Nilesh Charandas Gaikwad v. State of Maharashtra, AIR Online
Legal Reasoning
1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 417 OF 2024Latabai W/o. Ganpat Kale….PetitionerVersus1.The State of Maharashtra and others ….Respondents ….Advocate for Petitioner : Mr. M.P. KaleAPP for Respondents : Mr. G.A. Kulkarni…CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ. DATE : 08 APRIL 2024ORAL JUDGMENT (Per : Shailesh P. Brahme, J.) :1.Rule. Rule is made returnable forthwith with the consent ofthe parties. Heard litigating sides finally at the admissions stage.2.Petitioner is assailing order of detention dated 22.12.2023passed by respondent no. 2 – District Magistrate, under Section 3 (1) ofthe Maharashtra Prevention of Dangerous Activities of Slumlords,Bootleggers, Drug-Offenders, Dangerous Persons and Video Pirates,Sand Smugglers and Persons engaged in Black-marketing of EssentialCommodities Act, 1981 (hereinafter referred to as ‘the MPDA Act’ forthe sake of brevity and convenience).
Legal Reasoning
2 3.Respondent no. 2 – Detaining Authority arrived atsubjective satisfaction to declare petitioner as Bootlegger on the basis offollowing material :i.C.R. No. 952 of 2023 punishable under Section 65 (b) (d) of theMaharashtra Prohibition Act, 1949, registered on 16.12.2023.ii.C.R. No. 954 of 2023 punishable under Section 65 (b) (d) of theMaharashtra Prohibition Act, 1949, registered on 18.12.2023.iii.Chapter Case No. 9 of 2023 under Section 93 of MaharashtraProhibition Act, registered on 13.07.2021.iv.Chapter Case No. 11 of 2023 under Section 93 of MaharashtraProhibition Act, registered on 21.06.2023.v.Two in-camera statements of anonymous witnesses.4.Learned counsel for the petitioner submits that there was noadequate material against petitioner to hold her a bootlegger and thesubjective satisfaction is perverse. He would submit that the DetainingAuthority did not consider orders of acquittals recorded in earlieroffences pitted against her. He would submit that in-camera statementswere liable to be discarded. It is further submitted that the activities ofthe petitioner were not detrimental to the maintenance of public order.Lastly, it is contended that there was as such no material to resort to thedrastic action against the petitioner. 3 5.Learned counsel for the petitioner relies on the followingjudgments :1. Rekha Versus State of Tamil Nadu TR. Sec.To Govt. and another, AIR2011 SCW 2262 ;2. Nilesh Charandas Gaikwad Versus State of Maharashtra, AIR Online2022 BOM 5343 ;3. Dipak Alias Fantya Ashokrao Kawanpure Versus State ofMaharashtra and others, AIROnline 2022 BOM 18.6.Learned APP supports impugned order on the basis ofaffidavit-in-reply. He would vehemently submit that petitioner is ahabitual offender which is evident from thirteen offences registeredagainst her. Out of them, last two offences were considered coupled withpreventive action. He would submit that petitioner was not released onbail but she was served with a notice under Section 41 (A) (1) and thereis no question of considering the orders enlarging her on bail. It is furthersubmitted that due procedure of law was followed, timeline stipulated inthe MPDA Act was adhered to and opportunity was given to thepetitioner. Lastly, he seeks reliance upon the judgment of Supreme Courtrendered in the matter of Gautam Jain Versus Union of India, AIR 2017SC (CRI) 184, to buttress submission that by implication of Section 5 A,impugned order cannot be vitiated. 4 7.We have considered rival submissions of the parties. Wehave gone through the relevant material placed on record. The DetainingAuthority has considered only two offences registered against thepetitioner, both were punishable under 65 (b) (d) of the MaharashtraProhibition Act. In both the offences, instead of arresting her she wasserved with notice under 41 (A) (1) of Cr.P.C. Although, there are feworders of acquittal recorded in earlier offences, those offence were notconsidered by the Detaining Authority, hence are not relevant.8.As the petitioner was not released on bail, there can be noquestion of considering orders enlarging her on bail by the DetainingAuthority. In the first offence, petitioner was found to be in possession of12 litres of illicit liquor. In another offence, she was found to be inpossession of 10 litres of illicit liquor and 12 litres of chemical to beused for manufacturing illicit liquor. Both the offences are underinvestigation. Considering the relevant papers of the investigation, weare of the considered opinion that the activity of bootlegging, per se,cannot be said to be detrimental to the public order. We have alreadytaken view in similar set of facts when a detenue is pitted with twooffences under Section 65 (b) (d) of the Maharashtra Prohibition Act, incase of Rajabhau Ramdas Ade Versus The State of Maharashtra andothers, passed by this High Court in Criminal Writ Petition No. 1840 of 5 2023 dated 21.02.2024 and Dhanubai @ Dhanno Yashvant NetlekarVersus State of Maharashtra and others, 2024 SCC Online Bom 484,the material would be scanty for drastic action of detention. 9.Learned counsel for the petitioner seeks to rely uponjudgment of Nilesh Charandas Gaikwad (supra) in which the DetainingAuthority held the detenue as a bootlegger on the basis of two offencesregistered under the Maharashtra Prohibition Act. Division Benchquashed the order of detention holding that the activity of thebootlegging might be prejudicial to the maintenance of public health butit was required to be prejudicial to the maintenance of public order. Wealso propose to take the same view in the present matter.10.We have considered in-camera statements of both thewitnesses. Those were recorded on 18.12.2023.Those were verified on20.12.2023 by the Sub-Divisional Police Officer. The instances cited bythe witnesses in the statements do not attribute any activity ofbootlegging. Rather they would be suggestive of the petitioner being a‘dangerous person’. In-camera statements are corroborative in nature.We are of the considered view that statements are not reliable and shouldhave been discarded by the Detaining Authority. 11.The Detaining Authority has recorded that activities of thedetenue would indicate terror established by the detenue in the minds of 6 public and habitual bootlegging would be prejudicial to the maintenanceof public order. There is a difference between ‘public order’ and ‘law andorder’. Record indicates that petitioner indulged in bootlegging activitiespreviously also. However, there is no sufficient material coallatled toindicate that ordinary criminal law would be inadequate to curb theactivities of the petitioner. We do not find such a gravity in the case inhand so as to resort to the drastic and draconian action under the MPDAAct. In this view of the matter, learned counsel for the petitioner hasrightly submitted that the subjective satisfaction is not only defective butpatently illegal. 12.Learned counsel for the petitioner has invited our attentionto law laid down by Supreme Court in the matter Rekha (supra). We havegone through paragraph nos. 37 to 46. Considering the true purport ofthe preventive action in juxtaposition to right of the petitioner guaranteedunder Article 21 of the Constitution of India, we have no hesitation torecord that there was no adequate material and the case in hand does notwarrant the drastic action.13.Learned APP has vehemently pressed into service Section 5(A) of the Act to contend that impugned order cannot be vitiated. Hewould place reliance on judgment of Supreme Court in the matter ofGautam Jain Versus Union of India. We have gone through relevant 7 paragraphs of the judgment. The judgment is distinguishable on thefacts. In the present matter, there is no adequate material to proceedagainst the petitioner under the MPDA act. The in-camera statements arenot reliable. On very trifle material the action of detention is proposedagainst the petitioner. Under these circumstances, we are of the opinionthat the submissions of the learned APP cannot be accepted.14.We therefore, pass the following order :OPERATIVE ORDERI.The criminal writ petition is allowed.II.The impugned order dated 22.12.2023 passed bythe respondent No. 2/District Magistrate, Hingoli isquashed and set aside.III.The petitioner shall be set at liberty.IV.Rule is made absolute in above terms. [ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ]Thakur-Chauhan/-