Bombay High Court
Gautam Valmik Jadhav vs The District Collector And Other on 20 September, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:22022-DB
CriWP-1101-2024
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1101 OF 2024
Gautam S/o Valmik Jadhav
Age : 27 years
R/o. Mahalgaon, Vaijapur
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
Central Prison ... Respondents
.....
Mr. Rupesh A. Jaiswal, Advocate for the Petitioner.
Mrs. R. P. Gaur, APP for the Respondents.
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 23 AUGUST 2024
PRONOUNCED ON : 20 SEPTEMBER 2024
JUDGMENT (Per Abhay S. Waghwase, J.) :
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1. Heard learned Advocate Mr. Rupesh A. Jaiswal for the
petitioner and learned APP Mrs. R. P. Gaur for respondents-State.
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2. Rule. Rule made returnable forthwith. The petition is heard
finally with consent of the parties.
3. In this Writ Petition, there is challenge to the order of detention
dated 12.04.2024 passed by respondent no.1 herein under Section 3
of the "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" (for short, "MPDA Act"), directing detention
of present petitioner in Central Prison, Chhatrapati Sambhajinagar.
4. It is pointed out that the impugned order has been
mechanically passed in very casual and cavalier manner without
subjective satisfaction as required under law. According to learned
counsel, there is non application of mind while withdrawing valuable
liberty of petitioner. That, there are several lapses on the part of the
detaining authority in not reporting its action to the State
Government expeditiously and forthwith, as is contemplated under
Section 3(3) of the MPAD Act. According to him, there is undue and
unexplained delay in forwarding report to the Government. That,
further, even Government has delayed in considering and deciding
the representation made by the petitioner.
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5. Taking this Court through the grounds of detention, it is
pointed out that stereotype statements of witnesses are recorded.
That, petitioner is shown to be involved in three to four episodes
within a short span. Therefore, according to him, it is clear that there
is total non-application of mind before slapping the charges. He
further pointed out that he has already been granted anticipatory bail
by the Sessions Court in one of those cases wherein crime has been
recently registered, i.e. C.R. No. 13 of 2024.
6. Learned Advocate for the petitioner further submits that there
is consideration of extraneous material while passing the impugned
order and therefore, according to him, in view of the settled
precedents, the impugned order is not liable to be sustained and is
rather required to be quashed and set aside.
7. Per contra, on the strength of affidavit, learned APP pointed out
that petitioner is involved in serious crimes. Considering the same, he
has been declared as dangerous person. He is repeatedly involved in
serious offences. That, previous preventive actions have not deterred
him. Therefore, action contemplated under the MPAD act was
required to be taken. That, the detaining authority has considered the
material in its correct perspective and on due and just satisfaction,
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order has been passes and as such, she prays to dismiss the writ
petition.
8. Before adverting to the facts of the case, we would like to refer
the three Judge Bench decision of the Hon'ble Supreme Court in
Nevanath Bujji etc. v. State of Telangana and others [2024 SCC
OnLine SC 367] , wherein, after considering various judgments, the
legal position has been summarized 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
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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,
(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,
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(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) /
ground(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 the pertinent and proximate material and vital matters
would show lack of statutory satisfaction on the part of
the detaining authority."
9. As per ratio laid down in Nevanath Bujji (supra), it has to be seen
as to whether the detaining authority, while passing the detention
order, had arrived at the subjective satisfaction and whether the
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procedure as contemplated has been complied with or not. It is also
reiterated in Nevanath Bujji (supra) 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.
10. In the case in hand, on perusal of the grounds of detention at
Exhibit "C", it seems that by virtue of Section 8 of the MPAD Act,
petitioner was served with material regarding his involvement in
following offences :
Sr. Police Particulars of crime Date of Present
No. Station Registration status
1. Vaijapur 17/2020 u/s 12(A) of 14.01.2020 Pending trial
Maharashtra Prevention of
Gambling Act.
2. Virgaon 107/2020 u/s 269, 270, 188 23.05.2020 Pending trial
IPC, Sec. 4/25 of Arms Act, Sec.
51(B) of The Disaster
Management Act, Sec. 2 of The
Epidemic Diseases Act, Rule 11
of the Maharashtra Covid-19
Regulations 2020.
3. Virgaon 286/2023 u/s 143, 341 of IPC, 13.12.2023 Pending
Sec. 135 of Maharashtra Police Investigation
Act.
4. Virgaon 13/2024 u/s 452, 294, 336, 04.01.2024 Pending
427, 504, 506, 34 of IPC Investigation
5. Virgaon 14/2024 u/s 384, 143, 147, 04.01.2024 Pending
326, 323, 427, 504, 506 r/w 34 Investigation
IPC
6. Virgaon 15/2024 u/s 307, 143, 147, 04.01.2024 Pending
427, 504, 506 IPC Investigation
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11. According to the respondent authorities, he has shown
propensity to indulge in criminal activities which are prejudicial to the
maintenance of public order. Incidences of his involvement and
complaints to that extent received by the police authorities are
reflected in para 4 (i), (ii), (iii) and (iv). 452, 294, 336, 427, 504, 506,
12. As regards crime bearing no. 286 of 2023 is concerned, it is
pertaining to commission of offence punishable under Sections 143,
341 of IPC and Section 135 of the Maharashtra Police Act, 1951.
13. Regarding the three incidences which took place on
04.01.2024, three crimes seem to have been registered at Virgaon
police Station i.e. crime no. 13 of 2024 for offence under Sections
452, 294, 336, 427, 504, 506, 34 of IPC ; crime no. 14 of 2024 for offence
punishable under Sections 384, 143, 147, 326, 323, 427, 504, 506 r/w 34
of IPC ; and crime no. 15 of 2024 for offence punishable under Sections
307, 143, 147, 427, 504, 506 of IPC. It is pertinent to note that at the time
of registration of all three crimes, he is shown to be absconding.
14. Crime no. 13 of 2024 seems to have been registered on report by one
Smt. Vimal Madhukar Gaikwad, alleging therein that on 04.01.2023 at
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about 14.45 hrs., while she was present at her house, petitioner and his
associates came to her house on motorcycle, threatened to kill her and her
sons and also threatened to set the petrol pump on fire. It is further alleged
that informant's Innova car was damaged and stones were pelted on the
doors of the house of informant.
15. Crime No. 14 of 2024 seems to be at the instance of one Prasad
Laxman Jadhav. He has alleged that that on 04.01.2024 at about 12.00
hrs., when he was present at his hotel, petitioner and his seven to eight
associates came there, consumed liquor and started smashing empty bottles
on table. On being questioned, petitioner abused him, demanded hafta from
him and threatened to kill him if hafta is not paid within five days. He
further alleged that petitioner then broke chairs and tables in the hotel,
inflicted injury to him with a knife and also beat and threatened the people
in the hotel and while leaving the hotel, petitioner again issued life threats
and to file case of atrocities against him if he reports the incident to police.
16. Regarding the third incident on the same day which is alleged to
have occurred at 14.00 hrs., Crime No. 15 of 2024 came to be lodged by the
informant therein, i.e. Rameshwar Gorakhnath Patole, who reported that
when he parked his vehicle in front of Vighnaharta garage, petitioner and
his associates came there and gave dash to his vehicle from rear side and
damaged his vehicle by pelting stones and hitting with iron rod and sticks.
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He further alleged that petitioner and his associates then abused him and
hit him with stone and iron rod and he too was threatened with life and
case of atrocity.
17. Considering the above three offences, there does not seem to be any
proper explanation as to how petitioner was found at three distinct spots on
the same day i.e. 04.01.2024. Moreover, he is also shown to be absconding.
Learned counsel for the petitioner pointed out that he was already on bail
i.e. anticipatory bail. If this is so, and if this has not been refuted, then,
while passing impugned order of detention, the said order ought to have
reflected to that extent. If, while on bail, he committed further offences,
then question arises as to why no efforts were made by police machinery to
get his bail cancelled. Therefore, here, above discussion creates doubt
whether respondent authority has applied its mind as required under law
and whether there is subjective satisfaction on the material necessitating
action of detention in prison.
18. Law laid down by the Hon'ble Supreme Court in the case of Abdul
Sathar Ibrahim Manik Etc v. Union Of India And Ors [1991 AIR SC 2261]
and reiterated in Ratnamala Mukund Balkhande v. State of Maharashtra
[2022 ALL M.R. (Cri.) 3106] on the aspect of the detenu to be on bail, has
been apparently lost sight of by the detaining authority.
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19. In view of the above discussion, petitioner succeeds. Hence, we
pass the following order:
ORDER
I. Writ Petition is allowed.
II. The detention order dated 12.04.2024 passed by respondent no.1
bearing No. 2024/MPDA/DET-02/DC-143 is hereby quashed and set
aside.
III. Petitioner Gautam S/o Valmik Jadhav shall be released forthwith, if
not required in any other offence.
IV. Rule is made absolute in the above terms.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]
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