Aniket S/O Dilip Kale vs State Of Mha. Thr. Its Secretary ...
2023 Latest Caselaw 1100 Bom

                                      1                26-J-WP-484-22.doc


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

              CRIMINAL WRIT PETITION NO. 484 OF 2022

PETITIONER:                  Aniket s/o Dilip Kale,
                             aged 31 years, resident of plot no.983,
                             Ashirwad Nagar, Nagpur,
                             Police Station Sakkardara,
                             Nagpur.

                             VERSUS

RESPONDENTS :                1.    State of Maharashtra,
                                   Through its Secretary,
                                   Department of Home,
                                   Mantralaya, Mumbai-32.

                             2.    State of Maharashtra
                                   Through Police Commissioner,
                                   Nagpur, District Nagpur.

                             3.     State of Maharashtra,
                                    Through Police Station,
                                    Sakkardara, Nagpur.
-------------------------------------------------------------------------------------------
Shri U. P. Dable, Advocate for petitioner.
Shri S. S. Doifode, Additional Public Prosecutor for respondent
Nos.1 to 3.
-------------------------------------------------------------------------------------------
                              CORAM:- VINAY JOSHI AND
                                             VALMIKI SA MENEZES, JJ.

RESERVED ON                  : 23/01/2023.

PRONOUNCED ON                : 02/02/2023.

JUDGMENT : (PER VALMIKI SA MENEZES, J.) :

1. Rule. Rule made returnable forthwith. Heard finally

with the consent of learned counsel appearing for the parties.

2 26-J-WP-484-22.doc

2. By this writ petition under Article 226 of the

Constitution of India, the petitioner challenges the order dated

31/03/2022 passed by the Commissioner of Police, Nagpur City

under 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 (hereinafter

referred to as "MPDA Act"), of preventive detention of the

petitioner, since 31/03/2022. The petitioner further impugns order

dated 05/05/2022 passed by the Home Department of the

Government of Maharashtra, confirming the detention of the

petitioner under order dated 31/03/2022.

3. It is the case of the petitioner that the order of

detention dated 31/03/2022 is essentially based upon two

offences alleged against him the first being Crime No.662/2021

alleged to have been committed by the petitioner at Hudkeshwar

on 04/10/2021 for the offences punishable under Sections 252,

294, 506, 323 r/w Section 34 of the Indian Penal Code

(Hereinafter referred to as "the first offence") and the second

offence, which is alleged to have been taken place at Sakkardara

in Crime No.530/2021 on 05/10/2021 for the offences punishable

under Sections 386, 143, 147, 149 and 427 of the Indian Penal 3 26-J-WP-484-22.doc

Code (Hereinafter referred to as "the second offence").

It is contended by the petitioner that on the first

offence, Criminal Case No.1056/2022 was filed before the Judicial

Magistrate First Class at Nagpur on 02/03/2022, wherein the

petitioner was enlarged on bail by the order of Magistrate dated

11/10/2021. On the second offence, Criminal Case No.367/2022

was filed against the petitioner before the Judicial Magistrate, First

Class, Nagpur on 08/01/2022, wherein the petitioner was

enlarged on bail by order dated 07/10/2021 by the Judicial

Magistrate First Class (M.V. Court) Nagpur. According to the

record of the Detaining Authority, both these cases were pending

before the concerned Magistrate as on the date of passing of the

impugned order.

4. That the record before the Detaining Authority further

also discloses that the authority relied upon the statements of two

witnesses, which were recorded in camera by the authority, in

order to protect their identity, for the purpose of passing the

impugned order. It is the contention of the petitioner that though

both the orders of granting bail to the petitioner formed part of

the record before the Detaining Authority, there is total non-

consideration of the reasons contained in the bail orders for

enlarging the petitioner on bail. It is further submitted that the 4 26-J-WP-484-22.doc

complete non-consideration by the Detaining Authority of the

reasoning given by the Magistrates in both these bail orders,

would imply that there was no application of mind, while passing

the impugned order, nor was there subjective satisfaction recorded

by the Detaining Authority on the basis of the actual material

placed before it.

5. It is further submitted by the petitioner, as can be seen

from the grounds urged in the petition, that the two in camera

statements recorded by the Detaining Authority were both stale

instances of alleged offence against the petitioner and they could

not be relied upon since consideration of such stale allegations

would not give the Detaining Authority a live cause for proceeding

against the petitioner under the MPDA Act.

A further ground is urged in the petition that apart

from the fact that none of the offences alleged to have been

committed by the petitioner, took place at a public place, as is

required by the provisions of the MPDA Act, and as such the

incidents could not have been considered by the Detaining

Authority as forming the ground for the action contemplated. It

was the further ground raised in the petition that neither the first

offence nor the second offence referred to in the impugned order

would be considered a "public order" situation and at the most, the 5 26-J-WP-484-22.doc

allegations about the said two offences could be termed as law and

order situation. In the absence of any of the allegations of a public

order situation, the Detaining Authority would lack jurisdiction to

proceed with an action in terms of Section 3(1) of the MPDA Act.

6. Relying upon the Judgment of the Hon'ble Supreme

Court in Shaik Nazneen Versus The State of Telangana and others,

reported in 2022 Live Law (SC) 559 and the Judgment of this

Court dated 17/11/2021 in Criminal Writ Petition No.457/2021

(Shri Yash s/o Anil Tekam Vrs. State of Maharashtra and others)

for the proposition that the preventive detention being an

exceptional power, could be exercised only after recording

satisfaction and based on incidents, which constitute a breach of

public order situation and not otherwise.

7. The respondents filed an affidavit-in-reply dated

29/08/2022 supporting the impugned orders.

8. We have heard Shri Dable, learned counsel for the

petitioner and Shri Doifode, learned Additional Public Prosecutor

for respondent Nos.1 to 3. We have perused the record of the

petition.

9. Learned counsel for the petitioner submits that the

impugned order passed by the respondent No.2 is vitiated by the 6 26-J-WP-484-22.doc

fact that it has not made any reference to, or even considered the

reasoning contained in the two bail orders passed by the Judicial

Magistrate First Class in favour of the petitioner, while releasing

him on first and second offences. He further submits that in

camera statements relied upon by the Detaining Authority are

completely devoid of the details, such as the place of alleged

offence committed by the petitioner, or the time or that the alleged

acts were committed in public place in a manner that would

directly be prejudicial to the maintenance of public order. Learned

counsel for the petitioner further argues that the impugned order

makes no reference to the particulars of the offences alleged

against the petitioner that constitute the first and second offence,

which was pending trial before the Magistrate. He contends that

neither of the two offences would constitute an offence that would

be prejudicial to the maintenance of public order or would be of a

nature that creates a public order situation, but at the most, would

be termed as law and order situation. He further contends that the

incidents alleged in camera statements for both witnesses are stale

statements having no proximity in time to the impugned order, the

first statement being one dated 21/02/2021, which is more than a

year before the impugned order was passed. The second in camera

statement, which is dated 25/02/2022 appears to have been 7 26-J-WP-484-22.doc

created only to cover the gap between the two alleged offences

dated 04/10/2021 and 05/10/2021 which were themselves more

than five months prior in point of time to the passing of the

impugned order. Therefore, there is no live connection between

the passing of the impugned order and the incidents complained

of.

10. Shri Doifode, learned Additional Public Prosecutor

appearing for respondent Nos.1 to 3 has supported the impugned

order and taken us through various Paragraphs contained therein,

which make reference to the bail orders passed by the Judicial

Magistrate First Class on the first offence and the second offence

and contends that by referring to all these orders, the Detaining

Authority has considered the reasoning contained in the bail

orders. He further argues that in camera statements referred to, in

the impugned order clearly set out the acts of extortion committed

by the petitioner and the fear wreaked by the petitioner amongst

the public at large and therefore, this constitutes a public order

situation. He then took us through the order dated 05/05/2022 of

the Government of Maharashtra confirming the detention order

and submits that the same was passed after considering all the

material forming an opinion, which was also based on the report

of the Advisory Board, which opined in favour of confirmation of 8 26-J-WP-484-22.doc

the detention order.

11. Section 3 of the MPDA Act reads as under :

"3. Power to make orders detaining certain persons

(1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.

(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order such District Magistrate or Commissioner of Police may also if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section :

Provided that the period specified in the order made by the State Government under this sub-section shall not, in the first instance, exceed 1[six months] but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding 1[six months] at any one time.

(3) When any order is made under this section by an officer mentioned in sub-section (2), he shall 9 26-J-WP-484-22.doc

forthwith report the fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government."

12. A plain reading of sub-section (1) of Section 3 of the

MPDA Act clearly sets out that invocation of this provision can be

only for the purpose of preventing a person from acting in any

manner prejudicial to the maintenance of public order. The

provision does not empower the State Government to detain a

person for any other reason than for maintaining public order and

when it intends to do so, it must record its satisfaction on the basis

of material before it, for concluding why such order required to be

made.

A plain reading of the above provision also leaves no

doubt that, where a person commits any offence, which can be

dealt with by regular penal law before a Magistrate, and such

situation is a law and order situation and does not contemplate

breach of public order, the authorities would lack jurisdiction to

proceed under these provisions.

13. While considering similar provision contained in

Section 3(1) of the Telangana Prevention of Dangerous Activities 10 26-J-WP-484-22.doc

of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic

Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide

Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake

Document Offenders, Scheduled Commodities Offenders, Forest

Offenders, Gaming Offenders, Sexual Offenders, Explosive

Substances Offenders, Arms Offenders, Cyber Crime Offenders and

White Collar or Financial Offenders Act, 1986 (hereinafter referred

to as "TPDA Act), the Hon'ble Supreme Court in the case of Shaik

Nazneen Vrs. the State of Telangana and others, reported in 2022

Live Law (SC) 559 has held in Paragraph Nos.9, 10, 12 and 15 as

under :-

"9. A bare reading of the aforesaid provision shows that the "maintenance of public order" has a crucial bearing here and unless the Government is justified in holding that the act of the detenu is prejudicial to the maintenance of public order, the preventive detention would be bad and would be in violation of Articles 21 and 22 of the Constitution of India as it encroaches upon the liberty and freedom of an individual.

10. The detention order was challenged by the wife of the detenu in a Habeas Corpus petition before the Division Bench of the Telangana High Court. The ground taken by the petitioner before the High Court was that reliance has been taken by the Authority of four cases of chain snatching, as already mentioned 11 26-J-WP-484-22.doc

above. The admitted position is that in all these four cases the detenu has been released on bail by the Magistrate. Moreover, in any case, the nature of crime as alleged against the petitioner can at best be said to be a law and order situation and not the public order situation, which would have justified invoking the powers under the Preventive Detention Law. This, however did not find favour with the Division Bench of the High Court, which dismissed the petition, upholding the validity of the detention order.

12. There is absolutely no doubt in our mind that the facts and circumstances of the case as alleged in the detention order dated 28.10.2021 though does reflect a law and order situation which can be dealt with under the ordinary law of land, and there was absolutely no occasion for invoking the extraordinary powers under the law of Preventive Detention. The reasons assigned by the authority in its detention, justifying the invocation of the provisions of the detention law are that the detenu has been granted bail in all the four cases and since he is likely to indulge in similar crime, hence the order of preventive detention.

15. Having heard the learned counsel for the petitioner and learned counsel for the State of Telangana, we are of the considered view that in the present case invocation of the Preventive Detention Law against the petitioner was not justified. The powers to be exercised under the Preventive Detention 12 26-J-WP-484-22.doc

Law are exceptional powers which have been given to the Government for its exercise in an exceptional situation as it strikes hard on the freedom and liberty of an individual, and thus cannot be exercised in a routine manner. The distinction between law and order situation and a public order situation has been dealt with by the Supreme Court in a catena of decisions."

14. This Court in Judgment dated 17/11/2021 in Criminal

Writ Petition No.457/2021 (Shri Yash s/o Anil Tekam Vrs. State of

Maharashtra and others), whilst considering the powers of the

Detaining Authority under Section 3 of the MPDA Act, has

considered the effect of in camera statements, which were devoid

of details and were vague, and were recorded at a time not so

proximate to the passing of the order of detention, has held in

Paragraph Nos.13 and 14, 15 as under :-

"13. Mr. Doifode, the learned APP, however, submitted that the two instances cannot be read in isolation but have to be considered along with the two 'in camera' statements. The 'in camera' statements, unfortunately, provide no significant details and to a great extent are quite vague. The 'in camera' statements came to be recorded a month after the petitioner was released on bail in Crime No.28/2021.

14. The 'in-camera statements' speak about some instances in the third week of February 2021. Again, 13 26-J-WP-484-22.doc

from the perusal of the transcript, it does appear that the allegations are not quite specific and consequently verifiable. In Rakesh Gadekar (supra), the Division Bench of this Court did not approve reliance on similar generalized and unverifiable statements to sustain the order of detention.

15. The order granting bail had imposed several stringent conditions. If the impugned detention order or rather the grounds in support of the impugned detention order are perused, it is apparent that the detaining authority had not applied its mind to such stringent conditions imposed upon the petitioner in the order dated 25.1.2021, by which the petitioner was enlarged on bail. The bail order dated 25.1.2021 had directed the petitioner to remain in his residential house during the lockdown period. The order had also directed the petitioner to attend the Police Station as and when called by the Investigating Officer in writing and to co-operate with the investigating agency. The order was made on 25.1.2021 and the impugned detention order has been made on 17.4.2021. There is no allegation that the petitioner had breached the conditions on which he was enlarged on bail."

15. The reliance placed by the learned Additional Public

Prosecutor for the respondent Nos.1 to 3 on the Judgment of this

Court in Vishal Aananda Mahabal Vrs. the State of Maharashtra

and others, reported in 2022 ALL MR (Cri) 2494, wherein the

detention order under MPDA Act was challenged, is 14 26-J-WP-484-22.doc

distinguishable on the facts of that case. Vishal Aananda Mahabal

(supra), was a case where the incidents relied upon by the

authority took place in a public area where the accused threatened

people and chased them away. In that case, the High Court

concluded that the incident complained of caused disturbance to

the public peace and order and acts of the detenue caused a direct

threat to the public. This Court considered the specific instances

wherein the detenue was involved clearly establishing that he was

causing terror in the minds of the people who were gathered in

the locality and that incident was not an ordinary law and order

issue, but was calculated to create a breach of public order. The

facts of the present case are quite different and therefore, the case

of Vishal Aananda Mahabal (supra) would not apply in the present

facts before us.

16. A perusal of the impugned order would first reveal that

though there is reference made to the two offences in which the

petitioner obtained bail from the Magistrate, there is no reference

made to the contents of the orders of the Magistrate while

granting bail. The detention order does not make any reference to

the reasons given by the Magistrate in the orders of bail, leaving

no doubt in our mind that the Detaining Authority has not

recorded its subjective satisfaction for considering the reasons set 15 26-J-WP-484-22.doc

out in the bail orders.

17. The second ground raised by the petitioner is that in

camera statements of the two witnesses were vague and unreliable

and could not form the source of information on the basis of which

the Detaining Authority could conclude that the petitioner was

acting in a manner prejudicial to the maintenance of public order.

A reading of the first in camera statement, which is as old as

21/02/2021, over a year prior to passing of the detention order,

does not set out the specific time of incident or the specific

location where the same has taken place. A plain reading of the

statement leaves great doubt as to whether it is genuine or

actually concocted by the Sponsoring Authority.

The second in camera statement dated 25/02/2022 is

also vague as to the details of the year where incident took place

i.e. whether the same was a public area and aimed to cause

disturbance of public order. Applying the ratio of the Judgment of

Shri Yash s/o Anil Tekam (supra) to the facts of this case, one can

conclude that the first in camera statement came to be recorded a

year prior to the passing of the detention order and could hardly

be said to have any live nexus for the Detaining Authority to arrive

at a subjective satisfaction that the petitioner needed to be

detained as a preventive measure in order to maintain public 16 26-J-WP-484-22.doc

order. As held in the same Judgment, the second in camera

statement, not having any specific details as to the allegations,

reliance on such a general and unverifiable statement could not be

placed to sustain the order of detention under Section 3 of the

MPDA Act.

18. We are also of the opinion that various Sections of the

Indian Penal Code under which the petitioner has alleged to have

been committed offences, in the first and second offence, the trial

of which is pending before the Judicial Magistrate First Class,

could be termed to be offences dealing with law and order

situation, and not a public order situation. On a reading of the

impugned order of detention, there appears to be no recording of

the authorities subjective satisfaction on consideration of acts of

the petitioner which may constitute a public order situation.

Applying the ratio as laid down by the Hon'ble Supreme Court in

Shaik Nazneen (supra) to these facts, we are of the considered

opinion that the authority, not having recorded its subjective

satisfaction on the basis of consideration of any material before it

to arrive at a finding that the acts of the petitioner were prejudicial

to the maintenance of public order, we conclude that passing of

the impugned detention order was unjustified and contrary to the

provisions of Section 3 of the MPDA Act.

17 26-J-WP-484-22.doc

19. We accordingly quash and set aside the impugned

orders dated 31/03/2022 and 05/05/2022. Rule is made absolute

in terms of Prayer Clauses (b) and (c) of the petition, which read

as under :-

b) Quash and set aside the order passed by respondent no.2, the Commissioner of Police, Nagpur city bearing D.O.No.DET/MPDA/PCB/Zone-IV/09/2022 dated 31.3.2022 - Annexure-A.

              c)      Quash and set aside the order passed by Advisory
              Board             at   Mantralaya   Mumbai      in    Case
              No.MPDA-0422/Change             Report-114/Spl-3B    dated

5.5.2022 - Annexure-B thereby confirming the order of detention passed by respondent no.2.

20. No costs.

              [VALMIKI SA MENEZES, J.]                   [VINAY JOSHI, J.]



   Choulwar



              Digitally signed by
VITHAL        VITHAL MAROTRAO
MAROTRAO      CHOULWAR
              Date: 2023.02.02
CHOULWAR      15:53:41 +0530