Bombay High Court
Akash @ Aau Kalyan Jadhav vs District Magistrate Jalna And Other on 12 August, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:17832-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1165 OF 2024
Akash @ Aau Kalyan Jadhav
Age. 25 Yrs, Occu. Labour,
R/o. Kamble Galli, Sambhajinagar
Jalna, Tq. & Dist. Jalna. .. Petitioner
Versus
1. District Magistrate, Jalna,
District. Jalna.
2. The State of Maharashtra,
Through the Additional Chief Secretary,
Govt. of Maharashtra, Home Department
Mantralaya, Mumbai-32.
3. The Jail Superintendent,
Central Prison, Harsool,
Aurangabad. .. Respondents
...
Mr. Satej S. Jadhav, Advocate for the petitioner.
Mr. A. M. Phule, APP for the respondents - State.
...
CORAM : SMT. VIBHA KANKANWADI &
ABHAY S. WAGHWASE, JJ.
DATE : 12 AUGUST, 2024.
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. Satej S. Jadhav for the
petitioner and learned APP Mr. A. M. Phule for the respondents -
State.
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2. Rule. Rule made returnable forthwith. The petition is heard
finally with the consent of the learned Advocates for the parties.
3. The petition challenges the detention order passed by
respondent No.1 against him bearing No.2024/RB-Desk-1/Pol-
1/MPDA/Kavi-68 dated 21.03.2024 and the approval order dated
28.05.2024 passed by respondent No.2 by invoking the powers of
this Court under Article 226 of the Constitution of India.
4. Learned Advocate for the petitioner has taken us through
the impugned order and the material which was before the
detaining authority at the time of passing the detention order and
the material that has been supplied to him.
5. Though in all five cases have been registered against the
petitioner, only three cases appears to have been considered for
passing the detention order, (i) Crime No.519 of 2022 registered
with Sadar Bazar Police Station, District Jalna under Sections
307, 324, 504, 506 of Indian Penal Code, which is now pending
for trial, (ii) Crime No.453 of 2023 registered with Badnapur
Police Station under Section 3 punishable under Section 25 of
the Arms Act and (iii) Crime No.1092 of 2023 registered with
Sadar Bazar Police Station under Section 3 punishable under
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Section 25 of the Arms Act. The last two offences are still under
investigation. It is further submitted that as regards Crime
Nos.453 of 2023 and 1092 of 2023 are concerned, in fact, those
arms were not seized from the custody of the petitioner. It is
stated that those arms were discovered upon the statement of the
co-accused, so also in view of the said statement which has no
evidentiary value, the petitioner came to be arrayed as accused.
He submits that the other two offences were also considered. In
fact, Crime Nos.316 of 2019, 372 of 2022 and 519 of 2022 were
considered when action was taken under 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 (for short "MPDA Act") against the
petitioner on 20.07.2022, however, that action was revoked.
When these three offences were considered in the past and the
action was revoked, then those three offences could not have
been considered again by the detaining authority while passing
the impugned order and, therefore, the impugned order is bad as
it suffers from subjective satisfaction. It has been further
submitted that as regards the in-camera statements are
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concerned, the copy of the statement of witnesses 'A' and 'B' were
not at all supplied to the petitioner and, therefore, when these
mandatory provisions have not been adhered to, the State ought
not to have confirmed the detention order.
6. Per contra, learned APP strongly supports the action taken
against the petitioner. He submits that though the three offences
were part of earlier action under MPDA Act against the petitioner,
yet since those are pending before trial still those can be taken
into consideration as a past history. Arms have been recovered
from the co-accused and the arms are in the nature of pistol
(firearm). Definitely, it would have been procured for disturbing
the public order. The statements of the confidential witnesses
were recorded, seen and verified by the detaining authority and
thereafter, the detention order has been passed. Thereafter, entire
papers were presented before the Advisory Board and based upon
the opinion for the approval to the detention of the petitioner, the
confirmation order has been passed.
7. The original file has been made available for perusal of this
Court and taking into consideration the papers in the original file
it can be certainly noted that earlier action under MPDA was
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revoked. The revocation order was passed by the State
Government on 31.10.2022. Perusal of the said order would
show that after the Advisory Board had opined that there is no
sufficient cause for continuation of the detention of the petitioner,
the said order was revoked. The said opinion of the Advisory
Board is not made available to this Court, but suffice it to say
that earlier when the detention order was passed, it was later on
revoked. The detaining authority had considered Crime Nos.316
of 2019, 375 of 2022 and 519 of 2022 registered with Sadar
Bazar Police Station, Jalna. The present detention order could
not have been passed on the basis of those offences because it
was already the subject matter of the earlier proceedings, which
was not approved by the State Government. This clearly shows
that present detention order, in which these three offences have
been considered, has been passed in mechanical manner. In
other words, there was no subjective satisfaction by the detaining
authority.
8. 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
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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
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,
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(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
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
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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."
9. As regards the two offences, which would have been the
subject matter i.e. one registered with Badnapur Police Station
and another with Sadar Bazar Police Station under the Arms Act
are concerned, the prosecution story as narrated in the detention
order would certainly show that the discovery is at the behest of
some other accused and in view of the statement of the co-
accused, it appears that the present petitioner has been arrayed
as accused in the said cases. When the petitioner was not at all
found possessing the arm which is stated to be a pistol (firearm),
the petitioner cannot be branded as dangerous person as
contemplated under the MPDA Act, who would disturb the public
order. To explain this concept, we may take help of the
observations in Nevanath (Supra) made in paragraph No.32 :-
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"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
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]."
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10. There appears to be total violation of constitutional rights of
the petitioner when the copies of the statements of the
confidential witnesses 'A' and 'B' were not supplied to the
petitioner. All those documents on which the detention order is
based; should be supplied to the detenu. In Nevanath (Supra)
itself it has been observed by the Hon'ble Supreme Court that the
order of detention is of the colonial era and the illegal detentions
cannot be allowed to sustain. When it is demonstrated that the
documents on which the detention order is based are not
provided to the detenu, then such order cannot be allowed to
sustain even for a moment.
11. Even if for the sake of arguments, we take into
consideration the statement of the confidential witnesses 'A' and
'B', then at the most they would have raised law and order
situation and not the public order, as it was the action alleged to
be taken against the said in-camera witnesses.
12. The opinion of the Advisory Board in respect of present
action against the detention has also not been made available.
Therefore, we are unable to get as to whether it was placed before
Advisory Board, whether from their own earlier opinion such
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action was dropped and whether the earlier opinion was then
considered by the Advisory Board while considering the present
action or not. In Nevanath (Supra), the role of the Advisory
Board has been explained and it is observed that an Advisory
Board is not a mere rubber-stamping authority for an order of
preventive detention. If the earlier opinion of the Advisory Board
would have been placed before the Advisory Board once again at
this time also, then there could have been a proper assessment
by the Advisory Board.
13. Taking into consideration the above-said observations, it
can be certainly said that the petitioner could not have been
branded as a dangerous person as contemplated under MPDA Act
and, therefore, the impugned order deserves to be quashed and
set aside. Hence, we pass the following order :-
ORDER
I) The writ petition is allowed.
II) The detention order dated 21.03.2024 passed by
respondent No.1 bearing No.2024/RB-Desk-1/Pol-1/MPDA/Kavi-
68 and the approval order dated 28.05.2024 passed by
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respondent No.2, are hereby quashed and set aside.
III) The petitioner, namely, Akash @ Aau Kalyan Jadhav
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
