Bombay High Court

Sheikh Shahrukh Sheikh Mehboob vs The State Of Mah. Thr. Home Depatment ... on 6 March, 2025

Author: Nitin W. Sambre

Bench: Nitin W. Sambre

2025:BHC-NAG:2335-DB


                                                                     1                               crwp.571.24-J.odt

                               N THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        NAGPUR BENCH : NAGPUR

                                    CRIMINAL WRIT PETITION NO. 571 OF 2024

                       Sheikh Shahrukh Sheikh Mehboob,
                       Aged about 28 years,
                       Occupation : Labourer,
                       R/o. Khwaja Nagar, Sontakke Plot,
                       Old City Akola, Dist. Akola.                                  ... PETITIONER
                                  ...VERSUS...

                1.     State of Maharashtra,
                       Through Home Department (Special),
                       2nd Floor, Main Building, Mantralaya,
                       Mumbai - 32.
                2.     District Magistrate, District - Akola.
                3.     Superintendent of Police, Akola.
                4.     Police Station Officer,
                       Police Station, Old City, Akola,
                       District - Akola.                                             ... RESPONDENTS
               ------------------------------------------------------------------------------------------------
               Mr. M. N. Ali, Advocate for the Petitioner.
               Mr. S. S. Doifode, A.P.P. for Respondents/State.
               -----------------------------------------------------------------------------------------------
               CORAM : NITIN W. SAMBRE AND MRS. VRUSHALI V. JOSHI, JJ.
               JUDGMENT RESERVED ON : 27.02.2025
               JUDGMENT PRONOUNCED ON : 06.03.2025.

               JUDGMENT (PER : MRS. VRUSHALI V. JOSHI, J.):

1. Rule. Rule is made returnable forthwith. Heard finally by

consent of learned counsel appearing for the parties.

2. The petitioner has preferred this petition questioning the

preventive detention order passed against him on 03.04.2024 by respondent

No.2 - District Magistrate, Akola. The said detention order has been passed 2 crwp.571.24-J.odt

in exercise of powers under Section 3(2) of 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

"MPDA Act"). It was further confirmed by the respondent No.1 on

31.05.2024.

3. The said detention order is based on two crimes, i.e., Crime

No.193/2024 and Crime No.195/2024 of Old City Police Station, Akola and

two in-camera statements. The former crime is registered under Sections

326, 427, 147, 148, 149, 504, 506 of the Indian Penal Code read with

Sections 4 and 25 of the Arms Act, dated 18.03.2024, while the latter is

registered under Sections 452, 427, 504, 506, 34 of the Indian Penal Code

read with Sections 4 and 25 of the Arms Act, dated 19.03.2024.

4. The petitioner was also externed for a span of six months out

of the limits of Akola City. It is pertinent to note that, out of the two bail

applications, one in Crime No.193/2024 has been rejected by the Court of

the Judicial Magistrate First Class (Court No.4), Akola vide order dated

20.03.2024.

5. Though number of grounds have been raised in this petition,

Mr. Ali, learned Counsel has pressed on two certain grounds, which are as

under :

3 crwp.571.24-J.odt

(a) The detaining authority had not taken into consideration the bail

order which was passed on 22.03.2024 in Crime No.195/2024.

(b) The in-camera statements were recorded on 26 th and 27th March,

2024, verified by Sub-Divisional Police Officer, City Division, Akola on

30.03.2024, however the proposal for detention was sent on a prior date to

respondent No.2 - District Magistrate, Akola on 28.03.2024.

6. The learned Counsel for the petitioner, Mr. Ali submitted that,

the detention officer had filed the copy of bail application in Crime

No.195/2024, wherein there is non-consideration of bail order. He further

argued that, there could be a possibility that the in-camera statements

would have been tampered, as on 30.03.2024 they were opened from the

sealed envelope.

7. The learned Counsel for the petitioner further submitted that,

the respondents passed and approved the order of detention without

verifying the status of the cases registered against the petitioner. As such the

order which has been passed in mechanical manner deserves to be quashed

and set aside.

8. The learned Additional Public Prosecutor Mr. Doifode relied

upon the affidavit-in-reply supporting the order of detention.

Mr. Doifode submitted that, the detaining authority had

considered the bail application in Crime No.195/2023 and the bail 4 crwp.571.24-J.odt

application in Crime No.193/2024 was rejected. He further stated that, the

action taken against the detenu under Sections 107, 116(3) of the Code of

Criminal Procedure and Externment order under Section 56 of the

Maharashtra Police Act, 1951, proved to be ineffective in preventing the

petitioner from indulging in criminal and dangerous activities.

9. The learned Additional Public Prosecutor contended that the

detaining authority has been subjectively satisfied with the acts of the

petitioner as prejudicial to the maintenance of public order, there is no

requirement of conviction or to sustain any punishment regarding the crime

registered against the petitioner. That, all the said crimes registered against

him and as per charge sheet and case papers, there is sufficient material

against the petitioner about his involvement and participation in the crimes

taken into account for passing the order of detention.

10. The learned A.P.P. further submitted that, the residents in

jurisdiction of Police Station, Akot, District - Akola, have mentioned about

the terror and apprehension in the anonymous complaints made by them in

the Police Station, Akot. He further added that the crimes which have been

registered of-late, fall under Sections 326 of Chapter XVI of Indian Penal

Code, 1860, and Section 2, 427 of Chapter XVII of the Indian Penal Code,

1860, and Sections 4, 25 of the Chapter V of Arms Act, 1959.

5 crwp.571.24-J.odt

11. Heard the learned Counsel for the petitioner and the learned

A.P.P. for the respondents.

12. On 17.02.2025 while hearing the arguments of both the

parties, we have observed in paragraph No.2 as under :

"2. Prima facie, upon going through the FIR and other material in relation to the two offences, which speaks of the offences having been taken place in public view, however, there is not enough material to infer that the same has led to the disturbance of public order."

We have already directed the learned Additional Public

Prosecutor to show us whether the in-camera statement is sufficient to pass

the detention order.

13. The two crimes which are considered by the detaining

authority are Crime Nos.193/2024 and 195/2024. The first crime was

registered on 18.03.2024 and the other crime was registered on 19.03.2024

on the very next day. The Crime No.193/2024 is registered for the offences

punishable under Sections 326, 427, 147, 148, 149, 504, 506 of the Indian

Penal Code read with Section 4 and 25 of the Arms Act. In this crime, the

petitioner along with other co-accused assaulted the complainant as he has

given a statement against the son of the co-accused. Another offence is also

about similar allegations and the petitioner along with other persons

assaulted the complainant suspecting that he is the informant of police and

has informed their names and gave threats to him. In both the offences, 6 crwp.571.24-J.odt

though a sword is used and the group of persons assaulted the complainant,

at first it is required to consider whether it affects the public at large or it

affects public peace.

14. While considering whether it is situation of breach of public

order or law and order, the Hon'ble Apex Court in the case of Ameena

Begum Vs. The State of Telangana & Ors [Arising out of SLP (Criminal)

No.8510/2023] has held in para Nos.31, 32 and 34 which read as under :

"31. It is trite that breach of law in all cases does not lead to public disorder. In a catena of judgments, this Court has in clear terms noted the difference between "law and order" and "public order.

32. We may refer to the decision of the Constitution Bench of this Court in Ram Manohar Lohia vs. State of Bihar [(1966) 1 SCR 709], where the difference between "law and order" and "public order" was lucidly expressed by Hon'ble M. Hidayatullah, J. (as the Chief Justice then was) in the following words:

"54. *** Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus 7 crwp.571.24-J.odt

not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are.

55. It will thus appear that just as 'public order' in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting 'security of State', 'law and order' also comprehends disorders of less gravity than those affecting 'public order'. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State."

15. In the case at hand, assault is committed but it is against an

individual and it cannot be treated as in public view. Though it occurred in

a public place, it does not disturb the public order.

16. The question which now remains for consideration is whether

the detention order can be passed on the basis of the said two witness

statements. The statements proved that witness "A" has stated that the

petitioner had purchased some articles from the store of the witness and

when he asked for money, the petitioner refused it and abused him in filthy

language and showed the knife and threatened to kill him and his family

members. The people who were present in his shop ran away by seeing the

scene created by the petitioner. As he was afraid of the petitioner, he has

not lodged any complaint and has given the statement only on the

assurance that his name would not be disclosed.

8 crwp.571.24-J.odt

17. Witness "B" has also given the similar statement. The witness

runs a Dhaba. The petitioner came to his Dhaba with 4 to 5 of his friends

and after taking dinner, he went away from there without paying the bill.

When the witness asked for money, the petitioner again created a scene and

threatened by showing the knife. It appears from the record that, the

statement of witness "A" is recorded on 26.03.2024 and the statement of

witness "B" is recorded on 27.03.2024. The proposal was sent on

28.03.2024 and the verification of the statements is dated 30.03.2024 i.e.

after sending the proposal, the verification is done, which creates doubt

about the verification of the statements. The authority has seen it on

03.04.2024 i.e. on the date of passing the order, which creates doubt about

consideration of the statements and the subjective satisfaction about the

truthfulness of the said statements. Therefore, on the basis of the said

statements, the detention order cannot be passed.

18. In support of his argument, that public order is disturbed as per

the statements and crimes considered for passing the detention order, the

learned Additional Public Prosecutor has relied on the following judgments :

1] Amanulla Khan Kudeatalla Khan Pathan Vs. State of Gujarat and Ors. [(1999) 5 SCC 613].

2] Hasan Khan Ibne Haider Khan Vs. R. H. Mendonea & Ors.

[2000 ALL MR (Cri) 1079].

3] Phulwari Jagdambaprasad Pathak Vs. R. H. Mendonea & Ors.

[2000 ALL MR (Cri) 1503].

4] Atahar Khan Amir Khan Vs. State of Maharashtra & Anr.

[2023 ALL MR (Cri) 2141].

5] Ranjana Ganesh Shripatre Vs. State of Maharashtra and Ors.

[2011 (6) AIR Bom R 551].

9 crwp.571.24-J.odt

6] Zebunnisa Abdul Majid Vs. M. N. Singh and Ors. [2001 (3) Mh.L.J. 365].

7] Shahrukh Yunus Khan Vs. State of Maharashtra and Ors.

[2016 ALL MR (Cri) 3187].

8] Raju Vitthalrao Bhadre Vs. State of Maharashtra and Anr.

[2000 ALL MR (Cri) 1801].

9] Rupesh Ram Thakur Vs. Shri S. Chakravarty and Ors. [2005 ALL MR (Cri) 1132].

10] Vijay Dattaram Nakashe Vs. Shri A. N. Roy and Ors. [2005 ALL MR (Cri) 604].

19. In the case of Zebunnisa Abdul Majid Vs. M. N. Singh and Ors.

[2001 (3) Mh.L.J. 365], this Court has held in paragraph No.14 and 19 as under :

"14. In Smt. Phulmart's case (supra) while dealing with the question as to whether in-camera statements can be utilised by the detaining authority for passing the detention order, the Supreme Court observed that it is neither possible nor advisable to catalogue the types of materials which can form the basis of a detention order under the Act. That will depend on the facts and situation of every case."

"19.......Supreme Court had made it clear that the materials relied upon by the detaining authority should be true and have a reasonable nexus with the purpose for which the order is based. Necessary corollary, therefore, is that the detaining authority must be satisfied about the truthfulness of the statements made in the in- camera statements."

20. After careful perusal of the crimes, which are considered by the

detaining authority, we are of the view that it is against the individual and it

does not create any disturbance of the public order. In one of the crimes the

petitioner was released on bail but said bail order is not considered. The

statements are about extortion of the money, however, the subjective

satisfaction about the truthfulness of the statements is in question, the

detention order stands vitiated. Hence, we pass the following order :