Bombay High Court
Mukesh Shyam Shinde vs The District Magistrate And Other on 23 October, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:26608-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1206 OF 2024
Mukesh s/o Shyam Shinde
Age: 22 years,
R/o. Village Shingoli,
Dist. Dharashiv. .. Petitioner
Versus
1. District Magistrate,
Dharashiv.
2. The State of Maharashtra
(Through the Secretary Home
Department (Spl.)
Mantralaya, Mumbai.
3. The Superintendent
Chhatrapati Sambhajinagar
Central Prison. .. Respondents
...
Mr. R. A. Jaiswal, Advocate for the petitioner.
Mr. V. K. Kotecha, 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 learned Advocate Mr. R. A. Jaiswal
for the petitioner and learned APP Mr. V. K. Kotecha 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 dated
12.04.2024 bearing No.2024/UPCHITNIS/MAG-3/KAVI-159
passed by respondent No.1 as well as the approval order dated
22.04.2024 and the confirmation order dated 07.06.2024 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 all the nine offences, which were registered
against the petitioner, were considered for passing the impugned
order i.e. (i) Crime No.201 of 2019 for the offences punishable
under Sections 326, 143, 147, 148, 149 of Indian Penal Code, (ii)
Crime No.258 of 2019 for the offence punishable under Section
379 of Indian Penal Code, (iii) Crime No.295 of 2019 for the
offences punishable under Sections 324, 323, 504, 506 of Indian
Penal Code, (iv) Crime No.14 of 2021 for the offences punishable
under Section 160 of Indian Penal Code, (v) Crime No.346 of 2022
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for the offences punishable under Sections 336, 337, 427 of
Indian Penal Code, (vi) Crime No.370 of 2022 for the offences
punishable under Sections 452, 324, 323, 504 read with Section
34 of Indian Penal Code, (vii) Crime No.71 of 2023 for the offence
punishable under Section 85(1) of the Maharashtra Prohibition
Act, (viii) Crime No.241 of 2023 for the offence punishable under
Section 354-D, 504, 506 read with Section 34 of Indian Penal
Code, (ix) Crime No.401 of 2023 for the offence punishable under
Sections 324, 323, 504, 506 read with Section 34 of Indian Penal
Code. All the aforesaid offences have been registered with
Anandnagar Police Station, District Osmanabad. Learned
Advocate for the petitioner submits that the impugned order
suffers from live link. The petitioner is involved in nine offences
since 2019 and all have been considered by the detaining
authority for passing the detention order. Even offence under
Section 160 of Indian Penal Code has been considered i.e. for
committing an affray for which punishment is imprisonment for
either description for a term which may extend to one month or
with fine which may extend to one hundred rupees, or with both.
The second ground is that the in-camera statements of which
copy is provided would show that those statements are copy paste
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statements, which were recorded on 19.09.2023. The last offence
alleged to be committed by the present petitioner was on
06.11.2023, which was still under investigation on the date of
impugned order dated 12.04.2024 and it was under Sections 324,
323, 504, 506 read with Section 34 of Indian Penal Code. Even
from that day also there was no live link. The impugned order
does not say that ordinary law would not have curtailed the
activities of the petitioner. In all the other eight offences which
are pending before the Court, the petitioner has been released on
bail. At no point of time the prosecution has undertaken the
action of cancellation of bail after committal of the further offence
as alleged. There is inordinate delay in passing the impugned
order and, therefore, the detaining authority has neither arrived
at any subjective satisfaction, nor the order can be said to be
legal. It ought not to have been confirmed by the State
Government as well as by the Advisory Board.
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
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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-in-
reply of Dr. Sachin Ombase, the District Magistrate, Dharashiv.
His affidavit reiterates that all the offences were considered by
him and he has demonstrated as to how he has arrived at the
subjective satisfaction. Taking into consideration the continuous
criminal activities, he has arrived at the conclusion that the
ordinary law would not have been sufficient to curtail 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 :-
(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
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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
(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 which
respondent No.2 forgot or has not taken note of the legal position
is that there should be a live link between the activities of the
detenu and the detention order. All the offences which were
stated to have been committed on 21.07.2019 till 06.11.2023
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were considered while passing the impugned detention order on
12.04.2024. There was absolutely no live link between those
offences and the detention order. Another fact to be noted is that
the confidential statements of witness 'A' and 'B' were recorded on
19.09.2023. They were verified by Sub Divisional Police Officer
on 09.11.2023 and then it went back to the sponsoring authority
(under which circumstances, is not made clear in the affidavit-in-
reply), but then the proposal was forwarded by the sponsoring
authority to Sub Divisional Police Officer on 16.12.2023. He
forwarded the same to Superintendent of Police, Dharashiv on
19.12.2023. Superintendent of Police, Dharashiv forwarded it to
detaining authority i.e. District Magistrate on 02.02.2024. Now,
this delay from 19.12.2023 to 02.02.2024 has not been explained
by filing affidavit of Superintendent of Police, Dharashiv. After it
was forwarded by Superintendent of Police to District Magistrate,
Dharashiv, District Magistrate passed the detention order on
12.04.2024. That means, again there is about two months delay
while passing the detention order. In the affidavit-in-reply the
District Magistrate has not explained the delay.
8. Taking into consideration the offences those are registered
against the petitioner, it can be seen that all those offences are
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qua the informant and general public was not involved in the
same. Therefore, at the most, all those offences had created law
and order situation and not the public order. On two occasions,
the chapter case was filed against the petitioner. One was allowed
to lapse and in respect of another, it is stated that in view of
subsequent offence, that action was cancelled. Thus, it can be
seen that the ordinary law would have taken care of the activities
of the petitioner, however, that action was not taken to the logical
end by the police authorities. Under such circumstance, it does
not lie in the mouth of sponsoring authority or even the detaining
authority that the ordinary law would not have curtailed the
activities of the petitioner. The in-camera statements of the
witnesses would show that the first and the third paragraphs are
literally copy paste. In respect of the alleged incident against
them, it appears that it was the recovery of money. Even there
public was not involved. Therefore, the detention order not only
suffers from the above-said lacunas, but it is illegal, cannot be
allowed to sustain and it ought not to have been confirmed by the
State Government as well as by the Advisory Board.
9. Thus, taking into consideration the above observations and
the decisions of the Hon'ble Apex Court, at the most, the
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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 12.04.2024 bearing
No.2024/UPCHITNIS/MAG-3/KAVI-159 passed by
respondent No.1 as well as the approval order dated
22.04.2024 and the confirmation order dated 07.06.2024
passed by respondent No.2, are hereby quashed and set
aside.
III) Petitioner - Mukesh s/o Shyam Shinde 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
