High Court
Legal Reasoning
WP-230-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 230 OF 2024Shyam Suresh YenelliAge: 32 years, Occu.: Labour,R/o Nalaguttachal,Tq. & Dist. Nanded..PETITIONERVERSUS1. State of Maharashtra Through it’s Principal Secretary, Home Department, Mantralaya, Mumbai2. State of Maharashtra Through it’s Section Officer, Home Department (Special), Mantralaya, Mumbai3. The Inspector, State Excise, Nanded City, Tq. & Dist. Nanded4. The Sub-Inspector, State Excise, B Division, Nanded, Tq. & Dist. Nanded5. The Inspector, Police Station Wajirabad, Tq. & Dist. Nanded..RESPONDENTS....Ms. U.T. Khan, Advocate for petitionerMrs. V.N. Patil Jadhav, A.P.P. for respondents....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 02nd AUGUST, 2024PRONOUNCED ON : 09th AUGUST, 20241 / 12 WP-230-24.odtJUDGMENT ( PER : R.G. AVACHAT, J. ) :1.Rule. Rule made returnable forthwith. Heard finally with theconsent of learned counsel for the parties.2.The challenge in this writ petition, under Article 226 of theConstitution of India, is to order dated 14th December, 2023 passed by theDistrict Magistrate, Nanded (detaining authority) detaining the petitioner for aperiod of twelve months, in exercise of power under Section 3 of theMaharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers,Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers andPersons engaged in Black Marketing of Essential Commodities Act, 1981.(‘MPDA Act’). The State of Maharashtra in Department of Home approvedthe order of detention vide its order dated 19th December, 2023. Thedetention of the petitioner is on the ground of he being a bootlegger and hisactivities as such were likely to affect the maintenance of public order.3.The Inspector, State Excise Department, Nanded put up aproposal dated 28th November, 2023 before the detaining authority fordetention of the petitioner. A copy of the proposal is on record. Avermentstherein are :-The petitioner manufactures/distills toddy blended or laced withhazardous chemicals for sale at Nanded and surrounding places. Not lessthan nine crimes were registered against him under Section 65(e) of theMaharashtra Prohibition Act, 1949 (‘Prohibition Act’) during the period from2 / 12 WP-230-24.odtFebruary 2022 to September 2023. A preventive action under Section 93 ofthe Prohibition Act was also taken against him. The petitioner executed abond in the sum of Rs.25,000/-, assuring of maintaining good behaviour.The period of bond was for one year from 15th June, 2023. He committedbreach of the bond. Last three crimes mentioned in paragraph no.2 of theproposal were registered against the petitioner during the bond period.Pursuant to a tip off received by the officials of State Excise Department,raids were effected at his residence. He was found in possession of the illicittoddy laced with hazardous chemicals. The authorities concerned obtainedthe sample of seized toddy and got it analyzed from the chemical analyst. Itwas revealed that the samples contained ethyl alcohol in various percentage.Some of the samples contained chloral hydrate, sugar and copper sulphate.The officials in the rank of Associate Professor in the Department of ForensicScience at Dr. Shankarrao Chavan Government Medical College, Vishnupurigave a report on 21st September, 2023. It is reiterated by the authorities thatethyl alcohol, copper sulfate and chloral hydrate if consumed by a humanbeing, was harmful for human health. The report further indicates thatconcoction of the three i.e. alcohol, copper sulfate and chloral hydrate ifconsumed in excess quantity, there is possibility of loss of life.4.The authorities concerned also recorded two in-camerastatements of the persons on the condition of not disclosing their identity.Both the witnesses in their statements disclosed the petitioner to haveconsistently been indulging in manufacturing of illicit toddy. According to3 / 12 WP-230-24.odtwitness - A, it was in October 2023 by 08:00 in the evening, he was on hisway home. The petitioner accosted him near Somesh Colony andthreatened at knife point. The petitioner also abused him and gave threats ifhe informed the police about his (petitioner) illegal activities.5.On the same lines is the statement of witness – B. Similarincident took place with the said incident in the second week of November2023 by little past 08:30 p.m. The petitioner accosted him and threatened ashe suspected the said person to have instigated the persons in the nearby tolodge report against the petitioner.6.The detaining authority, after having gone through the proposaland all the papers submitted in support thereof, passed the order ofdetention, impugned herein. The said order is mainly challenged by thepetitioner on the following grounds :-(i)The petitioner is a young person in the age group of 30-32 years,earning his livelihood by working as a labour.(ii)The petitioner has never been convicted for any of the offencesunder the Prohibition Act.(iii)The petitioner in all the cases was released on his executing P.R.bond, meaning thereby the authorities concerned even did nottake recourse to the ordinary law of land. The authorities did notfind arrest of the petitioner imminent.(iv)In some of the reports received from the Forensic Department, no4 / 12 WP-230-24.odtchloral hydrate was detected in the sample/s allegedly seizedfrom the petitioner. In two cases it was termed to be milky hazyliquid and not toddy. The reports specifically state that no chloralhydrate was detected. It was not even toddy.(v)Toddy/Shindi being perishable, it was destroyed after takingsamples therefrom, which were sent for chemical analysis. Thedelay in sending the same might have turned the samples to beunfit for chemical analysis.(vi)So far as regards the in-camera statements are concerned, thosewitnesses claimed to have known the petitioner for over fiveyears.(vii)The detaining authority has wrongly mentioned in the detentionorder that offence under Section 65(e) of the Prohibition Act ispunishable with seven years imprisonment, when in fact thepunishment provided therefor is a sentence which may extend upto five years.(viii)Complainant – Preeti Waghmare in her report dated 11thSeptember, 2023 described the petitioner being sixty five years ofage.(ix)All the cases registered against the petitioner could be dealt withunder the ordinary law of land. There was no likelihood of thealleged activities of the petitioner to result into disturbance tomaintenance of public order.5 / 12
Legal Reasoning
WP-230-24.odt7.Learned counsel for the petitioner made oral submissionsreiterating the aforesaid grounds raised in the writ petition. According to her,the petitioner is behind the bars for about seven months. She ultimatelyurged for allowing the petition.8.Learned A.P.P. would, on the other hand, submit that thepetitioner got indulged in selling toddy. According to her, in view of definitionof ‘intoxicant’ appearing in Section 2(22) of the Prohibition Act means anyliquor, intoxicating drug, opium or any other substance, which the StateGovernment may, by notification in official gazette, declare to be anintoxicant. Then she took us through the definition of ‘toddy’ appearing insub-Section (46) of Section 2 of the very Act. Learned A.P.P. would thensubmit that the petitioner would mix hazardous chemicals in the toddy likeliquid and sell it. She then adverted our attention to the report given by theAssociate Professor of Dr. Shankarrao Chavan Government MedicalCollege, Vishnupuri. She would further submit that the preventive actiontaken against the petitioner proved futile. She then took us through the orderof detention impugned herein and submitted that the detaining authority tohave arrived at subjective satisfaction in passing the order. According to her,judicial review can hardly be there in case of subjective satisfaction inpassing the order of preventive detention. She then adverted our attention tothe in-camera statements of the witnesses, who were threatened by thepetitioner with a view to have him a free hand in dealing with sale ofintoxicants. Learned A.P.P. ultimately urged for dismissal of the petition.6 / 12 WP-230-24.odt9.Considered the submissions advanced. Perused the orderimpugned herein.10.Paragraph no.3 of the order gives chart of nine crimes registeredagainst the petitioner for the offence punishable under Section 65(e) of theProhibition Act. Last five crimes mentioned in the chart have been registeredagainst the petitioner during the period from 14th February, 2023 to 11thSeptember, 2023. Then there is reference to a preventive action takenagainst the petitioner under Section 93 of the the Prohibition Act. Thepresent action of detention is said to have been taken since, inspite ofchapter case, no. 3 of 2023 under Section 93 of the Prohibition Act, thepetitioner continued to commit similar offences. The order further recordsthat the samples of toddy/shindi were obtained and have been chemicallyanalysed.11.Although the first four crimes that took place and registered in theyear 2022 against the petitioner have been referred to indicate his pastconduct, the same would be relevant so as to indicate his continuous illegalactivities. There is on record C.A. report dated 07th April, 2022 relating tosample of toddy seized from the petitioner, which reads thus :-“The Sample contains 1.20% v/v of ethyl alcohol. It contains yeast,sugar and copper sulphate and it also contains 2.00 mg % w/v ofchloral hydrate in it.”7 / 12 WP-230-24.odt12.True, the report dated 11th October, 2023 indicates that no chloralhydrate was detected in the sample. The same was, however found to havecontained 2.19% of ethyl alcohol, besides yeast and sugar. Its appearancewas like milky hazy liquid. The report dated 01st December, 2023, records asunder :-“The Sample contains 2.71% v/v of ethyl alcohol. It contains yeast,sugar and copper sulphate. No chloral hydrate is detected in it.”There is one more report dated 21st September, 2023 issued bythe Associate Professor of Department of Forensic Medicine of Dr.Shankarrao Chavan Government Medical College, Vishnupuri, which readsthus :-“1- ojhy lanHkkZafdr frUgh vgokyke/;s bFkkbZy vYdksgksy] dkWij lYQsV vkf.kDyksjky gk;MzsV gs ?kVd inkFkZ vlY;kps uewn vkgs- lnjhy inkFkZ ekuokuslsou dsY;kl ‘kjhjkoj gkfudkjd ifj.kke fnlwu ;srkr- rlsp gs frUgh inkFkZfeJhr nzko.k lsou dsY;kl ekuoh ‘kjhjkoj gks.kkjs bFkWukWyps ifj.kke tkLrizek.kkr fnlwu ;srkr-2- ojhy lanHkhZr frUgh vgokykrhy inkFkZ feJhr nzko.k vfrizek.kkr lsoudsY;kl ekuoh ‘kjhjkoj gkfudkjd ifj.kke gksowu R;k O;Drhpk e`R;w gksow‘kdrks-”13.Post receipt of this report only, the proposal for detention of thepetitioner was moved by the Inspector of State Excise Department, Nanded.Before that two in-camera statements have been recorded. The witnesses,on condition of anonymity, disclosed the officials the petitioner to haveintercepted them in the months of October and November and threatenedwith dire consequences if they report the police about his activities relating to8 / 12 WP-230-24.odtsell of toddy. The details of the statements do find place in the detentionorder. The in-camera statements to have also been verified by the officer inthe rank of Superintendent of Police, State Excise, Nanded.14.Relevant provisions of the MPDA Act reads thus :-“2.In this Act, unless the context otherwise requires, -(a) “acting in any manner prejudicial to the maintenance ofpublic order” means - (ii) in the case of bootlegger, when he is engaged, or ismaking preparations for engaging, in any of his activities as abootlegger, which affect adversely, or are likely to affect adversely, themaintenance of public order;Explanation. - For the purpose of this clause (a), publicorder shall be deemed to have been affected adversely, or shall bedeemed likely to be affected adversely, inter alia if any of the activitiesof any of the persons referred to in this clause, directly or indirectly, iscausing or calculated to cause any harm, danger or alarm or a feeling ofinsecurity, among the general public or any section thereof or a grave orwidespread danger to life or public health [or disturbance in publicsafety and tranquility or disturbs the day to day life of the communityby black- marketing in the essential commodities which is resulting inthe artificial scarcity in the supply of such commodities and rises in theprices of essential commodities which ultimately causes inflation] [ordisturbs the life of the community by producing and distributing piratedcopies of music or film products, thereby resulting in a loss ofconfidence in administrations];(b) "bootlegger" means a person, who distills, manufactures, stores,transports, imports, exports, sells or distributes any liquor, intoxicatingdrug or other intoxicant in contravention of any provisions of the*Bombay Prohibition Act, 1949 and the rules and orders madethereunder, or of any other law for the time being in force or whoknowingly expends or applies any money or supplies any animal,vehicle, vessel or other conveyance or any receptacles or any othermaterials whatsoever in furtherance or support of the doing any of theabove mentioned things by or through any other person, or who abetsin any other manner the doing of any such thing;9 / 12 WP-230-24.odt15.The toddy laced with dangerous chemicals seized from thepetitioner was, therefore, necessarily intoxicant.16.The Apex Court, in its judgment in case of Pesala Nookaraju Vs.The Government of Andhra Pradesh & Ors., [2023] 11 SCR 520 hasobserved thus :-“64.…. The potentiality of the act has to be examined in thelight of the surrounding circumstances, posterior and anterior for theoffences under the Prohibition Act.65.Just because four cases have been registered against theappellant detenu under the Prohibition Act, by itself, may not have anybearing on the maintenance of public order. The detenu may bepunished for the offences which have been registered against him. Toput it in other words, if the detention is on the ground that the detenuis indulging in manufacture or transport or sale of liquor then that byitself would not become an activity prejudicial to the maintenance ofpublic order because the same can be effectively dealt with under theprovisions of the Prohibition Act but if the liquor sold by the detenu isdangerous to public health then under the Act 1986, it becomes anactivity prejudicial to the maintenance of public order, therefore, itbecomes necessary for the detaining authority to be satisfied onmaterial available to it that the liquor dealt with by the detenu is liquorwhich is dangerous to public health to attract the provisions of the 1986Act and if the detaining authority is satisfied that such material existseither in the form of report of the Chemical Examiner or otherwise,copy of such material should also be given to the detenu to afford himan opportunity to make an effective representation.”17.In the case in hand, the detaining authority was subjectivelysatisfied that the seized toddy from the appellant was dangerous for humanconsumption. It relied on the report given by the Associate Professor in the10 / 12 WP-230-24.odtDepartment of Forensic Science at Dr. Shankarrao Chavan GovernmentMedical College, Vishnupuri. The said reports were given to the petitionerwhile the order of detention was served on him. The two in-camerastatements have also been relied on. Needless to mention, that thepreventive detention order is an administrative act.18.True, in all the cases the appellant had never been arrested. Hewas served with the notice under Section 41-A of the Cr.P.C. The record,however indicates that a preventive measure under Section 93 of theProhibition Act was initiated against him. Even a bond of good behaviourwas executed by him. During the period of bond, last 2-3 crimes came to beregistered against him. True, for cancellation of the said bond and recoveryof the bond amount, he need to be served with the notice and given anopportunity. Same is the different matter.19.The Apex Court, in case of Vijaykumar Vs. Union of India andOthers, (1988) 2 SCC 57 has observed - Whether the offence for whichdetenue was jailed was bailable or not immaterial for the purpose ofpreventive detention. In view of the same, even the present petitioner tohave not been arrested in connection with any of the crimes registeredagainst him, which found basis of his detention order would, therefore, be ofno consequence. Although, the last crime was registered in September2023. Both the in-camera statements are dated 24th November, 2023. Theproposal for the petitioner’s detention was moved on 28th November, 2023.11 / 12 WP-230-24.odtAs such, there is proximity inter se the crimes registered against thepetitioner and even the last crime, in-camera statements, the proposal fordetention and the order of detention itself.20.For all the aforesaid reasons, we find the detaining authority tohave passed the detention order with his subjective satisfaction. Nointerference with the order impugned herein is, therefore, warranted. In theresult, criminal writ petition fails. Same stands dismissed. Rule standsdischarged.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD12 / 12