Bombay High Court
Yogesh Alias Ritik Digamber Kolhe vs The District Magistrate Jalgaon And ... on 4 March, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:7158-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.127 OF 2025
Yogesh @ Ritik Digamber Kolhe
Age: 35 years, Occu.: Nil,
R/o. Shivai Building, Patil Wada,
Asoda, Tq. And Dist. Jalgaon. .. Petitioner
Versus
1. The District Magistrate Jalgaon,
Jalgaon.
2. The State of Maharashtra
(Through Addl. Chief Secretary
to the Government of Maharashtra
Mantralaya)
Home Department, Mantralaya,
Mumbai-32.
3. The Superintendent of Central Prison,
Nagpur, District Nagpur. .. Respondents
...
Mr. Avinash Reddy h/f Mr. A. M. Pawar, Advocate for the petitioner.
Mr. N. R. Dayama, APP for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 04 MARCH 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. Avinash Reddy holding for
Mr. A. M. Pawar for the petitioner and learned APP Mr. N. R.
Dayama for 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
30.05.2024 bearing No.Dandapra/KAVI/MPDA/20/2024 passed by
respondent No.1 as well as the approval order dated 10.06.2024
and the confirmation order dated 04.12.2024 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,
four offences were considered i.e. (i) Crime No.84 of 2018
registered with Ramanand Nagar Police Station, District Jalgaon
for the offences punishable under Sections 143, 147, 148, 149,
323 of Indian Penal Code, under Sections 37(1)(3), 135 of the
Maharashtra Police Act, 1951, (ii) Crime No.64 of 2019 registered
with Jalgaon Taluka Police Station, District Jalgaon for the
offences punishable under Sections 395, 353, 332, 337, 379 of
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Indian Penal Code read, under Section 22 of the Mineral Act,
1957, under Section 48(7)(8) of Maharashtra Land Revenue Code,
1966, under Sections 71 (177), 3(181) of Motor Vehicles Act,
1988, (iii) Crime No.147 of 2021 registered with Jalgaon Taluka
Police Station, District Jalgaon for the offences punishable under
Sections 326, 323, 504, 506 read with Section 34 of Indian Penal
Code and (iv) Crime No.12 of 2024 registered with Nashirabad
Police Station, District Jalgaon for the offences punishable under
Sections 307, 353, 353, 332, 333, 427, 146, 147, 148, 149, 379
of Indian Penal Code, under Section 7 of the Criminal Law
Amendment Act, 2013 and under Section 48(7) of the
Maharashtra Land Revenue Code, 1966. Learned Advocate for the
petitioner submits that the detaining authority has considered all
the offences pending since 2018 against the petitioner for passing
the impugned order. The petitioner is involved in seven offences
out of which four offences have been considered. There was
absolutely no live link between those offences and the detention
order. Further, the in-camera statements are stated to have been
recorded on 23.02.2024 and 24.02.2024. Proposal was submitted
on 20.05.2024. It is then stated that detention order was passed
on 30.05.2024, but it is said that it is served on 15.10.2024 and
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this appears to be in violation of or after not following the
procedure under Section 7 of the M.P.D.A. Act. Though the
prosecution states that the petitioner was absconding, yet there
was a procedure provided and thereafter, it was stated that when
the petitioner was arrested in connection with Crime No.181 of
2024 registered with Taluka Police Station for the offence
punishable under Sections 392, 323, 504, 506, 120-B read with
Section 34 of Indian Penal Code, under Sections 3 and 4
punishable under Section 25 of the Arms Act, the detention order
has been tired to be served when the petitioner was in judicial
custody, however, that application came to be rejected. The
applicant was released on bail on 15.10.2024 and thereafter, the
order has been served. These are the lame excuses on the part of
the detaining authority. The order is basically illegal and cannot
be allowed to sustain.
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
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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, District Magistrate, Jalgaon, who has
stated as to what was the material before him when he passed
the impugned order and on what material he had arrived at the
subjective satisfaction. He submits that there is no delay in
passing the order, but as the petitioner was absconding it could
not be served on him. When it was made known that the
petitioner has been arrested in one fresh matter i.e. Crime No.181
of 2024 and was in MCR with learned Judicial Magistrate First
Class, Jalgaon, attempt was made to serve the detention order by
filing an application before the learned Magistrate, but that
application was refused. Therefore, the detaining authority had
no option, but to wait for the release of the petitioner on bail and
then only he could have been served. These facts were beyond
the control of the detaining authority. The order has been
approved by the Advisory Board and all the other legal
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requirements have been fulfilled. Therefore, no fault can be found
in the impugned order.
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
subjective satisfaction and whether the procedure as
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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. Here, in this case, in all four crimes pending
against the petitioner have been considered. The first crime was
committed on 03.04.2018 for which the FIR came to be lodged on
04.04.2018. Petitioner was arrested on 13.04.2018. Charge-sheet
is filed and the petitioner has been enlarged on bail. There could
not have been a live link between this offence and the detention
order that was passed on 30.05.2024. Similar is the case in
respect of Crime No.64 of 2019 dated 23.02.2019 wherein the
petitioner was arrested on 10.03.2019, charge-sheet is filed and
then the petitioner is released on bail. Similarly, there could not
have been live link in Crime No.147 of 2021 dated 15.05.2021 in
which on the same day i.e. 15.05.2021, the petitioner was
arrested and later on, came to be released on bail by appropriate
Court. Thereafter, last offence was stated to have been committed
on 06.02.2024 for which FIR vide Crime No.12 of 2024 came to
be lodged on 07.02.2024. Interesting point to be noted is that the
petitioner came to be released on anticipatory bail by the
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appropriate Court. The reasons while granting anticipatory bail
appears to have not been considered by the learned District
Magistrate. Thus, the detaining authority could have considered
only one offence in which the petitioner has been released on
anticipatory bail. The dates are already given, however, it is to be
noted that they are repeated here just to have clarity.
Confidential statements were recorded on 23.02.2024 and
24.02.2024. Those statements were verified on 06.03.2024,
however, the sponsoring authority submitted the proposal to
Assistant Police Inspector on 20.05.2024. Even after verification
of the confidential statements, why the proposal was kept
pending for near about one and half month, is a question. But
on the same day i.e. 20.05.2024, Assistant Police Inspector
forwarded it to Superintendent of Police and Superintendent of
Police forwarded it to District Magistrate on 21.05.2024.
Thereafter, the detention order has been passed on 30.05.2024.
Now, it is the say of respondents that the petitioner was
absconding and, therefore, the detention order could not be
served. There is absolutely no document in the file which was
with learned APP and no such document has been supplied to
the petitioner which would show that search was undertaken and
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it was found that the petitioner was absconding. Section 7 of the
M.P.D.A. Act deals with the procedure in respect of an
absconding accused and how the detention order can be served.
In fact, the detention order itself is a warrant and on the basis of
that order, the concerned person can be directly arrested. It is
then stated that during search it was disclosed that the petitioner
was arrested in connection with Crime No.181 of 2024 registered
with Taluka Police Station. We were unable to get any document
as to when that offence came to be registered and when the
petitioner came to be arrested. These particulars are
conspicuously absent from paragraph No.11 of the affidavit-in-
reply. Even the copy of the application which was placed before
the learned 6th Judicial Magistrate First Class, Jalgaon and the
order passed therein has not been annexed, nor supplied to this
Court along with the affidavit-in-reply. When the application was
rejected, why the respondents had not preferred any appeal,
revision or appropriate legal proceedings before appropriate
Court, is a question. Why the respondents especially the
detaining authority should wait till the bail of the petitioner in
Crime No.181 of 2024, has not been answered. Therefore,
certainly, there is procedural lacuna in the matter which cannot
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be approved.
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.
9. 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 30.05.2024 bearing
No.Dandapra/KAVI/MPDA/20/2024 passed by respondent No.1
as well as the approval order dated 10.06.2024 and the
confirmation order dated 04.12.2024 passed by respondent
No.2, are hereby quashed and set aside.
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III) Petitioner - Yogesh @ Ritik Digamber Kolhe 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
