Bombay High Court
Rabjyotsingh @ Gabya Jasavindarsingh ... vs The State Of Maharashtra And Others on 23 October, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:26609-DB
wp-1294-2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1294 OF 2024
Rabjyotsingh @ Gabya Jasavindarsingh Tiwana,
Age; 24 years, Occu.: Labour,
R/o. Baba Nidanshingh
Colony, Bhagatsingh Road,
Nanded, Tq. And Dist. Nanded. .. Petitioner
Versus
1. The State of Maharashtra
Through its Section Officer,
Home Department (Special),
Mantralaya, Mumbai-32.
2. The District Magistrate,
Nanded, Tq. And Dist. Nanded.
3. The Superintendent of Jail,
Central Jail, Harsool, Aurangabad,
Dist. Aurangabad .. Respondents
...
Mr. S. S. Gangakhedmar, Advocate for the petitioner.
Mr. G. A. Kulkarni, APP for the respondents - State.
...
CORAM : SMT. VIBHA KANKANWADI &
S. G. CHAPALGAONKAR, JJ.
DATE : 23 OCTOBER 2024
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. S. S. Gangakhedkar for the
petitioner and learned APP Mr. G. A. Kulkarni for respondents -
State.
wp-1294-2024.odt
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
29.03.2024 bearing No.2024/RB-1/Desk-2/T-4/MPDA/CR-33
passed by respondent No.2 as well as the approval order dated
08.04.2024 and the confirmation order dated 31.05.2024 passed
by respondent No.1, 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,
only one offence was considered i.e. Crime No.61 of 2024
registered with Itwara Police Station, District Nanded for the
offence punishable under Section 143 of Indian Penal Code and
under Section 4 punishable under Section 25 of the Indian Arms
Act. Learned Advocate for the petitioner submits that both the
cases which were considered for passing the detention order were
under investigation. It has been held by this Court in Rama
wp-1294-2024.odt
Mariba Devkar Vs. The State of Maharashtra and others,
[Criminal Writ Petition No.1007 of 2024 decided by this
Court on 05.09.2024], that the detaining authority should see
whether Notification under Section 4 of the Arms Act has been
issued by the Central Government prohibiting a particular
weapon in a particular area. Such Notification was not placed
before the detaining authority by the sponsoring authority and
therefore, it cannot be said that there was a subjective
satisfaction. Here, in this case also such Notification has not
been produced, nor it was made available to the petitioner. A
specific ground was also raised in the petition that the
statements of in-camera witnesses 'A' and 'B' were not supplied to
the petitioner. In the affidavit-in-reply, this point has not been
clarified or denied. When vital documents have been withheld by
the detaining authority from the petitioner, such order cannot be
allowed to sustain. One more ground that was raised is that the
documents which were supplied contains many illegible pages. It
was the bounden duty of the detaining authority to supply legible
copies. On this count also, the impugned order suffers.
5. Per contra, the learned APP strongly supports the action
taken against the petitioner. He submits that the petitioner is a
wp-1294-2024.odt
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 of
Mr. Abhijit Rajendra Raut, the District Magistrate, Nanded,
wherein he has tried to support his order by giving the details
which according to him led to his subjective satisfaction. The
petitioner always carries weapons like Khanjar, Sword and even
certain times pistol and therefore, the material that was placed
before the detaining authority was sufficient to arrive at a
conclusion that ordinary legal course would not have stopped the
activities of the petitioner.
6. Before considering the case, we would like to take note of
the legal position as is emerging in the following decisions :-
wp-1294-2024.odt
(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
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
wp-1294-2024.odt
(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. Certainly, those observations from Rama
Mariba Devkar (Supra) by this Court are required to be taken
into consideration. Here, only one case which was considered for
passing the detention order was stated to be under Section 143 of
the Indian Penal Code and under Section 4 punishable under
Section 25 of the Indian Arms Act. As regards the said i.e. Crime
No.61 of 2024 is concerned, it was stated that a video was made
public, wherein the petitioner had gathered along with his
associates in front of his house. They had cut cake, screamed
and bursted fire crackers. In fact, coming together, cutting cake,
even screaming and bursting fire crackers independently cannot
amount to offence unless the circumstances showed that it was
with an intention to spread terror. The FIR does not say as to
whether slogans were shouted at that time. Further, it is stated
that the said cake was cut by a dagger. Now, when the
investigation is still going on and the action of lodging the FIR is
taken only on the basis of video, the detaining authority ought to
have waited for investigation to be complete. Unless the gathering
wp-1294-2024.odt
of people is with an intention to commit an offence, ingredients of
Section 143 of Indian Penal Code will not get attracted. Now, the
prosecution wants to say that the offence which was intended to
create or commit was under Section 4 punishable under Section
25 of the Indian Arms Act. For that purpose, then the Notification
which is mandatory to be issued under Section 4 by the Central
Government or if there are rules then with permission or
delegation of authority from the Central Government, by the State
Government upon authorization, was necessary. The impugned
order does not say that such Notification was placed before the
detaining authority and it was considered by respondent No.2.
The documents on record would show that the FIR came to be
lodged on 10.03.2024 and it is stated that on 09.03.2024 around
8.00 p.m., the police authority had seen the video that was
posted on Instagram. It is then stated that from the sources, it
was noted that the incident in the video was around 3.00 a.m. of
09.03.2024. Who had posted that video on the Instagram was
not revealed till the detention order was passed. On 10.03.2024
then it is stated that one Khanjar has been seized from the
petitioner. The seizure document does not show or mention from
where that weapon was taken out by the petitioner and produced
wp-1294-2024.odt
before the police officer. When the detaining authority is taking
such a drastic step under detention laws, then the subjective
satisfaction cannot be only on the face value of documents.
Petitioner was arrested on 11.03.2024 at 14.41 hours. Another
interesting point to be noted is that in the said video, certain
other persons were also seen. The documents which were
supplied to the petitioner would show that the notice under
Section 41-A(1) of the Code of Criminal Procedure was given to
other accused persons. Only on the basis of earlier offences, it
appears that the petitioner was arrested. When detention order
is passed against the petitioner on the basis of one offence and
the other two in-camera statements and in the said offence there
were other accused persons also, then it appears that the
sponsoring authority has adopted pick and choose method
against the petitioner. We are therefore of the opinion that the
material that was before the detaining authority was not
sufficient to arrive at a subjective satisfaction and also not
sufficient to take action under the detention laws. There is
absolutely no answer to the grounds raised by the petitioner that
the copies of in-camera statements were not made available to the
petitioner and legible copies of the documents were not supplied
wp-1294-2024.odt
to him.
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 is allowed.
II) The detention order dated 29.03.2024 bearing
No.2024/RB-1/Desk-2/T-4/MPDA/CR-33 passed by
respondent No.2 as well as the approval order dated
08.04.2024 and the confirmation order dated 31.05.2024
passed by respondent No.1, are hereby quashed and set
aside.
wp-1294-2024.odt
III) Petitioner - Rabjyotsingh @ Gabya Jasavindarsingh
Tiwana 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
