High Court

Legal Reasoning

wp-186-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.186 OF 2025Kiran Shrawan KoliAge: 28 years, R/o. Bholane,Taluka and District Jalgaon. .. PetitionerVersus1.District Magistrate, Jalgaon,Jalgaon.2.The State of Maharashtra(Through Additional Chief Secretaryto Government of Maharashtra, Mantralaya, Home Department,Mantralaya, Mumbai.3.The SuperintendentThane Central Prison, Thane... Respondents…Mr. Rupesh A. Jaiswal h/f Ms. Jayshree Tripathi, Advocate for the petitioner.Mr. N. R. Dayama, APP for respondents/State.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.DATE : 17 MARCH 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Mr. R. A. Jaiswal holding for learnedAdvocate Ms. Jayshree Tripathi for the petitioner and learned APP Mr. N.R. Dayama for respondents – State.[1] wp-186-2025-J.odt2.Rule. Rule made returnable forthwith. The petition is heard finallywith the consent of the learned Advocates for the parties.3.The petitioner challenges the detention order dated 18.07.2024bearing No.Dandapra/KAVI/MPDA/26/2024 passed by respondent No.1 aswell as the approval order dated 29.07.2024 and the confirmation orderdated 11.09.2024 passed by respondent No.2, by invoking the powers ofthis Court under Article 226 of the Constitution of India.4.Learned Advocate for the petitioner has taken us through theimpugned orders and the material which was supplied to the petitionerby the detaining authority after passing of the order. He submits thatthough several offences were registered against the petitioner, yet forthe purpose of passing the impugned order, four offences wereconsidered i.e. (i) Crime No.363 of 2022 registered with State ExciseDuty Flying Squad, Jalgaon for the offence punishable under Section65(a)(e) of the Maharashtra Prohibition Act, 1949, (ii) Crime No.24 of2023 registered with State Excise Duty Flying Squad, Jalgaon for theoffence punishable under Section 65(a)(e) of the MaharashtraProhibition Act, 1949, (iii) Crime No.31 of 2023 registered with StateExcise Duty Department, Jalgaon for the offence punishable underSection 65(a)(e) of the Maharashtra Prohibition Act, 1949 and (iv) CrimeNo.42 of 2024 registered with State Excise Duty Department, Jalgaon.[2] wp-186-2025-J.odtfor the offence punishable under Section 65(a)(f)(e) of the MaharashtraProhibition Act, 1949. Learned Advocate for the petitioner submits thatparagraph No.5 of the grounds of detention would show that in all fouroffences were considered by the detaining authority. The first offencethat is considered is Crime No.363 of 2022 and it cannot be said that forpassing order of detention on 18.07.2024, there was any live linkbetween the said offence and the order. He further submits that only inrespect of Crime Nos.363 of 2022, Crime No.24 of 2023 and CrimeNo.31 of 2023, CA Reports have been received and in respect of the lastoffence i.e. Crime No.42 of 2024, the CA report was not received. Hefurther submits that in all the four offences, the petitioner was givennotice under Section 41(1)(a) of the Code of Criminal Procedure andwas not arrested at all. As regards statements of in-camera witnesses ‘A’and ‘B’ are concerned, they are copy paste. The incidents in thosestatements would show that general public was not involved. At the mostlaw and order situation would have been created. Therefore, theimpugned order is illegal and cannot be allowed to sustain. 5.Per contra, the learned APP strongly supports the action takenagainst the petitioner. He submits that the petitioner is a dangerousperson as defined under Maharashtra Prevention of Dangerous Activitiesof Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons andVideo Pirates Act, 1981 (hereinafter referred to as the “MPDA Act”). The[3] wp-186-2025-J.odtdetaining authority has relied on the two in-camera statements and thesubjective satisfaction has been arrived at. There is no illegality in theprocedure adopted while recording the in-camera statements of thewitnesses. Due to the terror created by the petitioner, people are notcoming forward to lodge report against him and, therefore, it affects thepublic order. Learned APP relied on the affidavit-in-reply of Mr. AyushPrasad, the District Magistrate, Jalgaon/detaining authority. He supportsthe detention order passed by him and tries to demonstrate as to how hehad arrived at the subjective satisfaction. He further states that his orderhas been approved by the State Government and also by the AdvisoryBoard. Thereafter, the confirmation has been given. The material beforethe detaining authority was sufficient to arrive at a conclusion that thepetitioner was undertaking bootlegging activities and the liquor that wasseized from him in some of the matters contain ethyl alcohol. Further, thestatements of in-camera witnesses ‘A’ and ‘B’ show that ordinary lawwould not have curtailed the bootlegging activities of the petitioner.Therefore, no fault can be found in the impugned order. 6.Before considering the case, we would like to take note of thelegal position as is emerging in the following decisions :-(i) Nenavath Bujji etc. Vs. State of Telangana and others, [2024 SCCOnLine SC 367], (ii)Ameena Begum Vs. The State of Tamilnadu and Ors., [2023LiveLaw (SC) 743]; [4] wp-186-2025-J.odt(iii) Kanu Biswas Vs. State of West Bengal, [1972 (3) SCC 831]wherein reference was made to the decision in Dr. Ram ManoharLohia vs. State of Bihar and Ors. [1966 (1) SCR 709];(iv)Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, [1995 (3)SCC 237];(v)Pushkar Mukherjee and Ors. Vs. The State of West Bengal,[AIR 1970 SC 852];(vi) Phulwari Jagdambaprasad Pathak Vs. R. H. Mendonca andOrs., (2000 (6) SCC 751) and;(vii)Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, [(1981) 4 SCC 647].7.Taking into consideration the legal position as summarized above,it is to be noted herein as to whether the detaining authority whilepassing the impugned order had arrived at the subjective satisfactionand whether the procedure as contemplated has been complied with ornot. In Nenavath Bujji (Supra) itself it has been reiterated by theHon’ble Supreme Court that illegal detention orders cannot be sustainedand, therefore, strict compliance is required to be made, as it is aquestion of liberty of a citizen. As aforesaid, the detaining authority hadconsidered the aforesaid four offences and two in-camera statements.As regards the first offence i.e. Crime No.363 of 2022 is concerned,there was no live link and therefore, it cannot be considered for passingthe detention order on 18.07.2024. Further, in respect of Crime Nos.24[5] wp-186-2025-J.odtof 2023, Crime No.31 of 2023, CA reports have been received andpercentage of ethyl alcohol that was found was 46% and 9%respectively. The detaining authority has not considered that in respectof last offence i.e. Crime No.42 of 2024, CA report was not received.There was no opinion of any expert medical officer certifying that theseized liquor would have been injurious or harmful to humanconsumption. Further, it appears that the action under Section 93 ofMaharashtra Prohibition Act was taken against the petitioner on31.05.2023 i.e. Chapter Case No.61 of 2023 and obtained bond ofRs.15,000/- for two years from the petitioner. Again action under Section93 of Maharashtra Prohibition Act was taken against the petitioner on21.09.2023 i.e. Chapter Case No.205 of 2023 and obtained bond ofRs.25,000/- for a period of three years. However, it is not stated whetherthe final order was passed or not and if at all, it was passed then whyupon disobedience or recurring of the offence, the bond that was gotexecuted from the petitioner was not put for execution i.e. the amountunder the same was not recovered. Section 93 of the MaharashtraProhibition Act, 1949 prescribes for demand of security for goodbehaviour to be taken from such person. Section 93 (1) of the said Actempowers a District Magistrate or a Sub-Divisional Magistrate, wheneverhe receives information that any person within the local limits of hisjurisdiction habitually commits or attempts to commit or abets the[6] wp-186-2025-J.odtcommission of any offence punishable under this Act, such Magistratemay require such person to show cause why he should not be ordered toexecute a bond, with sureties, for his good behaviour for such period, asthe Magistrate may direct. If the said procedure would have been takento the logical end, the Magistrate i.e. respondent No.2 wasentitled/empowered to take such bond of good behaviour maximum for aperiod of three years. Further, sub-section (2) of Section 93 of the saidAct prescribes that the provisions of Code of Criminal Procedure wouldbe applicable to any proceedings under sub-section (1) of Section 93 asif bond referred to therein were a bond required to be executed underSection 110 of the said Code. Section 110 of the Code then prescribesthe procedure for breach of such bond. That means there is inbuiltmechanism in the Maharashtra Prohibition Act to curtail the activities of ahabitual offender. These proceedings under the Act were not taken to thelogical end. Therefore, the statement by respondent No.1 that ordinarylaw would not have curbed the activities of the petitioner and only thedetention order would have taken care of said activities in the publicinterest cannot be upheld. 8.As regards in-camera statements of witnesses ‘A’ and ‘B’ areconcerned, they are copy paste and the incidents in both the caseswould show that general public was not involved. At the most law andorder situation would have been created. Therefore, these grounds do[7] wp-186-2025-J.odtnot justify the impugned order.9.Further, in all the offences it can be seen that the petitioner wasgiven notice under Section 41(1)(a) of the Code of Criminal Procedureand was not arrested at all. This aspect ought to have been properlyconsidered. Reliance can be placed on the recent decision of theHon’ble Supreme Court in Arjun s/o Ratan Gaikwad Vs. The State ofMaharashtra and others, [Criminal Appeal (Arising out of SLP (Crl.)No.12516 of 2024 dated 11.12.2024 :: 2024 INSC 968], wherein it hasbeen observed that :-“16.In the present case, all the six cases arewith regard to selling of illicit liquor. Though six casesare registered, the Excise Authority did not find itnecessary to arrest the appellant even on a singleoccasion. It would have been a different matter, had theappellant been arrested, thereafter released on bail andthen again the appellant continued with his activities.However, that is not the case here.”10.Thus, taking into consideration the above observations and thedecisions of the Hon’ble Apex Court, at the most, the statements as wellas the offences allegedly committed would reveal that the petitioner hadcreated law and order situation and not disturbance to the public order.Though the Advisory Board had approved the detention of the petitioner,yet we are of the opinion that there was no material before the detaining[8] wp-186-2025-J.odtauthority to categorize the petitioner as a dangerous person orbootlegger. 11.For the aforesaid reasons, the petition deserves to be allowed.Hence, following order is passed :-ORDERI)The Writ Petition stands allowed.II)The detention order dated 18.07.2024 bearingNo.Dandapra/KAVI/MPDA/26/2024 passed by respondent No.1 aswell as the approval order dated 29.07.2024 and the confirmationorder dated 11.09.2024 passed by respondent No.2, are herebyquashed and set aside.III)Petitioner – Kiran Shrawan Koli shall be released forthwith, ifnot required in any other offence.IV)Rule is made absolute in the above terms. [ SANJAY A. DESHMUKH ][ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[9]