Bombay High Court
Rahul Kaduba Pawar vs The Districit Collector And Other on 19 September, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:24471-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1178 OF 2024
Rahul s/o Kaduba Pawar
Age: 31 years,
R/o. Babra, Tal. Phulambri,
Chhatrapati Sambhajinagar .. Petitioner
Versus
1. District Magistrate
Chhatrapati Sambhajinagar
2. The State of Maharashtra
Through the Secretary Home
Department (Spl.) Mantralaya,
Mumbai.
3. The Superintendent
Chhatrapati Sambhajinagar .. Respondents
...
Mr. R. A. Jaiswal, Advocate for the petitioner.
Mr. V. K. Kotecha, APP for the respondents - State.
...
CORAM : SMT. VIBHA KANKANWADI &
S. G. CHAPALGAONKAR, JJ.
DATE : 19 SEPTEMBER 2024
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. R. A. Jaiswal for the petitioner
and learned APP Mr. V. K. Kotecha for the respondents - State.
2. Rule. Rule made returnable forthwith. The petition is
heard finally with the consent of the learned Advocates for the
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parties.
3. The petitioner challenges the detention order dated
18.12.2023 bearing No. Out No.D.O.2023/MPDA/DET-09/DC-
423 passed by respondent No.1 and the confirmation order dated
29.02.2024 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 several offences were registered against
the petitioner, yet for the purpose of passing the impugned order,
three offences were considered i.e. Crime No.203 of 2023
registered with Karmad Police Station, District Chhatrapati
Sambhajinagar for the offence punishable under Sections 394,
506 of Indian Penal Code, Crime No.295 of 2023 registered with
MIDC Cidco Police Station, District Chhatrapati Sambhajinagar
for the offence punishable under Sections 392, 506 of Indian
Penal Code and Crime No.250 of 2023 registered with Wadod
Bazar Police Station, District Chhatrapati Sambhajinagar for the
offences punishable under Sections 341, 506 of Indian Penal
Code. The petitioner is challenging the impugned order on five
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grounds, (i) the offences which have been considered for passing
the detention order would have at the most affected law and order
and not the public order, (ii) there is delay in passing the
detention order which has not been explained, (iii) the detaining
authority has not considered that the ordinary law was sufficient
to deal with the situation, (iv) detaining authority has failed to
consider the point of false implication of the petitioner and (v)
there is delay of 28 days in deciding representation filed by the
petitioner by the State. In order to substantiate these five points
the learned Advocate for the petitioner submits that the facts of
the cases considered for detention order would show that the law
and order situation might have been created due to the activities
of the petitioner. There is delay of about 56 days taking into
consideration the last prejudicial activity of the petitioner and the
same has not been explained in the reply filed by the
respondents. He relies on the decisions in Prem Lata Sharma Vs.
District Magistrate, Mathura, [19998 CJ(SC) 670], Rama Dhondu
Borade Vs. V. K. Saraf, Commissioner of Police, [1989 CJ (SC) 428]
and S. Amutha Vs. The Government of Tamil Nadu and others,
[2022 LiveLaw (SC) 25], wherein it has been held that the
representation by a detenu will have to be decided without
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unnecessary delay as it is prejudicial to the life and liberty of the
detenu.
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
affects the public order. Learned APP relies on the affidavit-in-
reply of the then District Magistrate, Chhatrapati Sambhajinagar,
Mr. Astik Kumar Pandey, wherein he has tried to demonstrate as
to how he has arrived at the conclusion that the petitioner is a
dangerous person. In fact, his affidavit-in-reply is nothing but
the repetition of the grounds of detention. Further, he submits
that the matter was referred to Advisory Board by the State and
after receipt of the opinion, the confirmation has been given to
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the order of detention. He also states that he had referred the
earlier cases only to show the criminal past history of the
petitioner and ascending trend of his dangerous criminal
activities. It cannot be stated that old and stale cases were
considered by him to arrive at a conclusion that the petitioner is
a dangerous person.
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 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.
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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. As aforesaid, as per the grounds of detention,
Crime No.203 of 2023 under Sections 394, 506 of Indian Penal
Code, Crime No.295 of 2023 under Sections 392, 506 of Indian
Penal Code and Crime No.250 of 2023 under Sections 341, 506 of
Indian Penal Code were considered. It also appears that Karmad
Police Station had tried to take preventive action under Section
110(e)(g) of the Code of Criminal Procedure against the petitioner,
however, it was disposed of by saying that as the action under
MPDA was proposed, the Chapter Case was dropped. We are
unable to find out any such noting in the entire file. It appears
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that the sponsoring authority is Karmad Police Station and in
view of the same, the concerned police officer from Karmad Police
Station would have given the notice for action under Section
110(e)(g) of the Code of Criminal Procedure to the Petitioner. The
entire file does not say when that action was initiated and why it
was not then taken to the logical end before the proposal was
made on 11.12.2023. Therefore, we find substance in the
submission on behalf of the petitioner that the detaining
authority has not considered the point that whether petitioner
could have been dealt with under the ordinary law before taking
recourse to action under MPDA, which has been remarked as
draconian rule by the Hon'ble Supreme Court in Nevanath Bujji
(Supra). Taking into consideration the contents of the FIR of all
the three offences which have been considered for passing
detention order, at the most law and order situation would have
arisen and the informants therein had approached police stations
by taking recourse to the law. Same is the case as regards the
statements of in-camera witnesses 'A' and 'B'. Interesting point to
be noted is that an old lady and her relative went to police station
and lodged report for the act allegedly done by the petitioner, but
then the in-camera statements would show that those male
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members had not gone to the police station. The first paragraph
in their statements is copy paste. Even in the second paragraph,
major part is copy paste.
8. The further point is in respect of delay in passing the
detention order. According to the petitioner, there is delay of 56
days as he counts it from the date of last offence. We may not
fully agree with those submissions. In the decision in Digambar
@ Digambar Vitthal Dagdade Vs. The District Magistrate, Latur
and others, [Criminal Writ Petition No.1736 of 2023 decided on
08.02.2024], there was six months delay that was considered
from the date of last prejudicial activity. Taking into consideration
the same, those observations are there. Here, the repetition of
the further prejudicial activity would give rise to action of
detention and, therefore, in each case it may not be taken that
the starting point for counting the delay would be from the last
day of registration of the offence. The statement of in-camera
witnesses were recorded on 09.12.2023 and 10.12.2023
respectively. The confidential statements were verified by SDPO
on 12.12.2023. Proposal was submitted on 13.12.2023 and the
detention order has been passed on 18.12.2023. Therefore, we
are not impressed on the point of delay canvassed on behalf of
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the petitioner.
9. As regards delay in deciding the representation is
concerned, definitely when such representation is made, the State
is bound to decide the same as early as possible. The
representation was filed by the petitioner on 27.06.2024, which
was then forwarded by jail authority on the same day. It was
received by the State Government on 02.07.2024 and the
remarks of the detaining authority are called. It appears that the
remarks were given on 10.07.2024, yet the Additional Chief
Secretary, Home Department, rejected the said representation on
25.07.2024. Therefore, taking into consideration the decisions in
Prem Lata Sharma (Supra), Rama Dhondu Borade (Supra) and S.
Amutha (Supra), we hold that since the representation of the
detenu has been decided belatedly, the entire action and the
confirmation cannot be allowed to sustain. Further it is to be
noted that the bail that was granted to the petitioner in Crime
No.203 of 2023 was not considered by respondent No.2. As
regards the last offence i.e. Crime No.250 of 2023, the petitioner
was given notice under Section 41(1)(a) of the Code of Criminal
Procedure and was not arrested at all. It was the bailable offence
and, therefore, we are of the opinion that detention order cannot
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be based on bailable offence. In other words, the bailable offence
cannot be considered by the detaining authority for passing
detention order; wherein bail is as of right. Further, we are not
impressed with the point in respect of false implication, because
it is beyond the scope of the detaining authority.
10. 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.
11. For the aforesaid reasons, the petition deserves to be
allowed. Hence, following order is passed :-
ORDER
I) The Writ Petition is allowed.
II) The detention order dated 18.12.2023 bearing No.
Outward No. D.O.2023/MPDA/DET-09/DC-423 passed by
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respondent No.1 and the confirmation order dated
29.02.2024 passed by respondent No.2, are hereby quashed
and set aside.
III) Petitioner - Rahul Kaduba 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
