Bombay High Court
Naresh Kantilal Gavali (Yadav) vs The District Magistrate, Dhule And ... on 22 January, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:4692-DB
1
13.cri.wp.1889.2024 Aurangabad Bench.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
AURANGABAD BENCH, AURANGABAD
CRIMINAL WRIT PETITION NO.1889 OF 2024
Naresh Kantilal Gavali (Yadav), Age - 28
yers, Occ - Labor, R/o Opposite Maroti
Mandir, Naradana Chowfuli, Deopur,
Dhule.
... PETITIONER
VERSUS
1. The District Magistrate Dhule, Tal &
Dist. Dhule.
2. The State of Maharashtra, (Through
Addl. Chief Secretary to Government
of Maharashtra Mantralaya, Home
Department, Mantralaya, Mumbai)
3. The Superintendent Nashik Road,
Central Prison, Nashik.
4. The Superintendent, LCB, Dhule, Tal
&Dist. Dhule.
5. The Secretary, Hon'ble Advisory
Board, Constituted under Section 9
of M.P.D.A. Act, 1981, Mantralaya,
Mumbai - 400 032.
... RESPONDENTS.
2
13.cri.wp.1889.2024 Aurangabad Bench.odt
____________________________________________________________
Shri R.L. Jakhade, Advocate h/f Shri S.A. Kulkarni, Advocate
for the petitioner.
Shri V.K. Kotecha, Assistant Public Prosecutor for the
respondent-State.
______________________________________________________________
CORAM : SMT. VIBHA KANKANWADI AND ROHIT W. JOSHI, JJ.
DATE : 22.01.2025.
JUDGMENT :
Heard. RULE.
2. The matter is taken up for final disposal by consent of the
learned Counsel appearing for the parties.
3. The petitioner in the present matter, has invoked our extra-
ordinary writ jurisdiction under Article 226 of the Constitution of India
in order to challenge the order of preventive detention dated
04.09.2024 issued by the respondent no.1/The District Magistrate,
Dhule in exercise of powers under Section 3(1) of The Maharashtra
Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-
Offenders, Dangerous Persons and Video Pirates Act, 1981 (hereinafter
referred to as 'the MPDA'). The power is delegated upon the respondent
no.1 by the respondent no.2 under Section 3(2) of the MPDA. The
13.cri.wp.1889.2024 Aurangabad Bench.odt
petitioner also challenges the order of confirmation of detention dated
07.10.2024 issued by respondent no.2, under Section 12(1) of the
MPDA. The petitioner is detained on the ground that he is a "dangerous
person" within the meaning of Section 2(b-1) of the MPDA.
4. The Police Inspector, Police Station Deopur, District Dhule
had conducted discreet inquiry in relation to the petitioner. During the
course of this inquiry, he has recorded in-camera confidential statement
of two witnesses on 04.02.2024 and 05.03.2024. The statements
recorded by the Police Inspector were verified by the Sub-Divisional
Police Officer, Sakri on 07.03.2024. Thereafter, on 04.05.2024, the
Police Inspector forwarded a Proposal for placing the petitioner under
preventive detention to the office of Superintendent of Police, Dhule for
sending it further to the respondent no.1/ District Magistrate. The said
Proposal was forwarded by the Superintendent of Police to the District
Magistrate on 27.05.2024. Based on the Proposal, the respondent
no.1/District Magistrate passed the order of preventive detention on
04.09.2024. The confinement order was also issued, simultaneously, on
04.09.2024. Both these orders are served on the petitioner on
05.09.2024 with grounds of detention, dated 04.09.2024. Since then
the petitioner is lodged in Central Prison, Nashik by way of preventive
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detention.
5. The respondent no.1 has passed an approval order under
Section 3(3) of the MPDA on 12.09.2024. On the same date, i.e. on
12.09.2024, the matter was referred to the Advisory Board. After
hearing the petitioner, the Advisory Board has given positive
recommendation for continuing preventive detention of the petitioner.
This recommendation is made on 03.10.2024 after considering the
representation of the petitioner. In view of the said recommendation,
the respondent no.2 has passed order dated 23.10.2024 in exercise
powers under Section 12(1) of the MPDA confirming the order of
preventive detention.
6. Shri R.L. Jakhade, learned Counsel for the petitioner has
challenged the action of preventive detention on the grounds that (i)
there is an inordinate delay of around 7 months in processing the
proposal for preventive detention as a consequence of which, the live
link between the alleged wrongful acts of the petitioner and the order
of preventive detention, is completely broken; and (ii) the wrongful
activities alleged to have been committed by the petitioner can at best
to be said to be creating a law and order problem and by no stretch of
13.cri.wp.1889.2024 Aurangabad Bench.odt
imagination, a public order issue. He submits that the last offence,
which has been taken into consideration by the Detaining Authority is
allegedly committed on 09.04.2024, i.e. around 5 months prior to the
passing of order of preventive detention. Referring to the First
Information Report (FIR) in the said matter, he contends that the
offence was relating to law and order and not a public order. The in-
camera statements of unnamed witnesses are also challenged, stating
that assuming the statements to be true and correct, each of the
witnesses has referred to one concrete incident only. He then submits
that the other allegations in the statements are general in nature
lacking in all material particulars. He contends that the order of
preventive detention is based on irrelevant material, and as such, it is
liable to be quashed.
7. Per contra, Shri V.K. Kotecha, learned Assistant Public
Prosecutor ('APP') would contend that the petitioner has become a
nuisance to the society at large. He submits that unlawful activities of
the petitioner have completely derailed normal tempo of life of public
at large. The learned APP submits that the petitioner has no source of
earning his livelihood other than his unlawful activities of threatening
and extorting money from people and indulging in acts of violence
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routinely. According to the learned APP, regular measures under penal
law are inadequate to curtail activities of such dangerous persons and
therefore, resort was required to be taken to the provisions of MPDA,
which provide for preventive detention. As regards the delay, he
submits that delay by itself cannot be a ground for setting aside the
order of preventive detention, when the same is properly explained. He
contends that the delay in the matter is properly explained, and
therefore, that cannot be a ground for quashing the action of preventive
detention.
8. Having heard the learned Counsel as aforesaid and upon
perusal of record of the case with their able assistance, we find it
difficult to agree with the contention of the learned APP that, delay in
the matter is properly explained. The dates mentioned above will
indicate that the first in-camera statement was recorded during the
course of discreet inquiry on 04.02.2024. The second statement is
recorded after a period of one month i.e. on 05.03.2024. The said
statements have been verified on 07.03.2024. However, after
07.03.2024, there is a complete standstill for a period of around 2
months. The Proposal is then forwarded by the Police Inspector on
04.05.2024. Thereafter, after a period of 23 days, the Superintendent of
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Police has forwarded the Proposal to the Detaining Authority i.e.
respondent no.1 on 27.05.2024. The Detaining Authority has not acted
on the Proposal, immediately. The matter remained pending with the
Detaining Authority for 3 months and 8 days. All of a sudden,
thereafter, the order of preventive detention is issued on 04.09.2024.
We agree with the contention of the learned Counsel for the petitioner,
that the inordinate gap of 7 months in the matter completely disrupts
the live link between the wrongful activities and the preventive
detention. Even if, we count the period from 27.05.2024, i.e. the date
on which the Superintendent of Police forwarded the Proposal for
preventive detention, we find that there is huge delay of 3 months and
8 days in issuing the order of preventive detention. There is no
explanation whatsoever for the said inordinate delay of 3 months and 8
days. The order of preventive detention is liable to be quashed on this
solitary ground.
9. A perusal of grounds of detention dated 04.09.2024, will
indicate that the Detaining Authority has referred to 10 offences
registered against the petitioner from 30.03.2018 to 09.04.2024. The
Detaining Authority has also considered the preventive measures taken
against the petitioner on five occasions from 29.06.2018 to 21.07.2023
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under Section 110(e) and 110(g) of the Code of Criminal Procedure.
Apart from these three externment orders issued on 08.04.2019,
11.08.2020 and 30.04.2024 are also taken into consideration.
Although, the Detaining Authority has stated that only the last offence
is taken into consideration perusal of the reasons indicates that all the
offences, instances of preventive action and externment orders have
been taken into consideration. The Detaining Authority was swayed by
old and stale incidents of alleged criminal activities on the part of the
petitioner while passing the order of preventive detention. This by itself
is a ground good enough for setting aside the order of preventive
detention.
10. Even if, we accept the contention of the learned APP that
although he has referred to 10 offences in all, the Detaining Authority
considered only the last offence for arriving at subjective satisfaction, as
regards the last offence. The offence is registered on 09.04.2024 under
Section 386 read with Section 34 of the Indian Penal Code. The
allegation against the petitioner is that, he had extorted money from
one Naresh Vinod Patil. The alleged incident of extortion had occurred
on 11.02.2024 and the FIR is lodged on 09.04.2024, after a period of
around 2 months. The contents of the FIR, even they are assumed to be
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true and correct, do not indicate that the incident has caused any public
order issues and at best, it can be said that the petitioner has indulged
in a crime, which caused a law and order problem. It cannot be said by
any stretch of imagination that, the said act of extortion of money from
the informants in the said crime, created any public order issue. In this
regard, we may refer to a recent judgment of the Hon'ble Supreme
Court in the case of Nenavath Bujji etc Vs. State of Telangana reported
in AIR 2024 SC 1610, wherein it is held that the distinction between
law and order and public order is one of degree and extent of the reach
of the act in question in the society at large. An offence can be said to
affect public order adversely only it is of such nature as to disturb the
normal tempo of life of members of community at large. If the offence
affects a few individuals only then it will be a law and order issue and
not public order issue. Even if the offences committed in public view it
can not be said that it affects public order adversely, unless it directly
affect the tempo of life of general public. The distinction between law
and order and public order is succinctly explained. The Hon'ble
Supreme Court has observed that unless the criminal activities unsettles
even tempo of life of public at large or community in general, the act
complained of cannot be said to be one which creates public order
issue. It goes without saying that a person cannot be placed under
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preventive detention only on the ground that he indulges in activities,
which are detrimental to law and order, if such activities are not
detrimental to public order.
11. As regards the two in-camera confidential statements, we
find that both the witnesses narrated one concrete incident each. The
incidents about which they have narrated also do not fall within the
category of public order issue. The other allegations in the said
statements are general in nature and wanting in material particulars.
Thus, assuming the contents of the said statements to be true, the same
cannot be pressed into service to place the petitioner under preventive
detention.
12. The learned APP has vehemently submitted that this Court
in exercise of its writ jurisdiction, may not sit in appeal over the
decision of the Detaining Authority. He submits that the material on
which subjective satisfaction is arrived at by the Detaining Authority
cannot be revisited as an Appellate Authority by this Court. We agree
with the submissions of learned APP that, adequacy of evidence or
material is beyond our province while exercising writ jurisdiction under
Article 226 of the Constitution of India. However, the relevance of
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material can certainly be looked into.
13. We have taken the material on record on its face value and
yet, we find that the same will not be relevant for curtailing liberty of a
person by invoking laws relating to preventive detention. We are of the
considered opinion that the subjective satisfaction of respondent no.1 is
founded on irrelevant material, and therefore, the action of preventive
detention deserves interference in exercise of our writ jurisdiction.
14. In view of the aforesaid reasons, we are inclined to quash
the action of preventive detention, hence, we passed the following
order :-
I) The Writ Petition stands allowed.
II) The detention order dated 04.09.2024 bearing
No.Dandapra/KAVI/MPDA/02/2024 passed by respondent
No.1 as well as the approval order dated 12.09.2024 and
the confirmation order dated 23.10.2024 passed by
respondent No.2 stand quashed and set aside.
III) Petitioner - Naresh Kantilal Gavali (Yadav) shall be released
forthwith, if not required in any other offence.
13.cri.wp.1889.2024 Aurangabad Bench.odt
15. Rule is made absolute in the above terms.
(ROHIT W. JOSHI, J.) (SMT. VIBHA KANKANWADI, J.)
Trupti
