High Court
Legal Reasoning
WP-698-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.698 OF 2024Arjun s/o. Ratan Gaikwad,Age : 30 years, Occ. Labour,r/o.Kansur Vasti, Tq. Pathri,Dist. Parbhani..PetitionerVs.1.The State of Maharashtra,Through Secretary,Home Department,Mantralaya, Mumbai – 322.The District Magistrate,Parbhani3.The Superintendent of Police,Parbhani4.Sub-Divisional Police Officer,Parbhani..Respondents----Mr.P.P.More, Advocate h/f. Mr.K.B.Jadhav, Advocate for petitionerMr.G.A.Kulkarni, APP for respondents---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON:JULY 31, 2024 PRONOUNCED ON : AUGUST 20, 2024JUDGMENT (Per R.G.Avachat, J.) :- Rule. Rule made returnable forthwith. Heard finally withthe consent of learned counsel for the parties. 2WP-698-20242.The challenge in this Writ Petition under Article 226 ofthe Constitution of India, is to the order dated 05.03.2024, passed byrespondent no.2 – District Magistrate, Parbhani, under Section 3(2) ofthe Maharashtra Prevention of Dangerous Activities of Slumlords,Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates,Sand Smugglers and Persons Engaged in Black-Marketing ofEssential Commodities Act, 1981 (“MPDA Act”, for short), detainingthe petitioner for a period of 12 months, so as to prevent him fromindulging in the activities as bootlegger and thereby, prevent breachof maintenance of public peace. The order of detention has beenconfirmed by the State of Maharashtra in Department of Home, videorder dated 14.03.2024. 3.Learned counsel for the petitioner would submit thatalthough six crimes under Section 65(e) of the MaharashtraProhibition Act were registered against the petitioner, two of themhave been closed in exercise of the powers under Section 258 of theCode of Criminal Procedure. The last, i.e. sixth, crime is pendinginvestigation. In none of the crimes, the petitioner was arrested. Hewas simply issued with notice under Section 41-A of Cr.P.C. Samesuggests, the authorities concerned even did not wish the petitionerto be arrested in connection with any of the crimes registered 3WP-698-2024against him. He would further submit that none of the C.A. reports ofthe samples of illicit liquor, allegedly seized from the petitioner,disclose that consumption thereof was injurious to the health of ahuman being. The petitioner has neither been convicted in any of theoffences of serious nature nor any such crime has even beenregistered against him. The in-camera statements are got up. Theimpugned order is outcome of malafide exercise of the powers andauthority vested in respondent no.2. The same is also vague andviolates the provisions of M.P.D.A. Act. No prescribed procedureunder said Act has been followed before the petitioner was detained.Learned counsel for the petitioner relied on the following judgments:-(i)Pesala Nookaraju Vs. Government ofAndhra Pradesh and ors., 2023 SCC OnLineSC 1003;(ii)Prakash Chandrakant Kanjar Vs. Stateof Maharashtra and anr., (Criminal WritPetition No.1285 of 2023 decided on19.10.2023 by Bombay High Court, Benchat Aurangabad).4.Learned APP would, on the other hand, took us throughthe affidavit-in-reply filed by respondent no.2 – District Magistrateand then took us through the order of detention. He would submitthat within a span of less than six months, i.e. from 25.03.2023 to
Decision
4WP-698-202420.9.2023, six cases under Section 65(e) of the MaharashtraProhibition Act were registered against the petitioner. Thepetitioner’s such activities continued even after a preventivemeasure, chapter case under Section 93 of the very Act, wasinitiated against him. The petitioner even executed a bond in thesum of Rs.1 Lakh, assuring to keep good behaviour. Still, hecontinued his activities of manufacturing illicit liquor and salethereof. The in-camera statements of the witnesses indicate that thevicinity, wherein the petitioner manufacture illicit liquor, is affectedby his activities. The consumers of illicit liquor would gather in largenumber and on consumption of alcohol, they would vomit in thearea. Foul-smell of manufacture of illicit liquor would spread in thearea. It is a popular area. It was, therefore, found necessary to haverecourse to Section 3(2) of the M.P.D.A. Act, to prevent the petitionerfrom indulging in the activities prejudicial to maintenance of publicorder. Learned APP relied on the following decisions:-(i) Phulwari Jagdambaprasad Pathak Vs. R.H.Mendonca, 2000(3) Crimes 112;(ii)Kanuji S. Zala Vs. State of Gujarat & ors., AIR 1999 SC 2269Learned APP would, ultimately, urge for dismissal of the Writ Petition. 5WP-698-20245.Considered the submissions advanced. Perused theorder impugned herein besides the affidavit-in-reply.6.Before adverting to the factual matrix, let us havereference to the relevant provisions of the M.P.D.A. Act, which readsthus:-“2.In this Act, unless the context otherwise requires-(a)“acting in any manner prejudicial to themaintenance of public order” means –(ii)in the case of a bootlegger, when he isengaged, or is making preparations for engaging,in any of his activities as a bootlegger, whichaffect adversely, or are likely to affect adversely,the maintenance of public order.Explanation: For the purpose of this clause (a), publicorder shall be deemed to have been affected adversely,or shall be deemed likely to be affected adversely, interalia if any of the activities of any of the persons referredto in this clause, directly or indirectly, is causing orcalculated to cause any harm, danger or alarm or afeeling of insecurity, among the general public or anysection thereof or a grave or widespread danger to life orpublic health or disturbance in public safety andtranquility or disturbs the day to day life of thecommunity by black-marketing in the essentialcommodities which is resulting in the artificial scarcity inthe supply of such commodities and rises in the prices ofessential commodities which ultimately causes inflationor disturbs the life of the community by producing anddistributing pirated copies of music or film products,thereby resulting in a loss of confidence inadministration.(b)“bootlegger” means a person who distills,manufactures, stores, transports, imports, exports, sellsor distributes any liquor, intoxicating drug or otherintoxicant in contravention of any provisions of theBombay Prohibition Act, 1949 and the rules and orders 6WP-698-2024made thereunder, or of any other law for the time beingin force or who knowingly expends or applies any moneyor supplies any animal, vehicle, vessel or otherconveyance or any receptacles or any other materialswhatsoever in furtherance or support of the doing any ofthe above mentioned things by or through any otherperson, or who abets in any other manner the doing ofany such thing.”7.The order of detention reads thus:-2. It has been noticed that you are having criminalbackground as per definition of bootlegger prescribe inthe said Act. You are illegally preparing the handmadeliquor from chemicals. You are involved in setting up thehandmade liquor. The handmade liquor is injurious tothe public health and dangerous to the human life. Youare aware about this, even then you are openlypreparing the handmade liquor and distributing andselling it at Kansur, Pathari city and nearby villages.There are various instances of death due to consumptionof handmade liquor. The State Excise DepartmentParbhani had registered various offences against you formaking, preparing, distributing, possessing thehandmade liquor. All the offences registered against youare under Maharashtra Prohibition Act and same areregistered with the office of Inspector of State ExciseParbhani. Because of said criminal habit of yourself, andillegal and hazardous preparation of handmade liquor,illegally distributing, selling in the nearby vicinity due tothis the law abiding people are loosing faith in law andthere is danger to the life of human being. Due to yoursaid activities there is danger to the public peace ofvillages Kansur, Pathari city and nearby villages of theDistrict. Due to your illegal activities, the State ExciseDepartment on various occasion registered offencesagainst you. The action under section 93 of theMaharashtra Prohibition Act as a restraining action wastaken against you, but there is not any effect and youcontinue the criminal activities.8.In paragraph 3 of the detention order, a list of six crimesregistered against the petitioner under Section 65(e) of the 7WP-698-2024Maharashtra Prohibition Act has been given besides the details as topreventive action taken against him. Same is reproduced below forready reference:-Sr.No.Office with whom offense registered Crime No, Date and SectionCharge sheet and DateRemark1Sub-Inspector, State Excise, Pathhari20/2023, dt. 29/1/2023, Maharashtra Prohibition Act Sec.65(e)SCC No.211/2023 dt.25.3.2023Subjudice2Inspector, State Excise, Parbhani61/2023, dt.18/3/2023, Maharashtra Prohibition Act Sec.65(e)SCC No.335/2023, dt.23/8/2023 Subjudice3Inspector, State Excise, Parbhani89/2023, dt.24/4/2023, Maharashtra Prohibition Act Sec.65(e)SCC No.338/2023 dt.23/8/2023Subjudice4Inspector, State Excise, Parbhani126/2023 dt.17/05/2023, Maharashtra Prohibition Act Sec.65(d)(e)SCC No.358/2023, dt.4/9/2023Subjudice5Inspector, State Excise, Parbhani253/2023, dt.09/09/2023, Maharashtra Prohibition Act Sec.65(e)(f)SCC No.419/2023, dt.20/9/2023Subjudice6Inspector, State Excise, Parbhani327/2023, dt.18/10/2023, Maharashtra Prohibition Act Sec.65(e)(f)On Investigation 8WP-698-2024Preventive ActionSr. No.Office who taken preventive actionPreventive actionStatus Offences registered afterpreventive action 1Inspector of State Excise, ParbhaniProposal No.DET112023/173/Insp. Dated 26/04/2023 forwarded to Ld. Deputy Divisional Magistrate, Pathari, for action under section 93 of Maharashtra Prohibition Act (Security for Good behaviour)Deputy Divisional Magistrate, Pathari, obtained good behavior bond of Rs.1,00,000/-Though preventive action was taken under section 93 even then continued the offences of bootlegging and on 9/9/2023 offence is registered2Inspector of State Excise, ParbhaniProposal No.DET.112023/279/Insp.Dated 10/09/2023 forwarded to Ld. Deputy Divisional Magistrate Pathari for cancellation of good behaviour bond of Rs.1,00,000/- as further offences registeredPending beforeDeputy Divisional Magistrate, PathariThrough procedure of cancellation of good behavior bond was pending even then bootlegging activities continued and all 18/10/2023 offence is registered9.It is further observed in the detention order that inspiteof the fact that the aforesaid cases were registered against thepetitioner from time to time, there has been no effect on him. Thepetitioner continued his activities of distillation of handmade liquorand sale thereof. It has further been observed that the activities ofthe petitioner were harmful to human life. The detaining authority 9WP-698-2024was subjectively satisfied that the action under Section 3(2) of theM.P.D.A. Act was warranted against the petitioner. The order furtherrecords the details of the FIRs registered against the petitioner. Itfurther refers/records the gist of the in-camera statements of thewitnesses. Then, in paragraph 11 of the order, it has been observedthus:-11. I have considered your actions and all theramifications of such actions from all angles. I have alsoconsidered the serious consequences of your actions onpublic order. From the above facts and from the recordsplaced before me, I am convinced that you are abootlegger as defined in the said Act and I am convincedthat your release would adversely affect the public orderof Kansur, Pathari city and adjoining areas. Existing lawsare not enough to curb your criminal and dangerousactivities. As witnesses do not come forward to testifyagainst you. I am convinced from the above mentionedincident number that you have created terror in theminds of the residents of the above mentioned areas.Due to this, the public order in the said area has beenadversely affected and the daily life has been disruptedand the action taken under the prevailing law to curbsuch activities has been futile. Therefore, I have nooption but to book you under Maharashtra SlumHooligans, Handicrafts, Drug Offenders, DangerousPersons, Unlicensed Exhibitors, Video Pirates, SandSmugglers and Black Marketers of EssentialCommodities Act, 1981. 10.It is undisputed that within a span of less than sixmonths, i.e. from 25.03.2023 to 20.9.2023, five offences punishableunder Section 65(e) of the Maharashtra Prohibition Act were 10WP-698-2024registered against the petitioner. Thereafter, again on 18.10.2023,similar crime came to be registered against him. Same is pendinginvestigation. In none of the crimes, the petitioner was arrested.The reason there-behind is that those offences were not punishablewith imprisonment for more than seven years. The record furtherindicates that the petitioner executed a bond under Section 93 of theMaharashtra Prohibition Act to maintain peace and good behaviour.It was executed on 22.04.2023. Post execution of the bond, thepetitioner indulged in the activities of distillation and sale ofhandmade/illicit liquor. 11.It is a matter of common knowledge that consumption ofillicit liquor is necessarily injuries to health. The detaining authorityhas observed in its order that the witnesses, who gave theirstatements on the condition of anonymity, disclosed that thepersons residing in the vicinity, whereat the petitioner distills andmanufacture illicit liquor, feel unsecured. Women and children ofthat area even apprehend to move freely. Consumers and persons ofcriminal background throng at the petitioner’s liquor den. Suchpersons consume illicit liquor to such an extent that they behavedisorderly in that area itself. They vomit and even disturb thetranquility of the area. Both the witnesses have further disclosed the 11WP-698-2024petitioner to have met them in the months of February, 2023 andMarch, 2023 and threatened them of dire consequences, if theycame in his way of running the liquor den. These statements havebeen duly verified by the Superintendent of Police (Excise).12.It is true, in paragraph 66 of the judgment of the ApexCourt in the case of Pesala Nookaraju (supra), it has beenobserved thus :-“66.Just because four cases have been registeredagainst the appellant detenu under the Prohibition Act, byitself, may not have any bearing on the maintenance ofpublic order. The detenu may be punished for the offenceswhich have been registered against him. To put it in otherwords, if the detention is on the ground that the detenu isindulging in manufacture or transport or sale of liquor thenthat by itself would not become an activity prejudicial tothe maintenance of public order because the same can beeffectively dealt with under the provisions of theProhibition Act but if the liquor sold by the detenu isdangerous to public health then under the Act 1986, itbecomes an activity prejudicial to the maintenance ofpublic order, therefore, it becomes necessary for thedetaining authority to be satisfied on material available toit that the liquor dealt with by the detenu is liquor which isdangerous to public health to attract the provisions of the1986 Act and if the detaining authority is satisfied thatsuch material exists either in the form of report of theChemical Examiner or otherwise, copy of such materialshould also be given to the detenu to afford him anopportunity to make an effective representation.”It is also true that in the case of Prakash (supra), thisCourt held that issuance of notice under Section 41-A of Cr.P.C. itself 12WP-698-2024indicates the authorities did not wish to arrest the petitioner therein.It was also observed that without resorting to the provisions of theordinary law of land, recourse to stringent provisions of preventivedetention may not be had. Those were observations made in thefacts and circumstances of the case.13.The C.A. reports in all the cases registered against thepetitioner indicate that the samples drawn contained ethyl alcohol invarious percentage. True, it is below 24.60%. The in-camerastatements indicate that the activities of the petitioner wereprejudicial to maintenance of public order. In the case of it has beenobserved by the Apex Court thus:-“4.In our opinion there is no substance in thiscontention. In none of the three cases relied upon by thelearned counsel the point whether public order can be saidto have been disturbed on the ground that the activity of thedetenue was harmful to the public health arose forconsideration. It appears that in those three cases, thedetaining authority had not recorded such satisfaction.Moreover, in those cases the detaining authorities hadreferred to some incidents of beating but there was nomaterial to show that as a result thereof even tempo ofpublic life was disturbed. In this case, the detainingauthority has specifically stated in the grounds of detentionthat selling of liquor by the petitioner and its consumptionby the people of that locality was harmful to their health.The detaining authority has also stated that the statementsof witnesses clearly show that as a result of violenceresorted to by the petitioner even tempo of the public lifewas disturbed in those localities for some time. Thematerial on record clearly shows that members of the publicof those localities had to run away from there or to go insidetheir houses and close their doors. 13WP-698-20245.What is required to be considered in such cases iswhether there was credible material before the detainingauthority on the basis of which a reasonable inference couldhave been drawn as regards the adverse effect on themaintenance of public order as defined by the Act. It is alsowell settled that whether the material was sufficient or notis not for the Courts to decide by applying an objective testas it is a matter of subjective satisfaction of the detainingauthority. The observations made by this Court in OmPrakash v. Commissioner of Police, 1989 Supp.(2) SCC 576 :(AIR 1990 SC 496 : 1990 CriLJ328) that “as in PiyushMehta Case (AIR 1989 SC 491 : 1989 CriLJ 956), thematerials available on record in the present case are notsufficient and adequate for holding that the allegedprejudicial activities of the detenue have either affectedadversely or likely to affect adversely the maintenance ofpublic order within the meaning of Section 4(3) of the Actand as such, the order is liable to be quashed” are to beunderstood in the context of the facts of that case.”14.Learned APP was right in submitting that the in-camerastatements can be relied on for passing the detention order. Heeven has rightly relied on the judgment of the Apex Court in the caseof Phulwari Jagdambaprasad Pathak (supra), wherein the in-camera statements of the witnesses, who did not give day, date oreven the time of the incident have been relied upon. 15.So far as regards non-arrest of the petitioner in any ofthe crimes registered against him and issuance of notice underSection 41-A of Cr.P.C. is concerned, we propose to rely on thefollowing decisions of the Apex Court:-(i)Mohd. Salim Khan Vs. Shri.C.C.Bose, DeputySecretary to the Government of West Bengal and anr., 1972 14WP-698-2024AIR (SC) 1670, wherein it is observed thus:-“A. West Bengal (Prevention of Violent Activities)Act, 1970 (President’s Act 19 of 1970), Sections 3(1) and 3(3) –Detention order after discharge of petitioner in criminal case – Avalid order of detention could be passed against him in connectionwith those very incidents.(ii)Nenavath Bujji etc. Vs. The State of Telangana andors., AIR 2024 SC 1610, observed thus:-25. The power of preventive detention isqualitatively different from punitive detention. Thepower of preventive detention is a precautionary powerexercised in reasonable anticipation. It may or may notrelate to an offence. It is not a parallel proceeding. Itdoes not overlap with prosecution even if it relies oncertain facts for which prosecution may be launched ormay have been launched. An order of preventivedetention, may be made before or during prosecution.An order of preventive detention may be made with orwithout prosecution and in anticipation or afterdischarge or even acquittal. The pendency ofprosecution is no bar to an order of preventivedetention. An order of preventive detention is also not abar to prosecution. [See : Haradhan Saha Vs. the Stateof W.B., 1974 Cri. L.J. 1479] 16.The Apex Court, in the case of Vijaykumar Vs. Union ofIndia and others, (1988)2 SCC 57 has observed – Whether theoffence for which the detenue was jailed, was bailable or not isimmaterial for the purpose of prevention detention. In view of the 15WP-698-2024same, in the present case, the petitioner has not been arrested inconnection with any of the crimes registered against him, whichfound basis of his detention order would, therefore, be of noconsequence.17.Admittedly, the preventive measure under Section 93 ofthe Maharashtra Prohibition Act was taken against the petitioner.Still, he continued to indulge in manufacture of handmade/illicitliquor and sale thereof. The in-camera statements indicate that theactivities of the petitioner were causing disturbance to day-to-dayactivities of the inhabitants of that area. Same necessarily affectedmaintenance of public order. The detaining authority (respondentno.2), after having considered all the aspects of the matter, came tothe subjective satisfaction and passed the order impugned herein.18.In the facts and circumstances of the case, we find noerror in the impugned order or any other reason to interferetherewith.In the result, the petition is dismissed. Rule is discharged. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP