Ibrahim @ Tipu @ Tipya S/O Sattar Maniyar v. The State of Maharashtra and Others

ORDER

¶1The application is rejected.

¶2Detenu namely Ibrahim @ Tipu @ Tipya Abdul Sattar be released forthwith.

¶3Copy of order be supplied to the concerned Police Officer."

¶9The sponsoring authority did not challenge the said order. Action under Section 151(3) was proposed mainly on the ground of registration of the last two crimes namely C.R. No.46/2023 and C.R. No.97/2023. Based on the very crimes, the petitioner has been detained under Section 3 of the M.P.D.A. Act. In our view, when the police authorities were unsuccessful in taking preventive measure against the petitioner under Section 110 of the Code of Criminal Procedure based on those two crimes registered against the petitioner, the very crimes ought not to have been relied on to detain the petitioner under Section 3 of the M.P.D.A. Act. Be that as it may.

¶10We have perused the F.I.R. of both the crimes (C.R. No.46/2023 and C.R. No.97/2023). Those pertain to offences punishable under Sections 354, 354(D), 294, 509 of the Indian Penal Code. The allegations therein indicate the petitioner would abuse and talk obscene with both the informants (females). True, in first of those two crimes the petitioner was arrested. He was :: 10 :: granted bail by the trial Court within a week of his arrest. So far as the petitioner's involvement in the similar crimes post his release, it appears, the investigating officer did not apply for cancellation of the petitioner's bail granted in C.R. No.46/2023. Admittedly, the offence under Section 354(D) of the Indian Penal Code is non-bailable. By recording reasons, the petitioner could have been arrested in subsequent crime. For the reasons best known, the sponsoring authority preferred not to arrest the petitioner. He issued the petitioner notice under Section 41-A of the Code of Criminal Procedure. The same suggests the sponsoring authority found it to be not a case fit even to arrest the petitioner for some time. Then how could it be the very crime being relied on by the very authority to put up the proposal for the petitioner's detention under Section 3 of the M.P.D.A. Act.

¶11Moreover, close reading of the F.I.Rs. of both the crimes would indicate that the offences were against individuals. Those crimes do not appear to have potential to cause disturbance to maintenance of public order. In case of Amina Begum Vs. State of Telangana (2023 INSE 788), it has been observed : "32. We may refer to the decision of the Constitution Bench of this Court in ram manohar Lohia v. State of bihar (1966) 1 SCR 709, where the difference between "law and order" and "public order" was lucidly expressed by Hon'ble M. Hidayatullah, J. (as the Chief Justice then was) :: 11 :: in the following words : "54. *** Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are.

¶55It will thus appear that just as 'public order' in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting 'security of State', law and order' also comprehends disorders of less gravity than those affecting 'public order'. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State." :: 12 ::

¶12So far as regards two in-camera statements are concerned, the first one pertains to the incident alleged to have taken place in the second week of June 2023. No date and time thereof has been given. The petitioner allegedly intercepted the said witness and robbed him of Rs.200/- at a knife point. In our view, the said statement is very vague. Had the date and time of the incident been given by the witness, the petitioner could have had an opportunity to defend the same. He could have made out a case of his defence of alibi, if any. The said in-camera statements being vague, ought not to have found the basis for the order of detention. True, the second in-camera statement gives the date of the incident when the petitioner robbed the said witness of Rs.500/-, in our view, relying on in-camera statement to uphold the order of detention is risky. More so, when the order of detention indicates non-subjective satisfaction by the detaining authority since the crimes wherein the petitioner was acquitted have been relied on. Furthermore, the action initiated against the petitioner under Section 110 of the Code of Criminal Procedure was turned down by the learned Magistrate, the same too was relied on. Moreover, the last two crimes which were committed by the petitioner some days before the order of detention was passed, indicate that those were against the individual victims. In one of those crimes, the petitioner was not even arrested. No proposal was put up for cancellation of bail granted in other of those two crimes. In this factual backdrop, :: 13 :: the order impugned herein needs to be interfered with. In the result, the petition succeeds. Hence the order : O R D E R

(i) The Criminal Writ Petition is allowed in terms of prayer clause (b).

(ii) The petitioner be set at liberty forthwith if not required in any other case. Rule made absolute in above terms. (SANJAY A. DESHMUKH, J.) (R.G. AVACHAT, J.) fmp/-

:: 1 :: IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1383 OF 2023 Ibrahim @ Tipu @ Tipya s/o Sattar Maniyar, Age 29 years, Occu. Labour, R/o Varadsim, Tal. Bhusawal, District Jalgaon … PETITIONER VERSUS 1) The State of Maharashtra through the Secretary, Home Department, Mantralaya, Mumbai – 400 032 2) The District Magistrate, Jalgaon, District Jalgaon. 3) The Superintendent of Police, Jalgaon, at S.P. Office, In front of Bus Stand, Taluka and District Jalgaon. 4) The Sub-Divisional Police Officer, Bhusawal Sub-Division, Bhusawal, Taluka Bhusawal, District Jalgaon (Copy to be served on P.P. Office, Bombay High Court, Bench at Aurangabad)… RESPONDENTS ....... Mr. N.R. Shaikh, Advocate holding for Mr. F.N. Shaikh, Advocate for petitioner Mr. A.R. Kale, A.P.P. for respondents ....… CORAM : R.G. AVACHAT AND SANJAY A. DESHMUKH, JJ. DATED : 28th November, 2023 2023:BHC-AUG:26186-DB :: 2 :: JUDGMENT (PER R.G. AVACHAT, J.) : Rule. Rule made returnable forthwith and taken up for final hearing at admission stage with the consent of learned counsel for the parties. 2. The challenge in this Writ Petition, under Article 226 of the Constitution of India, is to an order dated 17/8/2023, passed by the District Magistrate, Jalgaon (respondent No.2), detaining the petitioner under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black-Marketing of Essential Commodities Act, 1981 (M.P.D.A. Act for short). The order of detention has been confirmed by the State of Maharashtra in Department of Home (respondent No.1) vide order dated 25/8/2023. The period of detention is for 12 months. The detention is on the ground of the activities of the petitioner, being a dangerous person, were prejudicial to maintenance of public order. 3. The challenge is mainly on the ground of non- subjective satisfaction by the detaining authority. Learned counsel for the petitioner would submit that, although there were several crimes registered against the petitioner, he was acquitted in two of them. Those two crimes have also been relied on for passing of the :: 3 :: order impugned. The preventive action proposed against the petitioner in terms of Section 110 of the Code of Criminal Procedure was turned down by the Court of Judicial Magistrate, First Class. The said proceedings have also been relied on as one of the grounds to detain the petitioner under the M.P.D.A. Act. So far as regards two crimes registered in the immediate past of initiating proposal for prevention detention of the petitioner are concerned, those crimes were individual centric. Even in one of the two crimes, the investigating officer did not prefer to arrest the petitioner. He was served with a notice under Section 41-A of the Code of Criminal Procedure. So far as regards two in-camera statements are concerned, learned counsel would submit that, those are as vague as could be. Learned counsel placed reliance on the judgment of the Apex Court in case of Amina Begum Vs. State of Telangana (2023 INSE 788) to ultimately urge for allowing the Writ Petition. 4. The learned A.P.P. would, on the other hand, submit that, the subjective satisfaction of the detaining authority cannot be a matter of judicial review. According to him, sufficiency or insufficiency of the material relied on can also not be a subject of judicial review. According to him, in case of a conflict between private interest and public interest, the latter shall prevail. The learned A.P.P. first took us through the order of detention and then :: 4 :: read out the in-camera statements. It was also submitted that, a preventive action under Section 110 of the Code of Criminal Procedure was taken against the petitioner. Still there was no lull in his criminal activities. The petitioner has indulged in variety of criminal acts. All the police papers of the respective crimes