High Court
Facts
wp-244-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.244 OF 2025Ramdhan Namdev JadhavAge: 55 years, R/o. Kavtha Kej Tanda,Ausa, District Latur... PetitionerVersus1.District Magistrate,Latur.2.The State of Maharashtra(Through the Secretary HomeDepartment (Spl.),Mantralaya, Mumbai.3.The SuperintendentChhatrapati SambhajinagarCentral Prison,Chhatrapati Sambhajinagar... Respondents…Mr. Rupesh A. Jaiswal, Advocate for the petitioner.Mr. A. M. Phule, APP for respondents/State.... CORAM : SMT. VIBHA KANKANWADI & ROHIT W. JOSHI, JJ.DATE : 27 MARCH 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Mr. Rupesh A Jaiswal for the petitionerand learned APP Mr. A. M. Phule for the respondents – State.2.Rule. Rule made returnable forthwith. The petition is heard finallywith the consent of the learned Advocates for the parties.[1] wp-244-2025-J.odt3.The petitioner challenges the detention order dated 31.12.2024bearing D.O. No.2023/MAG/MPDA/Desk-2/WS-483 passed by respondentNo.1 as well as the approval order dated 10.01.2025 and theconfirmation order dated 06.02.2025 passed by respondent No.2, byinvoking the powers of this Court under Article 226 of the Constitution ofIndia.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, only one offence wasconsidered i.e. Crime No.162 of 2024 registered with Bhada PoliceStation, Taluka Ausa, District Latur for the offence punishable underSection 65(f) of the Maharashtra Prohibition Act, under Section 123 ofthe Bhartiya Nyaya Sanhita. It appears that in respect of Crime No.162of 2024, the CA report has not been received, as it is not stated howmuch percentage of ethyl alcohol was found in the substance. Therefore,in fact, the material placed before the detaining authority has not beenconsidered by her properly. There was no subjective satisfaction arrivedat before passing of the order or to arrive at the conclusion that thepetitioner is a bootlegger. The statements of witnesses ‘A’ and ‘B’ wouldshow that at the most law and order situation would have arisen and not[2] wp-244-2025-J.odtthe public order. The order being illegal deserves to be quashed and setaside.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”). Thedetaining 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 Ms. VarshaThakur – Ghuge, the District Magistrate, Latur/detaining authority. Shesupports the detention order passed by her and tries to demonstrate asto how she had arrived at the subjective satisfaction. She further statesthat her order has been approved by the State Government and also bythe Advisory Board. Thereafter, the confirmation has been given. 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. [3]
Legal Reasoning
wp-244-2025-J.odthe should not sell country liquor, as it is causing destruction of marital lifeof many persons, destroying the youths and then the petitioner aftermaking his associates consume liquor asked them to raise quarrel withthe witnesses and then those co-accused went in front of the house ofthese witnesses, abused and threatened them. The statements of thesetwo witnesses are in fact copy paste. Two persons cannot speak in thesame language and this basic fact ought to have been taken note of bythe detaining authority. When the detaining authority has not taken noteof the copy paste statements of witnesses ‘A’ and ‘B’, it shows nonapplication of mind.9.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 detainingauthority to categorize the petitioner as a dangerous person orbootlegger. 10.For the aforesaid reasons, the petition deserves to be allowed.Hence, following order is passed :-[7] wp-244-2025-J.odtORDERI)The Writ Petition stands allowed.II)The detention order dated 31.12.2024 bearing D.O.No.2023/MAG/MPDA/Desk-2/WS-483 passed by respondent No.1 aswell as the approval order dated 10.01.2025 and the confirmationorder dated 06.02.2025 passed by respondent No.2, are herebyquashed and set aside.III)Petitioner – Ramdhan Namdev Jadhav shall be releasedforthwith, if not required in any other offence.IV)Rule is made absolute in the above terms. [ ROHIT W. JOSHI ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[8]
Arguments
wp-244-2025-J.odt6.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 SCC OnLine SC 367], (ii)Ameena Begum Vs. The State of Tamilnadu and Ors.,[2023 LiveLaw (SC) 743]; (iii) Kanu Biswas Vs. State of West Bengal, [1972 (3) SCC831] wherein reference was made to the decision in Dr. RamManohar Lohia 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 WestBengal, [AIR 1970 SC 852];(vi) Phulwari Jagdambaprasad Pathak Vs. R. H. Mendoncaand Ors., (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 the[4] wp-244-2025-J.odtHon’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. At the outset, it is to be noted that thedetaining authority has considered only one offence i.e. Crime No.162 of2024 for passing the detention order. Perusal of paragraph No.4 ofgrounds of detention would show that in respect of Crime No.162 of2024, the CA report has not been considered by the detaining authoritywhile passing the detention order. The material was not sufficient beforethe detaining authority to categorize the petitioner as bootlegger. Further,the material on record was not sufficient to arrive at a conclusion that theactivities of the petitioner were creating public order situation. At themost, even if we consider that he was selling illicit liquor ormanufacturing it, then it would have created law and order situation.Further, it appears that Chapter Case No.98 of 2022 was proposedunder Section 93 of the Maharashtra Prohibition Act, however, it is notstated whether final order was passed or not and if at all it was passed,then why upon disobedience or recurring of the offence, the bond thatwas got executed from the petitioner was not put for execution i.e. theamount under the same was not recovered. Section 93 of theMaharashtra Prohibition Act, 1949 prescribes for demand of security forgood behaviour to be taken from such person. Section 93 (1) of the saidAct empowers a District Magistrate or a Sub-Divisional Magistrate,[5] wp-244-2025-J.odtwhenever he receives information that any person within the local limitsof his jurisdiction habitually commits or attempts to commit or abets thecommission 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.1 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.Statements of witnesses ‘A’ and ‘B’ would show that they both hadgone to meet the petitioner and then they had advised the petitioner that[6]