High Court · 2024
Legal Reasoning
1 1012.Cri.WP-298-2024.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Writ Petition No. 298 / 2024Babu Topa RathodAge : 52 years, Occu. Agriculture R/o Tukai Tanda, Tq. Georai,District Beed. ...PetitionerVersus1.State of MaharashtraThrough its Additional Chief Secretary, Home Department,Mantralaya, Mumbai.2.The District Collector,Beed.3.The Sub-Divisional Police Officer,Sub-Division Beed,Dist. Beed.4.Police Inspector,Police Station Georai,Dist. Beed.5.The Superintendent of Jail,Harsul Central Prison, Aurangabad. ..Respondents _ _ _Advocate for the Petitioner : Mr. S.E. Shekade A.P.P. for Respondents /State : Mr. V.K. Kotecha _ _ _ CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ. RESERVED ON : 22 MARCH 2024 PRONOUNCED ON : 28 MARCH 2024
Legal Reasoning
2 1012.Cri.WP-298-2024.doc JUDGMENT [ Per Shailesh P. Brahme, J. ] :.Rule. Rule is made returnable forthwith. Heard both the sidesfinally with their consent. 2.The petitioner is aggrieved by order of detention dated 21.12.2023passed by the respondent no.2/District Magistrate, Beed under Section3(1) of the Maharashtra Prevention of Dangerous Activities of SlumlordsBootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, SandSmugglers and Persons Engaged in Black-Marketing of EssentialCommodities Act, 1981 (hereinafter referred to as the MPDA Act for thesake of brevity and convenience). On the basis of two offencesbearing C.R. No.387/2023 and 443/2023 coupled with in-camerastatements, the detaining authority has found him to be bootlegger andliable for detention.3.Learned Counsel Mr. S.E. Shekade for the petitioner, submits thatsubjective satisfaction is perverse as material pitted against his clientis scanty. There is no reason to resort to drastic action under MPDAAct, when the activities of his client do not disclose any detriment topublic order. He would further submit that subjective satisfactionsuffers from non-application of mind in absence of reports of chemicalanalysis. He would further submit that there is unexplained delay inpassing order of detention from registration of last crime. Lastly, hesubmits that there is violation of Section 10 of the MPDA Act.4.Learned Counsel for the petitioner places reliance on followingjudgments : 3 1012.Cri.WP-298-2024.doc (i)Sandeep Govind Pawar Vs. State of Maharashtra and Ors.Criminal Writ Petition No. 172/2023(ii)Rajabhau Ramdas Ade Vs. State of Maharashtra and Ors.Criminal Writ Petition No. 1840/2023(iii)Vijay s/o Rajendra Kale Vs. State of Maharashtra and Ors.Criminal Writ Petition No. 1697/2023(iv)Prakash Chandrakant Kanjar Vs. State of Maharashtra and Anr.Criminal Writ Petition No. 1285/2023 5.Learned APP Mr. V.K. Kotecha defends impugned order relyingupon affidavit-in-reply. He submits that there is no delay or breach ofany statutory provision in concluding action of detention against thepetitioner. The detaining authority has arrived at subjectivesatisfaction, considering record placed before him which is plausibleand reasonable. He submits that in-camera statements arecorroborative and rightly relied upon by the detaining authority. Lastly,he would submit that no case is made out to interfere with theimpugned order under writ jurisdiction. He seeks to rely uponjudgment delivered by our bench in the matter of Vinod DhannulalJaiswal Vs. District Magistrate, Aurangabad and Others in Criminal WritPetition No.1430/2023. 6.We have considered submissions of both the Counsels and gonethrough the relevant record placed before us. At the outset,preventive action against the petitioner is based upon two offences,which are under Section 65(e) and (f) of Maharashtra Prohibition Actand two in-camera statements. Offence bearing C.R. No.387/2023 was 4 1012.Cri.WP-298-2024.doc registered on 26.07.2023. Another offence bearing C.R. No.443/2023was registered on 25.08.2023. In-camera statements were recorded on16.10.2023. They were verified by Sub-Divisional Police Officer on21.10.2023. Record reveals that proposal was forwarded and reachedoffice of District Magistrate on 21.11.2023. On 21.12.2023, order ofdetention was passed. It was approved under Section 3(2) on 29.12.2023.On the same date, proposal was forwarded under Section 10 toAdvisory Board. It was placed before Board on 02.01.2024. It wasconfirmed by the State Government vide order dated 30.01.2024. 7.The petitioner is held to be bootlegger in view of two offencesregistered under Section 65 of Maharashtra Prohibition Act. Relevantpapers of the investigation of C.R. No.387/2023 show that petitionerwas found in possession of 32 liters of illicit liquor. Relevant record ofC.R. No.443/2023 shows that he was found in possession of 30 liters ofillicit liquor. His track record of seven offences would show that hisinvolvement in similar type of offence. No offence under IPC or anyother penal law has been registered against him. He does not appearto be involved in serious offences. We find that material pitted againsthim is inadequate for the drastic action under MPDA Act. 8.We have considered in-camera statements. Though petitionerappears to be involved in bootlegging activity, there is no material onrecord to show that the activity is hazardous to public health. We donot notice that there is nothing to suggest that the activities would be 5 1012.Cri.WP-298-2024.doc danger to public order as such. The petitioner could have been dealtwith by normal penal laws. Action under MPDA act is unwarranted inthe present case. Learned Counsel has rightly relied upon judgmentsdelivered by our bench in the matter of Rajabhau Ramdas Ade andVijay Rajendra Kale (supra). 9.It is submitted that the petitioner has not been arrested and onlynotices under Section 41A of Cr.P.C. have been served on him in thematter pitted against him. Learned Counsel refers to judgment in thematter of Sandeep Govind Pawar (supra) by pointing out paragraphno.13 and 14. Learned APP refers to our latest judgment in the matterof Vinod Jaiswal (supra), wherein view taken in Sandeep Govind Pawar(supra) has been distinguished. We prefer to follow latest view ofVinod Jaiswal (supra). We record our disapproval to the submission ofthe petitioner in this regard.10.Learned Counsel for the petitioner refers to judgment deliveredin the matter of Prakash Chandrakant Kanjar (supra) on the point ofsubjective satisfaction in the matters where there is report of chemicalanalysis. The facts, in the case in hand are distinguishable. Thejudgment cited would not enure to the benefit of the petitioner. 11.Learned Counsel for the petitioner argued point of delay. Lastcrime was registered on 25.08.2023. We have gone through affidavit-in-reply, especially paragraph no. 8 and 9 to examine as to thepromptitude of the authorities. In-camera statements were recorded 6 1012.Cri.WP-298-2024.doc on 16.10.2023. They were verified on 21.10.2023. The proposal reacheddetaining authority on 21.11.2023. Thereafter impugned order waspassed on 12.12.2023, after one month. There is no explanation for thedelay of one month. Unexplained delay vitiates impugned order.12.Learned Counsel for the petitioner points out record to show thatthe subjective satisfaction has been arrived at in the absence ofreports of chemical analysis. The grounds of objection does not referto any report of chemical analysis. No finding is recorded indicatingthat consumption of contraband would be hazardous to public health.Therefore, we are not prepared to countenance the submission oflearned Counsel for the petitioner. We have clarified this position in ourjudgment in the matter of Vinod Jaiswal (supra) in paragraph no. 26. 13.We have also examined the matter to see the compliance ofSection 10 of MPDA Act. Petitioner was actually detained on 25.12.2023.Learned APP would point out paragraph no.10 of affidavit-in-reply toshow the sequence of events to demonstrate compliance of Section 10.On 26.12.2023, the proposal was forwarded to the State Government. Itwas approved on 29.12.2023. It was promptly forwarded to the AdvisoryBoard on the same day. The papers were placed before the AdvisoryBoard on 02.01.2024. Petitioner was heard on 27.01.2024. The StateGovernment confirmed the order on 30.01.2024. There is no reason todisbelieve averments of paragraph no.10 of reply. We find that there isno violation of Section 10 or 11 of MPDA Act. 7 1012.Cri.WP-298-2024.doc 14.Upshot of our discussion is that subjective satisfaction isperverse in the present matter and there is unexplained delay inpassing impugned order. In that view of the matter, we pass followingorder :ORDER(i)The Criminal Writ Petition is allowed in terms of prayer clause (C) and (D).(ii)Rule is made absolute in the above terms. SHAILESH P. BRAHME MANGESH S. PATIL JUDGE JUDGENajeeb..