Govind S/O. Banduji Tulsewar vs The State Of Mah. Home Dept. (Spl.) ...
2023 Latest Caselaw 10036 Bom

2023:BHC-NAG:14262-DB
                                                              1                      WP-J-307-2023.odt


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   NAGPUR BENCH, NAGPUR.

                              CRIMINAL WRIT PETITION NO. 307 OF 2023

                PETITIONER:                   Govind S/o. Banduji Tulsewar,
                                              Age 33 years, Occ. Labour,
                                              R/o. In front of Sariputra Baudh Vihar,
                                              Pandharboadi, Sanjay Nagar,
                                              Nagpur.

                                              VERSUS

                RESPONDENTS :                 1.    The State of Maharashtra,
                                                    Home Department (Special),
                                                    Through its Section Officer,
                                                    Second Floor, Main Building,
                                                    Mantralaya, Mumbai - 32.

                                              2.    Commissioner of Police
                                                    Nagpur (City), Nagpur.
                -------------------------------------------------------------------------------------------
                Mr. Siddhant Ghatte, Advocate for petitioner.
                Shri S.S. Doifode, Additional Public Prosecutor for respondents.
                -------------------------------------------------------------------------------------------

                                              CORAM:- VINAY JOSHI AND
                                                      VALMIKI SA MENEZES, JJ.

JUDGMENT RESERVED ON : 05/07/2023 JUDGMENT PRONOUNCED ON : 29/09/2023

JUDGMENT : (Per Valmiki Sa Menezes, J.)

1. Heard. Rule. Rule made returnable forthwith. Heard

finally by consent of the learned counsel appearing 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 13.03.2023 passed by the Commissioner of Police, 2 WP-J-307-2023.odt

Nagpur City (respondent No.2) under Section 3(1) of the

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(hereinafter referred to as

"MPDA"); the petitioner further lays challenge to order dated

24.03.2023 passed by the respondent No.1 under Section 3 of the

MPDA, confirming the order dated 13.03.2023 of the respondent

No.2.

3. Three main grounds raised in challenge to these

orders in the petition are :

(a) That none of the three 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 the in-camera/anonymous statements relied upon

by the detaining authority do not disclose any incident

which has taken place either in broad public view or

allege acts on the part of the detenu that would 3 WP-J-307-2023.odt

amount to disturbance of public order; the

authenticity and contents of the statements have not

been verified by the detaining authority, who has

neither interacted personally with the witnesses or

even ascertained the genuineness of the contents

thereof from the concerned ACP.

(c) That of three offences considered for passing the

detention order, the first two offences, according to the

police, only warranted issuance of a notice under

Clause (a) of sub-Section (1) of Section 41 of the Code

of Criminal Procedure and therefore, could not be

termed to be a serious nature; the third offence was

one under the Arms Act, for which the petitioner has

been granted bail and could be dealt with under

Regular Criminal Laws. As such, none of these

offences could form be material for subjective

satisfaction of the detaining authority, and thus, the

impugned order is passed without any jurisdiction

under Section 3 of the MPDA.

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

respondents have filed affidavit in reply dated 20.06.2023,

through the Commissioner of Police, Nagpur City reiterating their 4 WP-J-307-2023.odt

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 main contention of the petitioner appears to be

that the three crimes, which form the basis of passing the

detention order are all in the nature of personal disputes between

the petitioner and the complainants. It is further the contention of

the petitioner that of the three crimes which are referred in para 8

of the impugned order, two crimes bearing No.305/2022

(Ambazari) and No.480/2022 (Ambazari), were of such nature

being offences as to only require issuance of a notice under Clause

(a) of sub-Section (1) of Section 41 of the Code of Criminal

Procedure to the petitioner. Further, that in the third cognizable

offences which is Crime No.13/2023 (Ambazari), the petitioner

was released on bail by the concerned Magistrate and there was

no cause for the authorities to proceed with any action in terms of

the MPDA since the matters would proceed under regular Penal

Laws. The learned counsel for the petitioner relies upon the

following judgments to buttress his argument that the nature of 5 WP-J-307-2023.odt

the offences relied upon by the detaining authority do not fall

within the meaning of offences which are prejudicial to

maintenance of "public order" :-

(a) Shaikh Husain @ Shahrukh Shaikh Fatru Vs. State of

Maharashtra, reported in 2023 DGLS (Bombay) 1318.

(b) Judgment dated 13.03.2023, of the Bombay High

Court in Chandbee W/o. Usmaan Patel Vs. State of

Maharashtra, in Criminal Writ Petition No.697/2022.

(c) Anil Tukaram Mohite Vs. The Commissioner of Police

Pimpri Chinchwad and Ors, reported in 2021 ALL MR

(Cri.) 3794,

(d) Gajanan Pundlik Londhe Vs. State of Maharashtra and

Ors., reported in 2023(2) AIR Bom. R. (Cri.) 378.

7. Per contra, learned APP appearing for the respondents

has supported the impugned orders contending that the incidents

relied upon justify the passing of the impugned orders. It was

further contended that on going through the contents of the FIR's

in the three offences, has considered that they disclose acts which

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 "A" and

"B" disclose that the involvement of the petitioner in those 6 WP-J-307-2023.odt

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 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 7 WP-J-307-2023.odt

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 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 ? "

8 WP-J-307-2023.odt

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.

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 9 WP-J-307-2023.odt

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 three 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.305/2022

(Ambazari) is an altercation between the petitioner and one

Rahim Shaikh, who knew the petitioner very well as he was

running Pan kiosk near Ravi nagar, Nagpur. The incident took

place as a sequel to an earlier quarrel between the complainant

and the petitioner; due to their earlier quarrel on 28.08.2022 the

petitioner is alleged to have abused the complainant and assaulted

him with fist blows after which an offence was registered. During

the investigation, the incident was found to be of such nature as to

only require issuance of a notice under Clause (a) of sub-Section

(1) of Section 41 of the Code of Criminal Procedure to the

petitioner. The second incident under Crime No.480/2022

(Ambazari) is registered at the behest of Ravindra Mogarwar who

also run a Paan Kisok close to the one run by the petitioner; the 10 WP-J-307-2023.odt

complainant alleges that on 23.12.2022 the petitioner has thrown

some garbage in front of complaint Kisok and two day later, on

25.12.2022 at 20.50 hours when the complainant was urinating

on the open ground, an argument broke out between the

complainant and the petitioner, after which the petitioner beat the

complainant with fist blows. This act too necessitated only

issuance of a notice under Clause (a) of sub-Section (1) of Section

41 of the Code of Criminal Procedure to the petitioner. Neither of

these incidents can be considered to have any impact or can be

said to be disruptive of maintenance of on public order. The

contents of the complaint do not disclose there was cause for any

alarm amongst the members of the public of the area or that the

acts complaint caused disturbance of normal life in the area of the

incident. In fact, the crimes were not even felt to be of serious

nature and were felt too warrant issuance of a notice under Clause

(a) of sub-Section (1) of Section 41 of the Code of Criminal

Procedure to the petitioner.

11. In the third incident of 09.01.2023 in Crime No.13/2023,

the complainant was chased by the Police in after being caught

was searched and one iron knife (sattur) was found in his

possession and seized from him; the allegation in the complaint

which was filed at the behest of a Police Officer was that by 11 WP-J-307-2023.odt

carrying the weapon, the petitioner had violated the conditions of

a prohibitory order against him. The incident by itself does not

disclose any act of violence or one which may be termed to be

disruptive of maintenance of public order. It is not the case of the

complainant therein that the petitioner has indulged in any acts of

violence of a manner that is caused public alarm. After being

arrested in this crime, the petitioner has been released on bail and

the Criminal Case is pending trial before a Magistrate.

12. In Chandbee Patel (supra) this Court was considering a

similar fact situation where the crimes relied upon as material for

passing a detention order only required a notice under Clause (a)

of sub-Section (1) of Section 41 of the Code of Criminal Procedure

to the petitioner. In that judgment, while relying on a earlier

judgment in this Court in Kasam Kalu Nimsurwale Vs. State of

Maharashtra passed on 26.07.2022 in Criminal Writ Petition

No.269/2022, this Court has held that where the crimes relied

upon were of such nature that warranted only issuance a notice

under Section 41 of the Code, they could not be construed as

crimes of a nature to form the material for recording subjective

satisfaction in terms of Section 3 of the MPDA.

Applying the ratio of the above two judgments to the facts

of this case, in our considered opinion, the three crimes relied 12 WP-J-307-2023.odt

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

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.

13. The second contention of the petitioner was that the in-

camera statements "A" and "B" recorded by the concerned Police

Inspector could not be relied upon for passing the impugned

detention order. Going to the fact that the detaining authority had

neither asserting from the Officer who had recorded the

statements, as to genuineness of their contents or as to the

unwillingness of the witnesses to come forward and make a formal

complaint; it was further contended that the statements are from

the month of November 2022 and December 2022, more than

three months prior to passing of the detention order and therefore,

no live-link has been established between their contents and the

other.

14. We have gone through the contents to the two in-

camera statements. Statement "A" does not even specify the date

of the incident but only refers to the time of the incident. The 13 WP-J-307-2023.odt

statement records that the petitioner had committed murder and

used to snatch money from people at knife point. It further

records that the witness was abused by the petitioner and

assaulted with fist blows; it was further alleged that the petitioner

extorted Rs.2,000/- from the petitioner and cause fears amongst

the people of the locality.

In-camera statement "B" refers to the incident of last week

of December 2022 of similar nature. The impugned order records

that the statements were verified by the concerned Inspector and

that the Assistant Commissioner of Police has verified the

statements and submitted his report to the authority. A perusal of

the statements discloses the Assistant Commissioner of Police

recorded that he has visited the concerned site on 18.01.2023, two

months after the first statement was recorded and a month after

second statement was recorded. The statements only record that

the detaining authority has seen the verification but, do not record

that the authority has asserting from the Officers was recorded the

statements or verifying the authority that their contents were

genuine or that the officers had asserting from the witnesses that

they were in fact not willing to give a complaint against the

petitioner.

15. In Shaikh Husain (supra), this Court has dealt with a 14 WP-J-307-2023.odt

similar fact situation, wherein it has observed that a detaining

authority must record its satisfaction that the statements of the

witnesses were genuine and that it had interacted with the

Assistant Commissioner of Police to very such a statement.

Applying the ration laid down in Shaikh Husain (supra) to

the present case, wherein the authority has nowhere recorded its

satisfaction that it has passed the order after interacting with the

Officer who has verified the statements or that it was satisfied that

the contents were genuine, we have no alternative left but to hold

that such statements could not be relied upon as material for

passing a detention order.

16. Under these circumstances, on the two grounds held by

us above, in favour of the petitioner, we are of the opinion that the

impugned detention order is not sustainable 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

impugned orders dated 13.03.2023 and 24.03.2023 passed by the

respondents.

Rule is made absolute in terms of prayer clause (i) of the

petition. No costs.

[VALMIKI SA MENEZES, J.] [VINAY JOSHI, J.]

Kirtak

Signed by: Mr. B.J. Kirtak Designation: PA To Honourable Judge Date: 29/09/2023 14:53:39