Bombay High Court
Ballan Shyamlal Goswami vs The State Of Maharashtra Thr. Its Addl. ... on 24 September, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:10685-DB
1/9 Cri. WP-350-24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.350 OF 2024
Ballan Shyamlal Goswami
Aged about 32 Years, Citizenship: Indian,
Occ.: Driver, R/o: Mine No. 6, Kanhan
Tah., Parsheoni, Kamptee, Nagpur.
(Presently in Central Prison, at Nagpur) Petitioner
-Versus-
1. The State of Maharashtra, through its
Additional Chief Secretary, Home
Department, Government of Maharashtra,
Mantralaya, Mumbai-32.
2. Collector and District Magistrate, at Nagpur.
Respondents
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Shri Nirav S Padia, counsel for the Petitioner.
Shri S.S. Doifode, APP for R-1 and 2.
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CORAM : VINAY JOSHI AND
MRS.VRUSHALI V. JOSHI, JJ.
Date of Reserving the judgment:- 06/09/2024
Date of Pronouncing the judgment:- 24/09/2024
ORAL JUDGMENT (Per :Vrushali V.Joshi, J.)
1) Heard.
2) Rule. Rule made returnable forthwith. The Criminal Writ
Petition is heard finally with the consent of the learned counsels
appearing for the parties.
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3) The petitioner is raising the challenge to the impugned
order dated 16 December, 2023, passed by respondent No.2 under
Section 3(2) of the Maharashtra Prevention of Dangerous Activities
of Slumlords, Bootleggers, Drug-Offenders, Dangerous persons,
Video Pirates, Sand Smugglers and Person Engaged in Black-
Marketing of Essential Commodities Act, 1981(for short referred to
as the "MPDA Act") thereby ordering his detention as a dangerous
person, which was confirmed by the Government vide order dated
30.01.2024 bearing no. MPDA-1223/CR-714/Spl-3B.
4) The detaining authority has taken into consideration two
crimes registered against him, i.e. C.R. No.703/2023 registered
under Sections 341, 504, 506 of Indian Penal Code on 15.11.2023
and C.R. no. 705/2023 u/s 143, 147, 149, 323, 324 of IPC on
19.11.2023. The Respondent no.2 has also taken into consideration
statements of couple of anonymous witnesses to arrive at the
subjective satisfaction while passing the detention order. On the
very day of the order, after the grounds of detention were
communicated to the petitioner on 16.12.2023, he was committed
to the prison.
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5) The learned counsel for the petitioner, would submit that,
there was no nexus between the alleged prejudicial activities and the
detention order as the live-link is snapped therein with a substantial
unexplained delay of twenty eight days in passing the detention
order. He would then submit that, in-camera statements are not
corroborated by any document to support the contents made in the
said confidential statements and the crimes which are considered
does not create any disturbance of public order.
6) The learned APP would oppose the petition relying
upon the affidavit of the Collector and District Magistrate, Nagpur.
He would submit the occurrence of the crimes as in the manner in
which they took place. On perusal of the in-camera statements of
the witnesses, it appears that the incidents occurred are not identical
in nature. These criminal activities of causing grievous hurt with
lethal weapons, to commit unlawful restraint, to form unlawful
assembly has continuously affected the peace of the citizens,
produced insecurity and constant shadow of fear in their daily lives
and businesses within the limits of Police Station, Kanhan.
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7) Shri Doifode, learned APP would submit that, on the
aspect of absence of live-link, the petitioner was aware that the
procedure under Section 56(1)(b) of the Maharashtra Police Act,
was going on against him, on the basis of which proceedings under
the MPDA, Act, were initiated to deter him from committing
offences further and the last offence is within six months, the time
period was consumed in verification of in-camera statements and to
ascertain it's truthfulness. He further submitted that, the
verification report of the confidential statements was forwarded to
the Detaining Authority on 08.12.2023. There was also an
endorsement regarding verification on the statements itself, the
original copies are with the detaining authority while the dummy
copies were supplied to the detenu to conceal the identity of the
witnesses. Hence, prayed to dismiss the petition.
8) The Hon'ble Apex Court in the case of Nenavath Bujji
etc Vs. State of Telangana and ors reported in 2024 SCC OnLine
SC 367 in paragraph No.20 has observed thus:-
20. The law is well settled that the power under any
enactment relating to preventive detention has to be
exercised with great care caution and restraint. In order to
pass an order of detention under the Act, 1986 against any
person, the detaining authority must be satisfied that he is a
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'GOONDA' within the meaning of Section 2(g) of the Act,
1986. Who either by himself or as a member of or a leader
of a gang habitually commits or attempts to commit or abets
the commission of offences punishable under Chapter XVI
or Chapter XVII or Chapter XXII of the IPC is according to
the explanation to Section 2(a) of the Act, 1986, it is such a
'GOONDA' who for the purpose of Section 2 of the Act,
1986, shall be deemed to be a person acting in any manner
prejudicial to the maintenance of public order and against
whom an order of detention may lawfully be made".
9) The Hon'ble Apex Court has referred the judgment in the
case of Pushkar Mukherjee V. State of West Bengal , (1969) 1 SCC
10, in which in paragraph No.13, it is observed as under:-
13. "Does the expression "public(1) [1951] S.C.R.
167. order" take in every kind of infraction of order or only
some categories thereof. It is manifest that every act of assault
or injury to specific persons does not lead to public disorder.
When two people quarrel and fight and assault each other
inside a house or in a street, it may be said that there is
disorder but not public disorder. Such cases are dealt with
under the powers vested in the executive authorities under
the provisions of ordinary criminal law but the culprits
cannot be detained on the ground that they were disturbing
public order. The contravention of any law always affects
order but before it can be said to affect public order, it must
affect the community or the public at large. In this
connection we must draw a line of demarcation between
serious and aggravated forms of disorder which directly affect
the community or injure the public interest and the relatively
minor breaches of peace of a purely local significance which
primarily injure specific individuals and only in a secondary
sense public interest. A mere disturbance of law and order
leading to disorder is thus not necessarily sufficient for action
under the Preventive Detention Act but a disturbance which
will affect public order comes within the scope of the Act".
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10) In view of above observations, we have to first consider
the crimes and the statements which are considered by the
detaining authority are amount to disturbing the public order. The
two offences which the detaining authority has considered are
crime Nos. 703 of 2023 and 705 of 2023. Both the offences are on
the spot of Chhatpuja. The offence in Crime No.703 of 2023 is
occurred on 15.11.2023. Shubham Mukhiya is the complainant. He
was going towards his house for Chhatpuja at Gadegaon. The
petitioner along with his associates came in Nexon car and by
blowing horn, he has given threats to the applicant, why he has not
given him side and abused him. Therefore, he lodged the complaint
and crime is registered for the offence punishable under Sections
341, 504, 506 of the Indian Penal Code. From the nature of
offence it is clear that it does not create any situation of public
order.
11) Another crime is dated 19.11.2023 (Crime No.705 of
2023). One Deepak was distributing the tea and biscuits to
devotees at Kanhan river. He has given threats to him, why he is
coming there and he is the don of said area. He told him that first
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he torned the tires of his car now he will tear him. He beat him
with fighter.
12) The learned APP has stated that as he has used fighter
which is normally used by the habitual offender and therefore, he is
a dangerous person. After going through the First Information
Report of this crime, it appears that it is the fight between
individual and not creating any situation of public order.
13) Learned counsel appearing for the petitioner has
heavily relied upon the judgment of Nenavath Bujji etc Vs. State of
Telangana and ors reported in supra particularly paragraph No. 31,
the relevant portion of which is reproduced as under:-
"31............What has been alleged against the
appellant detenu could be said to have raised the
problems relating to law and order but we find it
difficult to say that they impinged on public order.
This Court has time and again, reiterated that in
order to bring the activities of a person within the
expression of "acting in any manner prejudicial to the
maintenance of public order" the activities must be of
such a nature that the ordinary laws cannot deal with
them or prevent subversive activities affecting
society. 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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14) The statements of confidential witnesses are also
considered for passing of the detention order. The statements are
though verified by the SDPO and the original copy of the
statement shows that it is seen by the detaining authority but on
perusal of the Xerox copy given to the petitioner, it appears that
there is no signature of the detaining authority as seen, which
clearly shows that the detaining authority has signed as 'seen'
afterwords. Therefore, the question of subjective satisfaction of
truthfulness of the statement is there. The statements also show that
it creates law and order situation and it is between the individuals.
Though it is mentioned that the gun is used in the said crime and
the knife is used, the statements are not reliable as the authority has
not seen it while passing the detention order. Though, the learned
APP has stated that it is verified by the SDPO and the other officers
is sufficient and if it is mentioned by the detaining authority he is
subjectively satisfied on enquiring with the Officers, it is sufficient
for subjective satisfaction of truthfulness of the said statement.
Only on the report of Sub Divisional Officer the detaining
authority has come to the conclusion that the statements are true
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and justified. As the crime, which are considered can be controlled
by the ordinary law. The cases are still pending for investigation.
The subjective satisfaction of the truthfulness is not sufficient for
detaining the petitioner. Hence, we pass the following order.
15) In the result, we find that this Writ Petition deserves to
be allowed and it is allowed.
16) The detention order passed by the detaining authority
is quashed and set aside.
17) The petitioner be set at liberty forthwith, if not required
in any other crime.
18) Rule is made absolute in aforesaid terms.
(MRS.VRUSHALI V. JOSHI, J) (VINAY JOSHI, J)
Signed by: Kavita P Tayade
Designation: PA To Honourable Judge
Date: 25/09/2024 18:01:07 Kavita
