Bombay High Court
Dipak @ Lolya Tarasingh Mohil @ Thakur vs The State Of Maharashtra And Another on 29 January, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:3895-DB
crwp1888.24.j
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
18 CRIMINAL WRIT PETITION NO. 1888 OF 2024
Dipak @ Lolya Tarasingh Mohil @ Thakur
Age 28 years, Occ. Nil,
R/o. Chiraggalli, Itwara,
district Nanded ...Petitioner
versus
1. The State of Maharashtra
Through Secretary
Home Department,
Mantralaya, Mumbai
2. The District Magistrate, Nanded
Tq. And district Nanded ...Respondents
...
Advocate for the Petitioner : Mr. Ravindra J. Nirmal
APP for Respondents: Smt. P.R. Bharaswadkar
.....
CORAM : SMT. VIBHA KANKANWADI AND
SANJAY A. DESHMUKH, JJ.
DATED : 29th JANUARY, 2025
JUDGMENT (PER SANJAY A. DESHMUKH, J.) :
-
1. Rule. Rule made returnable forthwith. The petition is heard
finally with the consent of the learned Advocates for the parties.
2. By invoking the powers of this Court under Article 226 of the
Constitution of India, the petitioner challenges the order of detention,
dated 19/03/2024, passed by section officer to Government of
Maharashtra, Home department in MPDA-0224/CR-84/SPL-3B and
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order dated 01/02/2024 in no.2014/RB-1/DESK-2/T-4/MPDA/CR-08
passed by District Magistrate.
3. 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.
Learned advocate submits that the offences referred in the grounds
of detention are pending the investigation and the action under the
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 (hereinafter referred to as the
"MPDA Act") is not justifiable. Learned advocate further submits that
respondent nos.1 and 2 have erroneously interpreted the provisions
of MPDA Act while passing the detention order without affording an
opportunity of being heard to the petitioner. The two in camera
statements, which are recorded by the detaining authority are not
helpful to arrive at the subjective satisfaction. There is delay caused
for taking action against the petitioner. He further submits that the
alleged offences do not constitute that the petitioner is a habitual
offender and based on the said the action taken against the petitioner
is a drastic one. Learned advocate for the petitioner further submits
that detention order is not sustainable in the eyes of law as it causes
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injustice to the petitioner.
4. The learned APP for the respondents submits that the
petitioner is a dangerous person as defined under the provisions of
MPDA Act. The detaining authority has relied on two in-camera
statements and the subjective satisfaction has been arrived at. There
is no error committed by the detaining authority while recording the
in-camera statements of the witnesses. Due to the grave terror
created by the petitioner, the people in surrounding area are not
coming forward to lodge report against the petitioner and, therefore,
it affects the public order. There is absolutely no delay in passing
the order and the impugned order came to be passed immediately
upon receipt of the proposal. The petitioner is involved in serious
crimes against the body and property and, therefore, he has been put
in the category of dangerous person as per the MPDA Act. The
activities of the petitioner could not have been stopped except upon
his detention. There is no error committed by the detaining authority
while passing the impugned order. The learned A.P.P. therefore,
prays for dismissal of the writ petition.
5. Considered the submissions advanced by learned advocates
for both the sides. Perused the order of detention. Before
considering the case on merits, it would be proper to take into
consideration the judicial pronouncements of the Hon'ble Supreme
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Court in the following cases:-
(i) Nenavath Bujji etc. Vs. State of Telangana and others,
[2024 SCC OnLine SC 367], in which the Hon'ble Supreme
Court held that preventive detention being a draconian
measure, any order of detention as a result of a capricious or
routine exercise of powers must be nipped in the bud and must
be struck down at the first available threshold.
(ii) Ameena Begum Vs. The State of Tamilnadu and
Ors., [2023 LiveLaw (SC) 743]; in which the Hon'ble Supreme
Court held that discretion must be exercised in accordance
with the statute. However, if statute is silent, the authority
cannot act whimsically or arbitrarily. It should be guided by
reasonableness and fairness.
(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];. In this case, the Honourable Supreme Court held
that the test to be adopted for the act affects law and order or
public order is : Does it lead to disturbance of the current of life
of community so as to amount to a disturbance of public order
or does it affect merely an individual leaving the tranquility of
the society undisturbed.
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(iv) Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta,
[1995 (3) SCC 237]; in which the Hon'ble Supreme Court held
that mere dragging and beating a businessman on public road
and beating a witness doubting that he was informing the
police about his anti-social activities is not relevant for
detention order.
(v) Pushkar Mukherjee and Ors. Vs. The State of West
Bengal, [AIR 1970 SC 852]; in which the Hon'ble Supreme
Court held that there must be subjective satisfaction and not
objective satisfaction. The validity of detention can be
challenged on the ground of mala-fides or that ground supplied
are vague or irrelevant.
(vi) Phulwari Jagdambaprasad Pathak Vs. R. H.
Mendonca and Ors., (2000 (6) SCC 751), in which the
Hon'ble Supreme Court held that satisfaction of detaining
authority shall not be based on stray incidents.
(vii) Smt. Hemlata Kantilal Shah Vs. State of Maharashtra
and another, [(1981) 4 SCC 647], in which the Hon'ble
Supreme Court held that advisory board has discretion to grant
such representation in the particular circumstances.
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6. Perused the impugned order of detention as well as all the
relevant documents.
7. Taking into consideration the legal position as discussed
above, it is to be noted here 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. As aforesaid, the
detaining authority has considered Crime No.253 of 2023 lodged with
Itwara Police Station, District Nanded. Perusal of the FIR would
show that the informant arrested the petitioner with a weapon i.e.
Khanjir on 10.8.2023 at 11.30 p.m. Here, we have intentionally taken
the contents of the FIR into consideration to see as to whether public
order was involved. But except possessing of the weapon i.e.
Khanjir by the petitioner, there appears to be no other public order
issue involved. From the FIR the clear mens-rea cannot be
gathered, but it appears to be totally personal as the informant was
knowing the petitioner.
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8. As regards the in-camera statements, it can be seen that both
the statements are in respect of extortion of money from the
individuals at the instance of the petitioner by giving them threats.
Statement of "A" is in respect of extortion of an amount of Rs.3000/-
in the month of July, 2023 whereas the statement of "B" is in respect
of extortion of an amount of Rs.2,000/- in the month of August, 2023.
No specific date is mentioned in both the statements. The alleged
two incidents are individual in nature. Here also issue of public order
was not involved. Thus, it is to be noted that the detaining authority
has not considered these material aspects in its proper perspectives
while passing the detention order. Therefore, it cannot be said that
the material before the detaining authority was sufficient to arrive at
the subjective satisfaction. Though the impugned order has been
approved by the Advisory Board, we are of the opinion that the points
which we have discussed above were not considered by the Advisory
Board in view of the law laid down in the authority of Smt. Hemlata
Kantilal Shah Vs. State of Maharashtra and another (supra).
9. There is unreasonable delay of 12 days caused for passing of
order of approval from the date of issuance of detention order. Three
weeks delay is caused to refer the matter to Advisory Board. After
seven weeks, detenue was heard by the Advisory Board. Thus delay
is unreasonably caused at the hands of respondent Nos.1 and 2.
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10. Taking into consideration the above reasons and ratio in the
decisions of the Hon'ble Apex Court, in the case of Nenavath Bujji
etc. Vs. State of Telangana and others (supra) at the most, the in
camera statements as well as the offences allegedly committed
would reveal that the petitioner had not created issue of law and
order situation and not caused 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 relevant
material before the detaining authority to categorize the petitioner as
a dangerous person or bootlegger. The fundamental rights of the
petitioner are affected. We hold that the impugned order is therefore,
illegal and not sustainable in the eyes of law.
11. For the aforesaid reasons, the petition deserves to be allowed.
Hence, the following order :-
ORDER
I) The writ petition is allowed.
II) The detention order dated 19/03/2024 passed by
section officer to Government of Maharashtra, Home
department in MPDA-0224/CR-84/SPL-3B AND Order
dated 01/02/2024 in no.2014/RB-1/DESK-2/T-4/
MPDA/CR-08 passed by District Magistrate, Nanded
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are hereby quashed and set aside.
III) Petitioner Dipak @ Lolya Tarasingh Mohil @ Thakur
shall be released forthwith, if not required in any other
crime.
IV) Rule is made absolute in the above terms.
(SANJAY A. DESHMUKH, J.) (SMT. VIBHA KANKANWADI, J.)
rlj/
