Bombay High Court
Hrithik S/O Sudhir Borkar vs State Of Mah. Thr. Its Dep. Of Home ... on 2 August, 2022
Author: Manish Pitale
Bench: Manish Pitale, G. A. Sanap
1 901 criwp10.22 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 10 OF 2022
PETITIONER : Hrithik S/o Sudhir Borkar,
Aged about 20 years, Occu. Labourer,
R/o Mukundwadi, Akot Fail, Akola,
District Akola.
VERSUS
RESPONDENTS : 1] State of Maharashtra,
Through its Department of Home,
Mantralalya, Mumbai.
2] District Magistrate,
Akola, Dist. Akola.
3] Superintendent of Central Jail,
Nashik, Dist. Nashik.
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Mr. A. M. Tirukh, Advocate for the petitioner
Mr. S. S. Doifode, A.P.P. for the respondents
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CORAM : MANISH PITALE and G. A. SANAP, JJ.
DATE : AUGUST 02, 2022.
ORAL JUDGMENT (PER : Manish Pitale, J.)
1. Rule. Rule is made returnable forthwith. Heard finally by the consent of the rival parties.
2 901 criwp10.22 (J).odt
2. By this petition, the petitioner has challenged the order dated 21.09.2021, passed by the respondent no.2 - District Magistrate, Akola under Section 3 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 MPDI Act" for short), detaining the petitioner for a period of one year, as also the order dated 08.11.2021, passed by the respondent no.1 - State of Maharashtra, confirming the said order of detention passed by respondent no.2.
3. Mr. A.M. Tirukh, learned counsel appearing for the petitioner (detenue) raised various grounds of challenge while seeking quashment of these two orders. Firstly, it was submitted that the copies of relevant documents were not placed before the Detaining Authority, thereby indicating that subjective satisfaction of the Detaining Authority while passing the order dated 21.09.2021 stood vitiated. Under this ground, various shades have been highlighted by the learned counsel appearing for the petitioner to the effect that in the 3 901 criwp10.22 (J).odt first place, entire copy of the order granting bail to the petitioner in respect of a particular offence, upon which the detention order was based, were not placed before the Detaining Authority. According to the learned counsel appearing for the petitioner, placing only the operative portion of the bail order was not enough as the reasons for granting such bail were clearly a relevant consideration for the Detaining Authority before reaching the conclusion that the petitioner ought to be detained. It was further submitted that perusal of the impugned order would show that although specific reliance was placed on only two offences registered against the petitioner i.e. crime nos. 810/2021 and 252/2021, in the impugned order at paragraph 10, the Detaining Authority has specifically referred to the fact that the petitioner had been granted bail in all the cases mentioned in the detention order. It was submitted that there were as many as 13 earlier cases specifically stated in the detention order and therefore, the bail orders pertaining to all these cases ought to have been placed before the Detaining Authority. In support of said contentions, the learned counsel appearing for the petitioner has relied upon the judgments of the Hon'ble Supreme Court and this Court in the cases of Elizabeth 4 901 criwp10.22 (J).odt Ranibhai Prabhudas Gaikwad .vs. State of Maharashtra and another, reported in 2021 All M.R. (Cri.) 1394 ; Abdul Sathar Ibrahim Manik .vs. Union of India and others, reported in AIR 1991 SC 2261 ; Sunil Pandharinath Dhotre .vs. The Commissioner of Police, Nashik and others, reported in 2021 All M.R. (Cri.) 2859 ; and Ratnamala Mukund Balkhande and others .vs. State of Maharashtra and others (Judgment and order dated 01.07.2022 in Cri. Writ Petition No. 820 of 2021).
4. The second ground raised on behalf of the petitioner was that there was no live link between the offences, upon which reliance was placed, and the detention order, considering the time gap between the two. It was emphasized that while the first case was registered as far back as on 01.04.2021 and the second case was registered on 01.07.2021, the detention order was passed much later on 21.09.2021. It was submitted that the statements of the witnesses appear to have been recorded only to fill the gap between the registration of offences and issuance of the detention order, thereby showing that, in fact, the live link had snapped and that the detention order stood vitiated on 5 901 criwp10.22 (J).odt that ground. In support of these submissions, the learned counsel appearing for the petitioner placed reliance on the judgments of this Court in Dinkar Namdeo Sawant .vs. State of Maharashtra and another, reported in 2013 All M.R. (Cri.) 3874 ; and Mohamad Ishaq Mohamad Ismail Shaikh .vs. Sanjay Barve and others, reported in 2020 All M.R. (Cri.) 1930.
5. The third ground raised on behalf of the petitioner was that even if the offences taken into account by the Detaining Authority were to be relied upon, including the past history of the petitioner, at worst, it might be a case of disturbance of law and order, but not public order. By relying upon the words used in Section 3 of the MPDA Act, the learned counsel appearing for the petitioner emphasized that extreme order of detention could be passed under the said provision, only if the actions of the petitioner, could in any manner be said to be prejudicial to the maintenance of public order. On this aspect of the matter, the learned counsel has relied upon the recent judgment of the Hon'ble Supreme Court in the case of Mallada K. Sri Ram .vs. The State of Telangana and others (Judgment and 6 901 criwp10.22 (J).odt order dated 04.04.2022 in Criminal Appeal No. 561 of 2022).
6. On the basis of the aforesaid contentions, learned counsel appearing for the petitioner submitted that the impugned detention order was vitiated and that it deserved to be set aside. On that very basis, it was submitted that the order passed by the respondent no.1 confirming the detention order passed by the respondent no.2, deserved to be set aside.
7. On the other hand, Mr. S.S. Doifode, learned Additional Public Prosecutor for the respondents countered the contentions raised on behalf of the petitioner and submitted that no prejudice was suffered by the petitioner, only because operative portion of the bail order was placed before the Detaining Authority when the detention order was passed. It was submitted that there were other modes and material available before the Detaining Authority, including the application, whereby Police Custody Remand was prayed for and the order passed thereon and other such documents placed before the Detaining Authority. It was submitted that merely because the portion 7 901 criwp10.22 (J).odt containing the reasons in the bail order was not placed before the Detaining Authority, it could not be said that the entire detention order stood vitiated.
8. It was further submitted that there was no question of absence of live link in the present case for the reason that one of the offences relied upon by the Detaining Authority pertained to July, 2021, the in-camera statements were recorded in August-2021 and the impugned detention order was issued on 21.09.2021. It was further submitted that the question as to whether the material on record indicated threat to public disorder was based on subjective satisfaction of the Detaining Authority, after taking into consideration the entire material on record. According to the learned Additional Public Prosecutor, perusal of the detention order would show that the Detaining Authority indeed took into consideration the past conduct and history of the petitioner, which was a relevant factor. In order to support the aforesaid contentions, the learned Additional Public Prosecutor relied upon the judgments of the Hon'ble Supreme Court in Mrs. Saraswati Seshagiri .vs. State of Kerala and another, reported in 8 901 criwp10.22 (J).odt AIR 1982 SC 1165 ; and in The District Magistrate, Nowgong and another .vs. Sarat Mudoi, reported in AIR 1984 SC 43.
9. The learned Additional Public Prosecutor also relied upon the judgment of Hon'ble Supreme Court in Haridas Amarchand Shah of Bombay .vs. K. L. Verma and others , reported in AIR 1989 SC 497 to contend that merely because there was failure on the part of the Sponsoring Authority to place on record few documents, ought not to vitiate the detention order, as long as relevant and material information was in fact placed on record before the Detaining Authority. On this basis, it is submitted that the writ petition deserves to be dismissed.
10. Heard Mr. A. M. Tirukh, learned counsel appearing for the petitioner, Mr. S.S. Doifode, learned Additional Public Prosecutor for the respondents and perused the material on record.
11. This Court proposes to consider each contention raised on behalf of the petitioner on the basis of the material available on record and the position of law brought to our notice. Before proceeding 9 901 criwp10.22 (J).odt further in the matter, it needs to be appreciated that under Section 3 of the MPDA Act, the State Government can indeed issue an order detaining a person, provided it is satisfied that such detention of a person is necessary, failing which it would be prejudicial to maintenance of public order. In a series of judgments over a period of time, the Hon'ble Supreme Court has indicated that the aforesaid power retained in the State is an extreme power, to be used in exceptional circumstances. In the aforesaid recent judgment in the case of Mallada K Sri Ram .vs. State of Telangana (supra) , the Hon'ble Supreme Court has gone to the extent of observing that the power of preventive detention is exceptional and even draconian. It is specifically observed that Article 22 of the Constitution of India was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. In other words, strict and stringent standards have been applied by the Courts while considering the question as to whether a detention order has been vitiated. At times, the contentions raised on behalf of detenues may appear to be hyper-technical, but 10 901 criwp10.22 (J).odt since the State in such cases is exercising an exceptional power, the standard expected from the State while issuing such detention orders is expected to be very high and unexceptionable.
12. It is in this backdrop that we proceed to consider the challenge raised in this petition. The first ground raised on behalf of the petitioner is that while the Detaining Authority specifically relied upon two offences i.e. Crime No. 252/2021 and 810/2021. The petitioner was granted bail, insofar as Crime No. 810/2021 is concerned, but entire copy of the bail order was not placed before the Detaining Authority. It was brought to the notice of this Court that the bail order was dated 03.08.2021 and the Sponsoring Authority placed before the Detaining Authority only the operative portion of the said order, which specifies the conditions on which bail was granted. It is clear that the part of the bail order which contained the reasons why bail was granted to the petitioner, was never supplied to the Detaining Authority.
13. In this context, the learned counsel appearing for the 11 901 criwp10.22 (J).odt petitioner was justified in relying upon judgment in Sunil Pandharinath Dhotre .vs. The Commissioner of Police, Nashik and others, (supra), wherein this Court, in identical circumstances, observed as follows :
"20. From the record and the affidavit-in-reply filed by the respondent, it is clear that the Sponsoring Authority while forwarding the proposal to the detaining authority did not place the detailed order of the Sessions Court stating the reasons while granting the bail to the detenu. It is seen that only operative part was forwarded by the Sponsoring Authority to the detaining authority. The order passed by the learned Sessions Judge while releasing the detenu on bail was a wider piece of evidence and ought to have been forwarded to the detaining authority by the Sponsoring Authority. For coming to this conclusion we draw support from the observations made by this Court in the case of Mukesh @ Mukya Ramesh Desaikar .vs. Vivek Phansalkar and ors., Criminal Writ Petition NO. 194 of 2020."
While making the aforesaid observations, this Court relied upon the judgment of the Hon'ble Supreme Court in the case of Rushikesh Tanaji Bhoite .vs. State of Maharashtra, (Judgment and order dated 04.01.2012, in Criminal Appeal No. 24/2012), wherein it was specifically held that full text of the order granting bail in favour of the detenu was necessary to be placed before the Detaining Authority, so as to facilitate an appropriate decision 12 901 criwp10.22 (J).odt regarding subjective satisfaction for issuing detention order.
14. This is significant for the reason that the Detaining Authority must necessarily be made aware about the reasons given by the Court while granting bail so that the Detaining Authority can apply its mind as to why, despite the reasons given by the competent court to grant bail to the detenu, it is still necessary to exercise the aforesaid power to issue the detention order, ostensibly for maintenance of public order. The significance of placing the entire bail order before the Detaining Authority has been emphasized in that context.
15. We are of the opinion that learned Additional Public Prosecutor is not justified in raising the aspect of prejudice in this context. Reliance placed on the judgment in the case of Haridas Amarchand Shah of Bombay .vs. K.L.Verma and others (supra) in this context is also not justified, for the reason that in the very judgment, the Hon'ble Supreme Court has clearly stated that relevant and vital documents ought to be placed before the Detaining Authority for reaching subjective satisfaction. We are of the opinion that in view of the aforesaid position of law requiring entire text of the bail order to be placed before the Detaining Authority, such a 13 901 criwp10.22 (J).odt document in its entirety forms a relevant and vital document, which ought to have been placed before the Detaining Authority and placing only the operative portion of the bail order vitiated the detention order.
16. Insofar as second ground pertaining to absence of live link is concerned, it is an admitted position that Crime No. 252/2021 was registered on 01.04.2021, which was more than five months prior to issuance of the detention order and Crime No. 810/2021 was registered on 01.07.2021, which was also more than two and half months prior to issuance of the detention order, dated 21.09.2021. There is no dispute about the fact that there were in-camera statements of two persons recorded in August- 2021, but the question would be as to whether recording of such in-camera statements would keep the link live, justifying issuance of the impugned detention order. In this regard, the learned counsel appearing for the petitioner is justified in relying upon the judgment of this Court in Mohd. Ishaq Mohd. Ismail Shaikh .vs. Sanjay Barve and others (supra) , wherein this Court, in similar circumstances, held that live link had snapped and the duration of about two and half months from registration of the offence or recording in-camera statements and issuance of the detention order was enough to indicate that the detention order had been vitiated. Therefore, on 14 901 criwp10.22 (J).odt this ground also, the detention order is found to have been vitiated.
17. Insofar as third ground regarding "law and order" and "public order" is concerned, the said has been deliberated upon by the Hon'ble Supreme Court for a long period of time. The aforesaid aspect was considered by the Hon'ble Supreme Court, as far back as in 1966, in Ram Manohar Lohiya .vs. State of Bihar, reported in AIR 1966 SC 740, wherein a distinction was made between the aforesaid two expressions and it was held that the material available on record may indicate a law and order issue, as opposed to public order because the public order, if disturbed, would necessarily lead to public disorder.
18. The aforesaid judgment finds reference in the recent judgment in Mallada K. Sri Ram .vs. State of Telangana and others (supra) and while reiterating the said position, the Hon'ble Supreme Court has held that a mere apprehension of breach of law and order is not sufficient to meet the the standard of adversely affecting the "maintenance of public order". If the ordinary law can take care of a particular situation, invoking the exceptional and draconian power of detaining a person will not be justified.
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19. In this context, the learned Additional Public Prosecutor placed much emphasis on past conduct and in that regard relied upon the judgments of the Hon'ble Supreme Court in Saraswati Seshagiri .vs. State of Kerala and another (supra) and in the District Magistrate Nowgong and another .vs. Sarat Mudoi (supra). But, we are not impressed with the said submission, simply for the reason that in the present case even if entire list of the offences registered against the petitioner is to be taken into consideration, wherein he has been admittedly released on bail in all the matters, it cannot be said that the ordinary law would not take care of the situation. The Detaining Authority invoking the exceptional and draconian power under Section 3 of the MPDA Act, is not justified on the basis of the material available on record. On this ground also, the impugned detention order stands vitiated.
20. Insofar as specific contention raised on behalf of the petitioner that since the Detaining Authority, in the detention order, referred to the fact that the petitioner was on bail in all the cases and therefore, all the bail orders ought to have been placed on record, we are of the opinion that the said contention need not be deliberated upon for the reason that we have already rendered findings in favour of the petitioner hereinabove.
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21. In view of the above, the Criminal Writ Petition is allowed. The impugned detention order dated 21.09.2021, passed by the respondent no.2 -District Magistrate, Akola is hereby quashed and the impugned order dated 08.11.2021 passed by the Respondent no.1 - State, confirming the said detention order is also quashed. Consequently, petitioner - Hrithik S/o Sudhir Borkar be released from detention forthwith.
22. Rule is made absolute in the above terms. The petition stands disposed of.
( G. A. SANAP, J.) (MANISH PITALE, J.)
Diwale
Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:04.08.2022
11:02