High Court
Legal Reasoning
wp-1107-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1107 OF 2025Shahuraj s/o Vishwambhar VairaleAge: 48 years, Occu.: Labour,R/o. Madansuri,Tq. Nilanga, District Latur... PetitionerVersus1.The State of Maharashtra,Through the Secretary Home Department (Special),Mantralaya, Mumbai.2.The Collector and the DistrictMagistrate, Latur.3.The Superintendent of Police,Excise Department, Latur.4.The Police Inspector,State Excise, Nilanga,District Latur. .. Respondents…Mr. D. A. Madake, Advocate for the petitioner.Mr. A. M. Phule, APP for the respondents/State.... CORAM : SMT. VIBHA KANKANWADI & HITEN S. VENEGAVKAR, JJ.DATE : 25 SEPTEMBER 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Mr. D. A. Madake for the petitioner andlearned APP Mr. A. M. Phule for the respondents – State.[1] wp-1107-2025-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 22.07.2025bearing No.2025/MAG/MPDA/Desk-2/WS-221 passed by respondent No.2as well as the approval order dated 31.07.2025 and the confirmationorder dated 26.08.2025 passed by respondent No.1, by invoking thepowers of 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 thoughseveral offences were registered against the petitioner, yet for thepurpose of passing the impugned order, only two offences wereconsidered i.e. (i) Crime No.73 of 2025 dated 12.0.2025 registered withInspector, State Excise, Flying Squad, Latur, District Latur for the offencepunishable under Section 65(e) of the Maharashtra Prohibition Act, 1949and (ii) Crime No.91 of 2025 dated 29.03.2025 registered withInspector, State Excise, Nilanga, District Latur for the offencespunishable under Section 65(e) of the Maharashtra Prohibition Act,1949. Learned Advocate for the petitioner submits that the detainingauthority has considered two offences and two in-camera statements forthe purpose of passing the detention order. He submits the material[2]
Decision
wp-1107-2025-J.odtplaced 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 reportshave been received, however, in the detention order it is not stated as tohow much percentage of ethyl alcohol was found in the substance. Hefurther submits that in respect of both the offences the petitioner hasbeen given notice under Section 35(3) of Bharatiya Nagarik SurakshaSanhita, 2023 and was not arrested at all. As regards the statements ofin-camera witnesses ‘A’ and ‘B’ are concerned, at the most law and ordersituation would have been created and not the public order. Therefore,the impugned order is 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 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-1107-2025-J.odtpublic order. Learned APP is relying upon the affidavit-in-reply filed byMrs. Varsha Thakur-Ghuge, the District Magistrate, Latur. She supportsthe detention order passed by her and tries to demonstrate as to howshe had 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 26.08.2025.6.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, thelearned District Magistrate has considered only two offences i.e. CrimeNo.73 of 2024 dated 12.03.2025 registered with Inspector, State Excise,Flying Squad, District Latur and Crime No.91 of 2025 dated 29.03.2025registered with Inspector, State Excise, Nilanga, District Latur for theoffences punishable under Section 65(e) of the Maharashtra Prohibition[4] wp-1107-2025-J.odtAct. In both the offences though CA reports were received, yet in thedetention order it is not stated as to how much percentage of ethylalcohol was found therein. The material was not sufficient before thedetaining authority to categorize the petitioner as bootlegger. Further, theimpugned order states that twice actions under Section 93 ofMaharashtra Prohibition Act, 1949 were taken against the petitioner,which prescribes for demand of security for good behaviour to be takenfrom such 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 suchperson 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. The said procedure was started on 15.09.2024 and15.10.2024. If it would have been taken to the logical end, the Magistratei.e. respondent No.2 was entitled/empowered to take such bond of goodbehaviour maximum for a period of three years. Further, sub-section (2)of Section 93 of the said Act prescribes that the provisions of Code ofCriminal Procedure would be applicable to any proceedings under sub-section (1) of Section 93 as if bond referred to therein were a bondrequired to be executed under Section 110 of the said Code. Section 110[5] wp-1107-2025-J.odtof the Code then prescribes the procedure for breach of such bond. Thatmeans there is in built mechanism in the Maharashtra Prohibition Act tocurtail the activities of a habitual offender. These proceedings under theAct were not taken to the logical end. Therefore, the statement byrespondent No.2 that ordinary law would not have curbed the activities ofthe petitioner and only the detention order would have taken care of saidactivities in the public interest cannot be upheld. 7.Further, in all the offences it can be seen that the petitioner wasgiven notice under Section 35(3) of the Bharatiya Nagarik SurakshaSanhita, 2023 (old 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 it necessary toarrest the appellant even on a single occasion. It wouldhave been a different matter, had the appellant beenarrested, thereafter released on bail and then again theappellant continued with his activities. However, that is notthe case here.”[6] wp-1107-2025-J.odt8.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 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 22.07.2025 bearingNo.2025/MAG/MPDA/Desk-2/WS-221 passed by respondent No.2 aswell as the approval order dated 31.07.2025 and the confirmation[7] wp-1107-2025-J.odtorder dated 26.08.2025 passed by respondent No.1, are herebyquashed and set aside.III)Petitioner – Shahuraj s/o Vishwambhar Vairale shall bereleased 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]