Gajanan Kashinath Kamble vs State Of Mah. Thr. Pso Home ...
2024 Latest Caselaw 26148 Bom

Bombay High Court

Gajanan Kashinath Kamble vs State Of Mah. Thr. Pso Home ... on 4 October, 2024

Author: Vinay Joshi

Bench: Vinay Joshi

2024:BHC-NAG:11149-DB
                                                 1/8                    Cri.W.P. 424 of 24




                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  NAGPUR BENCH, NAGPUR.

                           CRIMINAL WRIT PETITION NO.424 OF 2024

                         Gajanan Kashinath Kamble, Aged 49
                         years, R/o Panchashil Nagar, Washim,
                         Bypass Road, Old City, akola.                       Petitioner
                                          -Versus-
                1.       The State of Maharashtra, through
                         Section Officer of the Home Department
                         (Special), Second Floor, Main Building,
                         Mantralaya, Mumbai.
                2.       Collector and District Magistrate, Akola
                         Office of the Collector and district Magis-
                         trate, dist.Akola.                                    Respondents

               ---------------------------------------------------------------------------
                      Shri Sangram Vikas Sirpurkar, counsel for the Petitioner.
                          Ms.S.S.Jachak, APP for Respondent Nos.1 and 2.
               ---------------------------------------------------------------------------
                                  CORAM : VINAY JOSHI AND
                                                 MRS.VRUSHALI V. JOSHI, JJ.
                                   Date of Reserving the judgment:- 27/09/2024
                                   Date of Pronouncing the judgment:- 04/10/2024
               ORAL JUDGMENT (Per :Vrushali V.Joshi, J.)

               1)           Heard.


               2)            Rule. Rule made returnable forthwith. The Criminal Writ

Petition is heard finally with the consent of the learned counsels

appearing for the parties.

               Kavita
                             2/8               Cri.W.P. 424 of 24



3)          The challenge in this Writ Petition is to the impugned

detention order dated 26.02.2024 and confirmation order dated

05.03.2024 detaining the petitioner preventively in terms of

Section 12(1) of the Dangerous Activities of Slumlords,

Bootleggers, Drug Offenders, Dangerous Person, Video Pirates,

Sand Smugglers and Persons Engaged in Black-Marketing of

Essential Commodities Act, 1981 (for short MPDA).

4) Heard the learned counsel appearing for the petitioner

and the learned APP for the State.

5) The learned counsel appearing for the petitioner

challenges the impugned order, which appears to have been

confirmed by the State Government by an order dated 05.03.2024

on the ground that the impugned order passed by the detaining

authority on 26.02.2024 is based on the non-application of mind.

The irrelevant material supplied and considered by the detaining

authority. The grounds of detention, which have been given

appeared to have been based on two crimes: Crime No.465 of

2023 for the offence punishable under Section 327, 324, 294, 506

r/w 34 of the Indian Penal Code and Crime No.447 of 2023 for

Kavita 3/8 Cri.W.P. 424 of 24

the offences punishable under Sections 324, 323, 427, 504 and

504 r/w 34 of the Indian Penal Code. The detaining authority has

also considered the in-camera statements of two witnesses. Both the

offences are still under investigation. The petitioner was on

anticipatory bail in one offence and in another offence, the notice

under Section 41-A was given. The Police have not arrested him in

second offence but it is not considered by the authority. There was

no proper verification of in-camera statements by the detaining

authority. It is seen and verified but there is no remark that the

verification has been properly done. There is delay in passing the

detention order from the date of last crime. Therefore, the

detention order is illegal and deserves to be set aside.

6) Per contra, the learned Additional Public Prosecutor

submitted that the well reasoned order has been passed while

authorising the detention of the petitioner. The petitioner was

involved in both the offences. Even preventive action was taken

against him from time to time. When he was externed, during that

period he has committed second offence. Further, in-camera

statements would show that in both the incidents, threats were

Kavita 4/8 Cri.W.P. 424 of 24

given in public. This is nothing but an act to establish supremacy

by creating terror in the mind of people at large, so that the

petitioner can continue his illegal activities. Hence prayed to reject

the Writ Petition.

7) Two crimes are considered by the authority for passing

the detention order. According to the learned counsel for the

petitioner, there is non-application of mind and irrelevant material

is supplied and considered by the detaining authority.

8) In Crime No.465 of 2023, the offence under Section

327,324,294, 506 r/w 34 of the Indian Penal Code was registered.

The offence is committed on 09.12.2023. The complainant is

Mohd. Imran Sheikh Rasul. It is alleged that when he was at

Washim Road, Akola with Firoz, the petitioner came there with his

two associates and by abusing him asked him in filthy language

why he had not attended his birthday. When the complainant

asked him why he is abusing him, the petitioner and his associates

beat him and asked him to pay the expenses of his birthday

function. The petitioner and his companions beat him with

Kavita 5/8 Cri.W.P. 424 of 24

wooden log and rafter and they threw the soil in his eyes.

Thereafter, he has made the complaint and the crime is registered.

9) On perusal of the grounds for detention, it appears that

the detaining authority has considered the bail order passed by the

Sessions Court, Akola on 12.12.2023. On perusal of the said bail

order it appears that the detaining authority has considered the bail

order of the another accused while passing the detention order of

this petitioner. At page No.180 of the grounds of detention, the

bail order is attached of dated 12.12.2023. The regular bail was

granted to the co-accused and it was considered by the detaining

authority. The petitioner was granted anticipatory bail in said

offence as the compromise took place between the complainant and

the petitioner. Said order is also placed on record, but it is not

considered therefore, the submissions made by the learned counsel

for the petitioner have substance that the irrelevant material is

considered by the authority and mechanically, the order is passed.

10) In another offence, as the punishment was within seven

years, the notice was issued and the offence is under the

investigation. The learned counsel for the petitioner has relied on

Kavita 6/8 Cri.W.P. 424 of 24

the judgment of this Court as well as Hon'ble Supreme Court in

support of his argument, which are follows:-

1. Tanvir Shaha Alim Shaha .V. State of Maharashtra (Cri.W.PNo.118 of 2024 (Bombay High Court Nagpur Bench.)

2. Kasam Kalu Nimsurwale .V. State of Maharashtra Cri. W.P.No.269 of 2022 (Bombay High Court, Nagpur Bench)

3. Elizabeth Ranibhai Prabhuds Gaikwad .Vs. State of Maharashtra 2021 SCC Online Bom.206.

4. Hanif @ Illu Hafiz Ansari .V.State of Maharashtra Cri. W.P.No.546 of 2023 (Bombay High Court, Nagpur Bench.

5. Osama Mohd. Rafique Patka .V. State of Maharashtra Cri. W.P.No.64 of 2024 (Bombay High Court, Nagpur Bench).

6. Bhikan Buddhu Naurangabadi .V. State of Maharashtra Cri.W.P. No.476 of 2021 (Bombay High Court, Nagpur Bench).

7. Paras Ramprasad Sahu V. State of Maharashtra 2003(3) Mh.L.J.24.

8. Rushikesh Tanaji Bhoite Vs. State of Maharashtra 2012 (2) SCC 72.

9. Indragoal Debaji Ramchawre V.State of Maharashtra Cri. W.P.No.477 of 2021 (Bombay High Court, Nagpur, Bench).

Kavita 7/8 Cri.W.P. 424 of 24

10. Latabai w/o Ganpat Kale .V. State of Maharashtra Cri. W.P.No.417 of 2024 (Bombay High Court, Nagpur, Bench).

11. Mohd. Mubarak s/o Mohad. Umar Vs.State of Maharashtra 2001 SCC OnLine BOM 439.

12. Vasudeo Mahadev Surve V. State of Maharashtra Cri. W.P.No.592 of 2021 (Bombay High Court, Nagpur,Bench.

11) The learned APP has made a submission that the

accused has committed the another offence, when the externment

order was operating against him. The petition filed by the

petitioner challenging the said order is withdrawn as the

externment period was over.

12) If one of the grounds raised by the petitioner about delay

in passing the detention order is considered, there is absolute no

much gap which can be termed as delay. The time will not start to

run from the date of last offence that was registered. For

considering the delay we will have to consider the time till last

offence, then the in-camera statement verification by Superior

Police Officer and also by detaining authority. The statement was

recorded on 20.02.2024 for the incident of December 2023. There

is no date under the signature of the authorities singed and

Kavita 8/8 Cri.W.P. 424 of 24

verifying the statements. Considering the time period started from

the date of recording of statement, there is no delay in passing the

detention order. As the detaining authority has mechanically passed

the order without considering the bail order of this petitioner, the

order passed by the detaining authority stands vitiated.

13) In the result, we find that this Writ Petition deserves to

be allowed and it is allowed accordingly.

14) The detention orders dated 05.03.2024 and

26.02.2024 passed by the respondents is quashed and set aside.

15) The petitioner be set at liberty forthwith, if not

required in any other crime.

16) Rule is made absolute in aforesaid terms.

                              (MRS.VRUSHALI V. JOSHI, J)                      (VINAY JOSHI, J)




Signed by: Kavita P Tayade
Designation: PA To Honourable Judge
Date: 07/10/2024 17:23:05     Kavita