Siddhant @ Siddharth Sachin Dhanedar v. The State of Maharashtra & Ors.

1. Heard Ms. Aisha Z. Ansari, learned Counsel for the Petitioner and Mr. Y. P. Yagnik, learned APP for the State.

2. The Petitioner who himself is a detenu has challenged the order bearing No.D.O.2024/MPDA/DET-08/CB-200 dated 19/06/2024 issued by the Respondent No.2, i.e. the Commissioner of Police, Nashik City. The Respondent No.2 exercising his powers conferred on him by the Government of Maharashtra under sub-section (2) of 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 (for short ‘MPDA Act’), had passed that order.

3. By a separate committal order dated 19/06/2024, the Petitioner was directed to be detained in Central Prison, Nashik Road, Nashik. The Petitioner was served with grounds of detention dated 19/06/2024. The documents corresponding to those grounds were served on him on 21/06/2024.

4. The affidavit-in-reply filed by the Deputy Secretary, Government of Maharashtra, Home Department, mentions further dates. In that affidavit, it is mentioned that the Petitioner was actually put under detention on 20/06/2024. The reference u/s 10 of the MPDA Act was made to the Advisory Board on 26/06/2024. The Advisory Board’s opinion is dated 26/07/2024 and the Advisory Board’s report was received by the Department on 29/07/2024. The report and the proceedings of Advisory Board was considered by the Additional Chief Secretary (Home) and after that, the order was confirmed on 08/08/2024.

5. The grounds of detention issued by the Respondent No.2 mention that he had received a proposal for detention of the Petitioner sent by Senior Police Inspector, Nashik Road Police Station, Nashik City through Deputy Commissioner of Police, Zone-2, Nashik City and Assistant Commissioner of Police, Nashik Road Division, Nashik City. The grounds mention various offences registered against him. The said paragraph No.3 mentioned in the grounds of detention lists six registered offences as C.R.No.314/2020, 331/2020, 16/2021, 150/2021 registered with Nashik Road Police Station and C.R.No.373/2020 and 155/2021 registered with Upnagar Police Station. All these offences were against the body and property; viz sections 324, 399, 307, 394, 395 of the Indian Penal Code as the main offences. In C.R.No.155 of 2021 of Upnagar Police Station, even the provisions of MCOCA were invoked. However, significantly it was specifically mentioned by the Respondent No.2 as follows: “They indicate your past background and I have considered it only to understand criminal background as well as your mentality, nature and method. The actions being done by you and its impact on the society were closely observed and understood. However, it is only referred to rather than relying on it. I am definitely relying on two offences mentioned in paragraph Nos.4(A), 4(A)(i) and 4(A)(ii) and two confidential statements mentioned in paragraph Nos.5(i) and (ii).”

6. One of these offences referred to and relied on was C.R.No.43/2024 registered at Nashik Road police station on 25/01/2024 u/s 307, 452, 427, 323, 504, 506, 34 of the Indian Penal Code r/w section 135 of the Maharashtra Police Act.

7. The second offence which was relied on, was C.R.No.33 of 2024 registered with Upnagar Police Station, dated 28/01/2024 u/s 4/25 of the Arms Act r/w 135 of the Maharashtra Police Act.

8. The two ‘in camera’ statements referred to in paragraph No.4 of the grounds were in respect of the incidents which had allegedly taken place in the 1st week of January 2024 and 4th week of December 2023. In both these incidents, the Petitioner and his associates had extorted money at different places from those witnesses whose statements were recorded ‘in camera’. They were described as witness A and witness B. The grounds of detention also described the incidents in the registered offences i.e. C.R.No.43/2024 at Nashik Road Police Station and C.R. No.33/2024 at Upnagar Police Station.

9. The learned counsel appearing for the Petitioner argued few other points besides the main points on which she laid emphasis. She submitted that she was concentrating on the following two points: The first point argued by the learned counsel was that the Respondent No.2 while passing the detention order had categorically stated in the grounds of detention that he was not relying on the other offences except C.R.No.43/2024 of Nashik Road Police Station and C.R.No.33/2024 of Upnagar Police Station. The list of other offences was only referred to and not relied on. She submitted that the specific averment is directly contrary to the clear statement in the grounds of detention mentioned in paragraph No.8.

10. Learned counsel’s second submission was in respect of the two registered offences on which the detention order was based on. She submitted that the dates mentioned in the grounds of detention themselves show that the offence registered at Upanagar Police Station on 28/01/2024 could not have occurred at all considering that he was already arrested, as per the grounds of detention, on 26/01/2024 in connection with the C.R.No.43/2024 of Nashik Road Police Station. She submitted that there is no explanation at all anywhere in the grounds of detention and the companion documents to even indicate that it was an error. She submitted that the clear averments in the grounds of detention show that the second registered offence on the face of it could not have been registered against the Petitioner at all and even otherwise it has created confusion in the mind of the Petitioner depriving him of his right to make earliest representation against the order of detention.

11. As far as these two points are concerned, learned APP Mr. Yagnik submitted that the earlier list of offences was referred to and not relied on by the Respondent No.2 and there was nothing wrong with that approach. He further submitted that as far as the second ground of attack is concerned, it could be a typographical error and therefore the Petitioner may not get benefit out of it.

12. We have considered these submissions. As rightly submitted by the learned counsel for the Petitioner, the Respondent No.2 has specifically and categorically mentioned in the grounds of detention that he had only referred to the earlier offences and not relied on it. But he has definitely relied on the two offences mentioned in paragraph No.4. In that context, paragraph No.8 of the grounds of detention is very important. It specifically mentions as follows: “8) On careful examination of the documents submitted before me, I have reached the conclusion that your criminal activities are adversely affecting public order. Seeing your previous history it is learnt that, whenever you are released on bail that time you have committed serious offences registered on 01/06/2021 vide CR. No. 150/2021 u/s. 143, 323, 147, 149, 506 of IPC r/w u/s. 142 of MP Act at Nashik road police station. In the said offence you were arrested on 15/06/2021 and Hon'ble Court granted you bail on 30/06/2021. You were externed by DCP Zone 2, Nashik City on 23/07/2021. After that on 05/09/2021, an offence was registered at Upnagar police station vide CR. No. 155/2021 u/s. 392, 34, 395, 120(b) of IPC r/w u/s. 4/25 of Arms Act r/w u/s. 142 of MP Act r/w u/s. 3(1)(ii), 3(2), 3(4) of MCOCA Act. In the said offence you were arrested on 06/09/2021. On 03/10/2023, Hon'ble Court released you on bail on certain terms and conditions. On 25/01/2024 in an offence vide CR. NO. 43/2024 u/s. 307, 452, 427, 323, 504, 506, 34 of IPC r/w u/s. 135 of MP Act was registered at Nashik road police station. In the said offence you were arrested on 26/01/2024. Whereas, you applied for criminal bail application vide no. 1178/2024 dated 28/05/2024 before Hon'ble Addl. Session Judge, Nashik. Hon'ble Court granted you bail on 30/05/2024 on certain terms and conditions of personal bond and security bond of Rs. 50,000/- along with one or two surety of like amount. But as you have not fulfilled the terms and conditions, yet you are in Central Prison, Nashik road, Nashik. Similarly, on 28/01/2024 in an offence vide CR. No. 33/2024 u/s. 4/25 of Arms Act was registered at Upnagar police station. On 28/01/2024 a notice was issued to you u/s. 41(A) of Cr. P.C. and was released on certain terms and conditions. Hence there is imminent possibility that you may be released on bail. Taking into consideration about your propensity towards criminality, there is 'imminent possibility' that you will revert to the similar activities prejudicial to the maintenance of public order in future. Hence, I am subjectively satisfied that it is essential to detain you to prevent from committing further serious offences which may create public disorder. Considering the propensity of your tendency and criminal activities, your participation in all the above mentioned offences is visible. I am assured that in future you will participate in the acts again that shall prove to be obstruction in maintaining the public order. Therefore, it is necessary to detain you for the period of one year under "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" (no. 55 1981) (No. LV of 1981) (Amendment 1996, 2009 and 2015), for preventing you from committing acts that cause obstruction in maintaining public order. Therefore, I have passed this detention order accordingly.

13. Thus, it can be seen that the Respondent No.2 has based his subjective satisfaction clearly on all the offences mentioned in paragraph No.8 which included C.R.No.150/2021 registered at Nashik Road Police Station and C.R.No.155/2021 registered at Upanagar Police Station, whereas the Respondent No.2 in paragraph No.3 of the grounds of detention had stated he was not relying on those offences. This is a directly contrary stand expressed by the Respondent No.2 to base his subjective satisfaction. This shows the non-application of mind as far as both these contrary statements are concerned and also creates confusion depriving the Petitioner from making effective representation against the order of detention. No documents and other particulars regarding these two offences are furnished to the Petitioner. Therefore, on this ground, the detention order is liable to be set aside.

14. The second point argued by the learned counsel for the Petitioner is also important. The grounds of detention, as far as C.R.No.43/2024 registered at Nashik Road Police Station is concerned, mention in paragraph No.4(A)(i) and 4(A)(ii) that the Petitioner was arrested on 26/01/2024 in connection with C.R.No.43/2024 of Nashik Road Police Station. On 27/01/2024 he was produced before the learned Judicial Magistrate First Class, Court No.2, Nashik Road, Nashik. He was remanded to police custody till 29/01/2024. After that, he was granted magisterial custody till 10/02/2024. The charge-sheet was filed on 23/04/2024. The Petitioner applied for bail and his bail application was allowed vide the order dated 30/05/2024. But he did not avail of that bail order. In connection with C.R.No.33/2024 registered at 28/01/2024 at Upnagar Police Station, it is mentioned that on 28/01/2024 at 08.10 p.m. API Sachin Chaudhari and his team received secret information that the Petitioner was present near Nisarg Upchaar Kendra, Jai Bhavani Road, Nashik possessing a Koyta. The police party went there and confronted the Petitioner at 08.50 p.m. on 28/01/2024 and then the offence was registered.

15. Considering this, it is quite clear that on that day i.e. on 28/01/2014; according to the grounds of detention itself, the Petitioner was in custody in connection with C.R.No.43/2024 of Nasik Road Police Station. Therefore, on the face of it, the allegation in respect of the C.R. No.33/2024 of Upnagar police station, should have been tested by the Respondent No.2 from that angle. But it was not done. This shows non-application of mind and if it was an error in mentioning the dates, it was nowhere clarified in the detention order, grounds of detention or any other documents. Therefore, again this has deprived the Petitioner from making effective representation challenging the order or detention. When the detention order was specifically based on two registered offences and the incidents were specifically described in the grounds of detention, it was all the more necessary for the Respondent No.2 to mention the dates and to describe those incidents very carefully.