High Court
Legal Reasoning
wp-1014-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1014 OF 2025Karim Bindu JadhavAge: 38 years, Occu.: Unemployed,R/o. Chikala Tanda,Tq. Mudkhed, District Nanded.. PetitionerVersus1.The State of MaharashtraThrough Section Officer,Home Department (Special),22nd Floor, Mantralaya,Mumbai-32.2.The District Magistrate,Office of District Magistrate, Nanded.3.The Superintendent,Central Prison, Harsool,Aurangabad .. Respondents…Ms. Sunita G. Sonawane, Advocate for the petitioner.Mr. G. A. Kulkarni, APP for the respondents/State.... CORAM : SMT. VIBHA KANKANWADI & HITEN S. VENEGAVKAR, JJ.DATE : 11 SEPTEMBER 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Ms. Sunita G. Sonawane for thepetitioner and learned APP Mr. G. A. Kulkarni for respondents – State.2.Rule. Rule made returnable forthwith. The petition is heard finallywith the consent of the learned Advocates for the parties.[1] wp-1014-2025-J.odt3.The petitioner challenges the detention order dated 16.06.2025bearing No.2025/RB-1/Desk-2/T-4/MPDA/CR-35 passed by respondentNo.2 as well as the approval order dated 26.06.2025 and theconfirmation order dated 25.07.2025 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 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 one offence was considered i.e.Crime No.61 of 2025 dated 07.04.2024 registered with Mudkhed PoliceStation, District Nanded for the offence punishable under Section 65(e)of the Maharashtra Prohibition Act, 1949. Learned Advocate for thepetitioner submits that one offence and two in-camera statements havebeen considered for the purpose of passing the detention order. Hesubmits the material placed before the detaining authority has not beenconsidered by him properly and, there was no subjective satisfactionarrived at, before passing of order or to arrive at the conclusion that thepetitioner is a bootlegger. It appears that in respect of Crime No.61 of2025, the CA report has not been received, as it is not stated how muchpercentage of ethyl alcohol was found in the substance. He further[2]
Decision
wp-1014-2025-J.odtsubmits that in respect of all the offences the petitioner has been givennotice under Section 41(a) of the Code of Criminal Procedure and wasnot arrested at all. Though preventive under Section 93 of theMaharashtra Prohibition Act, 1949 as well as under Section 126 ofBharatiya Nagarik Suraksha Sanhita, 2023 were taken against thepetitioner, however, in view of action taken under MPDA, those chaptercases were dropped. As regards the statements of in-camera witnesses‘A’ and ‘B’ are concerned, at the most law and order situation would havebeen created and not the public order. Further, there is delay in passingthe detention order. Therefore, the impugned order is illegal and cannotbe 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 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-1014-2025-J.odtpublic order. Learned APP is relying upon the affidavit-in-reply filed byMr. Rahul Kardile, the 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 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 25.07.2025.6.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 only one offence i.e. Crime No.61 of 2025dated 07.04.2025 registered with Mudkhed Police Station, DistrictNanded for the offences punishable under Section 65(e) of theMaharashtra Prohibition Act. In this offence, CA report was not before[4] wp-1014-2025-J.odtthe detaining authority on the date of passing of the detention order.Therefore, how much percentage of ethyl alcohol was found thereincould not have been gathered by the detaining authority. The materialwas not sufficient before the detaining authority to categorize thepetitioner as bootlegger. Further, the material on record was notsufficient to arrive at a conclusion that the activities of the petitioner werecreating public order situation. At the most, even if we consider that hewas selling illicit liquor or manufacturing it, then it would have createdlaw and order situation. Further, in this case, confidential statements ofwitnesses ‘A’ and ‘B’ were recorded on 28.10.2024. Those statementswere got verified by Sub Divisional Police Officer on 03.04.2025 andthen the proposal has been submitted by the sponsoring authority on12.04.2025 and the detention order has been passed on 16.06.2025.Why there was so much delay in sending the proposal has not beenexplained by the sponsoring authority. There is no affidavit by thesponsoring authority explaining the said delay. The time spent betweenrecording of confidential statements and verification thereof till thedetention order, is more than six months. Further, there is delay inpassing the impugned order, which has not been explained by thedetaining authority in his affidavit-in-reply. If the petitioner was really adangerous person and his criminal activities were supposed to becurtailed, then the sponsoring authority cannot afford to remain idle.[5] wp-1014-2025-J.odtFurther, it appears that Chapter Case No.09 of 2023 was proposedunder Section 93 of the Maharashtra Prohibition Act and Chapter CaseNo.255 of 2024 proposed under Section 126 of the Bharatiya NagarikSuraksha Sanhita, 2023, however, those chapter cases were dropped inview of action taken under MPDA. Section 93 of the MaharashtraProhibition Act, 1949 prescribes for demand of security for goodbehaviour to be taken from such person. Section 93 (1) of the said Actempowers a District Magistrate or a Sub-Divisional Magistrate, wheneverhe receives information that any person within the local limits of hisjurisdiction habitually commits or attempts to commit or abets thecommission 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 inbuilt[6] wp-1014-2025-J.odtmechanism in the Maharashtra Prohibition Act to curtail the activities of ahabitual offender. These proceedings under the Act were not taken to thelogical end. 7.Further, in all the offences it can be seen that the petitioner wasgiven notice under Section 41(a) of the Code of Criminal Procedure andwas not arrested at all. This aspect ought to have been properlyconsidered. Reliance can be placed on the recent decision of theHon’ble Supreme 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 :-“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. [7] wp-1014-2025-J.odt9.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. 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 16.06.2025 bearing No.2025/RB-1/Desk-2/T-4/MPDA/CR-35 passed by respondent No.2 as well as theapproval order dated 26.06.2025 and the confirmation order dated25.07.2025 passed by respondent No.1, are hereby quashed andset aside.III)Petitioner – Karim Bindu Jadhav shall be released forthwith,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]