Bombay High Court
Vijay Ganesh Bhimewar vs The State Of Mah. Thr. Its Dist. ... on 29 August, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:9778-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 113 OF 2024
Vijay Ganesh Bhimewar,
Age about 21, Occ., Education,
R/o. Shivaji Ward, Umarkhed,
Tq. Umarkhed, Dist. Yavatmal. ... PETITIONER
...VERSUS...
State of Maharashtra,
Through its District Magistrate,
Yavatmal, The Office of District Collector,
Yavatmal, Dist. Yavatmal. ... RESPONDENT
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Mr. O. Y. Kashid, Advocate for petitioner.
Mr. A. B. Badar, A.P.P. for respondent/State.
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CORAM : VINAY JOSHI AND MRS. VRUSHALI V. JOSHI, JJ.
JUDGMENT RESERVED ON : 19.08.2024
JUDGMENT PRONOUNCED ON : 29.08.2024
JUDGMENT (PER : MRS. VRUSHALI V. JOSHI, J.):
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1. Rule. Rule is made returnable forthwith. Heard finally by
consent of learned counsel appearing for the parties.
2. This petition is filed by one Vinay Ganesh Bhimewar ('the
detenu') who has been detained under Section 3 sub-section (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
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(the MPAD Act, 1981), by respondent No.1 vide order dated 14.09.2023.
The order was approved by the State Government on 25.09.2023. The said
order was served on the detenue along with grounds of detention and
material in support thereof on 21.10.2023.
3. On the basis of activities of the petitioner, the detaining
authority was satisfied that the detenue is a dangerous person within the
meaning of the Section 2(b-1) of the said Act and that he has created a
wave of terror and the people residing in the vicinity of Umarkhed Police
Station are experiencing a sense of insecurity and fear.
4. The grounds for challenging the detention order according to
the petitioner, the reasoning in approval order is not mentioned by the
authority. The opportunity to the petitioner to represent is not given. There
is no subjective satisfaction as the statements of witnesses 'A' and 'B' do not
disclose any incident. Everything is masked by the authority while
providing the statements along with the detention order, which deprived
the right of the petitioner to represent before the authority. It is not verified
by the detaining authority and hence, there is no subjective satisfaction to
the truthfulness of the statements. The crimes, which are considered by the
detaining authority for passing the detention order does not create any
situation of public order. The stale offences are also considered by the
detaining authority.
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5. Shri Badar, Learned APP, submitted that, the detaining
authority, District Magistrate, Yavatmal, while passing the detention order
dated 14.09.2023 of the petitioner has properly considered the evidence on
record after dialogue with the Police Inspector, Police Station, Umarkhed,
who has recorded the in-camera statements and personally verified by Sub-
Divisional Police Officer, Sub Division, Pusad. He further submitted that, the
State Government has communicated the approval order dated 25.09.2023
to the petitioner in respect of his detention. Learned APP further submitted
that, the perusal of the detention order clearly shows that the criminal
activities of the petitioner are prejudicial to the maintenance of public
order.
6. On perusal of the grounds of the detention, it appears that
though the other offences are mentioned by the detaining authority, the
three offences, which occurred within the six months prior to passing of
detention order are considered. The offence in Crime No.230/2023 is
registered for the offences punishable under Sections 394, 336, 323, 504,
506 read with Section 34 of the Indian Penal Code. In this case, the
petitioner along with other accomplices helped the assailant to assault the
complainant while extorting money. Crime No.276/2023 is registered for
the offences punishable under Sections 294, 323, 506 read with Section 34
of the Indian Penal Code and Sections 4 and 25 of the Arms Act. In this
case, without any reason, the petitioner along with his friends assaulted the
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complainant, who has stopped his vehicle on the signal. He broke the glass
of his car without any reason and abused him. Crime No.426/2023 is
registered for the offences punishable under Sections 324, 323, 294, 506
read with Section 34 of the Indian Penal Code. In this case, the petitioner
assaulted the complainant with a beer bottle on his head. In all the three
offences, the assailant is the petitioner. Though the weapons are used and
the petitioner has assaulted in public, these offences are not sufficient to
state that it is disturbing the public order.
7. While considering whether it is situation of breach of public
order or law and order, the Hon'ble Apex Court in the case of Ameena
Begum Vs. The State of Telangana & Ors [Arising out of SLP (Criminal)
No.8510/2023] has held in para Nos.31, 32 and 34 which read as under :
"31. It is trite that breach of law in all cases does not lead to
public disorder. In a catena of judgments, this Court has in clear
terms noted the difference between "law and order" and "public
order.
32. We may refer to the decision of the Constitution Bench of
this Court in Ram Manohar Lohia vs. State of Bihar [(1966) 1
SCR 709], where the difference between "law and order" and
"public order" was lucidly expressed by Hon'ble M. Hidayatullah,
J. (as the Chief Justice then was) in the following words:
"54. *** Public order if disturbed, must lead to public
disorder. Every breach of the peace does not lead to public
disorder. When two drunkards quarrel and fight there is
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disorder but not public disorder. They can be dealt with
under the powers to maintain law and order but cannot be
detained on the ground that they were disturbing public
order. Suppose that the two fighters were of rival
communities and one of them tried to raise communal
passions. The problem is still one of law and order but it
raises the apprehension of public disorder. Other
examples can be imagined. The contravention of law
always affects order but before it can be said to affect
public order, it must affect the community or the public at
large. A mere disturbance of law and order leading to
disorder is thus not necessarily sufficient for action under
the Defence of India Act but disturbances which subvert
the public order are.
55. It will thus appear that just as 'public order' in the
rulings of this Court (earlier cited) was said to
comprehend disorders of less gravity than those affecting
'security of State', 'law and order' also comprehends
disorders of less gravity than those affecting 'public order'.
One has to imagine three concentric circles. Law and
order represents the largest circle within which is the next
circle representing public order and the smallest circle
represents security of State. It is then easy to see that an
act may affect law and order but not public order just as
an act may affect public order but not security of the
State."
34. In Kuso Sah vs. The State of Bihar [(1974) 1 SCC 195],
Hon'ble Y.V. Chandrachud, J. (as the Chief Justice then was)
speaking for the Bench held that:
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"4. *** The two concepts have well defined contours, it
being well established that stray and unorganised crimes
of theft and assault are not matters of public order since
they do not tend to affect the even flow of public life.
Infractions of law are bound in some measure to lead to
disorder but every infraction of law does not necessarily
result in public disorder. ***
6. *** The power to detain a person without the
safeguard of a court trial is too drastic to permit a lenient
construction and therefore Courts must be astute to
ensure that the detaining authority does not transgress
the limitations subject to which alone the power can be
exercised. ***"
The cognizance of the offences is taken under ordinary law and
two cases are pending for investigation before the Competent Court.
In view of above said observations, the offence which are
considered for detention, does not come under the purview of public order.
8. The two statements are considered for passing the detention
order. The statements, which are provided to the petitioner, the incident is
totally masked. There is substance in the submission made by the petitioner
that he has not got opportunity to represent as he was not aware about the
incident in the statements of the confidential witnesses 'A' and 'B'. On
perusal of the statements, it appears that everything is masked, therefore,
the petitioner had not got opportunity to represent on the basis of the said
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statements. On perusal of the original statements of the witnesses, it
appears that it is not even seen by the detaining authority. Therefore, the
subjective satisfaction of truthfulness of the statements is not there.
9. The learned A.P.P. has placed reliance on the judgment of
Zebunnisa Abdul Majid Vs. M. N. Singh and Others. [2001(3) Mh.L.J. 365] ,
in which it is observed that though the truthfulness of the statements are
not physically verified by the detaining authority, it is verified by the
recording authority and it is discussed by the detaining authority and if it is
mentioned in the affidavit that he is satisfied by discussing and going
through the statements of the witnesses, that affidavit is sufficient for the
subjective satisfaction of the truthfulness of the said statements.
In support of his argument about subjective satisfaction of the
truthfulness of the statements he has also relied on the following
judgments :
i] Mohammed Mustafa S/o. Mohammad Mastan Vs. The
State of Maharashtra and Anr. [2018 ALL MR (Cri) 37].
i] G. Reddeiah Vs. Government of Andhra and Anr.
[(2012) 2 SCC 389].
10. In this case, nothing is there on record to show that the
detaining authority has discussed with the persons, who have verified it.
Though it is mentioned in the affidavit that he is satisfied by the correctness
and truthfulness of the statements, the authority has not even seen the
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statements. The fact remains that the main incident is masked by the
authority while providing the confidential statements to the petitioner,
which deprived the right of the petitioner to represent. Considering these
grounds as the crimes which are considered does not disclose the public
order, the truthfulness of the statements are not verified and the proper
copies are not supplied to the petitioner, the detention order stands vitiated.
11. In view of above observations, the application is allowed.
12. The detention order passed by the detaining authority is
quashed and set aside.
13. The petitioner be set at liberty forthwith, if not required in any
other crime.
14. Rule is made absolute in aforesaid terms.
15. Pending application(s), if any, stand(s) disposed of
accordingly.
(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
Signed by: Mrs. R.M. MANDADE
RGurnule
Designation: PA To Honourable Judge
Date: 31/08/2024 13:28:11
