Menna Tai Hanif Patel vs Amitabh Gupta And Anr
2023 Latest Caselaw 817 Bom

                                     DAE                                               WP-2965-2022.doc

                                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                                  CRIMINAL APPELLATE JURISDICTION

                                               CRIMINAL WRIT PETITION NO. 2965 OF 2022

                                Menna Tai Hanif Patel                           ...Petitioner
                                      Versus
                                1. Shri Amitabh Gupta,
                                   Commissioner of Police, Pune City.
                                2. The State of Maharashtra
                                3. The Superintendent of Jail,
                                    Aurangabad Central Prison, Aurangabad.
                                4. The Secretary, Advisory Board (MPDA)
                                    Mantralaya, Mumbai.                         ...Respondents


                                Mr.Misbaah Solkar with Ms.Neha Thakkar, Advocate for Petitioner.
                                Mrs. M. H. Mhatre, APP for Respondent-State.

                                                              CORAM : A. S. GADKARI AND
             Digitally signed
             by
                                                                      PRAKASH D.NAIK, JJ.

DNYANESHWAR DNYANESHWAR ASHOK ETHAPE ASHOK ETHAPE

RESERVED ON : 6th JANUARY 2023 Date: 2023.01.24 14:19:47 +0530

PRONOUNCED ON : 24th JANUARY 2023

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

1. The Petitioner is the mother of detenu Sahil Hanif Patel, who

has been detained under the Provisions of "Maharashtra Prevention of

Dangerous Activities of Slumlord, Bootleggers, Drug Offenders, Dangerous

Persons, Video Pirates, Sand Smugglers and persons engaged in Black-

Marketing of Essential Commodities Act, 1981" (hereinafter referred to

M.P.D.A. Act) vide Order dated 22nd April 2022. The Petitioner has

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challenged the said Order of detention by preferring this petition under

Article 226 of the Constitution of India. The detenu was served with

detention Order, committal Order, grounds of detention and the documents

relied upon by detaining Authority while issuing the Order of detention.

2. Learned Advocate for the Petitioner submitted that, C.R. No.

247 of 2021 and C.R. No. 293 of 2021 were individualistic in nature having

no connection with public at large and the said incidents does not affect the

public Order. Witness A and witness B has referred to stale incidents

occurred in the first week of December 2021 and second week of December

2021. The incidents referred by witnesses are not proximate. The

statements are not genuine. The impugned Order of detention was issued

on 22nd April 2022 after a period of four months from the last incident. The

affidavit-in-reply filed by the detaining Authority does not explain the delay

in issuing Order of detention. Except transferring the file from one table to

another, the Authority did not take effective steps for issuing Order of

detention. Time gap spent in moving the file from one Authority to another

Authority has not been explained. The delay in issuing detention Order

has snapped the live link between activities and need for preventive

detention. The detaining Authority has relied upon extraneous material to

arrive at subjective satisfaction in as much as documents pertaining to past

offences of detenu were placed before detaining Authority which has

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influenced his subjective satisfaction while issuing Order of detention.

3. Learned Advocate for the Petitioner has relied upon following

decisions:-

(i) Pushkar Mukherjee Vs. The State of West Bengal.1

(ii) Anil Tukaram Mohite Vs. The Commissioner of Police Pimpri Chinchwad and Ors.2

(iii) Pawan Tukaram Kudale Vs. The Comissioner of Police3

(iv) Pradeep Nikanth Paturkar Vs. S. Ramamurthi and Ors.4

(v) Shamim Makmood Khan Vs. K. Venkateshan and Ors.5

(vi) Santosh Uttam Gaikwad Vs. District Magistrate, Beed and Ors.6

(vii) Rashid Shaukat Husain Sayyed Vs. The State of Maharashtra and Ors.7

(viii) Sanjeev Vs. The Commissioner of Police, Solapur and Ors.8

(xi) Rahul Vs. The State of Maharashtra9.

4. Learned APP has submitted that, the incidents referred to by

the detaining Authority affect even tempo of society and causing

disturbance to public Order. After proposal was submitted immediate steps

1 1969 SCR (2) 635 2 2021ALLMR(Cri)3794 3 2019ALLMR(Cri)503.

4    AIR1994SC656
5    MANU/MH/0284/2020
6    MANU/MH/0004/2022
7    MANU/MH/1286/2018
8    MANU/MH/2888/2021
9    MANU/MH/1120/2014


      DAE                                                WP-2965-2022.doc

were taken for issuing Order of detention which has been elaborately

explained in the affidavit-in-reply. The past incidents were not subject

matter of detention which is evident from the averment in the grounds of

detention. Prompt action was initiated against the detenu. Section 5-A of

the Act stipulate that, even if, one ground on the basis of which the

detention Order is found non-existent or irrelevant, the detention Order

would survive on the other grounds of detention.

5. From the contents of grounds of detention, it is apparent that,

the detaining Authority in paragraph No.5 has categorically stated that, the

offences considered for passing detention Order are mentioned therein. It

is evident that C.R. No.247 of 2021 and C.R. No.293 of 2021 were

registered with Dattawadi Police Station against the detenu on 1 st

November 2021 and 18th December 2021. The detenu was arrested on 9 th

November 2021. C.R. No.247 of 2021 was registered for offences under

Sections 452, 323, 504, 506, 427 of IPC. C.R. No.293 of 2021 was

registered for offences under Sections 367, 394, 323, 504 and 506 of IPC.

The activities reflected in both the cases would clearly indicate that, the

incidents would have impact on the mind of the society. It would affect

public Order. The statement of witness A and B were recorded on 12 th

February 2022 and 15th February 2022. They have referred to the incidents

occurred in the first week of December 2022 and second week of December

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2021. Both these witnesses have referred to the activities of the detenu.

The detenu had demanded money and assaulted the witnesses. The detenu

was armed with sword which was pointed on the neck of the witness and

he was threatened. It is also stated that, the detenu is always armed with

sword and threatening people and committing robbery. Witness B has stated

that, the detenu had accosted her and demanded money. He was carrying

sickle. She was threatened of dire consequences. All these incidents are not

simplicitor infraction of law and Order and would affect the maintenance of

public Order. The genuineness of in-camera statements was verified by

Assistant Commissioner of Police. In the affidavit in reply the detaining

Authority has dealt with the ground relating to delay in issuing Order. It is

stated that, the complaint pertaining C.R. No. 293 of 2021 was registered

on 18th December 2021. The detenu was arrested on 19 th December 2021

and released on bail on 7th March 2022. Charge-sheet was filed on 10 th

February 2022. During the course of enquiry it was learnt that, the

witnesses were not willing to come forward to make complaint openly

against the detenu due to terror created by him and his associates. When

assurances were given to the witnesses that their names and identity would

not be disclosed, two witnesses came forward to given their statements.

These statements were recorded on 12th February 2022 and 15th February

2022. Proposal was submitted on 19 th February 2022 and forwarded

through proper channel. It was scrutinized by various authorities and

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thereafter placed before the detaining Authority. The Order of detention

was issued on 22nd April 2022. The proposal along with documents was first

submitted to ACP, Sinhagad Road, Division Pune, who carefully went

through all the papers and gave endorsement and after verification of in-

camera statements submitted to DCP, Zone-III on 23 rd February 2022. After

perusal of proposal with documents the DCP, Zone-III made endorsement

and forwarded the proposal to Additional CP West Region on 1 st March

2022. After scrutinizing the proposal, the Additional CP West Region made

endorsement and forwarded the proposal and documents to PCB, Crime on

10th March 2022. The Senior Inspector of Police, PCB, Crime carefully went

through all the papers and gave endorsement and forwarded the proposal

to the ACP Crime on 12th March 2022. After carefully went through all the

papers, the documents were forwarded to DCP Crime on 22 nd March 2022.

The DCP Crime went through all the papers and gave his endorsement on

30th March 2022. Thereafter all the papers were forwarded to Additional

CP Crime. He gave his endorsement on 8th April 2022. All the papers were

put up before detaining Authority on 20 th April 2022 and the Order of

detention was issued on 22nd April 2022. Considering the explanation given

by detaining Authority, we do not find that there was any unexplained delay

in issuing Order of detention. The stale cases were not considered for

issuing Order of detention. In paragraph 5 of grounds of detention, the

particulars of offences considered for passing detention Order are given.

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The detaining Authority has relied upon C.R. No.247 of 2021 and C.R.

No.293 of 2021 registered with Dattawadi Police Station and two in-camera

statements. Past cases were not considered for issuing Order of detention.

In paragraph 8 of grounds of detention it is stated that, the detaining

Authority has relied upon material mentioned in para 5.1, 5.2, 6.1 and 6.2

of the grounds of detention to arrive at subjective satisfaction that the

detenu is a dangerous person as defined in Section 2(b-1) of MPDA Act and

his criminal activities are prejudicial to maintenance of public Order.

6. In the case of Pushkar Mukherjee Vs. The State of West Bengal

(supra) it was observed that the expression "public order" does not take in

every kind of infraction of law. The contravention of any law always affects

order but before it can be said to affect public order, it must affect the

community or the public at large. In the case of Anil Tukaram Mohite Vs.

The Commissioner of Police Pimpri Chinchwad and Ors. (supra) it was

observed that, public Order is something more than ordinary maintenance

of law and Order. Proper test to distinguish between law and Order and

public Order is whether the complained acts led to disturbance of the

ordinary tempo of life of the community so as to amount a disturbance of

pubic Order or it merely affected an individual leaving the tranquility of the

society undisturbed. It was further observed that, the aspect of delay in

processing the proposal and passing the detention Order invariably turns

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upon the facts of the given case. Mere delay may not be fatal. However, if

the delay is unexplained and has the tendency and to snap the live link

between the incidents and the resultant action, delay impairs the action of

preventative detention. In the case of Pawan Tukaram Kudale Vs. The

Commissioner of Police (supra) it was observed that, the detaining

Authority has looked into the entire material as contained in the index of

documents, but has specifically mentioned that the Order of detention is

based only on two CR's of recent, past and two in-camera statements would

reflect total non-application of mind on the part of detaining Authority and

thus vitiate subjective satisfaction reached by it. In the case of Pradeep

Nilkanth Paturkar Vs. S. Ramamurthy and Ors. (supra) it was held that, the

detention Order was passed after five months and eight days from the date

of registration of last case and more than four months from submission of

the proposal. The unexplained delay in issuing Order of detention is

sufficient to quash the said Order. In the case of Santosh Uttam Gaikwad

Vs. District Magistrate, Beed and Ors. (supra) it was observed that, the

crime considered by detaining Authority is relying to solitary assault on one

individual can hardly be said to disturb the public peace. Such incident can

at the most raise a law and Order problem. In the case of Shamim

Makmood Khan Vs. K. Venkateshan and Ors. (supra) it was observed that,

there was no plausible explanation as to why the proposal was kept

pending by the Deputy Commissioner of Police since no plausible

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explanation has been offered for delay in passing detention Order. It will

have to be held that, there was delay in passing the detention Order. The

Respondents were obliged to state proximity and live link between

proceedings for detention and the offences registered against the detenu.

In the case of Rashid Shaukat Husain Sayyed Vs. The State of Maharashtra

and Ors. (supra) it was observed that, the detaining Authority was

expected to give a reasonable explanation for delay in issuing Order of

detention. Similar view was taken in the decision of this Court in the case

of Sanjeev Vs. The Commissioner of Police, Solapur and Ors. (supra) and

Rahul Vs. The State of Maharashtra (supra). In the case of Hemlata

Kantilal Shah Vs. State of Maharashtra and Another 10 it was observed that,

Delay ipso facto in passing an order of detention after an incident is not

fatal to the detention of a person, for in certain cases delay may be

unavoidable and reasonable. What is required by law is that the delay must

be satisfactorily examined by the detaining Authority. The detaining

Authority is in no legal liability to tell or satisfy the detenu as the causes of

delay. It is under an obligation to satisfy the Court as to the causes of delay

to show that, there was no infraction of Article 22 (5) of the Constitution.

7. The grounds urged by the Petitioner are devoid of merits. For

the reasons stated herein above the issuing Order of detention deserves to

be confirmed.

10 (1981) 4 SCC 647


        DAE                                               WP-2965-2022.doc

                                ORDER

(i)     Criminal Writ Petition No. 2965 of 2022 stands dismissed.

(ii)    Rule is discharged.



        (PRAKASH D. NAIK, J.)                       (A. S. GADKARI, J.)