Shubham Pramod Shinde vs State Of Maharashtra And Ors
2024 Latest Caselaw 23593 Bom

Bombay High Court

Shubham Pramod Shinde vs State Of Maharashtra And Ors on 12 August, 2024

Author: Bharati Dangre

Bench: Bharati Dangre

2024:BHC-AS:33528-DB

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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL WRIT PETITION NO.1464 OF 2024

                 Shubham Pramod Shinde                                     .... Petitioner

                         Versus

                 State of Maharashtra and Ors.                             .... Respondents

                                                     .....
                 Mr.Ashwin Thool a/w.              Mr.Jaymangal Dhanraj,                  Sarthak
                 Bharsakle, Archishmati            Chandramore, Advocate                  for the
                 Petitioner.

                 Mr.J.P. Yagnik, APP for Respondent - State.
                                               .....

                                               CORAM : BHARATI DANGRE &
                                                       MANJUSHA DESHPANDE, JJ.

                                               DATED     : 12th AUGUST 2024.


                 ORDER (Per : Manjusha Deshpande, J.)

1 The Writ Petition is taken up for fnal disposal with

the consent of parties.

2 The petitioner is aggrieved by the Order of Detention

issued by respondent no.1 on 23 rd January, 2024. The Order of

Detention is issued by respondent no.1 in exercise of his powers

conferred under Section 3(2) of the Maharashtra Prevention of

Dangerous Activities of Slumlords and Bootleggers, Drug

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Offenders, Dangerous Persons, Video Pirates, Sand Smugglers

and Persons Engaged in Black-marketing Essential

Commodities Act, 1981 (Mah.Act No.LV of 1981)(Amendment-

1996, 2009, 2015) ("MPDA Act", for short).

The petitioner was served with the Order of

Detention alongwith the Committal order and the grounds of

Detention. The petitioner has also made a representation

against the said alleged illegal Detention, which has been

rejected vide order dated 5th March, 2024. Thereafter, the

petitioner is challenging the Order of Detention alongwith the

order of rejection of his representation.

3 The petitioner is challenging the order of Detention

on the ground that the impugned order is illegal, arbitrary and

stigmatic. The impugned order has been issued without

application of mind and in a mechanical manner, without

adhering to the settled legal precedents. The petitioner contends

that the subjective satisfaction of the respondent is based on

consideration of extraneous material and non consideration of

relevant record. It is further contention of the petitioner that

the Hon'ble Apex Court in several judgments has held that,

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while passing Order of detention, the Detaining Authority must

consider the bail granted to the detenu and reasons mentioned

in the said bail order.

It is the case of the petitioner that, the respondent

Detaining Authority has recorded subjective satisfaction

without taking into consideration the factual aspect of grant of

bail to the petitioner.

4 The petitioner has raised various grounds in the

Writ Petition in order to demonstrate the arbitrariness of the

Order of Detention issued against the petitioner. While making

his submissions, the learned counsel for the petitioner has

invited our attention to the grounds of Detention communicated

to the detenu. In the said grounds, in paragraph no.5.1, the

Detaining Authority has observed that:

"You were arrested on 19/12/2023 and produced before the Hon'ble J.M.F.C. Court, Shivajinagar, Pune. You were remanded to police custody till 21/12/2023, subsequently you were remanded to magisterial custody till 03/10/2023. You applied for bail before Hon'ble Court on 22/12/2023, which is pending before court. Presently, the case is under investigation."

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5 The petitioner has invited our attention to the

averments in Writ Petition in paragraph no.4 (iv), he has stated

that the learned Sessions Court was pleased to release him on

bail by order dated 20.01.2023 i.e. three days prior to the

impugned Order. The Order of Detention has been issued on 23 rd

January, 2024 and the order of bail has been granted in favour

of the petitioner on 20th January, 2024.

6 After the petitioner has pointed out the above

inconsistencies and non application of mind, we had called upon

the learned APP to explain the said ground raised by the

petitioner.

The learned APP has relied on the affdavit fled by

the Commissioner of Police, Pune City, Pune. In paragraph 11

of the said affdavit the Detaining Authority has stated that, the

Bail Application was decided by the Court on 20.01.2024, but

the said copy was not placed before the Detaining Authority,

while passing of Order of Detention on 23.01.2024. That is the

only response by the Detaining Authority, which cannot be

termed as an explanation given by the Detaining Authority. In

fact, it supports the contention of the petitioner that, though the

bail order was issued on 20 th January, 2024, while passing the

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Order of Detention on 23rd January, 2024, same was not

considered by the Detaining Authority, which shows total non

application of mind on his part.

7 The Detaining Authority is totally ignorant about the

order of bail, as he has recorded in paragraph no.5.1 that the

detenu has applied for bail, which was pending before the Court.

The Detaining Authority in paragraph no.8 of the grounds of

Detention has also observed that, he has relied on the material

mentioned in paragraphs 5.1, 6.1 and 6.2 of the grounds of

Detention to record his subjective satisfaction that, the detenu

is a "Dangerous Person" as defned in Section 2(b)(1) of the

MPDA Act, 1981. It is further observed that, the detenu is likely

to be granted bail under the Ordinary Law of Land, when in fact,

he was already on bail on the day of passing of the Detention

Order.

8 This shows the Detaining Authority has recorded his

subjective satisfaction without application of his mind and has

recorded that, after availing bail facility and becoming a free

person, the detenu is likely to revert to the similar activities

which are prejudicial to the maintenance of public order, and

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therefore, it is necessary to detain the petitioner to prevent him

from acting in a manner prejudicial to the maintenance of public

order.

9 The petitioner has also invited our attention to the

criminal history of the petitioner referred in the grounds of

Detention, to demonstrate his habituality of committing serious

offences, where only one offence has been shown in the chart.

Similarly, for recording the subjective satisfaction that, the

petitioner is a "Dangerous Person" within the meaning of

Section 2(b-1) of the MPDA Act, the Detaining Authority has

relied on one offence and two in-camera statements. The offence

which has been relied upon has been registered on 19 th

December, 2023, being C.R.No.378 of 2023, for offences

punishable under Sections 307, 323, 504 and 506(2) of IPC, and

under Section 37(1)/135 of MPDA Act and under Section 7 of

the Criminal Law (Amendment) Act.

The in-camera statements of witness "A" has been

recorded on 3rd January, 2024 for THE incident that had

occurred on 09th November, 2023, which has been verifed on

22nd January, 2024. The statement of witness "B" has been

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recorded on 6th January, 2024 for incident of 23rd November,

2023, which has been verifed on 22nd January, 2024.

The respective dates of the two in-camera

statements itself indicate that there is no proper application of

mind and subjective satisfaction by the Detaining Authority.

10 Though the petitioner has raised various grounds,

the ground regarding passing the Order of Detention, by

recording subjective satisfaction without taking into

consideration grant of bail in favour of detenu, itself is suffcient

for quashing of the order, since it suffers from non-application of

mind by the Detaining Authority.

11 While perusing the affdavit fled by respondent no.1,

Commissioner of Police, Pune City, Pune, we have come across

the name of the person swearing the affdavit, which again

supports the contention of the petitioner about non application

of mind by the Detaining Authority.

The Detention order is issued by the then

Commissioner of Police, Retesh Kumaarr. Whereas, the affdavit

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has been fled by Amitsh Kumar, present Commissioner of Pune

City, Pune. This Court has time and again held that the affdavit

in support of the Detention Order has to be fled by the

concerned Detaining Authority, who has passed the Order of

Detention. Since the subjective satisfaction is a relative term, it

has to be explained by the person who has passed the order

after recording his subjective satisfaction. Affdavit by an offcer

other than the offcer, who has passed the said order is not

acceptable since the said offcer is not aware, about the basis on

which subjective satisfaction is recorded by the concerned

Authorities.

This Court had an occasion to consider this issue in

case of Nihal Ravindra Kumbhar Vs. District Magistrate, Pune

and Ors., in Writ Petition No.755 of 2024. While deciding the

said Writ Petition, this Court has observed thus :

" In the present case also the order of detention is passed on 03.08.2022 by District Magistrate- Dr. Rajesh Deshmukh, whereas the affdavit has been sworn by Dr. Suhas Diwase, who has no knowledge about the proceedings, the nature of case and above all, he is not the authority who has recorded the subjective satisfaction. Recording of subjective

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satisfaction is an important exercise to be undertaken by the Detaining Authority, before issuing the order of detention. Since the affdavit is sworn by a person other than, who has recorded his subjective satisfaction, the explanation given by the said authority in his affdavit cannot be taken into consideration."

While deciding the above Writ Petition, the judgment

of Gazi Khan Alias Chotia Vs. State of Rajasthan 1, was relied

upon. In the said judgment, the practice of allowing a public

offcer to fle affdavit, who has not dealt with the case at any

point of time or at any level and who in the very nature of the

case, could not have any personal knowledge of the proceedings,

has been deprecated. The Hon'ble Apex Court has held that, the

counter and reply affdavits fled by such offcers merit nothing

but rejection.

The facts of the present case are similar to the facts

in the case of Nihal Ravindra Kumbhar Vs. District Magistrate,

Pune and Ors. (Supra). Therefore, even this Writ Petition will be

covered by the observations made in the said order.

1   1990 DGLS (SC) 279 : 1990 AIR (SC) 1361

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In view of the above observations, the order passed

by the Detaining Authority being erroneous, and unsustainable,

is required to be quashed and set aside. Accordingly, the Order

of Detention dated 23rd January, 2024, and subsequent order of

confrmation dated 19th March, 2024, are quashed and set aside

and the Writ Petition is made absolute in terms of prayer Clause

(b), which reads thus:

"b. Issue an appropriate writ, order and/or direction quashing and setting aside the Impugned Order bearing Number OW.NO.CRIME PCB/DET/ PARVATI/SHINDE/111/2024 dated 23.01.2024 issued under section 3 of the MPDA Act and the Petitioner be released forthwith;"

Writ Petition stands disposed off.

(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)

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