Bombay High Court
Shahezad Khan Shammi Khan vs The State Of Maharashtra Thr. Secretary ... on 20 September, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:10590-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 202 OF 2024
Shahezad Khan Shammi Khan,
Aged about 27 years, Occ. - Labour,
R/o. Indira Nagar, Bhosa Road, Yavatmal. ... PETITIONER
...VERSUS...
1. State of Maharashtra,
Through its Secretary, Home Department
(Special) Mantralaya, Mumbai.
2. Collector/District Magistrate, Yavatmal. ... RESPONDENTS
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Mr. M. N. Ali, Advocate for petitioner.
Mr. S. S. Doifode, A.P.P. for respondents/State.
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CORAM : VINAY JOSHI AND MRS. VRUSHALI V. JOSHI, JJ.
JUDGMENT RESERVED ON : 12.09.2024
JUDGMENT PRONOUNCED ON : 20.09.2024
JUDGMENT (PER : MRS. VRUSHALI V. JOSHI, J.):
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1. Rule. Rule is made returnable forthwith. Heard finally by
consent of learned counsel appearing for the parties.
2. The petitioner challenges the detention order dated 15.12.2023
passed by the respondent No.2 under Section 3 sub-section (1) 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
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(the MPDA Act, 1981) and which is confirmed by the respondent No.1 on
30.01.2024.
3. The learned Counsel for the petitioner has taken us through the
impugned orders and material which were before the authority at the time
of passing the impugned orders. He submits that though certain cases were
registered against the petitioner, the cases which were considered for
passing the detention order were registered with Awadhutwadi Police
Station bearing Crime No.824/2023 for the offences punishable under
Sections 143, 147, 148, 149, 324, 504 and 506 of the Indian Penal Code
and Crime No.976/2023 for the offences punishable under Sections 326,
504 and 506 of the Indian Penal Code.
4. The learned Counsel for the petitioner has stated that
considering the same offences, the brother of the petitioner Parvez was
detained and this Court has set aside the detention order on 09.05.2024.
Both the cases are already considered and this Court has observed that the
cases do not come under the purview of the public order. In the first
offence i.e. Crime No.824/2023, the informant asked one of the friends of
the petitioner not to abuse, he scolded them, therefore, the petitioner came
with 7 to 8 persons in City Bar. Crime is registered and notice under
Section 41(1)(a) of the Code of Criminal Procedure was given to the
petitioner. In Crime No.976/2023, the petitioner restrained the
complainant, who is owner of tempo traveller and asked him for money to
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run his business and when the complainant refused, he beat him with iron
rod and gave him threat. In this case, the petitioner was arrested and
released on bail. These offences are already considered by this Court by
considering the judgment of Mallada K. Sri Ram Vs. State of Telangana
reported in Live Law (SC) 358, the Hon'ble Supreme Court has considered
the distinction between disturbance to law and order and a disturbance to
public order, after considering its Constitution Bench Judgment in Ram
Manohar Lohia Vs. State of Bihar reported in AIR 1966 SC 740 and its
judgment in Banka Sneha Sheela Vs. State of Telangana reported in (2021)
9 SCC 415 and has held as under : -
"...... A mere apprehension of a breach of law and order is not
sufficient to meet the standard of adversely affecting the
"maintenance of public order". In this case, the apprehension
of a disturbance to public order owing to a crime that was
reported over seven months prior to the detention order has
no basis in fact. The apprehension of an adverse impact to
public order is a mere surmise of the detaining authority,
especially when there have been no reports of unrest since the
detenu was released on bail on 8 January 2021 and detained
with effect from 26 June 2021. The nature of the allegations
against the detenu are grave. However, the personal liberty of
an accused cannot be sacrificed on the altar of preventive
detention merely because a person is implicated in a criminal
proceeding. The powers of preventive detention are
exceptional and even draconian. Tracing their origin to the
colonial era, they have been continued with strict
constitutional safeguards against abuse. Article 22 of the
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Constitution was specifically inserted and extensively debated
in the Constituent Assembly to ensure that the exceptional
powers of preventive detention do not devolve into a
draconian and arbitrary exercise of state authority. The case at
hand is a clear example of non-application of mind to material
circumstances having a bearing on the subjective satisfaction
of the detaining authority. The two FIRs which were registered
against the detenu are capable of being dealt by the ordinary
course of criminal law."
Considering the crimes, similar is the situation in case at hand.
5. The detaining authority also relied on two confidential
statements. The respondents have not produced the original statements on
record. The learned A.P.P. has produced masked xerox copies of the
statements of two witnesses for perusal of the Court as the originals were
not available.
6. The contention of the petitioner is that the subjective
satisfaction of the truthfulness of the statements is not there and it is not
even seen by the detaining authority. On perusal of the xerox copies of the
statements, it appears that the name and incidents are masked. It is not
even seen by the detaining authority. Though the learned A.P.P. has stated
that if the Divisional Officer has verified it and the detaining authority
discussed with the Divisional Officer and passed the order considering the
statements, then there is subjective satisfaction about the truthfulness of the
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statements. As the original statements are not produced on record and are
not available, it is not even seen by the detaining authority, it is not
mentioned in the grounds of the detention that the detaining authority has
discussed it with the Divisional Officer, who has verified it, cannot be
considered for passing the detention order. The contents in the statements
are about manhandling when the petitioner was standing on the square.
Both the statements are similar. From the statements of the witnesses, it
apepars that it does not create any situation of public order. Therefore,
following the ratio in Mallada K. Sri Ram (supra), it clearly shows that
neither of the incidents which were referred to in the above two crimes, can
be termed as incidents which have caused alarm to the citizens or that any
citizen was living under the fear of the petitioner disturbing daily life in the
vicinity or that he had indulged in an act which could be disruptive of public
order. Both the incidents are either between two individuals or merely on a
search carried out by the Police and are, therefore, not incidents which can
be considered as disruptive of public order.
7. Even going through the incidents described in two in-camera
statements would reveal that the acts of the petitioner could be perhaps in
the nature of giving threats to an individual, but cannot be termed to be
acts disruptive of public order.
8. The crimes which are considered are already considered in the
earlier case, which is decided by this Court. The subjective satisfaction is
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not there. The ratio laid down in the above judgments squarely applies to
the facts of this case. Therefore, we hold that the contents of in-camera
statements in any case do not justify holding that the incidents are
disturbance to public order besides which in any case there was no
subjective satisfaction of the detaining authority.
9. In the result, the petition is allowed.
We hereby quash and set aside the order dated 15.12.2023
passed by respondent No.2, so also order dated 30.01.2024 confirmed by
respondent No.1 and direct the detenue to be set at liberty forthwith, unless
his detention is required in some other crime.
10. Rule is made absolute in aforesaid terms.
(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
Signed by: Mrs. R.M. MANDADE
RGurnule
Designation: PA To Honourable Judge
Date: 23/09/2024 17:25:14
