Dismissed

Dipak @ Kalya S/O Sunil Singh v. the State of Maharashtra Thr. Concerned Officer/Secretary Home Dep. (Special) Mumbai and 2

Bombay HC6 Mar 2024WP/208/2024

Case brief

AI extract

What is this about?

Petitioner challenged his MPDA Act detention order and its confirmation by the State on grounds of non-application of mind, bail orders not considered, law-and-order versus public-order distinction, verification of in-camera statements, and delayed issuance. The High Court found public order was disturbed, no unexplained delay existed, upheld the Advisory Board process, and dismissed the petition.

What the court decided

AI extract

Dipak @ Kalya S/O Sunil Singh vs the State of Maharashtra… — Quashing and FIR | Bombay HC (2024)

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2024:BHC-NAG:10326-DB

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

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CRIMINAL WRIT PETITION NO. 208 OF 2024

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Dipak @ Kalya s/o. Sunil Singh, Aged about 32 years, Occ. Labour, R/o. Bhim Nagar Basti, Near Hanuman Temple, Isasani, Police Station MIDC, Nagpur City, Nagpur. ... PETITIONER

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...VERSUS...

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State of Maharashtra Through Concerned Officer/Secretary, Home Department (Special), 2^nd Floor, Mantralaya, Madam Cama Road, Hutatma Rajguru Chowk, Mumbai – 400032.

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State of Maharashtra, Through Commissioner of Police, Nagpur City, Civil Lines, Nagpur.

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State of Maharashtra, Through Advisory Board Constituted under Provisions of 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, Address at Home Department (Special), 2^nd Floor, Mantralaya, Madam Cama Road, Hutatma Rajguru Chowk, Mumbai- 400032. ... RESPONDENTS

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-----------------------------------------------------------------------------------------------Mr. Abhishek Shukla, Advocate for petitioner. Mr. S. S. Doifode, 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 : 12.09.2024

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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 challenges his detention order dated 04.09.2023 under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Person Engaged in Black- Marketing of Essential Commodities Act, 1981 (hereinafter referred to as “MPDA Act”) passed by the respondent No.2 and the order dated 13.09.2023 passed by respondent No.1.

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Heard Mr. Abhishek Shukla, learned Counsel for the petitioner and Mr. S. S. Doifode, learned A.P.P. for respondents/State.

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Learned Counsel for the petitioner challenges the impugned order which appears to have been confirmed by the State Government by order dated 04.09.2023 on the ground that the impugned order passed is based on the non-application of mind and without adhering to the statutory procedure. The grounds of detention which have been given appeared to have been based on two offences namely Crime No.168/2023 for the offences punishable under Sections 452, 354, 294, 506-B, 323 read with Section 34 of the Indian Penal Code and Section 142 of the Maharashtra Police Act and the another offence is Crime No.363/2023 for the offences

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punishable under Sections 4 and 25 of the Arms Act read with Section 135, 142 of the Maharashtra Police Act moving armed with deadly weapon, violation of prohibitory and externment order. The detaining authority has also considered the in-camera statements of two witnesses. It is submitted that the detaining authority had not considered that in both the offences which are still under investigation, the petitioner has been released on bail and the bail order appears to have not been produced before the detaining authority. The contents of the case would show at the most that there was law and order situation and not the public order was disturbed requiring the detention of petitioner. Further there was no proper verification of incamera statements by detaining authority and only that it is seen and verified, but there is no remark that the verification has been properly done. The last crime was allegedly said to have been committed on 14.04.2023 and the detention order has been passed on 04.09.2023. Therefore, there was no live-link and the belated order has been passed. Therefore, the detention order is illegal and deserves to be set aside.

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Per contra, learned Additional Public Prosecutor submitted the well reasoned order has been passed while authorizing detention of the petitioner. The petitioner was involved in many cases, out of which two of them are pending before the Court and are considered for passing the detention order. Even the preventive action was taken against him from time to time, but he has not curtailed his activities. Even after passing the

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detention order, the petitioner some how came to know about the order and he fled away and absconded from the city of Nagpur. Last crime was violation of externment order passed against him. Thereafter, the detention order was passed. M.I.D.C. Police searched for detenue by regularly visiting the house. During the detenue’s period of absconding, the police tried to trace him everywhere. The family members of the detenue were not telling anything about him. After getting the location of mobile of the detenue, he was found in Itarsi, Madhya Pradesh. Through Deputy Commissioner of Police, Zone-1, Superintendent of Police, Madhya Pradesh was contacted and the said accused was detained with the help of Itarsi police on 27.09.2023 at night. Thereafter, he was brought to Nagpur and the detention order was served on his sister Aarti Singh on 28.09.2023. Even the preventive action was taken against him from time to time, but he has not curtailed his activities.

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The in-camera statements would show that in both the incidents, threats were given in public. This is nothing but an act to establish supremacy by creating terror in the mind of people at large so that the petitioner can continue his illegal activities. Every opportunity has been given to the petitioner to submit his representation. He was given hearing before the Advisory Board and the detention order has been confirmed by the Advisory Board. No illegality has been committed and, therefore, the petition deserved to be dismissed.

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Since 2018 number of crimes are registered against the detenue and the preventive action is taken against him from time to time. For passing the detention order two crimes are considered. In Crime No.168/2023, the complainant is Sau Punam Sachin Singh, she has lodged the complaint as the detenue along with his friend came in the house of the complainant at night at 1.00 a.m. He abused the husband of the complainant and beat him. When the complainant tried to intervene, he abused her and beat her. When they went inside the house, the petitioner entered the house and hold her hand. He beat the complainant and touched her improperly. On her complaint, the crime is registered for the offences punishable under Section 452, 354, 294, 506-B, 323 read with 34 of the Indian Penal Code and Section 142 of the Maharashtra Police Act. In this crime, when the police came there, the petitioner along with his accomplice ran away. At that time, he has given threats to the complainant.

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In second Crime No.363/2023, though the externment order was operating against the petitioner, he was found in the area from where he was externed. The police received the information that one person is shouting in filthy language and creating nuisance on road with a knife in his hand near the Water Tank in Bhim Nagar. The complainant surrounded the person with the help of his staff and disarmed the petitioner. During the interrogation, he has stated his name. The knife was seized. He was released on bail. If the person externed by the order of Deputy Commission

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and is roaming with a knife in his hand in public and, abusing in filthy language, then prima facie we can consider that it would raise public order and not only law and order situation.

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The detnue was on bail in both the offences. The detaining authority has considered both the bail orders, which is mentioned in the grounds of detention.

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On perusal of the confidential statements, it appears that the incident took place at night at public place when the witness was returning from his work. The accused by taking his name asked him to stop. The witness raised the speed and went to his house. The petitioner followed him and near his house he abused him in filthy language and whipped out a knife and caught hold his collar and pointed it on his neck and threatened the witness by saying whether he is not knowing him, who is he, the police also scared of him and cannot do anything and forcibly took Rs.1300/- from his pocket. When the people gathered there, he brandished the knife towards the people and threatened them by abusing them that he will kill them and he gave threats to the witness not to lodge the police complaint.

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Witness “B” has also stated that the petitioner has extorted money by abusing him and when people gathered there, he brandished knife and gave threats to the petitioner. The statements and the offences which are considered for passing the detention order would certainly show

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that it is the public order that was disturbed.

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The another ground of challenging the detention order is that there is delay of 143 days from the date of last crime in issuing the detention order. Thus, while considering the challenge to the detention order on the ground of delay, this Court has held that unless the in-camera witnesses has indeed suffered at the hands of detenue, there would be no reason for the witnesses to come forward and give statements against the detenue. This Court in case of Nagnarayan Saryu Singh, [2006 ALL MR (Cri.) 2147] after referring to various steps taken by the detaining authority held that the delay will have to be computed from the date of the last material came to be known to the sponsoring authority. The in-camera statements recorded on 17.07.2023. It was verified by the Assistant Police Commissioner on 31.07.2023. Thereafter, it was verified by the Additional Divisional Officer on 03.08.2023 and the detaining authority has verified it on 04.08.2023. Considering the dates there is no delay in passing the detention order. Same view is taken by this Court in Mohsin Anwar Khan @ Shaikh Vs. Commissioner of Police, Pune and Ors. [2023 ALL MR (Cri) 3785] .

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Learned A.P.P. has placed reliance on the judgment of Zebunnisa Abdul Majid Vs. M. N. Singh and Ors. [2001 (3) Mh.L.J. 365 , wherein it is held that it is not necessary for the detaining authority to mention in the grounds his reaction in relation to every piece of evidence placed before him

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and also relied on the judgment of Harish Patil Vs. The State of Maharashtra [2016 ALL MR (Cri) 5144] in support of argument about truthfulness of the statement verified by the responsible officer.

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As aforesaid, subjective satisfaction has been arrived at on the basis of the two offences as well as two in-camera statements, we do not find that this is to be a fit case where we should exercise our constitutional power to set aside the detention order. We may also refer 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 Advocate 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. The detaining authority is well justified in passing the detention order, therefore, we pass the following order :

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i] The Criminal Writ Petition is dismissed. ii] 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 17:19:46

Dipak @ Kalya S/O Sunil Singh v. the State of Maharashtra Thr. Concerned Officer/Secretary Home Dep. (Special) Mumbai and 2

Case brief

What is this about?

What the court decided

Dipak @ Kalya S/O Sunil Singh v. the State of Maharashtra Thr. Concerned Officer/Secretary Home Dep. (Special) Mumbai and 2

Case brief

What is this about?

What the court decided

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