High Court · 2024
Facts
1 Cr. W.P. 112 / 2024 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 112 OF 2024Supadu Bandu TadviAge : 42 years, Occu. : Agri.,R/o Chilgaon, Tq. Jamner,District – Jalgaon.. Petitioner Versus1] District Magistrate, Jalgaon, District – Jalgaon2] The State of Maharashtra, Through the Additional Chief Secretary, Govt. of Maharashtra, Home Department, Mantralaya, Mumbai – 32.3] The Jail Superintendent, Central Prison, Amravati, District – Amravati.. Respondents...Advocate for the petitioner : Mr. Satej JadhavAPP for the respondent – State : Mrs. V.N. Patil - Jadhav ... CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON : 02 MAY 2024PRONOUNCED ON : 07 MAY 2024JUDGMENT (MANGESH S. PATIL, J.) :This is a petition under Article 226 of the Constitution ofIndia, putting up a challenge to the order passed by respondent no.1 –District Magistrate, Jalgaon under section 3(2) and approved andconfirmed by respondent no. 2 – State under section 3(3) of theMaharashtra Prevention of Dangerous Activities of Slumlords, 2 Cr. W.P. 112 / 2024 Bootleggers, Drug-offenders, Dangerous persons, Video Pirates, SandSmugglers and Persons Engaged in Black-marketing of EssentialCommodities Act, 1982 (hereinafter the ‘MPDA Act’).2.The impugned orders brand the petitioner as a bootlegger.The following offences registered against him have been taken intoconsideration :-Sr.No.PoliceStationCrime No.SectionsDate ofregistrationof crimePercentageof ethylalcoholDetails ofarrestPresent Status1Pahur325/2022Under section 65(f),(b),(c),(e) ofMaharashtra Prohibition Act, 194904-09-202227%,3%,4%No arrestPending trial2Pahur397/2022Under section 65(f),(b),(c),(e) ofMaharashtra Prohibition Act, 194919-11-20228%3%4%No arrestPending trial3Pahur51/2023Under section 65(e) of Maharashtra Prohibition Act, 194925-02-202310%No arrestPending trial4Pahur269/2023Under section 65(f) of Maharashtra Prohibition Act, 194921-07-2023-No arrestUnder PoliceInvestigation5Pahur437/2023Under section 65(e) of Maharashtra Prohibition Act, 194922-10-202327-12-2023-No arrestUnder PoliceInvestigationThe following preventive actions have also been taken intoconsideration :-Sr.No.Name of PoliceStationDate of RegistrationRegistration No.Section 1Pahur11-01-202113/2021As per section 93 of Maharashtra ProhibitionAct, 19492Pahur24-11-2022265/2022As per section 93 of Maharashtra ProhibitionAct, 19493Pahur18-09-2023233/2023As per section 93 of Maharashtra ProhibitionAct, 1949
Legal Reasoning
9 Cr. W.P. 112 / 2024 02-2023, the period of 10 months intervening clearly snaps the live linkbetween the crime and the preventive action. Merely because in themeantime, the last two offences have been registered would beinconsequential for the simple reason that no person could havereached a subjective satisfaction of the activity being bootlegging in theabsence of the report of the chemical analysis. One cannot overlookthis long period of more than 10 months from the registration of crimeno. 51 of 2023 and the impugned order.16.Again, it appears that, the action under section 93 of theM.P. Act bearing registration no. 233 of 2023 was initiated on 18-09-2023, during that period of 10 months. However, bearing in mind thefact that the petitioner was not involved in any bootlegging activityduring these 10 months, duly supported by a prima facie material in theform of chemical analysis report of the liquid seized in crime no. 269 of2023 and 437 of 2023, such initiation of action under section 93 of theM.P. Act would not provide any link between crime no. 51 of 2023registered on 25-02-2023 and the impugned order of preventivedetention passed on 27-12-2023.17.There is one more aspect in this regard. Though it hasbeen perceived by the respondents that normal law of the land wasunable to prevent the petitioner’s activities of bootlegging, although onthree occasions an action under section 93 of the M.P. Act was initiated 10 Cr. W.P. 112 / 2024 against him, there is absolutely no record to demonstrate that stepswere even taken to forfeit the bonds executed by the petitioner and torecover bond amount from him. The first such action was taken on 11-01-2021, the second one was on 24-11-2022 and the latest being on18-09-2023. A bare look at the afore-mentioned charts woulddemonstrate that according to the respondents, the petitioner hadcontinued the bootlegging activity in spite of such actions under section93 of the M.P. Act and if that be so, one cannot comprehend as to howwithout even taking the steps to forfeit the bonds and to recover themoney since many of these crimes were apparently committed duringthe bond period of three years stipulated under that section and still,the inference has been drawn by respondent no. 1 – detaining authoritythat the ordinary law of the land was unable to prevent the petitioner’sactivities. This, in our considered view, goes to the root of thesustainability of the subjective satisfaction reached by him.18.Turning to the statements of couple of witnesses reliedupon by respondent no. 1 – detaining authority, the witness ‘A’ hasstated that while he was proceeding to his home on 15-02-2023 in theevening hours, 3-4 drunkards were sitting in the petitioner’s house.One of the drunkard hit his motorcycle and he fell down. He wasthereafter lifted by the other persons and drunkards started hurlingabuses at him. Seeing the incident, the petitioner have come out of his 11 Cr. W.P. 112 / 2024 house with 2-3 henchmen. The witness confronted the petitionersaying that because of his den foul smell had spread in the area andthe persons consuming liquor were indulging in squabbling and teasingwomenfolk, drove their vehicles rashly causing injuries to children andsuch incidents were occurring frequently. He then asked the petitionerto close down his den or else he would file a complaint with the police. He states that enraged by it, the petitioner abused him in filthylanguage and brandished a knife by putting it to the chest. Though thepeople had gathered, none of them could rescue him due to fear of thepetitioner. As can be appreciated, if really the witness was under threatand the petitioner was running terror, it seems highly unbelievable andimprobable that the witness could have expressly called upon thepetitioner to close down the den declaring that else he would file acomplaint. If he was so bold, that would be inconsistent with the standbeing taken by the respondents about the petitioner having potential ofdisturbing the public order.19.The next witness ‘B’ has alleged about an incidentoccurred on 20-03-2023 which is clearly a matter of road rage havingno potential of demonstrating any threat from the petitioner to publicorder. The witness has stated that the petitioner was carrying a liquorcan on his motorcycle. A stick in his hand brushed the can accidentlyand the petitioner lost balance and fell down and the liquor spilled on 12 Cr. W.P. 112 / 2024 the road. The petitioner is alleged to have abused this witness andinsisted for compensating him and extended threats. The petitioner isalleged to have taken out Rs.500/- from this witness’s pocket forciblyand asked him to pay the remaining amount and left the spot byextending threats. We fail to understand as to how this version of thewitness could be resorted to, to draw an inference that the petitionerbeing at large would put the public order in peril. This road rageincident can occur with anybody and any person in place of thepetitioner in all probability would demonstrate a similar conduct.Merely because he was carrying a liquor can, in our considered view,would not make any difference.20.If such is the quality of the statements recorded and theincidents reported by these anonymous witnesses, in our consideredview, the subjective satisfaction based thereon, by no stretch ofimagination could be a plausible one.21.In view of above state-of-affairs, we are of the consideredview that the subjective satisfaction arrived at by respondent no. 1 –detaining authority is not based on plausible appreciation of thematerial referred to by him. This goes to the root of the order passedby him and approved and confirmed by respondent no. 2.22.The petition is allowed. 13 Cr. W.P. 112 / 2024 23. The order of detention bearingno. DANDPARA/KAVI/MPDA/86/2023 issued under section 3(2) of theMPDA Act, 1981 dated 27-12-2023 passed by respondent no. 1 –District Magistrate, Jalgaon and approved and confirmed byrespondent no. 2 – State under section 3(1) of the MPDA Act isquashed and set aside.24.The petitioner be released forthwith, if not required to bedetained in any other matter. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/
Arguments
3 Cr. W.P. 112 / 2024 3.In addition, as many as 11 offences registered against himunder different sections of the Maharashtra Prohibition Act, 1949(hereinafter ‘M.P. Act’) right from the year 2017 up to 25-07-2022 havebeen looked into by respondent no. 1 – detaining authority. Further,statement of couple of witnesses who preferred to be anonymous forthe alleged apprehension, have also been recorded and considered bythe detaining authority. He reached a subjective satisfaction thatordinary law of the land was insufficient to deter his activities ofmanufacturing and selling liquor illegally which has the potential ofbeing hazardous for human consumption and has the tendency toaffect the public order.4.The learned advocate for the petitioner Mr. Jadhav wouldbasically seek to demonstrate as to how the subjective satisfactionarrived at by the detaining authority is perverse and arbitrary. It lacksapplication of mind. Old and stale cases, having no proximate relationwith the latest criminal activities, have been considered. He wouldsubmit that there is no chemical analysis report in respect of the latesttwo crimes. The observation of the detaining authority about the liquidseized from the petitioner being potentially hazardous to life, is notsubstantiated by any report of the expert. This being a matter ofpreventive detention, the detaining authority should have been more 4 Cr. W.P. 112 / 2024 vigilant and careful in approving the proposal forwarded by theconcerned police.5.Mr. Jadhav would submit that in none of the cases, he hasever been arrested and was simply served with a notice under section41-A(1) of the Code of Criminal Procedure, which in itself is indicativeof the fact that even the police machinery never thought it necessary toarrest him. He would place reliance on the decisions in the matters of(1) Dhanubai @ Dhanno Yashvant Netlekar Vs. State ofMaharashtra and others; 2024 SCC OnLine Bom 484 (Judgmentdated 08-02-2024 in Criminal Writ Petition no. 1527 of 2023) and (2)Vishwas Arun Garunge Vs. The District Magistrate and others(Judgment dated 14-03-2024 in Criminal Writ Petition no. 1578 of2023) .6.Per contra, the learned APP would support the orders.She would submit that necessary statutory compliances and thetimeline, as laid down in different sections of the MPDA Act has beenreligiously followed. The subjective satisfaction arrived at is forplausible reasons. This Court has inherent limitations in substituting itsviews in exercise of power under Article 226 of the Constitution ofIndia. The subjective satisfaction is supported by the circumstancesas mentioned in the impugned orders passed by him. Only the latesttwo crimes committed within six months next before passing of the 5 Cr. W.P. 112 / 2024 order have been considered together with three similar crimes of theimmediate past. Preventive actions have also been considered. Oldoffences have been referred only to demonstrate tendency of thepetitioner. Those do not form the basis for arriving at the subjectivesatisfaction. Though the chemical analysis report in the latest twocrimes committed on 21-07-2023 and 22-10-2023 are not available, theother three offences preceding those committed on 04-09-2022,19-11-2022 and 15-02-2023 contain the chemical analysis reports. Thesamples were found containing 27%, 3% and 4% ethyl alcohol. Sincethe activity of manufacturing and selling illicit liquor was undertakenwithout any licence under the M.P. Act, there is no standardization andcontrol of any authority. There is every possibility of percentage of theethyl alcohol exceeding permissible limits having potential to beharmful for human consumption.7.She would advert our attention to similar argument in thematter of Vinod Dhannulal Jaiswal Vs. District Magistrate,Aurangabad and others; AIROnline 2024 BOM 105 which wasauthored by one of us (Mangesh S. Patil, J.). The definition of‘bootlegging’ given under section 2(b) contemplates inter alia distilling,manufacturing and selling of intoxicants, drug or any intoxicant, incontravention of the provisions of the M.P. Act. When the petitioner 6 Cr. W.P. 112 / 2024 does not possess any such licence, that in itself is sufficient to brandhim as a bootlegger.8.The learned APP would further submit that the incessantbootlegging activity undertaken by the petitioner would inherently havethe potential to disturb the public order.9.The learned APP would then submit that there are coupleof anonymous witnesses; one of whom has expressly stated as to howrunning of a den by the petitioner and his offending behaviour hascreated disturbance to the public order.10.She would submit that similar argument that the petitionerwas served with only a notice under section 41-A(1) of the Code ofCriminal Procedure in all the crimes registered against him and in noneof these, he was ever been arrested, has been considered by thisCourt in the matter of Vinod Jaiswal (supra). The purpose of arrest isdistinct and different than preventing an activity under the M.P.D.A. Act.The matter of arrest would be governed by the principles laid down byArnesh Kumar V. State of Bihar; (2014) 8 SCC 273 and can seldombe said to be aimed at preventing any unlawful activity.11.Lastly, the learned APP also relies upon the decision of thisCourt in the matter of Chandrakala W/o Ramlal Jadhav Vs. TheState of Maharashtra and others; 2021 SCC OnLine Bom 634. 7 Cr. W.P. 112 / 2024 12.At the outset, it is necessary to note that the order ofpreventive detention passed by respondent no.1 and approved andconfirmed by respondent no. 2 is being assailed solely on the ground ofsubjective satisfaction arrived at by respondent no. 1 – detainingauthority. Since no other ground has been raised, we would restrict thediscussion only to ascertain if the subjective satisfaction reached byrespondent no. 1 – detaining authority, is based on plausibleappreciation of the facts and circumstances.13.Admittedly, though several other previous crimes havebeen taken into consideration by respondent no.1 – detaining authority,the decision has been based on the last two crimes being crime no.269 of 2023 and crime no. 437 of 2023 under section 65(f) of the M.P.Act as also three crimes immediately prior to the afore-mentioned twocrimes being crime no. 325 of 2022, 377 of 2022 and 51 of 2023. Inaddition, 3 preventive action under section 93 of the M.P. Act also havebeen relied upon by him.14. It is necessary to note that admittedly, the latest two crimesno. 269 of 2023 and 437 of 2023 are pending investigation and there isno report of the chemical analysis in respect of the liquid allegedlyseized from the petitioner. In the absence of any such report at thisjuncture, it cannot be said even prima facie that it was an intoxicant. 8 Cr. W.P. 112 / 2024 We are consciously referring to these facts to demonstrate as to if thelive link between the crime being relied upon and the impugned orderhas ever been snapped. Once it is found that the latest two crimes arestill under investigation and there are no chemical analysis reports, thatmakes it abundantly clear as to why respondent no. 1 – detainingauthority has also been relying upon the earlier three crimes no. 325 of2022, 397 of 2022 and 51 of 2023, which were registered on04-09-2022, 19-11-2022 and 25-02-2023 respectively only because inall these matters, there are chemical analysis reports and thechargesheets have been filed. Resultantly, irrespective of the standbeing taken by the respondents and the learned APP, the impugnedorder can certainly be said to have been passed not on the basis of thelatest crimes which they could not have legally done in the absence ofchemical analysis reports but passed on three crimes immediately priorthereto.15.Last of the earlier three crimes i.e. crime no. 51 of 2023was registered on 25-02-2023 whereas the impugned order ofpreventive detention has been passed on 27-12-2023, with a gap ofmore than 10 months. This precisely, in our considered view, is aclinching fact which adversely affects the subjective satisfaction arrivedat by respondent no.1 – detaining authority. If the impugned order waspassed after 10 months of registration of crime no. 51 of 2023 on 25-