Bombay High Court
Ajinkya Alias Sayya Aadhav Ramchandra ... vs The Commissioner Of Police And Ors on 24 January, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S. M. Modak
2025:BHC-AS:4395-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1267 OF 2024
Ajinkya Alias Sayya Aadhav
Ramchandra Shinde ..Petitioner
Versus
The Commissioner of Police, Pune & Ors. ..Respondents
__________
Mr. Tejas S. Pawar for Petitioner.
Mr. S. V. Gavand, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL &
S. M. MODAK, JJ.
DATE : 24 JANUARY 2025
ORAL JUDGMENT : (Per Sarang V. Kotwal, J.)
1. The Petitioner challenges the detention order dated
28.12.2023 passed by the Respondent No.1 and confirmed by the
Government of Maharashtra. By a separate committal order he was
directed to be detained in Nagpur Central Prison, Nagpur.
2. The grounds of detention were served on him on
28.12.2023 while he was still in Jail. The grounds of detention
included his history which is mentioned in paragraph-3.1 and 3.2
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2025.01.28
12:11:30
+0530
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of the grounds of detention. The history refers to three registered
offences at Faraskhana police station, Pune, two preventive actions
taken in the past U/s.110 and 107 of the Cr.p.c. and one more
offence registered in the year 2023 under the Arms Act in
Faraskhana police station. However, all this history was referred
only to show his past criminal activities.
3. Paragraph-3 of the grounds of detention clearly mentions
that the detention order was not based on the preventive actions.
Paragraph-4 of the grounds of detention mentions that the
Respondent No.1 was relying heavily on one offence mentioned in
paragraph-5.1, and two 'in-camera' statements mentioned in
paragraph-6.1 and 6.2 to issue detention order. The registered
offence referred to was the C.R.No.240 of 2023 at Faraskhana
police station under sections 3(25), 4(25) of the Arms Act and
under sections 37(1)135 and 142 of the Maharashtra Police Act. It
was registered on 06.12.2023. He was arrested on the same date.
The offence pertains to the incident dated 05.12.2023. When
police confronted him at about 6:40p.m. on 05.12.2023, he was
found carrying an iron sickle. There was a reference to a pistol and
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the live cartridge which the petitioner had given to one Aakash
Khairmode. Even Aakash Khairmode was confronted subsequently
and that pistol and the live cartridges were recovered from him.
Paragraph-5.1 mentions that the petitioner was arrested on
06.12.2023 and was produced before the Additional Chief Judicial
Magistrate, Pune. He was remanded to police custody till
08.12.2023. Subsequently, he was remanded to Magisterial
custody till 21.12.2023. It is further mentioned that the petitioner
had applied for bail on 09.12.2023. The bail application was
pending before the Court and at the time of passing of the
detention order, the case was under investigation. Paragraph-6
refers to two 'in-camera' statements given by witness 'A' and
witness 'B' in respect of the incidents dated 26.11.2023 and
29.11.2023.
4. The only and the main ground urged before us in this
petition by learned counsel for the petitioner was that, though, on
the date of proposal and also on the date of passing of the
detention order, the applicant was already granted bail, this fact
was not brought to the notice of the detaining authority i.e. the
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Respondent No.1 by the sponsoring authority. The bail order
passed in favour of the applicant was not placed before him and
since the detaining authority was not made aware of this
important position, his subjective satisfaction was vitiated.
5. In that context, the previous bench had directed the
Respondents to file additional affidavit. Accordingly, the additional
affidavit was filed by the Director General of Police and
Commandant General, Home Guards, M.S., Mumbai & then
Commissioner of Police, Pune city i.e. the Respondent No.1.
6. Learned APP could not dispute the factual position and
could not defend the detention order, which, according to the
learned counsel for the petitioner, was vitiated.
7. We have considered these submissions and we have
perused the record, as well as, the additional affidavit annexed to
this petition. The first affidavit of the Respondent No.1 mentions
that the Senior Police Inspector, Faraskhana police station, Pune
had submitted a proposal for detention of the petitioner on
18.12.2023. The Respondent No.1's Additional affidavit shows that
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the bail order in connection with C.R.No.240 of 2023 of
Faraskhana police station was passed on 12.12.2023. That means,
on the date of proposal the petitioner was already granted bail, but
there was no reference to this fact in the proposal. The Respondent
No.1 has further categorically stated that the bail order passed on
12.12.2023 in the said registered offence was not placed before
him by the sponsoring authority till the date of passing detention
order till 28.12.2023, and as such, he was not aware of the fact
that bail had been granted to the petitioner in that particular
registered offence. The Respondent No.1 has further added that on
28.12.2023 the petitioner was in jail.
8. All these important facts were not brought to the notice
of the Respondent No.1 before he passed the detention order.
Thus, his subjective satisfaction was based on incomplete facts.
Vital facts were not brought to his notice and, therefore, his
subjective satisfaction in passing the detention order was vitiated.
9. Learned counsel for the petitioner relied on the
Judgment of a Division Bench of this Court in Hrishi @ Sarjerao
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Baban Takele Vs. The District Magistrate, Sangli & Ors. 1. The said
judgment, in turn, relied on the judgment of the Hon'ble Supreme
Court in the case of Rushikesh Tanaji Bhoite v. State of
Maharashtra & Ors.2. In the judgment passed by the Hon'ble
Supreme Court, there was an observation that, in that case there
was nothing to show that the detaining authority was aware of the
order of bail and bail order was not placed before the detaining
authority. In that context, the detention order was set aside on the
ground of not placing and non consideration of the material as
vital as the bail order. That had vitiated the subjective satisfaction
of the detaining authority.
These observations of the Hon'ble Supreme Court and
the Division Bench of this Court are squarely applicable to the
present case.
10. In this view of the matter, this detention order cannot
stand and will have to be set aside.
11. Hence, the following order:
1 2018 ALL MR (Cri) 516
2 2012 Cri.L.J. 1334 : [2012 ALL SCR 1373]
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ORDER
i) Rule is made absolute in terms of prayer clause
(I); which reads thus:
"I. This Hon'ble Court be pleased to
issue writ in the nature of Certiorari
or any other appropriate order or
direction in the nature of writ,
kindly quash and set aside the
illegal order of detention dated
28.12.2023 passed by the
Respondent No.1 against the
Petitioner and consequently the
Respondent No.3 may kindly be
directed to release the Petitioner
from the Nagpur Central Prison,
Nagpur."
ii) The record shows that, previous division bench
has already released the detenue on bail during
pendency of this Appeal, therefore, as of today,
he is not in jail. His bail bonds stand cancelled.
He need not surrender in connection with this
detention order.
iii) This order operates only in connection with the
present detention order.
iv) The writ petition is disposed of.
(S. M. MODAK, J.) (SARANG V. KOTWAL, J.)
