Bombay High Court
Javed Sharfoddin Mulla vs The District Magistrate And Others on 10 February, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:4737-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.2069 OF 2024
Javed Sharfoddin Mulla
Age: 40 years,
R/o. Aurad Shahajani,
Tal. Nilanga, Dist. Latur .. Petitioner
Versus
1. The District Magistrate,
Latur.
2. The State of Maharashtra
Through the Secretary,
Home Department (Special),
Mantralaya, Mumbai.
3. The Superintendent
Chhatrapati Sambhajinagar
Central Prison, Chhatrapati
Sambhajinagar. .. Respondents
...
Ms. Jayshri Tripathi, Advocate h/f Mr. Rupesh A. Jaiswal, Advocate for
the petitioner.
Mr. N. R. Dayama, APP for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
MANJUSHA DESHPANDE, JJ.
DATE : 10 FEBRUARY 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Ms. Jayshri Tripathi holding for
learned Advocate Mr. Rupesh A. Jaiswal for the petitioner and
learned APP Mr. N. R. Dayama for the 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 order dated 31.10.2024
bearing No.2024/MAG/MPDA/Desk-2/Kavi-463 passed by
respondent No.1 as well as the approval order dated 08.11.2024
and the confirmation order dated 18.12.2024 passed by
respondent No.2, 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.
She submits that though several offences were registered against
the petitioner, yet for the purpose of passing the impugned order,
only one offence was considered i.e. Crime No.324 of 2024
registered with Aurad Shahajani Police Station, District Latur for
the offences punishable under Sections 132, 303(2), 352, 351(2)
(3)(5) of Bhartiya Nyaya Sanhita, 2023 and under Sections 48 (7),
48(8) of Maharashtra Land Revenue Code, 1966. Learned
Advocate for the petitioner submits that the detaining authority
has considered the offence vide Crime No.324 of 2024 and two
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statements of in-camera witnesses. If we consider the statements
of witnesses 'A' and 'B', it would show that no incident had taken
place against them, but only on the basis of whatever information
they had, they say that the activities of the petitioner are
detrimental to public. Such statements ought not to have been
allowed for consideration. Further, the detention order has been
passed on 31.10.2024 and copies of only few documents have
been supplied on 01.11.2024 to the petitioner. The copy of the
in-camera statements supplied to the petitioner do not show that
the detaining authority had verified those statements. In respect
of the offence, though the presence of the petitioner has been
shown at the spot, yet at the time of passing detention order the
detaining authority ought to have considered as to whether the
petitioner was released on bail by the competent Court or not.
The representations by the petitioner have been belatedly decided
thereby the orders have been passed in violation of the
constitutional rights of the petitioner. Therefore, the material
which was before the detaining authority was not sufficient to
arrive at a subjective satisfaction. Therefore, the impugned order
is illegal and cannot be allowed to be sustained.
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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 Ms. Varsha Thakur-Ghuge, which states about as to how
she had arrived at the subjective satisfaction. Though in the
past, preventive action was taken against the present petitioner, it
appears to have been futile as he continued to commit theft of the
sand and caused damage to the environment and the government
property.
6. Before considering the case, we would like to take note of
the legal position as is emerging in the following decisions :-
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(i) Nenavath Bujji etc. Vs. State of Telangana and
others, [2024 SCC OnLine SC 367],
(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 Nenavath Bujji
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(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
liberty of a citizen. The impugned order is a classic example of
non application of mind. First of all, as regards the statements of
in-camera witnesses 'A' and 'B' are concerned, it can be seen that
those persons as if they were giving character certificate to the
petitioner. In fact, witness 'A's identity has been indirectly
disclosed wherein he says that he had lodged the N.C. complaint
against the petitioner and the number of N.C. complaint has also
been given. The police officer, who had recorded the said
statement, has not taken care so that there should not be a
problem to the said witness. Neither the verifying authority nor
the detaining authority appears to have considered this. The
reason behind keeping the identity of such person concealed
ought to have been considered by them. Further, there is
absolutely no verification of both the statements by the detaining
authority and we have confirmed this from the original. Such
unverified statements ought not to have been relied upon by the
detaining authority or at least now we cannot consider it to be a
piece of evidence on the basis of which the detaining authority
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could have passed the detention order. The detaining authority
should bear in mind that when such orders under the detention
laws are passed, then it curtails the constitutional rights of a
citizen and therefore, every seriousness should be exercised
before passing such order.
8. The only one offence which was considered was Crime
No.324 of 2024 which was registered at the behest of the police
constable. It appears that the incident took place at 10.00 a.m.
on 23.09.2024. Informant and his team were on Bandobast when
they intercepted a tractor trolley. The trolley had one brass of
sand. Now, it is said that where they had intercepted the tractor
trolley, the petitioner was present. It is not stated that the
petitioner accompanied the tractor trolley. Then for what purpose
the petitioner was present there would be a question. Inquiry
was made by this police officer with the tractor driver, but then
he says that the petitioner had took out the pin and separated
the tractor from the trolley. A third person was called and asked
to take away the trolley. It is surprising that when three police
persons other than the informant were present at the spot, still
they could not overpower the petitioner and when all these
activities were going on i.e. making inquiry, calling third person
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asking him to take away the trolley, which was separated from
the head of the tractor, none of the police persons had tried to
take him in custody. Anyway, even if we take the facts as it is, yet
the public was not involved. Already the State has taken action.
The petitioner has been prosecuted and certainly, he was released
on bail by the competent Court. The bail order was not placed
before the detaining authority. Therefore, we agree to the
statement made by the learned Advocate for the petitioner that
the material before the detaining authority was not sufficient to
arrive at a subjective satisfaction.
9. 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 offence allegedly committed would
reveal that the petitioner had created law and order situation and
not disturbance to the public order. 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.
10. For the aforesaid reasons, the petition deserves to be
allowed. Hence, following order is passed :-
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ORDER
I) The Writ Petition stands allowed.
II) The detention order dated 31.10.2024 bearing
No.2024/MAG/MPDA/Desk-2/Kavi-463 passed by respondent
No.1 as well as the approval order dated 08.11.2024 and the
confirmation order dated 18.12.2024 passed by respondent
No.2, are hereby quashed and set aside.
III) Petitioner - Javed Sharfoddin Mulla shall be released
forthwith, if not required in any other offence.
IV) Rule is made absolute in the above terms.
[ MANJUSHA DESHPANDE ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
