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Judgment
Sr. No.,Police Station,Detention Order No. and date,Under Section
1,City Chowk,"No.2011/MPDA/DET-02/CB-15 Ofce of the
Commissioner of Police, Aurangabad, Dated 30/08/2011",3(1) of MPDA Act 1981.
2,City Chowk,"No.2013/MPDA/DET-02/CB-22 Ofce of the
Commissioner of Police, Aurangabad, Dated 3/10/2013.",3(1) of MPDA Act 1981.
3,City Chowk,"No.2015/MPDA/DET-03/CB-41 Ofce of the
Commissioner of Police, Aurangabad, Dated 06/08/2015.",3(1) of MPDA Act 1981.
4,City Chowk,"No.2018/MPDA/DET-02/CB-19 Ofce of the
Commissioner of Police, Aurangabad, Dated 25/07/2018.",3(1) of MPDA Act 1981.
15.01.2020,"Proposal forwarded for detention of detenu by Police
Inspector, Crime Branch, Aurangabad.",,
12.03.2020,Detention order of detenu was passed.,,
14.03.2020,Grounds of detention served on detenu.,,
14.03.2020,Proposal forwarded to Advisory Board for approval.,,
18.03.2020,State Government accorded approval.,,
22.04.2020,Representation made by detenu.,,
23.04.2020,Final order passed by the Advisory Board.,,
,"Detenu has been confned in Aurangabad Central Prison,
Aurangabad.",,
(i) ……………………….,,,
(ii) ………………………,,,
(iii) …………………….,,,
(iv) in the case of a dangerous person, when he is engaged or is making preparations for engaging, in any of the activities as a dangerous person,",,,
which afects adversely, or are likely to afect adversely, the maintenance of the public order.â€",,,
This provision signifes that merely a person is a dangerous person is not sufcient to invoke the provisions of the MPDA Act . The further essential,,,
requirement is that the activities of a dangerous person must prejudicially afect the maintenance of the public order. If the activities of a dangerous,,,
person do not afect prejudicially the maintenance of the public order, the provisions of the MPDA Act cannot be invoked.",,,
Section 3 of the MPDA Act provides thus :-,,,
“3(1) The State Government may, if satisfed with respect to any person that with a view to preventing him from acting in any manner",,,
prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.",,,
(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District",,,
Magistrate or a Commissioner of Police, the State Government is satisfed that it is necessary so to do, it may by order in writing, direct that",,,
during such period as may be specifed in the order such District Magistrate or Commissioner of Police may also, if satisfed as provided in",,,
sub-section (1), exercise the powers conferred by the said sub-section:",,,
Provided that the period specifed in the order made by the State Government under this sub-section shall not, in the frst instance, exceed",,,
[six months] but the State Government may, if satisfed as aforesaid that it is necessary so to amend such order to extend such period from",,,
time to time by any period not exceeding [six months] at any one time.,,,
(3) When any order is made under this section by an ofcer mentioned in sub-section (2), he shall forthwith report the fact to the State",,,
Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on",,,
the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been",,,
approved by the State Government.â€,,,
This Section mandates that if a District Magistrate or a Commissioner of Police is satisfed that a person needs to be detained with a view to,,,
prevent him from acting in any manner prejudicial to the maintenance of public order, shall make the order of detention. Sub-Section 3 of Section 3",,,
casts a duty on the Detaining Authority to report the fact of detention to the State Government together with the grounds on which the order has been,,,
made within a period of twelve days from the date of passing of the order.,,,
Section 8 of the MPDA Act makes it obligatory for the Detaining Authority to communicate to the detenu the grounds on which the order has,,,
been made within fve days of the date of detention and also shall aford him an opportunity of making representation against the order of the State,,,
Government. Section 10 of the MPDA Act requires the State Government to place before the Advisory Board within three weeks from the date of,,,
detention of a person the grounds on which the order has been made. Section 11 states that within seven weeks from the date of detention of the,,,
person, the Advisory Board shall submit the report to the State Government. Section 13 states that detention shall not be for more than twelve months.",,,
After having gone through the relevant provisions of the MPDA Act, it will have to be examined whether the detaining authority recorded",,,
subjective satisfaction for the detention of the detenu. For this purpose the detaining authority considered two ofences for the detention of the detenu,,,
viz. Crime Nos.359 of 2019 and 15 of 2020 registered with City Chowk Police Station, cAurangabad. So far as Crime No.359 of 2019 is concerned,",,,
charge-sheet has been produced in the trial Court and it is pending for trial. Copy of the charge-sheet has been produced. We have gone through the,,,
record of the detaining authority. It shows that charge-sheet has been produced in Crime No.359 of 2019. The FIR shows that on 10.10.2019, the",,,
informant ShaikhMustak Shaikh Munaf was proceeding towards Dargah of Kachiwada at about 10:30 p.m. for demanding the amount from Shaikh,,,
Javed Shaikh Kalim given as a handloan to the said Shaikh Javed. The informant was riding on Pleasure Moped, at that time the detenu called him,",,,
two unknown persons were with the detenu. The detenu took out a knife and snatched the keys of his Moped and slapped him and robbed the,,,
informant of Rs.230/-. The detenu also snatched the Moped of the informant. FIR was lodged on 12.10.2019. Charge-sheet shows that on the basis of,,,
memorandum of detenu dated 13.10.2019 at 07:45 p.m. Pleasure Moped bearing Registration No.MH20 DK-0243 and a knife kept in Dicky of the,,,
Moped were recovered and seized. This clearly shows the involvement of the detenu in the alleged ofence. The injury certifcate produced on the,,,
record indicates that the informant had sustained blunt trauma on chest and blunt trauma on right hand and he was referred to surgery and Orthopedic,,,
Department for further management.,,,
So far as Crime No.15 of 2020 is concerned, FIR was lodged on 09.01.2020 relating to the incident dated 08.01.2020, which happened between",,,
08:00 to 08:15 p.m. The informant Saddam Hussain was called by the detenu and asked him to sit in the Auto. The detenu was accompanied by two,,,
unknown persons. When the informant refused, the detenu gave a fst blow in the abdomen of the informant and robbed him of Rs.1,700/- and",,,
snatched the mobile of Tambo company and assaulted the informant by means of a blade and said to the informant that he is historysheeter of,,,
Aurangabad and in City Police Station nobody dares fle complaint against him. Accordingly, FIR was registered in the Police Station under Section",,,
394, 324, 323 of the IPC. In this crime, investigation was in progress at the time of initiation of detention proceedings. The record further shows that",,,
the detenu was arrested on 10.01.2020 and at his instance cash of Rs.450/- were recovered from the detenu on 11.01.2020. Thus, on the basis of",,,
memorandum, cash of Rs.450/- was recovered as remaining amount was spent by the detenu. Thus, this shows that on the basis of memorandum",,,
given by the detenu, blade (half broken) and cash of Rs.450/- were recovered from the detenu. Thus, the record of these two ofences clearly shows",,,
that the detenu is in the habit of committing crimes.,,,
This record shows that the crimes registered against the detenu are serious in nature. In Crime No.359 of 2019, the ofences are under Sections",,,
392, 394, 398, 504, 506 read with 34 of the IPC and in Crime No.15 of 2020, the ofence are under Section 394, 324, 323 of the IPC. This clearly",,,
shows that the detenu is a habitual ofender. The statements of the witnesses ‘A’ and ‘B’ also lend support to this inference. The,,,
statement of witnesses ‘A’ and ‘B’ are annexed with the record. The statement of witness ‘A’ shows that witness ‘A’ was,,,
intercepted by the detenu in Chandani Chowk. Detenu abused witness ‘A’ and threatened him of stabbing him by means of knife and robbed,,,
him of Rs.1,500/-. The detenu also threatened witness ‘A’ that if this information is disclosed to the Police, witness ‘A’ will be",,,
eliminated. This incident was witnessed by many, but nobody came forward to give complaint against the detenu because of his criminal activities.",,,
This statement was recorded on 14.01.2020. Again on 14.01.2020 statement of witness ‘B’ was recorded. In his statement, he has stated that",,,
when witness ‘B’ was passing through Chelipura Square, the detenu was standing there alongwith his two associates and abused him. He fshed",,,
out a knife from his waist and robbed the witness ‘B’ of Rs.2,200/-. The detenu abused witness B. This witness stated in his statement that he",,,
did not disclose the incident to the Police as the detenu created reign of terror in the locality and therefore, he did not approach the Police. Thus, this",,,
record produced before Respondent No.2 shows that respondent No.2 has considered all the aspects of the case and the statement of the witnesses,,,
and came to the conclusion that the activities of the detenu are prejudicial to the maintenance of public order. Therefore, we do not fnd any infrmity in",,,
the opinion formed by the detaining authority. On perusal of both the statements, it is seen that both these statements bear endorsement that Deputy",,,
Superintendent of Police, Aurangabad paid visit to the spot, examined the witnesses and found that the statements were in accordance with in-camera",,,
statements. It is further endorsed that the apprehension of the witnesses A and B was genuine.,,,
So far as the argument of learned counsel Mr.Jaiswal that extraneous material was considered, cannot be accepted. In paragraph No.10 of the",,,
detention order, it is stated that on 25.02.2020, the detenu was convicted of the ofence punishable under Section 142 of the Bombay Police Act and",,,
sentenced to sufer simple imprisonment for two years and to pay fne of Rs.2,000/- in Sessions Case No.228 of 2016. It is further stated in the",,,
detention order that on the same day, his sentence was suspended by Sessions Judge, Aurangabad and he was released on bail. Operative order was",,,
also annexed alongwith the detention order. As indicated above, sponsoring authority forwarded the proposal on 15.01.2020 and the conviction was",,,
recorded on 25.02.2020, which means on the date when proposal was moved, conviction was not recorded.",,,
The question is whether the order of detention is based on this conviction alone. The order shows that the Respondent No.1 considered the Crime,,,
No.359 of 2019 and Crime No.15 of 2020 and statements of witnesses ‘A’ and ‘B’ and came to the conclusion that the detenu is a,,,
dangerous person and his activities are prejudicial to the maintenance of public order. The detaining authority did not base its conclusion on the sole,,,
basis of the conviction under Section 142 of the Maharashtra Police Act, but it is an additional factor. In paragraph 6 of the detention order, the",,,
detaining authority has observed as under:-,,,
“6. From the above facts, I am satisfed that you are a “Dangerous person†within the meaning of section 2 (b-1) of the “Maharashtra",,,
Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-ofenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons",,,
Engaged in Black-Marketing of Essential Commodities Act, 1981†respectively . You are also a weapon wielding desperado, dreaded criminal",,,
striking terror in the mind of peace loving and law abiding citizens residing in the localities of City Chowk Police Station and adjoining areas, by your",,,
criminal activities. The action taken against you under the normal law of the land is found to be insufcient and inefective to deter you from indulging in,,,
criminal activities prejudicial to the maintenance of public order. The public is under constant shadow of you and your associate’s fear. Your,,,
above described criminal activities are disturbing the normal tempo of life of citizens of the said localities and areas, which can be seen from grounds 4",,,
& 5.â€,,,
These observations make it explicit that the detaining authority frst came to the conclusion that the activities of the detenu are prejudicial to the,,,
maintenance of public order. In paragraph 10 detaining authority has stated that the detaining authority is aware that the detenu has been convicted,,,
under Section 142 of the Maharashtra Police Act and that the detenu has been enlarged on bail. This shows that the conviction under Section 142 of,,,
the Maharashtra Police Act is not the sole factor for the detention of the detenu. Had it been the sole basis for the passing of the order of detention, it",,,
would have been altogether a diferent matter. Therefore, the submission of the learned counsel cannot be accepted.",,,
Learned counsel Shri Jaiswal placed reliance on the case of Lakhan Rohidas Jagtap Vs. The Commissioner of Police, Pune and Ors. [2019 ALL",,,
MR (Cri) 5261] in which it has been held that, “only the operative part of the bail order and not full text of the order was placed before the",,,
detaining authority. Therefore, the detaining authority had no occasion to apply its mind for grant of bail to the detenu before recording subjective",,,
satisfaction for passing the order of detention. It was incumbent on the part of the sponsoring authority to place full text of the order granting bail to,,,
the petitioner/detenu before the detaining authority before passing the detention order. It is observed in the verifcation that the statement of witness,,,
‘A’ and apprehension expressed by other persons residing in the vicinity appears to be genuine and true. However, as observed in the decision",,,
of the Division Bench in the case of Mrs.Zabin Salim Hamja Shaikh (Supra), the verifcation required to be done by the Senior Police Ofcer of such in-",,,
camera statement required as additional condition to be met i.e. the satisfaction of the verifcation ofcer regarding the truthfulness of the incident that,,,
was claims to have occurred and as disclosed by the respective complainants i.e. witness ‘A’ and witness ‘B’. Such a verifcation,,,
ensures the subjective satisfaction of the Senior Police Ofcer who has verifed the statements so as to ascertain the identity of the witness and,,,
truthfulness of his statement. However, in the present case the Assistant Commissioner of Police while recording the statement of witness ‘A’",,,
has only mentioned that the witness ‘A’ was called in the ofce of the Commissioner of Police, Swargate and inquiry about his name and",,,
address was made, and he told his name and address. In order to verify his statement the Assistant Commissioner of Police made inquiry with other",,,
people residing in the said vicinity, and it was revealed that, the incident stated by the witness ‘A’ is correct. However, Assistant Commissioner",,,
of Police, has not recorded satisfaction to the efect that incidents stated by the witnesses are true and genuine.â€",,,
This authority has no application to the facts of the case at hand as the sponsoring authority has placed full text of the bail orders in Crime Nos.359,,,
of 2019 and 15 of 2020. Similarly, in the statements of witnesses ‘A’ and ‘B’, Deputy Superintendent of Police, Aurangabad, has made",,,
an endorsement that he had examined the witnesses and found that the statements tallied with in-camera statements recorded by the sponsoring,,,
authority and that it was genuine and that the apprehension expressed by the witnesses was genuine.,,,
Reliance was also placed on the case of Dharani Raja Padyachi Vs. The State of Maharashtra & Ors [2019 ALL MR (Cri) 3504] in which it has,,,
been held that, “undisputedly, the detention order was made on 6th November 2018. As refected from the afdavit of the State, report under Section",,,
3(3) of the said Act was received by the State from the Detaining Authority on 14th November 2018. In the matter of Hetchin Haokip [2018 ALL,,,
SCR (Cri) 1240] (supra) the Honourable Apex Court has interpreted the terms “forthwith†by holding that this term does not mean instantaneous,",,,
but it means without undue delay and within reasonable time. Paragraph 15 and 16 of that judgment clinches the issue. Those read thus:,,,
“15. The expression “forthwith†under Section3(4) must be interpreted to mean within reasonable time and without any undue delay.,,,
This would not mean that the detaining authority has a period of twelve days to submit the report (with grounds) to the State Government,,,
from the date of detention. The detaining authority must furnish the report at the earliest possible. Any delay between the date of detention,,,
and the date of submitting the report to the State Government, must be due to unavoidable circumstances beyond the control of the authority",,,
and not because of administrative laxity.â€,,,
As indicated above, the detention order was passed on 12.03.2020 and the papers were sent for approval to the State Government on 14.03.2020,",,,
therefore, there was no delay on the part of the detaining authority in forwarding the papers to the State Government for approval.",,,
Reliance was also placed on the case of Kiran Dhanraj Kharat Vs. The Commissioner of Police, Pune & Ors. [2018 ALL MR (Cri) 426,9 ]in",,,
which it has been held that, “we have gone through the grounds of detention, documents on record and an index of compilation of documents. On",,,
perusal of the grounds of detention, it can be seen that in paragraph 1 of the said grounds the detaining authority has stated that the Petitioner is being",,,
communicated the grounds as mentioned in paragraph No.5.1, 5.2, 6.1 and 6.2 below on the basis of which the detention order has been passed by the",,,
detaining authority under Section 3(2) of the said Act. It is further stated that the copies of documents placed before the detaining authority on which,,,
she has relied and formed her subjective satisfaction are enclosed. The list of documents annexed to the Petitioner’s Exhibit-C refers to several,,,
documents relating to the ofences registered against the Petitioner. These documents includes the list of documents which were supplied to the,,,
Petitioner and that some of them refers to the previous ofences i.e. C.R.No.67 of 2014, C.R.No.270 of 2014, C.R.No.113 of 2015, C.R.No.342 of",,,
2016 or registered with Bandgarden Police Station and C.R. No.100 of 2016 registered with Samarth Police Station. The documents also includes the,,,
preventive actions initiated against the Petitioner vide Chapter case No.34 of 2016 and Externment Order No.27 of 2017. The reference to this case,,,
and preventive action is made in paragraph 3 of the grounds of detention. It is also pertinent to note that in Paragraph 4 it is stated that on going,,,
through the criminal record, it is evident that the Petitioner is a habitual and dangerous criminal involved in serious and violent crimes and that",,,
preventive action was initiated against him. The introductory paragraph of grounds of detention categorically states that the grounds on the basis of,,,
which the detention order has been issued are refected in paragraph referred to therein. However, paragraph 8 of the grounds of detention mentioned",,,
and the detaining authority has carefully gone through the material placed before her and is subjectively satisfed that the Petitioner is acting in a,,,
manner prejudicial to the maintenance of public order. Thus, the subjective satisfaction of the detaining authority is based on the entire material placed",,,
before her. The entire material in the form of documents placed before the detaining authority includes the cases registered against the Petitioner in,,,
the year 2014, 2015, 2016 and the preventive action initiated against him which are refected in paragraph 3 of the grounds of detention. Thus, while",,,
recording this subjective satisfaction, it is apparent that the detaining authority has relied upon the extraneous material. The approach shows total non-",,,
application of mind on the part of the detaining authority.â€,,,
Nothing has been placed on record to show that the detaining authority has not applied its mind and has not reached the subjective satisfaction.,,,
Moreover, even if the conviction under Section 142 of the Bombay Police Act is kept aside, there was enough material before the detaining authority",,,
to come to the conclusion that the activities of the detenu are prejudicial to the maintenance of the public order. Crime No.359 of 2019 shows that,,,
detenu had robbed the informant of Rs.230/- and has also robbed the Moped. Similarly in Crime No.15 of 2020, the detenu had robbed the informant",,,
of Rs.1,700/- and had also inficted injury on his person by blade and had snatched the mobile of the informant. This shows that even if the conviction",,,
under Section 142 of the Bombay Police Act is ignored, the activities of the detenu indicate that he is acting prejudicially to the maintenance of public",,,
order.,,,
Reliance was also placed on the case of Narendra @ Chotya Mahadev Balkawade Vs. The Commissioner of Police, Pune & Ors. [2020 ALL",,,
MR (Cri) 862]. In this case, it has been held that, “when there is undue and long delay between the prejudicial activities and the passing of the",,,
detention order, the Court has to scrutinize whether the detaining authority has satisfactorily examined such a delay and aforded a tenable and",,,
reasonable explanation as to why the delay has occasioned, when called upon to answer and further the Court has to investigate whether the casual",,,
connection has been broken in the circumstances of each case. For the same purpose, reliance was placed on the case of Shri Sandeep @ Shankar",,,
Vasant Khalase Vs. The Commissioner of Police, Pune City & Ors. [2018 ALL MR (Cri) 2512].",,,
This authority does not apply to the facts of the case at hand. In the case of Narendra @ Chotya Mahadev Balkawade (cited supra) there was,,,
delay of 14 days in forwarding the proposal by Additional Commissioner of Police, West Region, Pune to PCB Crime Branch, Pune, had remained",,,
unexplained. There was also delay of 9 days in forwarding the said proposal by the Joint Commissioner of Police to the Commissioner of Police, Pune",,,
City, Pune. In the case in hand, the proposal was immediately forwarded to the State Government by the detaining authority. Moreover, in the case of",,,
Hasan Khan Ibne Haider Khan Vs,. R.H.Mendonca and Others [2000 ALL MR (Cri) 1070 SC], it has been held as under:",,,
“12. Mr.Jain has further submitted that there was delay in passing the detention order. We fnd that the inquiry was completed during the last past,,,
of February at the level of Deputy Commissioner of Police and the fnal order was passed on 12-4-1999. It cannot be said that there was undue delay,,,
and action was being taken in a routine manner, as after completion of inquiry the matter had to be examined at various levels and fnally the orders",,,
were passed by the Commissioner.â€,,,
Therefore, it cannot be said that there was delay in passing detention order.",,,
Now, the question is of acting prejudicially to the maintenance of public order. In the case of T. Devki Vs. Government of Tamil Nadu and others",,,
reported in [(1990) 2 Supreme Court Cases 456]. The Honourable Supreme Court in paragraph No. 18 of the order has dealt with this aspect of the,,,
matter as under :-,,,
“18. Any criminal ofence is bound to some extent afect the peace prevailing in the locality and it may also afect law and order problem,,,
but the same need not afect maintenance of public order. There is basic diference between ‘law and order’ and ‘public order’,",,,
this aspect has been considered by this Court in a number of decisions, see: Dr. Ram Manohar Lohia v. State of Bihar, Pushkar Mukherjee",,,
v. State of West Bengal and Shymal Chakraborty v. Commissioner of Police, Calcutta. In these cases it as emphasised that an act disturbing",,,
public order is directed against individuals which does not disturb the society to the extent of causing a general disturbance of public peace,,,
and tranquility. It is the degree of disturbance and its efect upon the life of the community in the locality which determines the nature and,,,
character of breach of public order. In Arun Ghosh v. State of West Bengal, the court held that the question whether a man has only",,,
committed a breach of law and order, or has acted in a manner likely to cause disturbance of the public order, is a question of degree and",,,
the extent of the reach of the act upon the society. This view was reiterated in Nagendra Nath Mondal v. State of West Bengal, Sudhir",,,
Kumar Saha v. Commissioner of Police, Calcutta, S.K. Kedar v. State of West Bengal, Kanu Biswas v. State of West Bengal, Kishori Mohan",,,
Bera v. State of West Bengal and Amiya Kumar Karmakar v. State of West Bengal.â€,,,
The above observations of the Hon’ble Supreme Court indicate that there is fundamental diference between law and order and public order. It,,,
is the degree of disturbance and its efect upon the life of the community in the locality which determines the nature and character of breach of public,,,
order. It is further held that whether there was a breach of law and order or the activities were likely to cause disturbance to the public order is a,,,
question of degree and the extent of the reach of the act upon the society.,,,
In the case at hand, two crimes under Sections 392, 394, 398, 504, 506 read with 34 of the IPC and 394, 324, 324 of the IPC respectively have",,,
been registered against the detenu. Witnesses are not coming forward to depose against him nor anyone dares fle complaint against him. Witness,,,
‘A’ has stated that the incident was witnessed by many, but nobody came forward to help him. He also did not lodge report against the detenu",,,
fearing the reign of terror created by the detenu. Witness ‘B’ has also stated that he did not disclose this incident to anyone. This incident was,,,
witnessed by many, but nobody came to his rescue. He did not disclose this incident to anyone and went home directly. This clearly shows that the",,,
detenu has created reign of terror and fear in the minds of public because of which nobody dares come forward to lodge report against him or to give,,,
evidence against him. Both these witnesses requested to keep their identities confdential. This clearly shows that none of the members of public is,,,
ready to come forward to give evidence against the detenu because of atmosphere of terror created by him. The detaining authority has also,,,
considered that the detenu is jobless. Having regard to this, it has to be said that the detenu is acting prejudicially to the maintenance of public order.",,,
Therefore, the detaining authority was perfectly justifed in coming to the conclusion that the detenu being at large is prejudicial to the maintenance of",,,
public order.,,,
Thus, having regard to what is stated herein above, there is no substance in the Writ Petition. Hence, it is dismissed. Rule is discharged.",,,