Bombay High Court
Siddhesh Bala Mhaskar @ Siddhu … vs The Commissioner Of Police And Ors on 4 March, 2020
Bench: S.S. Shinde
1/12 Judgment Cr.WP.182.2020.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 182 OF 2020Siddhesh Bala Mhaskar @ }Siddhu Abhange, Age- Adult }Residing at 002, Vina Building }Lokpuram, Vasant Nagar }Thane (West). }…PETITIONER / (Detenu) VERSUS1. The Commissioner of Police } Thane. }2. The State of Maharashtra } (Through Addl. Chief Secretary } to Government of Maharashtra } Mantralaya, Home Department } Mantralaya, Mumbai }3. The Superintendent } Nashik Road Central Prison } Nashik. }4. The Secretary, } Hon’ble Advisory Board } Constituted under Section 9 of } M.P.D.A. Act, 1981, Mantralaya } Mumbai – 400 032. }…RESPONDENTS___________________________________________________________________APPEARANCES-For Petitioner- Mr. Udaynath Tripathi i/b. Ms. Jayshree Tripathi.APP for State- Mr. J P Yagnik.___________________________________________________________________ CORAM : S. S. SHINDE & V. G. BISHT, JJ. RESERVED ON : 27/02/2020. PRONOUNCED ON : 04/ 03/2020.Bhagyawant Punde ::: Uploaded on – 04/03/2020 ::: Downloaded on – 05/03/2020 06:54:51 ::: 2/12 Judgment Cr.WP.182.2020.docJUDGMENT (PER S. S. SHINDE, J.)
1. Rule. Rule made returnable forthwith and heard with theconsent of learned counsel for the parties.

2. The Petitioner / Detenu Siddhesh Bala Mhaskar @ SiddhuAbhange has preferred this Petition questioning the preventivedetention order passed against him on 28 th August 2019 byRespondent No. 1 – Commissioner of Police, Thane. The said detentionorder has been passed under the Maharashtra Prevention ofDangerous Activities of Slumlords, Bootleggers, Drug offenders,Dangerous persons and Video Pirates Act, 1981 (hereinafter referredto as ‘MPDA Act’). The said detention order has been issued as theDetenu is a Dangerous person whose activities are prejudicial to themaintenance of public order. The detention order is based on threeCrimes i.e. C.R. No. I-83/2019 registered with Wagale Estate PoliceStation, for the offences punishable under Sections 325, 324, 323,143, 144, 146, 147, 148, 149, 504 and 427 of the Indian Penal Code,C.R. no. I-129/2018 registered with Chitalsar Police Station, for theoffences punishable under Sections 143, 144, 146, 147, 148, 149, 504,506(2) of IPC read with 3(25) of Arms Act, and read with 37(1),135 of the Maharashtra Police Act and CR No. I-73 registered withKopari Police Station for the offences punishable under Sections 469,500, 34 read with Section 66(d) of the Information Technology Act,Bhagyawant Punde ::: Uploaded on – 04/03/2020 ::: Downloaded on – 05/03/2020 06:54:51 ::: 3/12 Judgment Cr.WP.182.2020.doc2000.

3. Though the number of grounds have been raised in thepresent petition whereby the detention order has been assailed,however, the learned counsel appearing for the Petitioner / Detenuehas pressed only three grounds before us i.e. ground nos. ‘b’, ‘c’ and’d’. Those grounds are reproduced herein below in verbatim.
b. The Petitioner says and states that an order of detention under Section 3(1) of M.P.D.A Act, came to be passed on 28.08.2019 against the Petitioner. The Petitioner submits that along with the order, the compilation of documents were executed by the Executing Authority much belatedly on 02.10.2019 after a lapse of fve weeks. The Sponsoring Authority as well as detaining authority have not taken any prompt action to search and execute the order as per the requirement of law. The Petitioner says and states that he was very well available in the locality then the authorities should execute the order and serve upon him to comply with the requirement of Section 7(a) (b) of M.P.D.A. Act. The Petitioner says and states that he was on bail in all the criminal cases granted by competent Court ofBhagyawant Punde ::: Uploaded on – 04/03/2020 ::: Downloaded on – 05/03/2020 06:54:51 ::: 4/12 Judgment Cr.WP.182.2020.doc law. The Sponsoring Authority has not taken any prompt and effective steps by moving to the Court for cancellation of bail, which is requirement of section 7 as held by Hari Kumar’ s case as held by the Hon’ble Supreme Court of India. A delay in execution of the order of detention throws doubt in the satisfaction of the detaining authority. The order of detention is illegal and bad in law for inaction and not executing of the order promptly. The order of detention is illegal and liable to be quashed and set aside.
c. The Petitioner says and submits that the detaining authority has taken into consideration a criminal case registered at Kopari Police Station vide C.R. No. I-73 of 2019 under Section 469, 500, 34 of IPC r/w. I.T. Act, 2000 under Section 66(d). The Petitioner says that this is a case and the section wherein are not relevant for passing order of detention. Offences under I.T. Act, 2000 cannot be considered for putting a person under detention under M.P.D.A. Act. Hence, the order is illegal and bad in law liable to be quashed and set aside.
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Moreover no public order is disturbed by showing and executing photographs on social media. The order of detention is illegal and bad in law, liable to be quashed and set aside.
d. The Petitioner says and submits that, he is Maharashtrian and can read, write and understood Marathi language only. The Petitioner says and submits that he has been supplied Marathi translation of grounds of detention as well as all other documents of the compilation. The Petitioner says and submits that at Page Nos. 167 to 173.
Certain relied on document in the compilation which are in English whose Marathi translations are not furnished to the Petitioner. This amounts to non-communication of grounds of detention. Thus affecting the frst facet of Article 22(5) of the Constitution of India. As a result of non-furnishing documents in a language understood by the Petitioner he is deprived of making any effective representation. Thus both the facets of Article 22(5) of the constitution of India is violated. The order of detention is illegal and bad in law. TheBhagyawant Punde ::: Uploaded on – 04/03/2020 ::: Downloaded on – 05/03/2020 06:54:51 ::: 6/12 Judgment Cr.WP.182.2020.doc order of detention is illegal and bad in law, liable to be quashed and set aside.

4. We have heard learned counsel for the Petitioner andlearned APP for the State at length. Learned counsel for thePetitioner invites our attention to the ground no. (b) reproducedherein above and submits that the sponsoring authority has nottaken prompt and effective steps for execution of order of detention.Learned counsel submits that the sponsoring authority has not takeneffective steps by moving to the Court for cancellation of bail, whichis requirement of Section 7 as held by the Hon’ble Supreme Court inthe case of P.M. Hari Kumar Versus Union of India and Othersreported in (1995) 5 SCC 691.
Learned counsel further submits that the detainingauthority has taken into consideration a criminal case registered atKopari Police Station vide C.R. No. I-73/2019 under Section 469, 500,34 of IPC. read with I.T. Act, 2000 under Section 66(d). The offencesunder I.T. Act, 2000 cannot be considered for putting a person underdetention under M.P.D.A. Act. He further submits that pages no. 162to 173 of the compilation of documents supplied to the detenue werein English and Marathi translation of those pages was not supplied tothe Petitioner. Therefore, learned counsel for the Petitioner submitsthat petition may be allowed.
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5. Learned APP appearing for State relying upon theaverments in the affdavit in reply, so also compilation of additionaldocuments submits that there was no delay in executing thedetention order as per the requirement of law. It is submitted that theconcerned authorities made sincere efforts to trace out the detenue,however, the detenue absconded. Learned APP invites attention ofthis Court to the additional documents and submits that, theauthorities have taken sincere efforts to ensure the execution oforder of detention and documents alongwith the said order. In replyto ground no. (b) learned APP invites attention of this Court to theaffdavit in reply fled by Commissioner of Police, Thane City, Thaneand also by Deputy Secretary (In-charge), Government ofMaharashtra, Home Department (Special) Mantralaya, Mumbai andalso affdavit in reply fled by Secretary, Advisory Board, MPDA Act,1981, Home Department (Special), State of Maharashtra, Mumbai,and submits that petition is devoid of any merits and same may berejected.

6. So far ground no. (b) is concerned, in reply fled by theCommissioner of Police, Thane City, Thane, it is stated that the orderof detention was passed on 28.08.2019, police tried to secretly locatethe whereabouts of petitioner to serve the order of detention andother relevant documents at this residence in Chitalsar but it wasBhagyawant Punde ::: Uploaded on – 04/03/2020 ::: Downloaded on – 05/03/2020 06:54:51 ::: 8/12 Judgment Cr.WP.182.2020.docnoted that the Petitioner was not available in Chitalsar, Thane on theaddress which is available with the detaining authority. The detenuebeing a criminal continuously changed his residence form one placeto another and therefore to trace him out, all necessary steps wereinitiated. Accordingly, station diary entries were made from time totime. Meanwhile on 30/08/2019 police got information thatpetitioner is residing in Amber Heights, Row house No. K-1 in thejurisdiction of Shivajinagar police station, Thane City alongwith hisfamily. On instructions of Sponsoring Authority, police staff of Koparipolice station with the help of Shivajinagar police station went at hispresent address as above. Petitioner somehow escaped from hishouse. Petitioner’s wife, father-in-law and neighbor instead of co-operating police, abused, made false allegations against police,threatened and leaped over police staff. Accordingly, on 31.08.2019Shivajinagar police station C.R. No. 0264/2019 u/s. 353, 504, 506, 34of IPC was registered against Petitioner’s wife and neighbours. Afterthis incident too police tried to locate whereabouts of petitioner in thejurisdiction of Thane Police Commissionerate and nearby areas but ashe did not have any permanent residence, police were unable to fndhim continuously for 4-5 weeks. Constant continuous efforts to moveexecution order upon the detenue were made. But detenue wasabsconding and WAS out of bounds of Thane Police Commissionerate,while police teams were searching him. Finally police were able toBhagyawant Punde ::: Uploaded on – 04/03/2020 ::: Downloaded on – 05/03/2020 06:54:51 ::: 9/12 Judgment Cr.WP.182.2020.doctrace him on 01.10.2019 in Chiplun, Dist.Ratnagiri. Police staff ofKopari police station brought him to Thane, handed him to Chitalsarpolice station. Immediately, on 02.10.2019 the detention order andrelated documents were served to him and he was detained in NasikRoad Central Prison, Nasik without any delay. Hence, the need totake action u/s. 7(a) (b) of MPDA Act did not arise. Therefore, theaction not initiated u/s. 7(2) (a) and (b) cannot be ground tochallenge the detention order as same will not affect the subjectivesatisfaction of the detaining authority.
In support of aforesaid contention, learned APP has reliedupon the judgment of the Division Bench of this Court (Coram:-Vishnu Sahai & S.K. Shah, JJ.) in the case of Pyarelal @ PyareAmbika Singh Versus M.M. Singh, Commissioner of Police, GreaterBombay, dated 13.12.2001 in Criminal Writ Petition No. 1312 of 2001.In the said judgment, the Division Bench has held that the failure ofthe sponsoring authority to move for cancellation of detenu’s bailcannot be a basis for concluding that the detaining authority and thesponsoring authority were not sincere in their endeavor to executethe detention order and the subjective satisfaction of the detainingauthority to detain the detenu under section 3(1) of the MPDA Actwas not genuine.
Bhagyawant Punde ::: Uploaded on – 04/03/2020 ::: Downloaded on – 05/03/2020 06:54:51 ::: 10/12 Judgment Cr.WP.182.2020.doc7. We have perused additional documents fled by
respondents . As stated in the affdavit in reply, the respondents havetaken sincere efforts to trace out the detenue, however, it appearsthat the detenue did not make himself available and absconded asstated in the affdavit in reply of respondents. We are satisfed thatthe respondent authority has taken steps with promptitude to servethe order of detention and documents to detenue. Therefore, in thefacts of this case, it cannot be said that no sincere steps were takenby the sponsoring authority to serve the order of detention anddocuments to detenue.

8. So far ground (c) is concerned, the contention of thelearned counsel for the Petitioner that CR No. I-73/2019 u/s. 469,500, 34 of IPC read with IT Act, 200 under Section 66(d) should nothave been taken into consideration for the purpose of passing theorder of detention is devoid of any merits. It appears that RespondentNo. 1 i.e. detaining authority has considered following threeincidents:- 1) C.R. No. I-83/2019 registered with Wagale Estate Police Station for the offences punishable u/s. 325, 324, 323, 143, 144, 144, 146, 147, 148, 149, 504, 427 of IPC.

2) C.R. No. I-129/2019 registered with Chitalsar Police Station for the offences punishable u/s. 143, 144, 146, 147,Bhagyawant Punde ::: Uploaded on – 04/03/2020 ::: Downloaded on – 05/03/2020 06:54:51 ::: 11/12 Judgment Cr.WP.182.2020.doc 148, 149, 504, 506 (2) of IPC, r/w. Section 3, 25 of Arms Act read with Section 37(1) 135 of Maharashtra Police Act, 1951.
3) C.R. No. I-73/2019 registered with Kopari Police Station for the offences punishable u/s. 469, 500, 34 read with Section 66(d) of IT Act, 2000.

The detaining authority also relied upon the statements oftwo in-camera witnesses ‘A’ and ‘B’ recorded on 05.07.2019 and07.07.2019 and social media terror. There are more than one offence,so also statements of witnesses which are relied upon by thedetaining authority while arriving at the subjective satisfaction. If theC.R. No. I-73/2019 is excluded from consideration, even then byinvoking Section 5A of the said Act on remaining grounds order ofdetention can legally sustain.

9. So far Ground (d) about non supply of English translationof Pages No. 167 to 173 of the compilation of documents supplied tothe detenue is concerned, it is stated that Pages No. 167-173 areletters in English given by Cyber Cell to Chief Technical Offcer Googleand Facebook on application given by an applicant. After enquiryKopari Police Station registered C.R. No. I-73/2019 against thePetitioner. These letters are part of investigation but same areBhagyawant Punde ::: Uploaded on – 04/03/2020 ::: Downloaded on – 05/03/2020 06:54:51 ::: 12/12 Judgment Cr.WP.182.2020.docreferred documents not relied upon or vital hence not translated inMarathi. Apart from that it is revealed from record thatpetitioner/detenue know English language as also detenue used socialmedia such as Facebook, U-tube, Tik-Tok, Instagram etc. and even inthe offence registered as Kopari Police Station C.R. No. I-73/2019 theI.T. Section 66 (d) is applied in said offence. In all above social mediaprocess he has used English language. This material clearly showsthat detenue is having knowledge of English language. Therefore, hisright guaranteed under constitution is not affected at any stage in anymanner.

10. In the light of discussion in foregoing paragraphs, we areof the considered view that no case is made out to cause interferencein the impugned order of detention, Hence, writ petition standsrejected. Rule stands discharged.

(V. G. BISHT, J.) (S. S. SHINDE, J.)Bhagyawant Punde ::: Uploaded on – 04/03/2020 ::: Downloaded on – 05/03/2020 06:54:51 :::

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