Bombay High Court
Nilish Bhila Koli vs The State Of Maharashtra And Others on 12 March, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:7958-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.105 OF 2025
Nilesh Bhila Koli
Age: 51, Occu.: Labour,
R/o. Utran, Tq. Erandol,
District Jalgaon .. Petitioner
Versus
1. The State of Maharashtra
Through its Additional Secretary
Home Department (Special),
Mantralaya, Mumbai.
2. The District Magistrate, Jalgaon,
Detaining Authority.
3. The Superintendent,
of Central Prison, Thane
Central Jail .. Respondents
...
Ms. Khushi K. Varma, Advocate for the petitioner.
Mrs. R. P. Gour, APP for respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 12 MARCH 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Ms. Khushi K. Varma for the petitioner
and learned APP Mrs. R. P. Gour 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.
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3. The petitioner challenges the detention order dated 07.01.2025
bearing No.Dandapra/KAVI/MPDA/47/2024 passed by respondent No.2 as
well as the approval order dated 15.01.2025 and the confirmation order
dated 25.02.2025 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. She submits that
though several offences were registered against the petitioner, yet for
the purpose of passing the impugned order, only one offence was
considered i.e. Crime No.189 of 2024 registered with Kasoda Police
Station, District Jalgaon for the offence punishable under Sections 379
of Indian Penal Code, under Section 48(7)(8) of the Maharashtra Land
Revenue Code, 1966. Learned Advocate for the petitioner submits that
in the detention order the detaining authority has given tabular chart of
the cases pending against the petitioner and it appears that he has taken
note of six cognizable offences including the offences registered within
six months, four non cognizable offences and two preventive
proceedings. However, it appears that the detaining authority had
considered only Crime No.189 of 2024 registered with Kasoda Police
Station, District Jalgaon for the offence punishable under Section 379 of
Indian Penal Code and under Section 48(7)(8) of the Maharashtra Land
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Revenue Code, which came to be registered on 22.10.2024, in which the
petitioner was arrested on 18.12.2024 and released on bail on
20.12.2024. Though the note of bail order has been taken, yet the
reasons have not been considered at all and also several conditions
were imposed while releasing the petitioner on bail. Whether those
conditions were sufficient to curb the criminal activities ought to have
been considered. The in-camera statements of witnesses are
considered, however, the District Magistrate failed to consider that those
statements were recorded on 03.09.2024, yet he proceeded to pass the
detention order on 07.01.2025 and in the meantime, the petitioner was
released on bail by imposing conditions on 20.12.2024. Therefore, all
these facts ought to have been taken note of by the detaining authority,
Advisory Board as well as the State Government. The impugned order
therefore cannot be allowed to sustain
5. Per contra, the learned APP strongly supports the action taken
against the petitioner. She 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
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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. The APP relies on the affidavit-in-reply of Mr. Ayush Prasad,
District Magistrate, Jalgaon, who shows that he has given all the reasons
for arriving at the subjective satisfaction. The criminal activities of the
petitioner were not curtailed even after the preventive action that was
taken. Perusal of the FIR vide Crime No.189 of 2024 would show that it
is lodged by the Police Patil. It is in respect of sand which was illegally
excavated. Therefore, the property of the State has been so illegally
excavated and thereby the petitioner and his gang is trying to make profit
and for that purpose, he is creating terror. Even if it may be taken that
the conditions were not properly considered by the District Magistrate,
yet this Court in Harish Patil Vs. State of Maharashtra and others,
[(2016) 3 AIR Bom. R (Cri.) 715] has considered the decisions of the
Hon'ble Supreme Court as well as this Court and held that a detention
order can be still passed on the basis of in camera statements. In the
statements of witnesses 'A' and 'B' it can be considered that due to the
terror of the petitioner though the incident in respect of them had taken
place in August 2024, yet they had not come forward to lodge the report.
The arrogance of the petitioner is increasing thereby his criminal
activities are increasing and, therefore, in order to curtail them, the
detention order has been passed, which cannot be said to be illegal or
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erroneous.
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
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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 first and the foremost fact to be noted
is that the FIR lodged by the Police Patil itself is a classic example as to
how the revenue authorities had not taken note of the incident and had
not registered any offence on the basis of information supplied by the
FIR on 11.04.2024 to the Circle Officer as well as then Tahsildar. Even a
panchanama was drawn by tahsildar on 11.04.2024 and it was handed
over to the Police Patil. Later on, the entire machinery woke up only on
01.10.2024 i.e. after a period of almost six months. An inquiry was made
as to whether the said 600 brass sand is still in the possession of Police
Patil or not. Therefore on 02.10.2024 said Police Patil went to the place
where the sand was kept, but he could not find the sand. Then the Police
Patil says that he made local inquiry and came to know that in all six
persons including the petitioner are involved in stealing away the said
sand which was alleged to be in the possession of Police Patil. The
Police Patil says that the information was supplied to the Circle Officer
as well as Tahsildar orally, yet no action was taken and, therefore, he
went to police station on 22.10.2024 and lodged the FIR. Thus, the FIR
appears to be on the basis of hearsay information. This appears to have
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been taken note of by the learned Judicial Magistrate First Class and the
petitioner and the co-accused persons were released on bail by
imposing condition. Note of the condition has been taken by the
detaining authority that the petitioner shall not commit any offence
similar to the offence of which he is accused of. Attendance was given to
the police station till the filing of the charge sheet or till 20 February,
2025 whichever is earlier. It ought to have been considered as to
whether those conditions would have curtailed the criminal activities of
the petitioner or not in the impugned order by the District Magistrate.
Recently, in Joyi Kitty Joseph Vs. Union of India and Ors., [Criminal
Appeal No.__ of 2025 (arising out of Special Leave Petition (Crl.)
No.16893 of 2024) decided by the Hon'ble Supreme Court on
06.03.2025], reliance has been placed on the decision in Ameena
Begum v. State of Telangana and others, [(2023) 9 SCC 587] and it
has been observed that preventive detention is impermissible when the
ordinary law of the land is sufficient to deal with the situation was per
incuriam to the Constitution Bench decision in Haradhan Saha vs. State
of W.B. [(1975) 3 SCC 198], in the limited judicial review available to
constitutional courts in preventive detention matters. However, in
Ameena Begum (Supra), the Hon'ble Supreme Court explained the true
distinction between a threat to "law and order" and acts "prejudicial to
public order" and it is stated that it cannot be determined merely by the
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nature or quality of the act complained of, but in the proper degree and
extent of its impact on the society. Further, it is observed that "When bail
was granted by the jurisdictional Court, that too on conditions, the
detaining authority ought to have examined whether they were sufficient
to curb the evil of further indulgence in identical activities; which is the
very basis of the preventive detention ordered. The detention order
being silent on that aspect, we interfere with the detention order only on
the ground of the detaining authority having not looked into the
conditions imposed by the Magistrate while granting bail for the very
same offence; the allegations in which also have led to the preventive
detention, assailed herein, to enter a satisfaction as to whether those
conditions are sufficient or not to restrain the detenu from indulging in
further like activities."
8. In this case confidential statements of witnesses 'A' and 'B' were
recorded on 03.09.2024. Those statements were got verified on
18.10.2024 by Sub Divisional Police Officer and then the proposal has
been submitted by the sponsoring authority on 11.11.2024. We do not
approve this procedure. After the statements are verified by a superior
authority, how those statements would go to the sponsoring authority, is
a question. But then it appears that the proposal was then given to Sub
Divisional Police Officer. Then, he forwarded it to District Superintendent
of Police, Jalgaon on 26.12.2024. First of all, in this case, there is no
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affidavit-in-reply on behalf of Sub Divisional Police Officer, Pachora,
District Jalgaon to explain as to why there was delay in verification.
Thereafter, the District Superintendent of Police had forwarded it to the
District Magistrate on the next day i.e. 27.12.2024 and the detention
order has been passed on 07.01.2025. Further, there is no delay, but in
the entire process, the bail order came to be passed on 20.12.2024.
Thus, we hold that there is a delay in the present matter, which has not
been explained at all on behalf of the respondents. In Harish Patil
(Supra) note has been taken of the decision in Phulwari
Jagdambaprasad Pathak (Supra), wherein the Hon'ble Apex Court
specifically made it clear that facts stated in the materials relied upon
should be true and have a reasonable nexus with the purpose for which
the order is passed. Though the endorsement in the present case has
also has been made regarding the satisfaction, yet, as aforesaid, the
revenue officer itself appear to be not interested in taking action in
respect of illegal excavation of sand from village Girna. The sponsoring
authority who had recorded those statements on 03.09.2024 were not
clear enough in saying that when exactly the theft has been committed.
In statement of witness 'A' the date of incident is 17.07.2024 and in
statement of witness 'B' the date of incident is 12.08.2024. So after
03.09.2024, what action was taken by the police has not been stated.
Under such circumstance, whether the last resort of preventive detention
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can be taken which affects the personal liberty of a person and then
when he is released on bail, that means his personal liberty has been
restored by imposing conditions then whether that ought to have been
taken away, ought to have been considered by the detaining authority.
9. 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 offence 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.
10. For the aforesaid reasons, the petition deserves to be allowed.
Hence, following order is passed :-
ORDER
I) Criminal Writ Petition stands allowed.
II) The detention order dated 07.01.2025 bearing
No.Dandapra/KAVI/MPDA/47/2024 passed by respondent No.2 as
well as the approval order dated 15.01.2025 and the confirmation
order dated 25.02.2025 passed by respondent No.1, are hereby
quashed and set aside.
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III) Petitioner - Nilesh Bhila Koli 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
