Ram @ Pappu Arun Kore vs State Of Maharashtra And Anr
2023 Latest Caselaw 728 Bom

                               SAT                                                      51-WP-2672-2022.doc




                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             CRIMINAL APPELLATE JURISDICTION
                                         CRIMINAL WRIT PETITION NO. 2672 OF 2022
                               Ram @ Pappu Arun Kore,
                               Age : 33 years, Occu. : Nil,
                               R/o. Hause Wasti,
                               Amraai, Solapur                                  ...Petitioner
                                     Versus
                               1.    The State of Maharashtra,
                                     (Through the Additional Chief Secretary,
                                     Home Department having office at Mantralaya
                                     Mumbai.)

                               2.    Commissioner of Police, Solapur,
                                     having office at New Administrative Building,
                                     Gandhi Nagar, Solapur.

                               3.    The Superintendent,
                                     Yerwada Central Prison, Pune                    ...Respondents

                               Mr. Satyavrat Joshi i/by Mr. Sumant Deshpande, Advocate for
                               Petitioner.
                               Mrs. M.H. Mhatre, APP for the Respondent-State.
                                                        CORAM            : A.S. GADKARI AND
                                                                           PRAKASH D. NAIK, JJ.

RESERVED ON : 5th JANUARY,2023.

PRONOUNCED ON : 20th JANUARY, 2023.

JUDGMENT - (PER : PRAKASH D. NAIK, J.) :-

1. Petitioner has invoked writ jurisdiction of this Court under

Article 226 of Constitution of India and assailed the Order of

Digitally signed Detention dated 27th April, 2022 issued by the Respondent No.2 by SUNNY SUNNY ANKUSHRAO ANKUSHRAO THOTE THOTE Date: 2023.01.23 under the provisions of Maharashtra Prevention of Dangerous 16:28:48 +0530

Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous

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Persons, Video Pirates, Sand Smugglers and persons engaged in

Black-marketing of Essential Commodities Act, 1981 (for short

'M.P.D.A. Act'), directing that, the Petitioner be detained with a

view to prevent him from acting in any manner prejudicial to the

maintenance of public order. The grounds of detention dated 27 th

April, 2022 on the basis of which the Impugned Order of Detention

was issued and the documents relied upon by the Detaining

Authority were supplied to the Petitioner / detenu.

2. The grounds of detention stipulate that the Impugned

Order of Detention is based on the offence registered against the

Petitioner vide C.R. No.138 of 2022 with Faujdar Chawadi Police

Station on 7th March, 2022 under Sections 143, 144, 147, 148, 149,

336, 327, 354, 452, 323, 324 of Indian Penal Code (for short 'IPC')

r/w Sections 4 and 25 of Indian Arms Act. The Detention Order is

also based on statements of two witnesses recorded in camera on

19th March, 2022 and 22nd March, 2022. The Detaining Authority

was subjectively satisfied that the Petitioner is acting in manner

prejudicial to the maintenance of public order.

3. The first ground urged by learned Advocate for Petitioner

is that the incidents in question considered by Detaining Authority

for issuing Order of Detention would at the most affect the law and

order situation and not maintenance of public order. The incident

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in C.R. No.138 of 2022 had occurred in the house of complainant.

It is between individuals and has no connection with society at

large. The statements of witnesses A and B were recorded on 19 th

March, 2022 and 22nd March, 2022 respectively. These witnesses

have referred to the alleged incident which had occurred in second

week of February-2022 and fourth week of February-2022. The

subjective satisfaction as to how and what manner the acts of the

Petitioner are prejudicial to the maintenance of public order is not

found in the grounds of detention. It is no where mentioned in the

grounds of detention as to how the acts and conduct attributed to

the Petitioner has caused breach of public order or it had disturbed

the even tempo of public life. The acts attributed to the Petitioner

were mostly individualistic in nature. The statements of said

witnesses 'A' and 'B' were recorded after the Petitioner was granted

bail in C.R. No.138 of 2022. While the Petitioner was in custody

the said witnesses did not come forward to depose against the

Petitioner. The statements do not inspire confidence.

4. Learned Advocate for the Petitioner has relied upon the

decision of the Hon'ble Supreme Court in the case of Rameshwar

Shaw V/s. District Magisrate, Burdwan And Another, (1964) 4 SCR

921 and decision of this Court in Shivkumar Dadeshwaran

Devendra V/s. The State of Maharashtra and Ors., dated 15 th June,

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2022 delivered in Criminal Writ Petition No.3309 of 2021.

5. Learned APP submitted that the facts reflected in C.R.

No.138 of 2022 and the incidents referred to by witnesses A and

clearly indicate that the incidents were affecting maintenance of

public order and not merely law and order situation. On the basis

of material related to C.R. No. 138 of 2022 and the statements of

witnesses A and B which were verified as true the Detaining

Authority came to the conclusion that the Petitioner is dangerous

person within the meaning of Section 2(b-1) of the M.P.D.A. Act

and that his activities are prejudicial to the maintenance of public

order.

6. The second ground urged by the learned Advocate for the

Petitioner is that the Detaining Authority has considered past

criminal cases of the Petitioner. Those are stale cases which lacks

the proximity with the impugned Order of Detention. The

satisfaction to be arrived at by the Detaining Authority must be

based on relevant material and not stale. It should have a live link

with satisfaction of Detaining Authority. In three cases referred to

therein the Petitioner is acquitted. In the Paragraph No.4 of ground

of detention the Detaining Authority has referred to eight cases

registered against the Petitioner. In Paragraph No.4.2 the Detaining

Authority has referred to detention of Sachin @ Bobby Sambhaji

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Shinde under M.P.D.A. Act vide Order dated 27th January, 2017 and

described him as associate of the Petitioner. There is no material to

show that he is associate of Petitioner. The copy of said Order of

Detention has not been supplied to Petitioner.

7. Learned Counsel for the Petitioner has relied upon the

decision of the Supreme Court in the case of Khaja Bilal Ahmed

V/s. State of Telangana And Others, (2020) 13 SCC 632.

8. Learned APP submitted that in first para of the grounds of

detention it is stated that the detenu is communicated with the

grounds as mentioned in Paragraph No.5 on which detention order

has been issued. Thus the Detaining Authority has relied upon one

incident mentioned in Paragraph No.5 of the grounds of detention

and two in camera statements of witnesses A and B. The list of

offences in Paragraph No.4 of the grounds of detention was the

past history of the detenu. The Detaining Authority has not

considered past cases or detention order of Sachin @ Bobby

Sambhaji Shinde for forming subjective satisfaction for issuing

Order of Detention.

9. Learned APP has relied upon the decision of this Court in

the case of Shital alias Nitin Bhimrao Kharat V/s. The District

Magistrate, Satara and Others in Criminal Writ Petition No.1816 of

2021 on 16th November, 2021.

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10. The third ground urged by the learned counsel for the

Petitioner is that there is delay in reporting the Order of Detention

to the State Government. As per Section 3(3) of the M.P.D.A. Act,

when any order is made under the said Section, by an officer

mentioned in Sub-Sectin (2), he shall 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. In the affidavit of Deputy Secretary,

Government of Maharashtra, it is disclosed that the report under

Section 3(3) of Act was received from the Detaining Authority by

the Government on 29th April, 2022. The Detention Order was

issued on 27th April, 2022. Thus, the report was not communicated

forthwith which violates Section 3(3) of the Act.

11. Learned Advocate for the Petitioner has relied upon the

decision of the Hon'ble Supreme Court in the case of Hetchin

Haokip V/s. State of Manipur And Others, (2018) 9 SCC 562 and

decision of this Court in the case of Sachin Parshuram Mane V/s.

The Commissioner of Police, Pune City & Ors., 2022 ALL MR (Cri.)

2566.

12. Learned APP submitted that there is no delay in reporting

the detention to the State Government. The Order of Detention

was issued by the Commissioner of Police, Solapur on 27th April,

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2022. The Order of Detention with requisite documents was

dispatched from Solapur on the same day, through special

messenger and reported to State Government on 29 th April, 2022.

Section 3(3) of M.P.D.A. Act has been complied.

13. The first ground advanced at the instance of the Petitioner

is that there was no material to come to the conclusion that the

Petitioner in indulging in activities prejudicial to the maintenance

of public order. C.R. No.138 of 2022 was registered with Faujdar

Chawadi Police Station for the offence referred to hereinabove.

The Petitioner and his associates entered into the house of

complainant and assaulted her son and dragged him out of house.

The complainant shouted for help. The Petitioner and his

associates were holding swords in their hands and assaulted

complainant's son with iron rods. The Petitioner and co-accused

snatched gold ornaments of complainant. The accused pelted

stones on the house of complainant and created terror by raising

swords and iron rods. Fear was created in the minds of surrounding

people and they started running towards their houses and shut

doors. Witness A has stated that the Petitioner and his associates

demanded hafta. He was assaulted. The Petitioner and his

associates threatened members of public and pelted stones on

houses. People started running helter skelter. The Petitioner

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threatened the witness with knife. He was assaulted. Witness

has stated that the Petitioner and his associates came to his shop

holding sword, iron pipe, lathis and demanded money.

Shopkeepers closed shops. People started running. No one came

for the help of witness. The statements were verified by Assistant

Commissioner of Police. All these incidents certainly disturbs the

even tempo of society and are prejudicial to maintenance of public

order. Assuming that one of the ground does not fall within

purview of public order, the detetion order would sustain on other

ground in view of Section 5-A of the M.P.D.A. Act. In the case of

Rameshwar Shaw V/s. District Magistrate, Burdwan And Another

(Supra) the Apex Court has explained concept of public order and

law and order. It was observed that the Detaining Authority must

be satisfied that the detention of person is necessary in order to

prevent him from acting in any prejudicial manner affecting

maintenance of public order. In the present case the Petitioner and

his associates created terror amongst people. They were armed

with dangerous weapons. Fear was created in the minds of

surrounding people and shopkeepers. Hence, the submission of

learned counsel for Petitioner deserves to be rejected.

14. The second submission urged on behalf of the Petitioner

relates to past cases referred in Paragraph No.4 of grounds of

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detention and detention order of Sachin @Bobby Sambhaji Shinde.

The grounds of detention does make reference to the cases

registered against the Petitioner in the past. The contention of

Petitioner is that stale cases are relied upon for issuing detention

order. In the introductory paragraph of grounds of detention it is

specifically stated that the detenu is communicated with the

grounds mentioned in Paragraph No.5, below on the basis of which

a detention order has been issued against him under Section 3(2)

of the Act. Paragraph No.5 clarifies that detention order is based on

offence registered against Petitioner and in camera statements.

Thus, the Impugned Order is made on the basis of C.R. No. 138 of

2022 and two in camera statements of witnesses A and B. In

Paragraph No.6 it is categorically stated that the Detaining

Authority has carefully gone through the relied C.R. as mentioned

in Paragraph No.5.1 and in-camera statements mentioned in

Paragraph Nos.5.3 and 5.4 placed before him and he is subjectively

satisfied that the Petitioner is acting in a manner prejudicial to the

maintenance of public order. Thus, the cases referred to in

Paragraph No.4 and the Detention Order of Sachin Shinde referred

to in Paragraph No.4.2 are not the basis of Order of Detention. In

the case of Khaja Bilal Ahmed V/s. State of Telangana And Others

(Supra) relied upon by the learned counsel for the Petitioner in

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Paragraph No.23 it was observed that the Order of Detention may

refer to the previous criminal antecedents only if they have a direct

nexus or link with immediate need to detain an individual. If the

previous criminal activities of detenu could indicate his tendency

or inclination to act in a manner prejudicial to the maintenance of

public order, then it may have a bearing on the subjective

satisfaction of the Detaining Authority. In the absence of a clear

indication of a causal connection a mere reference to pending

criminal cases cannot account for the requirement of Section 3. In

the present case the grounds specifically refers to material on

which Order of Detention is issued. There is no indication of causal

connection. The aforesaid Judgment of the Supreme Court was

placed for consideration before this Court in the case of Shital alias

Nitin Bhimrao Kharat V/s. The District Magistrate, Satara and

Others passed in Criminal Writ Petition No.1816 of 2021 (Supra).

While considering the said decision of Apex Court it was observed

by this Court that the Supreme Court, has observed that the Order

of Detention may refer to the previous criminal antecedents only if

they have direct nexus or link with the immediate need to detain

an individual. If the previous criminal activities could indicate the

detenu's tendency or inclination to act in a manner prejudicial to

the maintenance of public order, then it may have a bearing on the

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subjective satisfaction of the Detaining Authority. However, in the

absence of clear indication of a causal connection, a mere reference

to the pending criminal cases cannot account for the necessary

requirement. It was not open to the Detaining Authority to simply

refer to stale incidents and hold them a basis of Order of Detention.

This Court then observed that offences referred to in the said case

in Paragraph No.5 of the ground of detention does not show the

live link with detenu's past activities. The same observations are

applicable in the present case. The antecedents referred to in

Paragraph No.5 does not show the live link with detenu's past

activities. The subjective satisfaction of the Detaining Authority in

the present case does not indicate that the cases referred to in

Paragraph No.4 of the grounds of detention and the Detention

Order of Sachin Shinde has bearing in arriving at the subjective

satisfaction for issuing Order of Detention against the detenu.

Hence the submission is devoid of merits and deserves to be

rejected.

15. The third ground pertains to compliance of Section 3(3) of

M.P.D.A. Act. The Detention Order was issued by the Commissioner

of Police, Solapur on 27th April, 2022. Vide special messenger sent

from Solapur on the same day report contemplated under Section

3(3) of M.P.D.A. Act was sent and it was received by State

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Government at Mantralaya, Mumbai on 29th April, 2022.

16. Section 3(3) of the M.P.D.A. Act reads as follows :-

When any order is made under this Section by an officer

mentioned in sub-section (2), he shall 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 so 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.

17. In the case of Hetchin Haokip V/s. State of Manipur and

Others (Supra) the Order of Detention was reported to the State

Government, after five days. The High Court dismissed the Petition

holding that the scope of Section 3(4) National Security Act, 1980

has to be understood according to the scheme of the Act and not in

isolation. The Apex Court made reference to its previous decision

in the case of Keshav Nilkanth Joglekar V/s. Commissioner of

Police, AIR 1957 SC 28, wherein the Court has examined the

meaning of "forthwith" in the context of statutes providing for

preventive detention. Section 3(3) of the Preventive Detention Act,

1950 which was similar to Section 3(4) of the N.S.A. was

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interpreted. The Court compared the text of Section 3(3) with

Section 7 (equivalent to Section 8 of N.S.A.). It was observed that

"forthwith" is different from "as soon as may be" in that, under

Section 7 the time permitted is "what is reasonably convenient".

Whereas under Section 3(3), only that period of time is allowed,

where the authority could not, without its own fault, send the

report. The Court laid down the following test for determining

whether the action of the authority was compliant with the

"forthwith" requirement.

"10. Under Section 3(3) it is whether the report has

been sent at the earliest point of time possible and when there is an

interval of time between the date of the order of the date of the

report, what has to be considered is whether the delay in sending

the report could have been avoided."

The Apex Court also referred to another decision of the

Constitution Bench in the case of Bidya Deb Barma V/s. Distt.

Magistrate, Agartala, AIR 1969 SC 323, wherein it was held that,

when a statute requires something to be done "forthwith" or

"immediately" or even "instantly", it should probably be understood

as allowing a reasonable time for doing it". Reference is also made

to another decision of Supreme Court in the case of Salim V/s.

State of W.B. 1976 SCC (Cri) 290 , wherein it is observed that laws

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of preventive detention must be construed with the greatest

strictness. However, the rule of strict interpretation does not mean

that the act has to be done instantaneously, or simultaneously with

the other act, without any interval of time. The Court was dealing

with Section 3(3) of the maintenance of Internal Security Act, 1971

which is equivalent to Section 3(4) of N.S.A. After analyzing the

observations in aforesaid decisions, it was held that, from the above

cases, the position that emerges is that "forthwith" under Section

3(4) of National Security Act, does not mean instantaneously, but

without undue delay and within reasonable time. Whether the

authority passing the detention order reported the detention to the

State Government within reasonable time and without undue delay

is to be ascertained from facts of the case. In Keshav Nilkanth

Joglekar V/s. Commissioner of Police (Supra) case there was a

delay of eight days by the Police Commissioner, in sending the

report to the State Government. However, the Court found that the

reasons for the delay were reasonable, since the commissioner and

his team were occupied in maintaining law and order during a

particularly tense time in Mumbai. It was further observed that

the expression "forthwith" under Section 3(4), must be interpreted

to mean within reasonable time and without any undue delay. This

would not mean that the Detaining Authority has a period of

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twelve days to submit the report to the State Government from the

date of detention. The Detaining Authority must furnish the report

at the earliest possible. Any delay between the date of detention

and the date of submitting the report to the State Government,

must be due to unavoidable circumstances beyond the control of

the authority and not because of administrative laxity. Applying

the principles enunciated in aforesaid decisions and interpretation

of word "forthwith" to the case before us, we do not find that there

was any delay in reporting the detention order to State

Government. This Court in the case of Sachin Parshuram Mane

V/s. The Commissioner of Police, Pune City and Ors. (Supra) has

observed that the justification given for the delay in submitting the

report to the State Government is contrary to Section 3 of M.P.D.A.

Act. It is mandated that the Act provides that when a detention

order is made, it shall be "forthwith" reported to the State

Government alongwith the grounds on which the order is made

and any other relevant facts. It is not clear how much was the

delay in sending report to State Government and what explanation

was tendered by authority. Thus, in the case before us there was a

gap of one day in reporting the Order of Detention to State

Government and in the circumstances stated above it would not

violate Section 3(3) of the Act. We do not find any substance in the

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submission of learned Advocate for Petitioner.

18. In the light of the aforesaid observations, we do not find

any merits in the grounds of challenge urged by the Petitioner and

the Petition is required to be dismissed.

ORDER

i. Criminal Writ Petition No.2672 of 2022 stands

dismissed.

      ii.      Rule is discharged.




       [PRAKASH D. NAIK, J.]                   [A.S. GADKARI, J.]