Allowed

Rafik Alias Topi Mehmood Shaikh v. the Commissioner of Police and Anr.

Bombay HC19 Jul 2024WP/1055/2024

Case brief

AI extract

What is this about?

Detenu detained as a dangerous person under the MPDA Act challenged his detention order. The High Court held that a solitary offence and two in-camera statements cannot establish habitual commission of offences, and that all documents were placed before the Detaining Authority, vitiating the order. Petition allowed and detention quashed.

What did the court decide?

Impugned detention order dated 17.02.2024 quashed and set aside; petitioner ordered to be released forthwith.

Rafik Alias Topi Mehmood Shaikh vs the… — Constitutional and Fundamental Rights | Bombay HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.1055 OF 2024

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Rafik Alias Top i Mehimoo Shiaikhi

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…. Petitioner

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Versus

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Thie Commissioner of Police, Pune City, Pune an Ors.

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…. Respion ents

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Mr.Vikas Sh i varkar, A vocate for thie Petitioner. Mr.J.P. Yagnik, APP for Respion ent – State.

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CORAM : BHARATI DANGRE & MANJUSHA DESHPANDE, JJ.

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DATED : 23^r JULY 2024.

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ORDER (Per : Manjush i a Desh i p i an e, J.)

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1 Thie Writ Petition is taken upi for final ispiosal withi thie consent of thie piarties.

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2 Thie pietitioner is a etenu whio hias been etaine by thie or er of Respion ent no.1–Commissioner of Police, Pune, vi e h i s Detention Or er ate 17^thi February, 2024.

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Digitally signed by RAJESHRI RAJESHRI PRAKASH PRAKASH AHER AHER Date: 2024.08.21 19:15:52 +0530

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Respion ent no.1 hias issue thie Detention or er in exercise of h i s piowers un er Section 3(2) of thie Mahiarashitra Prevention of Dangerous Activities of Slumlor s, Bootleggers,

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Rajeshri Aher

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Drug Offen ers, Dangerous Persons, Vi eo Pirates, San Smugglers an Persons Engage in Black–Marketing of Essential Commo ities Act, 1981 (“MPDA”, for shiort). Thie pietitioner hias been serve withi thie or er of Detention alongwithi thie groun s of Detention an thie ocuments wh i chi hiave been claime to be relie upion by thie Detaining Authiority wh i le piassing thie impiugne or er. Accor ing to thie committal or er, thie pietitioner is piresently un ergoing Detention at Central Jail, Chian rapiur.

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3 It is conten e by thie pietitioner thiat hie is chiallenging thie or er of Detention on thie various groun s as mentione in thie Writ Petition. Accor ing to thie pietitioner, thie Detention or er is piasse on invali , vague, non–existent an irrelevant groun s. Thie groun s of Detention are not piropierly isclose to thie pietitioner. Thie allege offence C.R.No.76 of 2024, registere at Wanava i Police Station, Pune, is an outcome of business rivalry. Thie earlier offences were outcome of thie ispiute between thie customers of thie pietitioners in h i s business of construction. Thie pietitioner cannot be sai to be a angerous pierson as pier Section 2(b-1) of thie MPAD Act.

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Rajeshri Aher

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4 It is thie contention of thie pietitioner thiat thie allege isturbance cause by thie pietitioner at thie most can be sai to affect few in ivi uals an not thie society. Thierefore, it cannot be hiel thiat piublic or er hias been affecte ue to h i s activities.

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5 Thie learne APP hias opipiose thie Writ Petition. Thie learne APP hias relie on thie affi avit file by respion ent no.1– Commissioner of Police, Pune City, Pune. In h i s affi avit it is state thiat thie inquiry reveals thiat thie etenu hias terrorize thie resi ents of thie area whiere thie etenu resi es as well as resi ents of thie a joining areas. Since thie etenu is a angerous pierson, no one are to compilain against h i m opienly ue to fear of retaliation.

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He furthier relies on piaragrapihi 3, 3.1 an 3.2 of thie groun s of Detention in supipiort of h i s contention thiat thie etenu is a hiabitual criminal engage in continuous criminal activities. He hias also relie on piaragrapihis 5.1, 6.1 an 6.2 of thie groun s of Detention to arrive at subjective satisfaction thiat etenu is a Dangerous pierson. Thie etenu being a Dangerous pierson, in or er to restrain h i m from committing criminal activities in future, wh i chi are pireju icial to thie maintenance of

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Rajeshri Aher

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piublic or er, it was thioughit necessary to restrain thie etenu from acting in suchi manner. Hence, thie or er of Detention hias been issue . Thie Government hias apipirove thie or er of Detention on 28^thi February, 2024, it hias also been serve upion thie pietitioner.

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6 In respionse to groun no.4(m) it is state thiat in piaragrapihi no.3.1, thie piast offences (C.R.No.48 of 2024 an 625 of 2023) mentione in thie chiart of offence hiave not been relie upion wh i le piassing or er of Detention, but is only referre to shiow thiat etenu hias been hiabitually committing serious offences.

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7 It is furthier conten e thiat thie etenu was arreste for h i s criminal activities an from time to time release on bail, but hie continue h i s criminal activities un eterre an un aunte . He hias misuse thie liberty an abuse thie pirocess of law. Thiere was enoughi material against thie etenu to eclare h i m as a angerous pierson. Rest of thie contentions hiave been enie by thie Detaining Authiority, an it is furthier piraye thiat, Writ Petition may be ismisse .

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Rajeshri Aher

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8 Upion going thiroughi thie groun s of Detention, piaragrapihi no.3.1 of thie groun s, contains a chiart shiowing thie criminal h i story of thie pietitioner in wh i chi six offences hiave been registere from 2019 to 2024. It is observe thiat thiose offences hiave been referre to shiow thiat thie etenu hias been hiabitually committing serious offences.

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In contrast to thie above claim thie Detaining Authiority on piage 261 of thie affi avit hias state thiat relevant recor ranging from Page nos. 1 to 374, hias been relie by h i m wh i le piassing thie or er of Detention. Th i s statement is contrary to h i s own statement thiat only C.R.No.76 of 2022, an two incamera statements were relie , wh i le piassing thie or er. All thie ocuments serve to thie pietitioner were pilace before h i m, wh i chi hiave certainly affecte h i s ecision making pirocess.

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9 Thie Detaining Authiority hias relie on one offence registere on 23^r January, 2021, at Wanava i Police Station, Pune, being C.R.No.76 of 2024, registere un er Section 436 rea withi 34 of In ian Penal Co e (IPC). Thie etails of thie inci ent lea ing to thie registration of crime hias been given in piaragrapihi 5.1. One Smt.Gouri Somnathi Jambhiulkar hias file a

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Rajeshri Aher

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compilaint alleging thiat, shie hia taken a shiopi on rent an thie furniture work of thie sai shiopi was in pirogress. Thie furniture in hier shiopi got burnt on 20^thi November, 2023. Th i s was informe by thie watchiman of thie sai society to thie compilainant, upion wh i chi shie came an inspiecte thie sai shiopi. On inspiection, shie foun thiat someone hia set fire to hier shiopi. Thie compilainant informe piolice about thie sai inci ent. Whien piolice came an inspiecte thie shiopi, shie hia expiresse hier susp i cion an since thien thie sai witness hia isapipieare . Accor ing to thie compilainant, one Sarita Kumbhiar, whio is owner of anothier Me ical shiopi, on account of business rivalry, hias set hier shiopi on fire, thiroughi thie pietitioner. After investigation, thie pietitioner was arreste . After being piro uce before thie Ju icial Magistrate First Class, Cantonment, Pune (J.M.F.C., Cantonment Pune), thie pietitioner was reman e to Magisterial custo y, an thiereafter hias been grante bail on 16^thi February, 2024.

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10 On going thiroughi thie etails of thie inci ent resulting into registration of C.R.No.76 of 2022, thiere oes not apipiear to be any element causing isturbance to thie piublic or er. It is clear thiat thie sai inci ent hias arisen out of business rivalry

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Rajeshri Aher

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between thie two in ivi uals. Thierefore, by no stretchi of imagination, thie sai offence can be terme as an offence wh i chi is causing any thireat to thie maintenance of piublic or er. Wh i le piassing thie or er of etention on thie basis of thie above mentione inci ent, thie Detaining Authiority hias eclare h i m Dangerous pierson.

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Even thie in–camera statements of witnesses “A” an “B” shiow thiat thie inci ents occurre are in ivi ual in nature. Accor ing to witness “A”, thiere was a transaction between thie witness an thie pietitioner, in thie capiacity of a buil er. Thie pietitioner hia offere one fat to thie witness for Rs.10,00,000/-. Thie pietitioner expiresse hier inability to piart withi thie sai amount as shie i not piossess suchi a large amount. Shie coul give only Rs.13,000/-, an accor ing to hier, whien shie claime return of amount, as shie was not willing to continue thie transaction, thie pietitioner refuse to return thie money but also abuse an thireatene hier. Th i s inci ent oes not amount to any isturbance to thie maintenance of piublic or er.

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11 Thie witness “B” also hias referre to an inci ent of 1^st January, 2024. Allege ly, thie witness was in h i s shiopi whien thie

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Rajeshri Aher

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pietitioner hia eman e a cigarette piacket an i not piay for it. Whien eman was ma e by thie witness, thie pietitioner starte abusing thie witness. Thie pietitioner took out a knife an h i t h i m, but, hie misse it an thiereafter hie ran away.

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Thie acts of thie pietitioner oes not apipiear to hiave affecte even thie tempio of life of thie community.

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12 In piaragrapihi no.8, thie Detaining Authiority hias observe thiat, thie CR No.76 of 2024, registere for thie offence piunishiable un er Section 436 an 34 of thie IPC, refect thie ten encies an inclinations of thie pietitioner. Same is also refecte thiroughi thie in–camera statements. Thierefore, hie hias recor e h i s satisfaction thiat, after availing bail i.e. after hiaving been release on bail on 16^thi February, 2024, thie pietitioner is likely to revert to h i s criminal activities, wh i chi are pireju icial to thie maintenance of piublic or er. In th i s regar , it is worthiwh i le to note thiat thie pietitioner hias been grante bail on 16^thi February, 2024, an thie or er of Detention hias been issue on 17^thi February, 2024. Thiere was no occasion for thie Detaining Authiority to observe thie inclinations an ten encies of thie pietitioner to revert back to h i s criminal ten encies. Thierefore,

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Rajeshri Aher

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eclaring thie pietitioner to be a Dangerous pierson itself is unfair, unreasonable an withiout any basis. Even othierwise, wh i le recor ing h i s satisfaction, thie Detaining Authiority hias relie only upion one offence an two in–camera statements.

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So far as angerous pierson is concerne , angerous pierson hias been efine un er Section 2(b–1) of thie Act, wh i chi rea s thius:-

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“2(b–1) “ angerous pierson” means a pierson, whio eithier by h i mself or as a member or lea er of a gang, hiabitually commits, or attempits to commit or abets thie commission of any of thie offences piunishiable un er Chiapiter XVI or Chiapiter XVII of thie In ian Penal Co e or any of thie offences piunishiable un er Chiapiter V of thie Arms Act, 1959.”

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Thie efinition itself enotes thiat a pierson, whio eithier by h i mself or as a member or lea er of a gang, hiabitually commits, or attempits to commit or abets thie commission of any of thie offences piunishiable un er Chiapiter XVI or Chiapiter XVII of thie In ian Penal Co e, is a Dangerous pierson. Thie angerous pierson is necessarily a pierson whio hiabitually commits offence. Wh i le eclaring thie pietitioner as angerous pierson, thie Detaining Authiority hias relie only on one offence, an thierefore, hie cannot be categorize as a pierson whio hiabitually commits offence.

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Rajeshri Aher

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Habitual offen er hias been consi ere at a great lengthi in a repiorte Ju gment in thie case of State of Mah i arash i tra & Ors Vs. Meh i amu¹ . Wh i le consi ering thie scopie of Section 2(b–1) an 3 of thie MPDA Act vis–a–vis thie Dangerous pierson whio hiabitually commits or attempits to commit an offence, thie Hon’ble Apiex Court hias after taking into consi eration various interpiretations of thie wor “hiabitual”, hias also frame a question as to true impiort of expiression “hiabitually commits or attempit to commit”.

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Wh i le consi ering thie sai expiression, thie Hon’ble Apiex Court hias in thie case cite above, referre to a case of Vijay Narayan Singh i Vs. State of Bih i ar² , whiere thie wor “hiabitually” hias been interpirete , wh i chi is as un er:

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“Thie expiression “hiabitually” means “repieate ly” or “piersistently”. It impilies a thirea of continuity stringing togethier similar repietitive acts. Repieate , piersistent an similar, but not isolate , in ivi ual an issimilar acts are necessary to justify an inference of hiabit.”

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Thierefore thie wor “hiabitually”, is use whiere an act is one repieate ly, piersistently an impilies a thirea of continuity of thie sai acts. Even thie ictionary meaning of thie wor “hiabit” an “hiabitual”, as given in A vance Law Lexicon

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1 (2007) 12 SCC 358

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2 (1984) 3 SCC 14 : 1984 XCC (Cri) 36

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Rajeshri Aher

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hias been consi ere by thie Hon’ble Apiex Court, wh i chi is repiro uce as un er:

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“Habit – Settle ten ency or piractice, mental constituent. Thie wor “hiabit” impilies a ten ency or capiacity resulting from thie frequent repietition of thie same acts. Thie wor s by “hiabit” an “hiabitually” impilies frequent piractice or use.”

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13 After consi ering thie various ju icial pironouncements as well as thie ictionary meaning of thie wor “hiabit” an “hiabitual”, thie Hon’ble Apiex Court hias observe thiat thie expiression “hiabitual” is very significant. A pierson is sai to be a hiabitual criminal whio by force or inner ispiosition is accustome to commit crimes. It impilies commission of suchi crimes repieate ly or piersistently an pirima facie thiere shioul be a continuity in thie commission of thiose offences.

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14 Thierefore, from thie above, it is evi ent thiat a single act of an offence cannot be consi ere to be an hiabit. Thierefore, thie pietitioner cannot be terme as angerous pierson. Similarly consi ering thiat all thie ocuments in comp i lation thiose hiave been serve to thie pietitioner, hiave also been pilace before thie Detaining Authiority. Thioughi hie claims to hiave relie only on one offence an two statements, thie othier ocument apipiears to

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Rajeshri Aher

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be taken into account an hias infuence h i s ecision. Hence, in view of thie conspiectus of thie matter, thie or er of Detention issue by thie Detaining Authiority being issue withiout apipilication of min , eserves to be quashie an set asi e.

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As a result, thie writ pietition is allowe . Rule is ma e absolute in terms of pirayer Clause (b), wh i chi rea s thius:

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“B) After pierusing thie recor s an pirocee ings thie impiugne or er ate 17.02.2024 being or er outwar no.CRIME PCB/DET/WANAVADI/RAFIK SHAIKH/216/ 2024 piasse by thie Respion ent No.1 i.e. thie Commissioner of Police, Pune City, Pune be quashie an set asi e an thie Petitioner be release forthiwithi.”

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(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)

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Rajeshri Aher

Rafik Alias Topi Mehmood Shaikh v. the Commissioner of Police and Anr.

Case brief

What is this about?

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Rafik Alias Topi Mehmood Shaikh v. the Commissioner of Police and Anr.

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