Bombay High Court
Santosh Uttam Gaikwad vs The District Magistrate, Beed And ... on 3 January, 2022
Author: V. K. Jadhav
Bench: V.K. Jadhav
1 crwp 500.2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.500 OF 2021
Shri Santosh Uttam Gaikwad,
age 30 yrs, Occ. Labourer,
R/o Kesapuri Camp, Majalgaon,
Tq. Majalgaon,
District. Beed. ...Petitioner...
Versus
1. District Magistrate, Beed.
District Beed.
2. The State of Maharashtra,
Through the Secretary,
Home Dept. (Spl)
Mantralaya, Mumbai - 32.
3. The Superintendent of Prison,
Central Prison, Harsul, Aurangabad.
District Aurangabad. ..Respondents..
...
Advocate for Applicant : Mr. Satej S. Jadhav
APP for Respondents-State : Mr. R V Dasalkar
...
CORAM : V.K. JADHAV & SANDIPKUMAR C. MORE, JJ.
...
Reserved on : November 30, 2021
Decided on : January 03, 2022
...
JUDGMENT :- ( Per V. K. Jadhav, J.)
1. Heard.
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2 crwp 500.2021.odt
2. Rule. Rule made returnable forthwith. Heard finally with consent of parties, at admission stage.
3. By way of this criminal writ petition, the petitioner is challenging the order of detention dated 6.12.2020 passed by respondent no.1 under section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous Persons and Video Pirates Act, 1981 (for short herein after referred to as the MPDA Act). Said order of detention against the petitioner was confirmed by the Advisory Board, Mumbai as well as by the Government of Maharashtra by order dated 21.1.2021.
4. Being aggrieved and dissatisfied with the said order of detention, the petitioner/detenu invokes writ jurisdiction of this Court on the ground that said order has violated the fundamental rights of the detenu.
5. In pursuance of the provisions of section 8 of the MPDA Act, respondent no.1 has communicated the grounds on which the detention order has been passed aaa/-
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3 crwp 500.2021.odt under sub-section (2) of section 3 of the MPDA Act. Respondent no.1 has mainly considered the following grounds to pass the impugned detention order against the petitioner.
i] The petitioner is a 'dangerous person' as defined under section 2 (b-1) of the MPDA Act.
ii] The petitioner's criminal activities are prejudicial to the maintenance of the public order.
iii] On the basis of the in-camera statements of two witnesses, the petitioner's activities are considered to be dangerous, habitual and prejudicial to the maintenance of the public order.
6. Learned counsel for the petitioner submits that the detaining authority has passed the detention order in a mechanical and casual manner. The impugned order indicates non-application of mind of the detaining authority. The learned counsel for the petitioner submits that though the detaining authority has referred 16 to 17 crimes and two preventive detention orders against the petitioner as a past history, however, the detaining authority has passed the impugned order of detention on the basis of the sole crime no.303 of aaa/-
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4 crwp 500.2021.odt 2020 registered with Majalgaon City Police Station, wherein the date of incident is 21.9.2020 and further on the basis of two in-camera statements of the witnesses in respect of the incident allegedly taken place on 14.9.2020 and 19.9.2020, respectively. Learned counsel for the petitioner submits that, there is a considerable gap between recording of the said in- camera statements and passing of the impugned order. So, there is hardly a proximate or live-link between the material on which the authority has passed the impugned detention order. Learned counsel for the petitioner submits that the in-camera statements of two witnesses have not verified by the detaining authority personally to ascertain as to whether the persons are not coming forward to give evidence against the petitioner in public by reason of his terror. Learned counsel for the petitioner submits that, even if the said crime no.303 of 2020 is considered, the incident allegedly had taken place in two parts, firstly, in front of the house of the complainant and, secondly, at the police station. The petitioner was not at fault and, even aaa/-
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5 crwp 500.2021.odt then, crime has been registered against him. Learned counsel submits that, section 3 of the MPDA Act is not attracted. The order of detention is illegal and is liable to be revoked and set aside. Learned counsel for the petitioner submits that there is no evidence to indicate that prejudicial activities as alleged of the petitioner has affected the public at large or larger segment of the society, which is requirement of the disturbance to the public order. Learned counsel for the petitioner submits that the petitioner has studied only up to 5th standard in Marathi Medium. There are various vital documents in the compilation which are in English language. However, the translated copies are not supplied to the petitioner, consequently, the petitioner is deprived from making any effective representation. Learned counsel for the petitioner submits that, even the detaining authority has not considered the order of bail granted to the petitioner in connection with crime no.303 of 2020 by the High Court with condition on 2.12.2020, however, immediately thereafter on 6.12.2020 preventive detention order came to be passed against the petitioner. aaa/-
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7. Learned counsel for the petitioner submits that so far as in-camera statements of two witnesses are concerned, both the statements are having blank space about the day, date and time of the incident, whereas, in the grounds of the detention while narrating the gist of the in-camera statements, details of the incident as day, date and time is disclosed. Thus, there is a mark inconsistency about the particulars of the incident. Learned counsel submits that the impugned order is thus liable to be quashed and set aside.
8. Learned APP submits that the petitioner is not entitled to challenge the order of detention. Learned APP submits that the sufficiency or insufficiency of the grounds of detention cannot be a subject matter on the basis of which writ petition could be entertained. It is subjective satisfaction of the detaining authority that the acts of the detenue are prejudicial to the maintenance of public order and with a view to prevent him from committing such acts, detention is necessary. Learned APP submits that the petitioner is a "Dangerous aaa/-
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7 crwp 500.2021.odt Person" as defined in the said Act and he has committed various serious offences i.e. i] violation of prohibitory orders issued under the Maharashtra Police Act, ii] violation of the externment order, iii] assault on public servant to deter him from discharging his public duty, iv] voluntarily causing damage to public servant, v] voluntarily causing hurt, making preparation to commit dacoity, vi] rioting, vii] mischief causing damage, viii] illegal possession of the arms ix] affray, x] insult intended to provoke breach of the peace, criminal intimidation etc. Learned APP submits that the petitioner has created a terror in the locality of Majalgaon City and disturbed the public peace over there.
9. Learned APP submits that though there is a past history of the various offences as detailed above, however, the petitioner is continuing his illegal and dangerous activities in ascending trend. Learned APP submits that considering the seriousness of the said crimes, the Police Inspector of Majalgaon City, District aaa/-
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8 crwp 500.2021.odt Beed has conducted confidential inquiry. It has been revealed that due to fear of the petitioner, no one comes forward to give statement openly against him. On the assurance about the names and identity would be kept secret; two witnesses 'A' and 'B' have come forward and, accordingly, their in-camera statements were recorded. Learned APP submits that the Sub Divisional Police Officer, Majalgaon, has verified those in-camera statements and submitted the report to that effect to respondent no.1. The learned APP submits that detaining authority after recording the subjective satisfaction passed the order on 6.12.2020 and on the same day it was served on the petitioner. Learned APP submits that Marathi translation and other relevant legible documents were served on the petitioner on 2.12.2020. Detention order has been approved by the State Government vide its order MPDA-1220/CR-211/SPL-3B dated 14.12.2020. Learned APP submits that the Advisory Board constituted under the said Act heard the petitioner on 8.1.2021 and after receipt of the opinion of the Advisory aaa/-
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9 crwp 500.2021.odt Board, detention order has been confirmed by the State Government vide order dated 21.1.2021. Learned APP submits that all the mandatory provisions have been completed in time.
10. Learned APP submits that the detaining authority has not passed the order mechanically and in casual manner. Though, there is no mention about the day, date and time of the incident in the in-camera statement of 'A' and 'B', however, it is not mandatory in the order of detention to disclose the fact which such authority considered to be against the public interest. Learned APP submits that there is no substance in this writ petition and the same is liable to be dismissed.
11. We have also heard the learned counsel appearing for the petitioner and the learned APP for the respondent-State. With their able assistance, we have perused the pleadings in the petition, annexures thereto.
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10 crwp 500.2021.odt
12. "Dangerous Person" as defined in the said Act is reproduced herein below :-
"2. Definitinn.. In thi. Actn unle.. the cnntett ntherwi.e require.n--
(a) ......
(b) ......
(b-1) "dangernu. per.nn" mean. a per.nnn whn either by him.elf nr a. a member nr leader nf a gangn habitually cnmmit.n nr attempt. tn cnmmit nr abet. the cnmmi..inn nf any nf the nfence. puni.hable under Chapter XVI nr Chapter XVII of the Indian Penal Code nr any nf the nfence. puni.hable under Chapter V nf the Arm. Actn 1959. (LIV nf 1959;).
Also, Section 3(1) of the MPDA Act is relevant for the present discussion and the same is reproduced herein below :-
"3(1) The State Gnvernment mayn if .ati.fied with re.pect tn any per.nn that with a view tn preventing him frnm acting in any manner prejudicial tn the maintenance nf public nrdern it i. nece..ary .n tn dnn make an nrder directing that .uch per.nn be detained."
13. In the instant case, the detaining authority has considered the past history for its satisfaction as to whether the activities of the petitioner are prejudicial to the maintenance of the public order and also to consider as to whether the petitioner is a habitual offender, however, detention order has been issued only on the aaa/-
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11 crwp 500.2021.odt basis of crime no.303 of 2020. We have carefully gone through the FIR of the said crime no.303 of 2020. It appears that due to some personal enmity with the complainant and his family members, the petitioner alongwith others went to his house and caused damage to his vehicle parked in front of his house and, thereafter, when the police machinery has sent the complainant and his family member to the police station and also called the petitioner in the police station, at that time, in the police station itself, one of the companion of the complainant took out the knife from his waist and tried to assault the petitioner and others. The petitioner came to be released on bail by this Court with the observations that in the given set of allegations, the petitioner was not at fault. It is further pertinent that in respect of the same incident, the concerned police station has registered two crimes no.301 of 2020 and 303 of 2020 against the petitioner and others. However, no crime seems to have been registered against the said companion of the complainant or the complainant himself for assaulting the petitioner in the aaa/-
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12 crwp 500.2021.odt police station itself by using the knife. This solitary act would not constitute habit.
14. In a case of Arun Ghosh Vs. State of West Bengal reported in 1970 (1) SCC 98, the Supreme Court has dealt with section 3 (2) of the MPDA Act and differentiated the public order and law and order. The Supreme Court in paragraph no.3 of the said order has made following observations :-
"3. The submission of the counsel is that these are stray acts directed against individuals and are not subversive of public order and therefore the detention on the ostensible ground of preventing him from acting in a manner prejudicial to public order was not justified. In support of this submission reference is made to three cases of this Court: Dr. Ram Manohar Lohia v. State of Bihar; Pushkar Mukherjee and Others v. State of West Bengal and Shyamal Chakraborty v. The Commissioner of Police, Calcutta and Another. In Dr. Ram Manohar Lohia's case this Court pointed out the difference between maintenance of law and order and its disturbance and the maintenance of public order and its disturbance. Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its affect upon the life of the community in a locality which determines whether the aaa/-::: Uploaded on - 03/01/2022 ::: Downloaded on - 04/01/2022 07:10:30 :::
13 crwp 500.2021.odt disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large Sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its affect upon the public tranquility there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only aaa/-::: Uploaded on - 03/01/2022 ::: Downloaded on - 04/01/2022 07:10:30 :::
14 crwp 500.2021.odt committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. The French distinguish law and order and public order by designating the latter as order public. The latter expression has been recognized as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ Petition No.179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public at large. He drew an analogy between public and private crimes. The analogy is useful but not to be pushed too far. A large number of acts directed against persons or individuals may total up into a breach of public order. In Dr. Ram Manohar Lohia's case examples were given by Sarkar, and Hidayatullah, JJ. They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. The question to ask is : Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another."
15. So far as crime no.303 of 2020 in connection with crime no.301 of 2020 are considered, the same appears to be a solitary assault on one individual or his family member thus can hardly be said to disturb the public aaa/-
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15 crwp 500.2021.odt peace. Such incident can at the most raise a law and order problem and no more.
16. So far as the in-camera statements of two witnesses are concerned, the detaining authority has recorded day, date and time of the incident i.e. 14.9.2020 and 19.9.2020, however, on perusal of the record, it appears that the same is kept blank in the said two in-camera statements of the witnesses. Even, assuming that said part of the statements kept blank purposely with the sole purpose to maintain secrecy, however, as per the noting of the Sub Divisional Police Officer on 23.10.2020 the S.D.P.O. has verified those in- camera statements of two witnesses. It further appears that, even if the said incident allegedly taken place on 14.9.2020 and 19.9.2020 respectively, however, those in- camera statements of witnesses 'A' and 'B' came to be recorded on 3.10.2020 and verified by S.D.P.O. on 23.10.2020. It further appears that said incident had taken place at two different places and on the same date S.D.P.O. has verified the statement by visiting the spot. aaa/-
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17. In the instant case, there is a reference of the past history, however, the detention order is passed on the sole crime and two in-camera statements. In our considered opinion, on the basis of such insufficient material with the deficiencies as observed above, an extra ordinary step of issuance of detention order is not justifiable. Hence, we proceed to pass the following order.
ORDER i. Criminal writ petition is hereby allowed. ii. The impugned order dated 6.12.2020 bearing No.D.O.2020/RB-Desk-1/Pol-1/MPDA-11 passed by the respondent no.1 under section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous Persons and Video Pirates Act, 1981 and the order of confirmation dated 21.1.2021 passed by respondent no.2- Home Department (Spl), Mantralaya, Mumbai- 32 are hereby quashed and set aside.
iii. The petitioner Santosh Uttam Gaikwad is directed to be released forthwith, if not required in connection with any other case.
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17 crwp 500.2021.odt iv. Rule is made absolute in above terms. v. Record and Proceedings be returned forthwith. vi. Criminal writ petition is accordingly disposed off.
( SANDIPKUMAR C. MORE, J. ) ( V.K. JADHAV, J. ) ...
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