Bombay High Court
Ayush Prasad vs Vishal Dashrath Choudhari And Another on 29 January, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:3984-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1937 OF 2024
Vishal Dashrath Choudhari
Age: 27 years, Occu.: Agri.,
R/o. Bhoiwada, Amalner,
Tq. Amalner, District Jalgaon. .. Petitioner
Versus
1. District Magistrate
Jalgaon, District Jalgaon.
2. The State of Maharashtra
Through the Secretary Home Department
(Special), Mantralaya, Mumbai.
3. The Superintendent,
Kalamba, Central Prison,
Kolhapur. .. Respondents
...
WITH
CRIMINAL APPLICATION NO.544 OF 2025
...
Mr. Rupesh A. Jaiswal, Advocate h/f Mr. S. T. Mahajan, Advocate for
the petitioner.
Mr. A. B. Girase, Public Prosecutor for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 29 JANUARY 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. Rupesh A. Jaiswal holding for
learned Advocate Mr. S. T. Mahajan for the petitioner and learned
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Public Prosecutor Mr. A. B. Girase for the respondents - State.
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./36/2024 passed
by respondent No.1 as well as the approval order dated
08.10.2024 and the confirmation order dated 07.11.2024 passed
by respondent No.2, 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.40 of 2016
registered with Amalner Police Station, District Jalgaon for the
offences punishable under Sections 143, 147, 149, 341, 353,
337, 117, 114, 188, 323, 504, 506 of Indian Penal Code, under
Section 135 of Bombay Police Act, (ii) Crime No.479 of 2022
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registered with Amalner Police Station, District Jalgaon for the
offences punishable under Sections 143, 147, 149, 337, 427, of
Indian Penal Code, (iii) Crime No.106 of 2023 registered with
Amalner Police Station, District Jalgaon for the offences
punishable under Sections 353, 143, 147, 148, 149, 337, 332,
427 of Indian Penal Code, under Section 3(2) of Protection of
Public Property from Damages Act, 1884, Section 7 of Criminal
Law Amendment Act, 1932, Section 135 of Mumbai Police Act,
1951, (iv) Crime No.149 of 2023 registered with Amalner Police
Station, District Jalgaon for the offences punishable under
Sections 394 read with Section 34 of Indian Penal Code, and
(v) Crime No.377 of 2024 registered with Amalner Police Station,
District Jalgaon for the offences punishable under Sections
326(g), 325, 351(2) of Bhartiya Nyaya Sanhita, 2023. Learned
Advocate for the petitioner vehemently submitted that the
material placed before the detaining authority by the sponsoring
authority was not worth taking subjective satisfaction or taking
cognizance for passing a detention order. The impugned detention
order would show that the detaining authority has considered the
offences right from 2016 for concluding that the petitioner is a
dangerous person. The offence that has been committed within
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six months was Crime No.377 of 2024, but even the fact of the
said case would show that the petitioner was released on bail by
the competent Court. The action was personal in nature and may
be due to grave and sudden provocation. As regards the in-
camera statements are concerned, they appear to be the copy
paste statements and public was not involved in the entire facts.
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-
reply of Mr. Ayush Prasad, the District Magistrate,
Jalgaon/detaining authority. He supports the detention order
passed by him and tries to demonstrate as to how he had arrived
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at the subjective satisfaction. He further states that his order has
been approved by the State Government and also by the Advisory
Board. Thereafter, the confirmation has been given.
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].
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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
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. The impugned order would show that the
detaining authority has considered the offences against the
petitioner from 2016. Crime No.40 of 2016 was registered against
the petitioner on 20.02.2016. Thereafter, he has directly jumped
to Crime No.479 of 2022, which came to be registered on
09.10.2022, then he has considered Crime No.106 of 2023 and
Crime No.149 of 2023. Perusal of the contents of the FIR would
show that there were other persons involved in the offences also.
The question then arises as to whether same treatment has been
given to all the other persons, who were involved. Only
petitioner's behaviour or act cannot be considered against the
public at large. There was of course no live link at the time of
passing the impugned order. The last offence that is considered
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is Crime No.377 of 2024 and perusal of the FIR would show that
the informant was near the statute of Chhatrapati Shivaji
Maharaj around 11.30 p.m. on 30.07.2024. He had then taken
objection for the clothes on the person of the petitioner as it is
stated that he was wearing a too short half pant. He told the
petitioner that since ladies are moving, he should not sleep on
the wooden planks near the statute in such attire. The petitioner
got annoyed, took out petrol from the motor vehicle and after
pouring it on the wooden planks, he set the wooden planks to
fire. Now, with this story how Section 326(g) of Bharatiya Nyaya
Sanhita, 2023 would attract is a question, but in that matter the
concerned Court has released the petitioner on bail. Perusal of
the bail order dated 13.08.2024 passed by the learned Additional
Sessions Judge, Amalner would show that the investigating officer
had not asked for the police custody of the petitioner and directly
judicial custody was asked. Therefore, the conclusion has been
drawn that further detention is not necessary. Another aspect to
be noted is that while resisting the bail application, a statement
was made that the proceedings under M.P.D.A. was initiated
against the petitioner. That means it appears that the
proceedings under the M.P.D.A. were predetermined against the
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petitioner from the side of sponsoring authority. The position of
law is other way round. If the criminal activities of a person can
be restricted under the ordinary law, then the drastic step like
detention cannot be taken. Merely because the M.P.D.A. proposal
has been filed, the investigating officer will not resist the bail
application, is not the rule. As regards the in-camera statements
of witnesses 'A' and 'B' are concerned, they are copy paste to
some extent and do not show that public was involved in the
incidents.
8. 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.
Therefore, the petition deserves to be allowed.
9. Learned APP has filed the application i.e. Criminal
Application No.544 of 2025 on behalf of the learned District
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Magistrate for recall of the order passed by this Court on
15.01.2025. When the affidavit was not filed even after granting
a month's time, this Court granted time subject to deposit of cost
of Rs.5,000/- to be paid from the pocket of respondent No.1 i.e.
the District Magistrate. Learned APP places the orders on record
stating that the District Magistrate went on leave from
13.01.2025 to 17.01.2025 by obtaining prior permission and,
therefore, could not file the affidavit and it appears that the said
District Magistrate was transferred under the orders of
Government of dated 02.01.2025. Mr. Ankush Pinate took over
the charge of District Magistrate, Jalgaon on 04.01.2025.
10. Here, it is to be noted that by order dated 12.12.2024, we
had directed the authority to file affidavit-in-reply on or before
10.01.2025. The fact about such order dated 12.12.2024 was
communicated by Public Prosecutor's office on 14.12.2024. It
appears that the said fact went unattended. Anyway, now the
affidavit is filed and matter has been argued. Therefore, we recall
our order dated 15.01.2025 and the amount of cost deposited, if
any, be returned to the District Magistrate concerned.
Accordingly, Criminal Application No.544 of 2025 stands allowed
and disposed of.
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11. For the aforesaid reasons, 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./36/2024 passed by respondent
No.1 as well as the approval order dated 08.10.2024 and the
confirmation order dated 07.11.2024 passed by respondent
No.2, are hereby quashed and set aside.
III) Petitioner - Vishal Dashrath Chaudhari 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
