Bombay High Court
Akshay @ Chingya Vishwanath More vs The State Of Maharashtra And Others on 30 January, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:2577
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.2068 OF 2024
Akshay @ Chingya Vishwanath More
Age: 22 years, Occu.: Labourer,
R/o. Bhanwarwadi, Patoda Shivar,
Tq. Jamkhed, Dist. Ahmednagar. .. Petitioner
Versus
1. The State of Maharashtra
Through the Section Officer to
Government of Maharashtra in
Home Department (Special),
Mantralaya, Fort, Mumbai-32.
2. The District Magistrate,
Ahmednagar.
3. The Superintendent,
Nashik Central Prison,
Nashik. .. Respondents
...
Mr. S. R. Shirsat, Advocate for the petitioner.
Mrs. P. R. Bharaswadkar, APP for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 30 JANUARY 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. S. R. Shirsat for the petitioner
and learned APP Mrs. P. R. Bharaswadkar 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
28.08.2024 bearing No.DC/Desk-9C1/989/2024 passed by
respondent No.2 as well as the approval order dated 06.09.2024
and the confirmation order dated 23.10.2024, 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,
only one offence is considered i.e. Crime No.101 of 2024
registered with Jamkhed Police Station, District Ahmednagar for
the offences punishable under Sections 307, 504 read with
Section 34 of Indian Penal Code and under Section 3 punishable
under Section 35 of the Indian Arms Act. Learned Advocate for
the petitioner submits that the impugned order would show that
the detaining authority had considered Crime No.101 of 2024
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and in connection with said offence, the petitioner came to be
released on bail by order dated 29.07.2024, however, the said
order was not considered. That incident even if taken as it is
would show that the public was not involved. Similarly, in respect
of in-camera witnesses ‘A’ and ‘B’, it was the individual act, which
was complained of. Further, there is delay in passing the
impugned order.
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
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. Siddharam Salimath, District Magistrate,
Ahmednagar to consider as to what were the circumstances on
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which the subjective satisfaction was arrived at. There is
absolutely no delay in passing the order as the proposal which
was forwarded by the Superintendent of Police was received by
the detaining authority on 14.08.2024 and the impugned order
came to be passed on 28.08.2024. The petitioner is involved in
serious offences against body and property and, therefore, he has
been put in the category of dangerous person as per the M.P.D.A.
Act. The activities of the petitioner could not have been curtailed
except upon his detention. There is no illegality 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];
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(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
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 has
considered Crime No.101 of 2024 lodged with Jamkhed Polcie
Station, District Ahmednagar. Perusal of the FIR would show
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that the informant was proceeding along with his labours in his
Scorpio at 1.00 a.m. on 03.03.2024. When they reached in the
Chowk at village Patoda around 1.10 a.m., he saw his tractor
containing sugarcane. Therefore, he got down from Scorpio and
went near the tractor. He had noticed that one vehicle was
chasing him right from Bhavarwadi. He noticed that two persons
got down from the said vehicle. One of them was the petitioner.
Petitioner started abusing him and then the informant asked him
as to why he is abusing, at that time, the unknown person with
the petitioner uttered that the informant should be shot.
Thereupon, the petitioner took out pistol from his waist and fired
three rounds. The informant tried to dodge and in that process
one bullet hit his right leg. Thereupon, the petitioner had
manhandled the informant and fled away. Here, we have
intentionally taken the contents of the FIR into consideration to
see as to whether public order was involved. But here it is to be
noted that except the labours he was carrying in his Scorpio
there appears to be no other public involved, as the incident is
stated to have taken place at 1.10 a.m., though in the chowk.
From the FIR the clear mens rea cannot be gathered, but it
appears to be totally personal as the informant was knowing the
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petitioner.
8. As regards the in-camera statements, if we consider those
statements, it can be seen that both the statements came to be
recorded on 16.04.2024 when the petitioner was in jail in Crime
No.101 of 2024. Witness ‘A’ says that in the last week of February
2024, around 7.30 p.m., when he was proceeding from Jamkhed
to Patoda on motorcycle, the petitioner and his companion were
coming from behind on their motorcycle. This witness was
intercepted and then petitioner asked him to give money. The said
person asked as to why he should give money. Thereupon, the
petitioner by showing him pistol abused and demanded the
amount and then forcible snatched amount of Rs.1,850/-. It is to
be noted from his statement that he is not giving the exact
location and whether public had gathered at the said place.
Statement of witness ‘B’ is also on the same line except that
amount of Rs.2,700/- were forcibly taken at the gun point. Here
also public was not involved. Thus, it is to be noted that the
detaining authority has not considered the bail order of a
competent Court, as it was given prior to the order of the
detention and then public was not involved. Therefore, it cannot
be said that the material before the detaining authority was
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sufficient to arrive at the subjective satisfaction. Though the
order has been approved by the Advisory Board, we are of the
opinion that the points which we have considered were not
considered by the Advisory Board.
9. 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.
10. For the aforesaid reasons, the petition deserves to be
allowed. Hence, following order is passed :-
ORDER
I) The Writ Petition is allowed.
II) The detention order dated 28.08.2024 bearing
No.DC/Desk-9C1/989/2024 passed by respondent No.2 as
well as the approval order dated 06.09.2024 and the
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and set aside.
III) Petitioner – Akshay @ Chingya Vishwanath More 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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