High Court · 2024
Facts
1 69.Cri.WP-643-2024.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Writ Petition No. 643 / 2024Baban Shamrao PawarAge : 50 years, R/o Neknoor,Taluka & District Beed. ...PetitionerVersus1.The District Magistrate,Beed.2.State of MaharashtraThrough its Secretary, Home Department (Special),Mantralaya, Mumbai.3.The Superintendent of Jail,Aurangabad Central Prison, Harsul. ..Respondents _ _ _Advocate for the Petitioner : Mr. Rupesh A. Jaiswal A.P.P. for Respondents /State : Mr. G.A. Kulkarni_ _ _ CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ. RESERVED ON : 29 APRIL 2024 PRONOUNCED ON : 6 MAY 202415 APRIL 2024JUDGMENT [Per Shailesh P. Brahme, J.] :.Rule. Rule is made returnable forthwith. Heard both thesides finally with their consent. 2 69.Cri.WP-643-2024.doc 2.The petitioner is aggrieved by order of detention dated05.02.2024 passed by the respondent no.1/District Magistrate,Beed 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). 3.Learned Counsel for the petitioner submits that thesubjective satisfaction by the respondent no.1 is arbitrary andperverse. In the absence of any expert opinion, conclusion hasbeen reached that the activities are prejudicial to themaintenance of public order. It is further submitted thattranslation of few english documents were not furnishedcausing prejudice to petitioner’s right to make effectiverepresentation. Learned Counsel further submits that there isdelay in deciding representation. It is further urged that thereis delay in granting approval under Section 3(3) of the Act. 4.Learned Counsel for the petitioner has placed on recordwritten submissions alongwith judgments being relied on.Additionally during the course of argument, a bunch of paperswhich were given to the detaining authority has also beenplaced on record. 5.Learned APP supports impugned order on the basis of
Legal Reasoning
3 69.Cri.WP-643-2024.doc three affidavits filed on different dates. He has also placed onrecord the documents, which were before the detainingauthority. He submits that there is cogent material availableagainst the petitioner indicating the activities detrimental tothe public order. He would point out that seizure of materialcollected during investigation of both the offences to showgravity. He would submit that subjective satisfaction isintelligible. It is further pointed out that in one of the offencescharge-sheet has been filed which prima facie showsinvolvement of the petitioner. He would further submit that thedetaining authority has not recorded any finding thatcontraband seized from the petitioner was injuries to publichealth. Lastly, he would submit that neither there is delay inprocessing the proposal, nor is there violation of any statutoryprovision. 6.Having heard both the Counsels, we find that C.R.No.226/2023 and C.R. No.336/2023 registered under Section65(f) of the Maharashtra Prohibition Act coupled withpreventive actions, earlier order of detention and in-camerastatements are the foundation to reach the subjectivesatisfaction. Interestingly, grounds of detention refer earlierorder of detention passed on 14.11.2022 against petitioner.However, it has not been clarified as to what happened to theearlier order of detention. Once the sponsoring authority refersto earlier proposal of detention and order passed on 14.11.2022under Section 3(1) of the Act, it was incumbent for the 4 69.Cri.WP-643-2024.doc detaining authority to enquire into it. The respondents shouldhave clarified and placed on record relevant documents ofearlier action of detention. We were curious to know as towhether the petitioner had undergone detention or the order ofdetention was upset either by State Government or AdvisoryBoard. It is left to the speculation that as to what prompted therespondents to undertake action for detention for the secondtime. This reflects on the jurisdiction exercised by the detainingauthority. 7.It has been recorded by the detaining authority thatduring the course of investigation of C.R. No.226/2023,samples of the contraband were referred to chemical analysis.Charge-sheet has also been reported to be filed. In anotheroffence i.e. C.R. No.336/2023, the report of chemical analysis isawaited and the charge-sheet has not been filed. It is concludedby the detaining authority that criminal activities of thepetitioner were affecting public order. It is doubtful as to thecontraband in last offence is illicit liquor or not. The detainingauthority has not referred to experts opinion. Therefore, wefind substance in the submission of learned Counsel for thepetitioner that without there being an expert’s opinion,subjective satisfaction was arrived at. 8.We have considered the judgments cited by the petitionerin the case of Satyavan Shakha Rathod Vs. Commissioner ofPolice Pune City & Ors., Criminal Writ Petition Stamp 5 69.Cri.WP-643-2024.doc No.15879/2023; Prakash Chandrakant Kanjar Vs. State ofMaharashtra & Anr., Criminal Writ Petition No.1258/2023;Dhanubai @ Dhanno Yashvant Netlekar Vs. State ofMaharashtra & Ors., Criminal Writ Petition No.1527/2023 andVishwas Arun Garunge Vs. District Magistrate, Jalgaon,Criminal Writ Petition No.1578/2023. In those matters, afinding was arrived at by the detaining authority thatconsumption of contraband would be hazardous to publichealth. We are of the considered view that ratio of thesejudgments cannot be made applicable to the present case.9.In the present matter, petitioner was found to be inpossession of material and the chemical to manufacture illicitliquor. In C.R. No.226/2023, a report of chemical analysis isavailable. We have perused it. It does not spell out any opinionthat the contraband would be dangerous to humanconsumption. On the basis of two offences, preventive actionsand the in-camera statements, the activities of the petitionerare held to be detrimental to the public order. Learned Counselfor the petitioner has rightly submitted that there has to be anexpert’s opinion to infer that the contraband is dangerous tohuman consumption and ultimately would affect public order.He has aptly referred to judgment in the matter of DistrictCollector, Ananthapur Vs. Laxmanna, 2005 CJ(SC) 400. Therelevant paragraphs are as follows :“7. We do not think this argument of the learned counsel can be accepted. If thedetention is on the ground that the detenu is indulging in manufacture or transport or 6 69.Cri.WP-643-2024.doc sale of arrack then that by itself would not become an activity prejudicial to themaintenance of public order because the same can be effectively dealt with under theprovisions of the Excise Act but if the arrack sold by the detenu is dangerous to publichealth then under the Act, it becomes an activity prejudicial to the maintenance ofpublic order, therefore, it becomes necessary for the detaining authority to be satisfiedon material available to him that the arrack dealt with by the detenu is an arrackwhich is dangerous to public health to attract the provisions of the Act and if thedetaining authority is satisfied that such material exists either in the form of report ofthe Chemical Examiner or otherwise copy such material should also be given to thedetenu to afford him an opportunity to make an effective representation.”8.Therefore, while holding that dealing with arrack which is dangerous to publichealth would become an act prejudicial to the maintenance of public order attracting theprovisions of the Act. It must be held that it is obligatory for the detaining authority toprovide the material on which it has based its conclusion on this point. Therefore, weare in agreement with the High Court that if the detaining authority is of the opinionthat it is necessary to detain a person under the Act to prevent him from indulging insale of goods dangerous for human consumption the same should be based on somematerial and the copies of the such material should be given to the detenu.” 10.In the present matter also, petitioner was not found withthe illicit liquor but found to be in possession of material tomanufacture illicit liquor. That itself would not lead toconclusion that the activities are detrimental to the publicorder. The subjective satisfaction in our considered view isperverse.11.Learned Counsel for the petitioner would refer to pagenos. 216 to 219 which are reports of the chemical analysis,collected during the course of investigation of the offencesregistered against the petitioner. They are in english. We noticethat report dated 20.11.2023 pertains to C.R. No.226/2023which is pitted against petitioner. Learned APP would pointout paragraph no.15 of reply filed on 15.04.2024. We do not 7 69.Cri.WP-643-2024.doc find that translated copies of above mentioned documents werefurnished to the petitioner. This has affected right to make aneffective representation which is important safeguard underArticle 22(5) of the Constitution of India.12.Learned Counsel refers to judgment of Yogesh NanduPujari Vs. Commissioner of Police, Thane & Ors., 2013 ALL MR(Cri) 1779. We have considered relevant paragraph nos. 8 and9 of the judgment. We propose to follow the same. We alsopropose to follow the view taken in the matter of Ketan GorakhDarekar Vs. Commissioner of Police, Pune City & Ors., CriminalWrit Petition Stamp No.16438/2023 and Vishwas ArunGarunge Vs. District Magistrate, Jalgaon, Criminal WritPetition No.1578/2023. There is substance in the submissionsthat the safeguard provided by Article 22(5) of theConstitution of India, has been violated in the present matter. 13.Petitioner submitted representation on 21.02.2024. Itwas rejected on 20.03.2024. It was communicated to thepetitioner on 21.03.2024. We have considered paragraph no. 7of the reply dated 16.04.2024 which states that representationwas received on 28.03.2024.14.There is delay of 27 days in deciding representation forwhich no explanation has been tendered by the respondents.Learned Counsel for the petitioner refers to judgment of HarishPahwa Vs. State of Uttar Pradesh, 1981 CJ(SC) 139. It lays 8 69.Cri.WP-643-2024.doc down that it is duty of state to proceed to determinerepresentation with utmost expedition. The matter must betaken up for consideration as soon as representation isreceived and dealt with continuously until a final decision istaken and communicated. We propose to follow the same viewand constrained to record that delay vitiates the impugnedorder. To avoid repetition, we record that judgments in thematter of Akash Annasaheb Hodade Vs. District MagistrateLatur & Ors., Criminal Writ Petition NO.391/2023, S. AmuthaVs. The Government of Tamil Nadu & Ors., 2022 LiveLaw (SC)25 and Prakash Chandra Yadav @ Mungeri Yadav Vs. State ofJharkhand & Ors., 2023 LiveLaw (SC) 529, lay down ratio onsimilar lines which would support our findings. 15.Impugned order was passed on 05.02.2024. Thepetitioner was detained on 06.02.2024. Order of detentionreceived approval under Section 3(3) of the Act on 13.02.2024.A delay of eight days is sought to be explained by reply dated18.04.2024. Even if it is presumed that on 08.02.2024proposal was received by the State Government, further delayhas not been explained. Learned Counsel for the petitioner isjustified in contending that delay has vitiated impugned order.He relies on the judgment of Hetchin Haokip Vs. State ofManipur & Ors., 2018 ALL SCR (Cri) 1240. We have carefullyconsidered paragraph nos. 13 to 19 of the judgment. Thepurport of word forthwith occurring in Section 3(3) of the Act, 9 69.Cri.WP-643-2024.doc has been explained by the Supreme Court. In that matter alsothere was delay of five days. We propose to follow ratio laiddown to conclude that impugned order is vitiated. Incidentally,the judgment of the Supreme Court has been followed in AkashAnnasaheb Hodade (supra) and Dharani Raja Padyachi Vs.State of Maharashtra and Others, 2019 CJ(Bom) 1658. 16.Learned APP would refer to ratio laid down in the matterof Smt. Phulwari Jagadambaprasad Pathak Vs. R.H. Mendonca and Others, 2000 AIR SCW 2727. We have gone through theparagraph no.16. We are of the considered view that the samewould not enure to the benefit of the respondents as facts aredistinguishable. 17.On the basis of above analysis, we conclude that theimpugned order is unsustainable. We, therefore, pass followingorder :ORDER(i)The Criminal Writ Petition is allowed in terms of prayer clause ‘B’.(ii)Rule is made absolute in the above terms. SHAILESH P. BRAHME MANGESH S. PATIL JUDGE JUDGENAJEEB