Nagpur :- Division Bench presided over Vinay Joshi and Vrushali Joshi JJ have quashed and set aside order of detention dated 20-07-2023 passed by Collector/District Magistrate, Yavatmal thereby detaining him under sec 12 (1) of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug offenders, Dangerous persons and Video Pirates Act, 1981.
Sanjay Kisanrao Kathote was detained under section 3 MPDA Act vide by Collector/District Magistrate, Yavatmal.
Sanjay Kisanrao Kathote was detained on the allegations that he is a dreaded criminal as a result of which people are scared to depose against him. There were 6 criminal cases registered against him and 2 persons had given in camera statement against him. It was alleged that his activities were disturbing the public order.
Adv Mir Nagman Ali appearing for Sanjay Kisanrao Kathote submitted that, the crimes which have been relied upon for reaching a conclusion for continuous activities of the petitioner prejudicial to the public order are registered under Sections 65 (c) (d) and (f) of the Maharashtra Prohibition Act, 1949, at Police Station Babhulgaon, dist-Yavatmal, in none of which the petitioner was arrested as he was intimated under Section 41(A) of the Code of the Criminal Procedure, 1973.
It was further submitted that, if the confidential statements are carefully considered, there is no satisfaction expressed by the detaining authority that, it was satisfied after interaction with witnesses or the authority registering those statements that, they were speaking the truth merely on the basis of verification report and copy of in-camera statement is vitiated as no offence of bootlegging is made out and therefore impugned order is required to be quashed and set aside.
While allowing the writ petition, Hon’ble Division Bench observed-
7. In all the four crimes, the raid was conducted and the Head Constable, who has conducted the raid has lodged the complaint against the detenue. The Investigating Officer did not think it fit to arrest the petitioner. The arrest for these crimes, which are cognizable was possible for the Investigation Officer by recording his requisite satisfaction under Section 41(1)(ii)(a) of the Code of Criminal Procedure which lays down that Police Officer may without an order of Magistrate and without a warrant arrest any person, if he is satisfied that such arrest is necessary for the reason inter-alia, of preventing such person from committing any further offence. Such being the nature of the power of Investigating Officer, he has not exercised in the present case, therefore it cannot be said that registration of four bootlegging crimes against the petitioner provided any reasonable material for detaining authority to arrive at their requisite satisfaction.
8. If the four bootlegging crimes registered against the petitioner are excluded from the material available for the detaining authority to reach their subjective satisfaction, what would remain would be the statement of two confidential witnesses. If we take a look at these statements, we find that it is very difficult to find the incidents mentioned therein had any live-link with the object sought to be achieved by passing the detention order. Both the confidential statements are about asking the detenue not to conduct said business of illicit liquor, as customers coming in their shops create nuisance and some of them urinate before their houses in presence of the ladies and therefore, when they asked the detenue, the detenue had given threats.
9. On going through the original confidential statements, it reveals that, it is verified by the Additional Superintendent of Police and SDPO, Darwha and it is seen by the Authority. Authority has not verified it which is the requirement. The subjective satisfaction required to be reached is about unwillingness of such person to come forward to give any statement. It is not specifically mentioned that the authority has satisfied from the statement that proposed detenue has created terror in public. The reproduction of the contents of those statements cannot show subjective satisfaction envisaged in law and subjective satisfaction has to be about unwillingness of such persons, to come forward and to give statements against the petitioner. Not a single word is there about this aspect in the impugned order. The record also do not show that any effort was made by the Police Commissioner to have a dialogue in this regard with the Assistant Commissioner of Police. The impugned order which is based upon such in-camera statement is therefore bad in law.
Adv Mir Nagman Ali appeared for Sanjay Kathote.
