Bombay High Court
Anil Venkatesh Bhandari vs The State Of Maharashtra And Ors on 25 January, 2023
Bench: A.S. Gadkari, Prakash Deu Naik
DAE WP-3950-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3950 OF 2022
Anil Venkatesh Bhandari ...Petitioner
Versus
1. The State of Maharashtra
2. Commissioner of Police,
Pune City, District Pune
3. Jail Superintendent,
Aurangabad Central Prison,
Aurangabad. ...Respondents
Mr. Nitin Gaware Patil, Advocate for Petitioner.
Mrs. S. D. Shinde, APP for Respondent-State.
CORAM : A. S. GADKARI AND
PRAKASH D.NAIK, JJ.
RESERVED ON : 13th JANUARY, 2023
PRONOUNCED ON : 25th JANUARY 2023
JUDGMENT:- (Per- PRAKASH D. NAIK, J.)
1. Petitioner 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 detention Order dated 21st
February 2022 issued by the Commissioner of Police, Pune City. The
impugned Order of detention has issued with a view to prevent the detenu
from acting in any manner dangerous to health and life of people and
prejudicial to the maintenance of public Order. Petitioner has preferred this
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writ Petition under Article 226 of the Constitution of India challenging the
aforesaid order of detention.
2. Learned Advocate for the Petitioner Mr. Gaware has submitted
as under:-
(i) The detaining Authority has considered the list of offences registered
against the Petitioner by State Excise Department vide C.R. No. 120 of 2020
dated 21st November 2020, C.R. No. 65 of 2021 dated 22 nd May 2021, C.R.
No. 87 of 2021 dated 16th July 2021 and C.R. No. 110 of 2021 dated 9 th
September 2021. Petitioner was arrested in these cases and was released
on bail. However, the Orders granting bail to the Petitioner in all aforesaid
cases were neither placed before the detaining Authority and not supplied
to the detenu. Non-placement of the Orders granting bail has affected
subjective satisfaction of the detaining Authority and non-supplying of said
Orders to the Petitioner/detenu has affected the rights of the detenu to
make effective representation under Article 22 (5) of the Constitution of
India.
(ii) There has been delay in passing the Order of detention. There is
unexplained delay of five months in issuing impugned Order of detention.
C.R. No. 87 of 2021 was registered on 16 th July 2021 under Section 65 (e)
of the Bombay Prohibition Act, 1949 and the Petitioner was arrested and
granted bail on the same day. C.R. No.110 of 2021 was registered on
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9th September 2021 for offences under Sections 328 and 34 of the IPC and
Section 65(a), 65(e) and 83 of the Bombay Prohibition Act, 1949 and
section 2(a)(6) of the Poison Act, 1919. Petitioner was arrested on 13 th
September 2021 and granted bail on 14 th September 2021. The statement
of witnesses A, B, C and D were recorded on 11 th November 2021, 16th
November 2021, 20th November 2021 and 28th November 2021 respectively.
Witness A has referred to the incident dated 22nd September 2021. Witness
B has referred to alleged incident of fourth weeks of September 2021.
Witness C has not specified exact day of incident. Witness D had referred to
incident which had allegedly occurred 4 months prior to date of recording
statement. The Order of detention was issued on 21 st February 2022. The
Detaining Authority has not explained the time consumed for issuing the
Order of detention. The delay has snapped the live link between the
alleged incidents and need for passing Order of detention.
3. Learned Advocate for the Petitioner has relied upon following
decisions :-
(i) Namrata Avinash Kadu Vs. State of Maharashtra and Another1.
(ii) Judgment dated 12th August 2022 passed in Criminal Writ Petition
No. 454 of 2022 in the case of Shri. Pandurang @ Panda Narayan Garud Vs.
The District Magistrate, Pune and Ors.
1 2022 SCC OnLine Bom 7366
DAE WP-3950-2022.doc
(iii) Alakshit Vs. State of Maharashtra2.
(iv) Ratnamala Mukund Balkhande Vs. State of Maharashtra3.
(v) Shivkumar Madeshwaran Devendra Vs. State of Maharashtra4.
(vi) Sachin Parshuram Mane Vs. Commissioner of Police and Ors5.
4. Learned APP submitted that the grounds urged by Petitioner
are devoid of merits. As far as the first ground of challenge is concerned,
the detaining Authority has not relied upon the cases reflected in paragraph
3 of grounds of detention. The questions of supplying bail Orders in respect
to those cases does not arise. In paragraph 4 of the grounds of detention,
the detaining Authority has specified that, he has considered offences
mentioned in paragraph 5.1 and 5.2 and confidential statements mentioned
at paragraph 6.1, 6.2, 6.3 and 6.4 to issue the Order of detention. Learned
APP adverted to list of documents at page 20 of the paper book and
submitted that, the bail Orders relating to the C.R. No. 87 of 2021 and C.R.
No. 110 of 2021 which were relied upon for issuing Order of detention are
supplied to the Petitioner/detenu. There is no delay in issuing Order of
detention. The Petitioner was arrested in C.R. No. 87 of 2021 on 16 th July
2021 and in C.R. No. 110 of 2021 on 13 th September 2021. The Statement
of witness A was recorded on 11 th November 2021 and he has referred to
2 2022 SCC OnLine Bom 7439
3 2022 SCC OnLine Bom 1386
4 2022 SCC OnLine Bom 1236
5 2022 SCC OnLine Bom 1235
DAE WP-3950-2022.doc
the incident of 22nd September 2021. The witness B has referred to the
incident of 4th week of September 2021. Statement of two other witnesses
were recorded in November 2021 and the proposal for issuing the detention
Order was forwarded on 16th December 2021. The last incident considered
for issuing Order of detention was dated 28 th November 2021 and the Order
of detention was issued on 21st February 2022. The time spent in issuing
Order of detention has been explained in the affidavit in reply filed by the
detaining Authority.
5. On perusal of grounds of detention it can be seen that, there is
reference to past cases registered against the Petitioner and preventive
action initiated against him. This reference is made in paragraph 3 of the
grounds of detention. In paragraph 2, it has been stated that, past offences
are not considered while formulating this detention Order against the
Petitioner. In paragraph 4, it is made clear that, the detaining Authority
have considered the offences mentioned in paragraph 5.1 and 5.2 and
confidential statements mentioned in paragraph 6.1, 6.2, 6.3 and 6.4 while
issuing the Order of detention. Thus, the impugned Order of detention was
based on C.R. No. 87 of 2021 and C.R. No. 110 of 2021 and statement of 4
witnesses described as witness A, B, C and D. In the light of aforesaid
circumstances, the submission of learned Advocate for the Petitioner that,
the bail Orders in respect to the offences referred to in paragraph 3 of the
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grounds of detention were not placed before the detaining Authority nor
supplied to the Petitioner cannot be accepted and deserves to be turned
down on the ground that, the said offences were not considered for issuing
the detention Order.
6. While adjudicating the second ground of challenged, we have
perused the averments in the affidavit in reply filed by detaining Authority.
In the reply it has been stated that, in order to curb the illegal bootlegging
activities of the detenu, the proposal dated 16 th December 2021 was
submitted by Senior Police Inspector Chaturshrungi Police Station to initiate
action against the detenu. The proposal along with the relevant papers was
submitted to Assistant Commissioner of Police, Khadki Division, Pune on
18th December 2021, who carefully went through all the papers and after
verification of 4 in-camera statements of witnesses on 21 st December 2021
and 22nd December 2021 made endorsement and submitted it to the Deputy
Commissioner of Police Zone-IV on 24 th December 2021. There was holiday
on 19th December 2021 (Sunday). After scrutinizing the proposal with
documents, the Deputy Commissioner of Police Zone-IV made endorsement
and forwarded it to the Additional Commissioner of Police, East Region on
30th December 2021. On 25th and 26th December 2021 were holidays. The
Additional Commissioner of Police forwarded proposal and documents to
Preventive Crime Branch on 5th January 2022. There was holiday on 1st and
DAE WP-3950-2022.doc
2nd January 2022 (Saturday and Sunday). The Senior Inspector of Police,
Preventive Crime Branch went through all the documents made
endorsement and forwarded the proposal along with compilation of
documents to the Assistant Commissioner of Police, Crime-I on 14 th January
2022. After perusal of all the compilation of documents, the Assistant
Commissioner of Police Crime-I forwarded the proposal to Deputy
Commissioner of Police Crime on 19th January 2022. The Deputy
Commissioner of Crime perused all the documents and made endorsement
on 27th January 2022. On 22nd and 23rd January 2022 (Saturday and
Sunday) were holidays and 26th January 2022 was pubic holiday.
Thereafter, all the documents were forwarded to Joint Commissioner of
Police on 28th January 2022 and the said Authority then made endorsement
on the proposal of detenu and compilation of documents were put up
before the detaining Authority on 16th January 2022. 30th January 2022, 6th
February 2022 and 13th February 2022 were holidays. The detaining
Authority considered the documents and gave approval to the proposal on
18th February 2022. All the documents were forwarded to the sponsoring
Authority for the purpose of typing, preparing the translation of documents
in the languages known to the detenu and the Order of detention was
issued on 21st February 2022. Learned Advocate for the Petitioner
submitted that, file was forwarded to various Authorities for no reason.
The time consumed in perusing the proposal and the documents was
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unreasonable and thus, the delay has not been explained.
7. We do not find from the documents on record and affidavit in
reply that, there was inordinate delay in issuing the Order of detention.
The Petitioner was involved in C.R. No. 87 of 2021 and C.R. No. 110 of
2021. These cases were registered on 16 th July 2021 and 9th September
2021. The Petitioner was granted bail in C.R. No. 110 of 2021 on 14 th
September 2021. Witness A referred to the statement dated 22 nd September
2021 alleging that, the Petitioner and his associates were indulging in illicit
liquor. Witness was assaulted and threatened on dire consequences. Witness
B referred to the incident which had occurred in 4 th weeks of September
2021. The witness was abused and assaulted the amount of Rs.1870/- was
extorted. Witness C in his statement dated 20th November 2021 has stated
that he is a Doctor by profession since last 8 years. He has observed that
several persons were suffering from infection and he was treating them.
They were consumed toddy from the stall of the Petitioner. He was selling
adulterated toddy. Witness D has stated that, the Petitioner and his
associates are carrying business of illicit toddy and since last two years he
has noticed that there was danger to the life of passer by and security of
women and girls passing through the area. About four months ago, the
witness was threatened by the Petitioner. He was armed with sickle. He
was assaulted. The sponsoring Authority had taken immediate steps to
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forward the proposal to the detaining Authority which has been considered
after routing it through channel and the Order of detention has been issued
against the Petitioner.
8. The decision in the case of Shri. Pandurang @ Panda Narayan
Garud Vs. The District Magistrate, Pune and Ors . (supra) relates to non-
placement and non-supply of bail Orders and applications to the detenu. It
was observed that non-consideration of the vital documents would vitiate
the subjective satisfaction of the detaining Authority. In the case of Alakshit
Vs. State of Maharashtra (supra) it was held that, the detaining Authority
ought to have considered the Order granting bail on the ground of
detention on which the bail was granted. In the case of Ratnamala
Mukund Balkhande Vs. State of Maharashtra (supra) it was observed that
the issue was that although 7 crimes were registered against the detenu
formed the material for reaching the subjective satisfaction of the detaining
Authority, in five cases in which the detenu was on bail, no bail Orders were
placed before detaining Authority. It was observed that, this lacuna has
vitiated the subjective satisfaction reached by the detaining Authority. It
was submitted at the instance of detaining Authority that, five cases were
considered as previous criminal activities and it was not necessary for the
detaining Authority to consider the reasons for which the detenu was
granted bail in each crime. The Division Bench of this Court however held
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that bail application and the Order granting bail must be placed before the
Authority and should be supplied to the detenu. Whenever, previous crimes
registered against the detenu are considered as indicative of continuous
criminal activities of the detenu, the detaining Authority must also consider
the reasons for which the detenu was granted bail. In the case before us we
have noted that the detaining Authority has categorically stated that Order
of detention is based on C.R. No. 87 of 2021 and C.R. No.110 of 2021 and
4 in-camera statements. In the case of Shivkumar Madeshwaran Devendra
Vs. State of Maharashtra (supra) this Court has taken similar view with
regard to non-placement of bail Order before the detaining Authority and
non-supply of the Order to the detenu. The other decisions relied upon by
the learned advocate for the Petitioner are relating to the delay in issuing
Order. The law is well settled that the Order of detention is preventive in
nature and prompt action is required to be initiated to meet the purpose of
detention. The delay in issuing Order of detention has to be explained by
the detaining Authority. All the aforesaid decisions were delivered in the
facts of respective cases. In the light of observation made herein above, we
do not find any substance in the grounds of challenge urged by Petitioner.
The non placement of bail Orders as contended by the learned advocate for
the Petitioner and non-supply of said Orders to the detenu would not vitiate
the Order of detention nor affect the right of detenu under Article 22(5) of
Constitution of India. The time consumed in issuing Order of detention has
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been properly explained by detaining Authority. The impugned Order of
detention has been issued expeditiously after the occurrence of incidents
and the live link for issuing the detention Order has not been snapped.
Hence, Petition must fail.
ORDER
(i) Criminal Writ Petition No. 3950 of 2022 stands dismissed.
(ii) Rule is discharged.
(PRAKASH D. NAIK, J.) (A. S. GADKARI, J.)
Digitally signed
by
DNYANESHWAR
DNYANESHWAR ASHOK ETHAPE
ASHOK ETHAPE
Date:
2023.01.25
14:26:07 +0530
