Bombay High Court
Mangesh Siddharth Jadhav vs The State Of Maharashtra And Others on 11 November, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:27483-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1639 OF 2024
Mangesh Siddharth Jadhav
Age: 24 years, Occu.: Labour,
R/o. Near Savitribai Phule High
School, Bhim, Bhausingpura,
Aurangabad. .. Petitioner
Versus
1. The State of Maharashtra
Through Secretary, Home Department,
Mantralaya, Mumbai-32.
2. The Section Officer,
Home Department, Hutatma
Rajguru Chowk, Madham Kama
Road, Mantralaya, Mumbai-32.
3. The Commissioner of Police,
R/o. Officer of the Commissioner,
Mill Corner, Tq. And Dist. Aurangabad.
4. The Police Inspector,
Cantonment Police Station,
Cantonment Area, Aurangabad,
Tq. And Dist. Aurangabad. .. Respondents
...
Mr. S. G. Magre, Advocate h/f Mr. P. D. Jadhav, Advocate for the petitioner.
Mr. N. R. Dayama, APP for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
R. W. JOSHI, JJ.
DATE : 11 NOVEMBER 2024
[1]
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JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. S. G. Magre holding for learned
Advocate Mr. P. D. Jadhav for the petitioner and learned APP
Mr. N. R. Dayama for respondents - State.
2. Rule. Rule made returnable forthwith. The petition is
heard finally with the consent of the learned Advocates for the
parties.
3. The petitioner challenges the detention order dated
14.11.2023 bearing No. D.O.2023/MPDA/DET-16/CB-169 passed
by respondent No.3 as well as the approval order dated
24.11.2023 and the confirmation order dated 28.12.2023 passed
by respondent No.2, by invoking the powers of this Court under
Article 226 of the Constitution of India.
4. Learned Advocate for the petitioner has taken us through
the impugned orders and the material which was supplied to the
petitioner by the detaining authority after passing of the order.
He submits that though several offences were registered against
the petitioner, yet for the purpose of passing the impugned order,
two offences were considered i.e. Crime No.198 of 2023 registered
with Cantonment Police Station, District Chhatrapati
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Sambhajinagar for the offences punishable under Sections 324,
323, 504, 506 read with Section 34 of Indian Penal Code and
Crime No.534 of 2023 registered with Cantonment Police Station,
District Chhatrapati Sambhajinagar for the offence punishable
under Section 4 punishable under Section 25 of the Indian Arms
Act. It is submitted that even if we consider these two offenes
registered against the petitioner, yet it can be seen that they were
not affecting the public order. He relies upon the decision of the
coordinate Bench at Nagpur of this Court in Ashok s/o Uttamrao
Pawar Vs. State of Maharashtra and others, [Criminal Writ
Petition No.738 of 2022 dated 08.02.2023], wherein based on
the decision of the Hon'ble Supreme Court in Hasan Khan Ibne
Haider Khan Vs. R. H. Mendonca and Ors.,[(2000) 3 SCC page
511] as well as the decision of this Court in Jay @ Nunya Rajesh
Bhosale Vs. The Commissioner of Police, Pune and Ors.,
[2015 ALL MR (Cri.) 4437], it has been held that unless there is
a subjective satisfaction, the authority under the MPDA Act will
not get jurisdiction to pass an order under Section 3 of the MPDA
Act and for arriving at the subjective satisfaction, it has to be
considered that there is breach of public order and not only the
disturbance of the law and order. Even the in-camera statements
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are also on the same line and, therefore, such illegal order cannot
be allowed to sustain.
5. Per contra, the learned APP strongly supports the action
taken against the petitioner. He submits that the petitioner is a
dangerous person as defined under Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders,
Dangerous Persons and Video Pirates Act, 1981 (hereinafter
referred to as the "MPDA Act"). The detaining authority has relied
on the two in-camera statements and the subjective satisfaction
has been arrived at. There is no illegality in the procedure
adopted while recording the in-camera statements of the
witnesses. Due to the terror created by the petitioner, people are
not coming forward to lodge report against him and, therefore, it
affects the public order. Learned APP relies on the affidavit-in-
reply of Mr. Manoj Lohiya, the then Commissioner of Police,
Chhatrapati Sambhajinagar. He supports the detention order
passed by him and tries to demonstrate as to how he had arrived
at the subjective satisfaction. He further states that his order has
been approved by the State Government and also by the Advisory
Board. Thereafter, the confirmation has been given. Learned APP
further submits that the petitioner was involved in, in all, three
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offences, out of which two were considered. He was found
possessing Gupti and, therefore, offence vide Crime No.534 of
2023 came to be registered against him. The consideration was
not only based on those two offences, but also the in-camera
witnesses 'A' and 'B' and, therefore, there is no illegality in the
order, as the order has been then approved by the Advisory
Board. The representation of the petitioner has also been decided
in reasonable time and communicated to him.
6. Before considering the case, we would like to take note of
the legal position as is emerging in the following decisions :-
(i) Nenavath Bujji etc. Vs. State of Telangana and
others, [2024 SCC OnLine SC 367],
(ii) Ameena Begum Vs. The State of Tamilnadu and
Ors., [2023 LiveLaw (SC) 743];
(iii) Kanu Biswas Vs. State of West Bengal, [1972 (3)
SCC 831] wherein reference was made to the decision in Dr.
Ram Manohar Lohia vs. State of Bihar and Ors. [1966
(1) SCR 709];
(iv) Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta,
[1995 (3) SCC 237];
(v) Pushkar Mukherjee and Ors. Vs. The State of West
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Bengal, [AIR 1970 SC 852];
(vi) Phulwari Jagdambaprasad Pathak Vs. R. H.
Mendonca and Ors., (2000 (6) SCC 751) and;
(vii) Smt. Hemlata Kantilal Shah Vs. State of
Maharashtra and another, [(1981) 4 SCC 647].
7. Taking into consideration the legal position as summarized
above, it is to be noted herein as to whether the detaining
authority while passing the impugned order had arrived at the
subjective satisfaction and whether the procedure as
contemplated has been complied with or not. In Nenavath Bujji
(Supra) itself it has been reiterated by the Hon'ble Supreme Court
that illegal detention orders cannot be sustained and, therefore,
strict compliance is required to be made, as it is a question of
liberty of a citizen. As aforesaid, two offences were considered i.e.
Crime No.198 of 2023 and Crime No.534 of 2023. Taking into
consideration the facts in the FIR leading to offence vide Crime
No.198 of 2023, it appears that the quarrel had started and there
appears to be some previous transaction or enmity, as the
informant says that he was forcibly made to sit on the motorcycle
and he was abducted. At that time, the petitioner asked
informant as to why he had pushed his sister. That means there
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was some incident earlier. Further, it can be seen that in the
said matter bail has been granted to the petitioner on
17.07.2023. The said offence appears to be against the individual
due to some previous rivalry.
8. The second offence that has been occurred on 29.10.2023
when the informant police officer was on patrolling duty. It is
stated that after petitioner saw that the police were coming, he
started running, but then police nabbed him, interrogated, upon
search of his person thereby knife was found on the waist. If we
consider the measurement of the knife/Gupti, it is said that the
blade was 20 cms long and 2 cm in width and it had handle of 15
cms and it had also an iron pipe of 27 cms. It is hard to believe
that such a big weapon could have been concealed by tying it to
the waist, but still even if the FIR is accepted on its face, the
offence that has been registered is under Section 4 punishable
under Section 25 of the Indian Arms Act. No other offence like
Maharashtra Police Act have been invoked. Now, as regards
Section 4 of the Indian Arms Act is concerned, there has to be a
notification by the Central Government regarding prohibition of
such weapon in and around Chavani Police Station area. Such
notification has not been referred to have been seen or within the
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knowledge of the detaining authority i.e. the Police
Commissioner, Chhatrapati Sambhajinagar. When that
notification itself has not been perused, it cannot be said that
there was a subjective satisfaction stating that the petitioner is
involved in the said offence. Further it says that the petitioner
was found with the said weapon around 1.50 a.m. Therefore,
there was no question of public involved at such a late night
hours. As regards the in-camera witnesses 'A' and 'B', their
statements have been recorded on 03.11.2023 and 04.11.2023
respectively. They have stated that the offences against them was
committed somewhere in the last week of September 2023. When
such an unusual and scary incident takes place, then definitely
person would remember the date or day. One has taken place at
19.30 hours and another at 21.00 hours giving almost the same
story. By merely stating that due to fear he had not lodged the
report and was desirous of keeping his name secret will not be
sufficient to take cognizance of. Thus, there was no such material
to arrive at a subjective satisfaction before the detaining
authority. The two offences registered against the petitioner and
considered by the detaining authority as well as the two in-
camera statements were definitely not showing that the public
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order would have been breached. As we are coming to the
conclusion that the impugned order is illegal and it cannot be
allowed to sustain, the approval and confirmation thereof by the
Advisory Board and the State Government as well as rejection of
representation of the petitioner cannot be considered in favour of
the respondents.
9. Thus, taking into consideration the above observations and
the decisions of the Hon'ble Apex Court, at the most, the
statements as well as the offences allegedly committed would
reveal that the petitioner had created law and order situation and
not disturbance to the public order. Though the Advisory Board
had approved the detention of the petitioner, yet we are of the
opinion that there was no material before the detaining authority
to categorize the petitioner as a dangerous person or bootlegger.
10. For the aforesaid reasons, the petition deserves to be
allowed. Hence, following order is passed :-
ORDER
I) The Writ Petition stands allowed.
II) The detention order dated 14.11.2023 bearing No.
D.O.2023/MPDA/DET-16/CB-169 passed by respondent
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No.3 as well as the approval order dated 24.11.2023 and the
confirmation order dated 28.12.2023 passed by respondent
No.2, are hereby quashed and set aside.
III) Petitioner - Mangesh Siddharth Jadhav shall be
released forthwith, if not required in any other offence.
IV) Rule is made absolute in the above terms.
[ R. W. JOSHI ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
