Bombay High Court
Salim Khan Jalil Khan Pathan vs The State Of Maharashtra And Others on 20 September, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:24388-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1209 OF 2024
Salim Khan Jalil Khan Pathan
Age: 26 years, Occu.: Labour,
R/o. Mastanshah Nagar, Hingoli,
Taluka and District Hingoli. .. Petitioner
Versus
1. The State of Maharashtra
Through its Section Officer,
Home Department (Special),
Mantralaya, Mumbai-32.
2. The District Magistrate,
Hingoli, District Hingoli.
3. The Superintendent of Jail,
Central Prison, Aurangabad. .. Respondents
...
Mr. Rupesh A. Jaiswal, Advocate h/f Mr. S. G. Ghongade, Advocate for
the petitioner.
Mr. N. R. Dayama, APP for the respondents - State.
...
CORAM : SMT. VIBHA KANKANWADI &
S. G. CHAPALGAONKAR, JJ.
DATE : 20 SEPTEMBER 2024
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. Rupesh A. Jaiswal for the
petitioner and learned APP Mr. N. R. Dayama 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
22.12.2023 bearing No.2023 DC-1/KAVI-792/2023/1606
passed by respondent No.2 and the confirmation order dated
13.02.2024 passed by respondent No.1, 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,
two offences were considered i.e. Crime No.912 of 2023 registered
with Hingoli City Police Station, District Hingoli for the offences
punishable under Sections 386, 323, 324, 504, 506 read with
Section 34 of the Indian Penal Code and Crime No.915 of 2023
registered with Hingoli Police Station for the offences punishable
under Section 4 punishable under Section 25 of the Indian Arms
Act. Learned Advocate for the petitioner submits, taking into
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consideration the facts in the two cases which are considered for
passing detention order, that it cannot be said that the activities
of the petitioner would have caused any problem for public order.
Further, in Crime No.912 of 2023, the petitioner was released on
bail by the Court on 09.12.2023, whereas as regards the other
offence is concerned it is said that he has been released on notice
under Section 41-A of the Code of Criminal Procedure. The
statements of in-camera witnesses 'A' and 'B' would also show
that the facts do not disclose that the public order situation
would have arose. The petitioner is studied up to 2 nd standard
and he can understand Hindi and Marathi only. He is not
conversant with English. Translation of all the documents has
not been supplied to him. Further, it appears from the impugned
order that even the past cases against the petitioner were also
considered though at one point of time it is stated that only two
cases have been considered. Such order cannot be allowed to
remain.
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,
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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 respondent No.2 Mr. Jitendra Shrikumar Papalkar,
District Magistrate, Hingoli, who has reiterated the same facts
and tries to demonstrate that there is no delay in passing the
order. It is stated that the petitioner's illegal and dangerous acts
had become a serious threat and source of danger to the lives of
law abiding citizens and therefore, it was threat to the public
order. The petitioner was found roaming with Khanjar/Dagger
and threatening the public in open space. This is nothing but to
establish supremacy in the area and, therefore, the petition
deserves to be dismissed.
6. Before considering the case, we would like to take note of
the legal position as is emerging in the following decisions :-
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(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. 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
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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 impugned order shows that out of seven
offences registered against the petitioner only two offences have
been considered i.e. Crime No.912 of 2023 and 915 of 2023. The
contents of FIR vide Crime No.912 of 2023 would show that the
petitioner and his associates had gone to the residence of
informant, abused him, beaten him and extorted amount of
Rs.15,000/-. It is to be noted that the petitioner has been
released on bail in the said matter, which appears to be on
09.12.2023 (wrongly stated to be released on 02.11.2023, as the
date of offence and arrest are dated 27.11.2023 and 29.11.2023
respectively). Though the incident is stated to have taken placce
at 1.30 am., other Sections have not been invoked and it appears
to have caused law and order situation at the most as the place of
incident is inside the house. As regards another offence i.e.
Crime No.915 of 2023 under Section 4 punishable under Section
25 of the Arms Act is concerned, no Notification has been
brought to our notice or the detaining authority appears to have
not seen the said Notification as required under Section 4 of the
Indian Arms Act. Now, unless there is a Notification, there cannot
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be violation of the same by making allegations. The said offence
is still under investigation. The FIR is lodged by police person.
Whether other common man, who was present at the spot, is
there and whether his statement under Section 161 of the Code
of Criminal Procedure has been recorded or not was not clarified
by the sponsoring authority. In order to arrive at a conclusion
that the act would have created public order situation, the
detaining authority should go to that extent as to what was the
stage of investigation and which evidence has been collected so as
to infer that the said activity of the detenu would be detrimental
to the public order. The statement of in-camera witnesses 'A' and
'B' would show that the witnesses were knowing everything
regarding the petitioner. Even they have gone to the extent that
what is the criminal background of the petitioner and why other
people are not coming forward to lodge report. Witness 'A' says
that about eight days prior to his statement i.e. on 18.12.2023,
the applicant had closed house of his sister with an intention to
commit theft and then he had damaged the LCD TV. The witness
then asked the petitioner why he has entered the house of the
sister, then he was assaulted by the petitioner and threatened.
We may post questions to ourselves that if the house was closed,
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then how the petitioner got to know that the petitioner has
entered the said house. In his statement, he is not clarifying
where he was, what was the time when the alleged incident took
place. We are aware about the limitation of this Court for
scrutiny, but we want to clarify it that these details were
necessary so as to see how the detaining authority had arrived at
the subjective satisfaction. There has to be an element of truth in
the story and if there are such circumstances, that will disbelieve
or create doubts about the story. Then the detaining authorities
are not justified in believing such stories in order to arrive at
subjective satisfaction. As regards witness 'B', he says that
petitioner met him within the premises of bus stand. Petitioner
asked him amount for eating mutton and drinking liquor.
Witness refused and thereupon, the petitioner slapped him and
gave him threat. This would be the personal act against the said
witness, which would not have created public order situation.
8. 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
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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.
9. For the aforesaid reasons, the petition deserves to be
allowed. Hence, following order is passed :-
ORDER
I) The Writ Petition is allowed.
II) Detention order dated 22.12.2023 passed by
respondent No.2 bearing No.2023 DC-1/KAVI-792/2023/1606
and confirmation order dated 13.02.2024 passed by
respondent No.1 are hereby quashed and set aside.
III) Petitioner viz. Salim Khan Jalil Khan Pathan 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
