Milind Hemraj Dhapodkar vs State Of Mha. Thr. Its Secretary ...
2022 Latest Caselaw 6412 Bom

Judgment                           1                910-Cri.W.P.No.846.2021.odt




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

             CRIMINAL WRIT PETITION NO. 846 OF 2021


      Milind Hemraj Dhapodkar,
      Aged about 35 years, Occ. - Labour,
      R/o Bazar Chouk Patansawangi, Nagpur,
      At present Central Prison, Nagpur.
                                                     .... PETITIONER


                               // VERSUS //


1)    State of Maharashtra,
      Through its Secretary,
      Home Department (Special)
      Mantralaya, Mumbai.

2)    The Collector, Nagpur,
      Dist. Nagpur.
                                             .... RESPONDENTS
______________________________________________________________
     Mr. Mir Nagman Ali, Advocate for the Petitioner.
     Mr. M.K. Pathan, Assistant Public Prosecutor for Respondents.
______________________________________________________________


                  CORAM : SUNIL B. SHUKRE AND
                          G.A. SANAP, JJ.

DATED : 07.07.2022

ORAL JUDGMENT : (Per Sunil B. Shukre, J.)

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

by consent of the learned counsel appearing for the parties.

Judgment 2 910-Cri.W.P.No.846.2021.odt

2. It is contended by the learned counsel for the Petitioner

that the detention order was passed on 20.07.2021 and the last of the

crimes registered against the Petitioner was on 09.03.2021 and thus,

there is no live-link between the detention order and the last of the

criminal activity of the Petitioner. It is also submitted that the

bootlegging activity per se is not prejudicial to the maintenance of

public order. It is further submitted that the Petitioner has not been

arrested in the two crimes, which have been considered by the

detaining authority and he was merely issued a notice under Section

41A (1) of the Code of Criminal Procedure, 1973 (for short the

"Cr.P.C."), which only shows that in the opinion of the Investigating

Officer, the Petitioner was not a person, who was required to be put

under restrain by arresting him and if that is so, order of preventive

detention is not justified.

3. Reliance is placed by learned counsel for the Petitioner

upon the judgments of this Court in Criminal Writ Petition No.736 of

2021, decided on 30.06.2022 (Jaywanta s/o Gangaram Pawar Vs. The

State of Maharashtra and others), Criminal Writ Petition No. 75 of

2022, decided on 28.06.2022 (Hanif Karim Laluwale Vs. State of

Maharashtra and others), Criminal Writ Petition No. 804 of 2021,

decided on 27.06.2022 (Nilesh Charandas Gaikwad Vs. State of

Maharashtra and another) and Criminal Writ Petition No. 833 of 2021, Judgment 3 910-Cri.W.P.No.846.2021.odt

decided on 01.07.2022 (Ram Anil Bhaskar Vs. Additional Chief

Secretary, Govt. of Maharashtra and others).

4. Learned Additional Public Prosecutor disagrees and

submits that the impugned order is unassailable, as it records requisite

satisfaction on the basis of the material available to the detaining

authority and considered by the authority. He invites our attention to

the observations made by the detaining authority in the impugned

order in paragraph No.6, in support of his argument. He also submits

that there is a bootlegging activity of the Petitioner which has

transformed into such a criminal activity, as is likely to affect the public

order prejudicially. Thus, he submits that the Petition deserves to be

dismissed.

5. It is true that the Petitioner was not arrested in crime Nos.

129 of 2021 and 48 of 2021 and in both these crimes, he was only

given an intimation under Section 41A (1) of the Cr.P.C. It is also true

that the last of the crimes against the Petitioner was registered on

09.03.2021, while the impugned detention order has been passed on

21.07.2021. Ordinarily such a gap of about more than three months

between last crime registered against the Petitioner and passing of the

detention order and also the Petitioner not being arrested in two crimes

considered against him would have convinced us to uphold the Judgment 4 910-Cri.W.P.No.846.2021.odt

argument of the learned counsel for the Petitioner. But, in the present

case, there is also further material available on record which shows

continuity of criminal activity on the part of the Petitioner, which is

dangerous to maintenance of the public order, even after 09.03.2021,

the date on which the last crime was registered against the Petitioner.

6. There are two confidential witnesses. Their in-camera

evidence has been recorded on 02.06.2021 and 05.06.2021. In these

statements, there is no doubt, have been verified and have also been

appropriately considered by the detaining authority. These statements

refer to specific periods of time and also specific incidents thereby

making them as capable of being duly verified for genuineness of the

statements made therein by the confidential witnesses. These

statements, therefore, cannot be rejected as vague statements

providing no relevant material for the detaining authority. On going

through both these statements, we find that they indeed provide

important and relevant material for reaching the necessary subjective

satisfaction by the detaining authority, which satisfaction easily has

been reached by the detaining authority. It cannot be said that the

satisfaction so reached by the detaining authority regarding the

necessity of preventively detaining the Petitioner on the ground of his

continue criminal activities leading to disturbance of public order is

perverse.

Judgment 5 910-Cri.W.P.No.846.2021.odt

7. We are also of the opinion that when the in-camera

statements of confidential witnesses are considered in the light of the

previous criminal activity of the Petitioner, in which he was given a

chance by the Investigating Officer to desist from his criminal activity,

together with the bootlegging business of the Petitioner, we would find

that there is a chain of criminal activity of the Petitioner established on

record and it is of such a nature that it cannot be dismissed simply as

affecting public health and not transcending into the arena of public

order disturbance.

8. For these reasons, we find that all the cases relied upon by

the learned counsel for the Petitioner are distinguishable on facts and

hence not applicable to the facts of the present case. Thus, there is no

merit in the Petition.

9. The Petition stands dismissed.

                                    (G.A. SANAP, J.)                (SUNIL B. SHUKRE, J.)




Digitally Signed By:KIRTAK
BHIMRAO JANARDHAN
Signing Date:08.07.2022
18:28
                         Kirtak