Bombay High Court
Ganesh Santukrao Pungale vs The State Of Maharashtra And Others on 6 August, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:17502-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1153 OF 2024
Ganesh s/o Santukrao Pungale
Age: 28 years, Occu.: Agri.,
R/o. Rajur, Tq. Bhokardan,
District Jalna. .. Petitioner
Versus
1. The State of Maharashtra
Through Additional Chief Secretary,
Home Department, Mantralaya,
Mumbai.
2. The President/Secretary,
Advisory Board, Desk Officer,
Home Department, (Special)
Mantralaya, Mumbai-32.
3. The District Magistrate, Jalna,
District Jalna.
4. The District Superintendent of Police,
Jalna.
5. The Sub Divisional Magistrate, Bhokardan
District Jalna.
6. The Sub Divisional Police Inspector,
Bhokardan, District Jalna.
7. The Police Inspector,
Police Station, Hasnabad,
Tq. Bhokardan, District Jalna.
8. Superintendent of Central Prison,
Harsul, Chhatrapati Sambhajinagar. .. Respondents
[1]
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...
Mr. D. R. Kale and Mr. Y. H. Lagad, Advocate for the Petitioner.
Mr. N. R. Dayama, APP for the Respondents - State.
...
CORAM : SMT. VIBHA KANKANWADI &
ABHAY S. WAGHWASE, JJ.
DATE : 06 AUGUST 2024
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. D. R. Kale for the petitioner and
learned APP Mr. N. R. Dayama for the respondents - State.
2. Rule. Rule made returnable forthwith. The petition is heard
finally with the consent of both the sides.
3. The petitioner challenges the detention order passed by
respondent No.3 in file No.2024/RB-Desk-1/MPDA/Kavi-81 dated
03.04.2024 and the approval order dated 28.05.2024 passed by
respondent Nos.1 and 2 confirming the order passed by
respondent No.3.
4. Learned Advocate for the petitioner has taken us through
the impugned orders, grounds of detention and the material
which was before the authorities at the time of passing the
impugned orders on the basis of documents supplied to the
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petitioner. He submits that it is stated that the petitioner is
involved in six offences since 14.05.2013. In fact, all of them
have been considered by the detaining authority for passing the
impugned order. There cannot be a live-link between the offence
that had allegedly committed in May 2013, 21.08.2019,
December 2021 and November 2022 when the proposal was
submitted by the police officer from Hasnabad Police Station,
District Jalna on 21.02.2024. On this issue itself it can be said
that there was no subjective satisfaction arrived at by the
respondent No.3. Further, if we consider each offence it is to be
noted that they are under Indian Penal Code except one and they
can be said to be the offences against individual members. The
facts of those cases do not disclose that there was disturbance to
the public order though those acts may amount to law and order
situation. Even as regards the statement of the in-camera
witnesses, it can be seen that the threat was allegedly given and
money was tried to be extorted from the witness 'A'. It is not
stated that public was threatened by the petitioner at that time.
Similarly, in respect of statement of in-camera witness 'B', it is
stated that he was proceeding towards house when he was
intercepted by the petitioner and amount was demanded from
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him. Though the petitioner had submitted the representation
dated 24.04.2024 to the President, Advisory Board, Desk Officer,
Home Department; through Superintendent of Prison, it appears
that it was not placed before either the Advisory Board or the
State Government. Affidavit has been filed by Dr. Shrikrishna
Panchal, the District Magistrate, Jalna. Another affidavit filed by
Mr. Deepak Vasant Sawant, Secretary to Advisory Board, (MPDA),
Mumbai, would show that the representation was sent on his
personal e-mail and one copy appears to have been given on
another e-mail of the Home Department of the State Government
and it is then stated that the Home Department received the
representation on 09.05.2024 on the day of hearing of the
Advisory Board, but hard copy of the representation was not
received and, therefore, it could not be placed before the Advisory
Board. This reason cannot be accepted at all. The representation
ought to have been placed before the Advisory Board. When the
statutory duty has not been adhered to, the order cannot be
allowed to sustain. The confirmation of such order will have to be
declared as illegal and, therefore, deserves to be set aside.
5. Per contra, the learned APP strongly supports the action
taken against the petitioner. He submits that the petitioner is a
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dangerous person as defined under the Maharashtra Prevention
of Dangerous Activities of Slumlords, Bootleggers, Drug-
Offenders, Dangerous Persons and Video Pirates Act, 1981
(hereinafter referred to as the "MPDA Act"). Even preventive action
was also taken against him under Section 110 of the Code of
Criminal Procedure, however, he has not reduced his illegal
activities. The detaining authority has also relied on the two in-
camera statements and the subjective satisfaction has been
arrived at. There is no illegality in the procedure adopted while
recording the in-camera statements of the witnesses. Due to the
terror created by the petitioner, people are not coming forward to
lodge report against him. He is doing the activities of extortion
and, therefore, it affects the public order.
6. The first and the foremost ground that is required to be
considered is that when there were alleged to be six offences
registered against the petitioner, whether all of them could have
been considered by the detaining authority while passing the
order of detention. The answer is certainly no. In the catena of
judgments, the Hon'ble Supreme Court has held that there
should be live connection between the offence committed and the
action of preventive detention. An offence which was registered
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way back in May 2013 cannot be considered to be giving live-link
for the action of detention. From the list of the cases of six
offences, first four cases i.e. till November 2022 cannot be
considered or ought not to have been considered by the detaining
authority, as there is no live-link between them and the action
taken. As regards the chapter cases are concerned, one was
under Section 107 of the Code of Criminal Procedure in 2023 and
second was under Section 110(e) of Code of Criminal Procedure
in 2024. For how much period the bond was taken is not reflected
in the order. As regards the two offences in December 2023 is
concerned, both of them are under Sections 385, 386, 387 of
Indian Penal Code etc, but both of them are still under
investigation. In both the matters, the Court has released the
petitioner on bail. No doubt, the bail order has been taken by the
detaining authority, but there is no statement that in spite of the
bail, the preventive detention is necessary for maintenance of the
public order. The in-camera statements are recorded on
13.02.2024 and 15.02.2024. They both have not given a specific
date of incident, but then both the witnesses say that they were
intercepted and money was demanded from them by putting
them under threat. There is absolutely no mention in both the
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statements as to who were around the witnesses when the
incident took place. Witness 'B' has not even stated the time
when the alleged incident with him had taken place. We would
also like to say that by taking their statements as it is, at the
most it can be said that the law and order situation arise, but not
the public order. We would like to rely on the Three Judge Bench
decision of the Hon'ble Supreme Court in Nevanath Bujji etc. Vs.
State of Telangana and others, [2024 SCC OnLine SC 367],
wherein after considering various judgments, the legal position
has been summarized as follows -
"43. We summarize our conclusions as under :-
(i) The Detaining Authority should take into
consideration only relevant and vital material to arrive
at the requisite subjective satisfaction,
(ii) It is an unwritten law, constitutional and
administrative, that wherever a decision-making
function is entrusted to the subjective satisfaction of
the statutory functionary, there is an implicit duty to
apply his mind to the pertinent and proximate
matters and eschew those which are irrelevant &
remote,
(iii) There can be no dispute about the settled proposition
that the detention order requires subjective
satisfaction of the detaining authority which,
ordinarily, cannot be questioned by the court for
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insufficiency of material. Nonetheless, if the detaining
authority does not consider relevant circumstances or
considers wholly unnecessary, immaterial and
irrelevant circumstances, then such subjective
satisfaction would be vitiated,
(iv) In quashing the order of detention, the Court does not
sit in judgment over the correctness of the subjective
satisfaction. The anxiety of the Court should be to
ascertain as to whether the decision-making process
for reaching the subjective satisfaction is based on
objective facts or influenced by any caprice, malice or
irrelevant considerations or non-application of mind,
(v) While making a detention order, the authority should
arrive at a proper satisfaction which should be
reflected clearly, and in categorical terms, in the order
of detention,
(vi) The satisfaction cannot be inferred by mere statement
in the order that "it was necessary to prevent the
detenu from acting in a manner prejudicial to the
maintenance of public order". Rather the detaining
authority will have to justify the detention order from
the material that existed before him and the process
of considering the said material should be reflected in
the order of detention while expressing its
satisfaction,
(vii) Inability on the part of the state's police machinery to
tackle the law and order situation should not be an
excuse to invoke the jurisdiction of preventive
detention,
(viii) Justification for such an order should exist in the
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ground(s) furnished to the detenu to reinforce the
order of detention. It cannot be explained by reason(s)
/ grounds(s) not furnished to the detenu. The decision
of the authority must be the natural culmination of
the application of mind to the relevant and material
facts available on the record, and
(ix) To arrive at a proper satisfaction warranting an order
of preventive detention, the detaining authority must,
first examine the material adduced against the
prospective detenu to satisfy itself whether his
conduct or antecedent(s) reflect that he has been
acting in a manner prejudicial to the maintenance of
public order and, second, if the aforesaid satisfaction
is arrived at, it must further consider whether it is
likely that the said person would act in a manner
prejudicial to the public order in near future unless
he is prevented from doing so by passing an order of
detention. For passing a detention order based on
subjective satisfaction, the answer of the aforesaid
aspects and points must be against the prospective
detenu. The absence of application of mind to the
pertinent and proximate material and vital matters
would show lack of statutory satisfaction on the part
of the detaining authority."
7. When the law gives opportunity to the petitioner to make
representation and makes it compulsory to the detaining
authority or the State Government to consider such
representation and also put it before the Advisory Board, then
that act must be carried in its true spirit. We are surprised to
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note that though the Secretary to the Advisory Board accepts
that he has received the soft copy on his e-mail as well as that
was received by the State on its mail well in advance, then how he
can insist upon the hard copy. He could have taken the print out
from his e-mail and place it before the Advisory Board. Whatever
decision has been taken by the Advisory Board appears to be in
ignorance of receipt of the representation, though it was properly
made by the petitioner. Under this circumstance, a vital right has
been withheld without any reasonable cause by the respondents
which directly affects the personal liberty of the petitioner.
8. The second question that would arise as to whether the
statements of the in-camera witnesses were to such an extent
that it would create a problem of public order. To explain this
concept, we may take help of the observations in Nevanath
(Supra) made in paragraph No.32 :-
"32. The crucial issue is whether the activities of
the detenu were prejudicial to public order. While the
expression 'law and order' is wider in scope inasmuch as
contravention of law always affects order, 'Public order'
has a narrower ambit, and could be affected by only
such contravention, which affects that community or the
public at large. Public order is the even tempo of life of
the community taking the country as a whole or even a
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specified locality. The distinction between the areas of
'law and order' and 'public order' is one of degree and
extent of the reach, of the act in question on society. It
is the potentiality of the act to disturb the even tempo of
life of the community which makes it prejudicial to the
maintenance of the public order. If a contravention in
its effect is confined only to a few individuals directly
involved as distinct from a wide spectrum of public, it
could raise problem of law and order only. In other
words, the true distinction between the areas of law and
order and public order lies not merely in the nature or
quality of the act, but in the degree and extent of its
reach upon society. Acts similar in nature, but
committed in different contexts and circumstances,
might cause different reactions. In one case it might
affect specific individuals only, and therefore touches the
problem of law and order only, while in another it might
affect public order. The act by itself, therefore, is not
determinant of its own gravity. In its quality it may not
differ from other similar acts, but in its potentiality, that
is, in its impact on society, it may be very different. [See:
Union of India v. Amrit Lal Manchanda, (2004) 3 SCC
75]."
9. Thus, taking into consideration the above observations and
the decisions of the Hon'ble Apex Court, at the most, the
statements as well as the offences allegedly committed in
December 2023 would reveal that the petitioner had created law
and order situation and not disturbance to the public order.
Though the Advisory Board had approved the detention of the
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petitioner, yet we are of the opinion that there was no material
before the detaining authority to categorize the petitioner as
dangerous person or bootlegger.
10. For the aforesaid, the petition deserves to be allowed.
Hence, following order is passed :-
ORDER
I) The Writ Petition is allowed.
II) The detention order dated 03.04.2024 passed by
respondent No.3 in file No.2024/RB-Desk-1/MPDA/Kavi-81
and the approval order dated 28.05.2024 passed by
respondent Nos.1 and 2, are hereby quashed and set aside.
III) Petitioner - Ganesh s/o Santukrao Pungale shall be
released forthwith, if not required in any other offence.
IV) Rule is made absolute in the above terms.
[ ABHAY S. WAGHWASE ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
