High Court · 2024
Legal Reasoning
961.Cri.WP-751-2024.odt858. It can be distinguishable on facts. We have already come toconclusion that there is no unexplained delay in the matter in hand.Therefore ratio laid down therein, is not applicable to the case inhand. 18.The impugned order was passed on 28.03.2024 by the DetainingAuthority. Thereafter the proposal under Section 3(3) of the Act wasforwarded to the State Government on 01.04.2024. It is submitted bythe petitioner that there is delay in sending proposal. Learned APPadverted our attention to contents of paragraph no.12 to explain thetime consumed in forwarding the proposal. We find that theexplanation is satisfactory. We do not notice laxity in forwarding theproposal. We, therefore, disapprove the submission of the petitioner. 19.The petitioner has placed reliance in the matter of HetchinHaokip Vs. State of Manipur and Others, (2018) 9 SCC 562; AkashAnnasaheb Hodade Vs. District Magistrate, Latur, Criminal WritPetition No.391/2023 and Aatish s/o Ravindra Kharat Vs. State ofMaharashtra and Others, Criminal Writ Petition No.1794/2023. Thematter in hand reflects proper explanation of delay of four days. Thefacts in cited judgments are not similar to the case in hand. We areunable to give any benefit of the ratio laid down in above judgmentsto the petitioner.20.Considering over all conspectus of the matter, we find that thesubjective satisfaction is reasonable and plausible. There was materialagainst the petitioner to demonstrate his continues indulgence in thebootlegging activities. The in-camera statements corroborate theproposed action against him. The finding recorded by the DetainingAuthority that the notorious activities of the petitioner were[8] 961.Cri.WP-751-2024.odtdetrimental to the public order is just and proper. 21.The impugned action against the petitioner is based upon morethan one grounds. We have recorded that the finding in the paragraphno.11 of the grounds of detention is unfounded. The order ofacquittal should have been taken into account by the DetainingAuthority. Despite this, we prefer to confirm impugned action becauseof implication of Section 5A of the Act. A useful reference can bemade to judgment of the coordinate bench in the matter of SantoshSubhash Koli Vs. State of Maharashtra and Others, in Criminal WritPetition No.1858/2023. The following are the relevant paragraphs : 18.It is expedient to disclose one more legal facet. It is common knowledge thatorder of detention passed under the Act would be challenged on various groundscomprising of delay, live link, procedural violation, violation of Article 22(5) of theConstitution of India, violation of principles of natural justice, subjective satisfaction,etc. It is difficult to comprehend all the grounds. Challenges on the ground of delay,violation of principles of natural justice or violation of Article 22(5) of theConstitution go to the root of the matter affecting power of the detaining authority.In such a situation, safeguard of section 5A of the Act has no application. However,if the grounds of challenge are based on subjective satisfaction, propriety, sufficiencyof incriminating material, section 5A of the Act steps in. In such a situation, entireorder of detention would not get vitiated, even if one or more grounds of challengewould have merit. 19.In the matter of Ganesh Vs. State of Maharashtra (supra), we upheld submissionof delay which was issue going to the root of jurisdiction. In the case in hand, wehave not accepted the ground of delay. Therefore by implication of section 5A ofthe Act, in the present matter even if we accept submission on the point of absenceof expert's opinion affecting subjective satisfaction, impugned order cannot bevitiated.22.The net analysis of our reasoning is that the petition fails. Thewrit petition is dismissed. Rule is discharged. SHAILESH P. BRAHME SMT. VIBHA KANKANWADI JUDGE JUDGENaJeeb...[9]
Arguments
961.Cri.WP-751-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCriminal Writ Petition No. 751 Of 2024Dadarao Ramdas JogiAge : 44 years, Occu. Labour,R/o. Mouje Bhagdara, Tq. Jamner,Dist. Jalgaon....PetitionerVersus1.The State of MaharashtraThrough Deputy Secretary,Home Department (Special),Mantralaya, Mumbai.2.The State of Maharashtra,Through District Magistrate,Jalgaon.3.The State of Maharashtra,Through Superintendent, Central Jail, Yeravda,Pune. ...Respondents****Advocate for the Petitioner : Mr. H.P. Randhir A.P.P. for Respondents/State : Mrs. P.R. Bharaswadkar**** CORAM : SMT. VIBHA KANKANWADI & SHAILESH P. BRAHME, JJ.. RESERVED ON : 16 AUGUST 2024 PRONOUNCED ON : 20 SEPTEMBER 2024J U D G M E N T (Per Shailesh P. Brahme J.) : .Rule. Rule is made returnable forthwith. Heard both the sidesfinally at the admission stage.[1] 961.Cri.WP-751-2024.odt2. The petitioner is challenging the order of detention dated28.03.2024 passed by the respondent no.2/District Magistrate,Jalgaon under Section 3(1) of the Maharashtra Prevention ofDangerous Activities of Slumlords Bootleggers, Drug-Offenders,Dangerous Persons, Video Pirates, Sand Smugglers and PersonsEngaged in Black-Marketing of Essential Commodities Act, 1981(hereinafter referred to as the MPDA Act for the sake of brevity andconvenience), detaining him for his detrimental activities ofbootleggers. 3.The District Magistrate found that the petitioner wasrepetitively indulging in activities of bootlegging and he was not beingdeterred by ordinary penal action. The contraband found with himwhile committing offences pitted against him was recorded to beinjurious to public health consumption. His activities were held to bedetrimental to the public order which constrained the detainingauthority to pass impugned order.4. The action of detention against the petitioner is based onfollowing record :(i)Crime No.163/2023 under Section 65(f)(b)(c)(e) of theMaharashtra Prohibition Act registered on 30.04.2023.(ii)Crime No.283/2023 of the Maharashtra Prohibition Actregistered on 26.06.2023.(iii)Crime No.52/2024 of the Maharashtra Prohibition Act registeredon 26.01.2024.(iv)Proceeding No.160/2021 of the Maharashtra Prohibition Actregistered on 31.08.2021.(v)Proceeding No.403/2022 under Section 93 of the MaharashtraProhibition Act registered on 29.11.2022.[2] 961.Cri.WP-751-2024.odt(vi)In-camera statements of witnesses A and B recorded on29.02.2024.5.Learned Counsel for the petitioner would make followingsubmissions to challenge the impugned action :(i)Impugned action suffers from non-application of mind and thesubjective satisfaction is perverse. There was no cogent material toresort to the drastic action.(ii)Subjective satisfaction is perverse as the order of bail and noticeis served under Section 41-A(1) of the Criminal Procedure Code, areoverlooked.(iii)There is delay in passing impugned order.(iv)There is delay in forwarding report under Section 3(3) of the Actwhich is unexplained.6.Learned Counsel for the petitioner tenders on record thewritten submission and supporting the case law.7.Learned APP Mrs. Bharaswadkar would support impugnedjudgment and order. She would rely on affidavit-in-reply of therespondent no.2 to justify that due procedure of law has beenfollowed for taking impugned action against the petitioner. She wouldsubmit that there was adequate material against the petitioner andhis notorious activities would reflect that regular penal action couldnot deter him. It is submitted that all the relevant copies were servedon the petitioner. The time schedule provided in the statute atdifferent stages has been followed meticulously. The DetainingAuthority considered all aspect of the matter and arrived at subjectivesatisfaction which is reasonable and plausible. It is further contendedthat all the steps required to be taken under the Act, were taken withdue promptitude. [3] 961.Cri.WP-751-2024.odt8.A reference is made to the affidavit-in-reply to show that thedelay in forwarding proposal for approval under Section 3(3) of theAct, has been explained properly. Learned AP tenders on recordsequence of events in tabular form to show compliance of statutoryprocedure. She also relies on judgment of coordinate bench in thematter of Vinod Dhannulal Jaiswal Vs. District MagistrateAurangabad and Others, AIR OnLine 2024 Bom 105. 9.The action against the petitioner was based on three offencesunder the provisions of the Maharashtra Prohibition Act, twoprohibitory action and two in-camera statements. During the course ofhearing, it is brought to our notice of learned Counsel for thepetitioner that the petitioner was acquitted from C.R. No.283/2023 inS.C.C. No.783/2023 vide judgment and order dated 16.03.2024 by IIIrdJudicial Magistrate, First Class, Jamner. The proposal was submittedon 11.03.2024 and thereafter on 16.03.2024, order of acquittal waspassed. 10.The sequence of events placed on record by learned APP showsthat in-camera statements were recorded on 29.02.2024. The proposalwas submitted on 11.03.2024. The statements of the witnesses wereverified on 11.03.2024. The detention order was passed on28.03.2024. The proposal for approval under Section 3(3) wasforwarded on 01.04.2024. The order was passed by the StateGovernment on 04.04.2024. The matter was placed before theAdvisory Board on 23.04.2024 and it recommended the detention on02.05.2024. The order of detention was confirmed on 15.05.2024.11.It transpires from record that C.R. No.163/2023 registered on[4] 961.Cri.WP-751-2024.odt30.04.2023, is the first offence pitted against the petitioner. The lastoffence bearing C.R. No.52/2024 was registered on 26.01.2024.Immediately on 29.02.2024, in-camera statements were recorded.Thereafter the proposal was submitted on 11.03.2024. We do not findany undue delay in proceeding against the petitioner. No specificinstance is pointed out by the learned Counsel for the petitioner todemonstrate that the authorities involved in the process were casualand failed to take required steps. 12.In each of the offence pitted against the petitioner, thecontraband was seized and referred for chemical analysis. Ourattention is drawn to the report of the chemical analysis todemonstrate that only percentage of ethyl alcohol in the water wasmentioned by the Analyzer. Whereas it has been recorded by theDetaining Authority in paragraph no.11 of the grounds of detentionthat the consumption of alcohol was reported to be injurious to thehuman consumption and it would likely to lead to serious disease i.e.Jaundice, Cancer etc., which would be fatal. The Detaining Authoritydid not solicit expert’s opinion to record findings in paragraph no.11.The reports disclose that the accused was dealing with illicit liquor.Further certificates may not be necessary. The material used formanufacturing and the method of preparation would be sufficient tohold it as ‘hazardous for human consumption’.13.Learned Counsel for the petitioner seeks to rely on thejudgments in the matter of Yogesh Bharat Rajput Vs. State ofMaharashtra and Others, Criminal Writ Petition No.105/2024 andGanesh @ Nana Gangaram Koli Vs. State of Maharashtra andOthers, Criminal Writ Petition No.1530/2023. We have gone through[5] 961.Cri.WP-751-2024.odtthe judgments. Learned Counsel is fortified in his submission, but thisis not sole ground which would vitiate the impugned action. 14.Our attention is invited to order of acquittal dated 16.03.2024passed in SCC No.743/2023 arising out of C.R. No.283/2023. The orderof detention was passed on 28.03.2024. The reasons assigned for theacquittal of the petitioner are relevant which should have been takeninto account by the Detaining Authority. The petitioner also couldhave tendered the order of acquittal to the competent authority. Butno endeavour has been made by him. There are other offences andmaterial pitted against the petitioner besides C.R. No.283/2023.Therefore for not considering order of acquittal, action underchallenge cannot be vitiated. 15.The petitioner was issued with notice under Section 41-A(1) ofthe Cr.P.C. in all the offences pitted against him. The learned APP inanswer to the submission of the petitioner, relies on the judgment ofthe coordinate bench in the matter of Vinod Dhannulal Jaiswal (supra).The relevant paragraph is as follows :“36.It is to be noted that S ection 41-A (1) of the Code of Criminal Procedure is tobe resorted to by the Investigating Officer before arresting an individual and thatprovision would regulate his powers to arrest an individual. Needless to state that thearrest contemplated under the Code of Criminal Procedure for carrying out theinvestigation into a crime by resorting to custodial interrogation would be essentiallyfor completing the investigation. Suffice for the purpose to observe that in thematter of Arnesh Kumar Vs. State of Bihar and Anr.; (2014) 8 SCC 273 theSupreme Court has laid down several guidelines which have to be borne in by theinvestigating Officer before arresting a person. We are pointing out the law todemonstrate that the submission of the learned advocate for the petitioner that thevery fact that the I.O. did not feel necessary to arrest the petitioner although thecrimes were registered would be indicative of the fact that even he did not requirethe petitioner to be sent behind the bars, is fallacious. The arrest for carrying outinvestigation into a crime would be for a limited purpose of facilitating theInvestigating Officer to complete the investigation. Such arrest cannot be looked uponas an action which can be aimed at preventing the accused from indulging in a[6] 961.Cri.WP-751-2024.odtsimilar activity rather any such approach would be inconsistent with the mandate oflaw laid down in Arnesh Kumar (supra). The action of preventive detention underthe preventive detention laws would be aimed at abating the specific activities of anindividual whereas the arrest for the purpose of investigation cannot be aimed atpreventing him from indulging in any such activity. Precisely for this reason, we arenot in agreement with the submission of the learned advocate for the petitioner thatpetitioner being not arrested in the crimes should be taken into account to draw aninference that even the I.O. did not feel it necessary to abate his unlawful activities.In short the purpose of arrest in respect of crime is aimed at conclusion of theinvestigation, whereas, detention of a person under the preventive detention law is toprevent him from indulging in certain activities.” .In view of above referred legal position, we are not inclined toaccept the submission of the petitioner. 16.Though it is contended by the petitioner that the reasonsassigned for releasing him on bail, were overlooked, no order ispointed out by the learned Counsel for the petitioner, releasing himon bail. On the other hand, the petitioner was served with noticeunder Section 41-A (1) of Cr.P.C. In the absence of any order, enlarginghim on bail, we find the submission is devoid of any substance. Thejudgments cited by learned Counsel for the petitioner in this regard,cannot be made applicable. 17.Last offence was registered against the petitioner on26.01.2024. In-camera statements were recorded on 29.02.2024. Thedates with sequence of events are placed by learned APP on record,which are not disputed. The time consumed in passing impugnedorder has been explained by the respondents in affidavit-in-reply. Wehave gone through the relevant paragraph no.6, 12 and 18. We findthat the time consumed for arriving at logical conclusion has beensatisfactorily explained and cannot be doubted. The petitioner hasplaced on the judgment of Salman Vs. State of Maharashtra throughits Secretary Home Department and Others, 2020 SCC OnLine Bom[7]