Mr. Sudhakar T. Mahajan, Advocate for the v. K. Kotecha, APP for the
Legal Reasoning
wp-1004-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1004 OF 2025Raghunath Shivaji RathodAge: 70 years, Occu.: Labour,R/o. Dharavati Tanda, Tq. Parali (V),District Beed... PetitionerVersus1.District Magistrate,Beed, District Beed.2.The State of MaharashtraThrough the Secretary HomeDepartment (Spl.), Mantralaya,Mumbai.3.The Superintendent,Harsul, Central Prison,Aurangabad. .. Respondents…Mr. Sudhakar T. Mahajan, Advocate for the petitioner.Mr. V. K. Kotecha, APP for the respondents/State.... CORAM : SMT. VIBHA KANKANWADI & HITEN S. VENEGAVKAR, JJ.DATE : 03 SEPTEMBER 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Mr. Sudhakar T. Mahajan for thepetitioner and learned APP Mr. V. K. Kotecha for respondents – State.[1] wp-1004-2025-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 03.05.2025bearing No.2025/RB-Desk-1/POL-MPDA/09 passed by respondent No.1 aswell as the approval order dated 13.06.2025 and the confirmation orderdated 23.07.2025 passed by respondent No.2, by invoking the powersof this Court under Article 226 of the Constitution of India.4.Learned Advocate for the petitioner has taken us through theimpugned order and the material which was supplied to the petitioner bythe detaining authority after passing of the order. He submits that thougheight offences were registered against the petitioner, yet for the purposeof passing the impugned order, only two offences were considered i.e.Crime No.219 of 2024 dated 23.12.2024 and Crime No.06 of 2025dated 05.01.2025. Both these offences were registered withSambhajinagar Parali Police Station, District Beed for the offencespunishable under Section 65(e) of the Maharashtra Prohibition Act.Learned Advocate appearing for the petitioner submits the materialplaced before the detaining authority has not been considered by himproperly and, there was no subjective satisfaction arrived at, beforepassing of order or to arrive at the conclusion that the petitioner is abootlegger. It appears that in respect of both the offences, the CA reports[2]
Decision
wp-1004-2025-J.odthave not been received, as it is not stated how much percentage of ethylalcohol was found in the substance. He further submits that in respect ofboth the offences the petitioner has been given notice under Section35(3) of Bharatya Nagarik Suraksha Sanhita, 2023 and was not arrestedat all. Though twice preventive actions under Section 93 of theMaharashtra Prohibition Act, 1949 were taken against the petitioner,however, it was not taken to the logical end. As regards the statementsof in-camera witnesses ‘A’ and ‘B’ are concerned, at the most law andorder situation would have been created and not the public order.Therefore, the impugned order is illegal and cannot be allowed tosustain. 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 thewitnesses. Due to the terror created by the petitioner, people are notcoming forward to lodge report against him and, therefore, it affects the[3] wp-1004-2025-J.odtpublic order. Learned APP is relying upon the affidavit-in-reply filed byMr. Vivek Johnson, the District Magistrate, Beed. 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 FIR. After the subjective satisfaction,the detaining authority has passed a reasoned order, which is thenconfirmed with the opinion of the Advisory Board and, thereafter,confirmed by the State Government on 23.07.2025.6.At the outset, we would like to rely on the decisions of the Hon’bleSupreme Court in Nenavath Bujji etc. Vs. State of Telangana andothers, [2024 SCC OnLine SC 367] and Ameena Begum Vs. TheState of Tamilnadu and Ors., [2023 LiveLaw (SC) 743]; wherein thedetention law has been summarized and has been said to be draconianmeasure. Further, it has been observed that illegal detention orderscannot be allowed to sustain and, therefore, strict compliance is requiredto be made, as it is a question of liberty of a citizen. As aforesaid, out ofthe eight offences involving the present petitioner, the learned DistrictMagistrate has considered two offences i.e. Crime 219 of 2024 dated23.12.2024 and Crime No.06 of 2025 dated 05.01.2025 registered withSambhajinagar Parali Police Station, District Beed for the offences[4] wp-1004-2025-J.odtpunishable under Section 65(e) of the Maharashtra Prohibition Act. Inboth the offences, CA reports were not before the detaining authority onthe date of passing of the detention order. Therefore, how muchpercentage of ethyl alcohol was found therein could not have beengathered by the detaining authority. The material was not sufficientbefore the detaining authority to categorize the petitioner as bootlegger.Further, the material on record was not sufficient to arrive at a conclusionthat the activities of the petitioner were creating public order situation. Atthe most, even if we consider that he was selling illicit liquor ormanufacturing it, then it would have created law and order situation.Further, it appears that Chapter Case No.09 of 2024 and Chapter CaseNo.29 of 2024 were proposed under Section 93 of the MaharashtraProhibition Act and it is stated that final bond was taken, however, it isnot stated whether final order was passed or not and if at all it waspassed, then why upon disobedience or recurring of the offence, thebond that was got executed from the petitioner was not put for executioni.e. the amount under the same was not recovered. Section 93 of theMaharashtra Prohibition Act, 1949 prescribes for demand of security forgood behaviour to be taken from such person. Section 93 (1) of the saidAct empowers a District Magistrate or a Sub-Divisional Magistrate,whenever he receives information that any person within the local limitsof his jurisdiction habitually commits or attempts to commit or abets the[5] wp-1004-2025-J.odtcommission of any offence punishable under this Act, such Magistratemay require such person to show cause why he should not be ordered toexecute a bond, with sureties, for his good behaviour for such period, asthe Magistrate may direct. If the said procedure would have been takento the logical end, the Magistrate i.e. respondent No.1 wasentitled/empowered to take such bond of good behaviour maximum for aperiod of three years. Further, sub-section (2) of Section 93 of the saidAct prescribes that the provisions of Code of Criminal Procedure wouldbe applicable to any proceedings under sub-section (1) of Section 93 asif bond referred to therein were a bond required to be executed underSection 110 of the said Code. Section 110 of the Code then prescribesthe procedure for breach of such bond. That means there is inbuiltmechanism in the Maharashtra Prohibition Act to curtail the activities of ahabitual offender. These proceedings under the Act were not taken to thelogical end. Therefore, the statement by respondent No.1 that ordinarylaw would not have curbed the activities of the petitioner and only thedetention order would have taken care of said activities in the publicinterest cannot be upheld. 7.Further, in both the offences it can be seen that the petitioner wasgiven notice under Section 35(3) of Bharatiya Nagarik Suraksha Sanhita,2023 (Old Section 41(1)(a) of the Code of Criminal Procedure) and wasnot arrested at all. This aspect ought to have been properly considered.[6] wp-1004-2025-J.odtReliance can be placed on the recent decision of the Hon’ble SupremeCourt in Arjun s/o Ratan Gaikwad Vs. The State of Maharashtra andothers, [Criminal Appeal (Arising out of SLP (Crl.) No.12516 of 2024dated 11.12.2024 :: 2024 INSC 968], wherein it has been observedthat :-“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 itnecessary to arrest the appellant even on a singleoccasion. It would have been a different matter, hadthe appellant been arrested, thereafter released onbail and then again the appellant continued with hisactivities. However, that is not the case here.”8.Perusal of the statements of in-camera witnesses ‘A’ and ‘B’ wouldshow that the incidents in both the cases are personal in nature andgeneral public is not involved. Those statements would have created atthe most law and order situation and not the public order. 9.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 detaining[7] wp-1004-2025-J.odtauthority to categorize the petitioner as a dangerous person orbootlegger. 10.For the aforesaid reasons, the petition deserves to be allowed.Hence, following order is passed :-ORDERI)The Writ Petition stands allowed.II)The detention order dated 03.05.2025 bearing No.2025/RB-Desk-1/POL-MPDA/09 passed by respondent No.1 as well as theapproval order dated 13.06.2025 and the confirmation order dated23.07.2025 passed by respondent No.2, are hereby quashed andset aside.III)Petitioner – Raghunath Shivaji Rathod shall be releasedforthwith, if not required in any other offence.IV)Rule is made absolute in the above terms. [ HITEN S. VENEGAVKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[8]