Bombay High Court
Atish Ravindra Kharat vs The District Magistrate Jalgaon And … on 4 December, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:30436-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1805 OF 2024
Atish Ravindra Kharat
Age: 27 years, Occu.: Labour,
R/o. Samatanagar, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon. .. Petitioner
Versus
1. District Magistrate, Jalgaon,
District Jalgaon.
2. The State of Maharashtra,
Through the Additional Chief
Secretary, Govt. of Maharashtra,
Home Department Mantralaya,
Mumbai-32.
3. The Jail Superintendent,
Central Prison, Thane,
Dist. Thane. .. Respondents
...
Mr. Rohit P. Patwardhan, Advocate for the petitioner.
Mr. V. K. Kotecha, APP for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
ROHIT W. JOSHI, JJ.
DATE : 04 DECEMBER 2024
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. Rohit P. Patwardhan for the
petitioner and learned APP Mr. V. K. Kotecha for the respondents
– State.
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2. Rule. Rule made returnable forthwith. The petition is
heard finally with the consent of the learned Advocates for the
parties.
3. The petitioner challenges the detention order dated
18.07.2024 bearing No. Dandapra/KAVI/MPDA/30/2024 passed
by respondent No.1 as well as the approval order dated
29.07.2024 and the confirmation order dated 23.09.2024 passed
by respondent No.2, by invoking the powers of this Court under
Article 226 of the Constitution of India.
4. Learned Advocate for the petitioner has taken us through
the impugned orders and the material which was supplied to the
petitioner by the detaining authority after passing of the order.
He submits that though several offences were registered against
the petitioner, yet for the purpose of passing the impugned order,
six offences were considered i.e. (i) Crime No.377 of 2020
registered with Bhusawal City Police Station, District Jalgaon for
the offences punishable under Sections 307, 395, 120-B, 143,
147, 148, 149, 323, 504 of Indian Penal Code, under Section 3
punishable under Section 25 and 27 of the Indian Arms Act and
under Section 37(1)(3) of the Mumbai Police Act, 1951, (ii) Crime
No.52 of 2022 registered with Bhusawal City Police Station,
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District Jalgaon for the offences punishable under Sections 307,
452, 341, 323, 504, 506 of Indian Penal Code, Section 142 of
Mumbai Police Act, 1951, (iii) Crime No.179 of 2022 registered
with Bhusawal City Police Station, District Jalgaon for the offence
punishable under Section 3 punishable under Section 25 of the
Indian Arms Act and under Section 142 of the Maharashtra
Police Act, (iv) Crime No.81 of 2023 registered with Bhusawal
Bazar Peth Police Station, District Jalgaon for the offences
punishable under Sections 400, 401, 341, 324, 323, 504, 506
read with Section 34 of Indian Penal Code, Section 3 punishable
under Section 25, Section 6, 7 and 8 of the Arms Act, under
Section 135, 37(1)(3) of Mumbai Police Act, (v) Crime No.118 of
2023 registered with Bhusawal City Police Station, District
Jalgaon for the offences punishable under Section 4 punishable
under Section 25 of the Indian Arms Act, Section 135, 37(1)(3) of
the Mumbai Police Act and (vi) Crime No.72 of 2024 registered
with Bhusawal City Police Station, District Jalgaon for the
offences punishable under Sections 385, 386, 387 of Indian Penal
Code. Learned Advocate for the petitioner submits that the
detaining authority has absolutely not considered that the earlier
detention order dated 31.07.2023 was quashed and set aside by
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this Court in Writ Petition No.1794 of 2023 on 07.03.2024.
Though the note of the said decision has been taken, yet the
present detaining authority considered all those cases which were
already considered in the earlier order. Therefore, there is
absolutely no subjective satisfaction and application of mind that
can be seen from the impugned order. Only one offence could
then be considered i.e. Crime No.72 of 2024, which came to be
registered on 11.04.2024. The prosecution story in the said
offence would show that at the most law and order situation
would have been created. Same is the case as regards statements
of in-camera witnesses ‘A’ and ‘B’.
5. Per contra, the learned APP strongly supports the action
taken against the petitioner. He submits that the petitioner is a
dangerous person as defined under Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders,
Dangerous Persons and Video Pirates Act, 1981 (hereinafter
referred to as the “MPDA Act”). The detaining authority has relied
on the two in-camera statements and the subjective satisfaction
has been arrived at. There is no illegality in the procedure
adopted while recording the in-camera statements of the
witnesses. Due to the terror created by the petitioner, people are
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not coming forward to lodge report against him and, therefore, it
affects the public order. Learned APP relies on the affidavit-in-
reply of Mr. Ayush Prasad, the District Magistrate,
Jalgaon/detaining authority and his additional affidavit dated
21.09.2024. He supports the detention order passed by him and
tries to demonstrate as to how he had arrived at the subjective
satisfaction. He further states that his order has been approved
by the State Government and also by the Advisory Board.
Thereafter, the confirmation has been given.
6. Before considering the case, we would like to take note of
the legal position as is emerging in the following decisions :-
(i) Nenavath Bujji etc. Vs. State of Telangana and
others, [2024 SCC OnLine SC 367],
(ii) Ameena Begum Vs. The State of Tamilnadu and
Ors., [2023 LiveLaw (SC) 743];
(iii) Kanu Biswas Vs. State of West Bengal, [1972 (3)
SCC 831] wherein reference was made to the decision in Dr.
Ram Manohar Lohia vs. State of Bihar and Ors. [1966
(1) SCR 709];
(iv) Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta,
[1995 (3) SCC 237];
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(v) Pushkar Mukherjee and Ors. Vs. The State of West
Bengal, [AIR 1970 SC 852];
(vi) Phulwari Jagdambaprasad Pathak Vs. R. H.
Mendonca and Ors., (2000 (6) SCC 751) and;
(vii) Smt. Hemlata Kantilal Shah Vs. State of
Maharashtra and another, [(1981) 4 SCC 647].
7. Taking into consideration the legal position as summarized
above, it is to be noted herein as to whether the detaining
authority while passing the impugned order had arrived at the
subjective satisfaction and whether the procedure as
contemplated has been complied with or not. In Nenavath Bujji
(Supra) itself it has been reiterated by the Hon’ble Supreme Court
that illegal detention orders cannot be sustained and, therefore,
strict compliance is required to be made, as it is a question of
liberty of a citizen. At the outset it is to be noted that there was
no subjective satisfaction and no application of mind as well as
there are lack of reasons in the order by the detaining authority.
When the fact was brought to the notice of the detaining
authority that the earlier detention order dated 31.07.2023 was
quashed and set aside by this Court on 07.03.2024, then the
respondent No.2 ought to have seen the earlier order dated
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31.07.2023 and which offences were considered by him for
detaining the petitioner. The said order dated 07.03.2024 has
been made available to this Court and it can be seen that out of
the six offences those were considered by the present authority,
five offences were already considered in the said order dated
31.07.2023. Still the present detaining authority had considered
those five offences also which were already considered and,
therefore, we observe that this is a classic case of non application
mind by the detaining authority. When those five cases were
already considered, then the present detaining authority ought to
have considered only the last offence i.e. Crime No.72 of 2024
registered with Bhusawal City Police Station, District Jalgaon for
the offences punishable under Sections 385, 386, 387 of Indian
Penal Code, which was still under investigation on the date of
detention order. Further, in the said offence the petitioner came
to be arrested on 12.04.2024. He was released on bail in the said
offence. As regards the statements of in-camera witnesses ‘A’ and
‘B’ are concerned, at the most law and order situation would have
been created.
8. Thus, taking into consideration the above observations and
the decisions of the Hon’ble Apex Court, at the most, the
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statements as well as the offences allegedly committed would
reveal that the petitioner had created law and order situation and
not disturbance to the public order. Though the Advisory Board
had approved the detention of the petitioner, yet we are of the
opinion that there was no material before the detaining authority
to categorize the petitioner as a dangerous person or bootlegger.
9. For the aforesaid reasons, the petition deserves to be
allowed. Hence, following order is passed :-
ORDER
I) The Writ Petition stands allowed.
II) The detention order dated 18.07.2024 bearing No.
Dandapra/KAVI/MPDA/30/2024 passed by respondent No.1
as well as the approval order dated 29.07.2024 and the
confirmation order dated 23.09.2024 passed by respondent
No.2, are hereby quashed and set aside.III) Petitioner – Atish Ravindra Kharat shall be released
forthwith, if not required in any other offence.IV) Rule is made absolute in the above terms.
[ ROHIT W. JOSHI ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
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