Bombay High Court
Suyog @ Chotya Machhindra Pradhan vs The State Of Maharashtra And Others on 18 March, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:9663-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.130 OF 2025
Suyog @ Chotya Machhindra Pradhan
Age: 24 years, Occu.: Labour,
R/o. Malives, Beed,
Taluka and District Beed. .. Petitioner
Versus
1. The State of Maharashtra
Through its Section Officer,
Home Department (Special),
Mantralaya, Mumbai-32.
2. The District Magistrate,
Beed, Taluka and District Beed.
3. The Superintendent of Jail,
Central Jail, Harsool,
Aurangabad. .. Respondents
...
Mr. D. S. Patil, Advocate for the petitioner.
Mr. G. A. Kulkarni, APP for respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 18 MARCH 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. D. S. Patil for the petitioner and
learned APP Mr. G. A. Kulkarni for 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 10.05.2024
bearing No.2024/RB-Desk-1/Pol-1/MPDA-11 passed by respondent No.2
as well as the approval order dated 17.05.2024 and the confirmation
order dated 23.07.2024 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. Learned Advocate
for the petitioner submits that though the detention authority has taken
note of nine offences against the petitioner, yet it is stated that only one
offence i.e. Crime No.05 of 2024 registered with Beed Rural Police
Station, District Beed for the offence punishable under Section 3
punishable under Section 25 of the Arms Act was considered for passing
the detention order. The detaining authority has not considered the bail
order that was passed in that case. The statements of witnesses 'A' and
'B' would show that at the most law and order situation would have
arisen and not the public order. Therefore, the impugned order 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
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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 relied on the affidavit-in-reply of Ms. Deepa
Mudhol Munde, the then District Magistrate, Beed, wherein she has
given the circumstances and the evidence which was before her to arrive
at the subjective satisfaction. The petitioner was found possessing
country made pistol with cartridges and then he has stated upon inquiry
that the said Pistol was purchased by him from one Poonamchand
Jariya, R/o. Badwani Madhya Pradesh State. The statements of
witnesses 'A' and 'B' would also show that the petitioner was carrying
pistol at that time and by showing the same, he had snatched the money
from the person of the witnesses. 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],
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(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
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. Here, the impugned order shows that in all
nine offences have been registered against the petitioner and all of them
are stated to be pending. Out of nine offences, three are still under
investigation which are under Section 3 punishable under Section 25 of
the Arms Act. Now, the detaining authority states that only one offence
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i.e. Crime No.05 of 202 was considered for passing the detention order.
Perusal of the FIR therein would show that on the secret information, the
police party with panchas went to the spot. They apprehended petitioner
who was trying to flee away and when the search of his person was
taken, he was found with pistol and cartridges in his sack. Learned
Advocate appearing for the petitioner has produced the photocpy of the
order of bail which was passed by the learned Magistrate on 06.01.2024.
Copies of bail application and objection by the prosecution have also
been produced. Attendance was also granted as a condition for granting
bail by the learned Magistrate. The attendance was till filing of charge-
sheet or expiration of 60 days whichever is earlier. Note of sending the
petitioner to police custody till 06.01.2024 has been taken in the order
but what happened on 06.01.2024 is absolutely not mentioned in the
impugned order. We would like to rely on the decision 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], wherein
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.
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[(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."
8. The statements of witnesses 'A' and 'B' would show that those
statements were recorded on 27.03.2024 and 29.03.2024 respectively
and they say about the incident dated 20.03.2024 and 24.03.2024. That
means, after the alleged incident, the statements were recorded within a
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period of eight days. However, there is no attempt on the part of the
police to seek the cancellation of bail in Crime No.05 of 2024 granted on
06.01.2024. The statements of confidential witnesses cannot be used
only for the detention purpose under MPDA, but it could have been
certainly used for getting the bail cancelled. The obvious reaction on the
part of the police is missing in this case though police got to know about
use of pistol again by the petitioner. The pistol and the cartridges which
were the property in Crime No.05 of 2024 were seized on 03.01.2024
itself, then the question arises how another pistol came in possession of
the petitioner on 20.03.2024 and 24.03.2024 as stated by witnesses 'A'
and 'B'. Therefore, immediate action on the part of police was required,
if they were believing what the witnesses had told in their statements.
Those statements were got verified on 19.04.2024. Now, we will have to
take into consideration that when a person, against whom the proposal
is made that he should be declared as dangerous person and should be
detained, stated to have threatened the witnesses by country made
pistol, then there should be immediate verification. It appears that the
Superintendent of Police, Beed forwarded the said proposal to detaining
authority on 21.04.2024 and the order came to be passed on
10.05.2024. Technically, there may not be so much of delay, but when
the State authority are insisting upon the fact that the petitioner is
habituated to use pistol by procuring them, then certainly a deeper
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probe/investigation was necessary. The offences under Section 3
punishable under Section 25 of the Arms Act lodged against the
petitioner on 09.08.2023 and 20.09.2023 are stated to be still pending for
investigation. When police themselves are adopting a lethargic attitude
and not able to curtail the activities by adopting general law procedure,
the detaining authority cannot try to take action under the detention laws.
9. In the present matter, though the order of detention was passed
on 10.05.2024, it is stated to have been served on 03.06.2024. We
made inquiry with learned APP as to why there was delay. Learned APP
informs that the petitioner was absconding. We are surprised to note that
during the said period of almost a month, no steps were taken under
Section 7 of the MPDA and then the police are coming with the case that
the petitioner was then arrested in connection with Crime No.101 of
2024 registered with Beed City Police Station, District Beed for the
offences punishable under Section 392 read with Section 34 of Indian
Penal Code and at that time, the present impugned order was served.
We have considered the entire file, but we are unable to get any such
document that at any earlier point of time there was an attempt to serve
the grounds of detention and, the order of detention served on the
petitioner. It appears that the petitioner came to be arrested on
29.05.2024 in connection with said Crime No.101 of 2024 and then by
taking permission from Chief Judicial Magistrate, Beed on 01.06.2024,
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the order of detention and the grounds were served on 03.06.2024 to the
petitioner. We have also considered the FIR vide Crime No.101 of 2024.
It is to be noted that it is filed by Police Inspector, (Wireless Branch),
Chhatrapati Sambhajinagar in respect of incident dated 05.05.2024 and
he says that his gold ring, Bluetooth device and cash of Rs.5,000/- was
taken away by two unknown persons. Thus, the delay in serving the
detention order is not at all explained properly and the proper procedure
has not been then adopted. By no stretch of imagination it can be said
that the activities of the petitioner had raised public order situation.
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
bootlegger.
11. For the aforesaid reasons, the petition deserves to be allowed.
Hence, following order is passed :-
ORDER
I) The Writ Petition stands allowed.
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II) The detention order dated 10.05.2024 bearing No.2024/RB-
Desk-1/Pol-1/MPDA-11 passed by respondent No.2 as well as the
approval order dated 17.05.2024 and the confirmation order dated
23.07.2024 passed by respondent No.1, are hereby quashed and
set aside.
III) Petitioner - Suyog @ Chotya Machhindra Pradhan 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
