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2019 DIGILAW 922 (BOM)

GOPAL BHUJANGRAO KADAM v. STATE OF MAHARASHTRA

2019-04-03

PUSHPA V.GANEDIWALA, SUNIL B.SHUKRE

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JUDGMENT : Sunil B. Shukre, J. Rule. Rule is made returnable forthwith. Heard finally by consent of the learned counsel for the parties. 2. The petitioner is a detenu, who has been placed under preventive detention by an order passed by respondent no.2 - District Magistrate, Akola on 13.4.2018 in exercise of his powers under Section 3 of the Maharashtra Prevention of Communal, Anti-social and other Dangerous Activities Act, 1980 (hereinafter referred to as "the Dangerous Activities Act" for the sake of brevity), which has been confirmed by respondent no.1 - State of Maharashtra on 08.5.2018 in terms of Section 12 of the Dangerous Activities Act. 3. The impugned orders were passed by these authorities after taking into consideration long history of crimes behind the petitioner and also the other material placed before them, which primarily related to the statements of two witnesses recorded confidentially, witness-A and witness B. Upon consideration of such material, the authorities were satisfied that since the year 2013, the petitioner had been engaging himself continuously in commission of violent and dangerous acts, such as attempt to murder, causing grievous hurt by dangerous weapon, extortion by voluntarily causing hurt and other violent acts, which made the authorities to form an opinion that the petitioner was a dangerous criminal, who had spread a reign of terror in the area of his illegal activities necessitating the authorities to pass the aforestated orders. 4. The impugned orders take into consideration twelve crimes registered against the petitioner starting from year 2013 and ending with October, 2017. Two crimes i.e. Crime No. 212/2017, registered with Police Station, Civil Lines, Akola on 09.6.2017 and Crime No. 368/2017 registered with Police Station, Ramdaspeth, Akola on 22.10.2017 appeared to have had their significant impact on the authorities while reaching their subjective satisfaction. It is also seen that after 22.10.2017, the last crime allegedly committed by the petitioner, there was one more incident of December, 2017, which was though not reported to the police station, has been seriously complained about by the witness-B. So, it could be taken that last of the prejudicial activities of the petitioner extended as far as December, 2017. It is also seen that after 22.10.2017, the last crime allegedly committed by the petitioner, there was one more incident of December, 2017, which was though not reported to the police station, has been seriously complained about by the witness-B. So, it could be taken that last of the prejudicial activities of the petitioner extended as far as December, 2017. This date, as it appears from the impugned order passed by the District Magistrate, Akola, is significant and it is going to have its own impact on consideration that we are going to make in respect of the submissions made across the bar by Mr. M.N. Ali, the learned counsel for the petitioner and Mrs. Ketki Joshi, the learned Additional Public Prosecutor for the respondents. 5. It is the submission of Mr. Ali, the learned counsel for the petitioner that there has to be a live link between last of the prejudicial activities and subjective satisfaction reached by the detaining authority and unless such live link is established, no order of preventive detention can be passed. According to him, in the present case, there is a delay of about 5 - 6 months from the last of the prejudicial activities and this delay has remained unexplained and on this ground alone, the impugned orders have stood vitiated. This has been disagreed to by the learned Additional Public Prosecutor for the State, who submits that live link would be provided by the material placed on record through the evidence of the confidential witnesses, witness-A and witness-B and therefore, there is no merit in the ground so taken by the learned counsel for the petitioner. 6. Although, Mr. Ali, the learned counsel for the petitioner has stated that there is a delay of 5 - 6 months, which is quite inordinate after the last of the prejudicial activities, while passing the impugned orders, we find that this delay is of about three months and some odd days, if the statement of witness-B confidentially recorded, is taken into account. We have already referred to it in the earlier paragraph and as per this statement, the last of the prejudicial activities of the petitioner could be considered to have taken place in December, 2017 and it would be only from this date that we would have to consider the question of delay which has occurred in passing the impugned orders. We have already referred to it in the earlier paragraph and as per this statement, the last of the prejudicial activities of the petitioner could be considered to have taken place in December, 2017 and it would be only from this date that we would have to consider the question of delay which has occurred in passing the impugned orders. This delay, as stated earlier, comes to about three moths and odd days. It is also a fact established on record, if one carefully scrutinizes the impugned orders and also the reply of the prosecution, that this delay of about three months and odd days has not been explained in any manner by the detaining authorities. There is also no material available on record and seen to be considered by the respondent no.2 - District Magistrate, while passing the order dated 13.4.2018, which could be said to be standing as a further link to what happened, as per the version of witness-B, in the month of December, 2017. So, there is literally a full stop to the prejudicial activities of the petitioner from December, 2017 and onwards. 7. If there is no explanation given by the authorities for the aforestated delay and also there is no self-speaking material to explain the delay, the result would be that the satisfaction reached by the authorities regarding the need for preventively detaining the petitioner, could be said to be not based upon any objective criterion. It is well settled law that subjective satisfaction of the authority must be based upon some criterion, which could be objectively noticed by the reviewing authority and if there is no reference to such material or criterion, it would have to be said that the subjective satisfaction so reached is devoid of any support from any objective criterion. Of course, the view taken by the authority like the District Magistrate or the State Government upon such material cannot be substituted by the High Court, which is a Court of secondary judicial review in terms of the doctrine of Wednesbury's reasonableness. But, a High Court has a duty in law to examine as to whether or not the satisfaction so reached is based upon some material or not. But, a High Court has a duty in law to examine as to whether or not the satisfaction so reached is based upon some material or not. In the present case, no explanation having been offered and no material having been placed on record to explain the delay in passing of the first impugned order, one has to say that the satisfaction reached by the detaining authority was arbitrary and imaginary. 8. In Pradeep Nilkanth Paturkar vs. S. Ramamurthi, (1994) AIR SC 656, the Hon'ble Apex Court reiterating the view taken by it in earlier cases - Hemlata Kantilal Shah vs. State of Maharashtra, (1981) 4 SCC 647 and T.A. Abdul Rehinan vs. State of Kerala, (1989) 4 SCC 741 , has held that although, the delay by itself is not fatal in such cases, the law requires that the delay must be satisfactorily explained by the detaining authority and if it is not so, the order of detention would stand vitiated. The relevant observations of the Hon'ble Apex Court made in T.A. Abdul Rahinan's case are reproduced below "The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a 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.". Following in the same vein, the Hon'ble Apex Court in Pradeep Paturkar's case (supra) found that delay of five months and eight days had vitiated the order of detention. 9. Following in the same vein, the Hon'ble Apex Court in Pradeep Paturkar's case (supra) found that delay of five months and eight days had vitiated the order of detention. 9. The law so laid down by the Hon'ble Apex Court has been followed consistently by the other Division Benches of this Court. In the case of Sanjay Balaram Kirale vs. State of Maharashtra and another, (2001) AllMR(Cri) 1616 the delay was of about three months and it being unexplained it was found to be fatal to the case of the detaining authority. In case of Anil @ Antya Shriram Jadhav vs. State of Maharashtra and others, (2008) AllMR(Cri) 1259, the delay in passing of the impugned order after the last of the prejudicial activities, was of about six months and it was considered to have had rendered the detention order as vitiated in law. 10. In view of the facts discussed earlier, we are of the considered opinion that the law crystalised by the Hon'ble Apex Court in the above referred cases, which has been followed consistently by this Court over a long period of time, would make the impugned orders passed in the present case as illegal and as having been vitiated due to absence of any objective criterion for reaching of requisite satisfaction by the detaining authorities. 11. In addition to the above ground, we also find in the present case that the order of detention is illegal on the ground of non-consideration of the important material by the authority and which if it had been considered, would have had its own impact on the mind of the authority in making its satisfaction. There are two crimes, Crime No. 3003/2014 and Crime No. 06/2014, both registered at Police Station, Civil Lines, Akola, which have been referred to in the impugned order dated 13.4.2018. In both these crimes, the petitioner was acquitted respectively on 04.9.2017 and 16.8.2017. It is seen that these acquittals have not been considered in the impugned order dated 13.4.2018. 12. Mrs. Joshi, the learned Additional Public Prosecutor for the State submits in reply that acquittal or no acquittal, what is important is the criminal antecedents of the petitioner and these crimes have been referred to in the order only for making of reference and only to show that the petitioner had a long history of criminal record. 12. Mrs. Joshi, the learned Additional Public Prosecutor for the State submits in reply that acquittal or no acquittal, what is important is the criminal antecedents of the petitioner and these crimes have been referred to in the order only for making of reference and only to show that the petitioner had a long history of criminal record. She places reliance upon the law laid down by the Hon'ble Apex Court in Hasan Khan Ibne Haider Khan vs. R.H. Mendonca and others, (2000) 3 SCC 511 . In paragraph 11 of the judgment, the submission of the learned senior Advocate for the respondent therein has been mentioned to the effect that the reference was made to the conviction awarded to the appellant just to show the past criminal history of the appellant and this submission of the learned senior Advocate made in paragraph 11 has been accepted by the Hon'ble Apex Court. There is no doubt about the fact that mentioning of these crimes in the first impugned order is for showing past criminal record of the petitioner. So, to this extent, as held in Hasan Khan's case, the impugned order could not be found fault with. But, the matter does not end here. In the first impugned order both these crimes are shown to be Court pending and not as disposed of. Once a wrong fact is stated even by way of reference, it is necessary for the detaining authority to make the record straight by correcting such an error. But, if no such effort is made, it would only mean that the authority is swayed away by a wrong consideration in making its satisfaction and this is how, in our considered view, the impugned order would stand vitiated on this additional ground. 13. In this regard, we receive support from the observations of the Hon'ble Apex Court made in the case of Dharamdas Shamlal Agarwal vs. Police Commissioner, (1989) AIR SC 1282, particularly in paragraph 12 thereof, which is reproduced thus- "12. 13. In this regard, we receive support from the observations of the Hon'ble Apex Court made in the case of Dharamdas Shamlal Agarwal vs. Police Commissioner, (1989) AIR SC 1282, particularly in paragraph 12 thereof, which is reproduced thus- "12. From the above decisions it emerges that the requisite subjective satisfaction the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. It is clear to our mind that in the case on hand, at the time when the detaining authority passed the detention order this vital fact, namely, the acquittals of the detenu in case Nos. mentioned at Serial Nos.2 and 3 have not been brought to his notice and on the other hand they were withheld and the detaining authority was given to understand that the trial of those cases were pending. The explanation given by the learned counsel for the respondents, as we have already pointed out, cannot be accepted for a moment. The result is that the non-placing of the material fact - namely the acquittal of detenu in the above-said two cases resulting in non-application of minds of the detaining authority to the said fact has vitiated the requisite subjective satisfaction, rendering the impugned detention order invalid." 14. It is clear that the Hon'ble Apex Court has taken a view that consideration of acquittal of the detenu in some of the cases is a vital fact, which must be considered and if it is not so considered, it would indicate non-application of mind of the authority to the material facts thereby vitiating the requisite subjective satisfaction going into the impugned order of detention. This is what has happened in the present case. 15. Apart from what is stated above, there is also non-consideration of another important material, which is in the nature of bail orders passed in the crimes that were registered and pending against the petitioner at the relevant time. This is what has happened in the present case. 15. Apart from what is stated above, there is also non-consideration of another important material, which is in the nature of bail orders passed in the crimes that were registered and pending against the petitioner at the relevant time. The first impugned order, as rightly submitted by the learned Additional Public Prosecutor, does disclose that the authority was conscious of the bail orders having been passed on the date on which the detention order was made. But, it is not reflected, even cursorily, in the detention order that these bail orders were considered by the authority. Mere reference is not the only requirement of law, consideration is also a necessity. Of course, as per the well settled law, it is not necessary for the authority to mention details of the bail orders or give detailed reasons and what is required is some sort of reflection in the order as regards the bail orders. Here, to add to the difficulty of the respondents, it is the specific contention of the petitioner that the bail orders themselves were not placed before the detaining authority and that is why there is no mention about consideration of the bail orders by the detaining authority in the order dated 13.4.2018. This ground of non-consideration of the bail orders as well as acquittal orders, was specifically taken in the representation made by the petitioner. But, it is seen that no consideration has been given to the same by the authority. In the case of Rushikesh Tanaji Bhoite vs. State of Maharashtra and others, (2012) AIR SC 890, the Hon'ble Apex Court has expressed its displeasure as regards the manner in which the detention orders are passed when it said that non-placing and non-consideration of the material as vital as the bail order had vitiated the subjective satisfaction of the detaining authority. 16. Owing to the factors which we have considered at length and have seen as vitiating the subjective satisfaction made by the detaining authorities, we find that there is great substance in this petition and it deserves to be allowed. 17. The Criminal Writ Petition is allowed. The impugned orders, dated 13.4.2018 passed by respondent no.2 - District Magistrate/Collector, Akola so also by respondent no.1 - Secretary, Home Department (special), Mantralaya, Mumbai, on 08.5.2018, are hereby quashed and set aside. 17. The Criminal Writ Petition is allowed. The impugned orders, dated 13.4.2018 passed by respondent no.2 - District Magistrate/Collector, Akola so also by respondent no.1 - Secretary, Home Department (special), Mantralaya, Mumbai, on 08.5.2018, are hereby quashed and set aside. The petitioner be released forthwith if not required in any other crime. Rule is made absolute in these terms. The petition is disposed of.