Bombay High Court
Vrushabhh @ Vrushikesh @Jabba Umeshrao ... vs The State Of Maharashtra Thr. Its ... on 3 October, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:11254-DB
1 crwp.239.24-J.odt
N THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 239 OF 2024
Vrushabhh @ Vrushikesh @ Jabba
Umeshrao Wankhade,
Aged about 24 years, Occ.- Labour,
R/o. Ramakrishnanagar, Mulaki, ... PETITIONER
Yavatmal.
...VERSUS...
1. State of Maharashtra,
Through its Secretary, Home Department
(Special), Mantralaya, Mumbai.
2. Collector/District Magistrate, Yavatmal. ... RESPONDENTS
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Mr. Mir Nagman Ali, Advocate for Petitioner.
Smt. S.S. Jachak, APP for Respondents/State.
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CORAM : VINAY JOSHI AND MRS. VRUSHALI V. JOSHI, JJ.
JUDGMENT RESERVED ON : 25.09.2024
JUDGMENT PRONOUNCED ON : 03.10.2024
JUDGMENT (PER : MRS. VRUSHALI V. JOSHI, J.):
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1. Rule. Rule is made returnable forthwith. Heard finally by consent of
learned counsel appearing for the parties.
2. By way of this petition, the petitioner has challenged the detention
order dated 11.01.2024 passed by respondent No.2 under Section 3(2) of
the Maharashtra Prevention of Dangerous Activities of Slumlords,
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Bootleggers, Drug-Offenders, Dangerous Persons and Video Pirates, Sand
Smugglers and Persons Engaged in Black Marketing of Essential
Commodities Act, 1981 (the MPDA Act, 1981), which was confirmed by the
respondent No.1 for a period of one year.
3. A proposal was sent to the detaining authority through the
Superintendent of Police, Yavatmal and Sub-Divisional Police Officer, Sub-
Division, Yavatmal, co-jointly on 19.12.2023. The petitioner is alleged of
indulging into certain criminal activities since the year 2018 to 2023 which
comprises of creating terror by possessing a dangerous weapon, threatening
to kill, verbal abuse, extortion, inculcating the habit of alcohol consumption
among young within the community.
4. Shri Ali, learned Counsel for the petitioner submitted that the
detention order passed by the Collector/District Magistrate, Yavatmal, was
without personally seeing and verifying the truthfulness of the in-camera
statements. He submitted that, the in-camera statements do not give the
details of the date of incidence. The learned Counsel submitted that in
Crime No. 1259/2023, the order granting the bail has not been placed
before the detaining authority but only the bail application. The learned
Counsel for the petitioner placed reliance on the contention that old and
stale offences have been taken into account which have no bearing on the
live link to pass the impugned order. He further submitted that the
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subjective satisfaction is vitiated as the statements are related to individual
incidents and in no manner disturbs the public order.
5. Learned A.P.P, Smt. Jachak, vehemently opposed the submissions of
the petitioner and relied upon the affidavit-in-reply. Learned A.P.P
submitted that, respondent No.2 has seen and perused the statements of in-
camera witnesses and verified the statements on 05.01.2024 before passing
the detention order from Police Inspector, Police Station, Awdhutwadi,
Yavatmal and Sub-Divisional Police Officer, Umarkhed who have personally
verified these statements. She further submitted that as per the documents
provided by the Police Authority along with the proposal of detention of the
petitioner, in Crime No.1259/2023, it contained injury certificate which is
provided to the detenue. Learned A.P.P submitted that the copy of the bail
order in Crime No.1259/2023 is not supplied by the Superintendent of
Police, Yavatmal, however, the bail application along with the proposal and
the detention order with grounds have been put-forth before the detaining
authority. She further submitted that date of incident and location of the
incidents are not disclosed in order to keep the identity of the witnesses
confidential as per Article 22 (6) of the Constitution. Therefore, there is no
substance in the grounds raised by the petitioner. Hence, prayed to dismiss
the petition.
6. Heard both learned Counsel for the parties.
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7. The challenge to the detention order is on the ground of public order
and delay in passing the detention order. The provisions of Act are intended
to deal with habitual criminals, dangerous and desperate outlaws who are
so hardened and incorrigible that the ordinary provisions of the penal laws
and fear of punishment for crime are not sufficient deterrents for them.
Section 3 of the Act is, therefore, intended to deal with such criminals who
cannot readily be apprehended to be booked under the ordinary law and
who for special reasons, cannot be convicted under the penal laws in
respect of the offences alleged to have been perpetrated by them. In order
to pass an order of detention under the Act against any person the detaining
authority must be satisfied that he is a "dangerous person" within the
meaning of Section 2(c) of the Act who habitually commits, or attempts to
commit or abets the commission of any of the offences punishable under
Chapter XVI and XVII of the Penal Code or any of the offences punishable
under Chapter V of the Arms Act as according to Sub-Section 4 of Section 3
of the Act, it is such "dangerous person" who for the purpose of Section 3
shall be deemed to be a person "acting in any manner prejudicial to the
maintenance of public order" against whom an order of detention may
lawfully be made.
8. Section 3(1) of the Act confers power on the State Government and a
District Magistrate or a Commissioner of Police under the direction of the
State Government to detain a person on being satisfied that it is necessary
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to do so with and view to preventing him from acting in any manner
prejudicial to the maintenance of "public order". The "public order" shall
be deemed to have been affected adversely or shall be deemed likely to be
affected adversely inter alia if any of the activities of the person referred to
in Sub-Section 4 directly or indirectly, are causing or is likely to cause any
harm, danger or alarm or feeling of insecurity among the general public or
any Section thereof or a grave or widespread danger to life, property or
public health.
9. The Hon'ble Apex Court in the case of Mustakmiya Jabbarmiya
Shaikh Vs. M. M. Mehta, Commissioner of Police [1995 DGLS (SC) 389] has
observed that, if the activity falls within the category of disturbance of
"public order" then it becomes essential to treat such a criminal and deal
with him differently than an ordinary criminal under the law as his
activities would fall beyond the frontiers of law and order, disturbing the
even tempo of life of the community of the specified locality. In the case
of Arun Ghose v. State of West Bengal this Court had an occasion to deal
with the distinction between law and order and public order. Hidayatullah,
C.J. (as he then was), speaking for the Court observed that public order
would embrace more of the community than law and order. Public order is
the even tempo of the life of the community taking the country as a whole
or eves a specified locality. Disturbance of public order is to be
distinguished from acts directed against individuals which do not disturb
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the society to the extent of causing a general disturbance of public
tranquility. It is the degree of disturbance and its effect upon the life of the
community in a locality which determines whether the disturbance amounts
only to a breach of law and order. If any act of a person creates panic or
fear in the minds of the members of the public upsetting the even tempo of
life of the community, such act must be said to have a direct bearing on the
question of maintenance of public order. The commission of an offence will
not necessarily come within the purview of public order which can be dealt
with under ordinary general law of the land.
10. In view of the above discussion, we have to consider the crimes
considered for passing the detention order. Two crimes and two statements
are considered for passing the detention order. Crime No.1259/2023 is
registered for the offence punishable under Sections 307, 504, 506 of the
Indian Penal Code. The first informant was standing in front of his house
on the date of the incident. The detenue came there with knife in his hand
and he asked the first informant where is his son Suraj Netam. At that time,
Suraj was not at home. Therefore, the detenue left the place. The first
informant followed the detenue and the detenue has stabbed his son Suraj
at his waist. The petitioner abused him and threatened to kill him.
Therefore, the first informant left the home. The crime is registered against
the petitioner. He was released on bail in said offence. At the time of
passing the order, the crime was pending for investigation.
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11. On perusal of the contents of the First Information Report, it appears
that it is against the individual and not against the public at large. The bail
order is also considered while passing the order.
12. Another offence Crime No.1266/2023 is registered for the offence
punishable under Sections 4 and 25 of the Arms Act. The information
received to the Police Constable that one person is coming towards Vande
Mataram Chowk, Near Bhosa Road, the name is also mentioned by the
informant i.e. Jabba Wankhade is roaming on the road with koyata (sickle).
He is carrying it in one bag. Thereafter, the police went there and seized
the sickle, which was in the plastic bag and was wrapped in paper. The
police seized it and the offence punishable under Sections 4 and 25 of the
Arms Act is registered. Though the offence is registered for carrying the
weapon and allegations are made about brandishing it in the public road,
but it appears that the petitioner was not creating threats by showing it or
carrying it in the hand. It was in the plastic bag and even wrapped in
paper. It was not visible. Therefore, it creates doubt in the mind about
creating threats in public at large.
13. The statements of two confidential witnesses are considered for
passing the detention order. The statements are recorded on 11.12.2023
and 13.12.2023. They are about extortion and giving threats. On perusal of
it, it appears that the Superintendent of Police has signed it but date is not
8 crwp.239.24-J.odt
mentioned. The Sub-Divisional Police Officer has also signed it without
mentioning the date. Though it is stated by the learned A.P.P. that the
verification by the Superintendent of Police or Divisional Officer is sufficient
and if it is mentioned in the affidavit by the authority that it is verified by
discussing it while passing the detention order that is sufficient, it is not
necessary that the detaining authority should personally verify it. On
perusal of the grounds of the detention it appears that it is not specifically
mentioned by the detaining authority that he has discussed with the Sub-
Division Police Officer or the Superintendent of Police about the
truthfulness of statements.
14. On considering the incident in the statements, it reveals that it does
not create any situation of law and order and it is against the individual.
Therefore, considering the judgment passed by the Hon'ble Apex Court in
Kanu Biswas vs. State of West Bengal [(1972) 3 SCC 831] wherein the
observations are about what constitute "breach of public order" or "breach
of law and order" is given in detail. The contents of the statements and the
crimes considered against the petitioner, does not create breach of public
order.
15. The petitioner has also relied on the judgment of Mallada K. Sri Ram
Vs. State of Telangana [Live Law (SC) 358] passed by this Court in support
of his contention.
9 crwp.239.24-J.odt
16. It clearly shows that neither of the incidents which were referred to
in the above two crimes, can be termed as incidents which have caused
alarm to the citizens or that any citizen was living under the fear of the
petitioner disturbing daily life in the vicinity or that he had indulged in an
act which could be disruptive of public order. Both the incidents are either
between two individuals or merely on a search carried out by the Police and
are, therefore, not incidents which can be considered as disruptive of public
order.
17. Even going through the incidents described in two in-camera
statements would reveal that the acts of the petitioner could be perhaps in
the nature of extortion form of threats to an individual, but cannot be
termed to be acts disruptive of public order.
18. The another ground for challenging the detention order is about
delay in passing the detention order. The order is passed on 11.01.2024.
The last crime, which is considered by the detaining authority is of dated
05.10.2023. Even if, we consider that the period shall be considered from
the date of the recording of statements, the statements were recorded on
11.12.2023 and 13.12.2023 and verified by the Sub-Divisional Police
Officer and the Superintendent of Police but there is no date below the
signature. The incident mentioned in the statement of witness "A" does not
disclose any period. In the statement of witness "B", the incident is
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mentioned 2 to 3 months before recording of statement. Even after
considering the dates mentioned in the confidential statements, there is
delay in passing the detention order.
19. In view of above observations, we hold that the contents of in-camera
statements in any case do not justify holding that the incidents are
disturbance to public order besides which in any case there was no
subjective satisfaction of the detaining authority. There is delay in passing
the detention order.
20. In the result, the petition is allowed.
We hereby quash and set aside the order dated 11.01.2024 passed by
respondent No.2, so also order dated 29.02.2024 confirmed by respondent
No.1 and direct the detenue to be set at liberty forthwith, unless his
detention is required in some other crime.
21. Rule is made absolute in aforesaid terms.
(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
RGurnule
Signed by: Mrs. R.M. MANDADE
Designation: PA To Honourable Judge
Date: 09/10/2024 16:28:07
