Ramdas Jalmsing Yerawal v. The State of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.805 OF 2025Ramdas Jalmsing Yerawal, Age: 35 Yrs., occu. Labour,R/o Bodhadi (Khu), Tq. Kinwat, District Nanded. .. PetitionerVersus1. The State of MaharashtraThrough its Additional Chief Secretary, Home Dept. Mantralaya, Mumbai-400 032.2. The District Magistrate & Collector, Nanded. Gandhi Statue Station Road, Nanded.3.The Inspector, State Excise, Kinwat, Tq, Kinwat Dist. Nanded... Respondents…Mr. Prasanna S. Chavan, Advocate for the petitioner.Mr. V. K. Kotecha, APP for the respondents/State.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.DATE : 17 JULY 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Mr. Prasanna S. Chavan for the petitionerand learned APP Mr. V. K. Kotecha for respondents – State.[1] wp-805-2025-J.odt2.Rule. Rule made returnable forthwith. The petition is heard finallywith the consent of the learned Advocates for the parties.3.The petitioner challenges the detention order dated 20.05.2025bearing No.2025/RB-1/DESK-2/T-4/MPDA/CR-27 passed by respondentNo.2 as well as the approval order dated 29.05.2025 and theconfirmation order dated 11.07.2025 passed by respondent No.1 byinvoking the powers of this Court under Article 226 of the Constitution ofIndia.4.Learned Advocate for the petitioner has taken us through theimpugned orders and the material which was supplied to the petitionerby the detaining authority after passing of the order. He submits thatthough several offences were registered against the petitioner, yet forthe purpose of passing the impugned order, three offences wereconsidered i.e. (i) Crime No.95 of 2024 dated 20.10.2024, (ii) CrimeNo.17 of 2025 dated 06.03.2025 and (iii) Crime No.66 of 2025 dated01.05.2025. All the three offences were registered with the office of SubInspector, State Excise, Kinwat ‘A’ Division, District Nanded for theoffence punishable under Section 65(e) of the Maharashtra ProhibitionAct, 1949. Learned Advocate appearing for the petitioner submits thematerial placed before the detaining authority has not been consideredby him properly and, there was no subjective satisfaction arrived at,[2] wp-805-2025-J.odtbefore passing of the order or to arrive at the conclusion that thepetitioner is a bootlegger. He further submits that though in respect of allthe three offences, CA Reports have been received, yet in respect of lastoffence i.e. Crime No.66 of 2025, the percentage of ethyl alcohol has notbeen mentioned in the impugned order. He further submits that in all thethree offences, which were considered for passing the impugned order, the petitioner was given notice under Section 35(3) Bharatiya NagrikSuraksha Sanhita, 2023 and was not arrested at all. Further, ChapterCase No.3 of 2023 was proposed under Section 93 of MaharashtraProhibition Act, 1949 against the petitioner, however, in view of actiontaken under M.P.D.A., said chapter case was dropped. The statementsof in-camera witnesses ‘A’ and ‘B’ would show that at the most law andorder situation would have been created. Therefore, the impugned orderis illegal and cannot be allowed to sustain. 5.Per contra, the learned APP strongly supports the action takenagainst the petitioner. He submits that the petitioner is a dangerousperson as defined under Maharashtra Prevention of Dangerous Activitiesof Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons andVideo Pirates Act, 1981 (hereinafter referred to as the “MPDA Act”). Thedetaining authority has relied on the two in-camera statements and thesubjective satisfaction has been arrived at. There is no illegality in theprocedure adopted while recording the in-camera statements of the[3] wp-805-2025-J.odtwitnesses. Due to the terror created by the petitioner, people are notcoming forward to lodge report against him and, therefore, it affects thepublic order. Learned APP is relying upon the affidavit-in-reply filed byMr. Rahul Kardile, the then District Magistrate, Nanded. He supports thedetention order passed by him and tries to demonstrate as to how hehad arrived at the conclusion that the petitioner is a bootlegger. Thesubjective satisfaction was arrived at on the basis of in-camerastatements and the contents of the FIRs. After the subjectivesatisfaction, the detaining authority has passed a reasoned order, whichis then confirmed with the opinion of the Advisory Board and, thereafter, confirmed by the State Government on 11.07.2025. Learned APP furthersubmits that the CA reports were received in all the three offences whichwere considered and the percentage of the ethyl alcohol found in thesubstance is 19.08%, 5.11% and 34.11% respectively. It is hazardous forhuman consumption and, therefore, no fault can be found in theimpugned order.6.Before considering the case, we would like to take note of thelegal position as is emerging in the following decisions :-(i) Nenavath Bujji etc. Vs. State of Telangana and others,[2024 SCC OnLine SC 367], (ii)Kanu Biswas Vs. State of West Bengal, [1972 (3) SCC831] wherein reference was made to the decision in Dr. Ram[4] wp-805-2025-J.odtManohar Lohia vs. State of Bihar and Ors. [1966 (1) SCR 709];(iii)Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, [1995(3) SCC 237];(iv)Pushkar Mukherjee and Ors. Vs. The State of WestBengal, [AIR 1970 SC 852];(v) Phulwari Jagdambaprasad Pathak Vs. R. H. Mendonca andOrs., (2000 (6) SCC 751) and;(vi)Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, [(1981) 4 SCC 647].7.Taking into consideration the legal position as summarized above, it is to be noted herein as to whether the detaining authority whilepassing the impugned order had arrived at the subjective satisfactionand whether the procedure as contemplated has been complied with ornot. In Nenavath Bujji (Supra) itself it has been reiterated by theHon’ble Supreme Court that illegal detention orders cannot be sustainedand, therefore, strict compliance is required to be made, as it is aquestion of liberty of a citizen. At the outset, it is to be noted that onlythree offences were considered for passing the detention order i.e.Crime No.95 of 2024 dated 20.10.2024, Crime No.17 of 2025 dated06.03.2025 and Crime No.66 of 2025 dated 01.05.2025 for the offencepunishable under Section 65(e) of the Maharashtra Prohibition Act,1949. Though CA reports were received in respect of all the three[5] wp-805-2025-J.odtoffences, however, in respect of Crime No.66 of 2025 it is not reflected inthe impugned order as to how much percentage of ethyl alcohol wasfound therein. Even if the percentage of ethyl alcohol is taken as it is, there was no opinion of any expert medical officer certifying that theseized liquor would have been injurious or harmful to humanconsumption. The material was not sufficient before the detainingauthority to categorize the petitioner as bootlegger. The material onrecord was not sufficient to arrive at a conclusion that the activities of thepetitioner were creating public order situation. At the most, even if weconsider that he was selling illicit liquor or manufacturing it, then it wouldhave created law and order situation.8.Further, it appears that Chapter Case No.3 of 2023 was proposedunder Section 93 of the Maharashtra Prohibition Act, and the bond ofgood behaviour worth Rs.1,00,000/- was taken on 17.07.2023, however, thereafter, in view of the action taken under M.P.D.A., the said Chaptercase was dropped. Section 93 of the Maharashtra Prohibition Act, 1949prescribes for demand of security for good behaviour to be taken fromsuch person. Section 93 (1) of the said Act empowers a DistrictMagistrate or a Sub-Divisional Magistrate, whenever he receivesinformation that any person within the local limits of his jurisdictionhabitually commits or attempts to commit or abets the commission of anyoffence punishable under this Act, such Magistrate may require such[6] wp-805-2025-J.odtperson to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, as the Magistratemay direct. If the said procedure would have been taken to the logicalend, the Magistrate i.e. respondent No.2 was entitled/empowered to takesuch bond of good behaviour maximum for a period of three years. Further, sub-section (2) of Section 93 of the said Act prescribes that theprovisions of Code of Criminal Procedure would be applicable to anyproceedings under sub-section (1) of Section 93 as if bond referred totherein were a bond required to be executed under Section 110 of thesaid Code. Section 110 of the Code then prescribes the procedure forbreach of such bond. That means there is inbuilt mechanism in theMaharashtra Prohibition Act to curtail the activities of a habitual offender. These proceedings under the Act were not taken to the logical end. Asregards the statements of in-camera witnesses ‘A’ and ‘B’ are concerned, the incident in both the cases would show that general public was notinvolved. At the most law and order situation would have been created.9.Reliance can be placed on the recent decision of the Hon’bleSupreme Court in Arjun s/o Ratan Gaikwad Vs. The State ofMaharashtra and others, [Criminal Appeal (Arising out of SLP (Crl.)No.12516 of 2024 dated 11.12.2024 :: 2024 INSC 968], wherein it hasbeen observed that :-[7] wp-805-2025-J.odt“16.In the present case, all the six cases are withregard to selling of illicit liquor. Though six cases areregistered, the Excise Authority did not find it necessary toarrest the appellant even on a single occasion. It would havebeen a different matter, had the appellant been arrested, thereafter released on bail and then again the appellantcontinued with his activities. However, that is not the casehere.”Here also, not on a single occasion, the petitioner was arrested. Inall the aforesaid cases, the petitioner was served with notice underSection 35(3) of the Bharatiya Nagrik Nyaya Sanhita, 2023 (Old Section41(A) of the Code of Criminal Procedure).11.Thus, taking into consideration the above observations and thedecisions of the Hon’ble Apex Court, at the most, the statements as wellas the offences allegedly committed would reveal that the petitioner hadcreated law and order situation and not disturbance to the public order. Though the Advisory Board had approved the detention of the petitioner, yet we are of the opinion that there was no material before the detainingauthority to categorize the petitioner as a dangerous person orbootlegger. 12.For the aforesaid reasons, the petition deserves to be allowed. Hence, following order is passed :-[8] wp-805-2025-J.odtORDERI)The Writ Petition stands allowed.II)The detention order dated 20.05.2025 bearing No.2025/RB-1/DESK-2/T-4/MPDA/CR-27 passed by respondent No.2 as well asthe approval order dated 29.05.2025 and the confirmation orderdated 11.07.2025 passed by respondent No.1, are hereby quashedand set aside.III)Petitioner – Ramdas Jalmsing Yerawal shall be releasedforthwith, if not required in any other offence.IV)Rule is made absolute in the above terms. [ SANJAY A. DESHMUKH ][ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[9]