Bombay High Court
Sunil @ Sallya Laxman Patil vs The State Of Maharashtra And Others on 28 January, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:3899-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1918 OF 2024
Sunil @ Sallya s/o Laxman Patil
Age: 38 years, Occu.: Labour,
Amalner Road, Parola,
Taluka Parola, Dist. Jalgaon .. Petitioner
Versus
1. The State of Maharashtra
Through the Chief Secretary (Special),
Home Department, Mantralaya,
Mumbai - 400 032.
2. The District Magistrate,
Jalgaon, District Jalgaon.
3. The Jail Superintendent
Central Prison, Nagpur.
4. Sunil H. Pawar,
Police Inspector,
Parola Police Sttaion, Parola,
Tq. Parola, District Jalgaon. .. Respondents
...
Mr. H. F. Pawar, Advocate for the petitioner.
Mrs. R. P. Gour, APP for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 28 JANUARY 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. H. F. Pawar for the petitioner
and learned APP Mrs. R. P. Gour 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
27.09.2024 bearing No.Dandapra/KAVI/M.P.D.A./35/2024
passed by respondent No.2 as well as the approval order dated
07.10.2024 and the confirmation order dated 07.11.2024 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,
five offences were considered i.e. (i) Crime No.28 of 2017
registered with Ramanand Nagar Police Station, District Jalgaon
for the offences punishable under Sections 454, 457, 380 of
Indian Penal Code, (ii) Crime No.189 of 2022 registered with
Parola Police Station, District Jalgaon for the offences punishable
under Sections 399 of Indian Penal Code, under Section 135,
37(1)(3) of the Mumbai Police Act, 1951, (iii) Crime No.273 of
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2022 registered with Parola Police Station, District Jalgaon for
the offences punishable under Section 224, 178 of Indian Penal
Code, (iv) Crime No.481 of 2022 registered with Parola Police
Station, District Jalgaon for the offences punishable under
Sections 392, 341, 385, 109, 504, 506 read with Section 34 of
Indian Penal Code and (v) Crime No.200 of 2024 registered with
Parola Police Station, District Jalgaon for the offences punishable
under Sections 307, 386, 452, 354, 324, 323, 504, 506 read with
Section 34 of Indian Penal Code and under Section 3 punishable
under Section 25 of the Indian Arms Act. It has been vehemently
submitted on behalf of the petitioner that the sponsoring
authority and the detaining authority had not considered where
the petitioner was in between and the detaining authority went
on to consider the offences from 2017 for passing the detention
order. The glaring fact is that the petitioner had faced trial for
the offence punishable under Sections 302, 397, 452 etc. of
Indian Penal Code registered with Salabatpura Police Station of
Surat, Gujarat in Sessions Case No.256 of 2010. He was held
guilty by the concerned Court and sentenced to imprisonment for
life by judgment and order dated 24.10.2019. In the meantime
though the petitioner was on bail and stated to have committed
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other offences, yet for passing a detention order on 27.09.2024
there ought to have been a live link. Certainly, what happened to
the petitioner after he was held guilty and sentenced in the Surat
case on 24.10.2019 should have been considered by the detaining
authority. The present petitioner has preferred appeal challenging
the said judgment and order before the Hon'ble High Court of
Gujarat at Ahmedabad bearing Criminal Appeal No.153 of 2020
and the Division Bench of the said Court by order dated
05.04.2023 had passed the order of suspension of sentence and
releasing the applicant on bail pending appeal. Thereafter, the
offence vide Crime No.200 of 2024 appears to have been
registered with Parola Police Station, wherein he came to be
arrested on 30.06.2024 and his bail application i.e. Miscellaneous
Criminal Application No.234 of 2024 was rejected on 26.08.2024.
The maximum punishment that can be awarded in the said
offence which is under Section 307 of Indian Penal Code is
imprisonment for life. There was no documents with the
detaining authority to show that the bail application has been
filed by the present petitioner before this Court. Thus, when he
was already in the judicial custody in the said matter, there was
absolutely no necessity to pass the detention order. It appears
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that the detention order is passed only on the apprehension that
if the detenu i.e. the petitioner is released in the said offence of
Crime No.200 of 2024, then he would commit some other offence.
Such orders cannot be allowed to sustain. The prosecution or the
police agency are definitely having other legal recourse to resist
the bail application that might be filed by the present petitioner.
When there was absolutely no necessity to take recourse to a
draconian provision, such detention order needs to be quashed
and 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,
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-
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reply of Mr. Ayush Prasad, the District Magistrate, Jalgaon, who
passed the impugned order. In his affidavit-in-reply he has stated
as to what was the material before him at the time of passing the
impugned order. He admits that his apprehension was true and
correct that if the petitioner is released from jail, then he will
commit various criminal activities which will jeopardize public
order in Parola city. In the affidavit-in-reply, the learned District
Magistrate supports his order and submits that there was no
nexus between the criminal history of the petitioner and the
order. He denies that the order passed by him is violative of
fundamental rights of the detenu. He has stated that perusal of
the order of detention would reveal that record of all crimes
registered against the detenu have been minutely perused and
considered while passing the impugned order only after due
subjective satisfaction. The subjective satisfaction arrived at after
considering the last offence and the two in-camera statements of
the witnesses. The offence bearing Crime No.481 of 2022
registered with Parola City Police Station has been committed by
the petitioner when he was behind the bar. He had made a
telephone call to instigate the co-accused. That means from the
jail also his activities were not curtailed and, therefore, he has
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been declared as dangerous person and, therefore, detained.
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, it is to be noted that the
affidavit-in-reply is lengthy than the impugned order and now
many such facts have been considered in detail to demonstrate as
to what was the material which was available to arrive at
subjective satisfaction. We are constrained to look to the
impugned order and the reasons would start from paragraph
No.5. It reveals that he considered the offences from 07.03.2017
i.e. Crime No.78 of 2017 those were filed against the petitioner.
An offence which had taken place on 07.03.2017 will not provide
the live link for passing a detention order on 27.09.2024. Another
important aspect is that the learned District Magistrate had
considered the judgment and order passed in Sessions Case
No.256 of 2010 by the learned Additional Sessions Judge, Surat
in respect of Crime No.168 of 2010. The date of conviction is
24.10.2019. Prior to that, the learned Additional Sessions Judge,
Amalner by judgment and order dated 19.07.2014 had held the
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petitioner guilty of committing offence under Section 307 of
Indian Penal Code and had sentenced the petitioner to undergo
rigorous imprisonment for five years. Further, he had considered
Crime No.273 of 2022 registered with Parola City Police Station,
District Jalgaon for the offence punishable under Sections 224,
178 of Indian Penal Code, which was lodged at the behest of
Mr. Patel, Superintendent of Police, Central Prison, Surat city,
Gujarat State, which was in respect of late surrender of the
petitioner. Thus, when the detaining authority had taken note of
the fact that the petitioner is convicted and then appears to have
been released on leave, may be parole or furlough leave and then
surrendered late, then he ought to have gone through the fact as
to whether on the date of detention order, the petitioner was
released on bail by suspension of sentence or whether when
offence vide Crime No.200 of 2024 was allegedly committed by
him on 30.06.2024, he was on furlough leave or parole leave.
Unless that fact is brought to his notice, ordinarily the petitioner
would have been then in the jail. It appears that the bail during
the pendency of the appeal has been granted by Hon'ble High
Court of Gujarat at Ahmedabad on 05.04.2023. It further reveals
that when offence vide Crime No.200 of 2024 was allegedly
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committed, he had preferred bail application and it came to be
rejected on 26.08.2024. Here, the chronology of events would
show that statements of in-camera witnesses were recorded on
30.07.2024. Those statements were got verified by Sub Divisional
Police Officer on 17.08.2024 and then the proposal was
submitted to Superintendent of Police, Jalgaon on 11.09.2024
which was then forwarded by Superintendent of Police on
12.09.2024. That means when the proposal was submitted and
forwarded by the police authorities, they knew about the rejection
of bail application of the petitioner by the competent Court on
26.08.2024. Now, detention orders cannot be passed in
anticipation that in future the bail application of such applicant
would be allowed and therefore, it is preferred to detain him. At
the cost of repetition we would say that the detention order
cannot be passed in anticipation. We are surprised to note about
the opinion of the detaining authority supporting his
apprehension. Another fact to be noted from the order which was
passed in respect of rejection of the bail application that the
investigating officer or the prosecution had not put the fact
regarding the contention of the prosecution that during the
pendency of the appeal before he Hon'ble High Court of Gujarat
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at Ahmedabad, the offence has been committed by the petitioner
in Maharashtra. The sponsoring authority ought to have collected
the evidence or facts against the petitioner and then they would
have come to know about the orders passed on 05.04.2023,
which is, in fact, available on the website and one of the condition
that has been imposed by the Hon'ble High Court of Gujarat at
Ahmedabad while releasing the petitioner on bail is that he shall
not involve himself in any criminal activity while on bail or
attempt to contact any prosecution witnesses. The petitioner has
been directed to attend the police station (Salabatpura Police
Station) on the 1st day of every month between 11.00 a.m. to 2.00
p.m. till the appeal is finally disposed of. When these conditions
were imposed, then the proper legal recourse would be to bring it
to the notice of the concerned Court and then the police could
have gone for the cancellation of bail before the Hon'ble High
Court of Gujarat at Ahmedabad. No such step has been taken,
nor the fact was informed to the Gujarat Police by the sponsoring
authority, but directly forwarded the proposal for the petitioner's
detention. When normal legal recourse is available, then the
competent authority should not take recourse to the detention
laws which are even as per the observations of the Hon'ble
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Supreme Court as a draconian provision and affects the
fundamental rights of a person. Therefore, we hold that there was
no subjective satisfaction arrived at by the competent authority
before passing the impugned order.
8. As regards the in-camera statements of witness 'A' is
concerned, the said person has given reference of the facts in
Crime No.200 of 2024 and then states that in the last week of
March 2024 the petitioner had given cut by motorcycle when the
witness was standing in Shani Mandir Chowk. The witness had
then asked the petitioner as to why he has done so then the
petitioner by bringing the motorcycle back near to the said
witness abused him and threatened him to kill. General public
was not involved in the said incident. Witness 'B' also gives the
same story regarding Crime No.200 of 2024. This part is copy
paste. He says that in the first week of March 2024 when he was
in front of Balaji Park, the petitioner came alleging that the
witness gives information regarding the petitioner to police and
upon the said allegations, he was threatened to kill. Again the
next part is copy paste. Here also general public was not involved.
9. It is also stated that as regards Crime No.481 of 2022 is
concerned, the impugned order states that the charge-sheet has
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been filed on 02.08.2024 and it has been given number as R.C.C.
No.107 of 2024. The certified copy produced by the petitioner
would show that in respect of Crime No.481 of 2022, charge-sheet
has not been filed. Thus, there was no verification of the said fact
also. When the impugned order suffers from application of mind
and subjective satisfaction, it cannot be allowed to sustain.
10. 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 offences 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.
11. For the aforesaid reasons, the petition deserves to be
allowed. Hence, following order is passed :-
ORDER
I) The Writ Petition stands allowed.
II) The detention order dated 27.09.2024 bearing
No.Dandapra/KAVI/M.P.D.A./35/2024 passed by respondent
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No.2 as well as the approval order dated 07.10.2024 and the
confirmation order dated 07.11.2024 passed by respondent
No.1, are hereby quashed and set aside.
III) Petitioner - Sunil @ Sallya s/o Laxman Patil shall be
released forthwith, if not required in any other offence.
IV) Rule is made absolute in the above terms.
[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
