Bombay High Court
Yogesh Ramchandra Kolekar vs Commissioner Of Police And Ors on 28 February, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S. M. Modak
2025:BHC-AS:10510-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.56 OF 2025
Yogesh Ramchandra Kolekar .... Petitioner
versus
Commissioner of Police & Ors. .... Respondents
.......
• Ms. Jayshree Tripathi a/w Anjali Raut, Advocate for Petitioner.
• Mr. S. V. Gavand, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL &
S. M. MODAK, JJ.
DATE : 28th FEBRUARY, 2025
JUDGMENT :
(PER : SARANG V. KOTWAL, J.)
1. Heard Ms. Jayshree Tripathi, learned Counsel for the
Petitioner and Mr. S. V. Gavand, learned APP for the State.
2. The Petitioner who himself is a detenu has challenged
the order bearing D.O. No.20/CB/DP/2024 dated 25/10/2024
issued by the Respondent No.1, i.e. the Commissioner of Police,
Solapur, under section 3 of the Maharashtra Prevention of
MANUSHREE
NESARIKAR Dangerous Activities of Slumlords, Bootleggers, Drug-offenders,
NESARIKAR Dangerous Persons, Video Pirates, Sand Smugglers and Persons
Nesarikar
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engaged in Black-marketing of Essential Commodities Act, 1981
(for short 'MPDA Act').
3. Vide the committal order dated 25/10/2024, the
Petitioner was directed to be detained in Yerwada Central
Prison, Pune. Along with the detention order and the committal
order, the Petitioner was served with the grounds of detention
dated 25/10/2024. Paragraph No.4 refers to four registered
offences at Jodbhavi Peth police station and Jail Road police
station between January 2021 to May 2024. Paragraph No.4.1
refers to the Chapter Case No.101/2021 dated 06/07/2021 u/s
107 of Cr.P.C. After having referred to this past material, the
detaining authority has stated at the end of the paragraph that
the detention order was not based on the offences and the
preventive action as mentioned in paragraph No.4 and 4.1.
Those were mentioned only to highlight his previous criminal
history. The detention order however was based on one
registered offence i.e. C.R.No.379/2024 dated 03/07/2024 at
Jodbhavi Peth police station u/s 384, 341, 143, 452, 504, 506 of
the Indian Penal Code and the two 'in-camera' statements of
witnesses 'A' and 'B'.
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4. The C.R.No.379/2024 pertains to two incidents dated
16/05/2024 and 23/05/2024. The complainant was trying to
carry out repairs in his shop. The Petitioner and his family
members told him to leave some space so they could access their
own place. On 23/05/2024, one Suraj Gaikwad and Ritesh
Gaikwad threatened the complainant. On this basis, the FIR was
lodged against the Petitioner and others. The two 'in-camera'
statements of witness 'A' and 'B' pertain to the two incidents,
which had taken place in the first and second week of
September respectively. On both these occasions, the Petitioner
had threatened those two witnesses. In the first incident, the
Petitioner and his associates had pelted stones on witness 'A's
shop and the neighbouring shop. In the second incident, he had
beaten the witness 'B' and had pushed his vehicle causing the
witness 'B' and his wife to fall down.
5. In paragraph No.6 of the grounds of detention, the
detaining authority has recorded his subjective satisfaction
based on the material described in paragraph Nos.5.3 and 5.4 to
reach the subjective satisfaction that the Petitioner was acting in
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a manner prejudicial to the maintenance of public order. It was
further mentioned that the Petitioner had proved himself as a
dangerous person within the meaning of section 2(b-1) of the
MPDA Act.
6. Learned counsel for the Petitioner relied only on one
ground i.e. ground (c) mentioned in the memorandum of
Petition which reads thus;
"(c) The Petitioner say and submits that a
representation of the Petitioner dated 18.11.2024
was sent to the Superintendent Yerwada Central
Prison, Pune for further sending it to the State
Government for expeditious consideration, revoke
and communication. The petitioner says and
submits that so far no communication has been
received from the State Government as regards to
the consideration of the said representation by
the State Government, thereby the State
Government has delayed in considering the
representation of the petitioner expeditiously and
diligently and communicating the result to the
petitioner. All respective authorities are called
upon to explain the delay, if any, occurred from
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the date of representation till today to the
satisfaction of this Hon'ble Court failing which
the continued detention will be held as illegal
and bad in law liable to be quashed and set
aside."
7. She submitted that the representation dated
18/11/2024 was not considered and decided by the authorities
at the earliest thereby infringing the detenu's right under Artcle
22(5) of the Constitution of India.
8. Learned APP opposed these submissions by relying on
the affidavit filed by the Deputy Secretary, Government of
Maharashtra, Home Department, Mantralaya, Mumbai. The
detaining authority in paragraph No.10 of his affidavit has
stated that with reference to ground 5(c) of the Petition, he
relied on the reply of the State Government, which needs to be
taken into consideration. Thus, the detaining authority on his
own has not explained about the ground 5(c) raised by the
Petitioner and argued by the learned counsel for the Petitioner.
The reply of the State Government reflected in the affidavit of
Mr. Bhalwane is as under:
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"2. With reference to Para 5(c) of the Writ Petition, it
is submitted that the representation dated
21.11.2024 of the detenu was received by desk
Special 3-B on 02.12.2024 along with detenu's
advocate letter dated 18.11.2024 by E-office
through Yerwada Central Prison, Pune vide their
letter dated 21.11.2024. Therefore, the remarks
were called for, from the Detaining Authority i.e.
the Commissioner of Police, Solpaur on the
03.12.2024 by Special Branch-3B Desk. The
remarks of the Detaining Authority were received
on 13.12.2024 vide letter dated 10.12.2024.
Therefore, the concerned Assistant Section Officer
submitted file containing remarks of Detaining
Authority along with the representation of the
detenu to the Section Officer on 13.12.2024. As
being holidays on 14.12.2024 (Saturday) and
15.12.2024 (Sunday), the Section Officer
endorsed it on 16.12.2024 and forwarded it to the
Under Secretary on the same day. The Under
Secretary endorsed it on the 16.12.2024 and
forwarded it to the Deputy Secretary on the same
day. The Deputy Secretary endorsed it on the
16.12.2024 and forwarded it to the Additional
Chief Secretary (Home). The Additional Chief
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Secretary (Home) considered the remarks of the
detaining Authority and rejected the said
representation on 16.12.2024 by applying his
mind. The rejection of representation was
communicated by post to the detenu vide letter
dated 16.12.2024 through the Registry section of
Home Department. Thus, the representation of the
detenu was considered by the State Government
as expeditiously as possible."
9. According to learned counsel for the Petitioner, there is
a delay at two stages and we are inclined to agree with her. The
first of this delay is between 21/11/2024 to 02/12/2024. The
representation was dated 18/11/2024. But it appears to have
been forwarded by the Superintendent of Yerwada Central
Prison on 21/11/2024. This fact is reflected in the affidavit of
the Superintendent of Yerwada Central Prison, wherein he has
stated that the representation dated 18/11/2024 submitted
through the Advocate for the Petitioner was received in the
prison on 21/11/2024 by post and it was forwarded to the
Additional Chief Secretary, Home Department Special Branch (3-
B), of the Government of Maharashtra, Mantralaya, Mumbai,
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through email on 21/11/2024. Therefore, this representation
had reached the concerned Desk in the Home Department of the
Government of Maharashtra. The affidavit of Mr. Bhalwane,
Deputy Secretary, Government of Maharashtra, Home
Department, Mantralaya, Mumbai, shows that it was received by
that Desk on 02/12/2024. There is absolutely no explanation
whatsoever as to why it took so long for the representation to
reach the said Desk from 21/11/2024 to 02/12/2024. The delay
has remained unexplained. Thereafter, the remarks were called
for from the detaining authority on 03/12/2024, by the Special
Branch 3-B Desk. The remarks of the detaining authority were
received on 13/12/2024 vide the letter dated 10/12/2024.
Thus, it can be seen that again the period between 03/12/2024
to 10/12/2024 has remained unexplained. If the authorities had
any acceptable plausible reason for taking time to consider the
representation, it was their duty to explain it before the Court.
However, in the present case, the delay occurred at two stages
between 21/11/2024 to 02/12/2024 and then from
03/12/2024 to 10/12/2024. This particular delay has remained
completely unexplained. This has affected the valuable right of
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the detenu under Article 22(5) of the Constitution of India.
Resultantly, the detention order is liable to be set aside.
10. Hence the following order is passed :
ORDER
(i) Rule is made absolute in terms of prayer clause
(b), which reads thus:
"(b) The order of Detention bearing
No.20/CB/DP/2024, dated 25.10.2024
issued under Section 3 of M.P.D.A. Act
1981 by the Respondent No.1 be quashed
and set aside and on quashing the same,
the petitioner be ordered for release
forthwith."
(ii) The Petitioner be released forthwith if not
required in any other case.
(iii) The Petition is disposed of.
(S. M. MODAK J.) (SARANG V. KOTWAL, J.)
