Bombay High Court
Dhiraj Rajendra Pawde vs The State Of Maharashtra And Others on 21 February, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:5221-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1909 OF 2024
Dhiraj s/o Rajendra Pawde
Age: 25 years, Occu.: Private Service,
R/o. Rahane Mala, Sangamner,
Tq. Sangamner, Dist. Ahmednagar .. Petitioner
Versus
1. The State of Maharashtra,
Through Principal Secretary,
Home Department, Mantralaya,
Mumbai.
2. The District Magistrate,
Ahmednagar, Tq. And Dist. Ahmednagar.
3. The Superintendent
Nashik Central Prison,
Nashik. .. Respondents
...
Mr. S. C. Bhosle, Advocate for the petitioner.
Mr. A. D. Wange, APP for respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 21 FEBRUARY 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. S. C. Bhosle for the petitioner
and learned APP Mr. A. D. Wange for the respondents - State.
2. Rule. Rule made returnable forthwith. The petition is
heard finally with the consent of the learned Advocates for the
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parties.
3. The petitioner challenges the detention order dated
05.07.2024 bearing No.DC/Desk-9C1/816/2024 passed by
respondent No.2 as well as the approval order dated 12.07.2024
and the confirmation order dated 19.08.2024 passed by
respondent No.1, 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.
He submits that though several offences were registered against
the petitioner, yet for the purpose of passing the impugned order,
one offence was considered i.e. Crime No.18 of 2024 registered
with Sangamner City Police Station, District Ahmednagar for the
offences punishable under Sections 324, 323, 504, 506 read with
Section 34 of Indian Penal Code. The detaining authority has
relied on the aforesaid offence i.e. Crime No.118 of 2024 in which
the petitioner was not arrested at all. He was served with notice
under Section 41(A)(1) of the Code of Criminal Procedure. When
the offence that has been committed is not serious requiring the
arrest of the petitioner, then how that matter can be taken as a
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piece of evidence for detaining him. Statements of in-camera
witnesses would also show that as regards witness 'A' is
concerned, two incidents allegedly had taken place against him,
one on 18.02.2024 at 3.00 p.m. and another at 7.00 p.m. on
23.02.2024. In respect of second incident, he has stated that the
present petitioner had stabbed him in stomach and also caused
injury to his ear, still he has preferred not to lodge FIR. Whether
the detaining authority had considered the medical evidence to
confirm the trust in the statement of witness 'A' is not reflected.
Interestingly, as regards witness 'B' is concerned, the first
incident is taken place at 10.00 a.m. on 18.02.2024 itself similar
to that of witness 'A' and another incident is stated to be on
22.02.2024 at 7.30 p.m. Here, he says that on the second
occasion, he was shown with a knife. Though both the witnesses
are saying that people had gathered at the said place, but they
did not come forward to help them. That cannot be taken as an
act of disturbing the public order. Perusal of the impugned order
would also show that the detaining authority had taken into
consideration the earlier offences also when it is stated that the
petitioner is involved in the offences of attempt to commit dacoity,
house breaking, causing hurt by dangerous weapons with
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unlawful assembly, commit robbery with unlawful assembly,
attempt to murder with dangerous weapons. Thus, when the past
incidents were also considered, then it can be certainly said that
there was no nexus or live link between those incidents and the
impugned order. It appears that around 25.06.2023 proceedings
under Section 55 of the Maharashtra Police Act for externment
was undertaken, but it was dropped by the Deporting Authority
or the Superintendent of Police, Ahmednagar. It appears that the
cause behind dropping that proceeding has not been properly
considered and, therefore, the material which was before the
detaining authority was not sufficient to arrive at the subjective
satisfaction for passing the impugned order.
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
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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 is relying upon the affidavit-
in-reply of Mr. Siddharam Salimath, District Magistrate,
Ahmednagar, to demonstrate as to what was the material before
him to arrive at a subjective satisfaction. Though the District
Magistrate has stated that in the past there were such offences
against the petitioner, in fact, he had taken only one offence and
two in-camera statements for consideration.
6. Before considering the case, we would like to take note of
the legal position as is emerging in the following decisions :-
(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];
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(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
(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. At the outset, we would say that the only
offence which was considered by the detaining authority for
passing detention order was Crime No.18 of 2024 registered with
Sangamner City Police Station, District Ahmednagar for the
offence punishable under Sections 323, 324, 504, 506 read with
Section 34 of Indian Penal Code, in which he was not even
arrested. The offence is still under investigation. That means,
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even the investigating officer has not come to the conclusion that
there is sufficient evidence against the petitioner and, therefore,
charge-sheet is required to be filed against him or not. When the
words are used that the petitioner is a history-sheeter and has
criminal record would implicate that the earlier offences are also
considered. Unless there is live link between those offences and
the impugned order, those offences cannot be considered at all.
As regards statements of witnesses 'A' and 'B' are concerned,
interestingly in spite of two incidents, those two witnesses had
preferred not to lodge any report against the petitioner. Witness
'A' rather says that he was stabbed in the stomach, but his
statement is silent as to where he had taken the treatment and
the District Magistrate had not even tried to get the medical
papers checked in order to consider the element of truth in the
statement. If witness 'A' was stabbed, then definitely he would
have taken treatment at the hospital and then the question arises
as to why the said hospital, who is supposed to take the history
in respect of such injuries, had not treated the said case as
Medico Legal Case. If the MLC would have been registered, then
the concerned Police Station would have started acting. With all
these lacunas, the said statement cannot be said to be helpful
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while passing the detention order. As regards witness 'B" is
concerned, again two incidents had taken place, but on none of
the occasions, he had ever gone to the police station to lodge the
FIR. Another important point here is that the statements of both
the witnesses were recorded on 23.04.2024. Proposal was
forwarded by Assistant Police Inspector on the same day, that
means the sponsoring authority made the communication on
23.04.2024 itself. Then the confidential statements were verified
on 25.04.2024. Here, we would like to say that in some matters
we have noted that after the confidential statements are recorded,
they are verified first and then they are sent back to the
sponsoring authority, who would then submit the proposal.
Here, it is other way after the confidential statements were
recorded, they were got verified and then the proposal has been
submitted. However, the Superintendent of Police has forwarded
the proposal to District Magistrate on 02.07.2024. Why the
Superintendent of Police was sitting over the proposal for a period
of almost more than two months has not been clarified. No
affidavit-in-reply explaining the delay by Superintendent of Police,
Ahmednagar has been filed. Therefore, the delay from the date of
sending proposal is not at all properly explained and, therefore,
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such order cannot be allowed to sustain. Perusal of the contents
of the FIR i.e. Crime No.18 of 2024 and both the in-camera
statements would show that question of public order was not
involved. At the most there was problem of law and order that
was created because of the behaviour of the petitioner.
8. 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.
9. For the aforesaid reasons, the petition deserves to be
allowed. Hence, following order is passed :-
ORDER
I) The Writ Petition stands allowed.
II) The detention order dated 05.07.2024 bearing
No.DC/Desk-9C1/816/2024 passed by respondent No.2 as well
as the approval order dated 12.07.2024 and the confirmation
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order dated 19.08.2024 passed by respondent No.1, are
hereby quashed and set aside.
III) Petitioner - Dhiraj s/o Rajendra Pawde shall be released
forthwith, if not required in any other offence.
IV) Rule is made absolute in the above terms.
[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
