Dismissed

Rehan Qureshi S/O Mohd. Vakil Qureshi v. the State of Mah. Thr. Its Principal Secretary, Ministry of Home Affairs Mantralaya Mumbai and 1

Bombay HC1 Aug 2024WP/117/2024

Case brief

AI extract

What is this about?

Detention order under the MPDA Act against a person alleged to steal and slaughter cattle was challenged on grounds that offences only affected law and order and the detention was delayed by about 40 days. The court found witness statements showed terror among residents amounting to public-order disturbance, and the delay was explained by procedural steps, and dismissed the writ petition.

What the court decided

AI extract

Rehan Qureshi S/O Mohd. Vakil Qureshi vs the State of Mah… — Quashing and FIR | Bombay HC (2024)

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2024:BHC-NAG:10297-DB

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR

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CRIMINAL WRIT PETITION NO. 117 OF 2024

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Mr. Rehan Qureshi s/o. Mohd. Vakil Qureshi, Aged 23 years, Occup.: Business, R/o. Shivnagar, Wanjra Layout, Yashodhara Nagar, Nagpur – 440026. ... PETITIONER ...VERSUS...

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The State of Maharashtra Through its Principal Secretary, Ministry of Home Affairs, Mantralaya, Mumbai.

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The State of Maharashtra, Through Commissioner of Police, Nagpur. ... RESPONDENTS

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-----------------------------------------------------------------------------------------------Mr. Shavez H. Mansoori, Advocate for petitioner. Mr. M. K. Pathan, A.P.P. for respondents/State.

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CORAM : VINAY JOSHI AND MRS. VRUSHALI V. JOSHI, JJ. JUDGMENT RESERVED ON : 30.08.2024 JUDGMENT PRONOUNCED ON : 09.09.2024

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JUDGMENT (PER : MRS. VRUSHALI V. JOSHI, J.):-

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Rule . Rule is made returnable forthwith. Heard finally by consent of learned counsel appearing for the parties.

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The petitioner is detained under the order of detention dated 21.11.2023 issued by Commissioner of Police, Nagpur under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords,

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Bootleggers, Drug-Offenders, Dangerous Persons and Video Pirates, Sand Smugglers and Persons Engaged in Black Marketing of Essential Commodities Act, 1981 (the MPDA Act, 1981). The said order was confirmed by the respondent No.1 on 11.01.2024. The petitioner is detained as a dangerous person.

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In the instant matter, the crimes relate to the Maharashtra Animals Prevention Act, 1976 and the Prevention of Cruelty to Animals Act, 1960 along with Indian Penal Code offences and provisions of the Arms Act, in particular for the purpose of detention.

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The offences which have been relied upon are as under :

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(i) Crime No. 608/2023 under Sections 294, 506B, 143, 148, 149 of Indian Penal Code read with Sections 3 and 25 of the Arms Act registered on 25.05.2023.

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In this offence, on the complaint of one Ashfaq Ahmed Qureshi s/o Shiekh Sultan Qureshi, crime was registered against the detenu and his associates at Panchpaoli Police Station, Nagpur. The nature of the crime involved threatening to kill the complainant, abusing in filthy language, brandishing wooden sticks, pistol (Katta), as there was an allegation of obstruction in running to get the permission of cutting the buffaloes from Municipal Office, Nagpur, due to the complainant and his friend Isaque Qureshi.

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(ii) Crime No. 411/2023 under Sections 429, 188 read with Section 34 of Indian Penal Code and Sections 5, 5A, 5C, 9A of the Maharashtra Animal Preservation Act, 1976 r/w Section 11(n)(l) of the Prevention of Cruelty to Animals Act, 1960, registered on 14.09.2023.

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In the above offence, Shri Yashwant Thote, Head Constable of Kotwali Police Station, Nagpur, lodged the complaint against the petitioner as reliable information was received from the informant that a cow was slaughtered and 140 kg beef was carried in two black plastic bags in a green coloured Chevrolet Yuva Company four-wheeler vehicle bearing registration number MH-43-AB-2152 on the raid at Mahal, near Kila Gate, in front of Regal Fashion Clothes shop. The material with the car was seized.

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(iii) Crime No. 760/2023 under Sections 5, 5A, 5C, 9A of the Maharashtra Animal Preservation Act, 1976 r/w 11(n)(l) of the Prevention of Cruelty to Animals Act, 1960, registered on 14.10.2023.

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During the patrolling in the jurisdiction of Police Station Yashodhara Nagar, police constable Amit Thakur, on receipt of reliable information that, on Plot No. 1495, Yogi Arvind Nagar, bovine animals were tied up at the house of one Adnan Qureshi. It included six white coloured cows, three brown coloured cows, four brown coloured calves, two white coloured calves. Upon interrogation, he said that the said cows were tied for slaughter. He further said some of the cows belong to the petitioner.

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In offence No. (i) as stated above, there was a confession from the associate of the detenu, Mohd Irfan, about the committal of the crime while in the offence No. (iii), the detenu confessed the same.

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Learned Counsel for the petitioner, Shri Mansoori, relied upon the grounds that the last crime against the petitioner was registered on 14.10.2023 and the detention order was passed on 21.11.2023. Therefore, there is a delay of around 40 days which is unexplained. The two in-camera statements relied by the Respondent No.2 to draw the subjective satisfaction are vitiated as no document is provided by the respondent No.2 to support the allegations made in the in-camera statements.

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He further submitted that, there is no material on record to show that the petitioner was involved in any criminal activity much less prejudicial to public order in 40 days. There is no whisper in the detention order as to when respondent No.2 reported the details and grounds of detention of the petitioner to respondent No.1.

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Learned Counsel for the petitioner emphasized on his contention that, the respondent No.2 did not peruse the bail orders which are made part of the record and questioned if petitioner was indulged in alleged criminal activities why did the respondent No.1 not approach the competent Court for cancellation of bail.

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Learned A.P.P., Shri Pathan, heavily relied on the two incamera statements describing how the incidents would lead to the hamper of public order if the on-going activities continue.

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He submitted that, the petitioner is indulged into regular activities of mischief by killing or maiming cattle, treating animals cruelly, cow slaughtering and so on. The petitioner is alleged to steal cows from the vicinity and other areas, slaughter them and sell the beef. He wanders with his hooligan associates.

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In the statement of witness “A”, it is mentioned that, the detenu stole the cow of the witness with the aid of his associates in a Bolero pickup. When the cow was tied in the shed and witness fast asleep, he heard a loud mooing of the cow, when resisted regarding the mishap, the detenu threatened witness to kill by brandishing a knife towards him abusing in foul language. He acted in the same manner towards the gathered public too, leaving them in fear.

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In the statement of witness “B”, in the midnight around 2.003.00 A.M., the petitioner was attempting to steal the cow of the witness in his vehicle, when the witness tried to forbid from the same to happen, the petitioner, rushed to kill the witness with a big cow-slicing knife (Sattur). He also threatened the gathered people by waving the weapon.

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Learned APP, on the aspect of delay in passing the detention order submitted that, the time was utilized in the process of compilation of documents, translation, fair typing and to comply with other requirements of law. He further stated that, challenging the bail order in the High Court and issuance of the detention order are two entirely independent proceedings which do not affect each other and, therefore, the mere fact that the prosecution has not moved for cancellation of bail would not render the order of detention as illegal.

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Learned A.P.P. submitted that, the petitioner has not at all discussed about the particulars of crimes in the petition, which have been taken into account, as how the activities of the petitioner would not lead into passing of the detention order. Hence, prayed to dismiss the petition.

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The grounds which are raised by the petitioner are whether the offences which are considered by the detaining authority affects the public order and two in-camera statements do not disclose any of the act and incident disturbing the public order and another ground of delay in passing the detention order.

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According to the petitioner, there is delay in passing the order of detention from the date of last offence. There is 40 days delay in passing the order. In this case, three offences are considered by the detaining authority. It is the contention of the petitioner that the offences registered

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under the Prevention of Cruelty to Animals Act, 1960 will not come under the MPDA Act and said offences cannot be considered for passing the detention order. On perusal of the offences it appears that the first offence Crime No.608/2023 is registered on 25.05.2023 is for the offences punishable under Sections 294, 506B, 143, 148, 149 of the Indian Penal Code and Sections 3 and 25 of the Arms Act. The second offence vide Crime No.411/2023 is registered on 14.09.2023 for the offences punishable under Sections 429, 188 read with Section 34 of the Indian Penal Code and Sections 5, 5A, 5C, 9A of the Maharashtra Animal Preservation Act, 1976 and Section 11(n)(l) of the Prevention of Cruelty to Animals Act, 1960 and the third offence is registered under the provisions of the Maharashtra Animals Preservation (Amendment) Act, 1995 read with the Prevention of Cruelty to Animals Act, 1960. Even if, the third offence is not considered for passing the detention order. Two offences are there where the offences under the provisions of the Indian Penal Code are registered, which comes under Chapter XVI and XVII of the Indian Penal Code. Therefore, these offences can be considered for passing the detention order.

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It is to be noted from the offences registered against the petitioner that the petitioner was brandishing with the weapon. There was quarrel between the two groups. The threats were given to the complainant to kill him and they were brandishing wooden sticks and pistol i.e. the desi katta. The quarrel took place as there was obstruction in running to get the

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permission of cutting the buffaloes from Municipal Office, Nagpur. In another crime, 140 kg. beef was found in the vehicle. The said offences are confessed by the petitioner and his associates. If the petitioner and his associates are carrying the pistol and other weapons with them prima facie, we can consider that it would raise public order and not only law and order situation. There is ban on beef in Maharashtra. The petitioner and his associates were found in possession of 140 kg. beef. The allegation are made for the offences punishable under Section 429 read with Section 34 of the Indian Penal Code and the offences under the Maharashtra Animal Preservation Act, 1976 and the Prevention of Cruelty to Animals Act, 1960.

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If we consider the statements of witnesses, both witnesses “A” and “B” have specifically stated the incidents. Witness “A” has stated that in the first week of October 2023, at 7.00 p.m. when he was sleeping at 1.30 a.m. he heard the loud cow mooing and saw a Bolero pickup parked in front of his house and two persons standing near the vehicle with a wooden stick. When the witness went there he found that the petitioner was preparing to steal away the cow of the witness. When he resisted, the petitioner drew a large knife from his waist and threatened the witness by saying “ rq pqipki jgs ugh rks rsjs dks xk; ds leku dkV nqaxk- eS dbZ ckj tsy tkdj vk;k gqW- iqyhl esjk dqN fcxkM ugh ldrh- When the witness shouted, the people from surrounding woke up and came out. The petitioner took the cow of the witness in one hand and the knife in right hand. He handed over the cow to his accomplice and

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threatened the crowed with a knife and again by saying “ xk; dh rjg NkaV Mkyqaxk ” and ran away towards the gathered people. Therefore, people fled into their houses and in fear, and shut their doors. No one came forward to help the witness out of fear. He steal the cow and gave threats not to lodge the report. As the witness was scared, he has not lodged the report.

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Witness ‘B’ has also stated that in second week of October 2023 at about 2.00 to 3.00 a.m. in the night when he heard the sound of fourwheeler in front of his house, he came out of the house and saw that the petitioner was loading one of his cow into Bolero pick-up van. Therefore, he shouted loudly. The family members came out and people from surrounding area also gathered there. The witness was dragging the cow towards him by forbidding his cow to enter the Bolero pick-up. At that time, the petitioner brought a big cow-slicing knife from the cabin of Bolero vehicle and rushed to kill the witness. The witness ran away and stood away from him. Seeing the big Sattur knife in the hand of the petitioner, no one came to help the witness. Then he abused the witness saying that whether he is not knowing him and asked him to stay away from him, otherwise he will cut his neck like cow. Thereafter, he waived Sattur towards the gathered people and said that he will kill if anyone comes forward. The people went to their houses and shut their doors. The petitioner took the cow into Bolero pick-up van. Because the witness was scared, he has not lodged the complaint.

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The petitioner has relied on the judgment of the Hon’ble Apex Court in the case of Banka Sneha Sheela Vs. State of Telangana and Ors.

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[(2021) 9 SCC 415], wherein it is held in paragraph 14 as under :

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“14. 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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From the statements which are given by the witnesses clearly show that the petitioner has created terror in said area and no one was dared to lodge the complaint against the petitioner though the petitioner has stole the cows of the witnesses for slaughtering. It appears that it is not the only situation of law and order. The statements of witnesses shows that the act of petitioner did not only affect the witnesses but also created a fear in the mind of people staying in said area and who were witnessing the incident. The detenue is indulging in theft of cattles. He stole the cattles for slaughtering. The villagers are living in state of fear and terror on account of activities of the detenue. This shows that the activities of the detenue are not affecting just an individual but are affecting the public at large. This definitely amounts to disturbance of public order.

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Reliance is placed on the judgment passed by this Court in Writ Petition No.702/2023 in support of argument that the complaint made against the individual it can not fall within the ambit of public order. Here

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in this case, the act of the petitioner affects the public at large and not individual. Reliance is also placed on the judgment of Kuso Sah. Vs. State of Bihar and Ors. [(1974) 1 SCC 185] , in which the reliance is placed on Dr. Ram Manohar Lohia vs. State of Bihar [(1966) 1 SCR 709], wherein the distinction between ‘public order’ and ‘law and order’ is discussed in detail.

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The next ground is raised that there is delay in passing the detention order. The last crime was registered on 14.10.2023 and the detention order against the petitioner was passed on 21.11.2023. It is submitted that there is a substantial delay of around 40 days in passing the detention order and there is no explanation on the grounds of detention. Taking into consideration the dates on record, in-camera statements, it is verified by different authorities and the detaining authority, there is absolutely no much gap which can be termed as delay. The time will not start to run from the date on which the last offence that was registered. For considering the delay we will have to consider the time till last offence, then the in-camera statements, verification by the Superior Police Officers and also by the detaining authority. The respondent No.2 has given the explanation that the last in-camera statements were recorded on 01.11.2023. The Yashodhara Nagar Police Station, Nagpur initiated the proposal for detention of the detenu on 03.11.2023 under the MPDA, 1981 (Amendment of 2015) and the same was submitted to the Assistant Commissioner of Police, Jaripatka Division. The Assistant Commissioner of

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Police, Sadar Division verified the in-camera statements of witness “A” and “B” on 07.11.2023 and recommended the proposal to the Dy. Commissioner of Police, Zone-V, Nagpur on 07.11.2023. The Dy. Commissioner of Police, Zone-V, Nagpur verified the in-camera statement and after scrutinizing, recommended it to the Addl. Commissioner of Police, North Region, Nagpur on 08.11.2023. The Addl. Commissioner of Police, North Region, Nagpur City on 09.11.2023 forwarded it to the Commissioner of Police, Nagpur i.e. the Detaining Authority and on 10.11.2023, it was received in the Detention Cell, Crime Branch, Nagpur. After scrutiny of documents, on 14.11.2023, the Detention Cell, Crime Branch, Nagpur initiated the proposal to the Detaining Authority i.e. Commissioner of Police, Nagpur. It is submitted that the Detaining Authority prima facie found, that it was a fit case for detention under MPDA and directed the office of the Detention Cell, Crime Branch, Nagpur to prepare compilation, translation, fair typing and comply with other requirements of law. The Detention Cell, Crime Branch, Nagpur complied with these directions and on 14.11.2023 the draft of grounds of detention were forwarded to the Deputy Commissioner of Police (Detention), Crime Branch, Nagpur City who went through the draft of grounds of detention and other relevant documents and gave his endorsement on 15.11.2023 which were then forwarded to the Additional Commissioner of Police (Crime), Nagpur City. The Additional Commissioner of Police (Crime), Nagpur City went through the draft of grounds of detention and other relevant documents and gave his

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endorsement on 16.11.2023 which were then forwarded to the Joint Commissioner of Police, Nagpur City. The Joint Commissioner of Police, Nagpur went through the draft of grounds of detention and other relevant documents and gave her endorsement on 17.11.2023 before forwarding to the Detaining Authority. The Detaining Authority carefully went through the grounds of detention and other relevant documents and after being subjectively satisfied, passed the detention order and on 21.11.2023, the detenue was detained.

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Considering the explanation, we found that there is no delay in passing the detention order. There is no substance in the argument made by the learned Counsel for the petitioner that there is delay in passing the detention order. As we have already opined that the activities of the detneue are disturbing the public order and we also referred to the opinion that has been given by the Advisory Board and the said opinion is made available to us which shows that the petitioner was heard through video conferencing and the Counsel representing the petitioner was also heard. The detention order has been confirmed taking into consideration the opinion of the Advisory Board as contemplated under law and, therefore, we pass the following order :

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The Criminal Writ Petition is dismissed.

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Rule stands discharged.

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(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)

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RGurnule

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Signed by: Mrs. R.M. MANDADE Designation: PA To Honourable Judge Date: 13/09/2024 13:14:54

Rehan Qureshi S/O Mohd. Vakil Qureshi v. the State of Mah. Thr. Its Principal Secretary, Ministry of Home Affairs Mantralaya Mumbai and 1

Case brief

What is this about?

What the court decided

Rehan Qureshi S/O Mohd. Vakil Qureshi v. the State of Mah. Thr. Its Principal Secretary, Ministry of Home Affairs Mantralaya Mumbai and 1

Case brief

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