Bombay High Court

Sahil Ali Mujjafar Ali vs The State Of Maharashtra Through Its ... on 9 August, 2024

Author: Vinay Joshi

Bench: Vinay Joshi

2024:BHC-NAG:8796-DB




                                                    1                      wp116.2024

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

                          CRIMINAL WRIT PETITION NO.116/2024

              Sahil Ali Mujjafar Ali,
              aged about 23 years,
              Occ. Labourer, R/o Ramrahim
              Nagar, Yavatmal, Tq. Yavatmal,
              Distt. Yavatmal, at present
              District Prison, Akola.                                  ... Petitioner
                       - Versus -
              1.   State of Maharashtra,
                   through its Secretary, Home
                   Department (Special) Mantralaya,
                   Mumbai.

              2. District Magistrate/ Collector,
                 Yavatmal, Tq. and Distt. Yavatmal.              ...    Respondents
                             -----------------
              Mr. S.V. Sirpurkar, Advocate for the Petitioner.
              Mr. M.K. Pathan, A.P.P. for Respondent Nos.1 and 2.
                             ----------------
              CORAM: VINAY JOSHI & MRS.VRUSHALI V. JOSHI, JJ .
              DATE OF JUDGMENT: 9.8.2024.



               JUDGMENT (Per Mrs. Vrushali V. Joshi, J.)

Heard Mr. S.V. Sirpurkar, learned Advocate for the

petitioner and Mr. M.K. Pathan, learned A.P.P. for respondent

Nos.1 and 2. Rule.

2 wp116.2024

2. The challenge in this petition is to the impugned

detention order dated 14.9.2023 passed by respondent No.2 and

its confirmation order dated 31.10.2023 passed by respondent

No.1 detaining the petitioner for 12 months in terms of Section

12(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.

3. The impugned detention order shows that it is based

on three offences and two in-camera statements. The offences

taken into consideration while passing the detention order are as

under:-

(i) Crime No.0350/2023 under Sections 324, 204, 504

and 506 of Indian Penal Code registered at Police Station,

Yavatmal City, 3 wp116.2024

(ii) Crime No.0751/2023 under Sections 324, 323, 504

and 506 of I.P.C. registered at Police Station, Awadhutwadi,

Yavatmal and

(iii) Crime No.1167/2023 under Sections 326, 323, 143,

147, 148, 504 and 506 of I.P.C. registered at Police Station,

Awadhutwadi, Yavatmal.

In Crime No.0350/2023 the petitioner was released

after issuing notice under Section 41(a)(1) of Cr.P.C.

4. The petitioner has stated that the detaining authority

has relied on the confidential statements which are not duly

verified by respondent No.2. It shows that there has been

non-application of mind by the detaining authority. The

satisfaction recorded by the detaining authority is not subjective.

The perusal of the confidential statements would reveal that the

same are related to individual incidents and do not have any

nexus with maintenance of public order. The petitioner has been

released on bail in all the three offences relied upon by the

detaining authority and the bail orders relating to said offences 4 wp116.2024

were not placed before the detaining authority, therefore, there

exists non-consideration of material which vitiates the detention

order.

5. Mr. Sirpurkar, learned Advocate for the petitioner

submitted that the first offence i.e. Crime No.0350/2023 is

sub judice before the concerned Court and the other two offences

are under investigation. The police officer even did not deem it

necessary or appropriate to arrest the petitioner for three offences

which are relied upon to pass the impugned detention order. He

further submits that the petitioner was not a prime accused as no

allegation in respect of carrying or holding deadly weapons at the

relevant time are made against him. He has prayed to allow the

petition.

6. Mr. Pathan, learned A.P.P. vehemently opposed the

submissions made by the petitioner. He submits that respondent

No.2 has personally seen the in-camera statements of witnesses

and verified them on 8.9.2023 before passing the detention order.

The Police Inspector, Police Station, Yavatmal City and 5 wp116.2024

Sub-Divisional Police Officer has personally verified the

statements from the witnesses and the detaining authority is fully

and subjectively satisfied with the truthfulness of these in-camera

statements. He further contends that the offences registered

against the detenue are of the nature of causing hurt, threatening,

carrying weapons and disturbing the public order. The criminal

activities of the petitioner created fear and terror in the mind of

members of public. In addition to this, after release of the

petitioner on bail he continued to indulge in the activities

prejudicial to the maintenance of public order with renewed

vigour, therefore, the detention order passed by the respondent

No.2 on 14.9.2023 is legal and proper. He has prayed to dismiss

the petition.

7. Though the petitioner has challenged the detention

order on many grounds, he has mainly relied on the ground that

release of the petitioner on bail in two offences and the bail orders

of the same were not brought/produced before the detaining

authority and not supplied to the petitioner. The relevant 6 wp116.2024

material considered while passing the detention order has not

been placed before respondent No.2 and, therefore, detention

order vitiated on account of non-consideration of material which

was relevant for arriving at subjective satisfaction.

8. In this context reliance is placed by learned Advocate

for the petitioner on the judgments of this Court as follows:-

(i) Criminal Writ Petition No.118/2024 (Tanvir Shaha Alim Shaha V/s. State of Maharashtra and another) decided on 9.5.2024,

(ii) Elizabeth Ranibhai Prabhudas Gaikwad V/s. State of Maharashtra, Home Department (Special) and another) reported in 2021 SCC OnLine 206,

(iii) Criminal Writ Petition No.592/2021 (Vasudev Mahadev Surve V/s. State of Maharashtra and another) decided on 16.12.2021 and

(iv) Criminal Writ Petition No.269/2022 (Kasam Kalu Nimsurwale V/s. State of Maharashtra and another) decided on 26.7.2022.

In identical circumstances, it was held that when the

police authorities did not even deem it necessary or appropriate to

arrest the petitioner therein for offences on which reliance was

placed in the impugned orders and this fact was not placed before 7 wp116.2024

the detaining authority, the detention orders stood vitiated and

deserved to be quashed.

10. On going through the detention order it appears that

three offences are considered by the detaining authority. In first

offence i.e. Crime No.0350/2023 the notice was issued under

Section 41(a)(1) of Cr.P.C. as offence is registered for Sections

324, 204, 504 and 506 of Indian Penal Code. In other offences,

the petitioner was arrested and released on bail. The bail orders

were not considered by the detaining authority. In reply it is

stated that the detaining authority was aware of the fact that

petitioner was on bail and as it is specific submission of

respondent No.2 that thereafter also his criminal activities

continued. It means, this fact that petitioner was on bail was in

the knowledge of the detaining authority. In the case of

Elizabeth (supra) this Court has relied on the observations made

by the Hon'ble Apex Court in the case of Abdul Sattar Ibrahim

Manik V/s. Union of India reported in (1992) 1 SCC 1, which

read as follows:-

8 wp116.2024

"2. .....This law is expounded by the Apex Court in the case of Abdul Sattar Ibrahim Manik .vs. Union of India, (1992) 1 SCC 1; AIR 1991 SC 2261 which has been followed by another Division Bench in the case of Paras s/o Ramprasad Sahu vs. State of Maharashtra, (2003) 3 Mh.L.J. 24. In paragraph 8 of this Judgment, the Division Bench has reproduced relevant observations of Supreme Court in the cited case of Abdul Sattar Ibrahim Manik. For the sake of convenience, we would like to reproduce the same as under :

"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 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 be supplied to the detenu."

As this fact is not considered and the bail orders were

not placed before the detaining authority while passing the

detention order, it do not consider, in any manner, the bail orders

passed in the crimes pending against the petitioner and, therefore,

the impugned orders cannot be said to be valid in the eye of law, it

stands vitiated in view of the law laid down by the Hon'ble Apex

Court in the case of Abdul Sattar (supra). In the result, petition is

allowed. The impugned orders are hereby quashed and set aside.

9 wp116.2024

The petitioner be set at liberty forthwith, if not required in any

other crime.

(MRS.VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)