Bombay High Court
Suraj Prakash Bariyekar vs State Of Maharashtra And Anr on 29 April, 2025
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2025:BHC-NAG:4758-DB
1 cr.wp.165.25-JF.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.165 OF 2025
Suraj s/o Prakash Bariyekar,
(Detained in Central Prison, Amravati),
Aged about 36 years,
R/o. : Sant Ravidas Ward, Tiroda,
Tah. Tiroda, District- Gondia. ... PETITIONER
...VERSUS...
1. State of Maharashtra
Through its Secretary, Department of Home,
Madam Cama Road, Hutatma Rajguru
Chowk, Mantralaya, Mumbai-32.
2. District Magistrate,
Gondia, Tah. & District- Gondia.
3. Superintendent (Jail),
Central Prison, Amravati,
District- Amravati.
4 Police Station Officer,
Police Station, Tirora,
Tah. Tirora, District- Gondia. ... RESPONDENTS
------------------------------------------------------------------------------------------------
Mr. I. S. Charlewar, Advocate for the Petitioner.
Mr. S. S. Doifode, A.P.P. for Respondents/State.
-----------------------------------------------------------------------------------------------
CORAM : NITIN W. SAMBRE AND MRS. VRUSHALI V. JOSHI, JJ.
JUDGMENT RESERVED ON : 16.04.2025
JUDGMENT PRONOUNCED ON : 29.04.2025
JUDGMENT (PER : MRS. VRUSHALI V. JOSHI, J.):
-
1. Rule. Rule is made returnable forthwith. Heard finally by
consent of learned counsel appearing for the parties.
2 cr.wp.165.25-JF.odt
2. Through this writ petition, the petitioner is seeking to
question the legality of the detention order passed by respondent No.2 on
12.09.2024 and confirmation order passed by respondent No.1 on
10.01.2025 under the provisions of the Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers, Drug-offenders,
Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged
in Black-Marketing of Essential Commodities Act, 1981 (hereinafter
referred to as the "MPDA Act").
3. A total of fourteen offences along with two in-camera
statements of confidential witnesses have been taken into account in
order to term the petitioner as a 'bootlegger' within the provisions of the
MPDA Act.
4. The learned Counsel for the petitioner has pressed onto the
following grounds to challenge the detention order:
(i) The respondent No.2 mechanically passed the impugned
detention order based on the proposal submitted by respondent No.4
without conducting any enquiry. Furthermore, respondent No.1 has also
confirmed the impugned detention order without conducting any
independent enquiry.
(ii) The detaining authority did not grant the detenu any
opportunity of hearing. Moreover, the in-camera statements of the
3 cr.wp.165.25-JF.odt
confidential witnesses 'A' and 'B' are stereotypical. Hence, the subjective
satisfaction reached at by the detaining authority stands vitiated.
5. The learned Counsel for the petitioner, Mr. I. S. Charlewar
submits that the detention order passed by respondent No.2 is based on
the proposal submitted by respondent No.4, which mentions that there
are fourteen pending criminal cases against the petitioner, out of which
he was already discharged under seven of the offences. It is further
submitted that the respondent No.2, while detaining the detenu, failed to
take into consideration that he had already been discharged in the above
mentioned offences, hence, the detaining authority has acted
mechanically while passing the order of detention.
6. It was further submitted by the learned Counsel for the
petitioner that as per Section 3(3) of the MPDA Act, after passing the
detention order, the respondent No.1 is under an obligation to decide
whether to grant approval to the detention order passed by the
respondent No.2 within twelve days from the date of receipt of the
report. It was further submitted that a bare perusal of Section 3(3) of the
MPDA Act would reveal that the detention order shall not remain in force
for more than twelve days unless in the meantime it has been approved
by the State Government. The learned Counsel for the petitioner submits
that the order of detention came to be passed on 12.09.2024, whereas
the confirmation order came to be passed on 10.01.2025, which is way
4 cr.wp.165.25-JF.odt
beyond the stipulated time period. Hence, the legality of the order of
detention is questioned.
7. Learned A.P.P. Mr. S.S. Doifode, has filed an affidavit-in-
reply and has vehemently opposed the arguments of the petitioner and
has supported the contents of the detention order. The learned A.P.P has
submitted that the detenu was given the opportunity of representing
himself through his Counsel before the Advisory Board and after
considering all the facts of proposal and representation made by the
detenu, the order of detention came to be confirmed on 10.01.2024. It is
further submitted that after taking into consideration the two in-camera
statements and the detenu's crime report, the detaining authority has
subjectively satisfied himself about the criminal activities of the detenu,
hence, he was detained as a 'bootlegger'.
8. Heard both the learned Counsel for the parties.
9. On perusal of the detention order it appears that the detenu
is detained as a bootlegger and a dangerous person. The offences under
the Indian Penal Code along with the Maharashtra Prohibition Act are
registered against the petitioner. Fourteen offences are considered for
passing the detention order along with two confidential statements. For
passing the detention order, the offences which are registered under the
Maharashtra Prohibition Act are considered and it appears that no
5 cr.wp.165.25-JF.odt
Chemical Analyser's Report (C.A. Report) is filed in any of the offences.
Serious allegations are made in Crime No.125/2024 wherein on
information received about the illegal liquor, the lady police officer
entered the house of the petitioner to conduct an enquiry, at that time,
accused/petitioner removed all the clothes and become naked in front of
the lady police officer. The offences under Sections 353, 506, 509 read
with Section 34 of the Indian Penal Code and Sections 65 (b) to (d),(e)
(f) of the Maharashtra Prohibition Act were registered. He had also used
filthy language against the lady police officer. Though these allegations
are made and the offences are registered against the petitioner, stale
offences are considered for passing the detention order. The C.A. reports
are not made available for declaring the detenu as a bootlegger.
10. On perusal of the statements of witnesses, it appears that the
statements are not properly verified by the Sub-Divisional Police Officer
and it is only seen by the District Magistrate. Therefore, the statements
are also not helpful to pass the detention order.
11. One of the grounds raised by the petitioner is that the period
of detention is not mentioned as per the requirement of Section 3(3) of
the MPDA Act.
12. The learned A.P.P. has relied on the judgment of the Hon'ble
Apex Court in the case of T. Devaki Vs. Government of Tamil Nadu and
6 cr.wp.165.25-JF.odt
Ors. reported in (1990) 2 SCC 456, wherein it is observed by the Hon'ble
Apex Court that the order is not rendered illegal on account of detaining
authority's failure to specify period of detention in the order.
13. This Court in the matter of Dinesh s/o. Nimba Gaikwad Vs.
State of Maharashtra reported in 2018 LawSuit (Bom) 1313 by relying on
the judgment of the Hon'ble Apex Court has observed that the order of
detention not specifying period of detention, does not make the order
invalid.
14. In support of his argument he has also placed reliance on the
judgment of the Hon'ble Apex Court in the case of State of Maharashtra
and Ors. Vs. Balu s/o. Waman Potole reported in (2021) 13 SCC 454.
15. On perusal of the order it appears that in the committal
order dated 12.09.2024 specific period of 12 months is not mentioned,
however, it reveals that in the order passed by the respondent No.1 on
10.01.2025, 12 months detention period is specifically mentioned.
Therefore, this ground is not available to the petitioner.
16. The ground of not giving opportunity of hearing is also
raised by the petitioner. On perusal of the detention order it appears that
the petitioner was not heard before passing the detention order. In reply
it is mentioned by the respondent that the representation was considered
7 cr.wp.165.25-JF.odt
by the Advisory Board. The opportunity of personal hearing was not
given to the petitioner before passing the detention order.
17. In view of the above said reasons, the petition is allowed.
18. The detention order dated 12.09.2024 passed by the
respondent No.2 and the approval order dated 10.01.2025 passed by the
respondent No.1 is hereby quashed and set aside.
19. The petitioner be set at liberty forthwith, if not required in
any other crime.
20. Rule is made absolute in aforesaid terms.
(MRS. VRUSHALI V. JOSHI, J.) (NITIN W. SAMBRE, J.)
RGurnule
Signed by: Mrs. R.M. MANDADE
Designation: PA To Honourable Judge
Date: 06/05/2025 15:05:25
