Allowed

Sarla Makhan Gupta (Mother of the Detenue) v. the Dist. Magistrate Chandrapur and Others

Bombay HC3 Oct 2023WP/430/2023

Case brief

AI extract

What is this about?

Petition allowed. Writ filed to quash detention orders under MPDA. High Court held detention unsustainable due to lack of nexus with public order, failure to consider relevant bail findings, and absence of public disorder in alleged incidents.

What did the court decide?

Impugned detention orders dated 08/03/2023 and 04/05/2023 quashed and set aside. Rule made absolute.

Sarla Makhan Gupta (Mother of the Detenue) Vs… — Pension and Retirement Benefits | Bombay HC (2023)

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2023:BHC-NAG:14455-DB

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

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CRIMINAL WRIT PETITION NO. 430 OF 2023

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PETITIONER:Mrs. Sarla Makhan Gupta
(Mother of the Detenu),
Age – 49, Mahakali Colari Ward
Near Bank, Near Budai Dafai,
Chandrapur, Maharashtra 442401.

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V E R S U S

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RESPONDENTS :1. The District Magistrate,
 Chandrapur.

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2. The State of Maharashtra, Through Addl. Chief Secretary to Government of Maharashtra, Mantralaya, Home Department, Mantralaya, Mumbai.

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3. The Superintendent, Chandrapur District Jail, Chandrapur.

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Mrs. Vayashree Tripathi, Advocate with Shri Sukrut S. Sohoni,
Advocate for petitioner.

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Shri S. S. Doifode, Additional Public Prosecutor for respondent
Nos.1 to 3.

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CORAM:-VINAY JOSHI AND VALMIKI SA MENEZES, JJ. DATED : 03/10/2023.

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JUDGMENT : (PER VALMIKI SA MENEZES, J.) :

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1. Rule. Rule made returnable forthwith. Heard finally

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with the consent of learned counsel appearing for the parties.

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2.By this petition under Articles 226 and 227 of the
Constitution of India the detenu Shri Amit Makhan Gupta through

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his mother Mrs. Sarla Makhan Gupta, who has filed this petition

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on his behalf, seeks to quash and set aside the impugned order
dated 08/03/2023 passed by the District Magistrate, Chandrapur
(respondent No.1) under Section 3(1) 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 “MPDA”); the detenu (who shall
hereinafter be referred to as “the petitioner") further lays
challenge to the order dated 04/05/2023 passed by the
respondent No.2 under Section 3 of the MPDA, confirming the
order dated 08/03/2023 of the respondent No.1.

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3. Two main grounds raised in challenge to these orders

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in the petition are :

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(a) That neither of the two offences relied upon by the detaining authority, forming basis for passing the detaining order concern an alleged act which is detrimental to the maintenance of the public order; further, that there is unexplained delay in relying upon the first Crime No.304/2022 referred to in the detention order, which relates to an alleged offence committed on 02/06/2022, more than 9 months prior to the passing of the detention order.

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(b) That the in-camera/anonymous statements relied upon by the detaining authority do not disclose any incident

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which has taken place either in broad public view or
allege acts on the part of the detenu that would be
detrimental to maintenance of public order; the
incident referred to in the in-camera statements
cannot constitute material to justify arriving at
subjective satisfaction for the purpose of holding the
criminal act to be one affecting the maintenance of
public order.

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4.In answer to the allegations made in the petition, the
respondents have filed affidavit-in-reply dated 21/09/2022,
through the Collector, Chandrapur reiterating their stand that the
petitioner was considered as a “dangerous person” under the
MPDA and sought to justify his detention and support the
impugned orders.

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5.We have heard the learned counsel for the parties,
perused the record of the detaining authority, and both the
impugned orders.

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6. Mrs.Vayashree Tripathi, learned Advocate for the
petitioner primarily submits that the two crimes relied upon by the
detaining authority under Crime No.304/2022 dated 02/06/2022
and Crime No.1197/2022 dated 25/11/2022 cannot constitute
material for the authority to arrive at a subjective satisfaction to
justify passing of the detention order; she further elaborates the

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argument by submitting that there is gross unexplained delay for
the first crime dated 02/06/2022, of more than 9 months to the
passing of the detention order; thus, there is no live nexus
between the crime and the purpose for passing the order. She
further argues that with regard to the second crime which is dated
25/11/2022, the Additional Sessions Judge-4, Chandrapur whilst
granting the anticipatory bail to the petitioner has considered the
content of an affidavit and documents filed / produced by the
complainant at Exh.4 of that file, wherein the complainant has
stated that he was neither abducted nor beaten up by the
accused / petitioner and that the complaint came to be filed by
him in a fit of anger against the petitioner. It was submitted that
the detaining authority has neither considered nor even made
reference to the above observations of the Sessions Court, which
were relevant, and if considered would have led to the conclusion
that this crime could not be considered to be one affecting the
maintenance of public order.

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The learned Advocate for the petitioner has relied upon
the Judgment of the Supreme Court in Pradeep Nilkanth Paturkar
Vrs. S. Ramamurthi and others, reported in1993 Supp (2) SCC
61, of this Court inNiyazuddin @ Sonu Sirajuddin Ansari Vrs.
State of Maharashtra and another, reported in 2014 (2) Bom.C.R.

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(Cri.) 826and that of this Court in Siddant alias Siddharth Sanjay
Marathe Vrs. Commissioner of Police, Pune City and others, in
Criminal Writ Petition No.1162/2023 dated 25/07/2023 to submit
that non-consideration of the reasons recorded by the Sessions
Court while granting bail in a crime results in non-application of
mind on the part of the detaining authority recording subjective
satisfaction.

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7.It was further argued by the petitioner that the in-
camera statements relied upon by the detaining authority do not
disclose any acts by the petitioner which could be termed as those
contrary to the maintenance of public order, since neither of the
incidents are alleged to have taken place within the view of any
members of the public or record that such members of the public
felt a sense of alarm or that the acts have resulted in disruption of
normal life in the vicinity due to fear created by the petitioner. It is
further the submission that neither statement can be considered an
act prejudicial to the maintenance of public order.

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8.Shri S. S. Doifode, learned APP for the respondents has
supported the impugned orders, argued that there is no delay
between the first offence / crimes / in-camera complaints relied
upon, and further that the contents of the bail orders have been
referred to in the detention order, thus, the subjective satisfaction

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has been correctly arrived at. The learned APP further argued that
the in-camera statements disclose the incident has taken place in a
public place, where the petitioner extorted money from the
complainant, and such act is clearly prejudicial to the maintenance
of public order. He relied upon the Judgments of the Supreme
Court inAbdul Sathar Ibrahim Manik Vrs. Union of India and
others,reported inAIR 1991 SC 2261andHaridas Amarchand
Shah of Bombay Vrs. K. L. Verma and others, reported in AIR 1989
SC 497to submit that even if documents annexed to the bail
application were not submitted to the detaining authority, the
same would make no difference to the subjective satisfaction of
the authority.

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9.At the outset, we quote the Hon’ble Supreme Court in
the judgment of Kanu Biswas Vs. State of West Bangal, reported in
(1972) 3 SCC 831 on the question of what constitutes breach of
“public order” as opposed to breach of “law and order” :-

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“6. The distinction between the concept of public
order and that of law and order has been adverted to
by this Court in a number of cases. In the case of Dr.
Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R.
709, Hidayatullah J. (as he then was) said that any
contravention of law always affected order, but before
it could be said to affect public order, it must affect the
community at large. He considered three concepts, law
and order, public order and the security of the State,
and observed that to appreciate the scope and extent

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7 11-J-WP-430-23.doc

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of each one of them, one should imagine the
concentric circles. The largest of them represented law
and order, next represented public order and the
smallest represented the security order, just as an act
might affect public order but not the security of the
State. In the subsequent case of Arun Ghosh v. State of
West Bengal, [1970] 3 S.C.R. 288, the Court dealt with
the matter in the following words: "Public order is the
even tempo of the life of the community taking the
country as a whole or even a specified locality.
Disturbance of public order is to be distinguished from
acts directed against individuals which do not disturb
the society to the extent of causing a general
disturbance, of public tranquility. It is the degree of
disturbance and its effect upon the life of the
community in a locality which determines whether the
disturbance amounts only to a breach of law and
order. Take for instance, a man stabs another. People
may be shocked and even disturbed, but the life of the
community keeps moving at an even tempo, however
much one may dislike the act. Take another case of a
town where there is communal tension. A man stabs a
member of' the other community. This is an act of a
very different sort. Its implications are deeper and it
affects the even tempo of life and public order is
jeopardized because the repercussions of the act
embrace large sections of the community and incite
them to make further breaches of the law and order
and to subvert the public order. An Act by itself is not
determinant of its own gravity. In its quality it may not
differ from another but in its potentiality it may be
very different."

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7. The question where a man has only committed a
breach of law and order or has acted in a manner
likely to cause a disturbance, of the public order,
according to the dictum laid down in the above case is
a question of degree and the extent of the reach of the
act upon the society. Public order is what the French
call "order publique" and is something more than
ordinary maintenance of law and order. The test to be
adopted in determining whether an act affects law and

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order or public order, as laid down in the above, case,
is : Does it lead to disturbance of the current of life of
the community so as to amount to a disturbance of the
public order, or does it affect merely an individual
leaving the tranquillity of the society undisturbed ? ”

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10.In Banka Sneha Sheela Vs. State of Telangana,
reported in (2021) 9 SCC 415 the Supreme Court has considered
the very same question and has set down the distinction between
what acts constitute of breach of public order and those which are,
in contradistinction, to be in-contravention of law and order in the
following terms :-

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“13. There can be no doubt that for ‘public order’ to be
disturbed, there must in turn be public disorder. Mere
contravention of law such as indulging in cheating or
criminal breach of trust certainly affects ‘law and
order’ but before it can be said to affect ‘public order’,
it must affect the community or the public at large.

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14. There can be no doubt that what is alleged in the
five FIRs pertain to the realm of ‘law and order’ in
that various acts of cheating are ascribed to the
Detenu which are punishable under the three sections
of the Indian Penal Code set out in the five FIRs. A
close reading of the Detention Order would make it
clear that the reason for the said Order is not any
apprehension of widespread public harm, danger or
alarm but is only because the Detenu was successful
in obtaining anticipatory bail/bail from the Courts in
each of the five FIRs. If a person is granted
anticipatory bail/bail wrongly, there are well-known
remedies in the ordinary law to take care of the
situation. The State can always appeal against the bail
order granted and/or apply for cancellation of bail.
The mere successful obtaining of anticipatory
bail/bail orders being the real ground for detaining
the Detenu, there can be no doubt that the harm,
danger or alarm or feeling of security among the
general public spoken of in Section 2(a) of the
Telangana Prevention of Dangerous Activities Act is

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make believe and totally absent in the facts of the
present case.”

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11. Applying the ratio laid down in the above judgments to

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the facts of the present case, one has to examine the contents of
the in-camera statements to conclude whether the same would
factually amount to acts disruptive of maintenance of public order.
Perusal of both the statements clearly reveals that the acts, though
have been alleged to have being committed in a public place, they
nowhere refer to any member of the public having witnessed them
or having experienced a sense of panic or that they have affected
or disrupted the regular tempo of life in the area. Thus, the two
statements cannot form material to arrive at subjective satisfaction
required under Section 3 of the MPDA.

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12.Further, there is no live nexus demonstrated on record
between the first crime bearing No.304/2022 which has taken
place on 02/06/2022 more than 9 months prior to the order.
There is no justification on record as to why a stale crime of a time
9 months prior to the detaining order was taken into consideration
for arriving at a subjective satisfaction.

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The second Crime No.1197/2022, though alleged
offences under Chapter XVI of the Indian Penal Code was found by
the Sessions Court to be worthwhile of granting anticipatory bail

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to the petitioner, on the ground that the complainant had filed
Exh.4 before the Bail Court submitting an affidavit that he was
never abducted or beaten up by the accused, and that he had filed
the complaint out of anger towards the complainant. This finding
of the Sessions Court, if considered by the detaining authority
would have resulted in only one conclusion, being that the
allegations in the complaint were not of acts which would
constitute acts detrimental to maintenance of public order. There
is no reference at all in the detention order to be very relevant
finding, thus, vitiating the entire subjective satisfaction of the
authority.

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13.As held by the Supreme Court inPradeep Nilkanth
Paturkar(Supra) at Paragraph Nos.13 and 14, and by this Court in
Siddant alis Siddharth Sanjay Marathe (supra) at Paragraph No.9,
non-consideration of the reasons recorded by the Sessions Judge
while granting bail, even though all relevant documents were
placed before the detaining authority, shows non-application of
mind on the part of the detaining authority whilst recording
subjective satisfaction. Applying the ratio of these judgments to the
facts of the present case, the subjective satisfaction is vitiated in
this case by non-consideration of the vital finding of the Sessions
Court that the complainant in the second crime had admitted that

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he had not been abducted or being assaulted by the petitioner.
Thus, we conclude, that none of the crimes relied upon or contents
of the in-camera statements would constitute material to justify
the conclusions that the acts of the petitioner are detrimental to
the maintenance of public order.

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The Judgments cited by the learned APP do not further
the case of the respondents as they vastly differ in their facts.

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14.Under these circumstances, on the two grounds held by
us above, in favour of the petitioner, we are of the opinion that the
impugned detention order is not sustainable and is passed
contrary to the provisions of Section 3 of the MPDA. In that view
of the matter, the petition is allowed. We hereby quash and set
aside impugned orders dated 08/03/2023 and 04/05/2023 passed
by the respondents.

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15.Rule is made absolute in terms of prayer clause (b) of
the petition. No costs.

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[VALMIKI SA MENEZES, J.] [VINAY JOSHI, J.]

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Choulwar

Sarla Makhan Gupta (Mother of the Detenue) v. the Dist. Magistrate Chandrapur and Others

Case brief

What is this about?

What did the court decide?

Sarla Makhan Gupta (Mother of the Detenue) v. the Dist. Magistrate Chandrapur and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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