Bombay High Court
Ajabrao S/O Dattarao Payghan vs The State Of Maharashtra Thr. Its Chief ... on 9 September, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:10159-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.397/2024
Ajabrao S/o Dattarao Payghan,
aged about 45 Yrs., Occ. Agriculturist,
R/o At Post Anjankheda, Tah. & Distt.
Washim. ... Petitioner
- Versus -
1. State of Maharashtra,
through its Chief Secretary, Home
Department, Mantralaya,
Mumbai-32.
2. District Magistrate,
office at Collector and District
Magistrate, Washim, Distt. Washim. ... Respondents
-----------------
Mr. Amol Jaltare, Advocate for the Petitioner.
Mr. S.S. Doifode, A.P.P. for Respondent Nos.1 and 2.
----------------
CORAM: VINAY JOSHI & MRS.VRUSHALI V. JOSHI, JJ.
DATED: 9.9.2024.
ORAL JUDGMENT (Per Mrs. Vrushali V. Joshi, J.)
Heard Mr. Amol Jaltare, learned Advocate for the
petitioner and Mr. S.S. Doifode, A.P.P. for respondent Nos.1
and 2. Rule.
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2. The petitioner has challenged the detention order
passed on 5.3.2024 by respondent No.2 and confirmed on
8.5.2024 by respondent No.1 on receiving the report of Advisory
Board.
3. Learned Advocate for the petitioner has taken us
through the impugned order and material which was supplied to
the petitioner by the detaining authority after passing of the order.
It is submitted that though several cases were registered against
the petitioner the detaining authority has taken into consideration
three offences i.e. Crime Nos.417/2023, 462/2023 and
484/2024. All the offences are punishable under Section 65(e)
of the Maharashtra Prohibition Act. These cases are stated to be
pending for the investigation. The detaining authority though
mentioned the earlier offences but wrongly shown that they are
pending for trial. In three offences the petitioner is acquitted and
in two offences he was discharged. The detaining authority has
contended that since the petitioner is carrying out activities of
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storing illicit liquor he is a bootlegger within the meaning of
Section 2(b) 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, however,
the grounds of detention would show that there was no subjective
satisfaction arrived at by the detaining authority. The C.A.
reports are stated to be received stating that the samples taken
show that it contains ethyl alcohol yet further report of such
liquid showing that it was hazardous for human consumption is
not produced on record and not supplied to the petitioner. The
statements of two confidential witnesses were recorded which are
stereotyped statements.
4. It is argued by the petitioner that there is delay in
passing the order. He has stated that the last crime was registered
against the petitioner on 23.11.2023 and the order is passed on
5.3.2024. There is no explanation in the grounds of detention
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about the delay in passing the detention order. Said delay has not
been explained and, therefore, the order passed by the detaining
authority is illegal and it is confirmed by the State Government
without considering the representation that was presented by the
petitioner as such the said confirmation is also illegal.
5. The learned Advocate for the petitioner has relied on
the following judgments:-
(i) Vishal Narbad Kanoje V/s. State of Maharashtra,
through Home Department (Special) and others reported in
2024 SCC OnLine Bom 2479,
(ii) Criminal Writ Petition No.1062/2024 (Kunal
Babulal Jaiswal V/s. District Magistrate, Nanded and others),
dated 6.8.2024,
(iii) Shivkumar Madeshwaran Devendra V/s. State of
Maharashtra, through Secretary Home Department (Special) and
others reported in 2022 SCC Online Bom 1236,
(iv) Devidas Lalji Ade V/s. The State of Maharashtra and
others reported in 2023 ALL MR (Cri) 130,
(v) Shekh Kasam S/o Shekh Shekhi V/s. State of
Maharashtra and another reported in 2023 ALL MR (Cri) 190,
(vi) Amanulla Khan Pathan V/s. State of Gujarat and
others reported in 1995(5) SCC 613 and
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(vii) Mustakmiya Shaikh V/s. M.M. Mehta reported in
1995(3) SCC 237.
6. Learned A.P.P. has strongly opposed the petition.
Respondent No.2 has not filed affidavit-in-reply on record.
7. Learned A.P.P. has denied that the detention order is
mechanically passed regarding the detention of the petitioner.
The subjective satisfaction was arrived at on the basis of
documents produced with proposal stating the facts in the cases
pending before the Court of law and the C.A. reports. The
subjective satisfaction is on the basis of all the three offences and
two in-camera statements of the witnesses. The petitioner has
raised issue of public order and inspite of preventive action his
activities in bootlegging are not curtailed and, therefore, the
detaining authority has no option but to detain him under the
provisions of law.
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8. Learned A.P.P. has relied on the following
judgments:-
(i) Mohsin Anwar Khan @ Shaikh V/s. Commissioner
of Police, Pune and others reported in 2023 ALL MR (Cri) 3785,
(ii) Vinod Dhannulal Jaiswal V/s. District Magistrate,
Aurangabad reported in 2024 ALL MR (Cri) 680, and
(iii) Badal s/o Manoj Sahare V/s. State of Maharashtra and
others reported in 2024 ALL MR (Cri) 102.
9. We would like to consider the legal position as
summarized above whether the detaining authority while passing
the order had followed the procedure as contemplated or not is
itself reiterated by the Hon'ble Supreme Court in Nevanath Bujji
etc. holding that if the procedure as contemplated is not followed
the detention order cannot be sustained and, therefore, strict
compliance is required to be made as it is a question of liberty of a
citizen.
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10. In case of Nevanath Bujji etc. V/s. State of Telangana
and others reported in 2024 SCC Online SC 367 the Hon'ble
Apex Court after considering the various judgments has
summarized the legal position which is as under:-
"43. We summarize our conclusions as under: -
(i) The Detaining Authority should take into consideration
only relevant and vital material to arrive at the requisite
subjective satisfaction,
(ii) It is an unwritten law, constitutional and administrative,
that wherever a decision-making function is entrusted to the
subjective satisfaction of the statutory functionary, there is an
implicit duty to apply his mind to the pertinent and
proximate matters and eschew those which are irrelevant &
remote,
(iii) There can be no dispute about the settled proposition
that the detention order requires subjective satisfaction of the
detaining authority which, ordinarily, cannot be questioned
by the court for insufficiency of material. Nonetheless, if the
detaining authority does not consider relevant circumstances
or considers wholly unnecessary, immaterial and irrelevant
circumstances, then such subjective satisfaction would be
vitiated,
(iv) In quashing the order of detention, the Court does not
sit in judgment over the correctness of the subjective
satisfaction. The anxiety of the Court should be to ascertain
as to whether the decision-making process for reaching the
subjective satisfaction is based on objective facts or
influenced by any caprice, malice or irrelevant considerations
or non-application of mind,
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(v) While making a detention order, the authority should
arrive at a proper satisfaction which should be reflected
clearly, and in categorical terms, in the order of detention,
(vi) The satisfaction cannot be inferred by mere statement in
the order that "it was necessary to prevent the detenu from
acting in a manner prejudicial to the maintenance of public
order". Rather the detaining authority will have to justify the
detention order from the material that existed before him
and the process of considering the said material should be
reflected in the order of detention while expressing its
satisfaction,
(vii) Inability on the part of the state's police machinery to
tackle the law and order situation should not be an excuse to
invoke the jurisdiction of preventive detention,
(viii) Justification for such an order should exist in the
ground(s) furnished to the detenu to reinforce the order of
detention. It cannot be explained by reason(s) / grounds(s)
not furnished to the detenu. The decision of the authority
must be the natural culmination of the application of mind
to the relevant and material facts available on the record, and
(ix) To arrive at a proper satisfaction warranting an order of
preventive detention, the detaining authority must, first
examine the material adduced against the prospective detenu
to satisfy itself whether his conduct or antecedent(s) reflect
that he has been acting in a manner prejudicial to the
maintenance of public order and, second, if the aforesaid
satisfaction is arrived at, it must further consider whether it is
likely that the said person would act in a manner prejudicial
to the public order in near future unless he is prevented from
doing so by passing an order of detention . For passing a
detention order based on subjective satisfaction, the answer
of the aforesaid aspects and points must be against the
prospective detenu. The absence of application of mind to
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the pertinent and proximate material and vital matters would
show lack of statutory satisfaction on the part of the
detaining authority."
11. The ground which was raised by the petitioner is that
there is a delay in passing the order of detention. It has to be
noted that the last offence is stated to have been committed on
23.11.2023 and the detention order is passed on 5.3.2024 and
confirmed on 8.5.2024. The delay has not been explained by the
detaining authority as no affidavit is filed on record. Learned
A.P.P. has argued that this ground is not raised while challenging
the detention order. Since it is a law point it can be certainly
argued. Further point of delay is to be appreciated on the basis of
facts. However, the facts should have been placed on record by
the respondents and could have been considered as necessary to
answer the point raised. We are convinced with the fact that delay
cannot be counted from the date of commission of last offence
but some times we can say that when the in-camera statements are
recorded, verified and seen by the detaining authority and,
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therefore, starting point of delay would start from the date the
detaining authority considers all statements.
12. On perusal of the statements, it is seen that they are
recorded on 13.2.2024 and verified by the Sub-Divisional Officer
on 16.2.2024. It is seen by the detaining authority on 1.3.2024.
Though the point would start from the date the detaining
authority considers the statements there is no explanation why the
statements were not verified till 1.3.2024 though were recorded
on 13.2.2024. It is seen by the detaining authority only about
after one month. Though we consider that the time starts from
the date of verification as there is no convincing reasons given by
the authority as to why it was pending with authority after
recording it. The statements are also of general nature. Moreover,
the petitioner has filed on record certificate issued by the
Sarpanch of Grampanchayat. The Sarpanch has issued the
certificate on 21.3.2024 about the character of petitioner and the
villagers have also given the signatures about his character that he
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is a very honest person and he is peace loving, he had no dispute
with any villager. Maximum villagers have singed the said
certificate which falsify the statements of confidential witnesses
"A" and "B". As we are convinced that the authority has not taken
into consideration the acquittal and discharge orders in earlier
offences and as there is delay in passing the detention order, it is
sufficient to set aside the order of the detaining authority. Hence
we pass the following order:-
(i) The writ petition is allowed.
(ii) The petitioner be set at liberty 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: 10/09/2024 11:20:26
