N. J. Jamadar, J
1. Rule. Rule made returnable forthwith, and with the consent of the Counsels for the parties, heard finally.
2. The petitioner who has been detained under the provisions of Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug Offenders and Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black-marketing of Essential
Commodities Act, 1981 (“the MPDA Actâ€), by the order dated 24th February, 2021, passed by the Commissioner of Police, Pimpri Chinchwad,
has preferred this petition assailing the legality and validity of the said detention order.
3. The background facts leading to this petition can be stated, in brief, as under:
(a) A proposal was initiated to take action against the petitioner under Section 3 of the MPDA Act at the instance of Wakad Police Station, Pune. It
was alleged that the criminal activities of the petitioner had created a reign of terror in the locality where the petitioner ordinarily resided. The
petitioner became a perpetual danger to the lives and properties of the people residing and carrying out their daily activities and vocation in the
jurisdiction of the Chatushrungi Police Station, Pune City and Wakad Police Station, Pimpri Chinchwad Commissionerate. The petitioner and his
accomplices roamed around armed with deadly weapons and committed offences of rioting, attempt to murder, murder and criminal trespass etc.
(b) Apart from the offences which were registered against the petitioner during the period 2013 â€" 2018 and preventive action under Section 55 of
the Maharashtra Police Act, 1951, in the year 2016, the detaining authority took note of two predicate offences. First, CR No.1190/2020 registered
with Chatushrungi Police Station against the petitioner and his associates for the offences punishable under Sections 447, 427, 506 read with Section
34 of the Indian Penal Code, 1860 (“the Penal Codeâ€), on 29th August, 2020. Second, CR No.710/2020 registered with Wakad Police station for
the offences punishable under Sections 452, 324, 504, 506(II) of the Penal Code and Section 7 of the Criminal Law Amendment Act, Section 3(25) of
the Arms Act, 1959 and 37(1) read with Section 135 of the Maharashtra Police Act, 1951, on 5th October, 2020. The detaining authority noted that on
account of the fear of reprisal victims and the witnesses were not willing to come forward and, therefore, statements of two witnesses were recorded
in-camera. The confidential witnesses, whose statements were recorded on 15th January, 2020, related the instances which had occurred on 17th
December, 2020 and 19th December, 2020, respectively, and which had the propensity to disturb public order.
(c) The detaining authority thus recorded a subjective satisfaction that the petitioner was a dangerous person within the meaning of Section 2(b-1) of
the Act, 1981. The petitioner had unleashed a reign of terror and become a perpetual danger to the society at large. People in the vicinity were
experiencing a sense of insecurity. Therefore, it was necessary to detain the petitioner by invoking the provisions contained in Section 3(2) of the Act,
1981 to prevent the petitioner from acting any manner prejudicial to the maintenance of public order, in future. Thus, the detaining authority passed the
impugned order and served the grounds of detention on the petitioner on 24th February, 2021. The State Government approved the order of detention
passed by respondent no.1, by order dated 3rd March, 2021.
4. The petitioner takes exception to the detention order on multi-fold grounds. First and foremost, the impugned order suffers from vice of patent non-
application of mind. No element of the activities attributed to the petitioner being subversive of public order is made out. At best, the activities
attributed to the petitioner can be said to be in the realm of law and order. Failure to properly comprehend the distinction between breach of law and
order and disturbance of public order vitiates the detention. Secondly, there is an inordinate delay at various stages in passing the impugned detention
order. Unexplained delay renders the detention order legally unsustainable. Thirdly, the failure to place the copies of relevant and vital documents
before the detaining authority and furnish copies thereof to the petitioner impairs the legality of the detention order as the detaining authority could not
weigh the relevant material to arrive at the subjective satisfaction. Fourthly, there is no proper verification of the truthfulness and genuineness of the
statements of confidential witnesses resulting in impaired subjective satisfaction.
5. Affidavits-in-reply are filed by respondent no.1, Commissioner of Police, Pimpri-Chinchwad, the detaining authority, and on behalf of respondent
no.2 State.
6. The respondents have refuted that the detention order is vitiated on account of non-application of mind. According to respondents there is no delay
in processing the proposal for detention and passing the detention order. The time consumed in processing the proposal has been properly accounted
for. Nor the order of detention is vitiated on account of improper verification of the statements of the confidential witnesses. All the material
documents were placed before the detaining authority and furnished to the petitioner along with the grounds of detention and thus the petitioner was
not prejudiced in making an effective representation.
7. In the backdrop of the aforesaid facts and pleadings, we have heard Mr. Rizwan Merchant, the learned Counsel for the petitioner and Ms. Mhatre,
the learned APP for the State, at length. With the assistance of the learned Counsels for the parties we have perused the material on record including
the original record of the detention proceedings, tendered for the perusal of the Court by the learned APP.
8. In the wake of aforesaid pleadings and submissions across the bar, the challenge to the detention order can be conveniently evaluated on the
following grounds:
(i) Activities of the petitioner allegedly not being prejudicial to the maintenance of the public order.
(ii) Delay in passing the detention order, at various stages.
(iii) Failure to place before the detaining authority the copy of the bail order dated 19th October, 2020 in CR No.701/2020, the relied upon crime.
(iv) Alleged failure on the part of detaining authority in recording satisfaction about the truthfulness and correctness of the statements of confidential
witnesses.
9. On the first count, Mr. Merchant, the learned Counsel for the petitioner, strenuously urged that none of the offences taken into account by
respondent no.1 to pass the impugned order of detention reflects activities prejudicial to the maintenance of public order. It was urged that CR
No.1190/2020 was lodged in respect of a dispute over the entitlement to possess an immovable property. Even if the narration of facts therein is taken
at its face value, no element of prejudice to maintenance of public order can be discerned therefrom. Even the presence of the petitioner at the place
of occurrence can hardly be said to have been made out. Whereas, the occurrence reported in CR No.701/2020 took place within the four walls of the
house of the first informant. By no stretch of imagination can it be said that the said occurrence had the potentiality to disturb the public order.
Moreover, there was an inordinate delay of about two months in lodging the report in respect of the said occurrence. In substance, according to Mr.
Merchant, none of the predicate offences indicated that the petitioner indulged in activities subversive of public order.
10. In order to properly appreciate the aforesaid submissions, it may be apposite to note the narration of facts in respect of above numbered crimes.
11. CR No.1190/2020 was registered at the instance of Mr. Nitin Sanghani. The substance of the allegation is that the first informant is the owner of
Plot No.6, situated at Survey No.261/2 Baner. On 20th August, 2020, the owner of the adjoining plot informed him that some persons had broken open
the gate of the compound to the said plot and levelled the ground. The first informant went to the said spot. It transpired that somebody had broken
open the chain lock to the steel gate and levelled the plot and replaced the lock. It further transpired that the petitioner and his associates were the
perpetrators of the said crime. Hence, the crime was registered for the offences punishable under Sections 427, 420, 506 read with 34 of the Penal
Code.
12. The narration of facts in respect of CR No.701/2020 indicates that the first informant therein namely Santosh Mohite alleged that the petitioner
and his associates had barged into his house, abused and manhandled him on 13th August, 2020. The petitioner pointed pistol at the chest of the first
informant and threatened the first informant to deliver the ancestral property at Maan village and withdraw the proceedings initiated against M/s.
Khandekar Construction Pvt. Ltd. lest the first informant and his progeny would be killed. The first informant further claimed that on account of the
fear of reprisal he did not narrate the incident to anybody and after few days addressed a letter to the Home Department, Government of
Maharashtra. Upon transmission of the said letter to Wakad Police; post inquiry, crime was registered at CR No.701/2020 for the aforesaid offences.
13. Before we proceed to appreciate the issue as to whether the acts and conduct attributed to the petitioner in the aforesaid offences fall within the
ambit of “disturbance to public orderâ€, we deem it appropriate to notice, at this stage itself, the gist of the confidential statement of witnesses
‘A’ and ‘B’, on which emphasis was laid by Mrs. Mhatre, the learned APP to sustain the impugned order.
14. Witness ‘A’ stated that on 17th December, 2020, the hirelings of the petitioner asked him to see the petitioner who was sitting in a car.
When the witness approached the car, the petitioner pulled him inside the car and pointed a pistol at the witness and threatened him not to deal in the
properties in which the petitioner was interested, lest he would be killed.
15. Witness ‘B’ stated that on 9th December, 2020, the petitioner intercepted his car and threatened the witness not to provide the contract
labourers at the sites where the petitioner was intending to supply the labourers. When the witness remonstrated, one of the hirelings of the petitioner
abused and assaulted him and threatened to eliminate him. The witness raised alarm but due to terror created by the petitioner nobody came to his
rescue.
16. Apparently, the basis of the aforesaid two offences and two in-camera statements of witnesses the detaining authority has arrived at the
satisfaction that the petitioner is a dangerous person and the petitioner indulged in activities which were prejudicial to the maintenance of public order.
17. Upon careful perusal of aforesaid narration of facts, we find considerable substance in the submission of Mr. Merchant that none of the two
crimes, relied upon by the detaining authority, justify an inference that the activities attributed to the petitioner therein have had the propensity to
disturb the public order.
18. To start with, we may note with benefit, the concept of “public order†generally and its particular connotation under the MPDA Act. The
distinction between the concepts of “public order†and “law and order†is well recognised. Public order is something more than ordinary
maintenance of law and order. A proper test to distinguish between “law and order†and “public order†is whether the complained acts led to
disturbance of the ordinary tempo of life of the community so as to amount a disturbance of the public order or it merely affected an individual leaving
the tranquility of society undisturbed. It is, therefore, said that the essential distinction between the concepts of “public order†and “law and
order†is not in the nature or quality of the act but in the degree, potentiality and extent of its reach upon society. The given act by itself may not be
determinant of its own gravity. It is the propensity and potentiality of the act of disturbing the even tempo of life of the community that renders it
prejudicial to the maintenance of public order.
19. It would be imperative to note that under section 2(a) of the MPDA Act, acting in any manner prejudicial to the maintenance of public order, in the
case of “dangerous personâ€, means, when he is engaged or is making preparation for engaging, in any of his activities as a dangerous person,
which affect adversely, or are likely to affect adversely, the maintenance of public order. Clause b(i) of section 2 defines a “dangerous person†to
mean a person, who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any
of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the
Arms Act, 1959.
20. From a conjoint reading of the provisions contained in Clause a(iv) and (b-1) of section 2 and 3(1) of the MPDA Act, it becomes abundantly clear
that when action of preventive detention is initiated against a person, on the premise that he is a dangerous person, twin conditions are required to be
satisfied. One, there must be material to justify the designation of such person as dangerous person. Two, such dangerous person should have indulged
in activities which effect adversely or likely to affect adversely the maintenance of public order. When these two conditions are fulfilled the detaining
authority shall further be satisfied that it is necessary to detain such dangerous person to prevent him from acting in any manner prejudicial to the
maintenance of public order.
21. A profitable reference, in this context, can be made to a judgment of the Supreme Court in the case of Pushkar Mukherjee vs. State of West
Bengal AIR 1970 Supreme Court 852. wherein the import of the term public order was illuminatingly postulated:
“8. …. Does the expression “public order†take in every kind of infraction of order or only some categories thereof. It is manifest that every
act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or
in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities
under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The
contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In
this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure
the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a
secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the
Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act.â€
22. A useful reference can also be made to the Judgment of the Supreme Court in the case of Mustakmiya Jabbarmiya Shaikh Vs. M. M. Mehta,
Commissioner of Police & Ors. (1995) 3 SCC 237. In the said case, in the context of provisions contained in Section 3 of the MPDA Act, the
Supreme Court illuminatingly postulated the conditions which are required to be satisfied to pass a valid detention order under Section 3 of the MPDA
Act and the distinction between “law and order†and “public order†in the following words:
“9........ It, therefore, becomes necessary to determine whether besides the person being a “dangerous person†his alleged activities fall within
the ambit of the expression “public orderâ€. A distinction has to be drawn between law and order and maintenance of public order because most
often the two expressions are confused and detention orders are passed by the authorities concerned in respect of the activities of a person which
exclusively fall within the domain of law and order and which have nothing to do with the maintenance of public order. In this connection it maybe
stated that in order to bring the activities of a person within the expression of “acting in any manner prejudicial to the maintenance of public
orderâ€, the fall out and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law
to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance
and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity
amounts only to a breach of “law and orderâ€or it amounts to “public orderâ€. If the activity falls within the category of disturbance of
“public order†then it becomes essential to treat such a criminal and deal with him differently than an ordinary criminal under the law as his
activities would fall beyond the frontiers of law and order,disturbing the even tempo of life of the community of the specified locality. In the case of
Arun Ghosh V. State of W.B.(1970) 1 SCC 98 this Court had an occasion to deal with the distinction between law and order and public order.
Hidayatullah, C.J. (as he then was), speaking for the Court observed that public order would embrace more of the community than law and order.
Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to
be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public
tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amount
only to a breach of law and order. It has been further observed that the implications of public order are deeper and it affects the even tempo of life
and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further
breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from
another but in its potentiality it may be very different. Again in the case of Piyush Kantilal Mehta v. Commissioner of Police, 1989 Supp (1) SCC 322
this Court took the view that in order that an activity may be said to affect adversely the maintenance of public order, there must be material to show
that there has been a feeling of insecurity among the general public. If any act of a person creates panic or fear in the minds of the members of the
public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public
order. The commission of an offence will not necessarily come within the purview of public order which can be dealt with under ordinary general law
of the landâ€
23. On the aforesaid touchstone, reverting to the facts of the case, it becomes evident that the predicate offences registered against the petitioner
arose out of peculiar facts. CR No.701/2020, registered at the instance of Santosh Mohite, had its genesis in the alleged dispute over the ancestral
property situated at village Maan. The narration of facts indicates that the alleged offences were committed inside the house of the first informant.
We do not intend, far a moment, to discount the gravity of the alleged offences. What is of critical salience is the fact that the alleged acts of the
petitioner, within the four walls of the house of the first informant, cannot be said to possess the element of propensity to disturb even tempo of life of
the society. It’s reach on the society, in the peculiar circumstances, was minimal. As indicated above, the act by itself may not be determinant of
its potentiality to disturb public order. It is the impact of the act on the society at large. We find it rather difficult to persuade ourselves to hold that the
incident which had occurred in the precincts of the house of the first informant, over the ancestral property, would disturb the tempo of life of ordinary
member of the society.
24. The activities attributed to the petitioner in CR No.1190/2020, are required to be appreciated in the backdrop of the fact that the dispute revolved
around the alleged attempts of encroaching over the open land of the first informant. Neither the first informant claimed that he had seen the petitioner
at the scene of occurrence. Nor there are allegations to the effect that the petitioner, while allegedly establishing unlawful possession over the plot of
the first informant indulged in activities which were likely to affect adversely maintenance of public order. Both the predicate offences, in our view, do
not shed light on the activities, which had the propensity to cause or calculated to cause harm, danger or alarm or a feeling of insecurity among the
general public.
25. The incident deposed to by the witnesses whose statements were recorded in-camera also proceed on the same pattern of administering threats to
advance the commercial interest of the petitioner. Confidential statement of witness ‘A’ again refers to the incident which took place inside the
car. Witness ‘A’ does not refer to the impact of the alleged incident on the members of the public, even remotely. Witness ‘B’, did
mention that despite his raising alarm nobody came to his rescue and people ran away. However, in the totality of the circumstances, where the
predicate offences, do not make out a case of the acts and conduct of the petitioner being prejudicial to the maintenance of public order, it would be
rather hazardous to place implicit reliance on a solitary assertion of one of the two witnesses whose statements have recorded in-camera to draw an
inference about the activities being prejudicial to the maintenance of public order.
26. The conspectus of the aforesaid consideration is that the subjective satisfaction arrived at by the detaining authority that the petitioner is dangerous
person within the meaning of Section 2(3)(1) of the Act, 1981 and the activities of the petitioner were adversely affecting the maintenance of public
order cannot be said to be based on sustainable grounds. Thus the subjective satisfaction is vitiated for failure to reckon the distinction between the
concepts of breach of law and order and disturbance of public order. On this substantive ground alone, the impugned order deserves to be quashed
and set aside.
27. Nonetheless, we propose to briefly deal with the rest of the grounds urged on behalf of the petitioner. Mr. Merchant submitted that the order of
detention is vitiated on account of inordinate and unexplained delay. There is a delay of about six months and 15 days in passing the detention order if
computed from the date of commission of the first offence on 13th August, 2020. If the period is computed from the registration of the last FIR i.e. 5th
October, 2020, the delay comes to four months and eight days. There is a delay of two months and nine days in passing the impugned order if
computed from the last incident reported by the confidential witnesses, dated 17th December, 2020. The impugned order came to be passed after 40
days of the recording of the in-camera statement of the witnesses i.e. 15th January, 2021. This delay at various stages, according to Mr. Merchant,
snapped the live link between the alleged prejudicial incidents and object sought to be achieved by the impugned order. Mr. Merchant further
submitted that the delay in processing the proposal of detention has also not been properly accounted for. This delay also vitiates the impugned order.
28. In order to lend support to the aforesaid submission Mr. Merchant placed reliance on the judgments of this Court in the cases of Mr. Nikhil Rajput
vs. The District Magistrate, Jalgaon and others, Cri.WP/505/2021. Sultan Yakub Qureshi vs. The Commissioner of Police, Solapur and others 4
Cri.WP/610/2021. Salman vs. The State of Maharashtra through its Secretary, Home 2020 SCC Online Bom 858. and the judgment of the Supreme
Court in the case of Pradeep Nilkanth Paturkar vs. S. Ramamurthi 1993 SCC (Cri) 392.
29. Per contra, Mrs. Mhatre, the learned APP stoutly submitted that the period is to be computed from the date of recording of the last in-camera
statement of the witnesses. The endeavour of the petitioner to take advantage of the time which has elapsed since the date of the first incident, in
respect of which crime is registered, was stated to be unworthy of countenance. To bolster up this submission, Mrs. Mhatre placed reliance on the
judgments of this Court in the cases of Nagnarayan Saryu Singh vs. A. N. Roy, State of Maharashtra, Superintendent, Nashik ALL MR (Cri) 2017.
and Omkar Chandrashekhar Kapare vs. Commissioner of Police, Pune City, State of Maharashtra, Superintendent Yerwada Central Prison, Pune,
Secretary Advisory Board for MPDA Act 8 2019 Law Suit (Bom) 99.
30. The aspect of delay in processing the proposal and passing the detention order invariably turns upon the facts of the given case. Mere delay may
not be fatal. However, if the delay is unexplained and has the tendency to snap the live link between the incidents and the resultant action, delay
impairs the action of preventative detention. In the case at hand, one aspect of delay, which starkly stands out and vitiates the detention order is the
time-lag between the incident reported in the predicate offences and the recording of the statements of the confidential witnesses. The incidents
occurred on 20th August, 2020 and 13th August, 2021, respectively. The first information report in CR No.701/2020 was recorded on 5th October,
2020. The in-camera statements of witnesses were, however, recorded on 15th January, 2021. There is no plausible explanation for not initiating the
action and recording the statements of the witnesses, in-camera, during the intervening period, if the authorities were of the view that the petitioner
was repetitively indulging in activities prejudicial to the maintenance of public order.
31. The third count of challenge is rested in failure to place before the detaining authority the copy of the bail order dated 19th October, 2020 in CR
No.701/2020, the predicate offence, and the consequent vitiation of the subjective satisfaction arrived at by the detaining authority. Mr. Merchant
urged with a degree of vehemence that the failure to consider the reasons ascribed in the bail order in aforesaid CR No.701/2020 resulted in impaired
subjective satisfaction. Mrs. Mhatre, joined the issue by canvassing a submission that it is not peremptory that in every matter the bail application and
order passed therein 20/24 must be placed before the detaining authority. A strong reliance was placed on the judgment of the Supreme Court in the
case of Sunil Jain vs. Union of India (2006) 3 SCC 321. and a judgment of this Court in the case of Sallauddin Imamuddin Ansari and another vs.
State of Maharashtra and others. (2020) All MR (Cri) 1641.
32. The question as to whether the satisfaction arrived at by the detaining authority is vitiated on account of the failure to consider the bail application
and order passed thereon, in the predicate offence, is again rooted in facts. No rule of universal application can be laid down. If in the given facts of
the case, the averments in the bail application and the reasons assigned in the order granting or refusing to grant bail and the conditions imposed by the
jurisdictional Court, in the event bail is granted, bear upon the question as to whether the acts and conducts attributed to the proposed detainee were
prejudicial to the maintenance of public order and imperativeness of passing the detention order, then failure to consider such application and order
may amount to non-consideration of a relevant material. It would be suffice to make reference to the judgment of the Supreme Court in the case of K.
Vardhraj vs. State of T.N. and another (2002) 6 SCC 735. wherein after adverting to the judgments in the case of M. Ahamedkutty vs. Union of India
and another (1990) 2 SCC 1. and Abdul Sattar Ibrahim Manik vs. Union of India and others, (1992) 1 SCC 1. the Supreme Court held that it is clear
that placing of application for bail and the order made therein are not always mandatory and such requirement would depend upon the fact of each
case.
33. Reverting to the facts of the case at hand, indisputably the bail order dated 19th October, 2020 passed by the learned Sessions Judge, Pune, in CR
No.701/2020 was not placed before the detaining authority. The learned Sessions Judge, while exercising the discretion to release the petitioner â€
applicant on bail had observed that there was huge delay in lodging the first information report. It is true that the learned Sessions Judge also
considered the facts that substantial investigation had been completed and the offences were triable by the Court of learned Magistrate. However, the
fact remains that the delay in lodging the first information report was prima facie held to be huge one. If this factor is considered in conjunction with
the irrefutable fact that there was a delay of about two months in lodging the first information report in respect of the incident dated 13th August,
2020, a legitimate inference can be drawn that the aspect of delay highlighted by the learned Sessions Judge may have weighted with the detaining
authority, had the copy of the bail order was placed before and considered by the detaining authority. The submission on behalf of the petitioner that
the failure to consider the reasons assigned by the learned Sessions Judge while releasing the petitioner on bail in the predicate offence, thus cannot be
said to be without substance.
34. The last ground of challenge that the authority did not record subjective satisfaction that the incidents narrated by the confidential witnesses were
true and genuine, does not appear to be well grounded in facts. We have perused the endorsements made by the competent authority to verify the
truthfulness and genuineness of those incidents. The authority claimed to have personally interacted with the witnesses and also visited the places of
those occurrence related to by the witnesses. We do not find any infirmity in the verification of the statements of the confidential witnesses.
35. The upshot of aforesaid consideration and reasons is that the order of detention deserves to be quashed and set aside.
36. Hence, the following order
ORDER:
(i) The petition stands allowed.
(ii) The impugned order of detention dated 24th February, 2021, passed by the Commissioner of Police, Pimpri Chinchwad, stands quashed and set
aside.
(iii) The petitioner â€" detenu Mr. Anil Tukaram Mohite, be set at liberty forthwith, if not required to be detained in any other case.
Rule made absolute in aforesaid terms.
