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BOMBAY HIGH COURT
Mangesh S. Patil, Abhay S. Waghwase, JJ.
Mujib S/o Abdul Shaikh – Appellant
versus
District Magistrate Aurangabad,
District Aurangabad – Respondent
Criminal Writ Petition No.221 of 2023
Decided on 3.5.2023
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 – Sections 3(2) and 10 – Constitution of India – Article 22 – Preventive detention – Challenge as to – Mere technical compliance of availability of bail order in papers before District Magistrate and his being alive to fact that ground of bail is not sufficient – Absence of application of mind would go to validity of detention – Such orders of preventive detention are indeed serious orders curtailing fundamental right of detenu cherished by constitutional makers – Life and liberty of an individual cannot be put at stake except according to procedure established by law as is mandated by Article 22 of Constitution – When MPDA Act or some similar statute prescribes procedure to be followed before a person is detained by way of a preventive action, liberty cannot be curtailed except by strictly adhering to the procedure – Even a delay of single day in placing order of detention before Advisory Board should be treated as fatal as it runs contrary to constitutional principles and legislative mandate – There is a fundamental breach of provision of Section 10 which goes to root of legality of order – Impugned order of detention quashed and set aside. (Paras 18, 21, 22, 23 and 25)
Result: Criminal Writ Petition allowed.
JUDGMENT
Mangesh S. Patil, J.—Heard.
2. Rule. Rule is made returnable forthwith. At the request of the both the sides, the matter is heard finally at the stage of admission.
3. By invoking powers of this Court under Article 226 of the Constitution of India, the petitioner is impugning the order of preventive detention passed by the respondent No. 1-District Magistrate, and approved by the respondent No. 2-State, dated 02.06.2022 under Section 3(2) 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 (herein after MPDA Act). The order along with grounds was served to the petitioner on 04.06.2022. The respondent No. 2-State granted initial approval to it on 09.06.2022. The petitioner submitted his representation on 14.06.2022. Advisory board heard him on 07.07.2022 and the respondent No. 2-State confirmed the order of detention for a period of 12 months by its order dated 21.07.2022.
4. Apparently, the respondent No. 1-District Magistrate has reached subjective satisfaction about activities of the petitioner being prejudicial to the public order on the basis of his persistent involvement in several crimes for stealing sand, the latest being dated 25.02.2022 and 06.03.2022 of Sillegaon Police Station District Aurangabad bearing Crime No. 59/2022 and 72/2022 for the offences punishable under Sections 379, 186 read with Section 34 of the Indian Penal Code and under Section 21(1) to 21(5) of Mines and Minerals (Development and Regulation) Act, 1957. In substance he is being perceived as a ‘sand Mafiya’. Statement of couple of witnesses have been recorded who have stated about the individual incidents occurred with them involving the petitioner wherein they allege about he having threatened them which statements the respondent No.1-District Magistrate got verified from police inspector of Local Crime Branch.
5. We have heard the arguments of both the sides finally.
6. The learned advocate Mr. Jadhav for the petitioner would vehemently submit that the detention order has been passed mechanically sans application of mind and is illegal. He would submit that the detention order is bearing a number of the year 2021 but has been actually passed in 2022 which demonstrates that the order suffers from vice of prejudice. He would submit that with a view to some how detain the petitioner systematically both the offences have been registered in succession barely within a span of 10 days which itself is demonstrative of prejudicial mind with which the respondent No. 1-District Magistrate has acted. He would submit that the respondent No. 1 District Magistrate has himself not verified the genuineness of the statements of two witnesses recorded in-camera. He did undertake that exercise through subordinates but conspicuously omits to state the satisfaction about unwillingness of these witnesses to record their statements in open court.
7. Mr. Jadhav would further submit that even the respondent No. 1- District Magistrate ignored the fact that in both the offences the petitioner was enlarged on bail and failed to justify his order by demonstrating as to how being at large the ordinary law of land was insufficient to prevent his activities. It is not even the case even in the affidavit in reply that the petitioner has been involved in a similar activity after he was granted bail, more so when he was released on bail in the first half of April 2022 and the order of detention has been passed on 02.06.2022 and the affidavit in reply has been filed on 28.03.2023. In the absence of such grounds, the subjective satisfaction arrived at by the respondent No. 1-District Magistrate is fanciful.
8. Mr. Jadhav would, lastly, submit that the impugned order was not placed before the advisory board as is required by Section 10 of the MPDA Act as interpreted by this court within three weeks from the
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