Bombay High Court
Dipak @ Kalya S/O Sunil Singh vs The State Of Maharashtra Thr. Concerned ... on 12 September, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:10326-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 208 OF 2024
Dipak @ Kalya s/o. Sunil Singh,
Aged about 32 years, Occ. Labour,
R/o. Bhim Nagar Basti,
Near Hanuman Temple, Isasani,
Police Station MIDC, Nagpur City, Nagpur. ... PETITIONER
...VERSUS...
1. State of Maharashtra
Through Concerned Officer/Secretary,
Home Department (Special),
2nd Floor, Mantralaya, Madam Cama Road,
Hutatma Rajguru Chowk, Mumbai - 400032.
2. State of Maharashtra,
Through Commissioner of Police,
Nagpur City, Civil Lines, Nagpur.
3. State of Maharashtra,
Through Advisory Board Constituted under
Provisions of 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, Address at
Home Department (Special), 2nd Floor,
Mantralaya, Madam Cama Road, Hutatma
Rajguru Chowk, Mumbai- 400032. ... RESPONDENTS
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Mr. Abhishek Shukla, Advocate for petitioner.
Mr. S. S. Doifode, A.P.P. for respondents/State.
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CORAM : VINAY JOSHI AND MRS. VRUSHALI V. JOSHI, JJ.
JUDGMENT RESERVED ON : 30.08.2024
JUDGMENT PRONOUNCED ON : 12.09.2024
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JUDGMENT (PER : MRS.VRUSHALI V. JOSHI, J.):
-
1. Rule. Rule is made returnable forthwith. Heard finally by
consent of learned counsel appearing for the parties.
2. The petitioner challenges his detention order dated 04.09.2023
under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates,
Sand Smugglers and Person Engaged in Black- Marketing of Essential
Commodities Act, 1981 (hereinafter referred to as "MPDA Act") passed by
the respondent No.2 and the order dated 13.09.2023 passed by respondent
No.1.
3. Heard Mr. Abhishek Shukla, learned Counsel for the petitioner
and Mr. S. S. Doifode, learned A.P.P. for respondents/State.
4. Learned Counsel for the petitioner challenges the impugned
order which appears to have been confirmed by the State Government by
order dated 04.09.2023 on the ground that the impugned order passed is
based on the non-application of mind and without adhering to the statutory
procedure. The grounds of detention which have been given appeared to
have been based on two offences namely Crime No.168/2023 for the
offences punishable under Sections 452, 354, 294, 506-B, 323 read with
Section 34 of the Indian Penal Code and Section 142 of the Maharashtra
Police Act and the another offence is Crime No.363/2023 for the offences
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punishable under Sections 4 and 25 of the Arms Act read with Section 135,
142 of the Maharashtra Police Act moving armed with deadly weapon,
violation of prohibitory and externment order. The detaining authority has
also considered the in-camera statements of two witnesses. It is submitted
that the detaining authority had not considered that in both the offences
which are still under investigation, the petitioner has been released on bail
and the bail order appears to have not been produced before the detaining
authority. The contents of the case would show at the most that there was
law and order situation and not the public order was disturbed requiring the
detention of petitioner. Further there was no proper verification of in-
camera statements by detaining authority and only that it is seen and
verified, but there is no remark that the verification has been properly done.
The last crime was allegedly said to have been committed on 14.04.2023
and the detention order has been passed on 04.09.2023. Therefore, there
was no live-link and the belated order has been passed. Therefore, the
detention order is illegal and deserves to be set aside.
5. Per contra, learned Additional Public Prosecutor submitted the
well reasoned order has been passed while authorizing detention of the
petitioner. The petitioner was involved in many cases, out of which two of
them are pending before the Court and are considered for passing the
detention order. Even the preventive action was taken against him from
time to time, but he has not curtailed his activities. Even after passing the
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detention order, the petitioner some how came to know about the order and
he fled away and absconded from the city of Nagpur. Last crime was
violation of externment order passed against him. Thereafter, the detention
order was passed. M.I.D.C. Police searched for detenue by regularly visiting
the house. During the detenue's period of absconding, the police tried to
trace him everywhere. The family members of the detenue were not telling
anything about him. After getting the location of mobile of the detenue, he
was found in Itarsi, Madhya Pradesh. Through Deputy Commissioner of
Police, Zone-1, Superintendent of Police, Madhya Pradesh was contacted
and the said accused was detained with the help of Itarsi police on
27.09.2023 at night. Thereafter, he was brought to Nagpur and the
detention order was served on his sister Aarti Singh on 28.09.2023. Even
the preventive action was taken against him from time to time, but he has
not curtailed his activities.
6. The in-camera statements would show that in both the incidents,
threats were given in public. This is nothing but an act to establish
supremacy by creating terror in the mind of people at large so that the
petitioner can continue his illegal activities. Every opportunity has been
given to the petitioner to submit his representation. He was given hearing
before the Advisory Board and the detention order has been confirmed by
the Advisory Board. No illegality has been committed and, therefore, the
petition deserved to be dismissed.
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7. Since 2018 number of crimes are registered against the detenue
and the preventive action is taken against him from time to time. For
passing the detention order two crimes are considered. In Crime
No.168/2023, the complainant is Sau Punam Sachin Singh, she has lodged
the complaint as the detenue along with his friend came in the house of the
complainant at night at 1.00 a.m. He abused the husband of the
complainant and beat him. When the complainant tried to intervene, he
abused her and beat her. When they went inside the house, the petitioner
entered the house and hold her hand. He beat the complainant and
touched her improperly. On her complaint, the crime is registered for the
offences punishable under Section 452, 354, 294, 506-B, 323 read with 34
of the Indian Penal Code and Section 142 of the Maharashtra Police Act. In
this crime, when the police came there, the petitioner along with his
accomplice ran away. At that time, he has given threats to the complainant.
8. In second Crime No.363/2023, though the externment order was
operating against the petitioner, he was found in the area from where he
was externed. The police received the information that one person is
shouting in filthy language and creating nuisance on road with a knife in his
hand near the Water Tank in Bhim Nagar. The complainant surrounded the
person with the help of his staff and disarmed the petitioner. During the
interrogation, he has stated his name. The knife was seized. He was
released on bail. If the person externed by the order of Deputy Commission
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and is roaming with a knife in his hand in public and, abusing in filthy
language, then prima facie we can consider that it would raise public order
and not only law and order situation.
9. The detnue was on bail in both the offences. The detaining
authority has considered both the bail orders, which is mentioned in the
grounds of detention.
10. On perusal of the confidential statements, it appears that the
incident took place at night at public place when the witness was returning
from his work. The accused by taking his name asked him to stop. The
witness raised the speed and went to his house. The petitioner followed
him and near his house he abused him in filthy language and whipped out a
knife and caught hold his collar and pointed it on his neck and threatened
the witness by saying whether he is not knowing him, who is he, the police
also scared of him and cannot do anything and forcibly took Rs.1300/- from
his pocket. When the people gathered there, he brandished the knife
towards the people and threatened them by abusing them that he will kill
them and he gave threats to the witness not to lodge the police complaint.
11. Witness "B" has also stated that the petitioner has extorted
money by abusing him and when people gathered there, he brandished
knife and gave threats to the petitioner. The statements and the offences
which are considered for passing the detention order would certainly show
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that it is the public order that was disturbed.
12. The another ground of challenging the detention order is that
there is delay of 143 days from the date of last crime in issuing the
detention order. Thus, while considering the challenge to the detention
order on the ground of delay, this Court has held that unless the in-camera
witnesses has indeed suffered at the hands of detenue, there would be no
reason for the witnesses to come forward and give statements against the
detenue. This Court in case of Nagnarayan Saryu Singh, [2006 ALL MR
(Cri.) 2147] after referring to various steps taken by the detaining authority
held that the delay will have to be computed from the date of the last
material came to be known to the sponsoring authority. The in-camera
statements recorded on 17.07.2023. It was verified by the Assistant Police
Commissioner on 31.07.2023. Thereafter, it was verified by the Additional
Divisional Officer on 03.08.2023 and the detaining authority has verified it
on 04.08.2023. Considering the dates there is no delay in passing the
detention order. Same view is taken by this Court in Mohsin Anwar Khan
@ Shaikh Vs. Commissioner of Police, Pune and Ors. [2023 ALL MR (Cri)
3785].
13. Learned A.P.P. has placed reliance on the judgment of Zebunnisa
Abdul Majid Vs. M. N. Singh and Ors. [2001 (3) Mh.L.J. 365 , wherein it is
held that it is not necessary for the detaining authority to mention in the
grounds his reaction in relation to every piece of evidence placed before him
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and also relied on the judgment of Harish Patil Vs. The State of
Maharashtra [2016 ALL MR (Cri) 5144] in support of argument about
truthfulness of the statement verified by the responsible officer.
14. As aforesaid, subjective satisfaction has been arrived at on the
basis of the two offences as well as two in-camera statements, we do not
find that this is to be a fit case where we should exercise our constitutional
power to set aside the detention order. We may also refer to the opinion
that has been given by the Advisory Board and the said opinion is made
available to us which shows that the petitioner was heard through video
conferencing and Advocate representing the petitioner was also heard. The
detention order has been confirmed taking into consideration the opinion of
the Advisory Board as contemplated under law. The detaining authority is
well justified in passing the detention order, therefore, we pass the
following order :
i] The Criminal Writ Petition is dismissed.
ii] Rule stands discharged.
(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
RGurnule
Signed by: Mrs. R.M. MANDADE
Designation: PA To Honourable Judge
Date: 13/09/2024 17:19:46
