Bombay High Court
Shaikh Arbaaz @ T Baba Jafar Shaikh vs The State Of Maharashtra And Others on 22 August, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:18980-DB
WP-1093-24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1093 OF 2024
Shaikh Arbaaz @ T Baba Jafar Shaikh
Age: 23 years, Occu.: Labour,
R/o Valimamu Dargah, Jalna,
Tq. & Dist. Jalna ..PETITIONER
VERSUS
1. State of Maharashtra
Through Section Officer,
Home Department (Special),
2nd Floor, Mantralaya, Mumbai
2. The District Magistrate,
Collector Office, Jalna
3. The Superintendent
Central Prison, Harsool,
Aurangabad ..RESPONDENTS
....
Mr. R.V. Gore, Advocate for petitioner
Mr. G.A. Kulkarni, A.P.P. for respondents
....
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : 26th JULY, 2024
PRONOUNCED ON : 22nd AUGUST, 2024
JUDGMENT ( PER : R.G. AVACHAT,J . ) :
1. Rule. Rule made returnable forthwith. Heard finally with the
consent of learned counsel for the parties.
2. The challenge in this petition, under Article 226 of the Constitution
of India, is to order dated 27th December, 2023 passed by Respondent No.2
WP-1093-24.odt
- District Magistrate, Jalna directing detention of the petitioner for a period of
twelve months, in exercise of power under Section 3(2) 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 ('MPDA
Act'). The petitioner came to be detained with effect from 01st January, 2024.
The order of detention has been approved by Respondent No.1 - State
Government in Department of Home on 04th January, 2024 and then after
receipt of report of the Advisory Board confirmed the same on 21 st February,
2024. The detention order is passed to prevent the petitioner, as a
dangerous person, from indulging in activities, causing disturbance or breach
of maintenance of public order.
3. Learned counsel for the petitioner would submit that although ten
crimes were registered against the petitioner, seven cases are triable by the
Court of J.M.F.C. Only two cases are serious, being punishable under
Section 307 of the I.P.C. Those are pending adjudication. Law will take its
own course in regard to those crimes. He would further submit that crime,
C.R. No. 324 of 2021 was registered against 150 persons. The petitioner
was not the main accused therein. While another crime, C.R. No. 319 of
2022 was registered against not less than 80-90 unknown persons. The
petitioner again has been falsely implicated therein. Same is the submission
of learned counsel as regards crime, C.R. No. 343 of 2023. According to
him, it was registered against four unknown persons. He would further
WP-1093-24.odt
submit that an offence under the Arms Act has been registered against the
petitioner, falsely implicating him on the basis of secret information. The
petitioner was released on bail in all the cases pending against him.
4. Learned counsel would further submit that order impugned herein
was passed without there being subjective satisfaction on the part of the
detaining authority. He would further submit that the petitioner received a
notice from the Secretary, Advisory Board communicating him the case to
have been referred to the board. The date of hearing was fixed and hearing
was to be held through video conferencing. According to learned counsel,
the petitioner did not understand in what way he would represent himself
before the Advisory Board. He could not file his representation nor has he
been given hearing. He even did not understand the charges levelled
against him. He was, therefore, deprived of a fair trial before the fact finding
committee i.e. the Advisory Board. The order impugned herein is challenged
mainly on the following grounds :-
(I) Not offered an opportunity to represent himself before the
Advisory Board and/or failure to grant him opportunity of hearing.
(II) Non-compliance of provisions of Section 10 of the MPDA Act,
and therefore, it constituted violation of Article 22(5) of the
Constitution of India.
(III) This ground in the writ petition has been given up on
receipt of information from the Department of Home, Mantralaya,
Government of Maharashtra. The said ground pertains to non-
adherence of timeline given in the MPDA Act.
WP-1093-24.odt
(IV) The in-camera statements of witnesses - 'A' and 'B'
indicate them to have been recorded just to fill up the gap
between the alleged last crime registered against the petitioner
and the proposal for his detention.
(V) Both the in-camera statements are vague. Even if
those are accepted as it is, would indicate them to be the cases of
maintenance of law and order and not public order.
(VI) No live link between the old cases and the order of
detention. Old cases have been considered for passing the order
of detention.
(VII) Copies of police papers have not been served on the
petitioner in relation to the crimes listed in paragraph no.2 of the
order of detention. The same materially caused prejudice in
making effective representation against the order of detention.
Learned counsel, therefore, ultimately urged for allowing the
petition.
5. Learned A.P.P. would, on the other hand, submit that the order of
detention is self speaking. All the ten crimes registered against the petitioner
are referred to in paragraph no.2 of the order have been considered.
Although the first crime is dated 29 th March, 2021, there is a live link
between/among each and every crime registered against him thereafter.
Moreover, two chapter proceedings, one under Section 107 and the other
under Section 110 of the Cr.P.C. did not yield result. Even proceeding for
externment of the petitioner was required to be resorted to. Learned A.P.P.
WP-1093-24.odt
took us through the order of detention wherein gist of each and every crime
registered against the petitioner has been recorded. He then adverted our
attention towards two in-camera statements of witnesses - 'A' and 'B' and
submitted that the persons did not come forward to lodge report against the
petitioner in view of his terror in the vicinity. According to him, sufficiency or
insufficiency of the material cannot be a subject of judicial review. He then
took us through the affidavit-in-reply filed by the detaining authority and
urged for dismissal of the petition.
6. Considered the submissions advanced. Perused the order of
detention and the affidavit-in-reply. Before turning to the factual matrix, we
need to refer to certain provisions of the MPDA Act, which read thus :-
"2. In this Act, unless the context otherwise requires,--
(a) "acting in any manner prejudicial to the maintenance of public
order" means--
(iv) in the case of a dangerous person, when he is engaged, or is
making preparation for engaging, in any of his activities as a
dangerous person, which affect adversely, or are likely to affect
adversely, the maintenance of public order;
Explanation. - For the purpose of this clause (a), public order shall
be deemed to have been affected adversely, or shall be deemed
likely to be affected adversely, inter alia if any of the activities of
any of the persons referred to in this clause, directly or indirectly,
is causing or calculated to cause any harm, danger or alarm or a
feeling of insecurity, among the general public or any section
thereof or a grave or widespread danger to life or public health or
disturbance in public safety and tranquility or disturbs the day to
day life of the community by black- marketing in the essential
commodities which is resulting in the artificial scarcity in the
supply of such commodities and rises in the prices of essential
WP-1093-24.odt
commodities which ultimately causes inflation or disturbs the
life of the community by producing and distributing pirated copies
of music or film products, thereby resulting in a loss of confidence
in administrations ;
(b-1) "dangerous person" means a person, who either by himself
or as a member or leader of a gang, habitually commits, or
attempts to commit or abets the commission of any of the offences
punishable under Chapter XVI or Chapter XVII of the Indian Penal
Code or any of the offences punishable under Chapter V of the
Arms Act, 1959."
7. The order of detention impugned herein reads thus :-
"1) That upon perusal of the documents produced before me,
you have created terror and had caused public nuisance within the
limits of Sadar Bazar, Jalna Police Station and within nearby vicinity.
You are habitual of committing crimes such as attempt to murder,
obstructing government work, rioting by gathering persons with illegal
means, damaging public property, violating government orders,
creating terror by possessing illegal weapons, voluntarily causing hurt,
obscene abuse and giving death threats etc.
In order to prevent you from committing crimes, preventive
action has already been taken as per CRPC Section-107, 110 and
externment action per section 56 of Bombay Police Act, but the said
preventive action are in vain, on the contrary, you have committed
crimes in ascending order. You have created terror and are disturbing
the public order by creating fear in the minds of public and causing
damage to their lives and property. By committing crimes such as
attempt to murder, obstructing government work, rioting by gathering
persons with illegal means, damaging public property, creating terror by
possessing illegal weapons, voluntarily causing hurt and by using
threats you have disturbed the Public peace and order and have
disrupted the Public life. Due to your criminal and dangerous activities,
terror has been created in Sadar Bazar, Jalna Police Station and nearby
areas and public life in that area has been disrupted.
2) The details about the recent crimes registered against you at
Sadar Bazar, Jalna Police Station, and the preventive actions carried out
against you are as follows -
WP-1093-24.odt
Sr. Police C.R. No. Sections Filing Date Current
No. Station Status
1 Sadar 235/2021 324, 504, 34 of IPC 29.03.2021 Pending
Bazar, Jalna adjudication
2 Sadar 324/2021 307, 353, 333, 143, 145, 11.05.2021 Pending
Bazar, Jalna 147, 148, 149, 427, 188, adjudication
269, 270 of IPC r/w
Section 4/25 of Indian
Arms Act, Section 51(b) of
Disaster Management Act
and Sections 3 and 4 of
Public Property Damage
Act
3 Sadar 325/2021 324, 504, 506, 34 of IPC 11.05.2021 Pending
Bazar, Jalna adjudication
4 Sadar 984/2021 324, 323, 504, 506, 143, 23.07.2021 Pending
Bazar, Jalna 147, 148, 149 of IPC adjudication
5 Sadar 319/2022 143, 145, 146, 147, 149, 15.04.2022 Pending
Bazar, Jalna 153, 120(b) of IPC r/w adjudication
Section 135 of Bombay
Police Act
6 Sadar 801/2022 143, 147, 148, 149, 427, 08.10.2022 Under
Bazar, Jalna 504, 506 of IPC r/w investigation
Section 4/25 of Indian
Arms Act
7 Sadar 343/2023 324, 323, 34 of IPC 03.05.2023 Pending
Bazar, Jalna adjudication
8 Sadar 408/2023 324, 34 of IPC 20.05.2023 Pending
Bazar, Jalna adjudication
9 Sadar 685/2023 307, 34 of IPC 27.08.2023 Under
Bazar, Jalna investigation
10 Sadar 687/2023 143, 147, 148, 149, 324, 28.08.2023 Under
Bazar, Jalna 294, 336, 337 of IPC r/w investigation
Section 4/25 of Indian
Arms Act
Preventive actions :
Sr. No. Police Station Chapter Case No. and Section Filing Date
1 Sadar Bazar, Jalna 121/2022 Section 107 Cr.P.C. 28.04.2022
2 Sadar Bazar, Jalna 39/2022 Section 110(e)(g) Cr.P.C. 27.05.2023
Externment action :
Sr.No. Police Station Externment Order No. Section Disposal
1 Sadar Bazar, 12/2022 Dt.16/07/2022 56 of Bombay Stayed
Jalna Sent to SDM Jalna vide Out. Police Act
No. 3686/2022 dtd.16.07.2022
WP-1093-24.odt
8. Paragraph no.3 of the order records that all the ten crimes have
been considered for passing the order of detention. The order of detention
was served on the petitioner in Marathi language as well. Service of the
detention order alongwith a bunch of documents containing 719 pages is a
fact admitted by the petitioner in the petition itself. He did not place on
record those documents so as to find which of the material documents is
missing therefrom and the same caused prejudice in not preferring effective
representation against the order of detention. In the order of detention itself,
the petitioner was apprised of his right first to make representation to the
detaining authority and then to make a representation to the State
Government. Averments in the petition are axiomatic that the petitioner to
have been aware of the matter to have been referred to the Advisory Board.
He even received a notice of hearing. The hearing appears to have taken
place through video conferencing. He, therefore, cannot be heard to say that
he was not offered fair opportunity of hearing before the Advisory Board.
9. The definition of 'dangerous person' itself indicates habituality of
the concerned indulging in the offences falling under Chapter XVI and XVII of
the I.P.C. In the first blush it may appear that the crimes registered in the
month of March and May 2021 are stale and have no bearing on passing of
the impugned order. List of the offences registered against the petitioner
would go a long way to indicate that he went on committing those offences
one after the other, with a short interval. One of the crimes registered
against the petitioner pertains to indulging in communal violence. True, the
WP-1093-24.odt
other three crimes pertain to offences punishable under Section 324 read
with Section 34 of the I.P.C. The fact is, however that the victims of this
crime are different. Two of the ten offences are punishable under Section
307 of I.P.C. Even two chapter proceedings were initiated against him, one
uner Section 107 and another under Section 110 of Cr.P.C. The same too
appears to have not yielded any result. When every time the victim is
different, it would be difficult to assume that each and every offence is
individual centric and it has no bearing on the question of maintenance of
public order. At the cost of repetition, it needs to be observed that five of the
ten crimes registered against the petitioner were allegedly committed in
prosecuting the common object of unlawful assembly. True, the petitioner
was on bail in all the crimes registered against him.
10. Moreover, there are two in-camera statements of the witnesses 'A'
and 'B'. They gave their statements on the condition of anonymity. Witness
'A' refers to the incident that took place in the second week of July 2023,
while witness 'B' speaks of the incident that took place in the first week of
August 2023. Close reading of the judgment of Apex Court in case of
Phulwari Jagdambaprasad Pathak Vs. R.H. Mendonca, 2000 AIR (SC)
2527 would indicate that the in-camera statements therein also did not
contain day, date and time of the incident allegedly committed against the
witnesses.
11. In case of Ameena Begum Vs. State of Telangana & Ors., AIR
2023 SC 4273, it has been observed in paragraph no.17 as under :-
WP-1093-24.odt
"17. In a different context, we may take note of the decision in
Sama Aruna v. State of Telangana (2018) 12 SCC 150 where, S.A.
Bobde, J. (as the Chief Justice then was) while construing the
provisions of the Act, held:
"16. There is little doubt that the conduct or activities of the
detenu in the past must be taken into account for coming to the
conclusion that he is going to engage in or make preparations for
engaging in such activities, for many such persons follow a pattern of
criminal activities. But the question is how far back? There is no doubt
that only activities so far back can be considered as furnish a cause for
preventive detention in the present. That is, only those activities so far
back in the past which lead to the conclusion that he is likely to engage
in or prepare to engage in such activities in the immediate future can be
taken into account."
12. So far as ground of time gap between the last crime registered
against the petitioner and the order of detention is concerned, it has been
observed in case of The Collector & District Magistrate, W.G. Dis. Eluru,
Andhra Pradesh Vs. Sangala Kondamma, 2005 AIR (SC) 1165 as under :-
"Last activity 3 months prior to order of detention - No illegality if the
facts placed before the detaining authority are proximate to each other
and the last of the fact mentioned is proximate to the order of detention
then the early incidents cannot be treated as stale and detention order
cannot be set aside."
13. The writ petition is silent to take exception to the impugned order
on the ground of delay in passing the same, post receipt of proposal in that
regard. For want of pleading, the same cannot be addressed since the
detaining authority loses his right to respond thereto and explain the delay, if
any, occurred in passing the order. Needless to mention, the order of
detention is an administrative action.
WP-1093-24.odt
14. So far as regards the petitioner was on bail in the crimes
registered against him is concerned, we propose to rely on the following
decisions of the Apex Court:-
(i) Vijaykumar Vs. Union of India and Others, (1988) 2 SCC 57
has observed :
"Whether the offence for which detenue was jailed was bailable or not
immaterial for the purpose of preventive detention."
(ii) Mohd. Salim Khan Vs. Shri.C.C.Bose, Deputy Secretary to
the Government of West Bengal and Anr., 1972 AIR (SC) 1670, wherein it
is observed thus:-
"A. West Bengal (Prevention of Violent Activities) Act, 1970 (President's
Act 19 of 1970), Sections 3(1) and 3(3) - Detention order after
discharge of petitioner in criminal case - A valid order of detention
could be passed against him in connection with those very incidents."
(iii) Nenavath Bujji etc. Vs. The State of Telangana and Ors.,
AIR 2024 SC 1610, observed thus:-
"25. The power of preventive detention is qualitatively different from
punitive detention. The power of preventive detention is a
precautionary power exercised in reasonable anticipation. It may or
may not relate to an offence. It is not a parallel proceeding. It does not
overlap with prosecution even if it relies on certain facts for which
prosecution may be launched or may have been launched. An order of
preventive detention, may be made before or during prosecution. An
order of preventive detention may be made with or without prosecution
and in anticipation or after discharge or even acquittal. The pendency of
prosecution is no bar to an order of preventive detention. An order of
preventive detention is also not a bar to prosecution. [See: Haradhan
Saha Vs. the State of W.B., 1974 Cri. L.J. 1479]"
WP-1093-24.odt
15. For all the aforesaid reasons, we are of the considered view that
registration of not less than ten crimes against the petitioner and the
preventive measures, such as chapter cases initiated against him, proved
futile, the detaining authority, in the facts and circumstances of the case, was
justified in passing the order impugned herein. We do not find the authority
concerned to have not been subjectively satisfied in passing the order.
16. In our view, therefore, criminal writ petition lacks merit. Same is,
therefore, dismissed. Rule stands discharged.
( NEERAJ P. DHOTE, J. ) ( R.G. AVACHAT, J. )
SSD
