Sachin Shriram Meshram vs State Of Mah. Thr. Additional Chief ...
2024 Latest Caselaw 3025 Bom

Bombay High Court

Sachin Shriram Meshram vs State Of Mah. Thr. Additional Chief ... on 1 February, 2024

Author: Vinay Joshi

Bench: Vinay Joshi

2024:BHC-NAG:1250-DB




                                                   1                     wp605.2023

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH : NAGPUR
                        CRIMINAL WRIT PETITION NO.605/2023

              Sachin Shriram Meshram,
              aged about 37 Yrs., Occ. Labourer,
              R/o Sawalpur, Taluka Arvi,
              District Wardha.                                  ...    Petitioner
                    - Versus -
              1.   State of Maharashtra,
                   through Additional Chief Secretary,
                   Advisory Board, Home Department,
                   2nd Floor, Mantralaya, Mumbai 440 032.
              2.   Collector and District Magistrate,
                   Wardha.
              3.   Sub Divisional Police Officer,
                   Wardha Division, District Wardha.
              4.   The Police Inspector
                   PSO of PS Arvi, District Wardha.             ...   Respondents
                           -----------------
              Mr. Parvez Mirza, Advocate for the Petitioner.
              Mr. S.S. Doifode, A.P.P. for the Respondents.
                          ----------------
              CORAM: VINAY JOSHI AND MRS.VRUSHALI V. JOSHI, JJ.
              DATE OF RESERVING THE JUDGMENT : 18.1.2024.
              DATE OF PRONOUNCING THE JUDGMENT : 1.2.2024.


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

Heard. Rule. Rule made returnable forthwith.

Heard finally by consent of learned counsel for the parties.

2 wp605.2023

2. By this petition the petitioner has challenged the

detention order dated 17.5.2023 passed by respondent No.2

District Magistrate, Wardha and confirmation thereof vide order

dated 7.7.2023 passed by respondent No.1 thereby the petitioner

is ordered to be detained 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 (for short "M.P.A.D. Act").

3. Respondent No.2 passed the order of detention

against the petitioner in case No. Detention Order No.AK

Home/Desk-2(B)WS/648/2023 after considering the grounds of

detention and relying on the certain cases pending against the

petitioner under Bombay Prohibition Act and relying on the in

camera statements of two witnesses "A" and "B".

4. The order is passed under Section 3(2) of the said

Act. The grounds of the detention set out that the criminal

record of the detenue was reflective of his conduct of involving 3 wp605.2023

himself in selling illicit liquor and thereby endangering human

life and ruining poor families. The grounds of the detention

reveal that the detenue was habitual in committing offences under

Bombay Prohibition Act and he was engaged in bootlegging

activities and the detenue was clamped as below record of Section

2 of the Act and said activities are referred to be prejudicial to the

maintenance of public order.

5. The detaining authority referred to the past activities

of the detenue in passing the detention order but had relied on

the crime registered in last three years vide Crime Nos.979/2022

dated 25.10.2023, 782/2022 dated 24.8.2022, 760/2022 dated

16.8.2022 and 458/2022 dated 13.6.2021. Reliance was also

placed on the two in camera statements which came to be

recorded as no person was ready to complain against the detenue

because of fear of retaliation and when certain residents of the

area were taken into confidence and were assured that their names

would not be disclosed two persons stood as witnesses and their

statements got recorded.

4 wp605.2023

6. Taking into consideration the bootlegging record and

in camera statements, as the detenue was habitual in bootlegging

activities which reflected in ascending trend and in order to

prevent the detenue from indulging under the said activities and

in order to curb the bootlegging activities the detaining authority

was satisfied that it is necessary to detain the petitioner. The

grounds on which detention order has been assailed are as

follows:-

"(i) That, the impugned order does not explain or elaborate as to how the bootlegging activities of the petitioner would adversely affect public order. Any bootlegging activity which involves manufacture of illicit liquor could presumably affect public health but the same does not necessarily disturb public order; there is no presumption in fact or law that every incidence of disturbance of public health would necessarily disturb in public order.

(ii) Further, the confidential statements of the witnesses were not verified and not seen by the detaining authority. This fact would show that the statements were not verified for its genuinenesses nor the same was considered by the detaining authority and in either of these eventualities, the subjective satisfaction reached by the detaining authority would have to be deemed as perverse and, on this ground, also the impugned detention order is illegal.

5 wp605.2023

(iii) That, there is a gap of 5 months between the detention order dated 17.05.2023 and the last crime registered against the present petitioner i.e. 13.12.2022. And, therefore, on account of the live link being snapped between the prejudicial activities of the petitioner/detenue and the detention order being clamped on him, the same is unsustainable as instead of being preventive, has become punitive.

(iv) That, there was a delay in deciding the representation made by the petitioner/detenue. The representation dated 27.05.2023 was sent through Central Jail, Wardha on 29.05.2023 and the Advisory Board passed its order on 07.07.2023. Thus, there is inordinate delay in considering the representation of the detenue. It is trite that, the authority is bound to consider the representation of the detenue as early as possible and expeditiously for the reason that personal liberty of a person is at stake and any delay would affect the fundamental right of a detenue as enshrined in the constitution to have its representation considered immediately.

7. The learned Counsel for the petitioner has relied on

following judgments in support of his argument.

i) Shaik Nazneen V/s. State of Telangana and others reported in (2023) 9 SCC 633,

ii) Syed Sabeena V/s. State of Telangana and others reported in 2022 SCC Online SC 2077,

iii) Hanif Karim Laluwale V/s. State of Maharashtra, through Additional Chief Secretary and others reported in 2022 SCC Online Bom 1367, 6 wp605.2023

iv) Criminal Writ Petition No.736/2021 (Jaywanta S/o Gangaram Pawar V/s. The State of Maharashtra and others) decided on 30.6.2022,

v) Rakesh Mohan Gadekar V/s. State of Maharashtra and another reported in 2020(2) Mh.L.J. (Cri) 673,

vi) Criminal Writ Petition No.872/2021 (Sanjay S/o Soma Shinde V/s. State of Maharashtra and another),

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

viii) Sandeep Govind Pawar V/s. State of Maharashtra reported in AIR Online 2023 Bom 455.

8. The learned A.P.P. has relied on the following

judgments in support of his argument.

i) Ramesh Balu Chavan V/s. The Commissioner of Police & Ors. reported in 2017 ALL MR (Cri) 3683,

ii) Kashinath Motiram Chavan V/s. The Commissioner of Police, Solapur & Ors. reported in 2021 ALL MR (Cri) 3034,

iii) Machindra Dnyanoba Jadhav V/s. The State of Maharashtra & Ors. reported in 2021 ALL MR (Cri) 3198,

iv) Kanuji S. Zala V/s. State of Gujrat and others reported in (1999) 4 SCC 514,

v) Mohammed Mustafa S/o Mohammad Mastan V/s. The State of Maharashtra & Anr. reported in 2018 ALL MR (Cri) 37,

vi) Pravin @ Bhayya Pratap Shinde V/s.

Commissioner of Police reported in 2020 LawSuit (Bom) 50,

vii) Harish Patil V/s. The State of Maharashtra & Ors. reported in 2016 ALL MR (Cri) 5144, 7 wp605.2023

viii) Bablu @ Pratik Hari Prakshale V/s. Shri Ranjit Kumar & Ors. reported in 2017 ALL MR (Cri) 3059,

ix) Suresh @ Khiladi Yellappa Shivpure V/s. Commissioner of Police & Ors. reported in 2017 ALL MR I(Cri) 3289,

x) Sadashiv S/o Shriram Jadhav V/s. The State of Maharashtra & Anr. reported in 2021 ALL MR (Cri) 4192 and

xi) Anil Vitkar V/s. State of Maharashtra & Ors. reported in 2018 ALL MR (Cri) 4340.

9. The detaining authority has relied upon four crimes

registered against the petitioner under the provisions of

Maharashtra Prohibition Act and two statements of confidential

witnesses "A" and "B". So far as the crimes registered under the

Maharashtra Prohibition Act are concerned, for these crimes the

Investigating Officer did not think it fit to arrest the petitioner. If

so many bootlegging crimes registered against the petitioner are

excluded from the material available for the detaining authority to

reach its subjective satisfaction, only two statements remains of

two confidential witnesses. If we take a look at these statements

we would find that nothing is mentioned therein to establish the

live link with the object sought to be achieved by passing the

detention order. It is further seen that it does not explain as to 8 wp605.2023

how bootlegging activity per se itself would adversely affect the

public order. In bootlegging activity in which the petitioner is

involved is a manufacture of illicit liquor which can at the most be

presumed to be adversely affecting the public health. There is no

presumption in fact or law that every incidence of disturbance of

public health would necessarily result in disturbance of public

order.

10. This Court in Writ Petition No.736/2021 (Jaywanta

S/o Gangaram Pawar V/s. The State of Maharashtra and others)

decided on 30.6.2022 in paragraph Nos.9 and 10 has observed as

follows:-

"9. It would be clear from the explanation given in clause

(a) that the illegal activity of any of the persons referred to therein must ultimately result in harm, danger or alarm or feeling of insecurity among the general public or any section thereof or must lead to grave and widespread danger to life or public health or disturbance of any public safety and tranquillity or serenity or even tempo of day-to-day life. The keywords in the explanation which we must take note of are "illegal activity resulting in causing of harm, danger or alarm or feeling of insecurity among the general public or any Section thereof" or "causing of widespread danger to life or public health". In other words, the disturbance must not be at individual or smaller level but must transcend to community level. Mere contravention of 9 wp605.2023

law may not necessarily result in disturbance of public order though it may rather it does disturb order. This is clear from what is held in the case of Ashok Kumar vs. Delhi Administration & others: AIR 1982 SC 1143, when it was observed, "the true distinction between the areas of 'public order' and 'law and order' lies not in the nature or quality of the act, but in the degree and extent of its reach upon society." This has been explained in different words by the Supreme Court in Ram Manohar Lohia (Dr) vs. State of Bihar and others : AIR 1966 SC 740, as follows :-

"....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."

Similar, proposition of law is laid down in Banka

Sneha Sheela v. State of Telangana : (2021) 9 SCC 415, when it

was observed in para 14, thus:-

"There can be no doubt that for "public order" to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects "law and order" but before it can be said to affect "public order", it must affect the community or the public at large."

11. These principles of law would impel the detaining

authority thinking any bootlegging activity as providing sufficient

ground to detain a person to think again and record its satisfaction 10 wp605.2023

that the bootlegging activity indulged in by a person like the

petitioner, has resulted or is likely to result in causing widespread

disturbance among general public or such harm or danger, alarm

or feeling of insecurity of such a nature that ordinary law and

order measure would not suffice and a more telling; drastic and

extraordinary devise of preventive detention is required.

12. Therefore, the authorities would be required to satisfy

themselves as to how disturbance of public health in certain cases

would also result in disturbance of public order. Such satisfaction

has not been reached in the present case.

13. Confidential statements of the witnesses on the

question of verification of in-camera statements would lead us to

believe that in-camera statements are unreliable and need to be

discarded for the reason that the statements are not verified.

Though there is reference to the authority verifying the

statements, discussion with the witnesses and the concerned

Assistant Commissioner of Police and Deputy Commissioner of

Police the statements reveal only endorsement that verification is 11 wp605.2023

done but there is no endorsement that contents of the statements

are verified by the detaining authority. The detaining authority

has verified the statements stating that witnesses were unwilling

out of fear of the detenue to depose against him. It is evident that

the subjective satisfaction of the authority was arrived at without

complying the verification as was required by law.

14. The learned Counsel for the petitioner argued that

the order of detention needs to be quashed and set aside on

various grounds with emphasis that there is a delay in passing the

order of detention and the detaining authority has not acted

promptly and vigilantly and, therefore, the live link between the

activities of the detenue was snapped when the detention order

was passed. Learned Counsel for the petitioner has made

submission that the order is passed by detaining authority which

requires to be approved within a period of 12 days by the State

Government and thereafter a reference is to be made to the

Advisory Board within 12 days. The State Government would

require to make a reference to the Advisory Board within 12 days.

12 wp605.2023

He has also submitted that the State Government would require

to make a reference to the Advisory Board within a period of

three weeks from the date of detention specifying its opinion as to

whether there is sufficient cause for detention and on receipt of

said report from Advisory Board the question whether to revoke

the detention order or to confirm the same has to be decided.

15. Learned A.P.P. has stated that the detention order

dated 17.5.2023 and all record papers submitted on 18.5.2023

for approval under Section 3(3) of the Act of 1981 are sent to the

Secretary (Preventive Detention), Home Department (Special)

Mantralaya, Mumbai and on 26.5.2023 the order of detaining

authority got approval. The Advisory Board has given an opinion

and reported within the stipulated period. Under such

circumstances, submission made by the learned Counsel for the

petitioner is not correct. It is submitted that the grievance of the

petitioner that there is inordinate delay in deciding the said

representation and in view of such delay detention of detenue 13 wp605.2023

becomes illegal and the petitioner be released forthwith is not

correct.

16. After going through the reply filed by the respondent

No.2 and the reason given in reply in paragraphs 16 and 17

stating that there is no delay from the office of respondent No.2

and in any manner detenue's right is not prejudiced to make any

effective representation and in any manner the same is not

affecting any other right of the detenue.

17. It appears from the details given by respondent No.2

that the order dated 17.5.2023 was immediately submitted on

18.5.2023 for approval and the same was approved immediately.

On 26.5.2023 the order was passed and the authority approved

the order and it was communicated to the petitioner. It is within

prescribed period as per Section 3(2), Sections 10 and 11 of the

said Act.

18. One of the grounds is that there is no live link in the

last criminal activity of the petitioner and the object sought to be 14 wp605.2023

achieved by the preventive detention. There is a gap of 5 months

between the detention order dated 17.5.2023 and the last crime

registered against the petitioner i.e. 13.12.2022. The confidential

statements are also recorded on 5.4.2023. There is delay of not

less than 5 months in the present case which has not been

explained in any manner by the detaining authority.

19. The delay so caused in the present case in our

considered view, has the effect of snapping live link with the

criminal activities of the petitioner and therefore, we are of the

view that this aspect of the matter has vitiated the satisfaction

reached by the Detaining Authority.

20. For the reasons stated above and based upon our

conclusion recorded on the grounds enumerated hereinabove we

proceed to pass the following order:-

(i) The criminal writ petition is allowed.

(ii) The impugned orders dated 17.5.2023 and 7.7.2023 are

hereby quashed and set aside.

15 wp605.2023

(iii) The respondents are directed to release the petitioner from

detention unless required in any other case.

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

Tambaskar.

Signed by: MR. N.V. TAMBASKAR Designation: PA To Honourable Judge Date: 01/02/2024 16:36:34