining authority to reach proper satisfaction upon knowing existence of prima facie case against the detenu or otherwise in those previously registered crimes. Besides, as held by this Court in the case of Elizabeth Ranibhai Prabhudas Gaikwad (supra) there should not be any mismatch or unexplained inconsistency between the order passed by one authority granting bail and the order passed by another authority directing detention of that person for the very criminal activity. Consideration of the reasons of bail would help the detaining authority bridge the gap, in some cases, between the reasons for which bail was granted and the reasons for which preventive detention is ordered. Thus, we find no substance in the argument of learned APP made in this regard."

In the case of Ratnamala Mukund Balkhande (supra)

this Court has further held that merely supplying the operative part of a

bail order to the Detaining Authority together with the bail application

was not enough, to obtain the detention order, and what was necessary for

the Detaining Authority to reach the requisite satisfaction as required

under Section 3(3) of the said Act, was that it had to necessarily base its

consideration on the relevant material, which includes the reasons given

by the competent Criminal Court for release of the detenu on the same

grounds which now constitute, the grounds for his detention in the

impugned order.

The same view was taken in the case of Shakir Khan

Zakir Khan (supra) by a Division Bench of this Court after making

reference to the case of Ratnamala Mukund Balkhande (supra) and Hanif

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Karim Laluwale Vs. State of Maharashtra and Ors., in Criminal Writ

Petition No.75/2022 decided on 28.06.2022.

(10) The learned counsel for the Petitioner has cited a

judgment of this Court in Indragol Debaji Ramchawre (supra) wherein this

Court after referring to the judgment of the Hon'ble Supreme Court in

Elizabeth Ranibhai Prabhudas Gaikwad (supra) has held :

"15. At this stage, we may clarify that we may not be taken to have laid down some blanket proposition that the furnishing of bail applications or the orders made thereon is a must in every case of preventive detention. Ultimately, this will depend from case to case. In the present case, however, we find that the impugned detention order is purported to be based only on the six pending prosecutions under the Maharashtra Prohibition Act. In all these matters, there is no dispute that the petitioner was enlarged on bail. The terms and conditions subject to which the petitioner was enlarged on bail were, therefore, quite relevant because, as was pointed out by Mr. Sirpurkar that several restrictions were imposed upon the petitioner and the same, have not even been taken into account by the Detaining Authority before purporting to record subjective satisfaction on the necessity of issuing the impugned detention order. In the case, we find that the two decisions referred to above support the case of the petitioner and no good ground has been shown to us to take some contrary view, assuming that we would be competent to do so."

(11) Applying the ratio laid down by the Hon'ble Supreme

Court and by the various judgments of this Court as quoted above we have

no doubt in our mind that non-consideration of the three bail orders,

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which we presently make reference to, would vitiate the entire process

followed by the Detaining Authority as confirmed by Respondent No.1 in

the impugned order dated 05.01.2022.

We note that in Crime No.304/2017, referred to at

Serial No.9 of the chart detailed by the District Magistrate in paragraph 3

of the impugned order has referred to a pending case against the

Petitioner wherein he was actually granted bail by an order dated

12.10.2017 passed by the Judicial Magistrate First Class, Akot, releasing

him on certain terms stated therein.

Further, in Crime No.429/2018 referred to at Serial

No.5 of the very same chart contained in the impugned order, the

Petitioner was released on bail by the concerned Magistrate by order dated

14.12.2018, while in Crime No.404/2019 referred to at Serial No.3 of the

same chart, the Petitioner had been released on bail under order dated

14.11.2019. None of the above orders were placed before the District

Magistrate for consideration while passing the impugned order.

(12) It is further a matter of record that the Petitioner was

acquitted in two other crimes in Crime No.418/2017 at Serial No.8 and in

Crime No.164/2017 at Serial No.10 of the chart contained in the order of

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the District Magistrate. There is a specific reference made at paragraph 3

of the representation made by the Petitioner before the Respondent No.1

where the number of the Sessions Case and the dates of the order of the

acquittal are referred to. The order dated 05.01.2022 passed by the

Respondent No.1 is not only cryptic, but also does not refer to any of the

material referred to by us in the preceding paragraphs, all of which

formed part of the record.

(13) It is thus clear that the impugned orders were passed

without perusing all the relevant material, which should have included the

reasoned orders of bail and the judgments containing the reasons for

acquittal of the Petitioner in at least two cases, all of which find reference

in the impugned orders.

(14) The impugned orders are therefore, passed in the face

of judgments of the Hon'ble Supreme Court and of this Court specifically

laying down the proposition that the orders of detention would be vitiated

by non-consideration of the specific material referred to by us in the

preceding paragraphs.

(15) For all the above reasons, we allow the Writ Petition

No.419/2022 in terms of prayer clause (1) thereof, which reads as under:

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"1. Quash and set aside the impugned order dated 05.01.2022 passed by Section Officer to the Government of Maharashtra, Home Department (Special), Mumbai i.e. RespondentNo.1 at (ANNEXURE-III) in MPDA No.1121/CR.371/Spl-3B and further quash and set aside detention order dated 25.11.2021 bearing No.Desk-2/HA/HOME/WS-539/2021 passed by RespondentNo.2 i.e. District Magistrate, Akola and further release the Petitioner from Aurangabad Central Prison, Aurangabad."

(16) Consequently, the petitioner shall be released from

detention forthwith, unless required in any other case. Rule is made

absolute in the above terms.

                                [VALMIKI SA MENEZES, J.]              [MANISH PITALE J.]




Signed By:PRITY S GABHANE
Reason:
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Signing Date:29.08.2022 17:14