Gajanan Ashok Dahale vs The State Of Mah. Thr. Its ...
2023 Latest Caselaw 11316 Bom

2023:BHC-NAG:16017-DB


                                                                1                                crwp407.23.odt



                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       NAGPUR BENCH : NAGPUR

                                  CRIMINAL WRIT PETITION NO.407 OF 2023

                        Gajanan Ashok Dahale
                        Aged about 24 years, Occ: Labour,
                        R/o Sarafa Line, Gochewar Sawami Ward,
                        Umarkhed, Tq. Umarkhed, Dist. Yavatmal.                            ...PETITIONER

                                  ...V E R S U S...

                 1.    The State of Maharashtra,
                       Through its Secretary,
                       Home Department (Special), Mantralaya,
                       Mumbai.

                 2.    The Collector and District
                       Magistrate, Yavatmal,
                       Tq and Dist. Yavatmal.                                         ... RESPONDENTS

                 ------------------------------------------------------------------------------------------------
                 Shri S.S. Shaikh, Advocate for petitioner.
                 Shri S.S. Doifode, APP for respondents.
                 ------------------------------------------------------------------------------------------------

                 CORAM :- VINAY JOSHI AND M.W. CHANDWANI, JJ.
                 ARGUMENTS WERE HEARD ON :- 25.10.2023.
                 JUDGMENT PRONOUNCED ON :- 03.11.2023.


                 JUDGMENT (PER : M.W. CHANDWANI, J.):

. Rule. Rule made returnable forthwith. Heard finally by

consent of the learned counsel for the parties.

2. By this petition under Article 226 of the Constitution of India

the petitioner seeks to quash and set aside the impugned order dated

02.12.2022 passed by the respondent No.2 under Section 3(1) of the 2 crwp407.23.odt

Maharashtra Prevention of Dangerous Activities of Slumlords,

Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand

Smugglers and Persons Engaged in Black-Marketing of Essential

Commodities Act, 1981 (for short, "MPDA"); the petitioner further

lays challenge to order dated 07.02.2023 passed by the respondent

No.1 under Section 3 of the MPDA, confirming the order dated

02.12.2022 of the respondent No.2.

3. Three main grounds raised in challenge to these orders in the

petition are :

(a) That none of the two offences relied upon by the

detaining authority, forming basis for passing the

detaining order concern an alleged act which is

detrimental to the maintenance of the public order, and

further the acts alleged in those offences can be at most

termed as acts which are disruptive of law and order.

(b) That two offences considered for passing detention order

could not be termed to be serious nature. In both

offences the petitioner has been granted bail and could

be dealt with under regular criminal laws.

(c) None of these two offences could be considered as

material arriving for subjective satisfaction of the

detaining authority being more than six months prior to 3 crwp407.23.odt

impugned order. Thus, there is no live between last

offence and impugned order.

4. In answer to the allegations made in the petition, the

respondents have filed affidavit-in-reply dated 23.08.2023, through

the Collector and District Magistrate, Yavatmal reiterating their stand

that the petitioner was considered as a "dangerous person" under the

MPDA and sought to justify his detention and support the impugned

orders.

5. We have heard the learned counsel for the parties, perused the

record of the detaining authority, and both the impugned orders.

6. The bone of contention of the petitioner is that two crimes

which formed basis of passing the detention order are all in nature of

personal dispute between the petitioner and the complainant. Crime

No.342/2022 registered with Police Station, Umarkhed for the

offences punishable under Sections 323, 504, 506(2) read with

Section 34 of the IPC and under Sections 4 and 25 of the Arms Act,

wherein the injury was a simple hurt. In another Crime No.376/2022

registered with Police Station, Umarkhed for the offences punishable

under Sections 120B, 143, 145, 147, 148, 149, 307 of the IPC and

under 3(1)(2)(v) of the Scheduled Caste and Scheduled Tribe

(Prevention of Atrocities) Act, 1989, the petitioner has not played any 4 crwp407.23.odt

major role rather, no assault was attributed to the petitioner. The

petitioner was released on bail by the learned Additional Sessions

Judge. Though, bail order was produced before the detaining

authority, there is no discussion on it in the order. Therefore, the

order has been passed without application of mind.

7. The learned APP appearing for the respondents has supported

the impugned orders contending that the incidents relied upon by the

authority justify the passing of the impugned orders. The crimes

which have been considered by the detaining authority disclose that

it could be considered detrimental to the maintenance of public order

and would justify the passing of the impugned orders. He further

submits that a perusal of the in-camera statements of witness "A" and

"B" disclose that the involvement of the petitioner in those incidents

at a public place, causing alarm to the people in the vicinity and that

the same were relied upon by the detaining authority only after being

verified.

8. At the outset, we quote the Hon'ble Supreme Court in the

judgment of Kanu Biswas Vs. State of West Bangal , reported in

(1972) 3 SCC 831 on the question of what constitutes breach of

"public order" as opposed to breach of "law and order" :-

"6. The distinction between the concept of public order and that of law and order has been adverted to 5 crwp407.23.odt

by this Court in a number of cases. In the case of Dr. Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R.

709, Hidayatullah J. (as he then was) said that any contravention of law always affected order, but before it could be said to affect public order, it must affect the community at large. He considered three concepts, law and order, public order and the security of the State, and observed that to appreciate the scope and extent of each one of them, one should imagine the concentric circles. The largest of them represented law and order, next represented public order and the smallest represented the security order, just as an act might affect public order but not the security of the State. In the subsequent case of Arun Ghosh v. State of West Bengal, [1970] 3 S.C.R. 288, the Court dealt with the matter in the following words: "Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance, of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of' the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An Act by itself is not determinant 6 crwp407.23.odt

of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different."

7. The question where a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance, of the public order, according to the dictum laid down in the above case is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above, case, is : Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order, or does it affect merely an individual leaving the tranquillity of the society undisturbed ? "

9. In Banka Sneha Sheela Vs. State of Telangana, reported

in (2021) 9 SCC 415 the Supreme Court has considered the very

same question and has set down the distinction between what acts

constitute of breach of public order and those which are, in

contradistinction, to be in-contravention of law and order in the

following terms :-

"13. There can be no doubt that for 'public order' to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects 'law and order' but before it can be said to affect 'public order', it must affect the community or the public at large.

7 crwp407.23.odt

14. There can be no doubt that what is alleged in the five FIRs pertain to the realm of 'law and order' in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Indian Penal Code set out in the five FIRs. A close reading of the Detention Order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case."

10. Going by the ratio laid down in the above referred two

judgments, the facts alleged in the two offences referred to in the

detention order, which formed basis for arriving at a subjective

satisfaction by the authority, would require analysis, to determine

whether they would be disruptive of public order or they would only

constitute breach of law and order.

The first offence bearing Crime No.342/2022

(Umarkhed) is a scuffle between the petitioner and one Shaikh 8 crwp407.23.odt

Husain alias Sharukh Shakh Fataru. The incident took place because

of cut given by two-wheeler of petitioner. The informant chased the

petitioner and intercepted his two-wheeler, where he was assaulted

in front of petitioner and the petitioner alleged to have possessed a

knife and threatened to the informant. In this crime, the petitioner is

on bail.

The second incident in Crime No.376/2022 (Umarkhed),

which is registered at the behest of Saurav Puransingh Pathrod, who

was standing beside the Rangoli Dresses shop at that time the

petitioner alongwith two other accused came there on motorcycle.

Co-accused Krushna Tondare and Vijay Bhimewar assaulted the

informant by means of knife. The role assigned, in this crime, to the

present petitioner is that he had caught hold the informant. The role

of assault is assigned to co-accused Krushna and Vijay. It is also to be

noted that considering the role of the petitioner, he has also been

granted bail, in this crime.

11. Applying the ratio of the above two judgments to the

facts of this case, in our considered opinion, the two crimes relied

upon could not form the basis or material for recording subjective

satisfaction by the authority in terms of Section 3 of the MPDA as

none of the acts would either be termed to be disruptive of 9 crwp407.23.odt

maintenance of public order or any manner detrimental to its

maintenance. Clearly, in this case regular Penal Laws would deal

with the three offences, on or which are under trial before the

concerned Court.

12. It may be noted that there is nothing on record to

indicate whether detaining authority has considered the bail granted

to the petitioner in Crime No.376/2022 by the learned Additional

Sessions Judge. Though order has been placed on record by the

detaining authority but there is no discussion in the impugned order

in this regard.

13. A reference to the decision of the majority view in Vijay Narain

Singh Vs. State of Bihar reported in (1984) 3 SCC 14 : 1984 SCC

(Cri.) 361 may not be out of context. In para 32 of the judgment, the

Supreme Court held as under:

"32. ......When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court."

14. We also make reference to a judgment of the Hon'ble

Supreme Court in Mallada K. Sri Ram Vs. The State of Telangana,

reported in MANU/SC/0444/2022, wherein the Hon'ble Supreme 10 crwp407.23.odt

Court has held that the detention order on the basis of stale material,

and failure on the part of the Authority to probe the existence of live

and proximate link between the past cases and the need to detain the

Petitioner, was contrary to the provisions of Article 22 of the

Constitution of Indian and required to be quashed. We quote from

the judgment as under :

"11. At this stage, it would also be material to note that the first case was registered on 15 October 2020, while the second case was registered on 17 December 2020. Bail was granted on 8 January 2021. The order of detention was passed on 19 May 2021 and was executed on 26 June 2021. The order of detention was passed nearly seven months after the registration of the first FIR and about five months after the registration of the second FIR. The order of detention is evidently based on stale material and demonstrates non-application of mind on the part of the detaining authority to the fact that the conditions which were imposed on the detenu, while granting bail, were duly fulfilled and there was no incidence of a further violation. In the counter affidavit which was filed before the High Court, the detaining authority expressed only an apprehension that the acts on the basis of which the FIRs were registered were likely to be repeated in the future thereby giving rise to an apprehension of a breach of public order. The High Court has failed to probe the existence of a live and proximate link between the past cases and the need 11 crwp407.23.odt

to detain the detenu after seven months of registration of the first FIR and nearly five months of securing bail."

15. The record of present case would reveal that first crime

was registered on 25.05.2022 while second crime was was registered

on 14.06.2022. The order of detention was passed on 02.12.2022.

The order of detention was passed nearly seven months after

registration of first crime and about five months after registration of

second crime. Thus, the order of detention is passed on stale material

without consideration of bail granted to the petitioner, which

demonstrates non-application of mind on the part of detaining

authority.

16. Even otherwise applying the ratio laid down in Banka

Sneha Sheela and Kanu Biswas (supra), in our considered view, two

crimes relied by the detaining authority could not form basis or

material for recording steps stated by the detaining authority in terms

of section 3 of the MPAD as none of the acts would either be termed

to be disruptive of maintenance of public order or any manner

detrimental to its maintenance.

17. Under these circumstances, on the three grounds, we are

of the opinion that the impugned detention order is not sustainable 12 crwp407.23.odt

and it passed contrary to the provisions of Section 3 of the MPDA. In

that view of the matter, the petition is allowed. We hereby quash and

set aside the impugned orders dated 02.12.2022 and 07.02.2023

passed by the respondents.

Rule is made absolute in above terms.

       (M.W. CHANDWANI, J.)                        (VINAY JOSHI, J.)



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