2019 Supreme(Bom) 668

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
T.V. Nalawade, Mangesh S. Patil, JJ.
Balu - Appellant
Vs.
Commissioner of Police, Aurangabad - Respondent
Criminal Writ Petition No. 155 of 2019
Decided On : 26-03-2019

Headnote:

Constitution of India, 1950 – Articles 21, 22, 226 – 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 – Section 3 – Order of Detention – Petition is filed under Article 226 of Constitution of India for relief of quashing and setting aside the order dated 15.10.2018 passed by the learned Commissioner of Police, Aurangabad under section 3 (1) and (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 and also to challenge the order of confirmation of the order of detention made by the State Government – Held, APP submitted that action of the executive involves discretion and subjective satisfaction of the detaining authority. – He submitted that the material and the information may afford the basis for taking action and the material may be sufficient to create strong suspicion or reasonable probability, though it may not satisfy the test of legal proof and in such cases, the Court is not expected to interfere in the order of detaining authority and the Government. – On the other hand, the learned counsel for petitioner submitted that individual liberty is involved in the present matter and it was necessary to show that there was likelihood or probability of violation of specified laws. – He submitted that for matters like present one every infraction of law would not justify preventive detention. – He submitted that surrounding circumstances ought to have been considered by the detaining authority and the detaining authority ought to have formed opinion that the detention does not become instrument of operation. – Court has already observed that it was the duty of the sponsoring authority to collect all the relevant material and place all the material before the detaining authority and also the Government and Advisory Board. As the sponsoring authority failed in that duty, there was no question of subjective satisfaction of the authority and due to that subjective satisfaction is vitiated. – The material discussed above would have definitely influenced the mind of detaining authority, one way or other. – Further, this Court has also come to the conclusion that the procedure given in Article 22 of the Constitution of India and also in the Act was not followed in letter and spirit and due to that the petitioner was not able to enforce his valuable constitutional right mentioned by this Court. – For that reason also, the order of detention needs to be set aside. – Court has also observed that the preventive detention order has no connection with public order and the things are far stretched in the present matter – Concept of public order must be distinguished from the concept of law and order and concept of security of State. – Apex Court has observed that these three concepts refer to three concentric circles. – Law and order represents largest circle, within which is the next representing public order and the smallest circle represents security of State. – Apex Court has observed that the activity which affects the law and order may not necessarily affect the public order and the activity which may be prejudicial to public order may not necessarily affect security of the State. – Similarly the activity which affects the security of others may not constitute a breach of public order – Petition Allowed