Bombay High Court
Yaduraj @ Bacchi S/O Ramnaresh Arak vs The State Of Mah. Thr. Its Secretary Home ... on 5 January, 2024
Author: M. W. Chandwani
Bench: Vinay Joshi, M. W. Chandwani
2024:BHC-NAG:200-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO. 536 OF 2023
Yaduraj @ Bacchi S/o. Ramnaresh Arak,
Aged about 24 years, R/o. Subhash Ward,
Ballarpur, Chandrapur, Dist. Chandrapur
(Presently at Central Prison, Aurangabad) . . . PETITIONER
// V E R S U S //
1. The State of Maharashtra through
its Secretary, Home Department,
Mantralaya, Mumbai-32.
2. District Magistrate, Chandrapur.
3. Superintendent, Central Prison,
Aurangabad. . . . RESPONDENTS
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Shri R. M. Daga, Advocate for petitioner.
Shri S. S. Doifode, APP for respondents/State.
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CORAM :- VINAY JOSHI &
M. W. CHANDWANI, JJ.
RESERVED ON :- 19.12.2023
PRONOUNCED ON :- 05.01.2024
JUDGMENT (PER: M. W. CHANDWANI, J.):
-
Heard.
2. Rule. Rule made returnable forthwith. Heard finally by
consent of the learned counsel for the parties.
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3. By this Writ Petition under Article 226 of the Constitution
of India, the petitioner seeks to quash and set aside the order dated
23.05.2023 passed by respondent no. 2 under sub-Section (1) and (2)
of the Section 3 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, "the MPDA Act"). The
petitioner further challenges the order dated 17.07.2023 passed by
respondent no. 1 confirming the order dated 23.05.2023 passed by the
respondent no. 2.
4. The brief facts, which give rise to this petition are stated as
under:-
A proposal for detention was moved by the Police
Inspector, Police Station Ballarpur, District Chandrapur on 23.01.2023
to detain the petitioner under the provisions of the MPDA Act on the
ground that the petitioner is a dangerous person within the meaning of
Section 2(b-1) of the MPDA Act and a number of offences have been
registered against the petitioner. The Detaining Authority relying on
two crimes as well as in-camera statement of witnesses 'A' and 'B' came
to the conclusion that the petitioner has created terror in the minds of
the people. The witness and victim do not come forward and lodge
complaint because of fear from the petitioner. The activities of
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the petitioner are adversarial and likely to affect maintenance of public
order. Therefore, the respondent no. 2- Detaining Authority has
passed the impugned order dated 23.05.2023, which was confirmed by
the respondent no. 1- State Government by its order dated 17.07.2023
under the provisions of the MPDA Act. Feeling aggrieved by the said
orders, the present petition came to be filed.
5. Heard Shri R. M. Daga, learned counsel for the petitioner
and Shri S. S. Doifode, learned APP for respondents/State.
6. Though, various grounds have been raised in the petition
but, the learned counsel for the petitioner principally raised the
ground of delay in passing the detention order by the Detaining
Authority. It is contended on behalf of the petitioner that though the
Police Inspector of Police Station Ballarpur had sent the proposal for
proceeding under Section 3 of the MPDA Act against the petitioner, the
Detaining Authority sat over the said proposal for almost four months
and on 23.05.2023, the order of detention came to be passed. It is
contended on behalf of the petitioner that the delay in passing the
detention order will vitiate the detention order itself. According to
him, this itself goes to show that there was no necessity to detain the
petitioner, immediately. If there is long and unexplained delay
between the date of proposal and the date of order of detention then,
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the link in between them is snapped, unless the grounds indicate
application of mind to the new and changed circumstances. He
submitted that in the present case, there is unexplained delay on the
part of the Detaining Authority in passing the detention order. To
buttress the submission, he seeks to rely on the decision of the
Supreme Court in the case of Sushanta Kumar Banik Vs. State of
Tripura 1.
7. Per contra, the learned APP for the State vehemently
submitted that the petitioner is a dangerous person within the
meaning of the MPDA Act. He is a leader of the gang and there is
terror in the minds of the people in the locality within the jurisdiction
of Police Station Ballarpur therefore, a proposal came to be moved by
the Police Inspector of Police Station, Ballarpur whereupon the
detention order came to be passed by the respondent no. 2. He further
submits that the delay in passing the order has been explained in
affidavit-cum-reply. According to him, the certified copy of the charge-
sheet of the crimes were obtained, and thereafter in-camera statements
of the witnesses were recorded and the proposal was sent to Sub-
Divisional Police Officer (SDPO). The SDPO interacted with the
witnesses and verified the contents of the statement of the witnesses
and thereafter, the proposal was sent to the District Magistrate for
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passing detention order. After verifying the statements of the
witnesses, the District Magistrate passed the detention order.
According to him, the delay has been properly explained. He further
submitted that the order of detention is proper and legal therefore,
sought rejection of the writ petition.
8. At the outset, we may mention here that the object and
purpose of detention is to offer protection to the Society or people of
the locality where the detenu has created terror in their minds. The
object is not to punish a man who has done something but, to intercept
him so that he does not do it and consequently to prevent him from
doing it.
9. In view of the above referred object of preventive
detention, it becomes very imperative on the part of the Detaining
Authority as well as Executing Authority to remain more cautious in
passing the detention order at the earliest from the date of proposal
and executing the detention order by detaining the detenu to protect
the Society. Any casual approach or un-attentiveness on the part of the
Detaining Authority would defeat the very purpose of preventive
action and frustrate the entire proceedings. There must be live and
proximate link between the grounds of detention and avowed purpose
of detention. Any unexplained delay in passing the detention order
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would vitiate the detention order itself, rather it shows that there is no
necessity to detain the detenu, immediately.
10. It will be profitable to refer the decision of the Supreme
Court in the case of Sushanta Kumar Banik (supra) relied on by the
learned counsel for the petitioner, wherein in para nos. 21 and 22 of
the decision, it is held as under:-
"21. It is manifestly clear from a conspectus of the above
decisions of this Court, that the underlying principle is that if
there is unreasonable delay between the date of the order of
detention & actual arrest of the detenu and in the same manner
from the date of the proposal and passing of the order of
detention, such delay unless satisfactorily explained throws a
considerable doubt on the genuineness of the requisite
subjective satisfaction of the detaining authority in passing the
detention order and consequently render the detention order
bad and invalid because the "live and proximate link" between
the grounds of detention and the purpose of detention is
snapped in arresting the detenu. A question whether the delay
is unreasonable and stands unexplained depends on the facts
and circumstances of each case.
22. In the present case, the circumstances indicate that the
detaining authority after the receipt of the proposal from the
sponsoring authority was indifferent in passing the order of
detention with greater promptitude. The "live and proximate
link" between the grounds of detention and the purpose of
detention stood snapped in arresting the detenu. More
importantly the delay has not been explained in any manner &
though this point of delay was specifically raised & argued
before the High Court as evident from Para 14 of the impugned
judgment yet the High Court has not recorded any finding on
the same.
11. In the present case, we have noticed from the affidavit-
cum-reply of the respondent no. 2 that proposal for detention of the
petitioner was made by the Police Inspector of Police Station, Ballarpur
and it was sent to the Superintendent of Police, Chandrapur on
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23.01.2023. The Superintendent of Police after complying with all the
procedure and after verifying the statement of the witnesses sent
proposal to the Detaining Authority on 15.02.2023. However, the
Detaining Authority, after more than two months thereafter and four
months from the date of proposal passed the impugned order. Though,
it has been argued that time was required for obtaining certified copy
of the charge-sheets of the crime on which the detention order was
relied, record shows that the certified copies of charge-sheets have
been obtained prior to 23.01.2023. No explanation is forthcoming
from the Detaining Authority as to why despite of receiving the
proposal on 15.02.2023 from the SDPO, the order came to be passed
after more than two months of its receipt and this delay has not been
explained. Thus, the live and proximate link between the grounds of
detention and the purpose of detention stood snapped in arresting the
petitioner. Consequently, the delay in passing the detention order is
bad and invalid therefore, it is required to be set aside. Hence, we
proceed to pass the following order:-
i) The Writ Petition is allowed.
ii) We hereby quashed and set aside the impugned order
dated 23.05.2023 passed by the respondent no. 2 so also the order
dated 17.07.2023 passed by the respondent no. 1 and direct that the
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detenu be set at liberty forthwith, unless his detention is required in
some other case.
Rule is made absolute in the above terms.
(M. W. CHANDWANI, J.) (VINAY JOSHI, J.)
RR Jaiswal
Signed by: Mr. Rajnesh Jaiswal
Designation: PA To Honourable Judge
Date: 06/01/2024 15:32:53
