Bombay High Court
Sikandar Ali S/O Basharat Ali vs The State Of Maharashtra And Others on 12 February, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:5891-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.01 OF 2025
Sikander Ali s/o Basharat Ali
Age: 42 years, Occu.: Labour,
R/o. New Hudco Colony, Tq. Bhusawal,
Dist. Jalgaon .. Petitioner
Versus
1. The State of Maharashtra
Through Secretary,
Home Department,
Mantralaya, Mumbai-32.
2. The District Magistrate,
Jalgaon, District Jalgaon.
3. The Superintendent of Police,
Jalgaon, at S.P. Office,
In front of Bus Stand,
Tq. And Dist. Jalgaon.
4. Sub Divisional Police Officer,
Bhusawal Sub Division,
Bhusawal, Tq. Bhusawal,
Dist. Jalgaon. .. Respondents
...
Mr. N. R. Shaikh, Advocate for the petitioner.
Mrs. P. R. Bharaswadkar, APP for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 12 FEBRUARY 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. N. R. Shaikh for the petitioner
and learned APP Mrs. P. R. Bharaswadkar for 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/29/2024 passed by
respondent No.2 as well as the approval order dated 29.07.2024
and the confirmation order dated 18.12.2024 passed by
respondent No.1, 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,
four offences were considered i.e. (i) Crime No.66 of 2012,
registered with Bhusawal City Police Station, District Jalgaon for
the offences punishable under Sections 342, 387, 504, 506 read
with Section 34 of Indian Penal Code, under Section 4
punishable under Section 25 of the Indian Arms Act and under
Section 135 of the Bombay Police Act, (ii) Crime No.167 of 2022,
(iii) Crime No.133 of 2023 and (iv) Crime No.26 of 2024 were
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registered with Bhusawal City Police Station, District Jalgaon for
the offence punishable under Sections 65(e) of the Maharashtra
Prohibition Act, 1949. Learned Advocate for the petitioner
submits that paragraph No.5 of the grounds of detention would
show that in all four offences were considered by the detaining
authority. The first offence that is considered is Crime No.66 of
2012 and it cannot be said that for passing order of detention on
18.07.2024, there was any live link between the said offence and
the order. He further submits that only in respect of Crime
No.167 of 2022 and Crime No.133 of 2023, CA Reports have been
received and in respect of the last offence i.e. Crime No.26 of
2024, the CA report was not received. He further submits that in
last three offences, the petitioner was given notice under Section
41(1)(a) of the Code of Criminal Procedure and was not arrested
at all. As regards statements of in-camera witnesses ‘A’ and ‘B’
are concerned, general public was not involved. At the most law
and order situation would have been created. There is inordinate
delay in passing the detention order. Therefore, the impugned
order is illegal and cannot be allowed to sustain.
5. Per contra, the learned APP strongly supports the action
taken against the petitioner. He submits that the petitioner is a
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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
not coming forward to lodge report against him and, therefore, it
affects the public order. Learned APP relied on the affidavit-in-
reply of Mr. Ayush Prasad, the District Magistrate,
Jalgaon/detaining authority. 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. The material
before the detaining authority was sufficient to arrive at a
conclusion that the petitioner was undertaking bootlegging
activities and the liquor that was seized from him in some of the
matters contain ethyl alcohol. Further, the statements of in-
camera witnesses ‘A’ and ‘B’ show that ordinary law would not
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have curtailed the bootlegging activities of the petitioner.
Therefore, no fault can be found in the impugned order.
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];
(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
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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. As aforesaid, the detaining authority had
considered the aforesaid four offences and two in-camera
statements. Even the offence vide Crime No.66 of 2012 was
considered for passing the detention order on 18.07.2024, which
is against the principles laid down by the Hon’ble Supreme Court.
Further, in respect of Crime No.167 of 2022 and Crime No.133 of
2022, CA reports have been received and percentage of ethyl
alcohol that was found was 10% and 10% respectively. The
detaining authority has not considered that in respect of last
offence i.e. Crime No.26 of 2024, CA report was not received.
There was no opinion of any expert medical officer certifying that
the seized liquor would have been injurious or harmful to human
consumption. Further, it appears that there is delay in passing
the detention order. Here, the confidential statements of
witnesses ‘A’ and ‘B’ were recorded on 23.02.2024 and
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26.02.2024 respectively. Verification of the same was done on
02.03.2024, but proposal has been submitted by the sponsoring
authority on 28.06.2024. Why there was so much delay in
sending the proposal has not been explained by the sponsoring
authority. There is no affidavit by the sponsoring authority
explaining the said delay. Of course, after the said proposal was
received by the detaining authority, there is no such delay, but
still the time spent between recording of confidential statements
and verification thereof till the detention order, is more than three
months. If the petitioner was really a dangerous person and his
criminal activities were supposed to be curtailed, then the
sponsoring authority cannot afford to remain idle. It is further to
be noted that on preventive actions under Section 107 and 110 of
the Code of Criminal Procedure were taken. Whether those
preventive actions were taken to the logical end or not has not
been mentioned. Whether those actions would have curtailed the
activities of the petitioner was one of the factor to be considered.
Further, it is not stated as to why preventive action under Section
93 of the Code of Criminal Procedure has not been taken. As
regards in-camera statements of witnesses ‘A’ and ‘B’ are
concerned, the incidents in both the cases would show that
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general public was not involved. At the most law and order
situation would have been created. Therefore, these grounds do
not justify the impugned order.
8. Thus, taking into consideration the above observations and
the decisions of the Hon’ble Apex Court, at the most, the
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/29/2024 passed by respondent No.2
as well as the approval order dated 29.07.2024 and the
confirmation order dated 18.12.2024 passed by respondent
No.1, are hereby quashed and set aside.
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III) Petitioner – Sikander Ali s/o Basharat Ali shall be
released forthwith, if not required in any other offence.
IV) Rule is made absolute in the above terms.
[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
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