Bombay High Court
Nana @ Budha Uttam Koli Through Wife As A ... vs The State Of Maharashtra And Others on 6 May, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:9563-DB
1 67.Cri.WP-1760-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No. 1760 / 2023
Shri. Nana @ Budha Uttam Koli
Age : 33 years, Occ. Labour,
R/o At Post Ravanje Budruk, Tal.: Erandol,
District Jalgaon.
Through wife as a next friend :
Ujjwala Budha Baviskar,
Age : 32 years, Occ. Household,
R/o At Post Ravanje Budruk, Tal.: Erandol,
District Jalgaon. ...Petitioner
Versus
1. State of Maharashtra
Through its Secretary,
Home Department (Special),
Mantralaya, Mumbai.
2. The Collector and District Magistrate,
Jalgaon.
Having office at the Collector Office,
Akashwani Chowk, Jalgaon.
3. The Superintendent of Police,
Jalgaon.
4. The Police Inspector,
Erandol Police Station,
Erandol.
5. The Superintendent,
Yerwada Central Prison,
Pune. ..Respondents
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___
Advocate for the Petitioner : Mr. Satej S. Jadhav
A.P.P. for Respondents /State : Mr. G.A. Kulkarni
___
CORAM :MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 29 APRIL 2024
PRONOUNCED ON : 6 MAY 2024 26 APRIL
202415
ATE
JUDGMENT [Per Shailesh P. Brahme, J.] :
. Rule. Rule is made returnable forthwith. Heard both the
sides finally with their consent at the admission stage.
2. The petitioner is challenging order dated 24.11.2023 passed
by the respondent no.2/District Magistrate, Jalgaon under
Section 3(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 Act,
1981 (hereinafter referred to as the MPDA Act for the sake of
brevity and convenience). The petitioner is held to be dangerous
person on the basis of ten offences pitted against him,
preventive actions, externment order dated 05.10.2015 and two
in-camera statements.
3. Learned Counsel for the petitioner submits that out of ten
offences, petitioner has been acquitted in nine offences which is
overlooked. It is further submitted that the order enlarging
3 67.Cri.WP-1760-2023.doc
petitioner on bail in the last offence has not been considered. It
is further overlooked that last offence was registered after time
span of four years from its preceding offence. Thus according to
learned Counsel subjective satisfaction is arbitrary. He submits
that there was no need to resort to drastic action and the
activities could have been controlled by ordinary penal laws.
4. Learned APP supports impugned order on the basis of
affidavit-in-reply filed by the respondent no.2. He would submit
that serious offences have been registered against petitioner.
The externment order and preventive actions did not deter him.
According to him, there is overwhelming incriminating material
against petitioner to arrive at subjective satisfaction. It is further
submitted that the time line has been meticulously followed by
the respondents/authorities. He submitted that though the
petitioner was acquitted of nine offences, impugned order is
sustainable, considering last offence and in-camera
statements. In-camera statements would also indicate the
detrimental activities of petitioner. He seeks reliance upon the
following judgments :
i Smt. Phulwari Jagadambaprasad Pathak Vs. R.H. Mendonca
and Others, 2000 AIR SCW 2727.
ii Dhurus Kanu Vs. State of W.B.
AIR 1975 SC 571
5. We have considered rival submissions of the parties and
the relevant record which formed part of proposal for impugned
action of detention. It is not disputed that the petitioner has
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been acquitted in nine offences. Last offence bearing C.R.
No.123/2023 under Sections 379 and 353 of the Indian Penal
Code is under investigation. It was registered on 05.07.2023. In-
camera statements of witness-A was recorded on 10.09.2023
and that of witness-B on 15.09.2023. Petitioner was released on
bail vide order dated 13.07.2023 in the last offence.
6. The grounds of detention show that the first seven
offences pitted against petitioner could not be proved. Offences
bearing C.R. No.2/2017 which is at Serial No.8 and C.R. No.1/2020
which is at Serial No.9 are shown to be pending trial. The
sponsoring authority while forwarding proposal also stated
same status of the offences. However, the petitioner was
acquitted of all offences including C.R.No.2/2027 and 1/2020.
Neither any care was taken by the sponsoring authority, nor the
detaining authority bothered to look into the status of the cases
pitted against the petitioner. This is serious flaw in exercise of
jurisdiction by the detaining authority. The grounds of detention
are totally silent on this aspect. There is no satisfactory reply to
this fact situation. We are of the considered view that the
subjective satisfaction is arbitrary.
7. Petitioner was released on bail vide order dated 13.07.2023
passed in C.R. No.123/2023. Reasons assigned by the learned
Judicial Magistrate, First Class, Erandol have not been
considered by the detaining authority. It is settled position of law
that the reasons enlarging detenue on bail provide valid inputs
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while arriving at a subjective satisfaction. A useful reference can
be made to judgment rendered by the Supreme Court in the
matter of Rushikesh Tanaji Bhoite Vs. State of Maharashtra &
Ors., 2012 AIR (SC) 890. There is a merit in the submissions of
learned Counsel that the subjective satisfaction is arbitrary.
8. It reveals that last offence was registered on 05.07.2023
after span of four years from its preceding offence bearing C.R.
No.1/2020 which was registered on 04.01.2020. During these four
years, no offence has been registered against petitioner. The
preventive actions taken against him under Section 110 of the
Code of Criminal Procedure were of 10.02.2017 and 19.03.2020.
Last preventive action also precedes four years from last
offence. An order of externment passed on 05.10.2015 has been
pressed into service. Petitioner appears to have been externed
for one year. Period of externment was over on 05.10.2016. Last
offence was registered on 05.07.2023, after period of seven
years. The live link between the material pitted against petitioner
and the proposed action stands snapped. This aspect is
overlooked by the detaining authority. The subjective
satisfaction is not intelligble.
9. Learned APP vehemently submitted that in-camera
statements are indicative of detrimental behaviour of the
petitioner and would corroborate other material on record.
Reliance is placed on ratio laid down by Supreme Court in the
matter of Smt. Phulwari Jagadambaprasad Pathak (supra). It
cannot be doubted, that statements against the detenue may
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not be taken to the hilt but can provide inputs to show prejudice
to the public order. However, in the present case, facts are
totally different.
10. A careful perusal of both in-camera statements depicts
interesting scenario. The statements were recorded on
09.10.2023 and 15.09.2023. Last offence was registered on
05.07.2023. There is a gap of two months in recording the
statements. Petitioner being at large was not felt to be
detrimental to the society or public order. Statement of witness-
A narrates incident occurred prior to two months. Statement of
witness-B narrates incident which occurred before 15 to 20
days. Initial part of the statement depicts criminal antecedents
of the petitioner. Interestingly, statement of witness-B reflects
ahirani dialect which is not shown to be translated or explained
to the detaining authority. We have our reservation for the
genuineness of the statements. The detaining authority failed to
appreciate this aspect.
11. There is want of promptitude in recording statements of
the witnesses and proposing action for detention. Though, the
petitioner has not specifically taken ground of delay in recording
statements, if we overlook this aspect, we would be failing in our
duty. We are dealing with drastic action against petitioner. If a
liberty of the citizen is at stake, the sponsoring authority as well
as detaining authority should be extremely cautious. Considering
over all aspects of the matter, we find that drastic action was
not warranted.
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12. Learned APP relies on the judgment of the Supreme Court
in the matter of Dhurus Kanu (supra), wherein it is laid down that
even a single occurrence would be sufficient to show that if
detenue is to be left at large, he would indulge in similar activities
in future. In that matter, the detenue was shown to have indulged
in removing fish plates from the running track. The facts of the
case in hand are altogether different. An isolated act or offence
is not of such gravity. The judgment cannot enure to the benefit
of the respondents.
13. Learned APP has pressed into service Section 5A to save
impugned order. Impugned order suffers from perverse
subjective satisfaction as well as unexplained delay. Delay is a
fundamental defect which cannot be saved by Section 5A of the
Act.
14. For the reasons stated above, we find that impugned order
is unsustainable. We pass following order.
ORDER
i. Criminal Writ Petition is allowed.
ii. The impugned order of detention is quashed
and set aside.
iii. The petitioner shall be set at liberty
forthwith.
iv. Rule is made absolute in above terms.
SHAILESH P. BRAHME MANGESH S. PATIL
JUDGE JUDGE
NAJEEB...
