Bombay High Court
Shri. Jamiruddin @ Monu S/O Kadiruddin ... vs The State Of Maharashtra Thr. Its ... on 13 December, 2024
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2024:BHC-NAG:13669-DB
1 crwp.532.24-J.odt
N THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 532 OF 2024
Shri Jamiruddin @ Monu S/o Kadiruddin,
Aged 32 years,
R/o Ekta Nagar, Kandali
Tq. Achalpur, District - Amravati
(Presently at Central Prison, Kolhapur) ... PETITIONER
...VERSUS...
1. State of Maharashtra,
Through its Secretary,
Home Department, Mantralaya, Mumbai.
2. District Magistrate, Amravati.
3. Superintendent,
Central Prison, Kolhapur. ... RESPONDENTS
------------------------------------------------------------------------------------------------
Mr. R. M. Daga, Advocate for the Petitioner.
Mr. M. K. Pathan, A.P.P. for Respondents/State.
-----------------------------------------------------------------------------------------------
CORAM : NITIN W. SAMBRE AND MRS. VRUSHALI V. JOSHI, JJ.
JUDGMENT RESERVED ON : 09.12.2024
JUDGMENT PRONOUNCED ON : 13.12.2024
JUDGMENT (PER : MRS. VRUSHALI V. JOSHI, J.):-
1. Rule. Rule is made returnable forthwith. Heard finally by consent of learned counsel appearing for the parties.
2. In the instant matter, the petitioner has been detained vide impugned order dated 27.03.2024 passed by the respondent No.2- District 2 crwp.532.24-J.odt Magistrate, Amravati. The said order has been passed under Section 3(2) 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 as 'the MPDA Act, 1981'), subsequently confirmed by the respondent No.1 on 15.05.2024 by exercising powers conferred under section 12(1) of the MPDA Act, 1981.
3. The proposal for detention against the detenu was forwarded to the respondent No.2 by the Superintendent of Police, Amravati (Rural) on 01.03.2024. Earlier, it was forwarded to the Superintendent of Police, on 23.02.2024 by the Sub-Divisional Police Officer, Sub-Division, Achalpur, District - Amravati. The present detention is based on two crimes, i.e.,
(a) Crime No.822/2023 registered for the offence punishable under Sections 326, 143, 147, 149 of the Indian Penal Code, 1860 read with Section 135 of the Maharashtra Police Act, 1951.
(b) Crime No.989/2023 registered for the offence punishable under Sections 143, 147, 149, 294, 506 of the Indian Penal Code, 1860.
4. One of the grounds raised, challenging the impugned order in the present petition is that, the First Information Report in Crime No. 822/2023 would show that even the weapon of crime i.e. iron pipe was 3 crwp.532.24-J.odt recovered from co-accused Bhanu and not from the petitioner though the petitioner was arrested on 03.09.2023 and was subsequently released on bail by the Competent Court on 03.10.2023. Further, the allegations are general in nature in Crime No.989/2023.
One of the main grounds on which the petitioner seeks quashing and setting aside of the impugned order is that, the proposal would show that the verification of the in-camera statements of the confidential witnesses "A" and "B" carried out by the Sub-Divisional Police Officer, Achalpur, was done on 23.02.2024, i.e. two days after the proposal was already sent to the respondent No.2 in a sealed envelope.
5. The order of detention shows that, in Crime No. 822/2023, the complainant was called up by one of the associates of the detenu, near Mauli Pan Center close to Kavitha Stop, when the complainant reached there, other associates along with the petitioner surrounded him with weapons such as gupti in hand and started attacking the complainant by hitting an iron pipe on his head and he was also assaulted with knife which caused him injuries. The matter is pending before the concerned Court.
In Crime No.989/23, the complainant Farjana Parvin Adbul Salim, gave a written report that the detenu along with his brother-in-law and some of the neighbouring goons were pelting stones on the house of 4 crwp.532.24-J.odt the complainant, abused her and her daughters and threatened to kill them. The petitioner is released on bail in the said crime.
6. In the in-camera statement of witness "A", he affirmed that, when he was working to drain the sewage outside his residence, in the first week of December 2023, the detenu with his associates approached the witnesses, and interrogated him, by asking whose permission did the witness take before doing the work of draining the sewage. He further abused and threatened him that, if the complainant goes to the police, he will stab him with the knife which he carried with him.
7. Witness "B" stated that, in second week of the month of January, in the evening when the witness was sitting outside his residence, some children started playing on the street and a fight broke out after which, the witness went to resolve it. The petitioner approached the witness, abused him and said that the complainant needs his permission before doing anything in this area of Paratwada.
8. Mr. Daga, learned Counsel for the petitioner submitted that, prior to passing of the detention order, the Sub-Divisional Police Officer proceeded for externment of the petitioner and notice under Section 59 of the Maharashtra Police Act was issued to the petitioner. The detaining authority adjourned the proceeding for externment. Thus, there was no reason to terminate the said proceeding in the middle and thereafter, 5 crwp.532.24-J.odt passing the order of detention. There is no justification given in the grounds of detention as to why the proceeding of externment was terminated.
He further contended that no subjective satisfaction was recorded about unwillingness of witnesses to come forward and to depose against the petitioner. The record does not show that any effort was made by the respondent No.2 to have a dialogue in this regard with the Sub- Divisional Police Officer thus, vitiating the subjective satisfaction.
9. Mr. Daga, learned Counsel stated that, when the respondent No.2 deemed it fit that the detenu is continuing with his alleged criminal activities at large, the prosecution was at a liberty to seek the cancellation of the bail granted to the petitioner in the above stated crimes. However, the respondents took shelter under preventive law of detention which is an inappropriate remedy in this case.
10. Mr. Pathan, learned A.P.P. vehemently opposed the submissions of the petitioner. He relied on the affidavit-in-reply. He submitted that, the verification of the confidential statements at page No. 212 and 214 of the available record are sufficient to satisfy the respondent about the truthfulness and veracity of the confidential statements. He further submitted that the copy of the show cause notice as to why the petitioner should not be externed was supplied to the detenue dated 13.12.2023. The petitioner have indulged into bodily offences on various 6 crwp.532.24-J.odt occasions. There is every possibility that he could indulge into the same in future. The criminal activities of the petitioner are more than sufficient to tag him as a dangerous person as he has brandished a knife towards the witnesses. He further stated that, the externment proceedings were not terminated but were kept in abeyance. These are independent proceedings under the Bombay Police Act. The police authorities have been trying their best to curb the criminal activities of the petitioner.
11. From the detention order passed by the respondent No.2, it is to be noted that for the purpose of passing the detention order, two offences were considered as aforesaid. It is not in dispute that in both the cases, the petitioner has been released on bail. The detaining authority had considered the bail order passed by the District Judge. When those offences were considered, the detaining authority ought to have considered the facts of those cases. On going through the facts of both the cases, in first offence, the petitioner is accused No.7 and another offence is committed with other co-accused. The question therefore, then arises as to how those offences can be considered to assess the behaviour of the petitioner as detrimental to the public.
12. The learned Counsel for the petitioner has stated that, after going through the criminal record and also the offences, the Sub-Divisional Police Officer has considered the petitioner as a dangerous person and forwarded the proposal for detention. Once the offences were considered 7 crwp.532.24-J.odt for externment, considering the very same offences, the detention order is passed, which creates a doubt. The in-camera statements of witnesses 'A' and 'B', though taken as it is, would certainly show that people had gathered at the spot but the detention order cannot be passed on the basis of the said statements, as the verification of it creates doubt. We, therefore, agree with the submissions on behalf of the petitioner based on the decision in Khaja Bilal Ahmed Vs. State of Telangana and Ors. reported in 2020 (13) SCC 632 and Ameena Begum Vs. State of Telangana & Ors. reported in 2023 (9) SCC 587 wherein Dr. Ram Manohar Lohia Vs. State of Bihar and Ors. reported in 1966 SCR (1) 709. We are of the considered view that the offences which are now pending before the Court, are at the most 'law and order' situation but not detrimental to 'public order'.
13. The in-camera statements of the witnesses 'A' and 'B' though taken as it is, would certainly show that people had gathered at the spot but the detention order cannot be passed only on the basis of the in-camera statements of the witnesses. Moreover, the recording of in-camera statements creates a doubt as while issuing the proposal for detention on 21.02.2014, it is mentioned that the statements of witnesses are sealed. On perusal of the confidential statements, it appears that it is verified by the Sub-Divisional Police Officer on 23.02.2024. It clearly shows that the statements were sent with proposal without its verification. Hence, it creates a doubt. The petitioner has placed reliance on the judgment of 8 crwp.532.24-J.odt Ashokrao s/o. Uttamrao Pawar Vs. State of Maharashtra and Ors. reported in 2023 (3) Mh.L.J. (Cri.) 305 wherein it is held as under :
"16. Applying the ratio laid down in Sourabh s/o. Sahebrao Rathod (supra) and in Smt. Bismilah wd/o Sheikh Rahim (supra) to the facts of the present case, we have no doubt in our mind that there has been a total non compliance of the mandate of law as stated in these judgments, in that the Authority has neither recorded verification of the content and authenticity of the statements directly from the witnesses, nor has it recorded anywhere that it has verified that those witnesses were unwilling to give statements and testify against the Detenu out of fear. Further, none of this material, recording verification, was ever communicated to the Detenu to enable him to make a representation against it to the concerned Authority. We, therefore, record that the subjective satisfaction arrived at by the Authority on the basis of In-camera statements which are unreliable, unverified and not even communicated to the Detenu are unsustainable. We also conclude that non communication of this material to the Detenu renders the entire process and the impugned orders to have been passed contrary to the provisions of Article 22(5) f the Constitution of India."
14. The crimes, which are considered by the authority for passing the detention order, are already considered by the Sub-Divisional Police Officer, Achalpur for passing the externment order. For considering the externment order, the Sub-Divisional Police Officer has issued show cause notice dated 12.01.2024 under Section 59 of the Maharashtra Police Act, 1951 and thereafter, the said proceedings were kept in abeyance, which also creates a doubt about considering the said offences and keeping it in abeyance.
9 crwp.532.24-J.odt
15. While considering whether it is a situation of breach of public order or law and order, the Hon'ble Apex Court in the case of Ameena Begum Vs. The State of Telangana & Ors (supra) has held in para Nos.31, 32 and 34 which reads as under :
"31. It is trite that breach of law in all cases does not lead to public disorder. In a catena of judgments, this Court has in clear terms noted the difference between "law and order" and "public order.
32. We may refer to the decision of the Constitution Bench of this Court in Ram Manohar Lohia vs. State of Bihar [(1966) 1 SCR 709], where the difference between "law and order" and "public order" was lucidly expressed by Hon'ble M. Hidayatullah, J. (as the Chief Justice then was) in the following words:
"54. *** Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to 10 crwp.532.24-J.odt disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are.
55. It will thus appear that just as 'public order' in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting 'security of State', 'law and order' also comprehends disorders of less gravity than those affecting 'public order'. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State."
34. In Kuso Sah vs. The State of Bihar [(1974) 1 SCC 195], Hon'ble Y.V. Chandrachud, J. (as the Chief Justice then was) speaking for the Bench held that:
"4. *** The two concepts have well defined contours, it being well established that stray and unorganised crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. ***
6. *** The power to detain a person without the safeguard of a court trial is too drastic to permit a lenient construction and therefore Courts must be astute to 11 crwp.532.24-J.odt ensure that the detaining authority does not transgress the limitations subject to which alone the power can be exercised. ***"
The cognizance of the offences is taken under ordinary law and cases are pending for trial before the Competent Court.
In view of the above said observations, the offences which are considered for detention, does not come under the purview of public order.
16. We may further rely on the decision in Nenavath Bujji and Ors. Vs. The State of Telangana and Ors. reported in 2024 SCC OnLine SC 367, decided by Three Judge Bench of the Hon'ble Supreme Court in India. After considering various judgments, the legal position has been summarized as follows :
"43. We summarize our conclusions as under :-
(i) The Detaining Authority should take into consideration only relevant and vital material to arrive at the requisite subjective satisfaction,
(ii) It is an unwritten law, constitutional and administrative, that wherever a decision-making function is entrusted to the subjective satisfaction of the statutory functionary, there is an implicit duty to apply his mind to the pertinent and proximate matters and eschew those which are irrelevant & remote,
(iii) There can be no dispute about the settled proposition that the detention order requires subjective satisfaction of the detaining authority which, ordinarily, cannot be questioned by the court for insufficiency of material. Nonetheless, if the detaining authority does not consider relevant circumstances or considers 12 crwp.532.24-J.odt wholly unnecessary, immaterial and irrelevant circumstances, then such subjective satisfaction would be vitiated,
(iv) In quashing the order of detention, the Court does not sit in judgment over the correctness of the subjective satisfaction.
The anxiety of the Court should be to ascertain as to whether the decision-making process for reaching the subjective satisfaction is based on objective facts or influenced by any caprice, malice or irrelevant considerations or non-application of mind,
(v) While making a detention order, the authority should arrive at a proper satisfaction which should be reflected clearly, and in categorical terms, in the order of detention,
(vi) The satisfaction cannot be inferred by mere statement in the order that "it was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order". Rather the detaining authority will have to justify the detention order from the material that existed before him and the process of considering the said material should be reflected in the order of detention while expressing its satisfaction,
(vii) Inability on the part of the state's police machinery to tackle the law and order situation should not be an excuse to invoke the jurisdiction of preventive detention,
(viii) Justification for such an order should exist in the ground(s) furnished to the detenu to reinforce the order of detention. It cannot be explained by reason(s)/grounds(s) not furnished to the detenu. The decision of the authority must be the natural culmination of the application of mind to the relevant and material facts available on the record, and
(ix) To arrive at a proper satisfaction warranting an order of preventive detention, the detaining authority must, first examine the material adduced against the prospective detenu to satisfy itself whether his conduct or antecedent(s) reflect that he has been acting in a manner prejudicial to the maintenance of public order and, second, if the aforesaid satisfaction is arrived at, it must further consider whether it is likely that the said person would act in a manner prejudicial to the public order in near future unless he is prevented from doing so by passing an order of detention. For passing a detention order based on subjective satisfaction, the answer of 13 crwp.532.24-J.odt the aforesaid aspects and points must be against the prospective detenu. The absence of application of mind to the pertinent and proximate material and vital matters would show lack of statutory satisfaction on the part of the detaining authority."
17. Another angle in the matter is that it is not in dispute that the subjective satisfaction is one of the basic requirements for passing the order of detention. The subjective satisfaction can be arrived at on the basis of various facts involved in the matter. Each fact will have to be considered independently as well as its effect together with other evidence that has been brought on record. The subjective satisfaction about the truthfulness of the statements of the witnesses is doubtful.
18. Though the Advisory Board has approved the detention of the petitioner, yet for the aforesaid reasons, we do not find that there was any material before the detaining authority to detain the petitioner. Therefore, the confirmation of the said detention order by the State cannot be upheld.
19. For the aforesaid reason, the petition deserves to be allowed and it is accordingly, allowed.
20. We hereby quash and set aside the detention order dated 27.03.2024 passed by the respondent No.2.
21. The petitioner be set at liberty forthwith, if not required in any other crime.
14 crwp.532.24-J.odt
22. Rule is made absolute in aforesaid terms.
(MRS. VRUSHALI V. JOSHI, J.) (NITIN W. SAMBRE, J.) RGurnule Signed by: Mrs. R.M. MANDADE Designation: PA To Honourable Judge Date: 14/12/2024 15:10:33