Shaikh Husain @ Shahrukh Shaikh ... vs State Of Mha. Thr. Its Secretary ...
2023 Latest Caselaw 3984 Bom

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

                CRIMINAL WRIT PETITION NO. 873 OF 2022

      Shaikh Husain @ Shahrukh Shaikh Fatru
      Aged about 26 years, Occ. Labour,
      R/o Rajendra Prasad Ward Umarkhed                    ... Petitioner
      Tq. Umarkhed Dist. Yavatmal
      At Present District Prison, Yavatmal.

                      Versus
 1. State of Maharashtra,
    Through its Secretary, Home Department,
    (Special), Mantralaya, Mumbai.                       ...Respondents
 2. The Collector/District Magistrate,
    Yavatmal, Dist. Yavatmal.


Mr. Mir Nagman Ali, Advocate for petitioner.
Mr. V.A.Thakre, APP for respondent Nos.1 and 2.


      CORAM    : VINAY JOSHI, AND BHARAT P. DESHPANDE, JJ.

RESERVED ON : 20.04.2023.

PRONOUNCED ON : 21.04.2023.

JUDGMENT : (PER: Bharat P. Deshpande, J.)

Rule. Rule made returnable forthwith. Heard finally

by consent of the learned counsel for the respective parties.

(2) The petitioner is raising the challenge to the

impugned order dated 17.6.2022 passed by respondent No.2 under

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Section 3 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 'MPD Act'), thereby

ordering his detention as a dangerous person, which was approved by

the Government vide order dated 23.6.2022 and thereafter confirmed

vide order dated 21.7.2022.

(3) Heard Mr. Mir Nagman Ali, learned counsel for

petitioner and Mr. V.A.Thakre, learned APP for respondent Nos.1

and 2/State.

(4) Mr. Ali appearing for the petitioner raised three

main grounds, thereby raising challenge to the impugned order of

detention. His first ground is that there is no application of mind of

the detaining authority to the material placed before it thereby

vitiating the order. Secondly, the statements of witnesses recorded

in-camera are disclosing about stale and old instances, which have no

live-link or nexus with the order of detention. Thirdly, he claimed that

there are no proper translation of some of the documents specifically

the medical reports. Fourthly, he claimed that the offences alleged

against the detenue and relied upon in the grounds of detention has no

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nexus with public order and those offences are against individual.

(5) The learned APP appearing for the State claimed

that there is subjective satisfaction recorded by the detaining authority,

which is clear from the grounds and other material placed on record.

He invited our attention to the proposal forwarded by the concerned

Police Officer disclosing all the details and the offences in which the

detenue is involved. He submitted that there is no necessity to place

bail orders before the detaining authority when most of the offences

referred therein are bailable.

(6) We have considered the entire material on record

and accordingly, we propose to discuss the submissions qua the

grounds of detention so as to ascertain whether the detention order

could be considered as legally issued by following all the settled

proposition of law.

(7) Before considering rival contentions, recently, the

Hon'ble Apex Court in the case of Pramod Singla Vs. Union of India

and Ors. Special Leave Petition (Cri.) No.10798/2022 decided on

10.04.2023, it has been observed in para 21 as under:-

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"21. Before we deal with the issues framed, we find it important to note that preventive detention laws in India are a colonial legacy, and have a great potential to be abused and misused. Laws that have the ability to confer arbitrary powers to the State, must in all circumstances, be very critically examined, and must be used only in the rarest of rare cases. In cases of preventive detention, where the detenu is held in arrest not for a crime he has committed, but for a potential crime he may commit, the Court must always give every benefit of doubt in favour of the detenue, and even the slightest of errors in procedural compliances must result in favour of the detenu".

(8) Learned counsel Mr.Ali has placed reliance on the

following decisions:-

In cases of Khaja Bilal Ahmed Vs. State of Telangana

and others reported in 2020 ALL SCR (Cri) 1561; Ajay

Dixtt Vs. State of Uttar Pradesh reported in 1985 AIR

(SC) 18; Rushikesh Tanaji Bhoite Vs. State of

Maharashtra and Ors reported in 2012 ALL SCR 1373;

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Niyazuddin @ Sonu Sirajuddin Ansari Vs. State of

Maharashtra and Anr. reported in 2013 ALL MR (Cri)

3870; Niyazuddin @ Sonu Sirajuddin Ansari Vs. State of

Maharashtra and anr reported in 2014 (2) Bom.C.R.

(Cri) 826; Shahjahan w/o Kalimkhan Samshadkhan

Pathan Vs. State of Maharashtra and Anr. reported in

2016 ALL MR (Cri.)4233; Gokul Sahabrao Sabale Vs.

The Commissioner of Police Pune and Ors. Reported in

2017 ALL MR (Cri)2051 and Pramod Singla Vs. Union

of India and Ors. Special Leave Petition (Cri.)

No.10798/2022 decided on 10.04.2023,

(9) First of all, we would like to take into consideration

the grounds of detention and specifically two statements of the

witnesses recorded in-camera.

(10) The grounds of detention dated 17.6.2022 show

that on receipt of proposal from the concerned Police Station, which

refers to earlier criminal activities of the petitioner from the year 2019

wherein he is shown as involved in nine criminal activities. Para 4

discloses total nine offences in which the petitioner is found to be

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involved. These offences are basically IPC offences and the same are

not relied upon by the detaining authority for issuing order of

detention.

(11) Para 5 of the grounds of detention show that in all

four Chapter cases were initiated against the petitioner wherein

preventive detention action was initiated from the year 2019 till 2021.

It further shows in para 6 that inspite of such preventive action, the

petitioner continued his illegal activities and was found involved in

various offences.

(12) Para 8 of the grounds show that two offences

registered against the petitioner in the year 2021-2022 were taken into

consideration. It is claimed that these offences were committed within

the period of last six months. The first offence in which FIR was

lodged on 18.12.2021 vide Crime No.648/2021 at Police Station,

Umarkhed show that a mob of around 150-200 gathered in front of

Police Station, Umarkhed shouting slogans against a disputed video

uploaded on social media. Thereafter, the said mob pelted stones on

the shops, damaged vehicles of public and thereby committed offences

under Sections 141, 147, 148, 149, 336, 427, 116, 117, 153(A), 505

(2) of IPC Section 135 of Bombay Police Act and Section 7 of Criminal

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Fine Improvement Act, 1987. In the brief facts, it is claimed that the

petitioner's name was stated by one of the eye witnesses as part of the

said mob.

(13) The second offence registered at Umarkhed Police

Station is vide Crime No.341/2022 dated 24.2.2022 for the offences

punishable under Sections 341, 323, 504, 506 read with Section 34 of

the IPC and Section 4/25 of the Arms Act. The brief history, as stated

in para 8.2 of the grounds of detention, show that the accused along

with his associates stopped the motor-cycle of the complainant on

flimsy grounds, abused them, assaulted by kicks and blows and

threatened by showing a knife.

(14) The statements of witness A and witness B are

found mention in para nos. 9.1 and 9.2 of the grounds of detention.

The gist of statement of witness A shows that he know the petitioner

since last 4-5 years being anti-social person, without any job and use to

possess weapons. Witness A claimed that the petitioner is spreading

gundanisams, use to beat people and use to commit murder. The

petitioner also used to collect boys of the age group of 20-25 thereby

forming unlawful assembly and people are not coming forward to

lodge complaint against him. He then referred to some incidence dated

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17.12.2021 when some boys of one community uploaded controversial

video, due to which the petitioner and others formed unlawful

assembly, charged on the police station and damaged the property.

(15) At this stage, it is necessary to note that the incident

referred by witness A dated 17.12.2021 is the same for which offence

has been registered against the detenue and which is one of the

matters considered by the Detaining Authority vide Crime

No.648/2021 as found mention in para 8.1.

(16) Witness B in his statement referred to the criminal

activities of the petitioner and again referred to the same incidence of

17.12.2021 for which offence is already registered vide Crime No.

648/2021 against the detenue. This witness further refers to some

incidence about two years' back wherein he alleges that the detenue

forceably asked him to give money for carrying out business in his

area.

(17) Both these statements show endorsement of the

Assistant Superintendent of Police stating that he verified such

statements on 15.2.2022 by interacting with the witnesses and by

visiting the places stated by them and accordingly he satisfied that the

witnesses are giving true and correct disclosure.

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(18) First of all, it is observed that the grounds of

detention nowhere discloses that the detaining authority interacted

with the witnesses A and B so as to satisfy itself that the statements of

these witnesses and genuine to be true and or instances which they

disclosed were correct. There is no interaction by the detaining

authority with the Assistant Superintendent of Police, who verified

such statements. The copies of statements of witnesses A and

attached to the petition and provided to the detenue, nowhere show

any endorsement of the detaining authority so as to confirm that such

statements were perused by the detaining authority and said authority

considered that the witnesses were depicting true events. There is

absolutely no whisper in the grounds of detention as to on what count

the detaining authority found itself satisfied about the truthfulness or

genuineness of such statements made by the witnesses.

(19) This Court in the case of Shahjahan w/o Kalimkhan

Samshadkhan Pathan Vs. State of Maharashtra & Anr. 2016 ALL MR

(cri)4233 (supra), observed in para 5 that, in the absence of any

record of the statements being seen by the Commissioner of the Police

thereby affecting his subjective satisfaction, the petitioner is entitled to

succeed in the petition. These observations are clearly attracted to the

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matter in hand. There is no contemporaneous material placed before

us to show that the detaining authority had in fact verified the

statements and had any interaction with the Assistant Superintendent

of Police, who recorded his report. Similarly, by reproducing the

contents of statements of witness A and B in the grounds of detention

without the material to show that the detaining authority had in fact

interacted either with the witnesses or discussed it with the authority,

who verified such statements, the order of detention stands vitiated.

(20) The second ground is with regard to the stale

instances which the witnesses deposed. It was rightly argued by Mr.

Ali that so called instances stated by witnesses A and B are stale

instances which had no nexus or live-link. On these grounds also the

detention order needs to be set aside.

(21) Two offences, which have been referred to in the

order of detention and, more specifically, in para no.8 are concerned,

first offence vide Crime No.648/2021 is in connection with a mob of

around 200 persons. Though, the petitioner is shown as one of the

accused, it is necessary to consider the mob mentality specifically when

religious sentiments are tarnished. Such offence though considered as

an offence against public order, could not have beem considered for

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the purpose of taking such drastic step of detention.

(22) The second offence found in para 8 vide Crime

no.341/2022 is purely against an individual and the brief facts show

that the dispute arose on the spur of moment due to traffic violation.

Such offence, by no stretch of imagination, could be considered as

against the public order.

(23) The third ground, the learned counsel tried to raise

is non-supply of translation of the medical certificates. However, he

candidly accepted that the medical terminology mentioned in such

certificate specifically the nature of injuries, which are not possible to

be translated literally and, therefore, he did not press the said ground.

(24) Since, we are satisfied that the detention order on

the above discussion needs to be quashed and set aside, we are not

inclined to refer to the other decisions cited by Mr. Ali which would

only burden the judgment.

(25) On careful consideration, we found that the

impugned detention order needs to be quashed and set aside for the

reasons stated above. The petition is, therefore, stands allowed as per

prayer clause (i), which reads as under:

"pass any appropriate writ order or direction and thereby quash and set aside the impugned order dated

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17.06.2022 (Annexure No.I) passed by Respondent No.2, Collector, Yavatmal."

(26) The petitioner shall be set at liberty at once, if not

required in any other offence.

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

Ambulkar

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