Bombay High Court
Shubhangi Balkrishna Lonare vs State Of Maharashtra And Anr on 5 September, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:36064-DB
1/13 Judgement-Wp-St-14420-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 14420 OF 2024
Shubhangi Balkrishna Lonare,
Age : 39, Occu.: Nil,
R/at : Lonare Wasti, Khandobachi
Paule, Vadgaon Budruk, Pune City.
(Presently the son of the Petitioner is
detained in Chadrapur Prison,
Chandrapur) .. Petitioner
Versus
1. The State of Maharashtra, through
The Additional Chief Secretary, Home
Department, having office at
Mantralaya, Mumbai.
2. Commissioner of Police, Pune
Having office at New Administrative
Building, Gandhi Nagar, Pune. .. Respondents
...
Mr. Satyavrat P. Joshi a/w Mr. Yash G. Fadtare, Ms. Shivani
Kondekar, Mr. Samay Pawar, for the Petitioner
Mr. S. V. Gavand, A.P.P., for the State-Respondent.
...
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 5th SEPTEMBER, 2024
JUDGMENT (PER MANJUSHA DESHPANDE, J.) :
-
Chaitanya
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1. The Writ Petition is taken up for final disposal with
the consent of the parties. This Petition has been filed by the
mother of the Detenu namely Ashwin @ Barkya Balkrushna
Lonare, against whom the Order of Detention has been issued
by the Respondent No.2 - Commissioner of Police, Pune City.
The Petitioner is challenging the Order of Detention
dated 11.06.2024, issued against her son namely Ashwin @
Barkya Balkrushna Lonare (Detenu), by the Respondent No.2
- Commissioner of Police, Pune City, in exercise of his powers
under Section 3(2) of the Maharashtra Prevention Of
Dangerous Activities of Slumlords, Bootleggers, Drug-
Offenders, Dangerous Persons, Video Pirates, Sand Smugglers
And Persons Engaged In Black-Marketing Of Essential
Commodities Act, 1981. ("the MPDA Act"). According to the
Petitioner, the Detenu has been detained in Chandrapur Prison
by the Order of Committal dated 11.06.2024 which is issued
pursuant to the Order of Detention, by the Respondent No.2.
2. It is the contention of the Petitioner that, the Order
of Detention has been issued by the Detaining Authority
merely on two grounds : (i) An offence registered against the
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Detenu at Warje Malwadi Police Station on 15.04.2024 vide
C.R. No.161/2024 and (ii) The Two in-camera statements of
Witness 'A' and 'B'.
Being aggrieved with the said Order of Detention,
which is in violation of fundamental rights of the Detenu,
guaranteed under the Constitution of India, the Petitioner is
challenging the said Order of Detention.
3. Learned counsel Mr. Joshi, appearing for the
Petitioner, while making his submissions has submitted that
the incident on the basis of which the FIR has been registered
as well as the incident which have been stated in the in-camera
statement of the witnesses, do not refer that the acts and
conduct attributed to the Detenu caused breach of peace and
public order or it has caused disturbance to the even tempo of
public life. The acts and conduct attributed to the Petitioner
were mostly individualistic and there was no element of
disturbance to public order involved in the incident. The said
incident was capable of being taken care by the general law,
therefore, the Order of Detention was not at all necessary.
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4. It is further contended by the Petitioner that the
FIR on which the Detaining Authority has placed his reliance
i.e. C.R. No. 161 of 2024, which has been registered on
15.04.2024, and the two in-camera statements of witness 'A'
and 'B' narrating the alleged incident dated 10.03.2024 and
07.01.2024, for which the in-camera statements are recorded
on 28.04.20234 and 30.04.2024 respectively. According to the
Petitioner, thus there is no live link between the alleged
incident and the Order of Detention, which is issued on
11.06.2024.
5. The learned counsel for the Petitioner has drawn
our attention to the contents of the FIR, wherein it is the
complaint of the informant that while the informant was on
patrolling duty within Warje Police Station, limits, the
information was received that externed accused Ashwin
Lonare (Detenu) i.e. the son of the Petitioner was near Rosary
School, MHADA Vasahat, Warje and he possessed a pistol.
Description of his appearance and clothes was given. The said
information was passed on to Police Inspector Mr. Bahirat who
summoned panch witness and proceeded near the Rosary
School, where as per the tip-off, the Detenu was found and he
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was caught at 15.50 hours. Upon making inquiry about the
name, age etc., the Detenu has given the information.
During his search, one country made pistol worth
Rs.40,000/- was found near the waist of the Detenu with four
live rounds worth Rs.2,000/-. The police inquired with the
Detenu about the licence for the weapon, to which the Detenu
replied in negative, therefore the said pistol with the rounds,
was seized in the presence of panch witnesses. Thereafter,
when the inquiry was made with Warje Police Station, it
revealed that the Detenu was externed from Pune and Pimpri
Chinchwad Police Commissionerate and Pune District, under
Section 56(1)(a)(b) of the Maharashtra Police Act. Hence, the
Detenu was inquired about the permission to enter in Pune, to
which replied in the negative.
Since he had violated the preventive orders issued
on 01.04.2024 and externment order under Section 56(1)(a)
(b) dated 21.03.2024, a complaint came to be filed against the
Detenu and he was arrested on 15.04.2024 and produced
before the Judicial Magistrate First Class, Shivajinagar, Pune.
The Detenu was remanded to the police custody till
20.04.2024 and Magisterial Custody till 04.05.2024.
Thereafter, the Detenu was granted bail on 04.05.2024.
Chaitanya
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6. The learned counsel for the Petitioner has drawn
our attention to the contents of the confidential statements of
witness 'A' and 'B', which are recorded on 28.04.2024 and
30.04.2024 respectively.
Witness 'A' narrates an incident that had occurred
on 10.03.2024 in which during the incident, the witness was
assaulted and threatened with the pistol, while he was
returning from his work, by the Detenu. The statement of
Witness 'A' has been verified on 15.05.2024, by the Assistant
Commissioner of Police, Kothrud Divison, Pune.
In the statement of witness 'B', he has narrated
about an incident which had occurred on 27.01.2024, during
the night at 8.30 p.m.. According to the said witness, when he
was working on his Chinese Center alongwith his workmen,
the Detenu alongwith his companion visited his stall. They
were armed with wooden sticks and the Detenu demanded his
monthly installment. When the witness expresses his inability,
the Detenu started assaulting him with fist and blows and took
out the country made pistol and threatened the witness. The
people who were watching the said incident, due to the threat
and terror have deserted the place. The said statement was
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verified on 15.05.2024.
7. The Detaining Authority has filed his affidavit.
According to the Detaining Authority, only after being satisfied
that the Detenu is a dangerous person, within the meaning of
Section 2(b-1) of the MPDA Act, and further being satisfied
that he his acting in a manner prejudicial to the maintenance
of public order, it was felt necessary to detain the Detenu, the
Order of Detention has been issued. The Detaining Authority
has stated that, after carefully going through the material
placed before him and proper verification, he is satisfied that
the Detenu is weapon-wielding dangerous desperado of violent
character, indulging in criminal activities.
The Detenu is engaged in criminal activities since
2023 and has created a reign of terror in the minds of the
people. He is habitually committing offence under Chapter XVI
and XVII of the Indian Penal Code ("IPC") as well as Chapter V
of the Arms Act. Thus, he is a dangerous person as defined
under Section 2(b-1) of the MPDA Act.
The Senior Inspector of Police, Sinhgadroad Police
Station, who is the Sponsoring Authority, conducted a
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confidential inquiry of the criminal activities of the Detenu and
during the confidential inquiry, recorded statement of witness
'A' and 'B' on 28.04.2024 and 30.04.2024 respectively, about
the atrocities faced by the witnesses at the hands of the
Detenu. The Assistant Commissioner of Police, Sinhgadroad
Division, Pune City, has personally verified the genuineness
and truthfulness of the statements by visiting the places of the
incident and inquiry thereto.
8. The Detaining Authority has placed reliance on the
same while passing the Order of Detention. It is only after due
application of mind and being subjectively satisfied, he has
passed the Order of Detention. The Detaining Authority has
submitted that, he has considered three incidents occurred on
15.04.2024 vide C.R. No. 161 of 2024 and in-camera statement
of witness 'A' and 'B' recorded on 28.04.2024 and 30.04.2024
respectively. All the incidents have involvement of the Detenu
and committed within the period of five months and therefore
it cannot be said that there is no live link. The in-camera
witnesses are not easily available and the witnesses are
usually reluctant to come forward. It is only upon taking them
in the confidence and assured that their names would not be
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disclosed, they come forward to give in-camera statements.
9. We have considered the submissions of the learned
counsel for the Petitioner as well as the learned A.P.P. for State
and having gone through the relevant material, we find that
the Order of Detention issued against the Detenu suffers from
non-application of mind.
Firstly, the FIR No. 161 of 2024 registered on
15.04.2024 does not reflect any disturbance to the
maintenance of public order. The Detenu was apprehended on
being tipped-off about his movement in the said area and pistol
was seized in his possession only because the order of
externment was operating against him. The said FIR is shown
to have registered under Section 115, 120(B) of the IPC, under
Section 3(25) of the Arms Act and under Section
37(1)(3)/135, 142 of the Maharashtra Police Act. Not once but
twice in the Grounds of Detention, the said chart about C.R. No.
161 of 2024 has been reproduced by the Detaining Authority
indicating the above sections which are made applicable to the
said C.R. Upon perusal of the FIR, we find that the Section
under which the FIR has been registered are only Section
3(25) of the Arms Act and Section 142, 37(1)/135 of the
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Maharashtra Police Act. We do not find Section 115 and 120(B)
of the IPC in this said offence, which is registered against the
Detenu. This itself indicates the non-application of mind by the
Detaining Authority, who has filed affidavit and stated that
only upon scrutiny of the record, which is placed before him
and due application of mind, he has issued the said Order of
Detention.
10. Similarly, the other incident of non-application of
mind by the Detaining Authority can be gathered from the
dates of the offences and in-camera statements which have
been relied on by the Detaining Authority. According to the
Detaining Authority, he has relied on C.R. No. 161 of 2024
which is registered on 15.04.2024, in which the Detenu was
arrested on 15.04.2024 and has been released on bail on
04.05.2024. Whereas the statement of witness 'A' has been
recorded on 28.04.2024 for the incident dated 10.03.2024 i.e.
the incident which had occurred before the registration of last
offence relied upon by the Detaining Authority. Similarly, the
statement of witness 'B' is recorded on 30.04.2024 for the
incident that had occurred on 27.01.2024, even the said
incident had occurred much before the registration of last
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offence i.e. 15.04.2024. Both the statements cannot be relied
on, since they are incidents prior to the occurrence of offence
which is relied by the Detaining Authority. The verification of
both the statements has been done by the Assistant
Commissioner of Police on 15.05.2024, considering that there
is a huge gap in recording of in-camera statements and their
verification.
11. The Order of Detention is issued in order to prevent
the Detenu from causing danger to the lives and property of
the people residing in the area and carrying out the daily
activities, since it is an allegation against the Detenu that he is
engaged in violent criminal activities and threatening the
people by use of deadly weapons. It was found necessary by the
Detaining Authority to restrain him from committing such an
offence therefore the Order of Detention has been issued
against him. It is only on account of urgency, such drastic steps
are taken against the Detenu. It is observed that because of the
continued serious offences of the Detenu, the Order of
Detention has issued against him. However, the steps taken by
the Detaining Authority in furtherance of their proposal do not
indicate any urgency while issuing the said Order of Detention.
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Though the offence is registered on 15.04.2024, and the in-
camera statements have been recorded on 28.04.2024 and
30.04.2024 respectively, the verification of the statement has
been done much later i.e. on 15.05.2024.
12. The Order of Detention also suffers from the non-
application of mind, since the incident which had occurred
prior to registration of offence have been relied upon by the
Detaining Authority, which does not reflect any live link. As a
result, there is no live link between the last offence and the in-
camera statements. The in-camera statements seems to have
recorded only to fill in the gap between registration of offence
and issuance of Order of Detention.
The Detaining Authority has failed to apply his
mind to the details of the FIR mentioned in the Grounds of
Detention, which contains the Sections of IPC, which are not
present in the copy of the original FIR produced on record.
Apart from the said ground, the other ground of absence of live
link also makes the Order of Detention unsustainable.
13. Considering the observations made hereinabove,
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the Order of Detention being unsustainable due to the non-
application of mind by the Detaining Authority, is required to
be quashed and set aside. Accordingly the Order of Detention
issued against the Detenu by the Detaining Authority is hereby
quashed and set aside and Rule is made absolute, by directing
the son of the Petitioner namely Ashwin @ Barkya Balkrushna
Lonare (Detenu) to be released forthwith.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)
Digitally
signed by
CHAITANYA
CHAITANYA ASHOK
ASHOK JADHAV
JADHAV Date:
2024.09.06
19:58:37
+0530
Chaitanya
