Quashed

Tukaram Birappa Pujari v. the Commissioner of Police and Ors.

Bombay HC23 Aug 2024WP/2876/2024

Case brief

AI extract

What is this about?

Preventive detention order classifying the petitioner as a sand smuggler under the MPDA Act was challenged. The court found no material linking him to illegal sand excavation or offences punishable under the Mines Act or MME Rules, and confusion in the grounds of detention. The detention order was quashed and the petitioner released.

What did the court decide?

Detention Order dated 3 April 2024 quashed and set aside; petitioner-detenu to be set at liberty forthwith; rule absolute.

Tukaram Birappa Pujari Vs the Commissioner of Police and Ors. — Bombay HC (2024) — LawSathi Research

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITON NO. 2876 OF 2024

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Tukaram Birappa Pujari …. Petitioner

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Versus

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The Commissioner of Police and Ors. …. Respondents

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Mr.Ritesh Thobde a/w. Zubi Ansari and Changdev Shingade i/b. Ms.Ankita Pramod Rai, Advocate for the Petitioner.

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Mr.J.P Yagnik, APP for Respondent – State.

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CORAM : BHARATI DANGRE & MANJUSHA DESHPANDE, JJ.

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DATED : 23^rd AUGUST 2024.

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P.C. :

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1 The Detention Order dated 3^rd April, 2024, passed by the District Magistrate, Solapur, has ordered detention of the petitioner–Tukaram Birappa Pujari, as he alongwith his accomplices dissuaded Government public servants from their work by intimidation and they engaged themselves in illegally extracting of sand, and thereafter in smuggling, stealing and sending the stolen sand for sale from a vehicle and thereby destroying the environment.

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Digitally signed by RAJESHRI RAJESHRI PRAKASH PRAKASH AHER AHER Date: 2024.08.27 19:36:50 +0530

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Considering the activities of the detenu to be prejudicial to the maintenance of public order and since the

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Rajeshri Aher

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Detaining Authority was the opinion that it is necessary to prevent him from acting further in any manner prejudicial to the maintenance of public order, his detention is necessary.

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Pursuant to the Order of Detention, the grounds of Detention are also communicated to the Petitioner on the very same day, where the Detaining Authority has inferred his act of being engaged in smuggling of sand and classifying him as a “Sand Smuggler”, as defned in Section 2(e-2) by relying upon one CR and two in–camera statements.

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2 We have heard the learned counsel Mr.Thobde appearing for the Petitioner, who by inviting our attention to the grounds of Detention, has argued before us that the material relied upon by the Detaining Authority i.e. the subject CR, and the two in–camera statements have failed to make out a case that, his activities are prejudicial to the maintenance of public order, as there is nothing brought on record to establish that he is engaged or he is making preparation for engaging in any of his activities as a sand smuggler, which has affected or likely to affect adversely the maintenance of public order.

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By inviting our attention to the defnition of “Sand Smuggler”, according to Mr.Thobade, the CR which is relied upon by the Detaining Authority, which has invoked offence punishable under Sections 353, 379 read with Section 34 of the Indian Penal Code (IPC) and Sections 9 and 15 of the Environment (Protection) Act,1986, has failed to establish that he is a “Sand Smuggler”, and even the in–camera statements

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Rajeshri Aher

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where the witnesses have referred to him, as he is the one engaged in illegal excavation of sand and its transportation, is also not of any succour.

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We have also heard the learned APP Mr.Yagnik for the Respondent – State who has taken us through the affdavit fled by the Detaining Authority as well as the State Government who has approved and confrmed the Order of his Detention.

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3 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 (MPDA Act), is an act to provide for preventive detention of various categories of persons, one of the category being of “Sand Smugglers”, for preventing their dangerous activities prejudicial to the maintenance of public order.

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Each of the category is specifcally assigned a distinct meaning in the Act, by providing a defnition and as far as Sand Smuggler is concerned, Section 2(e-2) of the MPDA Act, defne the term as below:

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2(e-2) “ sand smuggler ” means a person who individually or as at part of a group of persons is engaged in or is preparing to engage in or associated with or abets unauthorized extraction, removal, collection, replacement, picking up or disposal of sand and its transportation, storing and selling or who commits or attempts to commit or abets the commission of offences in respect of sand which are punishable under the Mines and Minerals (Development and Regulation)

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Rajeshri Aher

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Act, 1957 or under the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013;”

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An activity of a Sand Smuggler, according to the MPDA Act would be prejudicial to the maintenance of public order, as defned in Section 2(a), in case sand smuggler, is engaged, or is making preparations for engaging, in any of his activities as a sand smuggler which affect adversely, or is likely to affect adversely, the maintenance of public order.

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The necessary ingredient for a person to be classifed as a sand smuggler is his engagement in or preparations to be engaged in or his association or his act of abetting unauthorized extraction, removal, collection, replacement, picking up or disposal of sand and its transportation, storing or selling, or to commit or abet to commit, or abet the commission of offences in respect of sand which are punishable under the Mines and Minerals (Development and Regulation) Act, 1957 or under the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013.

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4 The Detaining Authority, in arriving at a conclusion that the detenu is engaged in activities of a sand smuggler has relied upon CR No.672 of 2023, registered with Akkalkot Police Station, which has invoked Section 353, 379 read with 34 of IPC and also the relevant Sections of the Environment (Protection) Act,1986. In the said CR, he was arrested on 7^th December, 2023, but released on bail on 19^th December, 2023.

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Rajeshri Aher

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Relying upon the said CR, the Detaining Authority has taken note of his activity of manhandling the police personnel and it is recorded that a trolley carrying one brass sand worth Rs.87,000/-, was seized under panchanama in presence of the panchas.

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When the narration of the complaint by Mallikarjun Pundalik Sutar, Circle Offcer, Karajagi, Taluka–Akkalkot is carefully read, he is tipped of an information that illegal transportation of sand was being done from Bhima river, at village Hilli under the Karajagi jurisdiction. Therefore, he proceeded on a two wheeler alongwith villager Kotwal Kashinath Mane of village Hilli when they noticed one tractor and trolley without registration number, and found that it was carrying sand.

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There is no inference that the sand was excavated illegally or that it was being transported illegally.

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An attempt was made to chase the tractor and trolley and the tractor driver was asked to take the tractor to the Tahsil offce. At this point of time, the complainant has referred to the entry of the detenu Tukaram Pujari and other persons from the backside who obstructed his motorcycle and instead of taking the tractor to Tehsil, it was taken in the direction of Hosur village in Karnataka. It is stated that two unknown persons came from the front side and stopped the tractor and manhandled the Kotwal Mane, by making him alight from the tractor and by snatching his mobile, it was thrown in

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Rajeshri Aher

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agricultural land, and then took the tractor towards Hosur village in Karnataka.

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In the material placed before the Detaining Authority, which is refected in the grounds of Detention, it is not the case made out in the subject CR that it is the Petitioner who was the owner of the tractor/the trolley or that the sand which was being transported belonged to him, and not only this, there is no material to indicate that the sand was illegally excavated.

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In fact, there are allegations of manhandling of the offcials and therefore, an offence under Section 353 has been registered, but, defnitely no offence is registered under the Mines and Minerals (Development and Regulation) Act, 1957 or under the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013, which a requirement of classifying a person as, “Sand Smuggler”.

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5 When we turned our focus to the in–camera statements, the witnesses “A” and “B” without giving any details about the date on which the incident had occurred, have merely referred to the Petitioner as being engaged in illegal excavation of sand and its transportation.

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Barring this statement, the remaining portion of the statement pertain to how he had created a reign of terror in the locality, as on getting income from illegal business, he used to offer liquor to the youngsters in the surrounding village and that is how he created terror.

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Rajeshri Aher

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The detention of the detenu is not on the ground that he is either a bootlegger or a “Dangerous Person” who created a regin of terror in locality, but, his detention is on account of he being a “Sand Smuggler”.

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Neither witness “A” nor witness “B” have provided any material to link him to the illegal excavation of sand and its transportation.

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6 Relying upon the CR and the two in–camera statements, what the Detaining Authority has further observed is very interesting to read and we quote the relevant portion as under:

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“6 I carefully observed the documents produced before me. On perusal of the continuation in criminal activities at par 5(1) and on the basis of confdential statements of witnesses at para No.5(2)A and 5(2)B, I am subjectively satisfed that, you are engaged in the activities that caused obstacle to the public order situation. On seeing your criminal activities and your attitude, it is noticed that you are habitual criminal in future also you will participate in criminal activities that will cause obstacle to the public order situation therefore, I am subjectively satisfed that, it has become inevitable to detain you in order to prevent you from committing activities causing obstacle to public order in future as per provisions of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders,

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Rajeshri Aher

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Dangerous Persons and Video Pirates, Sand smugglers and Person Engaged in Black Marketing of Essential Commodities Act, 1981 (MAH. Act No.LV of 1981) (Amendment Act–1996, 2009, 2015) (E–2)

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I carefully observed the documents produced before me. It appears from the record produced before me that, you have committed offence described in Para.4(1) and police had taken legal action against you in the said offences but, you have not changed your behaviour. Prior to it, in the year 2021, Shri.Sachin Ramrao Chavan while he was working as Talathi of village Hilli and caught the tempo with sand and was taking action at that time, you alongwith your companions by going on the person and by catching his shirt coller behaved arrogantly with him. Thereafter you had taken the tempo with sand from there. Thereupon C.R.No.79/2021 for the offence punishable under Sections 353, 504, 506 of I.P.C. and under Sections 9 and 15 of the Protection of Environment Act was registered on 1.3.2021. Bail in said offence was granted you and thereafter vide Section 56(1)(A)(B) of the Maharashtra Police Act, you were externed from the period of two years. Still you engaged yourself and in same manner vide CR No.672/2023 registered at Akkalkot South Police Station you alongwith your companions were found while obstructing the Circle offcer Shri.Mallikarjun Sutar and employees when they are taking seized tractor which was found while carrying the sand illegally. At that time, you manhandled complainant and his companions and used arrogant language with them and to avoid legal action against said tractor, taken away. On seeing at your inclination and

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Rajeshri Aher

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attitude and considering the nature of offence, I am satisfed that you will repeat such type of act in future also for continuation of your illegal business of sand excavation and transportation.”

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7 We fail to understand as to on what basis the Detaining Authority has concluded that he was a sand smuggler as the only role attributed to him in the CR is about obstructing the Circle Offcer Mallikarjun Pundalik Sutar, and the employees when they were taking the seized tractor, which was found carrying the sand alleged to be illegal. The detenu did not face a charge either that the tractor belonged to him or the sand belong to him. Only because the offcers who intercepted the vehicle had received the information that it was stolen sand, in absence of any connection between the sand and the tractor with the detenu, there was no reason why he shall be considered as a “sand smuggler”.

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8 In paragraph 8, the Detaining Authority has considered the criminal activities of the detenu in form of the CR and expressed subjective satisfaction that he is constantly indulging criminal activities and creating terror fear in Akkalkot Taluka and is used to commit offences if anybody obstruct him in commission of the sand excavation, he strongly oppose him.

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9 From reading of the grounds of Detention, we fail to understand the basis of detention of the detenu as to whether it is he being a “dangerous person” as the Detaining Authority has

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Rajeshri Aher

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expressed subjective satisfaction of he indulging in criminal activities of creating terror and fear in Akkalkot Taluka. However, his detention is on the ground that he is found to be a “Sand Smuggler”.

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Recording the mentality of the detenu, the Detaining Authority apprehended that in future also he may engage in committing terrifying activities causing obstacles to the public order, which defnitely is not the criteria for a “Sand Smuggler”.

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Even reading of paragraph 10, since we fnd confusion in the mind of the Detaining Authority as to the basis for detaining him, the Detention Order, according to us completely suffers from non application of mind and therefore cannot be sustained.

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In the wake of the above, by quashing and setting aside the Detention Order dated 3^rd April, 2024, the Petitioner– detenu is entitled to be set at liberty forthwith.

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Rule is made absolute in above terms.

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

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Rajeshri Aher

Tukaram Birappa Pujari v. the Commissioner of Police and Ors.

Case brief

What is this about?

What did the court decide?

Tukaram Birappa Pujari v. the Commissioner of Police and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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