Bombay High Court
Sanjay Suresh Tribhuwan vs The District Magistrate Jalgaon Dist ... on 3 October, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:23519-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1078 OF 2024
Sanjay s/o Suresh Tribhuwan
Age: 26 years, Occu.: Labour,
R/o. Wak, Tq. Bhadgaon,
Dist. Jalgaon. .. Petitioner
Versus
1. The District Magistrate Jalgaon,
Dist. Jalgaon.
2. The State of Maharashtra
Through the Additional Chief
Secretary, Government of Maharashtra,
Home Department, Mantralaya,
Mumbai-32.
3. The Jail Superintendent,
Central Prison, Nagpur,
Dist. Nagpur.
Through its Proprietor. .. Respondents
...
Mr. S. B. Yawalkar, Advocate h/f Mr. H. F. Pawar, Advocate for the petitioner.
Mr. G. A. Kulkarni, APP for the respondents - State.
...
CORAM : SMT. VIBHA KANKANWADI &
S. G. CHAPALGAONKAR, JJ.
RESERVED ON : 05 SEPTEMBER 2024
PRONOUNCED ON : 03 OCTOBER 2024
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. S. B. Yawalkar holding for
learned Advocate Mr. H. F. Pawar for the petitioner and learned
APP Mr. G. A. Kulkarni for the respondents - State.
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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 bearing
Outward No. Dandapra/KAVI/MPDA/84/2023 passed by
respondent No.1 on 02.12.2023 as well as the confirmation order
dated 11.01.2024 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,
five offences were considered i.e. Crime No.8 of 2018 registered
with Pachora Police Station, District Jalgaon for the offence
punishable under Sections 395, 324, 120-B of Indian Penal Code,
Crime No.285 of 2020 registered with Bhadgaon Police Station,
District Jalgaon for the offence punishable under Section 379 of
Indian Penal Code, Crime No.139 of 2021 registered with
Bhadgaon Police Station, District Jalgaon for the offences
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punishable under Sections 353, 332, 341, 352, 323, 504, 506,
427 of Indian Penal Code, Crime No.296 of 2021 registered with
Bhadgaon Police Station, District Jalgaon for the offence
punishable under Sections 353, 332, 201, 379, 506, 427 read
with Section 34 of Indian Penal Code and under Section 48(8) of
the Maharashtra Land Revenue Code, 1966 and Crime No.160 of
2023 registered with Bhadgaon Police Station, District Jalgaon for
the offence punishable under Sections 353, 323, 504, 506, 201 of
Indian Penal Code and under Section 142 of the Maharashtra
Police Act, 1951. Learned Advocate for the petitioner submits that
the detaining authority has not considered that there was no live
link. Even the staircases since 2018 were considered for passing
the detention order in December 2023, which is against the
principles laid down by the Hon'ble Supreme Court. Another fact
to be noted is that in respect of in-camera statements, they were
in verbatim, same and equally vague and omnibus. The detention
order has not expressly demonstrated that the detaining
authority has objectively verified the fact and reached to any
conclusion as to how these witnesses were genuine and indeed
were reluctant to come forward to record testimony in open
because of the terror of the detenu. He relies on the decision of
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this Court in Vijay Baburao Avhad Vs. State of Maharashtra
and Others, [AIROnline 2023 BOM 417], wherein it has been
held that in such circumstances, when there is no objective
verification and subjective satisfaction, the detention order is not
sustainable. Another fact to be noted is that in respect of the theft
of sand, in the past, the petitioner has deposited the fine amount
that was imposed, but that was in 2020 and 2021. The detention
order when takes note of staircases also then it shall not be
allowed to be implemented further. The State Government has
illegally approved and then confirmed the order of detention.
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
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affects the public order. Learned APP relies on the affidavit-in-
reply of Mr. Ayush Prasad, the District Magistrate,
Jalgaon/detaining authority. 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 submits that since 2018, the petitioner was consistent in
involving himself in theft of sand and it is dangerous to the
environment. The detaining authority has satisfied itself taking
into consideration the facts in the offences in which the petitioner
is involved and the in-camera statements. In respect of in-camera
statements, the authority has put the endorsement about the
truthfulness of the in-camera statements and that is sufficient
under the circumstance. The informant clearly states that they
were produced before the District Magistrate i.e. the detaining
authority and then the endorsement has been made about the
truthfulness. The petitioner appears to be a sand mafia. He had
also paid the penalty/fine in the past, still he has not stopped his
activities of illegal excavation of sand. The intention behind illegal
excavation, transportation of sand from river bed and river is only
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with an intention to make a business i.e. earn out of selling the
sand. It is now becoming dangerous to the environment, if we
allow the illegal excavation and, therefore, such persons are
definitely required to be detained. Learned APP relies on the
decision in Harish Patil Vs. State of Maharashtra and Others,
[2016 (6) Mh.L.J. (Cri.) 226], wherein in respect of similar
person i.e. person who was illegally excavating sand, note was
taken that on account of smuggling of the sand, water available
had reduced and it has caused disturbance to the ecological
balance. Even the farmers were not attending their fields due to
the fear and threats given by the detenu and, therefore, the
detention order was upheld.
6. Before considering the case, we would like to take note of
the legal position as is emerging in the following decisions :-
(i) Nevanath 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.
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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
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 Nevanath Bujji
etc. (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. The first and the foremost fact to
be noted is that the detaining authority has considered all the
five offences registered against the petitioner. The respondents
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have failed to show the live link. It appears that one more offence
i.e. the sixth offence was also registered against the petitioner on
04.06.2023 i.e. Crime No.160 of 2023 with Bhadgaon Police
Station for the offence punishable under Sections 353, 323, 504,
506, 205 of Indian Penal Code and Section 142 of Maharashtra
Police Act. It appears that on 19.05.2023 vide Crime No.139 of
2023 another offence was registered with Bhadgaon Police Station
for the offence punishable under Section 142 of Maharashtra
Police Act, but it is then stated that the petitioner has not been
arrested in that offence. If he could be arrested on 13.07.2023 in
Crime No.160 of 2023 and it appears that he came to be released
on bail, why he has not been arrested in Crime No.139 of 2023, is
a question. Facts of that offence appears to have not been
considered by the detaining authority. All the matters are stated
to be pending before the Courts, then there is no explanation by
the State as to why in none of the matters the prosecution had
taken steps for cancellation of bail. It will have to be
demonstrated by the State that the ordinary Criminal law and
procedure are not sufficient to curb the activities of the petitioner
and therefore, it was left with no option but to take action under
the detention law, which is said to be draconian in Nevanath
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Bujji (Supra).
8. In-camera statements of witnesses 'A' and 'B' would show
that those witnesses are serving in the Revenue Department.
Witness 'A' says that he was in the squad for patrolling duty and
when they found that the petitioner and his companion were
chasing the vehicle of the patrolling unit, the patrolling unit
stopped the vehicle and asked petitioner as to why he is chasing
them. Then the petitioner gave them threat by saying that they
should do their work and he is doing his work. They should not
seize the petitioner's sand vehicles and if they seize those
vehicles, then he will not allow the persons from the patrolling
party to serve. Thereafter, the petitioner left and then the
patrolling party went for the patrolling. Witness 'B' says that they
had received the confidential information that there is heap of
sand near the Girna River Bank and, therefore, witness 'B' alone
went to the spot for inspection. At that time, the petitioner came
and asked him as to why he has come. Witness 'B' tells him that
he has come to execute panchanama. There was altercation
between him and the petitioner. Petitioner was asking him as to
why he is involved in false offences. Then the petitioner gave
threat to remove said witness from his job and left. Thereafter,
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the said witness called two panchas, executed the panchanama
and did the further act that was required. From these two
statements it can be considered basically that when both of them
were government servants and doing government job, it is
unbelievable that they will not come forward to lodge report
against the petitioner due to fear. In fact, this can be taken as
total failure of the Government machinery to give protection to
their own staff or employee. There was absolutely no subjective
satisfaction that can be arrived at from these two statements to
arrive at a conclusion that the petitioner's behaviour or acts were
creating public order situation. Therefore, the observations in
Vijay Avhad (Supra) would be applicable here. In our considered
opinion, the decision in Harish Patil (Supra) cannot be applied
to the facts of this case taking into consideration the decision by
the Hon'ble Apex Court in Ameena Begum (Supra) and
Nevanath Bujji (Supra) and the facts.
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
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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 is allowed.
II) The detention order bearing outward No.
Dandapra/KAVI/MPDA/84/2023 passed by respondent No.1
on 02.12.2023 as well as the confirmation order dated
11.01.2024 passed by respondent No.2, are hereby quashed
and set aside.
III) Petitioner - Sanjay s/o Suresh Tribhuwan shall be
released forthwith, if not required in any other offence.
IV) Rule is made absolute in the above terms.
[ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
