Bombay High Court
Shaikh Zubair Shaikh Khadeer vs The State Of Maharashtra And Others on 13 March, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:7378-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.89 OF 2025
Shaikh Zubair Shaikh Khadeer
Age: 20 years, Occu.: Labour,
R/o. Mudkhed Road, Wajegaon,
Nanded, Tq. And Dist. Nanded. .. Petitioner
Versus
1. The State of Maharashtra
Through its Section Officer,
Home Department (Special),
Mantralaya, Mumbai-32.
2. The District Magistrate,
Nanded, Tq. And Dist. Nanded.
3. The Superintendent of Jail,
Central Jail, Harsool, Aurangabad,
District Aurangabad. .. Respondents
...
Mr. S. S. Gangakhedkar, Advocate for the petitioner.
Mr. S. A. Gaikwad, APP for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 13 MARCH 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. S. S. Gangakhedkar for the petitioner
and learned APP Mr. S. A. Gaikwad for the 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 23.10.2024
bearing No.2024/RB-1/Desk-2/T-4/MPDA/CR-46 passed by respondent
No.2 as well as the approval order dated 30.10.2024 and the
confirmation order dated 17.12.2024 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. He 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.338 of 2024 registered with Nanded Rural
Police Station, District Nanded for the offences punishable under
Sections 457, 380 of Indian Penal Code. Learned Advocate for the
petitioner submits that the detaining authority has considered one
offence and two statements of in-camera witnesses, however, he has not
taken into consideration the fact that the FIR was against unknown
person and the remand report states that the fingerprints from the spot
are matching with co-accused and not the present petitioner. Reasons
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given in the bail application are not considered at all. Still even if we take
the contents of the FIR as it is and the other documents in respect of that
offence, yet law and order situation would have arisen and not the public
order. The statements of witnesses 'A' and 'B' would also show that at
the most law and order situation would have arisen. The first two
paragraphs of the statements of witnesses are identical. Therefore, there
was no such material before the detaining authority to arrive at the
subjective satisfaction. Further, there is inordinate delay that has been
caused in passing the order. It is not explained in the affidavit-in-reply
and, therefore, the impugned order deserves to be quashed and set
aside.
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. Abhijit
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Raut, District Magistrate, Nanded/Detaining authority, who has given in
detail as to what was the material before him to arrive at the subjective
satisfaction. It is stated in the order as well as the affidavit-in-reply that
the fact of release of the petitioner on bail was considered in paragraph
No.10 of the order. Further, note has also been taken that though in the
past the preventive action was taken against the petitioner, yet his
criminal activities were not curtailed and, therefore, the fresh offence
which he had committed was considered. 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) 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];
(iii) Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, [1995
(3) SCC 237];
(iv) Pushkar Mukherjee and Ors. Vs. The State of West
Bengal, [AIR 1970 SC 852];
(v) Phulwari Jagdambaprasad Pathak Vs. R. H. Mendonca and
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Ors., (2000 (6) SCC 751) and;
(vi) 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 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, in the reasons or grounds of
detention, the detaining authority has considered Crime No.338 of 2024
registered with Nanded Rural Police Station, District Nanded for the
offence punishable under Sections 457, 380 of Indian Penal Code.
Perusal of the said FIR would show that it was against unknown person.
The obvious question would be as to what was the material that was
placed before the learned District Magistrate to show that the present
petitioner is connected to the said crime. The documents which were
supplied to the petitioner would show that the sponsoring authority was
relying on the remand report dated 21.05.2024. It is stated that the
fingerprints from the spot were taken and they were tried to be matched
with the fingerprints of the accused persons on record. They matched
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with one accused by name Amir Pasha Shaikh. Now, it is stated that
from the secret informer, the investigating officer could get that the
present petitioner is the colleague or co-accused in other matters or was
helping the main accused. Now, this cannot be the ground for a District
Magistrate to rely on the fact about involvement of the present petitioner
with the crime. There is no such document which was produced before
the District Magistrate to show that any recovery of article was made
from the present petitioner. The FIR shows that none was present in the
house as all the persons from the house had gone to a programme of
their relative at a different place. There appears to be no statement of a
witness, who had seen the present petitioner entering the house of the
said informant. There is no test identification parade that was held in the
matter to connect the petitioner with the crime. Therefore, only the
registration of the offence is not sufficient. So also, we observe that mere
statement that District Magistrate has considered the fact that petitioner
has been let on bail is not sufficient. 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
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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 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."
Here also there is same situation. The bail was granted much prior
to the detention order in this matter and the conditions those were
imposed or they are inherent, were not considered.
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8. The first two paragraphs of the statements of in-camera witnesses
are copy paste, however, the third paragraph is in respect of alleged
incident against them. Even if we consider that the incident that is stated
had happened against them, yet that will give rise to law and order
situation only.
9. The most important point in this case is the delay. The confidential
statements of witnesses 'A' and 'B' were recorded on 05.06.2024. The
sponsoring authority had submitted the proposal to Sub Divisional Police
Officer on 06.06.2024. The confidential statements have been verified
on 14.06.2024. The Sub Divisional Police Officer has then submitted it
further to DSP and then the DSP has forwarded the same to the
detaining authority on 19.06.2024, yet the detention order came to be
passed on 23.10.2024. This delay has not been sufficiently explained in
the affidavit-in-reply.
10. 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
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bootlegger.
11. For the aforesaid reasons, the petition deserves to be allowed.
Hence, following order is passed :-
ORDER
I) The Writ Petition is allowed.
II) The detention order dated 23.10.2024 bearing No.2024/RB-
1/Desk-2/T-4/MPDA/CR-46 passed by respondent No.2 as well as the
approval order dated 30.10.2024 and the confirmation order dated
17.12.2024 passed by respondent No.1, are hereby quashed and
set aside.
III) Petitioner - Shaikh Zubair Shaikh Khadeer 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
