Preventive detention – Activities of detenu were harmful to maintenance of public order – Non-application of mind in passing detention order – Order set aside.

BOMBAY HIGH COURT

(DB)

Before:- S.S. Shinde and N.B. Suryawanshi, JJ.

Criminal Writ Petition No. 5396 Of 2019. D/d. 19.12.2019.

Ramalu Kankayya Bhandari – Petitioner

Versus

The Commissioner of Police, Solapur and others – Respondents

For the Petitioner :- Mr. Udaynath Tripathi i/b Ms. Jayshree Tripathi, Advocate.

For the Respondents-State :- Mr. J.P. Yagnik, APP.

ndagale v. J. F. Riberio , 1982 CRI. L.J. 1288JUDGMENT

N.B. Suryawanshi, J.(Oral) – This Petition takes exception to the order of detention of the petitioner dated 13th August, 2019 passed by the Commissioner of Police, Solapur, under 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 (for short “the said Act”).

2. Rule was granted in this matter on 6th November, 2019. Rule is made returnable and with the consent of both the parties, the matter is heard finally.

3. Heard the learned counsel for the petitioner-detenu and the learned APP. Perused the Petition, its annexures and the record made available by the the learned APP.

4. The learned counsel for the petitioner-detenu has challenged the impugned detention order on the following grounds :-

5. The learned counsel for the petitioner-detenu urged that there was no material on record to show that the activities of the petitioner-detenu were harmful to the maintenance of public order. There is non-application of mind on the part of the detaining authority in passing the impugned detention order, particularly when the petitioner-detenu can be dealt with under general law. The learned counsel for the petitioner-detenu placed reliance on the following judgments;

The learned counsel for the petitioner-detenu lastly relied upon the ratio in the reported judgment of this Court [Coram : S.S. Shinde & N.B. Suryawanshi, JJ.] in Dattatray Baswant Jagtap v. The Commissioner of Police, Solapur & Ors. in Criminal Writ Petition No.3427 of 2019.

6. Per contra, the learned APP would support the detention order. He has taken us through the detention order and the grounds of detention and the material placed on record in support of the same, the relevant paragraphs of the affidavit-in-reply filed by the respective respondents, viz., the Commissioner of Police, the Secretary, Advisory Board, Home Department (Special), State of Maharashtra and the Deputy Secretary (In-charge), Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai and strenuously urged that the detention order is passed after recording subjective satisfaction by the detaining authority and there is sufficient material on record to justify the detention order. Hence, the detention order should not be interfered with. He has placed reliance on the following authorities :-

7. On going through the record, the detaining authority has relied upon the fact of registration of nine offences against the petitioner-detenu under section 65(e) of the Maharashtra Prohibition Act, 1949 while passing the detention order. On nine occasions the petitioner-detenu was found in possession of Taddi, samples of which were taken and were forwarded to the Assistant Director of Regional Forensic Science Laboratory, Pune. The results of the samples indicated that ‘sample contains 02-03% V/V of Ethyl alcohol in water and 1 – 2 m. g.% W/V of Chloral hydrate’. An opinion was sought from the Department of Forensic Medicine and Toxicology, Dr. V.M. Government Medical College, Solapur as to whether said Ethyl alcohol and Chloral hydrate is injurious to human body. The opinion was received stating that ‘Consumption of Ethyl alcohol in excessive amount is harmful to human body, which cause death and Chloral Hydrate if used for adulteration of alcohol or when mixed with alcohol in any amount (Whether trace or large) for consumption and when such drink is consumed by an individual is deleterious and produces harmful effect on body and is toxic/lethal when consumed in fatal dose/amount’.

8. It is clear from the record that there is no material before the detaining authority to come to a conclusion that the activities of the petitioner-detenu of dealing with Taddi have created disturbance to public order and/or created terror among the public. Mere registration of nine prohibition cases against the petitioner-detenu by itself does not cause disturbance to the public order. The petitioner- detenu is being dealt with under general law and if he is found guilty, he would be convicted and will be given appropriate sentence. However, registration of nine prohibition cases against the petitioner-detenu does not warrant invocation of stringent detention action against the petitioner-detenu. In view of the fact that there is no material on record before the detaining authority to come to a conclusion that the activities of the petitioner-detenu have caused harm, danger, alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health, as per the explanation to Section 3(4) of the M.P.D.A. Act, the impugned detention order is vitiated. We draw support for the aforesaid observation from the decision of this Court rendered in the similar facts in Criminal Writ Petition No.3427 of 2019, wherein it was held as follows :-

The ratio in the said authority is squarely applicable to the facts of the present case. The detaining authority has failed to substantiate the said ground, even in the affidavit filed to oppose the present Petition.

The facts of the present case are similar to the facts in the abovementioned authority.

Since the above observations are squarely applicable in the facts of the present case, the Petition deserves to be allowed on this count alone.

9. In Rekha v. State of Tamil Nadu (supra), the Hon’ble Supreme Court has held that “if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (IPC or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to”. It is further held that “It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year’s imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive? Further, in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a “jurisdiction of suspicion”. The detaining authority passes the order of detention on subjective satisfaction. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution permits preventive detention, it cannot be held illegal. But the power of preventive detention must be confined to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous and historical struggle, will become nugatory. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is mandatory and vital. Whenever an order under a preventive detention law is challenged, one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal.” In view of the ratio laid down in this case, the impugned order can not be sustained.

10. The learned APP placed reliance in the case of Ram Ranjan Chatterjee (supra), in which the Hon’ble Supreme Court explained the difference between the public order and the law and order in these words – ‘Public order is one of degree and extent of the reach of the act in question on society’. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. If the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only. These concentric concepts of ‘law and order’ and ‘public order’ may have a common ‘epicentre’, but it is the length, magnitude and intensity of the terrorwave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting ‘public order’ from that concerning ‘law and order’.

If the above ratio is applied to the facts of the present case, the relevant material showing the activities of the petitioner-detenu were prejudicial to the maintenance of public order are conspicuously absent in the record. Hence, in our considered view, the impugned detention order is unsustainable.

11. In the case of Santosh Kashinath Kadam (supra) relied upon by the learned APP, this Court upheld the detention order in the facts of that case. It was observed that the detaining authority has rightly recorded its subjective satisfaction while passing the detention order. We have already observed in the present case that there is no material on record, on the basis of which the detaining authority could have come to the conclusion that the activities of the petitioner-detenu are prejudicial to the maintenance of public order. Hence, this case is of no help to the State.

12. In Vijay Narain Singh (supra) relied upon by the learned APP, the Hon’ble Supreme Court explained the meaning of ‘habitually’ means ‘repeatedly’ or ‘persistently’. In that case, the Hon’ble Supreme Court came to the conclusion that the petitioner cannot be called as ‘anti-social element’ as defined by section 2(d) of the Bihar Control of Crimes Act, 1981. Thus, this authority does not help the case of learned APP.

13. Taking into consideration the facts of the case and the ratio laid down in the various authorities discussed hereinabove, we are of the considered view that there was no material before the detaining authority to show that the activities of the petitioner-detenu were prejudicial to the maintenance of public order. The subjective satisfaction recorded by the detaining authority is therefore vitiated and the impugned detention order is unsustainable. Hence, the following order :-

ORDER

Criminal Writ Petition is allowed in terms of prayer clause (b). The Petitioner/Detenu shall be released forthwith, if not required in any other case. Rule made absolute in the above terms with no order as to costs.

Petition allowed.

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