Bombay High Court
Rajesh @ Dadu Eknath Nikumbh (Dhobi) vs The State Of Maharashtra And Another on 23 September, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:24395-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1081 OF 2024
Rajesh @ Dadu Eknath Nikumbh (Dhobi)
Age: 21 years,
R/o. Old Pardhi Wada,
Subhash Chowk, Amalner,
District Jalgaon.
(Presently lodged in Central Prison,
Kolhapur.) .. Petitioner
Versus
1. The State of Maharashtra
Through its Additional Secretary,
Home Department (Special),
Mantralaya, Mumbai.
2. The District Magistrate,
Jalgaon,
Detaining Authority.
3. Superintendent of Central Prison,
Kolhapur Central Jail .. Respondents
...
Mr. R. R. Kazi, Advocate for the petitioner.
Mr. A. R. Kale, APP for the respondents - State.
...
CORAM : SMT. VIBHA KANKANWADI &
S. G. CHAPALGAONKAR, JJ.
DATE : 23 SEPTEMBER 2024
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. R. R. Kazi for the petitioner and
learned APP A. R. Kale for 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
14.03.2024 bearing Outward No. Dandapra/KAVI/MPDA/08/2024
passed by respondent No.2 as well as the approval order dated
21.03.2024 and the confirmation order dated 08.05.2024 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,
six offences were considered i.e. (i) Crime No.168 of 2021
registered with Amalner Police Station, District Jalgaon for the
offences punishable under Sections 354, 323, 504, 506, 427 of
Indian Penal Code, (ii) Crime No.467 of 2021 registered with
Amalner Police Station, District Jalgaon for the offences
punishable under Sections 392, 504, 506 of Indian Penal Code,
(iii) Crime No.239 of 2022 registered with Amalner Police Station,
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District Jalgaon for the offences punishable under Sections 394,
294 of Indian Penal Code, (iv) Crime No.294 of 2022 registered
with Amalner Police Station, District Jalgaon for the offences
punishable under Section 224 of the Indian Penal Code, (v) Crime
No.566 of 2022 registered with Amalner Police Station, District
Jalgaon for the offences punishable under Section 4 punishable
under Section 25 of the Indian Arms Act, 1959 and under Section
135 of the Maharashtra Police Act, 1951 and (vi) Crime No.62 of
2024 registered with Amalner Police Station, District Jalgaon for
the offences punishable under Section 394, 294, 506 of Indian
Penal Code. Learned Advocate for the petitioner submits that the
detaining authority has absolutely not considered that the
petitioner had come out of the jail in January 2024. After the
period of detention under MPDA was over, he was detained by
virtue of order dated 05.01.2023 by District Magistrate, Jalgaon.
Though the note of the said decision has been taken, yet the
present detaining authority considered all those cases which were
already considered in the earlier order. Therefore, there is
absolutely no subjective satisfaction and application of mind that
can be seen from the impugned order. Only one offence could
then be considered i.e. Crime No.62 of 2024, which is stated to
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have taken place on 18.02.2024. The statements of in-camera
witness 'A' is recorded on 22.02.2024 i.e. within four days from
the date of the registration of Crime No.62 of 2024. The petitioner
was arrested in that case on 19.02.2024 at 14.49 hours and on
the date the impugned order was passed, the bail application filed
by the petitioner was rejected by the Court of law. There is
absolutely no discussion as to why the ordinary law was not
sufficient to deter the activities of the petitioner. The State
Government has confirmed an illegal order and, therefore, not
only the detention order deserves to be set aside, but also the
approval and confirmation of the same deserves to be set aside.
It has not been communicated to the petitioner as to when the
order was placed before the Advisory Board by the State
Government, but then the order that is passed by the State
Government on 08.05.2024 is after a gap of 56 days from the
order of detention. Even the order of confirmation is not served
on the petitioner immediately. The order of confirmation was
passed on 08.05.2024 whereas the copy of that order was made
available to the petitioner on 12.06.2024. It can be seen from the
said document that it was before the prison officer that it was
served on 12.06.2024. Under such circumstance, the personal
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liberty of the petitioner has been jeopardized.
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 Mr. Ayush Prasad, the District Magistrate,
Jalgaon/detaining authority and his additional affidavit dated
21.09.2024. He supports the detention order passed by him and
tries to demonstrate as to how he had arrived at the subjective
satisfaction. He further states that his order has been approved
by the State Government and also by the Advisory Board.
Thereafter, the confirmation has been given. It has been
reiterated by the District Magistrate that the petitioner is a
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dangerous person as his long standing criminal activities are
causing serious hardship to the persons in the locality and
unless he could have been detained, his criminal activities could
not have been curbed. Even the Advisory Board has given the
opinion in favour of the order. It is tried to be demonstrated that
it is a wrong on the part of the petitioner to say that the order of
confirmation of the State Government was not received by him.
In fact, the order dated 21.03.2024 bears the signature of the
applicant, however, the order dated 08.05.2024 does not. The
confirmation order dated 08.05.2024 was received to the Central
Prison, Kolhapur on 20.05.2024 by post and it is served on the
same day on the petitioner. The Advisory Board had heard the
petitioner on 18.04.2024 and submitted the report to the State
Government within seven weeks from the date of detention.
Therefore, there is no delay in submitting the report to the State
Government.
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],
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(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
that illegal detention orders cannot be sustained and, therefore,
strict compliance is required to be made, as it is a question of
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liberty of a citizen.
8. After perusal of all the documents, we find this to be a
classic case where there is absolutely no subjective satisfaction
and no application of mind as well as lack of reasons in the order
by the detaining authority. When the fact was brought to the
notice of the detaining authority that the petitioner was detained
in Central Prision, Nashik by virtue of his predecessor by order
dated 05.01.2023, then he ought to have calculated when the
petitioner would have been released. Certainly, the effect of the
said order was till 04.01.2024. The respondent No.2 ought to
have seen the earlier order dated 05.01.2023 and which offences
were considered by his predecessor for detaining the petitioner.
The said order dated 05.01.2023 has been made available to this
Court and it can be seen that out of the six offences those were
considered by the present authority, five offences were already
considered in the said order dated 05.01.2023. Learned Advocate
for the petitioner has answered to our query that the petitioner
had not made any kind of representation in respect of the said
order dated 05.01.2023, nor he had filed writ petition challenging
the said order. He has undergone the said order. Therefore, on
the same set of facts or major part thereof, their could not have
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been another detention order. Still the present detaining
authority had considered those five offences also which were
already considered and, therefore, we observe that this is a
classic case of non application mind by the detaining authority.
When the petitioner had come out of jail on 04.01.2024, then the
present detaining authority ought to have considered only the
last offence i.e. Crime No.62 of 2024 registered with Amalner
Police Station, which was registered on 18.02.2024 for the offence
punishable under Sections 394, 294, 506 of Indian Penal Code.
It was still under investigation on the date of detention order.
Further, in the said offence the petitioner came to be arrested on
19.02.2024 and it is observed in paragraph No.11 of the
impugned order that the petitioner was in magisterial custody
and his bail application has been rejected. The detaining
authority then expresses that possibility of petitioner coming out
of the jail on bail in that matter cannot be ruled out and
possibility of he committing offences in future also cannot be
ruled out. We are of the opinion that detention order cannot be
so based on predictions which are not based on any concrete
evidence. Here, the previous history could not have been
considered by the detaining authority.
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9. Now turning to the in-camera statements, the first and the
foremost fact to be noted is that perusal of both the statements
would show that these witnesses were knowing even when the
petitioner was detained earlier and when he has come out of the
jail. Witness 'A' even says about those incidences which appear to
have been occurred with other persons and it also includes the
history of the petitioner since 2020. These in-camera statements
are not supposed to give character certificate to any person.
Witness 'B' says about the facts of Crime No.62 of 2024.
Therefore, we wonder as to whether those statements are of really
of those witnesses or they are just got prepared by the police with
specific intention, because there is only four days gap between
the last offence and the statements of these two witnesses. If we
consider Crime No.62 of 2024, wherein it is stated that after
showing knife the petitioner had extorted a liquor bottle and cash
of Rs.1250/-, this would have created at the most law and order
situation. Statement of witness 'A' says that the petitioner had
taken two cigarettes from him thereupon the witness asked him
to pay Rs.20/-, then the petitioner got annoyed and by showing
knife he extracted amount of Rs.600/- from the pocket of shirt of
the said witness and gave threat to kill him. He says that due to
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the fear of the petitioner he had not lodged the report with the
police regarding the said incident, which is stated to have taken
place in the first week of February 2024. Interesting point to be
noted is that he says that he is unable to give the date when in
fact in the same month his statement has been recorded.
Witness 'B' says that the petitioner had demanded him Hafta of
Rs.2000/- per month which the witness said that he would be
unable to pay and thereupon the petitioner by showing knife gave
threats and then the petitioner extracted amount of Rs.1000/-.
The said witness tried to say that after 14.02.2024, the petitioner
used to go to Subhash Chowk daily between 8.00 to 10.00 p.m.
and by showing knife to the petty shopkeepers used to demand
money or used to take articles without paying amount for them.
It is hard to believe that if such incident was going on till the
petitioner was arrested on 19.02.2024, why all those petty
shopkeepers from Subhash Chowk had not gone to the concerned
police station. Now, it would be easy to give such kind of
statement without naming the witness as well as those persons
against whom the incident had alleged to have taken place. We
deprecate such kind of practice and statements to be taken and
to be relied.
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10. Now, turning towards the order of confirmation served
belatedly, we do not accept the explanation tried to be given by
the detaining authority. He has tried to say that in fact the order
dated 21.03.2024 bears the signature of the applicant. In fact,
the document on record Exhibit-'B' page No.291-B would show
that the copy of the order dated 21.03.2024 was given to the
petitioner on 12.06.2024. There is no affidavit of the prison
authorities, whose signature is there with date 12.06.2024. No
doubt, the copy of the order on page No.291-A dated 08.05.2024
does not bear anybodies signature except Section Officer, Home
Department. Order dated 21.03.2024 is the approval order and
there is no document produced along with the affidavit of
respondent No.2 to show that when even the confirmation order
was served on the petitioner. In cases of detention matters, there
cannot be delay in serving the copy of such orders on the detenu.
Therefore, we are of the opinion that the order of detention
passed in this matter is illegal and cannot be allowed to sustain
for a minute. The approval and the confirmation of the same also
cannot be allowed to sustain.
11. In fact nowadays the detaining authorities are passing
orders without subjective satisfaction and without considering
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the various decisions of the Hon'ble Supreme Court as well as
this Court. Detaining authorities are not supposed to play with
the life and liberty of a citizen enshrined under the Constitution
of India. Unless there are strong grounds to arrive at a conclusion
that the activities of a proposed/detnue are prejudicial to the
public order (as considered in various decisions of the Hon'ble
Supreme Court) every proposal forwarded by the sponsoring
authority should not be culminated in detention order. In a given
circumstance then such detention authority and the State
Government would be made liable to pay compensation.
12. 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. As regards the role of
Advisory Board is concerned, we may lay our hands on the
decision in Nevanath (Supra), wherein the role of the Advisory
Board has been explained and the observations in respect of the
same in paragraph Nos.55 to 58 are important :-
"55. What can be discerned from a bare perusal of
the above-mentioned provisions is that the Advisory
Board performs the most vital duty of independently
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reviewing the detention order, after considering all the
materials placed before it, or any other material which
it deems necessary. When reviewing the detention
order along with the relevant materials, the Advisory
Board must form an opinion as to the sufficiency of
the cause for warranting detention. An order of
detention passed under the Act, 1986 can only be
confirmed if the Advisory Board is of the opinion that
there exists sufficient cause for the detention of the
detenu.
56. The framers of the Constitution being in
seisin of the draconian nature of an order of
preventive detention and its adverse impact on
individual liberty, have specifically put in place
safeguards within Article 22 through the creation of
an Advisory Board, to ensure that any order of
preventive detention is only confirmed upon the
evaluation and scrutiny of an independent authority
which determines and finds that such an order for
detention is necessary.
57. The legislature in its wisdom has thought it
fit, to entrust the Advisory Board and no one else, not
even the Government, with the performance of this
crucial and critical function which ultimately
culminates into either the confirmation or revocation
of a detention order. The Advisory Board setup under
any preventive detention law in order to form its
opinion is required to; (i) consider the material placed
before it; (ii) to call for further information, if deemed
necessary; (iii) to hear the detenu, if he desires to be
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heard and; (iv) to submit a report in writing as to
whether there is sufficient cause for "such detention"
or whether the detention is justified.
58. An Advisory Board is not a mere rubber-
stamping authority for an order of preventive
detention. Whenever any order of detention is placed
before it for review, it must play an active role in
ascertaining whether the detention is justified under
the law or not. Where it finds that such order of
detention is against the spirit of the Act or in
contravention of the law as laid down by the courts, it
can definitely opine that the order of detention is not
sustainable and should not shy away from expressing
the same in its report."
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.
13. 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 14.03.2024 bearing No.
Outward No. Dandapra/KAVI/MPDA/08/2024 passed by
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respondent No.2 as well as the approval order dated
21.03.2024 and the confirmation order dated 08.05.2024
passed by respondent No.1, are hereby quashed and set
aside.
III) Petitioner - Rajesh @ Dadu Eknath Nikumbh (Dhobi)
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
