Bombay High Court
Rahul Baburao Pawar vs District Magistrate And Other on 13 September, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:23755-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1164 OF 2024
Rahul Baburao Pawar
Age: 33 years, Occu.: Labour,
R/o. Kaikadi Mohalla, Old Jalna,
Tq. And Dist. Jalna .. Petitioner
Versus
1. District Magistrate, Jalna
District Jalna.
2. The State of Maharashtra
Through the Additional Chief Secretary,
Govt. of Maharashtra, Home Department,
Mantralaya, Mumbai-32.
3. The Jail Superintendent,
Central Prison, Harsool,
Aurangabad. .. Respondents
...
Mr. S. S. Jadhav, Advocate for the petitioner.
Mr. G. A. Kulkarni, APP for the respondents - State.
...
CORAM : SMT. VIBHA KANKANWADI &
S. G. CHAPALGAONKAR, JJ.
DATE : 13 SEPTEMBER 2024
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. S. S. Jadhav for the petitioner
and learned APP Mr. G. A. Kulkarni 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
21.03.2024 bearing No.2024/RB-Desk-1/Pol-1/MPDA/Kavi-63
passed by respondent No.1 and the confirmation order dated
15.05.2024 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 though there were several offences registered
against the petitioner, yet for the purpose of passing the
impugned order, six offences were considered i.e. Crime No.149 of
2021 registered with Kadim Jalna Police Station, District Jalna
for the offences punishable under Sections 341, 323, 504, 506
read with Section 34 of Indian Penal Code, Crime No.505 of 2022
registered with Jalna Taluka Police Station, District Jalna for the
offences punishable under Sections 353, 332, 186 read with
Section 34 of Indian Penal Code, Crime No.527 of 2023 registered
with Kadim Jalna Police Station, District Jalna for the offence
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punishable under Sections 3/25, 4/25 of the Indian Arms Act,
Crime No.1092 of 2023 registered with Sadar Bazar Police
Station, District Jalna for the offences punishable under Sections
3/25 of Indian Arms Act, Crime No.1093 of 2023 registered with
Sadar Bazar Police Station, District Jalna for the offence
punishable under Section 3/25 of the Indian Arms Act and Crime
No.485 of 2023 registered with Chandanjhira Police Station,
District Jalna for the offence punishable under Section 3/25 of
the Indian Arms Act. It is submitted that all the six offences were
considered by the detaining authority. That means even the
staircases were considered. There was no live link. If we consider
the offences in 2021 and 2022 with the detention order passed
on 21.03.2024, the detaining authority failed to consider that the
petitioner was acquitted from the offence vide Crime No.149 of
2021 bearing S.C.C. No.929 of 2021 on 22.01.2024 and Crime
No.505 of 2022 bearing R.C.C. No.919 of 2022 on 16.08.2022.
The delay in passing the order has not been explained. Further,
the detaining authority failed to consider that as regards the four
offences under the Arms Act are concerned, which were stated to
be under investigation, three of them were registered on the same
day i.e. 17.12.2023. One with Kadim Jalna Police Station and
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two with Sadar Bazar Police Station. The offence vide Crime
No.527 of 2023 and Crime No.1092 of 2023 are registered against
the petitioner on the basis of statement of the co-accused. So
also, the offence vide Crime No.485 of 2023 registered with
Chandanjhira Police Station on 19.12.2023 was also based on the
statement of the co-accused. There was absolutely no such
evidence before the detaining authority which will show the
involvement of the petitioner in the case. Therefore, there was no
subjective satisfaction of the detaining authority and therefore,
the said impugned order cannot be allowed to be sustained.
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
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
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affects the public order. Learned APP has relied on the affidavit-
in-reply filed by Dr. Shrikrishna Panchal, the District Magistrate,
Jalna as well as his additional affidavit-in-reply to explain the
point of delay. As regards delay is concerned, it is explained that
the Superintendent of Police forwarded the proposal of detention
of the petitioner to the office of District Magistrate on 01.02.2024
and thereafter, the protest for Maratha reservation and
parliament election process consumed time and, therefore, when
the law and order situation in the entire District became
hazardous, the District Magistrate being head of the Revenue
Authority was required to give more attention to those matters
and, therefore, the delay that has been caused, was beyond the
control of the detaining authority.
6. Before considering the case, we would like to take note of
the legal position as is emerging in the following decisions :-
(i) Nevanath 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 Nevanath
(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 catena of above-said judgments and other
judgments also would state that there should be a live link
between the offences complained and the date of the detention
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order. Certainly, those offences which had taken place on
06.04.2021 and 03.08.2022 cannot be said to be providing the
live link, still they have been considered and in spite of raising
the point, may be by inadvertence by the petitioner in ground
No.2 that only four crimes were considered, in the affidavit-in-
reply, the District Magistrate states that he has considered all the
six offences i.e. including the stair cases. Certainly, the order
based on staircases will have to be categorized as erroneous.
Further, the acquittal of the petitioner from two of the crimes has
not been considered. The four cases under the Indian Arms Act
were under investigation on the date of impugned order. Though
the District Magistrate was not a Court of law or considering the
cases under the Arms Act, yet the basic legal provisions should
be considered by the detaining authority when he has such
detaining powers. He failed to consider that in three of the
matters the name of the petitioner is taken on the basis of
statement of the co-accused which has no evidentiary value in
the eye of law. Interesting point to be noted is that in three of the
offences which were registered on 17.12.2023, two to three police
officers are same. We may not go into the details of the facts, but
only one thing which will have to be observed that when the
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detaining authority was considering the offence under Section 3
which is punishable under Section 25 of the Indian Arms Act,
then he ought to have considered the Notification prohibiting
such arm. Further, we are of the opinion that when the matter is
still under investigation, the detaining authority should not make
haste, of course depending upon the facts of the case, but when
question of sanction to prosecute is involved, much depends upon
the sanctioning authority. Therefore, unless there is sanction to
prosecute, such offences should be considered meticulously by
the detaining authority. Here, as regards Crime No.527 of 2023
is concerned, even Section 4 punishable under Section 25 of the
Indian Arms Act is also invoked. The learned APP failed to
produce any such Notification issued by the Central Government
prohibiting the arms and weapons on the day of incident which
was promulgated for Jalna District. In one offences, Section 4 of
the Indian Arms Act is invoked, though it is stated that the co-
accused was found possessing country made pistol in all the
matters and in that matter, it is said that a sword also was seized
from the house of the petitioner. Therefore, we do not find that
the detaining authority had arrived at a subjective satisfaction or
there was such material before the learned District Magistrate to
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arrive at a subjective satisfaction.
8. As regards delay is concerned, we may accept the reason
given in the additional affidavit-in-reply. As regards the
statements of in-camera witnesses are concerned, witness 'B'
says that the amount was extorted from him, yet it is not stated
that the petitioner had used any of the dangerous weapon.
Witness 'A' says that the extortion was with the help of knife.
These appears to be the offences of individual in nature.
9. Thus, taking into consideration the above observations and
the decisions of the Hon'ble Apex Court, at the most, the
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.
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II) The detention order dated 21.03.2024 bearing No.
2024/RB-Desk-1/Pol-1/MPDA/Kavi-63 passed by respondent
No.1 as well as the confirmation order dated 15.05.2024
passed by respondent No.2, are hereby quashed and set
aside.
III) Petitioner - Rahul Baburao Pawar 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
