Bombay High Court
Vijay Baburao Avhad vs The State Of Maharashtra And ... on 24 March, 2023
Bench: Mangesh S. Patil, M. M. Sathaye
986.Cri.wp.1118.22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1118 OF 2022
WITH
CRIMINAL APPLICATION NO.3900 OF 2022
(for intervention)
IN
CRIMINAL WRIT PETITION NO.1118 OF 2022
Vijay Baburao Avhad
Age: Major, Occu. Business,
R/o: Jambhali, Tq. Pathardi
District Ahmednagar ... PETITIONER
VERSUS
1. The State of Maharashtra
Through its Secretary,
Home Department,
Mantralaya, Mumbai-32
2. The Section Officer,
Home Department,
Hutatma Rajguru Chowk,
Madam Kama Road, Mantralaya
Mumbai - 32
3. Rajendra Bhosale (District Magistrate) {name deleted as per the
Age : Major, Occu: Service Court's order dated 22.08.2022}
R/o. District Collector Office,
District Ahmednagar.
4. The Superintendent of Police,
Superintendent of Police Office
Tq. & Dist. Ahmednagar
5. The Police Inspector
Pathardi Police Station
Tq. Pathardi Dist. Ahmednagar ... RESPONDENTS
...
Advocate for Petitioner : Mr. Suvidh S. Kulkarni
APP for respondent - State : Mr. S.J. Salgare
Advocate for Applicant in APPLN/3900/2022 : Mr. Nitin Bhavar Patil
...
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986.Cri.wp.1118.22.odt
CORAM : MANGESH S. PATIL AND
M.M. SATHAYE, JJ.
Reserved on 16.03.2023
Pronounced on : 24.03.2023
JUDGMENT (MANGESH S. PATIL, J.) :
Rule. Rule is made returnable forthwith. Heard both the sides
finally, by consent.
2. The petitioner is impugning the order dated 19.05.2022 passed
by the respondent No.3 District Magistrate, Ahmednagar under Section 3(2)
of the Maharashtra Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug Offenders and Dangerous Persons, Video Pirates Sand
Smugglers and Person Engaged in Black Marketing of Essential Commodities
Act, 1981 (herein after MPDA Act), and the order dated 21.07.2022 passed
by the respondent No.1 i.e. the Secretary of the Home Department of the
State confirming the petitioner's detention.
3. The learned advocate for the petitioner would advert attention
to the grounds in the petition on the basis of which the order of detention is
being challenged. He submits that the registration of Crime No. I-977/2021
of Pathardi Police Station for the offence Punishable Under Section 328,
420, 465, 468, 470, 471 of the Indian Penal Code and Section 65 (a) to
65(f) of the Maharashtra Prohibition Act which has been relied upon by the
respondents to pass the impugned order. After filing of the charge sheet and
its committal to the Sessions Court it is numbered as Sessions Case
No.79/2022. But the respondents failed to consider the fact that the
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petitioner was granted bail by the Sessions Court on 10.03.2022. He would
refer to the decision in the matter of Rushikesh Tanaji Bhoite Vs. State of
Maharashtra; 2012 Cri.L.J. 1334 and Vishal Waman Mhatre Vs. The
Commissioner of Police and Ors.; 2013 All MR (Cri) 42. He would submit
that in both these matters, failure to take into consideration order of bail
was held to vitiate the order of detention.
4. According to the learned advocate there is no proximity in the
registration of the aforementioned offence and the order of detention which
is considered to be vital in the matter of Rushikesh Tanaji Bhoite (supra) as
also a division bench of this Court in the matter of Sachin Mane Vs.
Commissioner of Police; 2022 All. M.R. (Cri) 2566. He would submit that
the offence was registered on 21.12.2021 and the order of detention has
been passed on 19.05.2022, after about five months.
5. Mr. Kulkarni would then submit that contrary to the decision in
the matter of Shivkumar Devendra Vs. State of Maharashtra; 2022 All M.R.
(Cri.) 2634, the respondents have taken into consideration the crimes
registered against the petitioner to demonstrate his criminal antecedents
which were old and stale and in most of which he was either released on
bail or acquitted.
6. Mr. Kulkarni would further submit that though a reference is
made to the statements of couple of witnesses recorded in-camera, those
statements were never verified by the respondent No.3. Even the statements
did not give particulars. He ought to have verified whether the
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apprehension being entertained by these witnesses was the basis for their
unwillingness to depose before the Court of law which fact has also been
overlooked by the respondent No.1 while confirming the detention. He also
pointed out that the statements of these witnesses were recorded a month
after the petitioner was granted bail. To buttress his submission he would
refer to the decision in the matter of Shri Yash Tekam Vs. State of
Maharashtra; 2022 All M.R. (Cri.) 2490.
7. Lastly, Mr. Kulkarni would submit that the spot where the raid
was effected and alleged spurious liquor was seized for implicating the
petitioner though belongs to him, by a notarized document he and his
brother had leased out that property to one Ajinath Avhad who was in
exclusive possession of the property. In the absence of any other material
demonstrating that the petitioner was indulging in selling spurious liquor, he
could not have been ordered to be detained as laid down in the matter of
Shri Vinod Subhas Chavan Vs. Himmatrao Deshbhartar and Ors.; 2013 All
MR (Cri.) 157.
8. Per contra, the learned APP took us through the papers and by
referring to the affidavit-in-reply filed by the respondent No.3 would submit
that in view of the provisions of Section 5(A) of the MPDA Act, the
petitioner is not entitled to challenge the availability of the grounds which
formed the basis for passing the impugned order. He would further submit
that sufficiency or otherwise of the grounds cannot be a subject matter of
the petition and this Court cannot sit in appeal and examine the order as an
986.Cri.wp.1118.22.odt
appellate authority as laid down in the matter of Smt. K. Arunkumari Vs.
Government of Andhra Pradesh and Ors.; 1988 SCR (1) 973. He would
submit that the petitioner is dangerous person as defined under Section 2
(b-1) of the MPDA Act. He has been involved in several crimes including
rape, causing miscarriage without consent of a woman, attempt to murder,
voluntarily causing grievous hurt to extort property, rioting, causing damage
to the property, administering stupefying drug, cheating, disobedience of
prohibitory order, criminal intimidation, using criminal force against public
servant etc. He has created reign in the locality in an around Pathardi and
he is being at large is certain to disturb the public order. In spite of having
involved in so many crimes he has been continuing with the illegal activities.
An inquiry was conducted by the respondent No.5 - Police Inspector of
Pathardi Police Station. Nobody was coming forward to record statements.
Statements of couple of witnesses were recorded in-camera. A detail
proposal was submitted by the respondent No.5 to the respondent No.3
through the respondent No.4 - Superintendent of Police and after examining
the report objectively the respondent No.3 has reached a subjective
satisfaction which forms the basis of passing the detention order.
9. He would further submit that after the respondent No.1
approved the detention on 27.05.2022 the petitioner absconded and could
be apprehended on 07.06.2022. He was provided the grounds of detention
and the order of detention along with translation of all other papers. He
also availed opportunity of putting up his case before the advisory board
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which heard him on 07.07.2022 and it is thereafter that the order
confirming the detention was passed on 21.07.2022. Thus according to the
learned APP all the mandatory procedure was followed. There is no error or
perversity in the order of detention.
10. The learned APP would further submit that unlike the matters
in Rushikesh Tanaji Bhoite and Vishal Waman Mhatre (supra), the fact of
grant of bail in earlier crimes was specifically considered by the respondents.
The statements of the witnesses recorded in-camera clearly disclose their
apprehension to come out in open. Those were got verified by the
respondent No.3 through the Sub-divisional Police Officer, Shevgaon. The
witnesses have given the details of the individual incidents and there is no
cogent and convincing reason to interfere in the subjective satisfaction
recorded by the respondent No.3.
11. We have carefully considered the rival submissions, perused the
papers and the case law.
12. The Supreme Court as also this Court in the catena of cases had
the occasion to consider the aspect of grant of bail in respect of the offence
which forms the genesis for passing the detention order:
i. Abdul Sathar Ibrahim Manik and Ors. Vs. Union of India (UOI) and Ors.;
(1992) 1 SCC 1
ii. Sunila Jain Vs. Union of India and Anr.; (2006) 3 SCC 321
iii. Rushikesh Tanaji Bhoite Vs. State of Maharashtra ; 2012 Cri.L.J. 1334
iv. Vishal Waman Mhatre Vs. The Commissioner of Police and Ors.;
2013 All MR (Cri) 42.
986.Cri.wp.1118.22.odt
The following paragraphs from Abdul Sathar are vital:
8. Thus, the admitted position which emerges is that the order
granting bail was not placed before the detaining authority.
Moreover, the condition of attendance incorporated in the bail
order is not reflected on any of the pages 126 to 132 of the
compilation of documents. On this aspect, it will be necessary to
make a reference to the decision of the Apex Court in the case of
Abdul Sathar Ibrahim Manik v. Union of India & Others (1992)1
SCC 1. After considering the law on the aspect, reflected from
the various decisions, the Apex Court has crystalised legal
position in Paragraph 12 of the judgment.
".....Having regard to the various above-cited decisions on the
points often raised we find it appropriate to set down our
conclusions as under:
(1) A detention order can validly be passed even in the case of a
person who is already in custody. In such a case, it must appear
from the grounds that the authority was aware that the detenu
was already in custody.
(2) When such awareness is there then it should further appear
from the grounds that there was enough material necessitating
the detention of the person in custody. This aspect depends
upon various considerations and facts and circumstances of each
case. If there is a possibility of his being released and on being
so released he is likely to indulge in prejudicial activity then that
would be one such compelling necessity to pass the detention
order. The order cannot be quashed on the ground that the
proper course for the authority was to oppose the bail and that
if bail is granted notwithstanding such opposition the same can
be questioned before a higher court.
(3) If the detenu has moved for bail then the application and
the order thereon refusing bail even if not placed before the
detaining authority it does not amount to suppression of
relevant material. The question of non-application of mind and
satisfaction being impaired does not arise as long as the
detaining authority was aware of the fact that the detenu was in
actual custody.
(4) Accordingly the non-supply of the copies of bail application
or the order refusing bail to the detenu cannot affect the
detenu's right of being afforded a reasonable opportunity
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guaranteed under Article 22(5) when it is clear that the
authority has not relied or referred to the same.
(5) When the detaining authority has merely referred to them in
the narration of events and has not relied upon them, failure to
supply bail application and order refusing bail will not cause
any prejudice to the detenu in making an effective
representation. Only when the detaining authority has not only
referred to but also relied upon them in arriving at the necessary
satisfaction then failure to supply these documents, may, in
certain cases depending upon the facts and circumstance
amount to violation of Article 22(5) of the Constitution of India.
Whether in a given case the detaining authority has casually or
passingly referred to these documents or also relied upon them
depends upon the facts and the grounds, which aspect can be
examined by the Court.
(6) In a case where detenu is released on bail and is at liberty at
the time of passing the order of detention, then the detaining
authority has to necessarily rely upon them as that would be a
vital ground for ordering detention. In such a case the bail
application and the order granting bail should necessarily be
placed before the authority and the copies should also be
supplied to the detenu." (underline supplied)
13. It will be also useful to make a reference to Sunila Jain (supra)
In Paragraphs 12 and 18 of the decision, it is held thus:-
"12. The question as to whether an offence is bailable or not is not a
vital fact whereupon an order of bail can be passed. Application
of mind to the averments made in a bail application may be
relevant where the grounds stated therein reveal certain facts
which are vital for passing an order of detention. In a case of
such nature, it may be said that the application for bail was
necessary to be placed before the detaining authority and non-
furnishing a copy thereof to the detenu would vitiate the order
of detention."
"18. The decisions of this Court referred to hereinbefore must be read
in their entirety. It is no doubt true that whether a detenu on the
date of the passing of the order of detention was in custody or
not, would be a relevant fact. It would also be a relevant fact
that whether he is free on that date and if he is, whether he is
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subjected to certain conditions in pursuance to and in
furtherance of the order of bail. If pursuant to or in furtherance
of such conditions he may not be able to flee from justice, that
may be held to be relevant consideration for the purpose of
passing an order of detention but the converse is not true. Some
such other grounds raised in the application for bail and
forming the basis of passing an order of bail may also be held to
be relevant. It would, however, not be correct to contend that
irrespective of the nature of the application for bail or
irrespective of the nature of the restrictions, if any, placed by the
court of competent jurisdiction in releasing the detenu on bail,
the same must invariably and mandatorily be placed before the
detaining authority and the copies thereof supplied to the
detenu." (underline supplied)"
14. A bare look at the aforementioned observations is sufficient to
emphasize the relevance of the order granting bail. Obviously the order of
detention and the order granting bail are incompatible. Bail grants him
liberty of movement whereas detention curtails it. The detenu is granted
bail simultaneously in the same offence which forms the genesis for the
authorities to pass a detention order under Section 3(2) of the MPDA Act.
The aspect of criminal antecedents is considered by the Court while granting
the bail. If the bail is granted after considering all the material including the
criminal antecedents, such objective consideration by the court granting bail
would be relevant and vital for the authorities passing an order of detention.
15. Bearing in mind the aforementioned position in law and the
consistent view of the superior courts let us examine the order dated
19.05.2022. Admittedly, Crime No. I-977/2021 forms the basis for initiating
the process of passing the detention order and on the basis of which the
proposal dated 28.04.2022 was submitted by the respondent No.5 - Police
Inspector of Pathardi Police Station. The criminal case was later on
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committed to the Sessions Court and was registered as Sessions Case
No.79/2022 and the petitioner was granted bail by the Sessions Court by the
order dated 10.03.2022. It is thus apparent that even before the proposal
was forwarded by respondent No.5 on the basis of which the order of
detention has been passed, the petitioner was granted bail by the Sessions
Court. The copy of the order granting bail to the petitioner is available in
the papers of the writ petition. The learned Sessions Court inter alia has
considered the aspect of antecedents of the petitioner which were brought to
its notice in respect of registration of several crimes but has denied to rely
upon it to refuse bail. It has also been observed that he was a permanent
resident of the specific address having immovable and movable properties.
It was also observed that there was no reason to suspect that he would flee.
If such were the emphatic observations recorded by the Sessions Court even
before a proposal was forwarded by the respondent No.5, as laid down in
the aforementioned decisions, it was imperative for the respondents to have
borne in mind the fact regarding grant of bail and should have reached the
subjective satisfaction by referring to the grounds which formed the basis for
grant of bail. For this reason alone, referring to the views of the superior
courts in the aforementioned matters, the order of detention would vitiate.
16. It is pertinent to note that the respondent No.5 in his proposal
submitted to the respondent No.3 had specifically brought to the notice that
the petitioner was granted bail even in the recent criminal case that is Crime
No.I-977/2021. If that was the case, the respondent No.3 was bound to call
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upon to place before him the order passed by the Sessions Court granting
bail which would have enabled him to go through it. But the order dated
19.05.2022 does not indicate about he having reached subjective satisfaction
with the objective material that could have been looked into by him easily.
17. The learned APP made a faint attempt to advert our attention to
the order dated 19.05.2022 wherein grant of bail was specifically
mentioned. However, reference to bail by the court in that paragraph is
made in respect of the previous crimes and not Crime No.I-977/2021 and
the aforementioned order of bail by the Sessions Court. As a result, the
impugned order of detention stands vitiated for the sole reason that order
granting bail in the Crime No.I-977/2021 and in Sessions Case No.79/2022
was not objectively considered by the respondent No.3.
18. Apart from the above state of affairs, the alleged Crime No.I-
977/2021 was committed on 22.12.2021 whereas the order of detention
under challenge is passed after almost five months that too when the
petitioner was granted bail in the month of March. The statements of the
witnesses were recorded in-camera. Apart from the fact that the statements
of these individuals are in verbatim same and equally vague and omnibus.
Without disclosing the date but quoting different times of the day on which
they were allegedly threatened by the petitioner. The aspect of delay in
passing the order of detention after actual commission of latest crime has
been considered by this Court in the matter of Yash Vs. State of Maharashtra
and Ors.; (Criminal Writ Petition No.457/2021 dated 17.11.2021), Sheikh
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Yetal Vs. State of Maharashtra and Ors.; (Criminal Writ Petition
No.627/2021 decided on 21.12.2021). In these matters the delay of five
months between the date of commission of the recent crime and the order of
detention has been held to be sufficient to vitiate the order of detention.
19. In both these decisions, similar statements of the witnesses
recorded in-camera were held to be insufficient to justify the subjective
satisfaction. Like in these two matters even in the matter in hand though
the respondent No.3 in his affidavit-in-reply filed in this petition has
specifically mentioned about having undertaken verification of the
statement of the two witnesses through SDPO, the order dated 19.05.2022
does not expressly demonstrate about he having objectively verified the fact
and reached any conclusion as to how these witnesses were genuine and
indeed were reluctant to come forward to record the testimony in open
because of the petitioner's terror.
20. In view of the aforementioned state of affairs, the order of the
detention of the petitioner is not sustainable in law.
21. The writ petition is allowed. The petitioner shall be set at
liberty forthwith, if his incarceration in some other case or matter is not
necessary.
22. Rule is made absolute accordingly.
23. Pending Application is disposed of.
(M.M. SATHAYE, J.) (MANGESH S. PATIL, J.)
habeeb
