Gajanan Pundlik Londhe vs State Of Mah. Thr. Its Secretary, ...
2023 Latest Caselaw 3479 Bom

                                1                 2-J-WP-875-22.doc


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR.
               CRIMINAL WRIT PETITION NO. 875 OF 2022
 PETITIONER :                       Gajanan Pundlik Londhe
                                    Aged about 33 years, Occ - Labour,
                                    R/o Shashtri Nagar, Arni, Dist. Yavatmal,
                                    At present District Prison, Yavatmal.

                                      VERSUS

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

                           2.       The Collector and District Magistrate,
                                    Yavatmal, Dist. Yavatmal.
 -------------------------------------------------------------------------------------------
 Shri M. N. Ali, Advocate for petitioner.
 Shri N. R. Rode, Additional Public Prosecutor for respondent Nos.1
 and 2.
 -------------------------------------------------------------------------------------------
                                    CORAM : VINAY JOSHI AND
                                                     BHARAT P. DESHPANDE, JJ.

 JUDGMENT RESERVED ON                        : 30/03/2023

 JUDGMENT PRONOUNCED ON : 10/04/2023


 JUDGMENT (PER BHARAT P. DESHPANDE, J.) :

1. Rule. Rule is made returnable forthwith. Heard the

learned counsel for the parties with consent.

2. The petitioner is questioning the legality or otherwise

of the detention order dated 08/08/2022 and confirmed by the

State / respondent No.1 under Section 12 of the Maharashtra

Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug

2 2-J-WP-875-22.doc

Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and

Persons Engaged in Black Marketing of Essential Commodities Act,

1981 (MPID Act).

3. Heard Shri M. N. Ali, learned counsel for the

petitioner and Shri N. R. Rode, learned Additional Public

Prosecutor for respondent Nos.1 and 2.

4. We have considered the record and more specifically

the original statements of Witnesses A and B as well as verification

carried out by Sub-Divisional Police Officer (SDPO) on

30/05/2022.

5. Shri Ali, learned counsel appearing for the petitioner

would submit that the orders of detention passed by the

respondent No.2 and confirmed by respondent No.1 are bad in law

as the said authority failed to consider the settled proposition of

law while issuing detention order. He would submit that the

material has been suppressed with regard to the dates of recording

of statements of Witnesses A and B when the same were verified

from the petitioner and therefore, he was unable to file effective

representation. Secondly, he claimed that there is no live link with

regard to the offences which are mentioned in the detention order,

but not relied upon while passing such order. He then would

3 2-J-WP-875-22.doc

submit that two offences relied upon by the Detaining Authority

are not in any way connected with disturbance of public peace.

The statements of Witnesses A and B are the allegations in general

and not about the specific instances. The bail order in which the

petitioner was released, was not placed before the Detaining

Authority. There is inordinate and unexplained delay from the date

of last offence and the order of detention. There is no subjective

satisfaction arrived at by the Detaining Authority which vitiates

the impugned order.

6. Per contra, Shri Rode, learned Additional Public

Prosecutor has opposed the petition on the ground that delay has

been properly explained by the Detaining Authority and there is

live link between the offences relied upon in the detention order.

He would submit that the original record shows the details

mentioned in the statements of the witnesses, which were masked

while giving copies to the petitioner only to protect the life and

liberty of such a witness which is within the powers of the

Detaining Authority. He would submit that there is subjective

satisfaction recorded by the Detaining Authority on the basis of

material placed before it while passing the detention order.

4 2-J-WP-875-22.doc

7. Shri M.N.Ali, learned counsel for the petitioner placed

reliance on the following decisions :-

i] 2019 DGLS (SC 1677 Khaja Bilal Ahmed Vrs. State of Telangana and others.

ii] 2012 ALL SCR 1373 Rushikesh Tanaji Bhoite Vrs. State of Maharashtra and others.

iii] Criminal Writ Petition No.820/2021 decided on 01/07/2022 Ratnamala Mukund Balkhande Vrs. State of Maharashtra and others.

iv] 2001 ALL MR (Cri) 1616 Sanjay s/o Balaram Kirale Vrs. State of Maharashtra and another.

v] 2013 ALL MR (Cri) 3870 Niyazuddin @ Sonu Sirajuddin Ansari Vrs. State of Maharashtra and another.

vi] 2014 ALL MR (Cri) 2409 Mohsin Ahmed s/o Mustaque Ahmed Vrs. State of Maharashtra and another.

vii] 2020 ALL MR (Cri) 1930 Mohamad Ishaq Mohamad Ismail Shaikh Vrs. Shri Sanjay Barve and others.

viii] 2021 DGLS (Bom.) 1243 Bharat Kisan Mekale Vrs. Commissioner of Police and others.

ix] Criminal Writ Petition No.833/2021 decided on 01/07/2022.

Ram Anil Bhaskar Vrs. Additional Chief Secretary, Government of Maharashtra, Home Department, Mantralaya, Mumbai and others.

x] Criminal Writ Petition No.768/2015 decided on 01/02/2016.

Sanjay s/o Ramlal Shahu Vrs. State of Maharashtra and another.

                                5          2-J-WP-875-22.doc



 xi]      Criminal Writ Petition No.49/2023 decided on
          14/03/2023.

Amol alias Guddu s/o Sevakar Khorgade Vrs. The Commissioner of Police, Nagpur and others.

8. Shri N.R.Rode, learned Additional Public Prosecutor

for respondent Nos.1 and 2 placed reliance on the following

decisions :-

i] 2021 ALL MR (Cri) 2159 Chandrakala w/o Ramlal Jadhav Vrs. The State of Maharashtra and others.

ii] 2001 (2) Mh. L. J. 437 Vinod Vithal Rane Vrs. R. H. Mendonca and others.

iii] 2021 ALL MR (Cri) 1475 Pravin Ganpat Kakad Vrs. The Commissioner of Police and others.

iv] 2021 ALL MR (Cri) 2585 Ganesh @ Gajaraj Sainath Patil Vrs. The State of Maharashtra and others.

v] 2016 ALL MR (Cri) 5144 Harish Patil Vrs. The State of Maharashtra and others.

9. The rival contentions fall for consideration as under :-

Few facts and relevant dates which are as under :-

i] Last offence referred to by the Detaining Authority is dated 30/04/2022.

ii] The statements of the Witnesses A and B are recorded on 23/05/2022 and 20/05/2022 respectively.

                                6            2-J-WP-875-22.doc


 iii]             The proposal was forwarded on 18/06/2022 to the

Superintendent of Police, Yavatmal, who then forwarded it to the District Magistrate, Yavatmal on 23/06/2022.

iv] The District Magistrate passed the order of detention on 08/08/2022 and on the same day, the grounds of detention were furnished to the petitioner.

 v]               The      approval   was   granted    by    the     State      on
 12/08/2022.

 vi]              The hearing before the Advisory Board took place on
 24/08/2022.

 vii]             The order under Section 12 was passed by the

Government on 14/09/2022, which is under challenge.

With these dates and the documents placed on record,

the Authority complied with the requirements as provided under

the said Act.

10. We have perused the grounds of detention dated

08/08/2022 in minute details. The Detaining Authority observed

that the petitioner is considered as a dangerous person and that

proposal for detention forwarded to the said Authority refers to

the history of the petitioner, who claims to be involved in various

offences continuously from the year 2015. Paragraph No.2 of the

grounds of detention shows that the petitioner was involved in the

offences like murder, dacoity, assault on Government Servant,

7 2-J-WP-875-22.doc

house breaking, theft, illicit liquor occupation and selling, crimes

such as possession of deadly weapons, Body offences, etc.

However, in Paragraph No.4, the history of the petitioner who is

allegedly involved in various offences from the year 2018 is found

recorded. In all, ten instances are disclosed wherein the petitioner

is found involved and the matters are pending in Court. Perusal of

these offences clearly goes to show that except offences under

Sections 380 and 324 of the Indian Penal Code, he has not been

found involved in the offences like murder, dacoity, which is found

mentioned in Paragraph No.2. Though the Authority only refers to

the history in Paragraph No.4, it is clear that such offences were

not considered while passing the order of detention. Be that as it

may, the fact remains that the contention of the Police Machinery

while submitting the proposal refers to serious offences like

murder or dacoity. However, no such offence is found registered

against the petitioner. Therefore, it is clear from the reasons of

detention that the material extraneous to the one which is

forwarded to the Detaining Authority was considered.

11. Paragraph No.5 of the grounds of detention dated

08/08/2022 shows that only two offences registered at Arni Police

Station against the petitioner were considered. The first offence

vide Crime No.1/2018 was registered under Section 56(1)(B) of

8 2-J-WP-875-22.doc

the Maharashtra Police Act and it was filed on 27/03/2018. The

Sub-Divisional Magistrate, Yavatmal passed the order against the

detenue for deportation for one year in Case No.4/2018 dated

15/11/2018.

12. The second offence found in Paragraph No.5 refers to

Crime No.3/2020, which is again for offence under Section 56((1)

(B) of the Maharashtra Police Act wherein Sub-Divisional

Magistrate issued deportation proposal, but it was rejected in Case

No.2/2021. Paragraph No.6 of the grounds of detention shows

that the above preventive detention action proved futile, as the

petitioner continued his criminal activities after release on bail.

13. Paragraph No.8 of grounds of detention shows

specific two offences registered against the petitioner, which were

considered for passing of detention order. The first offence is vide

Crime No.371/2022 for the offence punishable under Sections

4/25 of the Indian Arms Act wherein charge sheet was filed on

02/06/2022. The second offence is vide Crime No.385/2022

under Section 379 of the Indian Penal Code in which investigation

was in progress. While elaborating these two offences in Paragraph

Nos.8.1 and 8.2, it discloses that the petitioner was moving on

motor cycle bearing Registration No.MH-29 AD 1754 and when he

was intercepted on the Iron Bridge at Mahur Chouk, Arni and

9 2-J-WP-875-22.doc

while searching the trunk of the vehicle, police found two knives

and accordingly, he was booked under Sections 4/25 of the Indian

Arms Act. A charge sheet is filed which is registered as Criminal

Case No.79/2022.

14. As far as the second offence is concerned, vide Crime

No.385/2022, the fact shows that one Jalil Khan, Chhotu Khan

Pathan of Mubarak Nagar, Arni lodged his report on 30/04/2022

claiming therein that he owns 5 acres of land and in his farm, he

installed water motor of 5 HP worth Rs.5,000/-, which was stolen

by the petitioner along with his partner. In this respect, offence

was registered and the investigation is in progress.

15. Shri Ali, learned counsel appearing for the petitioner

was right in his submission that both these offences nowhere

project that the petitioner has created any terror in the mind of

general public or he has disturbed the life and liberty of general

public. Only the recovery of two knives from the trunk of his

vehicle would not be sufficient to establish that the petitioner was

a dangerous person. Similarly, offence of theft of water pump from

the field of Jalil Khan is an act against an individual. Both these

offences though considered by the Detaining Authority are not

connected with disturbance of public peace. However, both these

offences are considered to be individual acts. Similarly, these

10 2-J-WP-875-22.doc

offences were registered at the end of April, 2022. Whereas the

detention order was passed on 08/08/2022. The entire grounds of

detention nowhere disclose or explain the delay in passing of

detention order from the date of last offence registered against the

petitioner on 30/04/2022.

16. In the case of Sanjay s/o Balaram Kirale (supra), this

Court observed in Paragraph No.7 and considered the decision in

the case of Smt. Hemlata Kantilal Shah Vrs. State of Maharashtra,

reported in AIR 1982 SC 8. The Hon'ble Apex Court in the said

decision observed that the delay ipso facto in passing the order of

detention after the incident is not fatal to the detention of a person

as in certain cases, delay may be unavoidable. What is required by

law is that the delay must be specifically explained by the

Detaining Authority. Similarly, in the case of Nilkant Paturkar Vrs.

C. S. Ramamurti, reported in JT 1992 (3) SC 261 the Hon'ble Apex

Court further observed that when the plea of delay in showing

detention order is taken and the delay is not explained whether

right or wrong, the order should be quashed. Relying on the above

observations of the Hon'ble Apex Court and perusal of the reply

affidavit of respondent No.2, we found that there is no proper

explanation of the delay in passing the detention order from the

time of last offence, as referred in the detention order. It also

11 2-J-WP-875-22.doc

shows that there is no live link between the last offence and the

order of detention. On this count alone, the order of detention

needs to be interfered with. There is no live link between the

prejudicial activity of the detenue and the rational of clamping

detention order.

17. In the case of Niyazuddin @ Sonu Sirajuddin Ansari

(supra), this Court observed in Paragraph No.10 that since there is

no explanation about the delay in passing the detention order

from the last prejudicial activity of the detenue, the live link is

clearly snapped. Similar observations are found in the case of

Mohsin Ahmed s/o Mushtaque Ahmed Vrs. State of Maharashtra

and another, reported in 2014 ALL MR (Cri) 2409.

18. Next ground which has been raised is that no offence

of murder or dacoity is found registered against the petitioner

though it is referred in Paragraph No.2 of the grounds of

detention. In this respect, this Court in the case of Mohsin Ahmed

s/o Mushtaque Ahmed (supra) observed that when such offences

are not registered against the detenue, though relied upon by the

Detaining Authority, it clearly shows non-application of mind and

absence of subjective satisfaction. In this case, as mentioned

earlier, though the Detaining Authority in Paragraph No.2 of the

grounds of detention claimed that the petitioner is involved

12 2-J-WP-875-22.doc

continuously since 2015 in commission of offence like murder and

dacoity, not a single reference is made in Paragraph No.4 about the

history of the petitioner involved in such offence.

19. In the case of Chandrakala w/o Ramlal Jadhav

(supra), a Division Bench at Aurangabad discussed all the relevant

decisions of Hon'ble Apex Court and of this Court in connection

with the detention order. There is no quarrel with regard to the

proposition as laid down in the said decision. Similarly in the case

of Vinod Vithal Rane (supra), this Court has observed that the

subjective satisfaction must be recorded by the concerned

Detaining Authority on the basis of material placed before it and it

should be projected by stating that the Detaining Authority is

satisfied that the normal law of land has become ineffective or

inadequate to prove the detenue from continuing with his

activities affecting public peace or public order. It is further

recorded that the subjective satisfaction once recorded by the

Detaining Authority cannot be lightly interfered with by the Court.

20. In the case of Arun Ghosh Vrs. State of West Bengal,

reported in (1970)1 SCC 98, the Hon'ble Apex Court considered

the provisions of Section 3(2) of the MPID Act and specifically the

difference between public order and the law and order. It was held

that the disturbance of public order is to be distinguished from

13 2-J-WP-875-22.doc

acts directed against individuals which do not disturb the society

to the extent of causing general disturbance of public tranquility.

The degree of disturbance and its effect upon the life of

community in a locality determines whether disturbance amounts

only to breach of law and order. The question whether the man

has only committed breach of law and order or has acted in a

manner likely to create disturbance of public order is a question of

degree and the extent of the reach of the act upon the society.

21. Applying such principles to the matter in hand from

the grounds of detention, it is clear that two offences referred to in

the detention order and more specifically in Paragraph No.8, are

clearly offences against individuals and not against the general

public or to consider breach of public peace in general. Such

offences nowhere create fear psychosis in the society. The first

offence with regard to the recovery of two knives from the trunk of

the motor cycle cannot be considered as an offence against the

public as it is not the case of a concerned Police Officer that the

detenue was found using such knives to commit offence. The

second offence is purely a theft case which is against an individual.

22. The Detaining Authority nowhere discussed in the

entire grounds of detention as to whether the detenue was

released on bail in both such offences. Thus, it is clear that the

14 2-J-WP-875-22.doc

material regarding grant of bail or otherwise has been suppressed

from the Detaining Authority.

23. As far as the statements of Witnesses A and B are

concerned, on perusal of the original statements, it is clear that the

Witness A stated before the Police on 20/05/2022 that he knows

the detenue from the last 5 years and is involved in various

offences. He claimed that during lockdown, the detenue used to

visit his shop for repair of his mobile. However, since the shop was

close, the witness was unable to repair it. The detenue started

abusing him and then banging the glass which was on the counter

and then assaulted the witness. The witness then specifically

stated that he went to the Police Station at Arni and lodged his

complaint. After such report was lodged, the detenue again came

and abused him, but he ignored the detenue. The second incident

which Witness A discloses, is somewhere at the end of December,

2021 wherein the detenue obstructed him and questioned as to

why he reported the matter to the police. The detenue then

assaulted one person with an iron rod. The Witness A disclosed

that he again went to the Police Station and lodged the complaint.

This shows that Witness A went to the Police Station on two

occasions and lodged his complaints which clearly rules out any

fear in the mind of the witness either to approach the police or to

15 2-J-WP-875-22.doc

appear in the Court for deposing against the detenue. There is no

statement of witness A that he is unable to attend the Police

Station or the Court due to fear of the detenue.

24. Statement of Witness B recorded on 25/05/2022 is

again disclosing some instances against the detenue and claims

that he is unable to attend the Police Station due to fear. Both the

statements were verified by SDPO, Pusad on 30/05/2022 by

interacting with the witnesses and also by visiting the place

referred to by the witnesses and by enquiring with the general

public. He found that both these witnesses are giving correct

statements.

25. The contention of Shri Ali, learned counsel that the

copies of these statements provided to him are masked at certain

places and even the dates of recording of such statements and

when they are verified, are not disclosed to him which prevented

the petitioner from making effective representation. We have seen

the statements provided to the petitioner which show that these

statements were verified by SDPO and the date of verification is

very much found recorded as 30/05/2022. Only relevant details of

the witnesses were masked, which according to us is justified in

order to protect the identity of the witnesses. Hence such

contention is of no substance.

16 2-J-WP-875-22.doc

26. However, these statements of the witnesses are found

to be general in nature. Witness A had in fact visited at Police

Station on two occasions and lodged his report against the

detenue. Thus, it clearly shows that such witness is even ready and

willing to depose against the detenue. This rules out the possibility

of witnesses coming forward and deposing against the detenue.

27. We need not require to consider other decisions

referred to by both the sides as we are convinced that the

Detaining Authority failed to record subjective satisfaction on the

basis of material placed before it and consider extraneous material

which vitiates the detention order. First of all, no offence of

murder or dacoity is found registered against the detenue as per

list provided in Paragraph No.4 of the grounds of detention.

Secondly, there is delay in passing the detention order which has

not been properly explained. Thirdly, witness A lodged two police

reports which ruled out the possibility of witnesses appearing

either before the Police or before the Court to depose against the

detenue. On this count, we consider that the detention order

suffers from settled proposition of law and therefore, needs to be

quashed and set aside. Accordingly, we hold that the detention

order dated 08/08/2022 and confirmed on 14/09/2022 needs to

be quashed and set aside.

17 2-J-WP-875-22.doc

28. Having said so, we allow the petition as per prayer

clauses (i) and (ii). The impugned orders dated 08/08/2022 and

14/09/2022 are hereby quashed and set aside. The

petitioner - Gajanan Pundlik Londhe shall be released forthwith, if

not required in any other offence.

29. Rule is made absolute in the above terms.

[BHARAT P. DESHPANDE, J.] [VINAY JOSHI, J.]

Choulwar