Bombay High Court
Sukhdeo S/O Sakharam Thorat vs The State Of Mah. Thr. Home Dep. ... on 13 March, 2023
Bench: Vinay Joshi, Bharat Pandurang Deshpande
Judgment WP 882.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO. 882 OF 2022
Sukhdeo s/o Sakharam Thorat
Aged about 60 years, Occ. : Nil,
R/o. Gurudeo Nagar, Mozari, .. Petitioner
Tq. Teosa, Dist. Amravati
Avdhut S/o Sukhdeo Thorat
Aged about 36 years, Occ. Labour
R/o Mozari, Tq. Tiosa, Dist. Amravati,
(presently detained at Buldhana prison .. Detenu
in view of detention Order dated
12/04/2022)
Versus
1. The State of Maharashtra,
through Home Department (Special),
Mantralaya, Madam Kama Road,
Mumbai - 400 032
2. The Principal Secretary to Government
of Maharashtra, Home Department .. Respondents
(Special) Mantralaya, Madam Kama
Road, Mumbai - 400 032
3. The Collector & District Magistrate,
Amravati, Tq. And Dist. Amravati
Mr. P. R. Agrawal, Advocate for petitioner and detenu.
Mr. N. R. Rode, APP for respondents.
CORAM : VINAY JOSHI AND
BHARAT P. DESHPANDE JJ.
RESERVED ON : 08/03/2023
PRONOUNCED ON : 13/03/2023
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Judgment WP 882.2022.odt
JUDGMENT (Per : Bharat P. Deshpande J.)
Rule. Rule made returnable forthwith. Heard finally
at admission stage with the consent of the learned counsel appearing
for the parties.
(2) Petitioner is the father of the detenu, namely,
Avdhut Thorat, who is challenging the impugned order of detention of
his son, issued by respondent No.3 on 12/04/2022, whereby said
Avdhut is directed to be detained for a period of one year under
Section 3(1) of the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video
Pirates, Sand Smugglers and Persons engaged in Black Marketing of
Essential Commodities Act, 1981 (here-in-after referred to as "the Act
of 1981"). The detenu was served with detention order and thereafter,
he received compilation along with grounds of detention etc. while in
jail.
(3) Learned counsel appearing for the petitioner would
submit that the impugned order is bad-in-law and illegal as it violates
Article 22 of the Constitution since there is complete non-application
of mind and without reaching a substantive satisfaction on the
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Judgment WP 882.2022.odt
material produced along with the detention order. The grounds of
detention show only two offences bearing Crime No.214/2022 and
Crime No.75/2022 registered against the detenu for the offence
punishable under Section 65(d) of the Maharashtra Prohibition Act,
1949. In both these offences notice under Section 41(a)(1) of the
Code of Criminal Procedure, 1973 was served upon the detenu.
(4) Learned APP appearing for the State submitted that
the detenu is a habitual offender and order was passed only to prevent
breach of public peace.
(5) Learned counsel for the petitioner placed reliance in
the cases of (i) Shaikh Usman Shaikh Maheboob vs. The State of
Maharashtra & anr. (Cri.W.P.No.690/2022 decided on 19/12/2022),
(ii) Hanif Karim Laluwale vs. State of Maharashtra and others,
reported in 2022(5)Mh.LJ(Crl.)278, (iii) Smt.Bismilah wd/o Sheikh
Rahim vs. The State of Maharashtra and another, (Cri.W.P.No.73/2022
decided on 21/10/2022), (iv) Chandbee w/o. Usmaan Patel vs. State
of Maharashtra and others, (Cri.W.P.No.697/2022 decided on
03/03/2023) to buttress his submissions.
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(6) The detention order (Annexure-A) is issued by the
District Magistrate, Amravati would show that the concerned Authority
is satisfied to detain the detenu in order to prevent him from acting in
any manner prejudical to the maintenance of public order in
accordance with the provisions laid down under the Act of 1981.
(7) The grounds of detention dated 12/04/2022 though
refers to various offences committed by the detenu, only refer to two
offences as found in para 5 for the purposes of passing detention order.
Para 5 deals with all the grounds of the detention, which is the basis
for issuing such detention order, along with statements of two
witnesses recorded in-camera and referred to Crime No.214/2022
dated 06/04/2022 and Crime No.75/2022 dated 26/01/2022,
registered at Teosa, Police Station. Both these offences are under
Section 65(d) of the Maharashtra Prohibition Act, 1949.
(8) Further the detention order in para 5-1 and 5-2
refers to the details of the above two crime numbers. It only shows
that on both occasions the Officer of the concerned Police Station, on a
secret information conducted raid at the house of the detenu and
found/confiscated hand distilled liquor. Samples were collected in
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presence of the witnesses.
(9) As far as both these crime numbers are concerned,
the grounds of detention show that no arrest of the detenu was
effected, however, he was served with a notice under Section 41(a)(1)
of the Cr.P.C. This clearly goes to show that even the concerned Police
Officer, who registered above two crime numbers did not consider
arrest of the detenu for the said offences.
(10) A co-ordinate Bench of this Court in the case of
Shaikh Usman Shaikh Maheboob (supra) considered similar
contentions. In that case also offences were registered under Section
65(k)(d)(f) of the Maharashtra Prohibition Act, 1949 and notice under
Section 41(1-a) of the Cr.P.C. were issued.
(11) In the case of Hanif Karim (supra), a co-ordinate
Bench of this Court was called upon to consider detention of the
detenu, wherein the offences alleged against him were of minor in
nature and detenu was never arrested and instead of that notice under
Section 41(a)(1) of Cr.P.C. was issued against him. In such
circumstances, this Court further observes that when arrest was not
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necessary, such person could not be considered as dangerous for the
public peace.
(12) In the case of Chandbee Patel (supra), a co-ordinate
Bench of this Court in detail consider similar contentions and found
that when arrest of the detenu was not required for the alleged
offences, he could not be considered as harmful for the public peace.
(13) The grounds of detention and more specifically in
para 5 would show that the detaining Authority considered only two
crimes as discussed earlier, for passing the detention order. In both
these crimes detenu was not arrested by the Investigating Officer.
Hence it could not be said that the detenu was a threat to the public
peace.
(14) If such contentions of the detaining Authority in
connection with said two offences are not accepted for the purpose of
detention, what remains are the statements of two witnesses. The
detention order referred to in-camera statements of witnesses 'A' and
'B' in para 5-5 and 5-6. A scrutiny of these statements would clearly
goes to show that the allegations made against the detenu are only
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with regard to the personal threat given to such witness. Both these
statements cannot be considered as danger to the public peace or even
for law and order situation in the said locality. There is no live nexus
between above two statements of witnesses 'A' and 'B' with the alleged
offences as disclosed in para 5 of the grounds of detention.
(15) We found that there is no subjective satisfaction, so
as to pass the order of detention in the given circumstances. The
verification of the statements of two witnesses which is found on page
93 is also suffered from the subjective satisfaction and also from the
aspect of non-application of mind.
(16) For the above reasons, we are of the opinion that
impugned order of detention is unsustainable. Accordingly, the Writ
Petition is allowed. The impugned order of detention is hereby
quashed and set aside. The detenu, namely, Avdhut Sukhdeo Thorat
shall be released forthwith, if not required in any other offence.
(17) Rule made absolute in above terms.
[ BHARAT P. DESHPANDE J. ] [ VINAY JOSHI, J. ]
Digitally signed byRAVIKANT
CHANDRAKANT KOLHE
Signing Date:13.03.2023
17:27
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