Bombay High Court
Mohammad Mubsheer Shaikh Alias Chand ... vs State Of Maharashtra Through Its ... on 13 September, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:10425-DB
1 wp377.2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.377/2024
Mohammad Mubsheer Shaikh alias
Chand S/o Shaikh Shabbir,
aged about 28 Yrs., Occ. Private,
R/o C/o Shri Nandeshwar,
Suikhmati Apartment, Flat No.203,
Vaishali Nagar, Panchpaoli, Nagpur. ... Petitioner
- Versus -
1. State of Maharashtra,
through its Principal Secretary,
Ministry of Home Affairs,
Mantralaya, Mumbai - 400 032.
2. State of Maharashtra,
through the Commissioner of Police,
(Nagpur City), Police Bhavan,
Civil Lines, Nagpur 440 001. ... Respondents
-----------------
Mr. Gaurav S. Gour, Advocate for the Petitioner.
Mr. A.M. Joshi, A.P.P. for Respondent Nos.1 and 2.
----------------
CORAM: VINAY JOSHI & MRS.VRUSHALI V. JOSHI, JJ.
DATED: 13.9.2024.
ORAL JUDGMENT (Per Mrs. Vrushali V. Joshi, J.)
Heard. Rule. Rule made returnable forthwith.
Heard finally by consent of learned counsel for the parties.
2 wp377.2024
2. The petitioner has challenged the detention order
passed under Section 3(2) 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.
3. Learned Advocate for the petitioner has challenged
the impugned order which appears to have been confirmed by the
Government by order dated 11.10.2023 on the ground that the
impugned order passed by the Detaining Authority is based on
the non-application of mind and without adhering to the
statutory procedure. The grounds of detention appears to have
been based on three offences namely first Crime No.257/2023
for the offence punishable under Sections 452, 342, 294, 506-B,
427 and 323 read with Section 34 of Indian Penal Code. The
date of offence is 8.4.2023. The second is Crime No.889/2023
for the offence punishable under Sections 5(A) and 9(A) of
3 wp377.2024
Maharashtra Animal Preservation Act, 1976 and Section 11 of
Prevention of Cruelty to Animals Act, 1960 and third offence is
Crime No.1023/2023 for 4/25 of Arms Act read with Section
135 of the Maharashtra Police Act.
4. The Detaining Authority has also considered two
in-camera statements. It is submitted that the Detaining
Authority had not considered that in all the offences, which are
pending before the Court, the petitioner has been released on bail
and the bail orders though have been placed before the Authority
are not considered while passing the detention order.
5. There is no proper verification of the statements. The
stereotyped statements of two witnesses are considered. There is
delay in passing the detention order from the date of last crime
and no explanation is given by the Detaining Authority for
passing the delayed order. Therefore, the detention order is illegal
and deserves to be set aside.
4 wp377.2024
6. Per Contra, learned A.P.P. submitted that well
reasoned order has been passed while authorising the detention of
the petitioner. Petitioner was involved in all other offences which
are related to human body and the prevention of cruelty to
animals. Even the preventive action was taken against him from
time to time but he has not curtailed his activities. If we consider
the facts of Crime No.1023/2023 it can be seen that the
petitioner was found roaming on road holding a knife in his hand.
This indicates that he wanted to create terror amongst people at
large. Another offence is registered against the petitioner is
Crime No.257/2023 under Sections 452, 342, 294, 506-B, 427
and 323 read with Section 34 of Indian Penal Code. Knife has
been used. The petitioner has given threats to the informant and
took out the gas cylinder and gave threats that he will ablaze all of
them. Further in-camera statements would show that in both the
offences threats were given by creating terror in the mind of
people at large so that the petitioner can continue his illegal
activities. The opportunity was given to the petitioner to submit
5 wp377.2024
his representation. He was given hearing before the Advisory
Board and the detention order has been confirmed by the
Detaining Authority. No illegality has been committed and,
therefore, the petition deserves to be dismissed.
7. Though three offences are considered by the
Detaining Authority, the offence i.e. Crime No.889/2023 which
is under the provisions of Maharashtra Animal Preservation Act
and Prevention of Cruelty to Animals Act cannot be considered
under the provisions of M.P.D.A. Act but two offences i.e Crime
Nos.257/2023 and 1023/2023 can be considered under the
M.P.D.A. Act as those are under the Indian Penal Code and
would fall under the provisions of Chapters XVI and XVII of the
I.P.C.
8. If we consider the offence i.e. Crime No.257/2023 in
which the complainant is lady, the detenue along with other
persons gave threats to the brother of the complainant as he was
6 wp377.2024
talking with her daughter on road and though all accused persons
were not known to the complainant they came to her house, they
beat her brother and asked the complainant to leave the premises
along with her children. The petitioner threw household articles
from house and by taking out gas cylinder gave threats that he will
ablaze all of them. Thereafter the complainant lodged the
complaint. It appears from this crime that there was no personal
enmity between the complainant and detenue and the detenue
was not known to her. He gave threats in public place to the
complainant and her brother, abused them asking her to leave the
said area. Obviously, it is not against the individual person but it
definitely creates situation of public order.
9. The another offence is Crime No.1023/2023. The
Police Head Constable received the information that one person
who is wearing yellow coloured lining T shirt and blue coloured
jeans was shouting and creating terror with deadly weapon. The
detenue was found when the complainant along with his staff
7 wp377.2024
went there on the spot. The person was creating nuisance. He
was holding knife in his hand. Knife was seized. In both the
offences the petitioner was released on bail.
10. If a person is roaming with knife in his hand in public
place, prima facie we can consider that it definitely creates a
public order situation and not only law and order situation.
11. The statement of witnesses "A" and "B" would show
that though the petitioner has stated that identical statements are
made by both the witnesses but after going through the
statements it appears that two different incidents are narrated by
by them. The statements were verified and signed by the
Authority and after subjective satisfaction about truthfulness of
the statements, the order was passed.
12. The witness "A" has narrated about the extortion.
The petitioner along with his associates went to the shop of the
8 wp377.2024
witness and asked him to give Rs.5,000/-. When he stated that
he is not having that much money, petitioner shouted in filthy
language and took out knife from his waist and pointed on the
neck of witness. The accomplices of the petitioner pushed the
witness to the ground and beat him on the chest and back. When
the accomplices were beating the witness passers-by gathered
there, the petitioner pointed a knife at them and threatened them
by saying that not to stay there otherwise he will kill them. Then
the people ran away from the spot. Thereafter he took forcibly
Rs.1,230/- from the right pocket of the trouser of witness and
while leaving gave threat not to inform it to the police. The
petitioner has created terror in public by showing the knife.
13. Another witness "B" has stated that in third week of
September 2023 when he was going to his house the petitioner
along with his associates obstructed the witness as the petitioner
was knowing that the witness is the informant of police and as he
has given information the police arrested him and, therefore, he
9 wp377.2024
asked why he is informing about him to police and also asked him
that "bls ,slk lcd fl[kk] nqckjk dksbZ dke dk u jgs " and he pushed the
witness down and his associates also beat the witness with fist and
blows. When people gathered there, the petitioner took out a
knife from his possession and went at the people and threatened
them by saying to leave the place. Thereafter people left the spot.
He took forcibly Rs.5,209/- from trouser and the petitioner has
given threats to the witness not to inform about it to the police.
14. From these statements the facts would certainly show
that it is the public order that was disturbed.
15. Another ground for challenging the order is that there
is delay of 30 days for passing the detention order.
16. According to petitioner, the last crime is dated
29.8.2023 and the order is passed on 5.10.2023. Therefore, there
is delay of 30 days in passing the detention order.
10 wp377.2024
17. Learned A.P.P. has filed reply and stated that there is
no delay in passing the detention order. The time starts from the
date of recording of statement, it's verification and the
consideration by the Authority. The last in-camera statements
were recorded on 20.09.2023. The Pachpaoli Police Station,
Nagpur initiated the proposal for detention of the detenue on
23.09.2023 under the MPDA, 1981 (Amendment of 2015) and
the same was submitted to the Assistant Commissioner of Police,
Lakkadganj Division. The Assistant Commissioner of Police,
Lakkadganj Division verified the in-camera statements of witness
"A" and "B" on 25.09.2023 and recommended the proposal to the
Dy. Commissioner of Police, Zone-III, Nagpur on 26.09.2023.
The Dy. Commissioner of Police, Zone-III, Nagpur verified the
in-camera statement and after scrutinizing, recommended it to the
Addl. Commissioner of Police, North Region, Nagpur on
28.09.2023. The Addl. Commissioner of Police, North Region,
Nagpur City on 29.09.2023 forwarded it to the Commissioner of
Police, Nagpur i.e. the Detaining Authority and on 02.10.2023, it
11 wp377.2024
was received in the Detention Cell, Crime Branch, Nagpur. On
03.10.2023, the Detention Cell, Crime Branch, Nagpur initiated
the proposal to the Detaining Authority i.e. Commissioner of
Police, Nagpur. It is submitted that the Detaining Authority
prima facie found, that it was a fit case for detention order under
MPDA and directed the office of the Detention Cell, Crime
Branch, Nagpur to prepare compilation, translation, fair typing
and comply with other requirements of law. The Detention Cell,
Crime Branch, Nagpur complied with these directions and on
03.10.2023 the draft of the grounds of detention were forwarded
to the Deputy Commissioner of Police (Detention), Crime
Branch, Nagpur City who went through the draft of the grounds
of detention and other relevant documents and gave his
endorsement on 03.10.2023 which were then forwarded to the
Addl. Commissioner of Police (Crime), Nagpur City. The Addl.
Commissioner of Police (Crime), Nagpur City went through the
draft of the grounds of detention and other relevant documents
and gave his endorsement on 04.10.2023 before forwarding to
12 wp377.2024
the Detaining Authority. The Detaining Authority carefully went
through the grounds of detention and other relevant documents
and after being subjectively satisfied, passed the detention order
and on the same day i.e. 05.10.2023, the detenue was detained.
18. Considering the explanation given by the respondent
No.2 about the delay, we find that it is satisfactory. Therefore,
there is no delay in passing the detention order.
19. Learned Advocate for the petitioner has relied on the
judgment in case of Nenavath Bujji etc. V/s. State of Telangana
and others reported in 2024 SCC OnLine SC 367 wherein the
Hon'ble Apex Court has observed that it is preventive action of
passing the detention order if the person is engaged continuously
in activities prejudicial to the public order.
20. The subjective satisfaction has been arrived at on the
basis of two offences as well as two in-camera statements. We do
13 wp377.2024
not find this is to be fit case where we should exercise our
constitutional powers to set aside the detention order. We may
also refer to the opinion of the Advisory Board and the said
opinion is made available to us which shows that the petitioner is
heard through video conferencing and Advocate who represented
the petitioner was also heard. The detention order has been
confirmed taking into consideration two offences and statements
of witnesses "A" and "B" as contemplated under law and,
therefore, we pass the following order:-
Writ petition is dismissed. Rule stands discharged.
(MRS.VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PA To Honourable Judge
Date: 19/09/2024 11:26:15
