Bombay High Court
Pappu Kacharu Ghorpade vs The State Of Maharashtra And Others on 4 September, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:20762-DB
1 962.Cri.WP-1107-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No. 1107 / 2024
Pappu Kacharu Ghorpade,
Age : 30 years, Occu. Labour,
R/o Village Khadgaon, Tq.-Badnapur,
District Jalna. ...Petitioner
Versus
1. State of Maharashtra
Through Section Officer
Home Department (Special),
2nd Floor, Mantralaya, Mumbai.
2. The District Magistrate
Collector Office, Jalna.
3. The Superintendent,
Central Prison,
Harsool, Aurangabad. ..Respondents
___
Advocate for the Petitioner : Ms. S.G. Sonawane
A.P.P. for Respondents/State : Mr. A.M. Phule
___
CORAM : SMT. VIBHA KANKANWADI &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 16 AUGUST 2024
PRONOUNCED ON : 04 SEPTEMBER 2024
J U D G M E N T [ Per Shailesh P. Brahme, J. ] :
. Rule. Rule is made returnable forthwith. Heard both the sides
finally with their consent.
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2. By resorting to provisions of Articles 226 and 227 of the
Constitution of India, the petitioner is challenging the order of detention
dated 14.02.2024 passed by the respondent no.2/District Magistrate,
passed under Section 3(1) and order dated 08.04.2024 under Section 12
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 for the
sake of brevity and convenience). The petitioner has been held to be
dangerous person on the basis of seven offences pitted, a preventive
action, a proceeding of externment and two in-camera statements of
anonymous witnesses. It has been recorded that he has been indulging
into the activities detrimental to the public order and has not been
deterred by regular penal action.
3. Learned Counsel Mrs. S.G. Sonawane appearing for the petitioner
submits that there is unexplained delay in passing order of detention
from the registration of last offence. It is further submitted that the
reasons assigned for extending the petitioner on bail in offences has
not been considered by the detaining authority which vitiates the
subjective satisfaction. She would further submit that the first offence
pitted against the petitioner was registered on 23.04.2020 and the
impugned action was taken on 14.02.2024. The live link is snapped. It is
further submitted that the subjective satisfaction does not indicate any
prejudice to public order. Lastly it is submitted that the material pitted
against him is not cogent enough so as to resort to drastic and
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draconian action under the MPDA Act.
4. Learned Counsel for the petitioner seeks to rely on the following
judgments :
i. Ameena Begum Vs. the State of Telangana & Ors.
(2023) 9 SCC 587, decided on 04.08.2023
ii. Nilesh Sunil Pendulkar Vs. District Magistrate & Ors.
Cri. Writ Petition No.1820/2023, Cri. WP No.1820/2023
dated 29.02.2024.
iii. Alakshit Rajesh Ambade Vs. State of Maharashtra & Ors.
Cri. Writ Petition No.626/2022 dated 20.12.2022
iv. Ashokrao Uttamrao Pawar Vs. State of Maharashtra & Ors.
Cri. Writ Petition No.738/2022 dated 08.02.2023.
5. Per contra, learned APP would support the impugned order and
would rely upon affidavit-in-reply of the respondent no.2. He would
submit that a reasonable and plausible view has been taken by the
detaining authority, considering material pitted against the petitioner.
There was adequate material against the petitioner to indicate that he
has created terror in the vicinity Ordinarily, the residents would not
dare to lodge complaint against him. It is further submitted that the
offence pitted against the petitioner would fall under Chapter XVI of the
Indian Penal Code. They are serious in nature and would indicate his
habitual tendency.
6. Learned APP further submits that the relevant papers of the
proposal and grounds of detention were served on the petitioner. After
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passing impugned order with every promptitude, the proposal was
forwarded to the higher authorities. Order of detention was approved
within the stipulated period. He would submit that the matter was
promptly placed before the Advisory Board which recommended in the
action of detention and ultimately it was confirmed on 08.04.2024. It is
further submitted that the representation dated 27.02.2024 was duly
considered and rejected by the respondent no.2. Therefore, he would
submit that no interference is called for in the impugned action.
7. Having considered rival submissions of the litigating sides, it is
evident that following material is pitted against the petitioner :
Sr. No. Police Station C.R. Number Date of Registration Nature of Offence
1 Kadim Jalna 186/2020 23.04.2020 Under Sections 457, 380,411 of IPC
2 Chandanjhira 06/2022 04.01.2022 Under Sections 452, 384, 323, 427, 504,
Jalna 506, 34 of IPC
3 Chandanjhira 07/2022 05.01.2022 Under Sections 307, 326, 324, 333, 332,
Jalna 504, 506, 34 of IPC
4 Chandanjhira 16/2023 20.01.2023 Under Sections 326, 504, 506, 34 of IPC
Jalna
5 Chandanjhira 302/2023 11.08.2023 Under Sections 353, 333, 332, 427, 504,
Jalna 506, 34 of IPC
6 Chandanjhira 413/2023 29.10.2023 Under Sections 394, 34 of IPC
Jalna
7 Chandanjhira 415/2023 29.10.2023 Under Sections 394, 34 of IPC
Jalna
PREVENTIVE ACTION
1 Chandanjhira 137/2022 19.07.2022 Under Section 107 of Cr.P.C.
Jalna
DEPORTATION ACTION
1 Chandanjhira 1/2023 Under Section 55 of Bombay Police Act
Jalna
8. There is no dispute that 'in-camera statements' of witnesses
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were recorded on 30.10.2023 and 03.11.2023. The proposal was submitted
on 27.12.2023. The first offence i.e. C.R. No.186/2020 was registered on
23.04.2020 and the last offence bearing C.R. No.415/2023 was registered
on 29.10.2023. The impugned order was passed on 14.02.2024. It was
served on the petitioner on 15.02.2024 with grounds of detention. A
report was forwarded under Section 3(3) of MPDA Act to the State
Government on 20.02.2024. It was approved under Section 3(3) of MPDA
Act on 23.02.2024. The representation on 27.02.2024 was rejected on
20.03.2024. The impugned order was confirmed on 08.04.2024 by the
respondent no.1.
9. It is explicitly clear from the ground of detention that all seven
offences right from C.R. No.186/2020 have been taken into account by
the detaining authority. We propose to consider delay caused at two
stages of the process. Firstly delay from registration of the first
offence and secondly delay from the registration of the last offence.
The first offence, C.R. No.186/2020, was registered on 23.04.2020. The
impugned order is passed after period of more than three years and
nine months from registration of first offence. There is no live link
between the grounds of detention and avowed purpose of detention.
The affidavit-in-reply falls short to explain this span of three years
and nine months. As we are dealing with drastic action under the Act,
the material pitted against detenue should unequivocally indicate that
the activities of the detenue were of such nature so recourse to the
process under the Act was required to be taken.
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10. The offences registered against the petitioner on 23.04.2020,
04.01.2022 and 05.01.2022 as can be seen from the chart provided in the
above referred paragraph no.7 were pitted against the petitioner by the
Sponsoring Authority. Those were part of proposal submitted on
27.12.2023. If the older offences are part of the scrutiny then the
proposal of detention looses the gravity. The criminal antecedents of
the detenue would indicate threat to the public order and need to
resort to drastic action. The live link would be snapped if there is a
considerable time gap between the criminal record and the proposed
action. The huge span would be indicative of the fact that there is no
real threat to the public order.
11. The last offence bearing C.R. No.415/2023 was registered on
29.10.2023. The proposal was submitted on 27.12.2024. The impugned
order was passed on 14.02.2024 which is after three and half months
from registration of the last offence. We have gone through the
affidavit-in-reply. In-camera statements were recorded on 30.10.2023
and 03.11.2023. The proposal was submitted on 27.12.2023. The
statements were verified on 02.01.2024. A period of one month was
taken for verification of in-camera statements which is
incomprehensible. There is no explanation in the reply as to how the
time of 3.5 months was consumed. The delay of 3.5 months from
registration of the last offence has not been explained satisfactorily. It
goes to the root of matter and vitiates impugned action.
12. We are fortified in arriving at the above conclusion in view of the
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judgments rendered in the matter of Pradeep Nilkant Paturkar Vs. S.
Ramamurthi & Ors., AIR 1994 SCC 656; Digambar Dagdade Vs. State of
Maharashtra & Ors., Criminal Writ Petition No. 1736/2023 and Sushanta
Kumar Banik Vs. State of Tripura, AIR 2000 SC 4715. We propose to
reproduce following paragraphs :
"15. The adverse effect of delay in arresting a detenu has been examined by this
Court in a series of decisions and this Court has laid down the rule in clear terms
that an unreasonable and unexplained delay in securing a detenu and detaining
him vitiates the detention order. In the decisions we shall refer hereinafter, there
was a delay in arresting the detenu after the date of passing of the order of
detention. However, the same principles would apply even in the case of delay in
passing the order of detention from the date of the proposal. The common
underlying principle in both situations would be the "live & proximate link"
between the grounds of detention & the avowed purpose of detention.
16. In Sk. Nizamuddin v. State of West Bengal, (1975) 3 SCC 395, this Court
while examining the necessity of securing the arrest of the detenu immediately
after the order of detention has held thus:
"It would be reasonable to assume that if the District Magistrate was really
and genuinely satisfied after proper application of mind to the materials
before him that it was necessary to detain the petitioner with a view to
preventing him from acting in a prejudicial manner, he would have acted
with greater promptitude in securing the arrest of the petitioner
immediately after the making of the order of detention, and the petitioner
would not have been allowed to remain at large for such a long period of
time to carry on his nefarious activities. Of course when we say this we
must not be understood to mean that whenever there is delay in arresting
the detenu pursuant to the order of detention, the subjective satisfaction of
the detaining authority must be held to be not genuine or colourable. Each
case must depend on its own peculiar facts and circumstances. The detaining
authority may have a reasonable explanation for the delay and that might
be sufficient to dispel the inference that its satisfaction was not genuine."
Having held as above, Bhagwati, J. (as the learned Chief Justice then was)
pointed out that if there is any delay in arresting the detenu pursuant to
the order of detention which is prima-facie unreasonable, the State must
give reasons explaining the delay.
17. A similar contention was raised in Suresh Mahato v. The District Magistrate,
Burdwan, and Ors., (1975) 3 SCC 554, on the basis of the dictum laid down in two
decisions of this Court, namely, SK. Serajul v. State of West Bengal, (1975) 2 SCC
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78, and Sk. Nizamuddin (supra) contending that the delay of the arrest of the detenu
in that case showed that the detaining authority was not really and genuinely
satisfied as regards the necessity for detention of the detenu for otherwise he would
have tried to secure the arrest of the detenu promptly and not left him free to carry
on his nefarious activities. Bhagwati, J. (as the learned Chief Justice then was) while
dealing with this submission, made the following observation:
"Now, there can be no doubt--and the law on this point must be regarded
as well settled by these two decisions--that if there is unreasonable delay
between the date of the order of detention and the date of arrest of the
detenu, such delay, unless satisfactorily explained, would throw considerable
doubt on the genuineness of the subjective satisfaction of the District
Magistrate and it would be a legitimate inference to draw that the District
Magistrate was not really and genuinely satisfied as regards the necessity
for detaining the petitioner."
18. Chinnappa Reddy, J. speaking for the Bench in Bhawarlal Ganeshmalji v. State of
Tamil Nadu, (1979) 1 SCC 465, has explained as follow:
"It is further true that there must be a "live and proximate link" between
the grounds of detention alleged by the detaining authority and the avowed
purpose of detention namely the prevention of smuggling activities. We may
in appropriate cases assume that the link is "snapped" if there is a long
and unexplained delay between the date of the order of detention and the
arrest of the detenu. In such a case, we may strike down an order of
detention unless the grounds indicate a fresh application of the mind of the
detaining authority to the new situation and the changed circumstances. But
where the delay is not only adequately explained but is found to be the
result of the recalcitrant or refractory conduct of the detenu in evading
arrest, there is warrant to consider the "link" not snapped but
strengthened." (Emphasis supplied)
13. Learned Counsel Ms. Sonawane would draw our attention to the
fact that in all the offences, petitioner was released on bail. The
detaining authority has not dealt with the reasons assigned by criminal
courts while enlarging the petitioner on bail on different occasions.
Though the orders of bail were part of record forwarded by the
sponsoring authority. No endeavour has been made by the District
Magistrate to apply mind. According to us, this is serious flaw in
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conducting objective scrutiny of the material by the detaining
authority. Now it is settled law that the reasons assigned for enlarging
detenue on bail would form the relevant consideration for the detaining
authority while considering proposal for detention. Learned Counsel has
rightly referred to judgments in the matter of Alakshit Rajesh Ambade
and Nilesh Sunil Pendulkar (supra).
14. In-camera statements were recorded on 30.10.2023 and 03.11.2023.
Statement of witness-B discloses that the instance cited by him had
occurred in the month of September, 2023 i.e. before one month.
Whereas statement of witness-A refers the instance of August, 2023
i.e. prior to two months. It is surprising that the statements were being
recorded after considerable period from occurrence of overact against
them. We do not find any explanation for this in the affidavit-in-reply.
Apparently we find that statements are not reliable. This aspect of the
matter has not been dealt with by the District Magistrate. We have
reservation for the subjective satisfaction of the detaining authority.
15. Learned Counsel for the petitioner has referred to judgment in
the matter of Ameena Begum (supra) to demonstrate the difference
between public order and law and order. But no submissions are being
made in that regard. A useful reference can be made to the latest
judgment of the Supreme Court in the matter of Nenavath Bujji Etc. Vs.
State of Telangana, AIR 2024 SC 1610 in its paragraph no.43 which is as
follows :
"43. We summarize our conclusions as under:-
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(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 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
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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 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."
16. We have no hesitation to hold that the impugned order is
unsustainable, as it cuts across the above referred clause nos. (i), (ii),
(iii), (v) and (viii). We have already recorded that there is delay in
initiating action and non-application of mind for not considered the
orders of bail. On these counts, we find that impugned order is
unsustainable.
17. The order of detention dated 14.02.2024 passed by the detaining
authority was confirmed by the State Government on 08.04.2024 under
Section 12 of the MPDA Act after receiving recommendation of the
Advisory Board. The Advisory Board should have taken into account
the points which we have considered while examining order of
detention. Therefore, the order of confirmation dated 08.04.2024 is also
liable to be quashed and set aside. We, therefore, pass following order :
ORDER
(i) The Criminal Writ Petition is allowed.
(ii) The impugned order of detention dated 14.02.2024 and its confirmation by State Government dated 08.04.2024 are quashed and set aside.
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(iii) The petitioner shall be set at liberty forthwith.
(iv) Rule is made absolute in the above terms.
SHAILESH P. BRAHME SMT. VIBHA KANKANWADI
JUDGE JUDGE
NaJeeb..