Dismissed

Dinesh S/O. Nimba Gaikwad v. the State of Maharashtra and Others

Bombay HC26 Jul 2018WP/244/2018

Case brief

AI extract

What is this about?

In this Criminal Writ Petition, the petitioner sought to quash an order of detention and confirmation of detention passed under the Maharashtra Prevention of Dangerous Activities Act, 1981, alleging procedural impropriety, delay in forwarding the order to the Advisory Board, and lack of specified detention period. The High Court rejected the petition, finding sufficient material to justify detenti

What did the court decide?

Writ Petition rejected; Rule stands discharged; Impugned orders of detention and confirmation maintained.

Dinesh S/O. Nimba Gaikwad Vs the State of… — Pension and Retirement Benefits | Bombay HC (2018)

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cwp244.18

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.244 OF 2018

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Dinesh s/o. Nimba Gaikawad,
Age-34 Yrs. Occu:-Labour,
R/o-Shirud,
Tq- & Dist-Dhule

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PETITIONER

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VERSUS

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1) The State of Maharashtra

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2) Home Department [Special] Government of Maharashtra 3) District Magistrate, Dhule

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RESPONDENTS

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...

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 Mr.Satej S.Jadhav, Advocate for Petitioner
 Mr.K.S.Hoke-Patil, A.P.P. for Respondent
 Nos.1 to 3

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...

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CORAM: S.S.SHINDE AND

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 V.K.JADHAV, JJ.

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 DATE OF RESERVING JUDGMENT: 9TH JULY 2018

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 DATE OF PRONOUNCING JUDGMENT: 26TH JULY 2018

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JUDGMENT: [PER S. S. SHINDE, J.]:

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1.Rule. Rule made returnable forthwith

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and heard finally with the consent of the
learned counsel appearing for the parties.

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2.This Writ Petition is filed praying
therein to quash and set aside the order of
detention dated 31st October, 2017, passed by
the District Magistrate, Dhule, and also the
order of confirmation dated 7th December,
2017, passed by the Section Officer to the
Government of Maharashtra, Home Department
[Special].

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3.Brief facts as disclosed in the

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Petition are as under:

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4.It is the case of the Petitioner
that on 4th October, 2017, the Sub Divisional
Police Officer, Dhule [Rural], Sub Division

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Sakri forwarded a proposal to the
Superintendent of Police, Dhule in respect of
detention of the Petitioner under the
provisions of the Maharashtra Prevention of
DangerousActivitiesofSlumlords,
Bootleggers,Drug-Offenders,Dangerous

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Persons, Video Pirates, Sand Smugglers and
Persons Engaged in Black-Marketing of
Essential Commodities Act, 1981 [for short

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"the Act of 1981"]. On 5th October, 2017, the
Superintendent of Police, Dhule forwarded the
said proposal to the District Magistrate,
Dhule along with recommendation of detention

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of the Petitioner. After perusal of the
record, the District Magistrate has come to
the conclusion that the Petitioner is

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required to be detained, and by order dated
31st October, 2017, the Petitioner has been
directed to be detained under the provisions

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of the Act of 1981. On the same day, the
District Magistrate also passed the committal

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order in respect of the detention of the

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Petitioner. The said reasoned Judgment of
detention dated 31st October, 2017, passed by

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the District Magistrate, Dhule was also
communicated to the Petitioner. It appears
from the record that the decision of the
District Magistrate was referred to the
Advisory Board and the said Board has found
sufficient cause for the detention of the
Petitioner / detenu. Thereafter, by order
dated 7th December, 2017, the Section Officer
to the Government of Maharashtra in its Home
Department (Special), has directed the
detention of the Petitioner / detenu for the
period of one year from the date of
detention. Hence this Petition.

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5.Learned counsel appearing for the

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Petitioner submits that the order passed by

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the District Magistrate, Dhule contravenes
the legal provisions of Section 3 [2] of the

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Act of 1981. The proviso of Section 3 [2]

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lays down that the order of detention of the District Magistrate has to be not more than three months. The District Magistrate has not mentioned the exact period of detention as required by law. In support of his said submissions, learned counsel appearing for the Petitioner placed reliance upon the exposition of law in the case of Commissioner of Police & another Vs. Gurbux Anandram Bhiryani¹ , wherein it has been held that the exact period of detention has to be mentioned in the order by the authority while passing the order of detention. Learned counsel further submits that though the Petitioner has been acquitted in Crime No.208 of 2013, the said aspect has not been considered by the authorities while passing the detention order. Learned counsel further submits that three witnesses A, B and C have mostly spoken about the character of the detenu. They have

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not given specific dates or material
11988 [Supp] SCC 568

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particulars about the incidents. Learned
counsel further submits that the District
Magistrate has no authority to pass the order
of detention.

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6.Learned counsel further submits that
detention order is liable to be vitiated as
there is delay in placing the order passed by
the District Magistrate before the Advisory
Board for its approval. Considering the above
circumstances, the preventive action against

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the Petitioner would be unwarranted. The
family of the Petitioner is dependent upon
him and that the Petitioner is not a hardcore
criminal. Learned counsel lastly submits that
considering the above facts, the impugned
order of detention deserves to be quashed and
set aside.

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7.In support of the aforesaid
submissions, learned counsel appearing for

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the Petitioner has placed reliance upon the

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ratio laid down in the cases of Shri. Raja @
Rajesh Rajan Nair vs. Shri. R.S. Sharma, Ex-
Commissioner of Police, Greater Bombay and
others2, and Sunil s/o Sadashiv Ghate vs.
State of Maharashtra and others3.

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8.As against this, learned A.P.P.
appearing for the State relying upon the
affidavit in reply filed on behalf of the
State, submits that the Petitioner is having
criminal background which discloses that he
has made storage of intoxicant spirit without
holding any valid license in the village
forest with the help of accomplices and
repeatedly committing the offence of
manufacturing and packaging spurious liquor
of reputed companies. It is submitted that

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the Petitioner is also involved in

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manufacturing, transporting and selling
spurious liquor at various places. The

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22005 ALL M.R. (Cri) 1936

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32000 ALL M.R. (Cri) 1349

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Petitioner has also committed offence of
robbery and also committed offence of illegal
sellingspuriousforeignliquorat
Chandrapur, Gadchiroli Districts. It is
further submitted that on 30th December,
2015, Officers and Staff of Dhule Taluka
Police Station raided the places of
manufacturing of illicit liquor in the pith
holes amongst the bushes on the bank of Bori
river in village Dhamangaon. In the said
raid, there was explosion of inflammable
spirit stored in a drum took place and
Officers and Staff Members of the Police

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Party were grievously injured. One Police
Constable namely Ananda Dagdu Mali died in
the said explosion. Due to such spurious and
harmful liquor, incidents of death of victims
due to poisonous alcohol cannot be ruled out.

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9.Learned A.P.P. further submits that
when the Police Officials from Gondpimpri
Police Station, District Chandrapur went to

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arrest the Petitioner in connection with
Crime No.412/2017, the Petitioner and others
have made quarrel and assaulted to API Pravin
Borkar and his Staff members and obstructed
to discharge their legal duties. Therefore,
the offence was registered against the
Petitioner bearing Crime No.257/2017. It is
submitted that the Petitioner is having
history of criminal record. Till today, 13
offences are registered against the
Petitioner, out of which 9 offences are
registered in last 5 years, in which offences
punishable under Chapter XVI and XVII of the

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Indian Penal Code as per Sections 328, 420,
304, 337, 353, 332, 323, 392 and offences
under various Sections of the Bombay
Prohibition Act are also included. The
Petitioner is a bootlegger. It is submitted
that the SDPO, Dhule Rural, Sakri Sub
Division, has recorded the statements of two
confidential witnesses. From the statements

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of those witnesses, it reveals that the
Petitioner is involved in the business of
illegal liquor in his village and therefore
witnesses are not willfully ready to come
forward to give information to the Government
or to depose against him. Thus, it is clear
that due to fear of the Petitioner they did
not come forward to give evidence against
him.

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10.Learned A.P.P. further submitted

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that after considering in-camera statements
of the confidential witnesses recorded by

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S.D.P.O. and later on verified by the
District Magistrate, the District Magistrate
has also satisfied that due to criminal

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record nobody is coming forward to give
complaint against the Petitioner, furthermore
the criminal offences were also registered

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against the Petitioner therefore the
activities of the Petitioner are detrimental

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to the interest of general public at large
and he is a bootlegger and dangerous person
within the definition of Section 2 [b] and 2

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[b-1] of the Act of 1981. The District
Magistrate has also satisfied that the
Petitioner is habitual offender which
adversely affects the society. Therefore,

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the District Magistrate, Dhule vide its
detailed order dated 31st October, 2017,
detained the Petitioner. Thereafter, the

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order was placed before the Advisory Board
along with the detention proceedings and

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requisite documents under Section 9 of the
Act of 1981. The Advisory Board has, after
considering the reasons mentioned in the
order passed by the District Magistrate,
confirmed the order of detention of the
Petitioner. Thereafter, the State Government
has confirmed the order of detention passed

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by the District Magistrate, Dhule and
directed that detention of the Petitioner is

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confirmed for a period of one year from the
date of detention.

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11.Learned A.P.P. therefore submits

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that the Petitioner is indulging in illegal
activities which are dangerous to the public

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at large and further more the Petitioner
being habitual offender, the order of
detention passed by the District Magistrate,
Dhule and confirmed by the Home Department

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[Special], Government of Maharashtra is

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legal, proper and deserves to be maintained.

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He, therefore, prays that the Petition

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deserves to be dismissed. In support of the
aforesaid submissions, learned A.P.P. has
placed the reliance upon the exposition of

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law in the case of Magar Pansingh Pimple Vs.

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State of Maharashtra and another⁴ . Learned

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A.P.P. has also placed reliance upon the

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exposition of law in the unreported Judgment
of the Bombay High Court at Principal Seat,
42006 [1] Bom.C.R. [Cri] 88

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in the case of Sachin @ Bobby Sambhaji Shinde
Vs. The Commissioner of Police in Criminal
Writ Petition No.1766 of 2017 along with
connected Petitions decided on 13th October,
2017.

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12.We have given careful consideration
to the submissions of the learned counsel
appearing for the Petitioner and learned
A.P.P. appearing for the Respondent-State.

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With their able assistance, we have perused
the pleadings in the Petition, grounds taken
therein, annexures thereto, reply filed on

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behalf of the Respondents and also the
Judgments relied on. We have also perused the
original record maintained by the office of
the Respondents.

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13.Careful perusal of the order passed

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by the District Magistrate, Dhule dated 31st
October, 2017, shows that in-camera

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statements of three witnesses i.e. A, B and C
were recorded. It is mentioned in the order

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dated 31st October, 2017, passed by the
District Magistrate, Dhule, that witness A,

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on making enquiry with him, stated that he
personally knows the Petitioner. The witness
further stated that the Petitioner does
illegal business of smuggling of liquor, the
Petitioner prepares spurious liquor from
chemicals and smuggles it. The witness
further stated that the Petitioner had

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purchased land at very less price by
threatening a Brahmin of village Shirud and

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and is illegally selling plots from that
land. The Petitioner is having connection

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with sand mafia and is also involved in said
activities. The order passed by the District
Magistrate further reveals that witness B has
also stated that the Petitioner does illegal

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business of manufacturing spurious liquor
from spirit and chemicals. The witness C has

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also stated that the Petitioner manufactures
spurious liquor from chemicals and spirit and
for the said business the Petitioner utilizes
the services of unidentified boys from Bihar,
Uttar Pradesh, Madhya Pradesh.

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14.The record further reveals that
during last five years, as many as nine
offences have been registered against the
Petitioner, being Crime No. 208 of 2013,
301 of 2014, 6009 of 2015, 188 of 2015, 316
of 2015, 125 of 2016, 412 of 2017, 224 of
2017 and 257 of 2017. In the impugned

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order, the District Magistrate has observed
that the Petitioner has committed crimes such

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as manufacturing, transporting, storing and
selling spurious liquor without holding any
valid license and obstructed public servants
indischargingtheirduties.After

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considering the entire record, the District
Magistrate has passed the impugned order. The

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said order has been rightly confirmed by the
Government of Maharashtra, Home Department
[Special]. The said authority has directed
the detention of the Petitioner for a period
of one year from the date of detention.

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15.The Respondent authorities have

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brought enough material on record, including

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the C.A. report establishing that the
Petitioner was manufacturing spurious liquor.
The material on record shows that the
Petitioner is indulging into bootlegging
activities since the period of last five
years, and he is a person whose activities
are covered under the definition of a
"bootlegger" as contained in Section 2 [b] of

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the Act of 1981. The record further reveals

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that when police party had carried out raid

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in the area where the Petitioner was carrying
out his activities of manufacturing spurious

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liquor, in the said process one police

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officer died due to thermal burns. Thus the
record indicates that the action taken by the
Respondent authorities in detaining the
Petitioner for the period of one year is
justified.

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16.After careful perusal of the record,

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we have noticed that the District Magistrate
has recorded subjective satisfaction that the
facts given in the statements of the
witnesses and apprehension expressed is true
and reasonable. The District Magistrate has
also recorded his subjective satisfaction
that the Petitioner is behaving in a manner
detrimental to the maintenance of public
order. Therefore, before passing the impugned
orderofdetention,allprocedural
formalities have been scrupulously followed,

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and after conscious application of mind, the
District Magistrate has passed the order of
detention. Upon careful perusal of the
affidavit in reply filed by the State, it is

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clear that the State through its Department
of Home has confirmed the order of detention.

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17.So far as the ground agitated by the
learned counsel appearing for the Petitioner
that though the Petitioner has been acquitted
from Crime No.208 of 2013, still the
authorities have relied upon the registration
of said crime while passing the detention
order is concerned, the same deserves no
consideration for the simple reason that
Crime No.208 of 2013 was not the only offence
registered against the Petitioner, and as
observed earlier, during the period of last
five years the Petitioner has been involved
in as many as nine offences.

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18.It is argued on behalf of the
Petitioner that the District Magistrate has
no authority to pass the detention order. In
this context, reference can be made to

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Section 3 (1) and 3(2) of the Act of 1981,
which reads as under:

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"3. (1) The State Government may, if
satisfied with respect to any person
that with a view to preventing him
from acting in any manner prejudicial
to the maintenance of public order, it
is necessary so to do, make an order
directing that such person be
detained.

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(2) If, having regard to the
circumstances prevailing or likely to
prevail in any area within the local
limits of the jurisdiction of a
District Magistrate or a Commissioner
of Police, the State Government is
satisfied that it is necessary so to
do, it may by order in writing,
direct, that during such period as may
be specified in the order such
District Magistrate or Commissioner of
Police may also, if satisfied as
provided in sub-section (1), exercise
the powers conferred by the said sub-
section."

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Thus, upon careful perusal of the

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19.

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provisions of Section 3(1) and (2) of the Act
of 1981, it is crystal clear that State
Government can very well confer the powers
upon the District Magistrate or Commissioner
of Police to pass detention order, as the
case may be. In the present case, District
Magistrate has passed the impugned detention
order, who was the competent authority to
pass such order.

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20.Learned counsel appearing for the
Petitioner has also raised another ground
that order passed by the District Magistrate
was not immediately placed before the
Advisory Board for its approval and on the
count of delay the order of detention is
liable to be vitiated. In this respect, it
would be useful to refer the provisions of

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Section 10 and Section 11(1) of the Act of
1981, which reads as under:

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"10. In every case where a detention

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order has been made under this Act, the
State Government shall, within three
weeks from the date of detention of a
person under the order, place before
the Advisory Board constituted by it
under section 9 the grounds on which
the order has been made and the
representation, if any, made by the
person affected by the order, and in
the case where the order has been made
by an officer, also the report by such
officer under sub-section (3) of
section 3.

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11. (1) The Advisory Board shall, after
considering the materials placed before
it and, after calling for such further
information as it may deem necessary
from the State Government or from any
person called for the purpose through
the State Government or from the person
concerned, and if, in any particular
case, the Advisory Board considers it
essential so to do or if the person
concerned desires to be heard, after
hearing him in person, submit its
report to the State Government, within
seven weeks from the date of detention
of the person concerned."

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21.Thus, as per the provisions of

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Section 10 of the Act of 1981 it is necessary

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that detention order shall be placed before

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the Advisory Board within three weeks, and

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further as per the provisions of Section

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11(1) of the Act of 1981, the Advisory Board

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has to submit its report to the State

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Government within seven weeks from the date
of detention of the person concerned. In the
present matter, District Magistrate, Dhule

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has passed the detention order on 31st
October, 2017. Thereafter, immediately the

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said order was placed before the Advisory

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Board along with detention proceedings with
requisite documents as provided under
Section 9 of the Act of 1981. The Advisory

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Board, after considering the reasons

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mentioned in the order passed by the District

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Magistrate, has confirmed the order of

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detention. Therefore, by order dated 7th
December, 2017 the Section Officer, Home

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Department(Special),Governmentof

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Maharashtra has confirmed the detention order

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issued by the District Magistrate, Dhule and
directed the detention of the Petitioner for

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the period of one year from the date of his
detention. Thus, it is clear that in the
present case the Respondent authorities have
completed all the formalities within the
prescribed time limit and therefore there is
no substance in the ground raised by learned

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counsel appearing for the Petitioner that
there was delay in placing the order of
detention before the Advisory Board.

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22.It is significant to note that

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sufficient material is brought on record by

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the Respondent authorities to show that the

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Petitioner is a dangerous person within the

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meaning of Section 2(b-1) of the Act of 1981.

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The record shows that on one occasion when

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police personnel went to arrest the
Petitioner in a crime, the Petitioner and his

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accomplices tried to assault the police
personnel. The record further shows that the
activities of the Petitioner of selling
spurious foreign liquor are not only
restricted to Dhule District but the same are
also spread over in another Districts such as
Chandrapur and Gadchiroli. As already
observed, the Petitioner is involved in as
many as 9 offences which are registered by
way of separate crime numbers, and also in-

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camera statements of three witnesses have
been recorded and on the basis of said cogent
and sufficient material, the District

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Magistrate arrived at subjective satisfaction
that the Petitioner is a dangerous person and
he is acting in a manner prejudicial to the

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maintenance of the public order. The

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material brought on record by the Respondent

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authorities unequivocally indicates the
involvement of the Petitioner in habitually
committing offences punishable under Chapter

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XVI and XVII of the I.P. Code.

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23.Learned counsel appearing for the

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Petitioner has also raised a ground that the
exact period of detention as required by law
is not mentioned in the order passed by the
District Magistrate. So far as this ground is

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concerned, it would be useful to refer to the
observations made by the Supreme Court in the

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case of Mrs. T. Devaki vs. Government of

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Tamil Nadu and others5, wherein it is held

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that order of detention not specifying the
period of detention does not make the order
invalid. It is pertinent to note that in the
present case in hand, the State Government
has specifically mentioned the period of
detention, and it is ordered that the
Petitioner be detained for the period of one

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year from the date of his actual detention.

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5AIR 1990 S.C. 1086

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26

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foregoing paragraphs, we are of the
considered view that the orders impugned in
this Petition need no interference, and the
Petition is devoid of any merit. Hence, the
Writ Petition stands rejected. Rule stands
discharged.

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asb/ddc/JUL18

Dinesh S/O. Nimba Gaikwad v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Dinesh S/O. Nimba Gaikwad v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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