Bombay High Court
Dharma@Dharmraj Nimai Roy (In Jail) vs The State Of Maharashtra, Thr. Its ... on 18 December, 2018
Author: S.B. Shukre
Bench: S.B. Shukre, S.M. Modak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL WRIT PETITION NO. 859 OF 2018
Dharma @ Dharmraj Nimai Roy,
aged about 34 years, r/o Hanuman
Ward, Chamorshi, Tahsil -
Chamorshi, Dist. Gadchiroli. ... PETITIONER
Versus
1. The State of Maharashtra
through its Secretary,
Home Department,
Mantralaya, Mumbai - 32.
2. District Magistrate,
Gadchiroli.
3. Superintendent, District
Prison, Chandrapur. ... RESPONDENTS
Shri R.M. Daga, Advocate for the petitioner.
Shri A.S. Fulzele, APP for the respondents.
.....
CORAM : S.B. SHUKRE &
S.M. MODAK, JJ.
DECEMBER 18, 2018.
ORAL JUDGMENT : (PER S.B. SHUKRE, J.)
Heard. Rule. Rule is made returnable forthwith and heard finally with the consent of parties. ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 20:59:41 ::: cwp859.18 2
2. The petitioner is a resident of Chamorshi, District - Gadchiroli. He carries on various activities in an area which falls within the jurisdictional limits of S.D.P.O., Gadchiroli. Having watched various activities of the petitioner, S.D.P.O. collected some information about the petitioner and formed an opinion that the petitioner was indulging in dangerous activities which would go unabated if the petitioner was not detained in a preventive action. Therefore, the S.D.P.O. Gadchiroli, sent a proposal dated 18.05.2018 under Section 3(1) of the Maharashtra Prevention of Dangerous Persons and Video Pirates, Sand Smugglers and Persons engaged in Black Marketing of Essential Commodities Act, 1981 (for short MPDA Act) to the District Magistrate i.e. respondent No. 2, for preventively detaining the petitioner under Section 3 of the MPDA Act.
3. The grounds that were taken in the proposal were inter alia, the registration of crime being Crime No. 151 of 2017 under Section 65 of the Prohibition Act read with Section 188 of the Indian Penal Code against the petitioner and the ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 20:59:41 ::: cwp859.18 3 dangerous inclinations of the petitioner as revealed from some statements recorded in-camera by the police.
4. The proposal and the material placed before the Competent Authority - respondent No. 2 were considered and the preventive detention order was passed on 19.06.2018, directing detention of the petitioner for a period of one year under Section 3 of the MPDA Act.
5. It appears that the order was placed before the Advisory Board constituted under Section 9 of the MPDA Act and it received positive recommendations and, therefore, in terms of Section 12 of the MPDA Act, it was confirmed by respondent No. 1. It is this action which is challenged in present petition.
6. It is the submission of the learned counsel for the petitioner that there has been undue delay which has taken place in passing of the impugned orders dated 19.06.2018 and 17.07.2018 by respondent Nos. 2 and 1 respectively. He ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 20:59:41 ::: cwp859.18 4 submits that the crime that was registered against the petitioner was of the year 2017 and in-camera statement of witness 'A' was recorded in January 2018 and in-camera statement of witness 'B' was recorded in December 2017 whereas the proposal was sent in May 2018, which was accepted by respondent No. 2 in June 2018. He submits that this delay was totally unexplained and it has resulted in snapping of live link between the alleged prejudicial activities of the petitioner and the need expressed by the impugned orders for preventively detaining the petitioner. He places reliance upon the judgment in the case of Pradeep Nilkanth Paturkar vs. S. Ramamurthi & Ors., reported at AIR 1994 SC 656 and also the judgment of this Court in the case of Shahnawaj Khan s/o Ismail Khan vs. The State of Maharashtra & Anr., reported at 2014 ALL MR (Cri) 940 and in the case of Rashid Shaukat Husain Sayyed @ Jagga vs. The State of Maharashtra & Ors., reported at 2018 ALL MR (Cri) 3543, which followed the ratio of the judgment in the case of Pradeep Nilkanth Paturkar.
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7. The learned APP for the respondents submits that the order dated 19.06.2018 has been accorded approval by the Advisory Board as it was found to be just and fair. The Advisory Board recommended for its confirmation and accordingly it was confirmed by the State Government. He submits that there is no illegality committed by any of the respondents in taking preventive action against the petitioner. As regards the submission about unexplained delay occurred in the present case, it is stated that though there is a delay, the impugned orders having been passed within six months from the last date of recording of in-camera statement, it cannot be said that there has been snapping of live link, as submitted by the learned counsel for the petitioner.
8. On going through the papers of the case, we find that there is great substance in the submissions of the learned counsel for the petitioner and there is no substance in the submissions of the learned APP.
9. It is not in dispute in the present case that there has ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 20:59:41 ::: cwp859.18 6 been unexplained delay of about five months since the last noted prejudicial activity as evidenced from the in-camera statements recorded in December 2017 and January 2018 and the subjective satisfaction of respondent Nos. 2 and 1 regarding the necessity of preventively detaining the petitioner, arrived at in the month of June 2018.
10. In the case of Pradeep Nilkanth Paturkar vs. S. Ramamurthi & Ors., (supra), the Hon'ble Supreme Court has held in para 9 of the judgment that whenever there is unexplained delay, whether short or long especially when the plea of delay is taken, there is snapping of live link between the necessary satisfaction recorded by the authority and alleged prejudicial activities of the detenu. Therefore, the Hon'ble Supreme Court has held that an order passed upon such unexplained delay cannot sustain itself in the eye of law. This law has also been followed by this Court in the case of Rashid Shaukat Husain Sayyed @ Jagga vs. The State of Maharashtra & Ors., (supra). Such being the law and the admitted position of facts, as pointed out, we are of the view that the impugned ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 20:59:41 ::: cwp859.18 7 orders do not justify presence of live link between the prejudicial activities and the subjective satisfaction recorded by respondent Nos. 1 & 2 and, therefore, on this ground itself, the impugned orders deserve to be quashed and set aside.
11. In the result, the impugned orders are quashed and set aside. The detenu be released forthwith if not required in any other crime. Criminal Writ Petition is allowed and disposed of accordingly. Rule is made absolute in above terms.
JUDGE JUDGE
******
*GS.
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