Suraj @ Lalla Kalicharan Thakur ... vs The State Of Mah. Thr. Home Dep. ...
2023 Latest Caselaw 4387 Bom

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

                CRIMINAL WRIT PETITION NO. 74 OF 2023

 PETITIONER:                   Suraj @ Lalla Kalicharan Thakur (in Jail)
                               Aged about 27 years, Occu-Labourer,
                               R/o Ravi Nagacor, Paratwada,
                               Dist. Amravati.

                               Through
                               Kalicharan s/o Panchan Singh Thakur
                               (Father of the Petitioner)
                               Aged about 60 years,
                               Occu - Labourer, R/o Ravi Nagar,
                               Paratwada, Dist. Amravati.

                               VERSUS

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

                               2.    Collector & District Magistrate,
                                     Amravati, Distt. Amravati.
 -------------------------------------------------------------------------------------------
 Shri Anil Mardikar, Senior Counsel with Shri D. P. Singh, Advocate
 for petitioner.
 Shri A. M. Kadukar, Additional Public Prosecutor for respondent
 Nos.1 and 2.
 -------------------------------------------------------------------------------------------
                               CORAM: VINAY JOSHI AND
                                             BHARAT P. DESHPANDE, JJ.

 JUDGMENT RESERVED ON                          : 12/04/2023

 JUDGMENT PRONOUNCED ON :                         28/04/2023


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

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1. Rule. Rule made returnable forthwith. Heard the

learned counsel for the parties with consent.

2. The petitioner through his father is questioning the

legality or otherwise of the impugned order dated 20/10/2022

passed by respondent No.2 / District Magistrate, Amravati under

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 (MPDA Act),

along with order passed by respondent No.1 dated 24/11/2022

confirming the detention, for a period of 12 months from the date

of order of detention.

3. Shri Anil Mardikar, learned Senior Counsel appearing

for the petitioner vehemently submitted that both the impugned

orders are bad in law, without application of mind and without

recording subjective satisfaction about the activities allegedly

carried out by the detenue. He would submit that the detention

order is basically violating the principles on four grounds. Firstly,

he submitted that there is no interaction with the Witnesses 'A' and

'B' either by the Sub-Divisional Police Officer (SDPO) or by the

Detaining Authority to record their subjective satisfaction or

correctness of the statements given by the witnesses. Secondly, he

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claimed that the Detaining Authority failed to consider the bail

orders passed in different matters. The copies of such bail orders

were not furnished or produced before the Detaining Authority

and that such fact has not been considered before passing the

detention order. Thirdly, he claimed that the alleged activities of

the detenue are mostly against individuals and would at the most

amount to law and order problem, but not against the public

order. Lastly, he claimed that there is unexplained delay in service

of confirmation order on the detenue, which resulted in filing

effective representation or the petition. Shri Anil Mardikar, learned

Senior Counsel relied upon the following decisions :-

i] Criminal Writ Petition No.360/2022 (Sachin Gajananrao

Telgote Vrs. The State of Maharashtra and others, decided on

04/01/2023. ii] Criminal Writ Petition No.73/2022 and other

connected matters (Smt. Bismilah wd/o Sheikh Rahim Vrs. The

State of Maharashtra and another, decided on 21/10/2022, iii]

Abdul Sathar Ibrahim Manik Vrs. Union of India and others,

reported in (1992) 1 SCC 1, iv] Criminal Writ Petition

No.470/2006 (Manoj s/o Dilip Trivedi Vrs. The State of

Maharashtra and others, decided on 02/02/2007, v] Elizabeth

Ranibhai Prabhudas Gaikwad Vrs. The State of Maharashtra and

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another, decided on 15/02/2021 and vi] Criminal Writ Petition

No.477/2021 (Indragol Debaji Ramchawre Vrs. The State of

Maharashtra and another, decided on 27/10/2021.

4. Shri A. M. Kadukar, learned Additional Public

Prosecutor appearing for respondent Nos.1 and 2-State, per

contra, submitted that the grounds of detention give all the

relative details, which clearly goes to show that the Detaining

Authority considered entire material placed before it and arrived

at subjective satisfaction which, according to him, is based on legal

principles. There is no illegality committed by the Detaining

Authority while taking such drastic step. He would submit that

SDPO had interaction with both the witnesses, visited place

mentioned by them and only thereafter, submitted his report,

which has been perused by the Detaining Authority as part of

material. He then would submit that the bail orders were

considered by the Detaining Authority which are reflected in the

grounds of detention. He further submitted that the activities in

which detenue is involved affect the public order and there is fear

in the mind of persons residing in the locality which is preventing

them from approaching Law Enforcing Agency as well as the Court

to depose freely against the detenue. He then submitted that the

instances considered by the Detaining Authority is having live link

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with the detention order. Learned APP placed reliance on the

following decisions :-

i] Salauddin Immuddin Ansari and another Vrs. State of Maharashtra and others, reported in 2020 ALLMR (Cri) 1641 and ii] Jagdish Suresh Kudekar Vrs. Commissioner of Police, Thane and others, reported in 2020 ALLMR (Cri) 3898.

5. Rival contentions fall for determination of this Court as

under :-

6. The detention order was passed by respondent No.2

dated 20/10/2022, thereby exercising the powers vested in it

under Section 3(1) of the MPDA Act. Apart from serving detention

order and committal order, the grounds of detention along with

relevant documents were also served upon the detenue on

20/10/2022 itself.

7. Perusal of the grounds of detention would show that

the Detaining Authority considered the detenue as a dangerous

person, who is found involved in the offences like murder, attempt

to murder, robbery, dacoity, with attempt to cause death or a

grievous hurt, putting persons in fear of injury in order to commit

extortion, causing disappearance of evidence of offence or giving

false information to screen the offenders criminal conspiracy,

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voluntary causing hurt by dangerous weapons, rioting, intentional

insult with intent to provoke breach of peace, criminal

intimidation, illegal possession of arms within the territorial

jurisdiction of Paratwada and Achalpur Police Stations. The

offences registered against the detenue are basically cover under

Chapter XVI and XVII of Indian Penal Code and Chapter V of the

Arms Act.

8. Para No.3 of the grounds of detention show the total

seven offences are registered from the year 2013 till the year

2022. Similarly, preventive action was taken against the detenue

vide Chapter Case No.38/2017 and Bond was executed for good

behaviour for a period of three years. Though all seven offences

were not considered by the Detaining Authority for the present

order of detention, only two offences registered in the year 2022

at Paratwada Police Station were taken into consideration along

with in-camera statements of witnesses A and B, as found in Para

No.4.

9. The first offence which was taken into consideration is

vide Crime No.359/2022 registered on 18/05/2022 at Paratwada

Police Station for the offences punishable under Sections 307, 397,

324, 504, read with Section 34 of the IPC. The status of this

matter is shown as pending in Court.

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10. In Para No.4.2 of the grounds of detention, details of

Crime No.359/2022 are disclosed. The complainant by name Sunil

Khobragade lodged a written complaint on 17/05/2022 claiming

therein that he was working with Kisan Kamble and Pravin Dakode

in Gajanan Enterprises Shop, two persons on a motorcycle came in

front of shop at around 8.15 p.m. and ransacked articles kept

outside the shop. On saying that a complainant Kisan Kamble

questioned said two persons, one of them started beating Kisan

Kamble with fist blows. The owner of the shop of Pravin Dakode

tried to intervene. However, he was pushed and abused. One of

the assailants hit on the head of Pravin with some weapon in his

hand. The second person took a knife from his pant and caused

injury to Kisan by stabbing him at his abdomen and waist. It is

claimed that offence was registered against the detenue and two

others. The detenue was arrested on 19/05/2022 in the said

offence and after obtaining initial Magisterial Custody Remand

(MCR), detenue applied for bail, which was rejected by the

Sessions Court. Accordingly, detenue applied for bail before this

Court. But, it was withdrawn since the charge sheet was not filed.

In the meantime, charge sheet was filed and the detenue again

applied for bail before the Additional Sessions Judge, Achalpur

who allowed him and released the detenue on bail on 24.08.2022.

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11. Second offence which is relied upon by the Detaining

Authority is registered under Crime No.360/2022 dated

18/05/2022 for the offence punishable under Section 324 r/w

Section 34 of the IPC. Para No.4.1 of the grounds of detention

shows the details of the said offence. One Sagar Tandilkar lodged

his written complaint on 18/05/2022 at Paratwada Police Station

stating that when there was person in his house on 17/05/2022 at

about 9.45 p.m., the detenue along with his two friends came at

his house and questioned him as to why he is providing

information to Muslims. The complainant told the detenue and his

associates not to fight in front of his house. Accordingly, the

detenue called the complainant behind one hospital and in the

lane, where the detenue took out a sharp aged knife hidden under

his waist and told his associates to catch hold of the complainant.

The complainant on saying they never tried to escape but detenue

managed to assault at his back with the sharp aged knife causing

bleeding injury. During investigation, detenue was arrested on

19/05/2022 and after obtaining MCR, he was released on bail on

20/06/2022.

12. Apart from these two offences, the Detaining Authority

considered the statements recorded in-camera of witnesses A and

B which are discussed in Para No.5 of the grounds of detention.

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The witness A claimed that he knows the detenue since many

years who is indulging himself in serious offence of murder,

attempt to murder, rioting, etc. and being a habitual offender. He

further stated that the detenue has created a gang by name Lalla

and there is apprehension of this gang in the mind of people

residing in Achalpur and Paratwada city, due to their criminal

activities. He then stated that somewhere in the first week of

September, 2022 when he was returning him at around 9.30 p.m.,

the detenue suddenly stopped him near Paratwada ST Stand and

at that time, the detenue has sharp aged weapon like sword in his

hand. The detenue threatened the witnesses by saying that he has

been released from jail recently and he wants Rs.5,000/- as

installment for running the business, from the said witness. When

the witness disclosed that he is not having money, the detenue

knocked him down and then pointed sword at his abdomen and

then forcibly removed from his pocket. This incident was

witnessed by the passers-by and mob gathered nearby. However,

the detenue by showing them sword, threatened them to leave the

place.

13. Witness B stated that he is also aware about the

criminal activities of the detenue from last 10 years and about his

gang by name Lalla. He stated that somewhere in the third week

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of September, 2022 when there was a person in his shop, the

detenue along with his 2 - 3 associates came to the shop and

threatened the witnesses by saying that he has to pay Rs.20,000/-

per month to him in order to conduct business in that area. When

the Witnesses showed his inability, the detenue placed the knife on

his neck and grabbed Rs.8,000/- from him. The witness tried to

call for the help, but no one came forward due to fear of the

detenue. He did not even register the complaint since he was

threatened by the detenue not to go to the Police.

14. The Detaining Authority therefore observed that the

activities of the denue are against the public order and disturbing

the tempo of life. People residing in the locality are having fear of

their life and property who are not coming forward either to lodge

complaint or to depose in the Court of Law against the detenue.

Thus, the detenue is considered as a dangerous person as defined

in Section 2 of the MPDA Act.

15. The Detaining Authority further observed that in spite

of preventive action and registration of FIR, the detenue is

continuing his activities to the detriment of the society and all the

normal law remedies were found ineffective. The Detaining

Authority therefore, considered and recorded subjective

satisfaction that if the detenue is not detained, he would continue

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his criminal activities which are prejudicial in any manner to the

maintenance of public order.

16. Para No.10 of the grounds of detention further show

that the documents placed before the Detaining Authority were

perused and only thereafter subjective satisfaction was recorded

that there is need to detain the detenue in order to prevent him

from disturbing the public life. It was specifically observed that the

Detaining Authority is aware that the detenue was released on bail

in all pending cases. However, he is in habit of continuing such

activities and there is likelihood that the detenue would involve

himself in further criminal activities.

17. With these specific grounds supplied to the detenue

along with all necessary documents, the submission advanced on

behalf of the detenue would have to be taken into account.

18. In the recent decisions of 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 is observed in

para 21 as under:

"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

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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".

19. In para 32, the Apex Court observed as under :

"32. As can be seen from the provisions of the above mentioned Acts, the detention order under both laws can be passed either by the Government, or by the specially empowered officer. However, under Section 3 of Preventive Detention Act, the specially empowered Officer, within 12 days of the detention, has to seek for an approval from the Government for continued detention, and only if the Government approves the same can the detention be continued. This process of seeking an approval from the Government is essentially a transfer of power from the empowered officer to the Government, making the Government the Detaining Authority after the initial lapse of 12 days".

20. In the case of Abdul Sathar Ibrahim Manik (supra), the

Hon'ble Supreme Court while dealing with the detention order

passed under COFEPOSA Act observed that even if bail application

and order are not placed before the Detaining Authority or even if

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placed, if the Detaining Authority does not refer to or rely upon or

has failed to take into consideration, that by itself does not lead to

an inference that there was suppression of relevant material or in

the alternative that there was non-application of mind or that

subjective satisfaction was impaired. When these documents are

neither referred to nor relied upon, there is no need to supply the

same to the detenue. In that case, a specific ground was raised

that the detenue was in custody and his bail application was

rejected. The application for bail and the order of rejection were

not placed before the Detaining Authority and therefore, it was

claimed that there was suppression of material fact.

21. Applying the same principles, perusal of the grounds of

detention specifically shows that though Para No.3 refer to seven

offences, only two offences registered in the year 2022 were taken

into account for passing the detention order. However, while

giving gist of both these offences, in Para Nos.4.1 and 4.2, the

Detaining Authority specifically referred the fact that the bail

orders were passed by the Courts which were perused by the

Detaining Authority. Similarly in Para No.10 of the grounds of

detention, the Detaining Authority has referred specifically about

the knowledge possessed by the Detaining Authority that the

detenue was released on bail in all the offences mentioned in Para

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No.3. The copies of bail orders which were passed by the learned

Magistrate and the Additional Sessions Judge and the offences

registered against the detenue in the year 2022 are already placed

and the copies were supplied to the detenue. Remaining bail

applications or orders of the offence from Sr.Nos.1 to 5 found in

Para No.3 are neither relied upon nor considered except the fact

that the detenue was granted bail in such offence by the Court.

Thus, submissions regarding suppression of material documents

and more particularly of the bail orders, has no substance.

22. The Detaining Authority was well aware about the

orders passed while releasing the detenue on bail in all the said

offences. The Detaining Authority also recorded that in spite of

grant of bail in all the said offences, the detenue is likely to

commit similar offence, thereby creating disturbance and the

tempo of life in the society thereby disturbing public order.

23. 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 MPDA Act and itself between

public order and law and order. It was held that disturbance of

public order is to be distinguished from the acts directed against

individual which do not disturb the society to the extent of causing

general disturbance of public tranquility. The degree of

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disturbance and its effect upon the life of community in a locality

determines whether disturbance amounts to only breach of law

and order. The question whether man has 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 reach of the act upon the society.

24. Keeping in mind the distinguishing features and the

settled principles of law laid down by the Hon'ble Apex Court

which segregates law and order from public order, it becomes

necessary to find out whether the acts alleged against the detenue

in the detention order fall within public order or law and order, as

the case may be.

25. The genesis of the detention order lies only in

registration of two offences in the year 2022 together with the

statements recorded in-camera has discussed earlier. It is also

necessary to note that in all the matters pending against the

detenue, he has been released on bail by different Courts,

including this Court in Criminal Application (BA) No.1245/2021

which relates to Crime No.401/2018 registered at Paratwada

Police Station for the offences punishable under Sections 302, 201

and 120-B r/w Section 34 of the Indian Penal Code, Section 135 of

the Maharashtra Police Act and Sections 4/25 of the Arms Act.

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26. The grounds of detention and the gist of two offences

registered against the detenue show that the offences under Crime

No.359/2022 for the offences punishable under Sections 307, 397,

324, 504, 34 of the IPC is concerned, the allegations in the

complaint are against two unknown persons. Final Report filed

before the learned Magistrate at Achalpur shows that the

complainant by name Sunil Khobragade alleged that two persons

on a motorcycle came in front of the shop and then ransacked the

table, chair, cooler and other articles kept in front of shop and

when they questioned, one of the assailants assaulted Kisan with

fists and kicks. Whereas other person assaulted a shop owner by

name Pravin, with some weapon on his head. Similarly, second

assailant took out knife from his pant pocket and assaulted Kisan

Kamble on his stomach. The said complainant by name Sunil

claimed that both the assailants were unknown to him. However,

they were caught by some local persons with the help of police

and only thereafter, he mentioned their names, as Aditya Mangrule

and Suraj Ahir. A oral report of Sunil is at Page No.149 and 150 of

the grounds of detention wherein there is no reference of name of

detenue. Surprisingly, the charge sheet is filed against three

persons including the detenue wherein he has been released on

bail.

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27. Be that as it may, the fact remains that the detenue has

been named as one of the accused in Crime No.359/2022, arrested

by the Investigating Agency and later on, released on bail by the

Court. The bail order dated 24/08/2022 passed by the Additional

Sessions Judge was placed before the Detaining Authority and

copy of it has been supplied to the detenue along with ground of

detention. Even copy of bail application filed by the detenue vide

Criminal Bail Application No.448/2022 before the Additional

Sessions Judge at Achalpur and reply of the Investigating Agency

are also on record. Thus, for considering the detenue has involved

in such offence on prima facie ground, relevant material has been

placed and considered by the Detaining Authority.

28. The second offence which has been considered by the

Detaining Authority in Crime No.360/2022, gist of which is found

in Para No.4.1 of the grounds of detention. A complaint was

lodged by one Sagar on 18/05/2022 at Paratwada Police Station

claiming that when he was in his residence on 17/05/2022 at

about 9.45 p.m., the detenue along with his two friends came at

his residence and questioned him as to why he is supplying

information. At that time, the complainant told the detenue not to

fight in front of his house. Accordingly, the detenue called the

complainant behind Bhansali Hospital and in a lane going from

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the front of Gou Mata Milk Dairy. The detenue took out sharp aged

knife and instructed his friends to catch hold of the complainant.

When the complainant tried to escape, the detenue assaulted him

on his back near the waist with the sharp edged weapon causing

heading injury.

29. The grounds of detention further show that the

Detaining Authority has informed that the detenue was arrested

on 19/05/2022, produced before the Magistrate, granted MCR

and then released on bail vide order dated 20/06/2022. There is

clear observation that the bail order dated 20/06/2022 was

perused by the Detaining Authority. This order is also part and

parcel of the documents placed before the Detaining Authority and

copies supplied to the detenue.

30. Both these offences are covered under Chapters XVI

and XVII of the Indian Penal Code and clearly goes to show that

the actions on the part of detenue created apprehension and terror

in the mind of general public.

31. Returning back to the statements of two Witnesses A

and B and the submissions of learned Senior Counsel regarding

non-verification of such statements, first of all, both these

statements produced along with grounds of detention show that

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the Sub-Divisional Police Officer, Achalpur interacted with both

these witnesses personally and visited the spot on 10/10/2022 and

then recorded his opinion that the witnesses disclosed true facts.

Below such report of the Sub-Divisional Police Officer, there is

endorsement of the Detaining Authority stating "verified".

Similarly, in Para No.12 of the grounds of detention, the Detaining

Authority has specifically observed as under :-

"The Sub-Divisional Police Officer, Achalpur Division, Amravati Rural has testified the witnesses "A" & "B" and submitted report to me. In the said report Sub-Divisional Police Officer, Achalpur Division, Amravati Rural has mentioned that, the facts of the incident and the apprehension expressed by the witnesses "A" & "B" in their statement are true and reasonable. After perusing the said report I am satisfied that the facts of incident and the apprehension expressed by the witnesses "A" & "B" in their statement are true and reasonable."

32. It is thus, clear that the Detaining Authority verified the

report of Sub-Divisional Police Officer, Achalpur and on perusal of

the statements of both the witnesses, recorded his subjective

satisfaction.

33. Apart from this, the Detaining Authority also relied

upon two complaints received by unknown person dated

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14/09/2022 and 09/09/2022, the copies of which are attached to

the grounds of detention. In both these complaints, the name of

the complainant is not mentioned only because such complainant

is apprehending fear of the activities of the detenue and a backlash

on him if he discloses his name. Both these complaints show the

criminal activities of the detenue and fear in the mind of general

public.

34. There is no requirements on the part of the Detaining

Authority to personally interact with the Witnesses A and B.

However, if the subjective satisfaction is recorded on the basis of

verification carried out by the Sub-Divisional Police Officer and

perused by the Detaining Authority, would suffice the purpose.

35. The material placed before the Detaining Authority

along with verification of Sub-Divisional Police Officer after

personally interacting with the witnesses and perusal of it by the

Detaining Authority would show that subjective satisfaction has

been arrived at on the basis of contemporaneous documents and

material which cannot be lightly brushed aside.

36. Another submission of learned Senior Counsel is

regarding live link activities referred by the Detaining Authority or

the witnesses. In this respect, it would be suffice to refer to the

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offences which have been considered by the Detaining Authority

for the purpose of passing detention order and as found in Para

Nos.4.1 and 4.2 respectively. Both these offences were registered

on 18/05/2022. The offence vide Crime No.360/2022 took place

on 17/05/2022 at around 9.45 p.m. Similarly, Crime No.359/2022

is at around 8.15 p.m. on 17/05/2022 itself. Both these offences

are within the jurisdiction of Paratwada Police Station. It shows

that within a span of one and half hour, these offences were

allegedly committed by the detenue along with his associates. The

Witnesses A and B referred to the incidences which took place in

the first and third week of September, 2022. Admittedly, the

detenue had released on bail in Crime No.360/2022 on

20/06/2022 and in Crime No.359/2022 on 24/08/2022.

Therefore, in the month of September, 2022, the detenue was free

person though was on bail. The order of detention was passed on

20/10/2022 on the basis of proposal. Therefore, the contention

raised on behalf of the detenue that there is no live link, has no

substance at all. Two offences were committed within a span of

one and half hour and immediately after released on bail, the

detenue was found indulging in similar activities. Thus, such

submission has no force.

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37. It is further contended that the alleged offences against

the detenue are only against individuals and at the most, affect the

law and order, but not the public order. We are unable to accept

such contention for the simple reason that the Detaining Authority

discussed in a great detail about the activities of the detenue and

fear in the mind of public and how such activities are affecting

public order. It is also recorded by the Detaining Authority that the

people in the said locality are having serious apprehension and no

one is coming forward to give complaint or say a word against the

detenue. There is terror created by the gang formed by the

detenue who carried out their illegal activities of extortion, bodily

offences, threats, etc. We have discussed in Pramod Singla (supra)

the distinction between the law and order and public order.

38. The next ground which is found in the petition and

more specifically in Para No.18 is in connection with powers of

Detaining Authority / Government to pass order under Section 3

of the MPDA Act. It is the contention of the detenue that at the

first instance, the order has to be passed only for six months and

the order of detention nowhere discloses the period of detention

and therefore, it is clear contravention of the settled proposition.

39. Above submission / ground is of no substance at all.

First of all, provisions under Section 3 of MPDA Act along with

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Section 12 of the said Act nowhere discloses that about period of

detention. Only in Section 13 of the said Act, maximum period for

which any person may be detained is mentioned as 12 months and

that too when it is confirmed by the Government. In fact, the order

which the Detaining Authority on the basis of delegation of

powers, is entitled to pass is referred in Section 3(3) wherein it is

provided that such order made by the Authority under the powers

of delegation, shall remain in force not more than 12 days after

making it unless in the meantime, it has been approved by the

State Government. Thus, the Legislature clearly mentioned that

the order passed by the District Magistrate / Police Commissioner

as the case may be, on being delegated with such powers under

Section 3(2), shall remain in force only for a period of 12 days

from the date of making such order unless such order is approved

by the Government.

40. The provisions of Section 3(2) read with proviso

appended to it only deals with the time limit by which State

Government is empowered to delegate its powers of detention to

specific officers i.e. the District Magistrate or Police Commissioner.

Such order of delegation is only for a period of six months, which

the State Government may extend from time to time, but not

exceeding further six months at a time. Above aspect was

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considered by us in Criminal Writ Petition No.22/2023 in the case

of Himanshu s/o Dinesh Roy Vrs. Commissioner of Police and

another, decided on 03/04/2023. While doing so, we have

referred the decision of the Hon'ble Apex Court in the matter of

Mrs. T. Devaki Vrs. Government of Tamil Nadu and others,

reported in AIR 1990 SC 1086. The Hon'ble Apex Court in the case

of Mrs. T. Devaki (supra) discussed the scope of Section 3 of MPDA

Act, which is pari materia to Tamil Nadu Preventive Detention Act

and observed that the period of six months mentioned in the

proviso to Section 3(2) cannot be confused with the period of

detention as it only refers to period of delegation of powers and

not period of detention of the detenue.

41. Since all the necessary documents including bail

applications and orders were placed before the Detaining

Authority and considered as found in the grounds of detention,

observations in the case of Manoj s/o Dilip Trivedi (supra),

Elizabeth Ranibhai Prabhudas Gaikwad (supra) and Indragol

Debaji Ramchawre (supra) are of no help to the petitioner.

Similarly, in the case of Smt. Bismilah wd/o Sheikh Rahim, the

matter was decided on its own facts which are not helpful to the

petitioner and therefore, such decision will not be helpful. In the

case of Sachin Gajananrao Telgote, the Coordinate Bench of this

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Court considered the decisions of Hon'ble Apex Court which

distinguish concept of public order and law and order. We have

already referred one decision of the Hon'ble Apex Court in detail.

42. Having said so, the grounds of detention and the

documents relied upon by the Detaining Authority would clearly

go to show that subjective satisfaction of the Detaining Authority

has been arrived at by perusing entire material including

verification of the statements of witnesses recorded in-camera, two

complaints of the locality without disclosing their names, two

criminal cases in which the detenue is allegedly found involved

and therefore, we are unable to accept the submissions advanced

on behalf of the detenue so as to disturb such reasoned findings.

43. It has been submitted that there is unexplained delay in

serving confirmation order on the detenue. In this respect, Section

10 of the MPDA Act needs to be looked into, wherein it is provided

that in every case where the detention order has been made under

the said Act, the State Government shall within three weeks from

the date of detention of a person, placed before the Advisory

Board constituted under Section 9, ground on which the order has

been made and the representation of the detenue, if any, along

with the order made by the officer empowered under Sub-Section

(3) of Section 3.

26 21-J-WP-74-2023.doc

44. Section 11 further provides that the Advisory Board of

considering the material placed before it and on calling for such

further information that it may deem necessary from the

Government or from the person and after hearing the person

against whom the order is passed, if so considering necessary,

submit its report to the State Government within seven weeks

from the date of detention of the person. Section 12 then

empowers the Government to confirm the detention order as per

the advice of the Board and continue detention of such person for

such period not exceeding maximum period prescribed under

Section 13. In case, the Advisory Board has reported that there is

no sufficient cause for detention, the State Government shall

revoke the detention order and release the person forthwith.

45. In the present case, the matter was placed before the

Advisory Board who opined that there is sufficient cause to

continue detention and only thereafter, the State Government vide

its order dated 24/11/2022 confirmed the said detention for a

period of 12 months from the date of order. The detention order

was passed on 20/10/2022 whereas the confirmation order was

passed by the Government on 24/11/2022. It shows that such

order was confirmed within a period of five weeks from the date of

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order of detention. Thus, there is no delay on confirming the order

of detention by the Government.

46. We, therefore, find no substance in the challenge raised

by the petitioner in the present writ petition.

47. For the reasons recorded above, the petition is,

therefore, devoid of merit and liable to be dismissed.

48. The petition is therefore, dismissed. Rule stands

discharged.

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



Choulwar