Bombay High Court
Mahesh Kanha Rajput vs Commissioner Of Police And Ors on 15 January, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S.M. Modak
2025:BHC-AS:2355
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Writ Petition (st) No. 23804 of 2024
Mahesh Kanha Rajput ... Petitioner
V/s.
Commissioner of Police
Pimpri-Chinchwad and others ... Respondents.
Ms. Jayshree Tripathi a/w. Anjali Raut for the petitioner.
Smt. M.H. Mhatre, APP for the State.
Digitally CORAM : SARANG V. KOTWAL
signed by
LATA & S.M. MODAK, JJ.
LATA SUNIL
SUNIL PANJWANI
PANJWANI Date:
2025.01.18 DATE : 15 January 2025.
12:03:55
+0530
ORAL JUDGMENT (Per Sarang V. Kotwal, J):
The petitioner has challenged the detention order dated 21 st
September 2024 bearing No.PCB/DET/288/2024 passed by the
Commissioner of Police, Pimpri-Chinchwad i.e. Respondent No.1
herein under 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'). Vide a
separate committal order of the same date, the petitioner was
directed to be detained in the Yerwada Central Prison, Yerwada,
Pune.
2. Heard learned counsel for the parties.
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3. Though there are various grounds raised in the petition, the
learned counsel for the petitioner relied on the sole ground that the
petitioner's representation was not decided expeditiously thereby
infringing his valuable right under Article 22(5) of the Constitution
of India. On this ground alone she contends that the proceedings
regarding the detention order are liable to be set aside.
4. Learned APP on the other hand submitted that the delay in
consideration of representation is explained by the authorities in the
affidavits filed by the Superintendent of Yerwada Central Prison as
well as Shri Bhalwane-the Deputy Secretary, Government of
Maharashtra, Home Department, Mantralaya, Mumbai. She
submitted that there is no force in the submission of the learned
counsel for the petitioner.
5. We have considered the submissions. The detention order as
well as the grounds of detention was served on the petitioner. The
grounds of detention mention that the order was passed on the basis
of one registered offence and two in-camera statements of witnesses
'A' and 'B'. Initial part of the grounds of detention mention the
previous history of the offence registered against the petitioner and
also the preventive actions taken against him in the past. However,
Paragraph-4 mentions that after perusing his history, respondent
No.1 was of the opinion that the petitioner was a habitual and
dangerous offender. It was further mentioned that it was evident
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that the normal laws of the land were not sufficient to curb his
bootlegging activities. However, Paragraph 4.1 clearly starts as
"Offence considered and relied upon for issuing the detention
order....." which means that the order is based on C.R. No.120/2024
dated 22nd March 2024 registered at Dighi police station under
Section 65(f) of the Maharashtra Prohibition Act. In respect of the
registered offence he was arrested on 22nd March 2024 and was
released on bail on 23 March 2024. The petitioner was found in
possession of raw material for illicit country made liquor stored in a
white plastic drum containing 2,500 liters of raw chemical worth
Rs.50,000/-. In-camera statements of witnesses A and B mention
the instances which allegedly had taken place in July 2024 wherein
the witnesses had told him to stop his illicit liquor business. At that
time the petitioner and his accomplices had beaten and threatened
those two witnesses.
6. On the basis of these facts, respondent No.1 had recorded his
subjective satisfaction that the petitioner was a bootlegger as defined
under Section 2(b) of the said Act. Based on this subjective
satisfaction, the impugned detention order was passed. On the basis
of this material, respondent No.1 might be justified in passing the
detention order, however, since it is a preventive measure the
authorities needed to be extra careful and cautious in keeping the
petitioner in detention by way of preventive detention. In such cases
there are safeguards provided so that there is no misuse of the power
by the authorities. One of the main safeguard is that the detenu has
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to be given the earliest opportunity to make the representation as
mentioned under Article 22(5) which reads thus:
"22(5): when any person is detained in pursuance of an
order made under any law providing for preventive
detention, the authority making the order shall, as soon
as may be, communicate to such person the grounds on
which the order has been made and shall afford him the
earliest opportunity of making a representation against
the order."
7. In exercising his right to make the representation, the
petitioner had submitted his representation dated 23rd October
2024 to the Superintendent of Yerwada Central Prison. Thereafter,
the record shows that it was not considered expeditiously, thus
affecting his valuable right which has necessitated setting aside of the
detention order. The learned counsel for the petitioner invited our
attention to ground-C mentioned in the petition which specifically
raised that ground. It is mentioned that at the time of filing of the
present writ petition before this Court, the representation dated 23 rd
October 2024 made by the petitioner was not considered by the
authorities and the petitioner was not informed about the decision
taken on his representation. The writ petition was filed on 16 th
November 2024. Till that day atleast, the petitioner was not
informed about the decision taken on the said representation.
8. In that context, the averments made in the affidavit filed by
the authorities is important. The Superintendent of Yerwada Central
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Prison in his affidavit has stated that the representation of the
petitioner dated 23rd October 2024 submitted through the
petitioner's Advocate was received in the prison on 25 th October
2024 by post addressed in the name of Yerwada Central Prison,
Pune. The petitioner's signature was taken on it on the same day and
the representation was forwarded to the Additional Chief Secretary,
Home Department Special Branch (3-B), Government of
Maharashtra, Mantralaya, Mumbai through mail dated 25 th October
2024. Thus, the specific contention of the Superintendent of
Yerwada Central Prison is that on 25 th October 2024 itself the
representation was sent for further processing to the Government of
Maharashtra.
9. The affidavit of Shri Bhalwane the Dy. Secretary, Home
Department, Government of Maharashtra on the other hand
mentions in Para-2 that the representation dated 25th October 2024
was received by the Central Registry Unit of Mantralaya on 19 th
November 2024 by hand from Yerwada Central Prison vide letter
dated 25th October 2024. The Central Registry Unit forwarded it to
Desk Special-3B by e-office on 22nd November 2024. It is further
mentioned that since such representations were received by email at
Desk Special-3B through concerned prison, it was not checked
inadvertently until 5th December 2024. Upon noticing the said
representation on 5th December 2024, the remarks of the detaining
authority were called for. They were received on 12th December
2024 and finally the representation was rejected on 13 th December
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2024.
10. Thus, it can be seen that there is unexplained delay at various
stages. At first stage there is no explanation as to why it took so long
from 25th October 2024 to 19th November 2024 for the
representation to reach the Central Registry Unit of Mantralaya from
Yerwada Central Prison. That delay has remained completely
unexplained. After that the Central Registry Unit forwarded it to the
concerned Desk on 22nd November 2024. After that, it is mentioned
that from 22nd November 2024 upto 5th December 2024 again there
was no action taken on the representation. In fact it is mentioned
that the mail containing the representation was not checked
inadvertently till 5th December 2024. This can hardly be said to be
an explanation. Therefore, again the period between 22 nd November
2024 upto 5th December 2024 has remained unexplained. Thus, at
these stages, there is absolutely no acceptable explanation offered by
the authorities as to why no action was taken on the representation.
This has definitely affected the petitioner's valuable right of making
his representation at the earliest and getting it decided at the earliest.
On this ground alone, the entire proceedings become unsustainable
and, therefore, the detention order is liable to be set aside. Hence, the
following order:
ORDER
(i) The Rule is made absolute in terms of prayer clause (b),
which reads thus:
"(b) The order of Detention bearing No.
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PCB/DET/288/2024, Pimpri Chinchwad dated
21.09.2024 issued under Section 3 of M.P.D.A.
Act 1981 by Respondent No.1 be quashed and set
aside and on quashing the same, the petitioner be
ordered for release forthwith."
(ii) The petitioner is directed to be released forthwith, if not
required in any other case.
(iii) The Writ Petition is disposed of.
(S.M. MODAK, J.) (SARANG V. KOTWAL,J)
