Bombay High Court
Mohit @ Chiku Ramesh Godbole vs The State Of Maharashtra And Others on 3 January, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:111-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1730 OF 2024
Mohit @ Chiku s/o Ramesh Godbole
Age: 21 years, Occu.: Labour,
R/o. Degaonchal, Nanded,
Tq. And Dist. Nanded. .. Petitioner
Versus
1. The State of Maharashtra
Through its Section Officer,
Home Department (Special),
Mantralaya, Mumbai-32.
2. The District Magistrate,
Nanded, Tq. And Dist. Nanded.
3. The Superintendent of Jail,
Central Jail, Harsool, Aurangabad. .. Respondents
...
Mr. S. S. Gangakhedkar, Advocate for the petitioner.
Mr. N. R. Dayama, APP for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
ROHIT W. JOSHI, JJ.
DATE : 03 JANUARY 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. S. S. Gangakhedkar 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 detention order dated
26.07.2024 bearing No.2024/RB-1/Desk-2/T-4/MPDA/CR-27
passed by respondent No.2 as well as the approval order dated
05.08.2024 and the confirmation order dated 11.09.2024 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
only one offence was considered i.e. Crime No.56 of 2024
registered with Vazirabad Police Station, District Nanded for the
offence punishable under Sections 3, 7 punishable under Section
25 of the Indian Arms Act. Learned Advocate for the petitioner
vehemently submits that the proposal was submitted by the
sponsoring authority on 16.02.2024 and the detention order has
been passed on 26.07.2024. The said inordinate delay has not
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been explained at all. Only one offence has been considered for
passing the detention order, out of the list of nine offences,
however, the said offence by itself will not demonstrate that the
public order was endanger. In the said offence, the petitioner
came to be arrested on the same day i.e. 08.02.2024 and was
released on bail on 15.06.2024 by learned Additional Sessions
Judge-3, Nanded i.e. prior to the detention order was passed.
Still the detaining authority has not taken note of the bail order
into consideration. The in-camera statements are in general and
no act was committed by the petitioner against the witnesses.
Therefore, there was no material before the detaining authority to
curtail the liberty of the petitioner by passing the detention order.
In fact, action under Section 55 of the Maharashtra Police Act
was taken against the petitioner on 13.09.2023. At the most, the
action of the petitioner would have created the law and order
situation and not the pubic order requiring his detention.
Therefore, the impugned order deserves to be set aside.
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,
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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 Mr. Abhijit Raut, District Magistrate, Nanded/detaining
authority. The said affidavit explains the material before the
detaining authority to arrive at the conclusion and the subjective
satisfaction. The petitioner was in jail in the meantime and,
therefore, the order was not passed. It cannot be considered as
delay. The action of detention is then approved by the State
Government and the Advisory Board had advised that the action
that was taken was justifiable and thereafter, confirmation has
been given. The representation that was made by the petitioner
has also been decided within a reasonable period by the State. In
the past also the present petitioner had used weapons like guns
while committing the offence and, therefore, the activities of the
petitioner could not have been curtailed except by detaining him.
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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];
(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
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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 like to say that as per
the chart, nine offences came to be registered against the
petitioner, however, only one offence i.e. Crime No.56 of 2024 has
been considered. In respect of the said offence, investigation was
complete and the charge-sheet was filed bearing R.C.C. No.426 of
2024. Upon query, learned Advocate for the petitioner submits
that the charge-sheet was not made available by the detaining
authority along with the annexures while serving the detention
order. The copy of the charge-sheet is not even available in the
papers, which are with learned APP. The impugned order also
does not show that the entire charge-sheet was perused by the
detaining authority. The said offence was under Sections 3 and 7
punishable under Section 25 of the Indian Arms Act. For offence
under Section 3 of the Indian Arms Act, previous sanction of the
District Magistrate is mandatory. Section 39 of the Arms Act
prescribes that no prosecution shall be instituted against any
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person in respect of any offence under Section 3 without the
previous sanction of the District Magistrate. As the documents
are not made available to the petitioner as well as even to this
Court, we are deprived of the fact that such previous sanction
was given by the detaining authority himself in the capacity as
District Magistrate or not. His order does not make a mention
that at earlier point of time, he had the occasion to consider the
facts of the case i.e. at the time of granting sanction under
Section 39 of the Arms Act. That was the best piece of evidence
or material to arrive at a subjective satisfaction by the District
Magistrate. Thus, when charge-sheet was filed, we cannot
presume here that there was compliance of Section 39 of the
Indian Arms Act when without the said sanction prosecution
cannot be launched. At the cost of repetition we say that the vital
point for arriving at the subjective satisfaction has not been
considered by the District Magistrate.
8. Perusal of the order passed under Section 55 of the
Maharashtra Police Act would show that it was for the duration of
six months only and at the time of passing the detention order on
26.07.2024, the said order was not in existence. Still we are
surprised to note from the impugned order when note was taken
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in respect of preventive action. The learned Magistrate says that
even after passing the order when activities of the petitioner were
not curtailed, the said order i.e. order under Section 55 of the
Maharashtra Police Act was cancelled and proposal is sent under
MPDA. The District Magistrate has failed to consider that the
duration of that order had come to an end on the date of passing
of the order, but that order was in existence when the proposal
was submitted on 16.02.2024. It could have been cancelled by
the authority, who had passed that order i.e. Superintendent of
Police, Nanded. This shows another piece of lack of subjective
satisfaction and application of mind.
9. As aforesaid, the proposal was sent on 16.02.2024 and the
detention order has been passed on 26.07.2024. There is huge
delay of around five months, which has not been explained
properly. The custody of the petitioner in Crime No.56 of 2024 is
nothing to do with passing up of the order and, therefore, the
lame excuse or explanation is unacceptable.
10. Perusal of the in-camera statements of witnesses 'A' and 'B'
would show that those are totally general in nature as if they
were certifying the criminal activities of the petitioner. No
incident had taken place against them wherein the petitioner was
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involved. The detaining authority ought not to have relied upon
those statements. Unfortunately, the Advisory Board in its
opinion has considered the general statements of the witnesses.
The point of delay is also not considered in view of the decisions
of the Hon'ble Supreme Court.
11. 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.
12. For the aforesaid reasons, the petition deserves to be
allowed. Hence, following order is passed :-
ORDER
I) The Writ Petition is allowed.
II) The detention order dated 26.07.2024 bearing
No.2024/RB-1/Desk-2/T-4/MPDA/CR-27 passed by respondent
No.2 as well as the approval order dated 05.08.2024 and the
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confirmation order dated 11.09.2024 passed by respondent
No.1, are hereby quashed and set aside.
III) Petitioner - Mohit @ Chiku s/o Ramesh Godbole shall
be released forthwith, if not required in any other offence.
IV) Rule is made absolute in the above terms.
[ ROHIT W. JOSHI ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
