Bombay High Court
Malkhesingh Rajusingh Dudhani vs Commissioner Of Police And Anr on 4 April, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S. M. Modak
2025:BHC-AS:16358-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO.23607 OF 2024
Malkheshingh Rajusingh Dudhani .... Petitioner
versus
The Commissioner of Police,
Pune City, Pune & Ors. .... Respondents
.......
• Ms. Jayshree Tripathi a/w Anjali Raut, Advocate for Petitioner.
• Mr. S. V. Gavand, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL &
S. M. MODAK, JJ.
DATE : 04th APRIL, 2025
JUDGMENT :
(PER : SARANG V. KOTWAL, J.)
1. The Petitioner has challenged the order dated
23/10/2024 bearing No.OW NO./CRIME PCB/DET/WANAVDI/
DUDHANI/858/2024 issued by the Respondent No.1, i.e. The
Commissioner of Police, Pune City, Pune, under Maharashtra
Prevention of Dangerous Activities of Slumlords, Bootleggers,
Drug-offenders, Dangerous Persons, Video Pirates, Sand
MANUSHREE
NESARIKAR
Smugglers and Persons engaged in Black-marketing of Essential
11:36:27 +0530 Commodities Act, 1981 (for short 'MPDA Act').
Nesarikar
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2. Heard Ms. Jayshree Tripathi, learned Counsel for the
Petitioner and Mr. S. V. Gavand, learned APP for the State.
3. Along with the Detention Order, the Respondent No.1
issued the grounds of detention dated 23/10/2024. In
paragraph No.3 of those grounds, he has referred to four earlier
offences registered against the detenu at Deccan, Wanwadi and
Koregaon Park Police Station, from the year 2017 upto 2023.
There is a reference to preventive action taken in the year 2022.
4. Having referred to this past record, in paragraph No.5,
the Detaining Authority has referred to C.R.No.479/2024
registered at Wanwadi Police Station on 28/08/2024 u/s 115,
118(1), 352 of the Bharatiya Nyay Sanhita, 2023. In that case,
the detenu was not arrested, but notice u/s 35(3) of the
Bharatiya Nagarik Suraksha Sanhita, 2023, was served on him.
The said offence was in respect of the incident dated
28/08/2024. It had taken place at about 11.30 a.m. The
complainant in that case was assaulted by the Petitioner on left
elbow with some iron object.
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5. Apart from this registered offence, there is a reference
to two 'in-camera' statements referred in paragraph No.6.1 of
witness 'A' and witness 'B'. Those statements pertain to the incident
dated 10/08/2024 and 17/08/2024. The detenu had extorted
Rs.2,500/- from witness 'A' and Rs.1,000/- from witness 'B'.
6. Having noted this material, the Detaining Authority
stated in paragraph No.8 that the Petitioner's previous record
mentioned in paragraph No.3 shows that he was a habitual
criminal and then he relied on the material in paragraph Nos.5
and 6, i.e. C.R.No.479/2024 registered at Wanwadi Police
Station and the two 'in-camera' statements to pass the Detention
Order.
7. Learned counsel for the Petitioner has raised many
grounds in the Petition, but she restricted to her submissions
only to one ground, which is ground (bb) mentioned in the
Petition. Learned counsel submitted that the Detaining Authority
has mentioned that, with reference to C.R. No.479/2024, after
availing bail facility, and becoming a free person, the Petitioner
was likely to revert to the similar activities. Learned counsel for
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the Petitioner submitted that the statement is contradictory
because the Detaining Authority himself has stated that notice
u/s 35(3) of BNSS, was served on the Petitioner in connection
with the offence. Once that notice was served, there was no
question of his arrest and therefore the Detaining Authority's
further statement that the Petitioner was likely to avail bail
facility and was likely to commit similar offences is totally
contradictory to his own version. This also shows non-
application of mind on his part.
8. In response to these submissions learned APP
submitted that in the Marathi translation of the ground of
detention, the reference to the bail facility and likelihood of
commission of offence after availing the bail, is not mentioned.
Therefore, the Marathi translation is correct. However, he could
not justify the statement made in English grounds of detention,
with reference to the bail facility. The Detention Authority has
stated that notice u/s 35(3) of BNSS was served on the
Petitioner in connection with C.R.No.479/2024 registered at
Wanwadi Police Station and that the Investigating Officer has
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followed the directions of the Hon'ble Court. This reply in the
affidavit does not appear to be correct as there was no question
of Investigating Officer following any directions of the Court in
respect of giving notice u/s 35(3) of BNSS. There is no such
reference to any directions given by any Court mentioned in the
grounds of detention. It is further replied in the affidavit that the
Petitioner was arrested in connection with his criminal activities
and was released on bail from time to time by the concerned
Courts and he continued to commit his criminal activities after
getting released on bail. This again is a vague averment and it is
not restricted specifically to C.R.No.479/2024. The grounds of
detention indicate that the Detaining Authority treated the
Petitioner to be in custody. Only then he could have mentioned
as he has already mentioned that after availing of the bail
facility the Petitioner was likely to commit similar offences. This
shows lack of awareness that the Petitioner was not even
arrested in connection with C.R.No.479/2024 registered at
Wanwadi Police Station. Therefore, his satisfaction that after
availing bail facility in that connection, he was likely to commit
similar offences; is without any basis and it shows non-
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application of mind. Because of this, his subjective satisfaction is
vitiated. On this ground alone, the Petition succeeds.
9. Hence the following order is passed :
ORDER
(i) Rule is made absolute in terms of prayer clause
(B), which reads thus:
"(B) After perusing the records and
proceedings the impugned Order dated
23.10.2024 being order outward
no.CRIME PCB/DET/WANAVADI/DUDHANI/
858/2024 passed by the Respondent No.1
i.e. the Commissioner of Police, Pune City,
Pune be quashed and set side and the
Petitioner be released forthwith."
(ii) The Petitioner be released forthwith if not
required in any other case.
(iii) The Petition is disposed of.
(S. M. MODAK J.) (SARANG V. KOTWAL, J.)
