Bombay High Court
Kiran Anna Chavan vs State Of Maharashtra And Anr on 14 February, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S.M. Modak
2025:BHC-AS:8297-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 23454 OF 2024
Kiran Anna Chavan
Age : 19, Occ: Labour
(Presently in custody of Chandrapur
Jail)
R/o- Khokalai Chowk, Loni Kalbhor,
Haveli, Pune .....Petitioner
Versus
1. State Of Maharashtra
Through Principal Secretary,
Department of Home,
Govt. of Maharashtra
Mantralaya, Madam Cama Road,
Mumbai - 400032
2. Commissioner of Police
Having address at : Pune
3. The Superintendent
Chandrapur Central Prison. .....Respondents
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Mr. Kuldeep U. Nikam a/w Prasad Avhad - Advocate for the Petitioner.
Mr. J. P. Yagnik - APP for the Respondent No. 1-State.
-----
CORAM : SARANG V. KOTWAL &
S.M. MODAK, JJ.
DATE : 14th FEBRUARY 2025
JUDGMENT :
(Per SARANG V. KOTWAL, J.)
1. The Petitioner has challenged the order dated 23.08.2024 passed by
the Respondent No. 2-Commissioner of Police, Pune City, bearing outward
SEEMA KSHITIJ
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no. Crime PCB/DET/LONIKALBHOR/CHAVAN/678/2024. Vide the
impugned order, the Petitioner was directed to be detained under the
Maharashtra Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand
Smugglers and Persons engaged in Black-marketing Essential
Commodities Act, 1981. On the same date, by a separate committal order,
the Petitioner was directed to be detained in the Chandrapur Central
Prison. Alongwith the detention order and the committal order, the
Petitioner was served with the grounds of detention dated 23.08.2024.
2. Learned Counsel Shri Kuldeep Nikam for the Petitioner-detenue
made the following submissions:-
(i) The incidents relied on by the detaining authority were not
affecting the public order. At the highest, it could be said
that they are impacting law and order and not the public
order.
(ii) There was unexplained delay in passing the detention
order. In one of the offences where he was arrested, he
was released on 01.06.2024 and thereafter, the detention
order was passed on 23.08.2024 which shows that there
was no necessity of passing the detention order at all.
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(iii) The movement of the proposal shows that it was
unnecessarily routed through the offices of the different
authorities and ultimately, on one occasion, it was again
sent back to the Sponsoring authority and then, it was
finally placed before the detaining authority.
(iv) All these show that there was not only delay in passing the
order, but there was no necessity of passing the order at
all.
(v) Apart from these grounds, he submitted that action on the
part of the Sponsoring authority is malafide. The detaining
authority has recorded a contradictory opinion in the
detention order, which has affected the subjective
satisfaction of the detaining authority. At different places,
in the detention order different stand is taken. Therefore,
the Petitioner is deprived of making an effective
representation at the earliest, challenging the detention
order.
3. Learned APP on the other hand supported the detention order. He
submitted that the action on the part of the detenue was affecting the
public order and there was history of offences being continuously
committed by the detenue. Therefore, it is quite clear that he was a
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habitual offender. The detaining authority has considered his past history
to reach this conclusion. Therefore, there was nothing wrong in the
passing of the detention order. He submitted that there was no delay in
passing the detention order, as the two in-camera statements were
recorded on 10.07.2024 and 12.07.2024. Since then, the proposal was
accelerated for passing of the detention order, which ultimately
culminated in the passing of the detention order on 23.08.2024.
Therefore, according to the learned APP, there is no force in the
submission that there was delay in passing the detention order.
4. We have considered these submissions. Paragraph no. 3.1 of the
grounds of detention refers to C.R. No. 769 of 2023 registered at Loni
Kalbhor Police Station on 14.12.2023 under Sections 324, 323, 504 and
506 read with 34 of the Indian Penal Code. It is mentioned that on
05.01.2024, notice was issued under Section 41(1)(a) of the Criminal
Procedure Code. In paragraph no. 3.2, there is reference to Chapter Case
No. 49 of 2024 dated 17/01/2024 under Section 107 of the Criminal
Procedure Code. It is mentioned that to initiate more effective action, on
24.06.2024, the case was withdrawn before the Special Executive
Magistrate, Hadapsar, Division Pune City. At the end of paragraph no. 3, it
was mentioned that those preventive actions were shown only to highlight
his desperate tendencies to commit violent crime.
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5. The Paragraph no. 4 is important, wherein the detaining authority
has clearly stated that he had considered the two registered offences
mentioned in paragraph nos. 5.1 and 5.2 and two in-camera statements
mentioned in paragraph nos. 6.1 and 6.2. The first registered offence
mentioned in paragraph no. 5 was C.R. No. 271 of 2024 at Loni Kalbhor
Police Station under Sections 324, 504, 506, 143, 147 and 149 of the
Indian Penal Code, under Section 4 (25) of the Arms Act and under
Section 37(1)(3) read with 135 of the Maharashtra Police Act. It was
registered on 16.05.2024. He was arrested on 16.05.2024, and he was
released on bail on 01.06.2024.
The other registered offence was C.R. No. 337 of 2024 at Loni
Kalbhor Police Station under Sections 427, 143, 144, 147, 148, 149, 504
and 506 of the Indian Penal Code, under Section 4(25) of the Arms Act,
under Section 37(1)(3) read with 135 of Maharashtra Police Act and
under Sections 3 and 7 of Criminal Law Amendment Act. It was dated
23.06.2024. In connection with this offence, he was issued notice under
Section 41(1)(a) of the Criminal Procedure Code.
6. Besides this, there were two in-camera statements mentioned in
paragraph nos. 6.1 and 6.2. The statements of the witnesses 'A' and 'B'
were recorded on 10.07.2024 and 12.07.2024 in respect of the incidents
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dated 03.07.2024 and 04.07.2024 respectively. In both these separate
incidents, the Petitioner had allegedly extorted an amount of Rs. 550/-
and Rs. 700/- from these two witnesses. These are the main grounds
mentioned in Paragraph nos. 5 and 6 of the grounds of detention.
7. Importantly, the Detaining authority has specifically mentioned in
paragraph no. 8 that he had mentioned the offences and preventive
actions taken in Paragraph no. 3, 3.1, 3.2 of the grounds of detention to
show that the Petitioner was a habitual criminal involved in continuous
criminal activities. He has further mentioned that he had relied upon
material mentioned in Paragraph Nos. 5.1, 5.2 and 6.1, 6.2 of the grounds
of the detention to arrive at his subjective satisfaction that the detenue
was a Dangerous person as defined under Section 2(b-1) of the
Maharashtra Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand
Smugglers and Persons engaged in Black-marketing Essential
Commodities Act, 1981. These statements in the detention order itself are
contradictory, because the main ingredient under Section 2(b-1) of the
said Act is that the said person should be 'habitually' committing the
offences (emphasis is supplied). The term 'Dangerous person' is defined
under Section 2(b-1) of the said Act, which reads thus:-
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"'Dangerous person' means a person, who either by
himself or as a member or leader of a gang,
habitually commits, or attempts to commit or abets
the commission of any of the offences punishable
under Chapter XVI or Chapter XVII of the Indian
Penal Code or any of the offences punishable under
Chapter V of the Arms Act, 1959."
Therefore, the main ingredient of that Section that the said person should
be habitually committing those offences.
8. The detaining authority has taken contradictory stand; because in
paragraph no. 4, he has stated that he had mainly relied on the offences
mentioned in paragraph no. 5.1, 5.2 i.e. C.R. No. 271 of 2024 and 337 of
2024 at Loni Kalbhor Police Station and the two in-camera statements.
That does not include the earlier C.R. No. 769 of 2023 of Loni Kalbhor
Police Station and the Chapter Case No. 49 of 2024 which is mentioned in
paragraph no. 3.2. But in paragraph no. 8, he has mentioned that he had
taken these past activities in consideration to observe that he was
habitually committing these offences. Thus, it shows non application of
mind on his part. This has given rise to confusion thereby affecting the
detenue's rights to make the earliest effective representation.
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9. There is another angle to this detention order. In CR No. 769 of
2023 and 337 of 2024 of the Loni Kalbhor Police Station, notice was
issued to the detenue, but he was not arrested. That means that the Police
Officer did not even feel it necessary to arrest him. Only in C.R. No. 271 of
2024, he was actually arrested. In this background, it is stated Chapter
case no. 49 of 2024 was withdrawn on 24.06.2024 to initiate more
effective action. This reason is quite interesting. That means on
24.06.2024, the Sponsoring Authority had already decided to take more
stringent action against the Petitioner and after that the two in-camera
statements came to be recorded on 10.07.2024 and 12.07.2024 and then
proposal for detention order was initiated. Therefore, there is substance in
the submissions of the learned Counsel for the Petitioner that the
Sponsoring authority had deliberately created the material by recording
in-camera statements, subsequently, after deciding to withdraw the
preventive action under Section 107 of the Criminal Procedure Code on
24.06.2024. Thus, the action on the part of the Sponsoring authority also
appears to be malafide.
10. Based on the above discussion, it is quite clear that the detention
order is not sustainable and is liable to be set aside.
11. Hence, the following Order :-
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ORDER
(i) The detention order dated 23.08.2024 bearing No. Crime
PCB/DET/ LONIKALBHOR/CHAVAN/678/2024 passed by the
Respondent No. 2 is quashed and set aside.
(ii) The Petitioner shall be released forthwith if not required in any
other case.
(iii) The Rule is made absolute in the aforesaid terms.
(iv) The Writ Petition is disposed off.
(S.M. MODAK, J.) (SARANG V. KOTWAL, J.)
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