Rohit Patwardhanrelies on our recent judgment in the matter of Supadu BanduTadvi v. District Magistrate, Jalgaon and Others, CriminalWrit Petitio
Facts
1 1025.Cri.WP-435-2024.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Writ Petition No. 435 / 2024Hussain Sardar TadviAge : 43 years, Occ.Labour, R/o Chaligaon, Tq. Jamner,District Jalgaon. ...PetitionerVersus1.The District Magistrate,Jalgaon.2.State of MaharashtraThrough its Additional Chief Secretary, Government of Maharashtra,Home Department (Special),Mantralaya, Mumbai.3.The Jail Superintendent,Central Prison, Thane, Dist. Thane. ..Respondents _ _ _Advocate for the Petitioner : Mr. Rohit p. Patwardhan A.P.P. for Respondents /State : Mr. G.A. Kulkarni_ _ _ CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ. RESERVED ON : 7 MAY 2024 PRONOUNCED ON : 10 MAY 2024 APRIL 2024JUDGMENT [Per Shailesh P. Brahme, J.] :.Rule. Rule is made returnable forthwith. Heard both thesides finally with their consent.
Legal Reasoning
5 1025.Cri.WP-435-2024.doc the matters are different which can hardly have anyresemblance of any danger to the public order. 8.In the matter in hand, no report of chemical analysis isavailable in the last three offences. They are reported to beunder investigation. In the absence of any such report, noinference can be drawn that the contraband seized was anintoxicant. On identical facts, we have recorded followingfindings in the matter of Supadu Bandu Tadvi (supra) :“14.It is necessary to note that admittedly, the latest two crimes no. 269 of 2023and 437 of 2023 are pending investigation and there is no report of the chemical analysisin respect of the liquid allegedly seized from the petitioner. In the absence of any suchreport at this juncture, it cannot be said even prima facie that it was an intoxicant. We areconsciously referring to these facts to demonstrate as to if the live link between the crimebeing relied upon and the impugned order has ever been snapped. Once it is found thatthe latest two crimes are still under investigation and there are no chemical analysis reports,that makes it abundantly clear as to why respondent no. 1 – detaining authority has alsobeen relying upon the earlier three crimes no. 325 of 2022, 397 of 2022 and 51 of 2023,which were registered on 04-09-2022, 19-11-2022 and 25-02-2023 respectively onlybecause in all these matters, there are chemical analysis reports and the chargesheets havebeen filed. Resultantly, irrespective of the stand being taken by the respondents and thelearned APP, the impugned order can certainly be said to have been passed not on thebasis of the latest crimes which they could not have legally done in the absence ofchemical analysis reports but passed on three crimes immediately prior thereto.” 9.The last offence having report of chemical analysis is C.R.No.397/2022 which was registered on 19.12.2022. Afterfifteen months and order of detention was passed on20.02.2024. We notice similar situation in the matter ofSupadu Bandu Tadvi (supra) to hold that the gap snapped livelink between crime and the preventive action. We propose to 6 1025.Cri.WP-435-2024.doc follow the same view and for that we reproduce paragraphno.15 of the judgment in the matter of Supadu Bandu Tadvi(supra) :“15.Last of the earlier three crimes i.e. crime no. 51 of 2023 was registered on 25-02-2023 whereas the impugned order of preventive detention has been passed on 27-12-2023, with a gap of more than 10 months. This precisely, in our considered view, is aclinching fact which adversely affects the subjective satisfaction arrived at by respondentno.1 – detaining authority. If the impugned order was passed after 10 months of registrationof crime no. 51 of 2023 on 25-02-2023, the period of 10 months intervening clearly snapsthe live link between the crime and the preventive action. Merely because in the meantime,the last two offences have been registered would be inconsequential for the simple reasonthat no person could have reached a subjective satisfaction of the activity beingbootlegging in the absence of the report of the chemical analysis. One cannot overlook thislong period of more than 10 months from the registration of crime no. 51 of 2023 and theimpugned order.”10.During the span of fifteen months from 19.11.2022 to20.02.2024, action under Section 93 of the MaharashtraProhibition Act was initiated on 24.11.2022 in registrationno.266/2022 and on 18.09.2023 in registration no.234/2023.During this period of fifteen months, petitioner was notinvolved in any bootlegging activity duly supported by primafacie material of report of chemical analysis of contraband.Therefore action under Section 93 of the MaharashtraProhibition Act would not provide in live link between C.R.No.397/2022 and detention order passed on 20.02.2024. 11.Action under Section 93 of the Maharashtra ProhibitionAct was taken against petitioner on 10.08.2021; 24.11.2022and 18.09.2023. Despite these actions petitioner continued to 7 1025.Cri.WP-435-2024.doc indulge in activities of bootlegging. No action to forfeit the bondand to recover the amount, was taken against the petitioner. Ina similar set of facts, we have held in paragraph no.17 in thejudgment in the matter Supadu Bandu Tadvi (supra) that theinference of the detaining authority that ordinary penal law ofthe land was unable to prevent petitioner’s activities isperverse, applies with equal force in the present matter also. 12.We have considered in-camera statements A and Bcarefully. The instances cited by the witnesses appear to beindividual centric. It seems highly unbelievable that thewitnesses would expressly challenge the petitioner and hisactivities openly when they are stated to be under threat of thepetitioner. Considering the material pitted against thepetitioner, we find that the subjective satisfaction is notplausible, but perverse. 13.It reveals from record that impugned order was passed on20.02.2024. It is stated in paragraph no.8 of the affidavit-in-reply that on 22.02.2024, the proposal was forwarded to theState Government. It was approved under Section 3(3) of theMPDA Act on 01.03.2024. For securing approval period ofeight days is consumed which is not properly explained by therespondents in the affidavits. This delay vitiates impugnedorder because respondents appear to be quite casual inapplying the provisions of the Act. We have no doubt that the 8 1025.Cri.WP-435-2024.doc impugned order is not unsustainable. We, therefore, passfollowing order : ORDER(i)The Criminal Writ Petition is allowed in terms of prayer clause ‘C’.(ii)Rule is made absolute in the above terms. SHAILESH P. BRAHME MANGESH S. PATIL JUDGE JUDGENAJEEB..
Arguments
2 1025.Cri.WP-435-2024.doc 2.The petitioner is assailing order of detention dated20.02.2024 passed by the respondent no.1/District Magistrate,Nanded under Section 3(1) of the Maharashtra Prevention ofDangerous Activities of Slumlords Bootleggers, Drug-Offenders,Dangerous Persons and Video Pirates, Sand Smugglers andPersons Engaged in Black-Marketing of Essential CommoditiesAct Act, 1981 (hereinafter referred to as the MPDA Act for thesake of brevity and convenience). By impugned order,petitioner is held to be a bootlegger on the basis of followingrecord :Sr.No.Police StationC.R. NumberDate ofRegistrationNature of Offence 1Pahur55/202223.02.2022Under Sections 65(e),(f)(b)(c) ofMaharashtra Prohibition Act, 1949 2Pahur397/202219.11.2022Under Sections 65(e),(f)(b)(c) ofMaharashtra Prohibition Act, 1949 3Pahur282/202325.07.2023Under Sections 65(e)of MaharashtraProhibition Act, 1949 4Pahur286/202327.07.2023Under Sections 65(e)of MaharashtraProhibition Act, 1949 5Pahur484/202306.12.2023Under Sections 65(e)of MaharashtraProhibition Act, 1949 DETAILS OF PREVENTIVE ACTIONS 7Pahur93/202110.08.2021As per Section 93 of MaharashtraProhibition Act, 1949 8Pahur266/202224.11.2022As per Section 93 of MaharashtraProhibition Act, 1949 9Pahur234/202318.09.2023As per Section 93 of MaharashtraProhibition Act, 19493.Learned Counsel for the petitioner Mr. Rohit Patwardhanrelies on our recent judgment in the matter of Supadu BanduTadvi Vs. District Magistrate, Jalgaon and Others, CriminalWrit Petition No.112/2024. He submits that all facts andcircumstances of the case in hand are identical. Petitioner anddetenue in that matter are relatives and in a couple of offences, 3 1025.Cri.WP-435-2024.doc they are co-accused. Petitioner is assailing impugned order onselfsame grounds of objections which are considered andapproved in the matter of Supadu Bandu Tadvi (supra). He,therefore seeks to apply the same reasoning in the presentmatter. 4.He would submit that the subjective satisfaction isperverse. There is no live link. No steps were taken by therespondent to forfeit the bond and to recover money. He wouldfurther submit that in-camera statements are liable to bediscarded and would be of no assistance. 5.Learned APP Mr. Kulkarni supports impugned order onthe basis of affidavit-in-reply. He would submit that reasonsassigned by this bench in the matter of Supadu Bandu Tadvi(supra) cannot be made applicable to the present case. Hesubmits that the findings recorded in paragraph no.11 arebased on the percentage of ethyl alcohol found in the watercannot be faulted with. He would further submit that thesubjective satisfaction is intelligible one. After following dueprocedure of law, impugned order was passed.6.We have considered rival submissions of the parties. Inthe present matter five offences, three preventive actions andtwo in-camera statements are pitted against the petitioner. Wehave also gone through our latest judgment delivered in the 4 1025.Cri.WP-435-2024.doc matter of Supadu Bandu Tadvi (supra). In that matter alsodetenue was declared to be bootlegger on the basis of selfsamerecord which is enlisted in paragraph no.2. We have carefullyconsidered date of registration of the offences and that ofpreventive actions in both the matters. Petitioner and detenuein that matter appear to be relatives. Even they are co-accusedin C.R. No.397/2022 and 484/2023. In both the matters alloffences are pitted under the provisions of MaharashtraProhibition Act. Even the preventive actions are also underSection 93 of the Maharashtra Prohibition Act, equal innumber in both the matters. Their place of residence is alsothe same. At the outset we find merit in the submissions oflearned Counsel for the petitioner that quality and quantity ofthe record pitted against the petitioner is selfsame and we canrely upon the reasoning assigned in the matter of SupaduBandu Tadvi (supra).7.We have noticed only a marginal difference in the twomatters. In the matter of Supadu Bandu Tadvi (supra), out offive offences the report of chemical analysis was available infirst three offences whereas in the present matter it is availableonly in first two offences. In matter of Supadu Bandu Tadvi(supra), in paragraph no. 15 it has been recorded that there isa gap of more than ten months between the last crime havingreport of chemical analysis and the impugned order. Whereas,in the case in hand such a gap is of fifteen months. We furthernotice that the instances cited by in-camera statements in both