Bombay High Court
Sandip Haridas Patil vs The State Of Maharashtra Thr. Its ... on 26 March, 2025
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2025:BHC-NAG:3271-DB
cril.wp.48 of 2025.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.48 OF 2025
Sandip Haridas Patil Petitioner
Aged About 45 years, Occ- Labour,
R/o Umri Smarak, Babulgaon
Dist Yavatmal
At Present District Prison, Parbhani
-Versus-
1. State of Maharashtra, Respondents
Through its Secretary, Home Department,
(Special) Mantralaya, Mumbai.
2. The Collector, Yavatmal, Dist
Yavatmal.
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Adv. Mir Nagman Ali Mir Jafar Ali, for the Petitioner.
Mr. Nitin Autkar, A.P.P. for Respondent Nos.1 and 2.
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CORAM : NITIN W. SAMBRE AND
MRS. VRUSHALI V. JOSHI, JJ.
DATE : 26/03/2025
ORAL JUDGMENT (Per: Vrushali V. Joshi, J.)
1) Heard.
2) Rule. Rule made returnable forthwith. The Criminal Writ
Petition is heard finally with the consent of the learned counsel
appearing for the parties.
3) The petitioner being aggrieved by the detention order dated
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27.12.2024 passed by Respondent no. 2 under Section 3(1) 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 the "MPDA Act")
has filed the present writ petition.
4) The detaining authority has relied upon the following offences
in order to pass the detention order:
(i) Crime No. 0079/2021 registered under Section 65(e) of the
Maharashtra Prohibition Act, 1949.
(ii) Crime No. 0344/2022 registered under Sections 307, 354,
294, 34 of the Indian Penal Code.
(iii) Crime No. 0261/2024 registered under Section 65(c)(d) of
the Maharashtra Prohibition Act, 1949.
(iv) Crime No. 0528/2024 registered under Section 65(c)(d) of
the Maharashtra Prohibition Act, 1949.
(v) Crime No. 0590/2024 registered under Section 65(d) of the
Maharashtra Prohibition Act, 1949.
(vi) Crime No. 0594/2024 registered under Sections 118(1), 352,
351(2), 351(3) of Bharatiya Nyaya Sanhita.
(vii) Crime No. 640/2024 registered under Section 65(d) of the
Maharashtra Prohibition Act, 1949.
5) The petitioner has raised the grounds as under:
(a) Two of the offences, i.e., Crime No. 79/2021 and Crime no.
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344/2022 which have been relied upon by the detaining authority are
stale offences and have no nexus with the passing of the detention order.
(b) Crime no. 528/2024 came to be registered on 02.05.2024 and
the detention order came to be passed on 27.12.2024, hence, there is a
delay in passing the detention order.
(c) The in-camera statements of the confidential witnesses 'A' and
'B' are generic in nature and they in no way indicate that the detenu has
created fear in the minds of the people or the activities of detenue have
been detrimental to the public order.
(d) All the cases registered against the petitioner are still pending
before the competent court, hence, the counsel for the petitioner has
heavily relied on the principle of "Innocent until proven guilty" .
6) Learned counsel for the petitioner contended that perusal of
the detention order would show that the detenu has been termed as a
"bootlegger" on the basis of the offences registered against him,
although, in none of the offences, the Chemical Analyzers report has
been submitted to show that the detenu has caused any danger to public
health which vitiates the subjective satisfaction reached by the detaining
authority. Perusal of opinion dated 04.06.2024 would show that the
same has considered Chemical Analyzers report bearing
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no.Am/T/7663/2022 and Am/T/7658/2022 but the same does not
appear to be pertaining to the petitioner.
7) Learned counsel for the petitioner further contended that the
date of recording and the date of the verification of the in-camera
statements of the confidential witnesses are masked. Further, the
detaining authority has not expressed its satisfaction about the
truthfulness of the in-camera statements. It is also contented that perusal
of the in-camera statements only show the endorsement that the
detaining authority had merely perused the statements.
8) Learned A.P.P has filed the affidavit-in-reply and has
supported the order passed by the detaining authority.
9) We have considered the arguments of both the parties and
have gone through the record of the detention order. The detaining
authority has considered total seven crimes and two statements for
passing the detention order. Two offences are of the year 2021 and
2022. Crime No. 79 of 2021 is for the offence under Section 65(e)
of the Maharashtra Prohibition Act, committed on 22/03/2021
and Crime No.344 of 2022 is for the offence punishable under
Sections 307, 355, 294 r/w 34 of the Indian Penal Code,
committed on 27.05.2022. These offences though are stale
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offences, are considered for passing the detention order. The
petitioner has placed reliance on the judgment of this Court in the
case of Moreshwar Sudhakar Nighot Vs. State of Maharashtra and
anr. (Criminal Writ Petition No.464 of 2024) decided on
19/12/2024, wherein this Court has made an observation
regarding passing of detention order based on stale offences.
10) The Hon'ble Apex Court in the case of Khaja Bilal
Ahmed Vs.State of Telangana and ors, 2019 DGLS(SC) 1677 in
para 15 has observed as under:-
15. In the present case, the order of detention
states that the fourteen cases were referred to
demonstrate the "antecedent criminal history and
conduct of the appellant". The order of detention
records that a "rowdy sheet" is being maintained at PS
Rain Bazar of Hyderabad City and the appellant "could
not mend his criminal way of life" and continued to
indulge in similar offences after being released on bail.
In the counter affidavit filed before the High Court, the
detaining authority recorded that these cases were
"referred by way of his criminal background... (and) are
not relied upon". The detaining authority stated that the
cases which were registered against the appellant
between 2009 and 2016 "are not at all considered for
passing the detention order" and were "referred by way
of his criminal background only". This averment is
plainly contradictory. The order of detention does, as a
matter of fact, refer to the criminal cases which were
instituted between 2007 and 2016. In order to
overcome the objection that these cases are stale and do
not provide a live link with the order of detention, it
was contended that they were not relied on but were
referred to only to indicate the antecedent background
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of the detenu. If the pending cases were not considered
for passing the order of detention, it defies logic as to
why they were referred to in the first place in the order
of detention. The purpose of the Telangana Offenders
Act 1986 is to prevent any person from acting in a
manner prejudicial to the maintenance of public order.
For this purpose, Section 3 prescribes that the detaining
authority must be satisfied that the person to be
detained is likely to indulge in illegal activities in the
future and act in a manner prejudicial to the
maintenance of public order. The satisfaction to be
arrived at by the detaining authority must not be based
on irrelevant or invalid grounds. It must be arrived at
on the basis of relevant material; material which is not
stale and has a live link with the satisfaction of the
detaining authority. The order of detention may refer to
the previous criminal antecedents only if they have a
direct nexus or link with the immediate need to detain
an individual. If the previous criminal activities of the
appellant could indicate his tendency or inclination to
act in a manner prejudicial to the maintenance of public
order, then it may have a bearing on the subjective
satisfaction of the detaining authority. However, in the
absence of a clear indication of a causal connection, a
mere reference to the pending criminal cases cannot
account for the requirements of Section 3. It is not open
to the detaining authority to simply refer to stale
incidents and hold them as the basis of an order of
detention. Such stale material will have no bearing on
the probability of the detenu engaging in prejudicial
activities in the future."
Extraneous material is considered for passing the
detention order.
11) The offences which are considered are under Section
65(e) of the Maharashtra Prohibition Act. In all the offences, the
Chemical Analysers Report is awaited and if the Chemical
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Analysers Report is not available, no conclusion about prima facie
involvement of the petitioner in the said crimes could be arrived at
and if that is so, no further conclusion regarding involvement of the
petitioner in prejudicial activities can be arrived at.
12) The Hon'ble Apex Court in the case of District
Collector, Ananthapur V/s. V. Laxmanna reported in 2005 DGLS
(SC) 2745 in Paragraph Nos.7 and 8 has made following
observations:-
"7. We do not think this argument of the learned
counsel can be accepted. If the detention is on the
ground that the detenu is indulging in manufacture
or transport or sale of arrack then that by itself would
not become an activity prejudicial to the maintenance
of public order because the same can be effectively
dealt with under the provisions of the Excise Act but
if the arrack sold by the detenu is dangerous to public
health then under the Act, it becomes an activity
prejudicial to the maintenance of public order,
therefore, it becomes necessary for the detaining
authority to be satisfied on material available to him
that the arrack dealt with by the detenu is an arrack
which is dangerous to public health to attract the
provisions of the Act and if the detaining authority is
satisfied that such material exists either in the form of
report of the Chemical Examiner or otherwise copy
such material should also be given to the detenu to
afford him an opportunity to make an effective
representation.
8. Therefore, while holding that dealing with
arrack which is dangerous to public health would
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become an act prejudicial to the maintenance of
public order attracting the provisions of the Act. It
must be held that it is obligatory for the detaining
authority to provide the material on which it has
based its conclusion on this point. Therefore, we are
in agreement with the High Court that if the
detaining authority is of the opinion that it is
necessary to detain a person under the Act to prevent
him from indulging in sale of goods dangerous for
human consumption the same should be based on
some material and the copies of the such material
should be given to the detenu."
13) The two statements are identical and state about the
general behaviour of the petitioner and similar incidents have been
narrated by both the witnesses. In a recent judgment of the Hon'ble
Apex Court in the case of Arjun Ratan Gaikwad Vs. The State of
Maharashtra and ors arising out of SLP (Cri.) No.12516 of 2024
the Hon'ble Apex Court in paragraph No.17 of the said judgment
has observed as under:-
17. "Insofar as the statement of the two
unnamed witnesses are concerned, the allegations
are as vague as it could be. In any case the
statements which are stereotype even if taken on
its face value would show that the threat given to
the said witnesses is between the appellant and
the said witnesses. The statements also do not
show that the said witnesses were threatened by
the appellant in the presence of the villages
which would create a perception in the mind of
the villagers that the appellant herein is a threat
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to the public order".
14) The detaining authority is required to record the
satisfaction that the activity of manufacturing illicit liquor is causing
great prejudice to the maintenance of public order. The activity of
bootlegging may be prejudicial to the maintenance of the public
health, but it is also required to be found by the authority that such
activities is prejudicial to the maintenance of the public order.
There is a huge difference between public health and maintenance
of public order. It is not necessary that any danger to public health
would always lead to unrest and breach of peace among the
members of public. We are therefore, of the view that the
statements of the witnesses are not sufficient to pass the detention
order and the incidents mentioned in said statements also does not
show that it would lead to a conclusion which is beyond that of
disturbance of public health, and therefore, we are of the view that
there is no requisite satisfaction arrived at by the detaining
authority. In this view of the matter, we find that the impugned
order cannot be sustained in the eyes of law.
15) In the result, the Writ Petition is allowed in terms of it's
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prayer clause (i). The petitioner be set at liberty forthwith, if not
required in any other crime.
16) Rule is made absolute in above terms.
(MRS.VRUSHALI V. JOSHI, J) (NITIN W. SAMBRE, J)
Signed by: Kavita P Tayade
Designation: PA To Honourable Judge
Date: 01/04/2025 13:56:37 Kavita
