Bombay High Court
Sheikh Mobin @Moin Sheikh Israil vs The Govt. Of Mah. Thr. Section Officer To ... on 17 October, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:11717-DB
1 wp349.2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.349/2024
Sheikh Mobin @ Moin Sheikh Israil,
Aged about 24 Years, Occupation Labourer,
R/o Bendkipura, Taluka and District
Yavatmal.
(Presently at Yavatmal Prison) ... Petitioner
- Versus -
1. The Government of Maharashtra
through Section Officer to the
Government of Maharashtra, Home
Department, 2nd Floor, Mantralaya,
Madam Kama Road, Hutatma
Rajguru Chowk, Mumbai 400 032.
2. The District Magistrate, Yavatmal.
3. The Superintendent of Police
Yavatmal, Office of Superintendent
of Police, LIC Square, Taluka and
District Yavatmal 445 001. ... Respondents
-----------------
Mr. Vivek Awchat, Advocate for the petitioner.
Mr. A.B. Badar, A.P.P. for respondent Nos.1 to 3.
----------------
CORAM: VINAY JOSHI & MRS.VRUSHALI V. JOSHI, JJ.
DATED: 17.10.2024.
ORAL JUDGMENT (Per Mrs. Vrushali V. Joshi, J.)
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Heard Mr. Vivek Awchat, learned Advocate for the
petitioner and Mr. A.B. Badar, learned A.P.P. for respondent
Nos.1 to 3. Rule.
2. The petitioner has challenged the impugned
detention order dated 24.8.2023 passed by respondent No.2
detaining him under Section 3 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, 1981 which was confirmed by respondent No.1 on 1.9.2023.
3. The detention order is based on two crimes registered
against the petitioner i.e. Crime No.231/2023 punishable under
Sections 457 and 380 of the Indian Penal Code, registered on
5.5.2023 at Police Station, Mahagaon, Yavatmal and Crime
No.418/2023 punishable under Sections 454, 457 and 380 of
I.P.C. registered on 22.5.2023 at Police Station, Yavatmal City.
The detaining authority has also considered two in-camera
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statements of the confidential witnesses "A" and "B" recorded on
19.6.2023 and 20.6.2023 respectively.
4. The grounds of detention which have been
emphasized are as under:
(a) For the commission of second offence i.e.,Crime
No.418/2023, registered on 22.5.2023, the petitioner was
already in the custody of the police authority with respect to the
first one i.e. Crime No.231/2023 which was registered on
5.5.2023. Hence his presence at two long distances cannot be
established. Thus, it vitiates the nexus between the two offences.
(b) The orders granting bail were not supplied to the petitioner
and even not considered while passing the detention order.
(c) The subjective satisfaction is not fulfilled on the ground
that it is nowhere recorded that the order of detention was passed
after interlinking with the officer who has verified the statements
or that the contents were genuine.
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(d) There is also an unexplained delay of about three months in
passing the detention order since the last crime was registered on
22.5.2023 and the detention order was passed on 24.8.2023.
5. The petitioner is detained on the premise that he is an
habitual offender and with his associates have been indulging in
criminal activities and committing serious offences such as giving
death threats, committing house breaking, causing injuries, theft,
abuse and so on. The representation was made by the detenue on
12.2.2024.
6. Learned counsel for the petitioner Mr. Awchat
submitted that for both the offences in which the petitioner was
detained the First Information Reports do not mentioned the
name of the petitioner. He states that both the statements
recorded were of witnesses residing in the city of Yavatmal,
whereas one of the offences was registered at the Mahagaon,
Police Station, Yavatmal.
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7. On the contrary, learned A.P.P. submitted that in
Crime No.231/2023, in the F.I.R the name of the petitioner is not
mentioned as the offence is of house-breaking by night and theft
and complainant might not know the detenue. In police
investigation, police has seized the stolen property from the
petitioner and arrested him on 8.5.2023 in the said offence. He
further submitted that the in-camera statements were personally
verified by the Sub-Divisional Police Officer, Sub Division,
Pandharkawda, Distt. Yavatmal on 30.6.2023. The in-camera
witnesses have given their statements on the assurance that they
would not appear before anybody or in a Court to testify against
the petitioner and their identification will be kept confidential,
the privilege of which the detaining authority can exercise as per
Article 22(6) of the Constitution of India.
8. While passing the order detaining authority has
discussed about the past criminal record of the petitioner but two
recent offences are considered out of which first is Crime
No.231/2023 registered by Mahagaon Police Station for the
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offence punishable under Sections 457 and 380 of Indian Penal
Code. The said crime was committed on 5.5.2023. Second
offence is Crime No.418/2023 for the offence punishable under
Sections 454, 457 and 380 of I.P.C registered by Yavatmal City
Police Station. It was committed on 22.5.2023. Both the
offences were pending for police investigation at that time.
9. The learned Advocate for the petitioner has stated
that the name of this petitioner is not in F.I.R. of both the
offences. Both the offences are about house breaking and
committing theft at night. In first offence, at night grocery shop
was broken and the amount of Rs.5,500/-, mobile phone and
other property of Rs.5,000/- was stolen by the petitioner from the
shop of Naresh Jaiswal. Name of this petitioner was not in F.I.R.
as it was against unknown person. The recovery was from the
petitioner. During investigation his involvement was found and
he was arrested. The offences which are registered against the
petitioner are non-bailable and cognizable offences. Whether the
petitioner was arrested in this crime and whether he was released
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on bail is not mentioned in the grounds. The chargesheet is filed
in this case. On perusal of chargesheet it appears that he was
arrested but whether he was released on bail is not mentioned.
The bail order is not produced on record and it is not considered
while passing the detention order. Therefore, another ground of
the petitioner is that during his custody in first offence, it is not
possible to commit second crime. Hence detention order cannot
be sustained.
10. Second offence is of same nature. The complainant
in said crime is Subhashchandra Zabrmal Agrawal. When couple
went to Pune the servant in their house informed them that lock
of their house is broken and grill was also lifted. Thereafter they
came back and then found that the articles like silver plates,
diamond chain, ear tops and various silver and gold ornaments
and Rs.50,000/- were stolen. Again in F.I.R. his name was not
mentioned. In this case the recovery is from the petitioner only.
Whether the petitioner was released on bail is not mentioned in
the grounds. Therefore as the earlier arrest and the bail order is
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not considered the petitioner has stated that he is falsely
implicated in second offence though he was in jail and he has not
committed the offence and was arrested. During arguments
learned A.P.P. has filed on record bail order in second offence. On
perusal of said bail order there is condition to attend the police
station on every Monday between 10 a.m. to 12 noon until
further orders. The petitioner has breached the condition of bail.
The police ought to have applied for cancellation of bail but no
action was taken.
11. The order was passed on 24.8.2023 the petitioner
was arrested on 6.1.2024. In reply the reason is given that the
petitioner was absconding after passing the order of detention. As
per Section 7 procedure is given if the detenue is absconding after
passing the detention order. Learned Advocate for the petitioner
has relied on the decision in case of Mohd. Azim S/o Abusalim
Khan V/s. R.H. Mendonca and another reported in 2000 (2)
Mh.L.J. 539, particularly para 8 which reads as under:-
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" 8. With regard to the failure on the part of the
Detaining Authority to apply for cancellation of bail this
Court, in 1998 All.M.R. (Cri) 928, in para 14 has observed
thus:-
"The failure of the detaining authority to apply for
cancellation of bail has been frowned upon by the
courts and has been construed to mean that the
authorities were not serious to serve the detention
order on the detenu."
In the said para, this Court has quoted from the
decision of the Supreme Court, P.M. Harikumar v.
Union of India and others, wherein in para 13 the
Apex Court has held that "if the respondents were
really sincere and anxious to serve the order of
detention without any delay, it was expected of them,
in the fitness of things, to approach the High Court
or the Court which granted the bail for its
cancellation".
12. The detaining authority has not considered the bail
order in earlier offence and in second offence though the order is
filed on record the petitioner has jumped the bail but no action
has been taken by the authority. In our view the failure on the
part of the authority to apply for cancellation of bail also creates a
doubt on the genuineness of the subjective satisfaction of the
detaining authority to detain the petitioner under the M.P.D.A.
Act.
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13. From the confidential statements on which the
detaining authority has relied, it is seen that statement of witness
"A" is recorded on 19.6.2023 who has stated that when he was
coming at night at about 2.30 a.m. the petitioner, who was known
to him, was concealing himself along with one person and when
he asked him what he is doing there, at that time, he took the
knife from his waist and asked him to do his own work otherwise
he would kill him. As he was scared he has not given any report.
The said statement was recorded in presence of Superintendent of
Police, Yavatmal. It is not mentioned who has recorded it and it is
not verified. It appears that to complete the formality the
Commissioner of Police has directly verified it by calling him and
has stated that he is satisfied about the truthfulness of the
statement. The detaining authority has also verified it. On going
through the original statement it is seen that the statement is not
verified by the Superintendent of Police or the person who has
recorded it but he has only signed it as 'in his presence' and the
Sub-Divisional Commissioner has verified it. The proper
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procedure is not followed. The mere formality is completed by
the detaining authority.
Another statement of witness "B" is recorded on
20.6.2023. It is verified on 30.6.2023 by the Sub-Divisional
Commissioner, Pandharkawda and it is recorded in presence of
Superintendent of Police but he has not verified it.
14. For the above reasons, both the statements cannot be
considered for passing the detention order as it was a mere
formality of recording of statements.
15. The petitioner has also relied on the judgment passed
by this Court in Writ Petition No.867/2023 (Vaibhav @ Jaharila
S/o Ambadas Jambhulkar V/s. The Government of Maharashtra
and others) delivered on 15.4.2024 in support of his argument
that there is subjective satisfaction about the truthfulness of the
statements on which the detaining authority has relied. Petitioner
has also relied on the judgment in Writ Petition No.848/2023
(Kishor Shankar Katare V/s. The State of Maharashtra and others)
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delivered on 21.3.2204 wherein this Court has observed in paras
7 and 8 as follows:-
"7. In case of Sheikh Hussain @ Shahrukh
Shaikh Fatru Vs. State of Maharashtra reported in
2023 DGLS (Bombay) 1318 this Court has held in
similar fact and situation, wherein it has observed
that the detaining authority must record its
subjective satisfaction that the statements of
witnesses were genuine and that it had interacted
with Assistant Commissioner of Police to verify
such a statement.
8. Applying the ratio laid down in Sheikh
Hussain (supra) to the present case, wherein the
authority has nowhere recorded its satisfaction that
it has passed the order after interlinking with the
officer who has verified the statements or that it
was satisfied that the contents were genuine, we
have no alternative left but to hold that such
statements could not be relied upon as material for
passing the detention orders."
16. In the light of the above discussion in forgoing
paragraphs we are of the considered opinion that the writ petition
deserves to be allowed. Hence the following order.
17. The impugned order dated 24.8.2023 passed by
respondent No.2 and confirmed by respondent No.1 on 1.9.2023
is quashed and set aside.
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The petitioner be released forthwith, if not required
in any other crime.
(MRS.VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PA To Honourable Judge
Date: 18/10/2024 14:36:57
