Bombay High Court
Sachin Mukund Balkhande vs The State Of Maharashtra Thr. Its ... on 11 February, 2025
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2025:BHC-NAG:1348-DB
1 wp406.2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.406/2024
Sachin Mukund Balkhande
Aged about 30 years, Occ- Labour,
R/o Shankar Nagar, Akot File, Akola ... Petitioner
- Versus -
1. State of Maharashtra,
Through its Secretary, Home
Department (Special) Mantralaya,
Mumbai.
2. District Magistrate/Collector, Akola. ... Respondents
-----------------
Mr. Mir Nagman Ali, Advocate for the petitioner.
Mr. S.S. Doifode, A.P.P. for respondent Nos.1 and 2.
----------------
CORAM: NITIN W. SAMBRE & MRS.VRUSHALI V. JOSHI, JJ.
DATE OF RESERVING THE JUDGMENT: 28.1.2025.
DATE OF PRONOUNCING THE JUDGMENT: 11.2.2025.
JUDGMENT (Per Mrs. Justice Vrushali V. Joshi, J.)
Rule. Rule made returnable forthwith. Heard finally with
the consent of learned Advocates for the parties.
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2. By way of present petition the petitioner prays to quash and
set aside the detention order dated 30.3.2024 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 Persons Engaged in Black Marketing of Essential
Commodities Act, 1981 (for short "M.P.D.A. Act").
3. Perusal of the impugned detention order would depict that
a reference is made to as many as nine crimes registered against
the petitioner. Although specific reference is made to one crime
i.e. Crime No.662/2023 in the impugned order reference is also
made to one preventive action, two externment proceedings and a
previous detention order dated 4.9.2021 which was set aside by
this Court in Criminal Writ Petition No.820/2021.
4. The above-mentioned crime i.e. Crime No.662/2023
punishable under Sections 307, 326, 324, 323, 201, 143, 147,
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148, 149, 504 and 506 of the Indian Penal Code r/w 3(1)(r)(s),
3(2)(v) and 3(2)(va) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 and Sections 4 and 25
of the Arms Act was registered on 4.12.2023 at Police Station
Khadan. The detenu was arrested on 21.2.2024 in the said
offence and the matter is sub judice before the concerned Court.
The crime is related to castigation of the complainant, beating his
brother to cause injury and attacking the neighbours of the
complainant with knives as there were ten to fifteen companions
involved in the incident as well. It is pertinent to note that the
name of the petitioner is not there in the First Information Report
in the said crime.
5. In-camera statement of witness "A" asserts that since the
confidential witness runs a hotel, his son was beaten with fist and
slaps by the companions of the detenu and the detenu put a knife
on the stomach of the witness and threatened to stab him. On the
similar line, anonymous witness "B" was stopped by the detenu
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and his companions while returning from work at around 10:00
P.M. The witness was threatened as he was accused of being an
informant of the police by the detenu and thus he put knife on
waist of witness to threaten him, he also kicked him on the chest,
back, stomach and also threw knife towards the gathered public.
6. Learned Advocate for the petitioner argued that stale
offences have been taken into account having no nexus with the
passing of the detention order. It is submitted that as far as crimes
mentioned at Sr. No1 to 8 in para No.3 of the detention order are
concerned, neither bail applications nor bail orders have been
placed before the detaining authority. It is further stated by the
learned advocate for the petitioner that it is informed to the
detaining authority that petitioner was externed vide order dated
18.2.2019 but the same was quashed and set aside which has not
been placed before the detaining authority. It is further submitted
that detenu was already in custody in Crime No. 662/2023 and
merely because bail application was preferred
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which was subsequently rejected does not mean that there was a
high chance of detenu being released on bail.
7. Per contra, learned A.P.P. opposed the petition and
submitted that the detaining authority has gone through the
record, seen and signed the in-camera statements after finding
them to be truthful and arrived at subjective satisfaction having
found reliable material against the detenu. There is application of
mind at every level i.e at recording of statement, verification of
them and at the stage of passing detention order and thus the
impugned order is not vitiated. The record reveals that the
detenu has the tendency to repeat illegal activities which are
prejudicial to the maintenance of public order warranting his
detention. The subjective satisfaction of the detaining authority is
based on reliable material placed before it.
8. Learned A.P.P. supplied emphasis on the aspect that in so
far as the contention of prior custody of the petitioner and need to
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pass the detention order is concerned, it is submitted that the
detaining authority was aware about the custody of the petitioner
in crime No.662/2023 and the chances of his release on bail and
the future apprehension of indulging again into the crimes
prejudicial to the maintenance of public order looking into his
criminal history and tendency to commit crime, cannot be denied.
Thus, there is existence of compelling necessity for the detention
of the petitioner despite his custody. Hence prayed to dismiss the
petition.
9. Heard learned Advocate for the petitioner and learned
A.P.P. for respondent Nos.1 and 2 and have gone through the
record.
10. Crime No.662/2023 is considered while passing the
detention order which is punishable under Sections 307, 326,
324, 323, 201, 143, 147, 148, 149, 504 and 506 of the Indian
Penal Code r/w Sections 3(1)(r)(s), 3(2)(v) and 3(2)(va) of the
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Atrocities Act 1989 and Sections 4 and 25 of the Arms Act was
registered on 4.12.2023 at Police Station, Khadan. At the time of
passing the detention order the petitioner was in jail in this crime
and was not released on bail. The chargesheet in this crime is
filed. This crime is committed at a public place. A fight broke out
between the petitioner and his friends while they were celebrating
birthday of one of them. It was during the fight when public
gathered to see what had happened, the complainant tried to
make them understand, in turn, the complainant was assaulted
with weapon by them due to which the crime came to be
registered. Though it took place in the public place it appears that
mandatory requirements of passing the detention order are not
followed. Though the petitioner was in jail the detention order
was passed and it is not mentioned in the detention order by the
detaining authority as to why the detention order was passed even
when the petitioner was already in custody.
11. Learned Advocate for the petitioner has relied on the
judgment of the Hon'ble Apex Court in the case of Dharmendra
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Suganchand Chelawat V/s. Union of India reported in 1990
DGLS (SC) 67 particularly para 19 which reads as follows:-
"19. The decisions referred to above lead to the
conclusion that an order for detention can be validly
passed against a person in custody and for that
purpose it is necessary that the grounds of detention
must show that (i) the detaining authority was aware
of the fact that the detenu is already in detention; and
(ii) there were compelling reasons justifying such
detention despite the fact that the detenu is already in
detention. The expression "compelling reasons" in
the context of making an order for detention of a
person already in custody implies that there must be
cogent material before the detaining authority on the
basis of which it may be satisfied that (a) the detenu is
likely to be released from custody in the near future,
and (b) taking into account the nature of the
antecedent activities of the detenu, it is likely that
after his release from custody he would indulge in
prejudicial activities and it is necessary to detain him
in order to prevent him from engaging in such
activities.
12. It appears from the detention order that while passing the
detention order the detaining authority has mentioned earlier
eight crimes in the detention order and has relied on one offence
i.e. Crime No.662/2023, the bail in this crime was rejected and
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no specific reasons are given while passing the detention order to
keep the petitioner under detention.
13. The petitioner has relied on para 13 of the judgement in
Writ Petition No.834/2023 (Khailesh Pancham Salame V/s. State
of Maharashtra and another) to which one of us was party (Mrs.
Vrushali V. Joshi, J.) reads as follows:-
"13. The third ground agitated by the counsel
appearing for the petitioner is that before passing the
impugned order of detention, the detaining
authority perused all the material, which was placed
before him in other grounds that the material shown
in paragraph Nos.3 and 5 which according to the
learned counsel appearing for the petitioner is
extraneous material which vitiates the subjective
satisfaction of the detaining authority."
14. Two confidential statements on which the detaining
authority has relied upon are not even seen by the authority
before the date of passing of the detention order. On perusal of
the original confidential statements of the witnesses, it appears
that the authority has seen it only on the date of passing the
detention order which creates a doubt about arriving at the
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subjective satisfaction by the detaining authority and about the
truthfulness of the statements of witnesses.
15. It is observed by the Hon'ble Apex Court in paras 13 and
14 of the judgment in case of Deepak Dattu Suryawanshi V/s.
Commissioner of Police and others reported in 2017 ALL M.R.
(CR) 416 which read as follows:-
"13 ..... "It is therefore, not only the right of the
court, but also its duty as well, to examine what are
the basic facts and materials which actually and in
fact weighed with the detaining authority in
reaching the requisite satisfaction. The judicial
scrutiny cannot be foreclosed by a mere statement of
the detaining authority that it has taken into
account only certain basic facts and materials and
though other basic facts and materials were before
it, it has not allowed them to influence its
satisfaction. The Court is entitled to examine the
correctness of this statement and determine for itself
whether there were any other basic facts of
materials, apart from those admitted by it, which
could have reasonably influenced the decision of the
detaining authority and for that purpose, the Court
can certainly require the detaining authority to
produce and make available to the Court the entire
record of the case which was before it. That is the
least the Court can do to ensure observance of the
requirements of law by the detaining authority."
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14. In the light of discussion in foregoing
paragraphs and as held by the Supreme Court in the
case of Dharamdas Shamlal Agarwal vs. The Police
Commissioner and another, supra, that once the
requisite subjective satisfaction of the detaining
authority is vitiated due to non-placing the acquittal
order of detenu before the detaining authority, the
detention order renders invalid. In our considered
opinion, in the present case for more than one
reason including non-placing of the order of
acquittal of detenu i.e. Petitioner in Criminal
Appeal No.71 of 2004 (Mr. Deepak Dattu
Suryawanshi vs. The State of Maharashtra) decided
on 15th February 2011, and also on other two
grounds, the requisite subjective satisfaction of the
detaining authority stands vitiated, rendering the
detention order invalid. Accordingly the Petition
must succeed and we pass the following order"
16. Another ground raised by the petitioner is that though the
petitioner was earlier detained and released by this Court the said
order was not placed before the detaining authority while passing
the detention order. On perusal of the detention order it appears
that a reference has been made to the earlier detention order,
although it was mentioned that the petitioner was released upon
completion of the detention but it is not correct. This Court had
set aside the said detention order in Criminal Writ Petition
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No.820/2021 the copy of which is not placed on record. There is
no subjective satisfaction arrived at by the detaining authority
while considering the statements of witnesses. The entire relevant
material for passing the detention order is not placed before the
detaining authority and when the order was passed the petitioner
was already in jail, all these facts vitiates the detention order
passed by the detaining authority on 30.3.2024.
17. For the aforesaid reasons, the petition is allowed.
The petitioner be released forthwith, if not required in any
other crime.
(MRS.VRUSHALI V. JOSHI, J.) (NITIN W. SAMBRE, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PA To Honourable Judge
Date: 12/02/2025 14:17:44
