Bombay High Court: In a criminal writ petition filed by the petitioner/ accused against the detention order passed by District Magistrate, Solapur (‘Detaining Authority’) detaining him on the basis of being a “sand smuggler” within the provisions of 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 (‘MPDA Act’), the Division Bench of Bharati Dangre and Manjusha Deshpande, JJ., found that the criteria applied for detention as a sand smuggler was inconsistent, and the order suffered from the non-application of mind. Therefore, the Court quashed and set aside the detention order.
Background
The Detaining Authority had passed a detention order against the accused, for dissuading Government officials from their work, engaging in illegal extraction of sand, smuggling, stealing and sending the stolen sand for sale, and destroying the environment. Considering the activities of the accused to be prejudicial to the maintenance of public order and the prevention of such further actions, the Detaining Authority passed the impugned order. The Detaining Authority relied upon a criminal record and two in-camera witness statements of Witness A and B to detain the petitioner. A notable instance that was on record was a tractor-trolley suspected of carrying illegally extracted sand that was intercepted by the Government officials, post-which the petitioner was accused of having manhandled the officials. The order stated that the accused had been engaged in smuggling of sand and classified him as a “sand smuggler” under Section 2(e-2) of the MPDA Act.
Analysis and decision
The Court emphasised the necessary ingredient for a person to be classified as a sand smuggler is their engagement in or preparing to be engaged in, his association or his act of abetting, unauthorised extraction, removal, collection, replacement, picking up or disposal of sand and its transportation, storing, selling, or to commit or abet to commit or abet the commission of offences in respect of sand which are punishable under the Mines and Minerals (Development and Regulation) Act, 1957 or under the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013.
The Court noted that the material before the Detaining Authority did not reflect that the accused was the owner of the tractor/trolley or that the sand being transported belonged to him, or that the sand was in fact illegally excavated in the first place.
The Court further noted that the allegations of manhandling of the officials constituted an offence under Section 3531 of Penal Code, 1860 (‘IPC’), however, no offence was registered under the Mines and Minerals (Development and Regulation) Act, 1957 or under the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013.
About the in-camera statements of Witness A and B, the Court noted that they merely referred to the accused as being engaged in illegal excavation of sand and its transportation, without providing any details of the incident. Further, they stated that the petitioner had created a reign of terror in the locality through offering liquor to youngsters in the surrounding village.
The Court stated that the accused was not detained because he was a bootlegger or a dangerous person, but because he was alleged to be a sand smuggler. Neither witness exhibited any proof that indicated his connection with illegal sand mining and its transportation.
The Court conflicted the basis on which the Detaining Authority had concluded that the accused was a sand smuggler, as the only role attributed to him was obstructing the Government servants who had intercepted the allegedly illegal sand transportation, when he was not charged with being related to the tractor or the sand in question. Therefore, there was no reason for the accused to be considered a sand smuggler.
The Court noted that the Detaining Authority had considered the criminal activities of the accused reflected in the criminal record presented before it and was satisfied that he was constantly indulged in criminal activities and had terrorised the locality. Such satisfaction based on criminal record indicated the Detaining Authority had detained the him as being a “dangerous person”, however the detention was in fact made on the basis of him being a sand smuggler. The apprehension of the Detaining Authority was that since the accused had been allegedly terrifying the community and creating obstacles in public order, he would engage in similar activities in future as well. However, the Court stated that such is not the criteria for a person to be detained as a ‘sand smuggler.’
Hence, the Court opined that the Detention Order suffered from non-application of mind and could not be sustained. Therefore, the impugned order was quashed and set aside, and order was made for release of the accused from detention.
[Tukaram Birappa Pujari v. Commissioner of Police, 2024 SCC OnLine Bom 2782, decided on 23-08-2024]
Advocates who appeared in this case :
For the petitioner: Advocate Ritesh Thobde, Advocate Zubi Ansari, Advocate Changdev Shingade, Advocate Ankita Pramod Rai;
For the respondent: J.P. Yagnik, APP
1. Corresponding Section 132 of Nyaya Sanhita, 2023
