Rahul S/O. Jugaldas Tambe vs State Of Mah. Thr. Its Secretary ...
2022 Latest Caselaw 13436 Bom

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

                   CRIMINAL WRIT PETITION NO. 765 OF 2022

  Rahul S/o. Jugaldas Tambe,
  Age 32 years, Occ. Private,
  R/o. Sweeper Colony, Shanti Nagar,
  Near Water Tank,
  Police Station- Shanti Nagar, Dist. Nagpur.                              . . . PETITIONER

                      // V E R S U S //

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

  2. State of Maharashtra through the
     Commissioner, Nagpur City,
     Tah. Nagpur, Dist. Nagpur.

  3.    State of Maharashtra through
        the Assistant Commissioner of Police,
        Zone-III, Nagpur, Dist. Nagpur.

  4.     State of Maharashtra through
         Police Inspector,
         Police Station Shanti Nagar,
         Dist. Nagpur.                                                . . . RESPONDENTS

 ------------------------------------------------------------------------------------------------
 Shri S. N. Nandeshwar, Advocate for petitioner.
 Shri S. S. Doifode, APP for respondents/State.
 -----------------------------------------------------------------------------------------------
                  CORAM :-         SUNIL B. SHUKRE &
                                   M. W. CHANDWANI, JJ.

                  DATED :-         22.12.2022

 ORAL JUDGMENT (PER: SUNIL B. SHUKRE, J.):-

                  Heard.




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2. Rule. Rule made returnable forthwith. Heard finally by

consent of the parties.

3. This petition questions the legality or otherwise of

preventive detention of the petitioner made under detention order

dated 29.08.2022 and confirmation order dated 08.09.2022, both

passed under the provisions of Maharashtra Prevention of Dangerous

Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous

Persons and Video Pirates, Sand Smugglers and Persons engaged in

Black Marketing of Essential Commodities Act, 1981 (for short, "the

MPDA Act").

4. Learned counsel for the petitioner terms the impugned

orders as illegal on various grounds, but learned APP has a different

opinion, and he supports them.

5. On going through the grounds of detention and

confirmation order, we find that learned APP is right in his opinion as

there is hardly anything in the impugned orders, which could be said

to be not having any proximate nexus with the object sought to be

achieved by the order of preventive detention and the confirmation

order passed against the petitioner.

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6. Of course, learned counsel for the petitioner submits that

the grounds of bail were not considered by the Detaining Authority

and it resulted in rendering the order of preventive detention invalid

but, we find that reality is something different. There have been three

crimes, which have been considered by the Detaining Authority and in

each of these crimes, the petitioner has been granted bail by the

concerned Courts. The detaining order specifically refers to the bail

orders and the concerned Officer has stated that he has gone through

the details of the bail orders. Once, reference to the bail orders is

made in these words, it cannot be said that the concerned Officer has

not considered the grounds of bail. On the contrary, inspite of noticing

the fact that in each of these three crimes bail has been granted to the

petitioner, the Authority has reached the satisfaction about the need for

preventing the petitioner from continuing with his criminal activities,

which were considered by the Authority as prejudicial to the

maintenance of public order. The statements of confidential witnesses

also provide sufficient material to the Authority to reach its subjective

satisfaction in the present case. They have stated that due to fear of

the petitioner, the members of public are not coming forward to give

evidence. When these statements are considered along with the

conditions imposed in the bail orders, the only conclusion that can be

made is that even after having involved himself in three different

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crimes, the petitioner's criminal activities continued and that he had

brazenly committed breach of conditions of the bail orders.

7. The bail order passed in Crime No. 153/2022 contain an

important observation of the learned Magistrate. It is to the effect that

there was possibility that the petitioner might indulge in some kind of

offences and therefore, learned Magistrate declined the request of the

petitioner for his release only on cash security. The bail order passed

on 08.04.2022 in Crime No. 48/2022 puts a condition that the

petitioner shall not commit any similar offence but, the petitioner

continued with his criminal activities. The confidential witness has

stated that the petitioner not only extracted an amount of ₹ 400/- 400/-

from him but also threatened the members of public who had gathered

on the spot of the incident with dire consequences if any of them went

to the Police for lodging report against him. The statement of another

witness shows that the petitioner had also extracted an amount of

₹ 400/-600/- from him and had given similar threat to public which had

gathered at the spot of the incident.

8. The material referred to above in our view, is relevant and

has been considered by the Detaining Authority for reaching its

subjective satisfaction regarding the need for preventively detaining

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the petitioner and, therefore, we see no flaw in the detention order as

well as in its approval and confirmation by the State Government.

9. Scope of judicial review of detention order, we must state,

is limited to examining if there is any non-existent or misconceived or

irrelevant ground or reason which has been taken into consideration

and if it is so, then only this Court can direct invalidation of the order

of detention in exercise of its extraordinary jurisdiction under Section

226 of the Constitution. While this Court is entitled to scrutinize

material relied upon by the authority to determine if there is any

objective basis for subjective satisfaction reached by the authority, it is

not for this Court to find out if the material was sufficient or the

grounds in order of detention are sufficient or otherwise. While

judicially reviewing a detention order, this Court normally would not

go into correctness of decision as such but, would only look into the

decision making process, judicial review being not an appeal from a

decision but, review of the manner in which the decision is made. The

purpose of review in such a case is to ensure that the individual

receives fair treatment. A useful reference in this regard can be made

to the observations of the Apex Court made in paragraph nos.26 and

28 of its judgment rendered in the case of Pebam Ningol Mikoi Devi

Vs. State of Manipur [(2010) 9 SCC 618] which being relevant, are

reproduced as under:

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"26. What emerges from these rulings is that, there must be a reasonable basis for the detention order, and there must be material to support the same. The Court is entitled to scrutinize the material relied upon by the Authority in coming to its conclusion, and accordingly determine if there is an objective basis for the subjective satisfaction. The subjective satisfaction must be two fold. The detaining authority must be satisfied that the person to be detained is likely to act in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public order and the authority must be further satisfied that it is necessary to detain the said person in order to prevent from so acting.

......

28. We are conscious of the fact that the grounds stated in the order of detention are sufficient or not, is not within the ambit of the discretion of the court and it is the subjective satisfaction of the detaining authority which is implied. However, if one of the grounds or reasons which lead to the subjective satisfaction of the detaining authority under NS Act, is non-existent or misconceived or irrelevant, the order of detention would be invalid."

10. Learned counsel for the petitioner submits that the dates

of the incidents have not been mentioned in the confidential

statements recorded by the Police Officer. We have gone through these

statements and we do not find any substance in the argument of

learned counsel for the petitioner for the reason that these statements

contain sufficient pointers towards incriminating activities of the

petitioner and also provide adequate clue and hint to enable any

independent Police Officer to verify the truthfulness or otherwise of

these statements. It is well settled law that what is required to be

stated in such a statement is summary of the incident having criminal

overtones and it is not necessary that specific dates of incident should

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be mentioned. {See Full Bench judgment in the case of Sumit

Maraskolhe Vs. Deputy Commissioner of Police, Zone-I [(2019)

Mh.L.J. (Cri.) 14]}.

11. Learned counsel for the petitioner further submits that

there is no proper verification of the statements carried out by an

independent Police Officer. We find that this argument is based upon

incorrect instructions received by learned counsel for the petitioner, as

the statements are duly and properly verified by an independent Police

Officer. He further submits that in the last of the crimes registered

against the petitioner, the petitioner has been released on 04.07.2022

and whereas, the statements of confidential witnesses show that the

alleged incident took place sometime prior to 04.07.2022 and thus

there is a possibility of these statements being fabricated. We do not

think so, as there is no material available on record, which has been

brought to our notice to enable us to say that the date of the alleged

incident was prior to 04.07.2022, the period when the petitioner was

behind the bars. These statements refer to the incident of July-2022

and it appears that the incidents must have taken place any time

before 27.07.2021, the date on which these statements were recorded.

But, that does not mean that the statements must have been referring

to those incidents which must have taken place allegedly on or before

04.07.2022. On the contrary, there is strong possibility that those

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incidents took place any time after the petitioner was actually released

from jail, which was the period between 04.07.2022 and 27.07.2022.

This possibility has, in our view, turned into a reasonable reality if one

considers an important aspect of this case. We find that these

statements have been duly verified by the independent Police Officer

and he has found them to be correct. We have no reason to distrust

verification done by him. If this Police Officer has made proper

verification about these incidents, it only means that the incidents of

extortion and threatening were after 04.07.2022 but before

28.07.2022.

12. Learned counsel for the petitioner further submits that it is

the requirement of Section 3 of the MPDA Act that period of detention

is specifically mentioned. Learned APP for the State relying upon the

case of Mrs. T. Devaki Vs. Government of Tamil Nadu [1990 AIR 1086]

submits that that is not the requirement of Section 3 of the MPDA Act

and, therefore, even if the period of detention is not specified in

detention order, it is enough if it is specified in confirmation order

passed under Section 12 of the MPDA Act, which is the case here, as

the object of Sections 12 and 13 read with Section 3 of the MPDA Act

is that under no circumstances, the detenu is preventively detained for

a period exceeding 12 months.

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13. In the case of Mrs. T. Devaki (supra), the Supreme Court

has taken a view that since Section 3 of the MPDA Act does not require

the Authority to specify the period of detention, the silence regarding

specific period of detention in the detention order would not by itself

render the detention order invalid. Of course, the case of Mrs. T.

Devaki (surpa) was a case of interpreting the provisions of Tamil Nadu

Prevention of Dangerous Activities of Boot-leggers, Drug Offenders,

Forest Offenders, Immoral Traffic Offenders and Slum Grabbers Act,

1982 (for short, "the TPDA") but, Section 3 of the TPDA, as we find

here is in pari materia with Section 3 of the MPDA Act and therefore,

interpretation ascribed to Section 3 of the TPDA would apply with

equal force to Section 3 of the MPDA Act. Then, this view of ours

receives support from the case of State of Maharashtra Vs. Balu S/o.

Waman Patole [2019 (16) SCALE 237], wherein the Supreme Court

has held that since the MPDA Act does not require the detention order

to specify the period for which the detenu is required to be detained,

the detention order is not rendered invalid in absence of such

specification. It is pertinent to mention here that the case of Balu S/o.

Waman Patole (supra) deals with Section 3 of the MPDA Act.

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14. It then follows that, there is no merit in the petition. The

petition stands dismissed. No costs. Rule is discharged.

              (M. W. CHANDWANI, J.)                                 (SUNIL B. SHUKRE, J.)




RR Jaiswal