High Court · 2024
Facts
1 902.Cri.WP-1527-2023.doc Corrected order (correction has been carried out in view of speaking to minutes order dated 09.02.2024) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Writ Petition No. 1527 / 2023Dhanubai @ Dhanno Yashvant Netlekar Age : 50 years, R/o Harivithal Nagar, Jalgaon,Tal and District Jalgaon....PetitionerVersus1.State of MaharashtraHome Department (Special)Mantralaya, Mumbai.2.The District Magistrate, Jalgaon,Office of the District Magistrate, Jalgaon.3.The Superintendent,Woman Central Prison, Akola,District Akola.4.The Superintendent of Police, Jalgaon7, Mahatma Gandhi Rd, Jilha Peth,Pratap Nagar, Jalgaon – 425001.5.Police Inspector,Ramanandnagar Police Station, JalgaonNear Govt Engineering College,Kolhe Nagar, Jalgaon 425001....Respondents _ _ _Mr. Vivek Punjabi h/f Mr. Pratik P. Kothari, Advocate for the Petitioner. Mr. M.M. Nerlikar, Addil.P.P. for Respondent /State._ _ _ 2 902.Cri.WP-1527-2023.doc CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.. RESERVED ON : 12 JANUARY 2024 PRONOUNCED ON : 8 FEBRUARY 2024JUDGMENT [ Per Shailesh P. Brahme, J.] :.Rule. 2.Rule is made returnable forthwith with the consent of the parties.Heard the learned Counsel for the litigating sides finally.3. The petitioner has questioned an order dated 31.08.2023 passedby the respondent no.2 detaining the petitioner by branding him as a‘bootlegger’ under Section 3(2) of the Maharashtra Prevention ofDangerous Activities of Slumlords Bootleggers, Drug-Offenders,Dangerous Persons and Video Pirates Act, 1981 (hereinafter referredto as the MPDA Act for the sake of brevity and convenience). Theimpugned order is approved by the respondent no.1 under Section 3(3)of the MPDA Act, on 17.10.2023. 4.The action under the provisions of the Act was taken against thepetitioner on the basis of the offences registered against her, thepreventive actions under Section 93 of the Maharashtra ProhibitionAct and the two statements of the anonymous witnesses recorded
Legal Reasoning
16 902.Cri.WP-1527-2023.doc the Prohibition Act. There appears to be tendency to indulge inoffences under the provisions of Maharashtra Prohibition Act. Thereis no record available that any offence under other penal provisions hasbeen registered and action has been taken against the petitioner. Afterlast preventive action registered on 24.07.2023, only one offencebearing C.R. No.267/2023 has been registered against her whichcannot be said to be alarming number. We do not find any aggravatedform of activity of the petitioner. We find that the petitioner couldhave been dealt with under regular criminal law instead of resorting toprovision of MPDA Act. 30.The grounds of objection of detention recorded by respondent no.2shows that in paragraph no.8, it is recorded that the petitioner fallswithin the meaning of dangerous person as well as she is also brandedas a bootlegger. We are of the opinion that there is material on recordto suggest that petitioner can be branded as a bootlegger. But there isno evidence on record to bring her within purview of ‘dangerousperson’. The petitioner appears to be involved in a peculiar type ofoffence under the prohibition act. We do not find that any otheroffences registered against her under Indian Penal Code or any othercriminal law.31.Learned Counsel for the petitioner has also referred to the 17 902.Cri.WP-1527-2023.doc statements of two anonymous witnesses. The record shows that thepetitioner was indulging in the illegal activity of selling of liquor forlast 8 to 10 years preceding action of detention. The witnesses alsoreferred to the terror established by the petitioner and her notoriousactivities of threatening, abusing the persons concerned. During thisperiod no offence under Chapter XVI or XVII of Penal Code has beenregistered against her. Therefore, we find force in the submissionsmade by the petitioner by referring to paragraph no.15, 16 and 18 ofthe judgment of Devidas Lalji Ade (supra). They are as follows :“15.That leaves three registered offences against the Petitioner i.e. C.R.Nos.125/2021, 373/2021 and 468/2021 referred to herein above. Admittedly, in none ofthese offences the Petitioner was arrested. He was merely served with a noticeunder Section 41-A(1) of the Code of Criminal Procedure, 1973 in each offence.That means the notice was given to the Petitioner where his arrest was notrequired. Thus, in all these registered offences, the investigating agency did notfeel it necessary to arrest the Petitioner. In Paragraph No.4 of the grounds thereis a reference that the action was initiated under Section 93 of the MaharashtraProhibition Act for execution of bond on 06.09.2021. The bond was for security.Those proceedings were dropped on 24.11.2021. No action was taken for thealleged breach of the bond.16. Thus, it is quite clear that action was knowingly not taken by the policeauthorities under the ordinary law. In this view of the matter, resorting to thisextraordinary step of detaining the Petitioner by way of preventive detentionorder can not be justified. In this context, observations of the Hon’ble SupremeCourt in the case of Mallada K Sri Ram Vs. State of Telangana and others reportedin 2022 SCC OnLine SC 424 are important. It is observed in Paragraph No.15 thus - “A mere apprehension of a breach of law and order is not sufficient to meetthe standard of adversely affecting the “maintenance of public order”. Inthis case, the apprehension of a disturbance to public order owing to acrime that was reported over seven months prior to the detention order 18 902.Cri.WP-1527-2023.doc has no basis in fact. The apprehension of an adverse impact to public orderis a mere surmise of the detaining authority, especially when there havebeen no reports of unrest since the detenu was released on bail on 8January 2021 and detained with effect from 26 June 2021. The nature of theallegations against the detenu are grave. However, the personal liberty ofan accused cannot be sacrificed on the altar of preventive detention merelybecause a person is implicated in a criminal proceeding. The powers ofpreventive detention are exceptional and even draconian. Tracing theirorigin to the colonial era, they have been continued with strictconstitutional safeguards against abuse. Article 22 of the Constitution wasspecifically inserted and extensively debated in the Constituent Assemblyto ensure that the exceptional powers of preventive detention do notdevolve into a draconian and arbitrary exercise of state authority. The caseat hand is a clear example of non-application of mind to materialcircumstances having a bearing on the subjective satisfaction of thedetaining authority. The two FIRs which were registered against the detenuare capable of being dealt by the ordinary course of criminal law.”18.In the present case, the Petitioner was not even arrested in the threeregistered offences and, therefore, these observations are applicable to thepresent case. Learned APP submitted that the Petitioner’s activities areprejudicial to the maintenance of public order, however, the detaining authorityhas failed to record a satisfaction as to why ordinary law of the land wasineffective in curbing his activities. Merely stating that ordinary law of the landwas not effective to curb his activities is not enough. In the Petitioner's case nosteps were taken under normal law to curb his activities and hence it can not besaid they were ineffective. Therefore resorting to passing of the detention orderwas not necessary. It shows non-application of mind on the part of the detainingauthority. In this situation, it was not necessary to have resorted to thisextraordinary remedy without exercising the powers under the ordinary law.”32.The learned Counsel for the petitioner has also sought relianceupon the judgment of Prakash (supra). Paragraph no.23 is therelevant to support the submissions of the petitioner which is as 19 902.Cri.WP-1527-2023.doc follows :“23.The aforesaid two in-camera statements have been verified by the Sub-Divisional Police Officer. Relying on this statement, the learned A.P.P. wouldsubmit that, the activities of the petitioner were necessarily prejudicial tomaintenance of public order. He would further submit that, it is well settled that,whether material was sufficient or not is not for the Court to decide by applyingobjective basis. The detaining authority had rightly arrived at the subjectivesatisfaction based on the two in-camera statements. In our view, in first instance,we are of the view that, it is very risky to rely on the only in-camera statementsto sustain the order of detention in the facts and circumstances of the case. Closereading of both those statements no way lead to us to infer that the persons withwhom the witness had a wrangle, had consumed illicit liquor at the petitioner’sliquor den. The petitioner, giving threats to those 2 witnesses and his associatesmanhandling them, was at the most, in the facts and circumstances of the case,an issue of maintenance of law and order. The petitioner has been allegedlyrunning business of illicit liquor for 4 – 5 years next before the action of hispreventive detention was taken. There is not a single incident reported at thepolice station alleging him to have abused and assaulted anyone. No crime for theoffences punishable under any of the Sections of the Indian Penal Code has everbeen registered against him with such allegations. It is, therefore, reiterated that,the in-camera statements taken at their face value, it would at the most be aquestion of law and order. Based on such statements alone, the order ofdetention, in our view, in the present case, does not sustain. For all the aforesaidreasons, we find the petition deserves to be allowed. Hence the order :ORDER(I) The Criminal Writ Petition is allowed in terms of prayer clause (b) and (c).(ii) The petitioner be set at liberty forthwith if not required in any other case.”.We are of the opinion that this aspect of the matter is notproperly appreciated by the detaining authority. There is no subjectivesatisfaction on this aspect of the matter and the impugned order is 20 902.Cri.WP-1527-2023.doc unsustainable.33.Learned Counsel for the petitioner has also made submissions onthe purport of notice under Section 41(A)(1). However our bench hastaken a view in the matter of Vinod (supra). The relevant portion ofparagraph no.36 is as follows : “36.It is to be noted that Section 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 statethat the arrest contemplated under the Code of Criminal Procedure for carryingout the investigation into a crime by resorting to custodial interrogation wouldbe essentially for completing the investigation. Suffice for the purpose to observethat in the matter of Arnesh Kumar Vs. State of Bihar and Anr.; (2014) 8 SCC 273the Supreme Court has laid down several guidelines which have to be borne in bythe investigating Officer before arresting a person. We are pointing out the law todemonstrate that the submission of the learned advocate for the petitioner thatthe very fact that the I.O. did not feel necessary to arrest the petitioner althoughthe crimes were registered would be indicative of the fact that even he did notrequire the petitioner to be sent behind the bars, is fallacious. The arrest forcarrying out investigation into a crime would be for a limited purpose offacilitating the Investigating Officer to complete the investigation. Such arrestcannot be looked upon as an action which can be aimed at preventing theaccused from indulging in a similar activity rather any such approach would beinconsistent with the mandate of law laid down in Arnesh Kumar (supra). Theaction of preventive detention under the preventive detention laws would beaimed at abating the specific activities of an individual whereas the arrest for thepurpose of investigation cannot be aimed at preventing him from indulging inany such activity. Precisely for this reason, we are not in agreement with thesubmission of the learned advocate for the petitioner that petitioner being notarrested in the crimes should be taken into account to draw an inference thateven the I.O. did not feel it necessary to abate his unlawful activities. In short thepurpose of arrest in respect of crime is aimed at conclusion of the investigation, 21 902.Cri.WP-1527-2023.doc whereas, detention of a person under the preventive detention law is to preventhim from indulging in certain activities.”.We are not inclined to approve submissions in respect of noticeunder Section 41(A)(1) of the Code. 34.Learned APP has referred to judgment of Pesala (supra)especially paragraph no. 64, 65 and 71. The judgment of the SupremeCourt is distinguishable on the facts. We have already expressed ourreservations for the subjective satisfaction recorded by the respondentno.2 in the case in hand. Similarly, we are not in the agreement withlearned APP for relying upon the judgment of the Division Bench in thematter of Ramesh Balu Chavan (supra). 35.Learned APP has not made any submissions on the application ofSection 5A of the Act, albeit there is a plea raised in the affidavit-in-reply. We have already recorded that the subjective satisfaction of thedetaining authority is not only doubtful but perverse. The material onrecord is not adequate to take recourse to the drastic provision of actionunder the Act. The criminal antecedent and the statements of twowitnesses are not sufficient to show involvement of the petitioner to thecriminal overtact under Penal Code or other Criminal Law. Thegrounds of detention which are the basis for passing impugned orderare unsustainable. We do not find impediment of Section 5A of the Act 22 902.Cri.WP-1527-2023.doc to quash the impugned order.36.For the reasons stated above, we are inclined to allow writpetition. We therefore pass following order.ORDER(i)The order dated 31.08.2023 passed by the respondentno.2/detaining authority, detaining the petitioner under Section 3(2)of MPDA Act is quashed and set aside.(ii)Needless to state that the order of approval passed by therespondent no.1 dated 17.10.2023 is also unsustainable and quashedand set aside.(iii)The petitioner shall forthwith be released from imprisonment.The rule is made absolute in above terms.[SHAILESH P. BRAHME, J.] [MANGESH S. PATIL, J.]NAJEEB….
Arguments
3 902.Cri.WP-1527-2023.doc against her. The details of the offences registered against thepetitioner is recorded in paragraph no.4 of the impugned grounds ofdetention. The gist of the depositions of the witnesses is recorded inparagraph no.4.5 of the order of detention.5.Considering the activities of the petitioner, the respondentno.2/detaining authority formed subjective satisfaction in paragraphno.8 that the petitioner falls in the categories of ‘dangerous person’ and‘bootlegger’. Her being at large is harmful to the lives of the public ingeneral and it would disturb public tranquility, law and order andgeneral public peace.6.The petitioner has been held to be indulging in illegally sellingliquor. It is further recorded that the reports of the chemical analysiscollected during the course of investigation of various offencesregistered against her, show percentage of the alcohol found in thewater to the tune of 24%, 20%, 8%, 23%, 14%, 9%, 18%. It is held to behazardous for consumption of general public and it is harmful forhuman life which is likely to cause jaundice, accumulation of water instomach, cancer. It is likely to deplete blood level in the body, givingrise to the risk of death.7.Learned Counsel for the petitioner submits that the petitioner 4 902.Cri.WP-1527-2023.doc was acquitted in ten criminal cases registered under Section 65 ofMaharashtra Prohibition Act from time to time. In two cases, theproceedings were closed under Section 258 of the Code of CriminalProcedure. Only three actions were initiated under Section 93 of theProhibition Act. The petitioner has suffered conviction only in one case.Therefore according to the Counsel, this material is not sufficient tobring the petitioner within the ambit of dangerous person or abootlegger. Ordinary course of laws would be sufficient to deal with theactivities of the petitioner.8.He would further submit that the reports of the chemical analysiscollected during the investigation of the offences registered against thepetitioner, do not spell out any opinion that the consumption of thecontraband would be dangerous for human consumption and hazardousto public health. Without there being any experts’ opinion, therespondent no.2/detaining authority has arrived at conclusion inparagraph no. 10 and 11 of the impugned order which reflects lack ofapplication of mind.9.Learned Counsel for the petitioner submits that petitioner wasnot arrested in any of the matters. Only on couple of occasions, she wasserved with notice under Section 41 (A)(1) of Code of CriminalProcedure which shows that the activity alleged against the petitioner 5 902.Cri.WP-1527-2023.doc is not of serious nature, requiring arrest. This would cast doubt on thesubjective satisfaction of the detaining authority. It is furthersubmitted that though the petitioner was running business since 8 to10 years prior to the impugned action, no offence as such wasregistered against her. The criminal activities of the petitioner isconfined to the offences under the provisions of MaharashtraProhibition Act and not under any other provisions of Penal Laws.Hence it would be perverse to brand her as dangerous person and todetain her.10.Lastly learned Counsel would submit that entire action of therespondent no.2 and the approving authority is without application ofthe mind and the activities of the petitioner could have been curbed bythe regular criminal laws instead of resorting to MPDA Act.11.To buttress the submissions, learned Counsel for the petitionerseeks to rely upon following judgments : (i)Devidas Lalji Ade Vs. State of Maharashtra & Ors.2023 ALL MR (Cri) 130(ii)Prakash Chandrakant Kanjar Vs. State of Maharashtra & Anr.Criminal Writ Petition No.1285/2023.(iii)Sandeep Govind Pawar Vs. State of Maharashtra & Ors.2023 ALL MR (Cri) 698. (iv)A.ST. Arunachalam Pillai Vs. Southern Roadways Ltd. & Anr.AIR 1960 SC 1191. 6 902.Cri.WP-1527-2023.doc 12.The learned APP referred to the affidavit in reply to oppose thepetition and to justify the action taken against the petitioner by thedetaining authority which is confirmed by the respondent no.1. Hereferred to the criminal antecedent of the petitioner, the papers ofinvestigation especially reports of the chemical analysis collectedduring the course of investigation of the various offences against her.Learned APP would refer to paragraph no.5 and 6 of grounds ofdetention to demonstrate the material considered to arrive at subjectivesatisfaction and objectively assessing her activities. He would refer toparagraph no.7 to 12 of the grounds of order of detention todemonstrate as to how subjective satisfaction is arrived at by thedetaining authority. 13.Learned APP submitted that the petitioner has indulged in thecriminal activities repetitively and has created a terror in the vicinity.A deterrent action was required to be taken considering the notoriety ofthe petitioner. The acquittal recorded against the petitioner in thematters is not the sole relevant factor. Despite the preventive actionstaken against her, she has not stopped indulging in the criminalactivities.14.Learned APP submitted that the reports of the chemical analysiscollected in the various offences registered against the petitioner 7 902.Cri.WP-1527-2023.doc demonstrate the percentage of the alcohol. The detaining authority hasrightly held that the consumption of a liquor is injurious to the publichealth. He would vehemently submit that the activities of thepetitioner could not have been curbed by the regular criminal laws andtherefore the drastic action was required to be taken against her.15.It is further submitted that the arrest of the petitioner is notrelevant consideration for taking action under the provisions of theMPDA Act. Though the petitioner was served with a notice underSection 41 (A)(1) of the Code it would not mean that the activities ofthe petitioner is of the lesser evil. Learned APP would submit that theimpugned action seeks to achieve two purposes, deterrent andreformative.16.Learned APP seeks reliance upon the following judgments :(i)Pesala Nookaraju Vs. Government of Andhra Pradesh;Criminal Appeal No.2304/2023(ii)Ambhika Magasvargiya Mastyavaivasaik Sahakari Sanstha Maryadit Vs. State of Maharashtra & Ors., W.P. No.8607/2019(iii)Ramesh Balu Chavan Vs. Commissioner of Police Solapur, 2017 ALLMR (Cri.) 368317.Before we enter into the merits of the matter, it would be relevant 8 902.Cri.WP-1527-2023.doc to refer to the objections raised by the learned APP Mr. MahendraNerlikar, for following submissions made by the petitioner for the firsttime in the High Court :(i)The petitioner was acquitted from ten offences and has not beenarrested in any of the offences and as such there is no incriminatingmaterial against him to arrive at subjective satisfaction.(ii)The petitioner was being served only with a notice under Section41 (A)(1) which is indicative of the fact that his arrest was notrequired.(iii)There is no subjective satisfaction as the reports of the chemicalanalysis which are sought to be pitted against the petitioner do notspell out opinion that consumption of contraband was injurious topublic health.18.He would submit that the petitioner was granted leave to amendthe petition by order dated 22.12.2023. Without amending memo, thelearned Counsel for the petitioner preferred to work out the matter andargued certain points which are not incorporated in the grounds ofobjection of the petition. Learned APP submits that he is surprised bythe submissions of the petitioner and he has no opportunity to deal withthe submissions as affidavit-in-reply was already filed. Learned APP 9 902.Cri.WP-1527-2023.doc submits that if a petition is filed under Chapter XVII, Rule 1 of HighCourt Appellate Side Rules, it is incumbent to raise specific grounds ofobjections. 19.Learned Counsel for the petitioner has countered the abovesubmissions. He would submit that already grounds of objectionespecially ground no. F and G have been raised and there was sufficientopportunity to the respondent to counter the submissions. He wouldsubmit that the submissions advanced by the petitioner are borne fromthe grounds of detention and record. No submission is advanced whichis alien to the reasoning or the grounds of objection of the detainingauthority. He would further submit that the submissions go to the rootof the matter and it is permissible to raise such grounds. 20.Learned APP has relied upon the order passed by the DivisionBench on 14.02.2022 in the matter of Ambhika MagasvargiyaMastyavaivasaik Sahakari Sanstha (supra) as well as Ramesh BaluChavan (supra) to buttress the preliminary objection. Learned Counselfor the petitioner has countered it by relying upon judgments of theSupreme Court in the matter of A.ST. Arunachalam Pillai (supra).21.We have considered the rival submissions of the parties on the 10 902.Cri.WP-1527-2023.doc ground of preliminary objection. The petition has been filed underArticle 226 and 227 of the Constitution of India. The grounds ofdetention cum reasons assigned by the respondent no.2/detainingauthority are assailed by the petitioner. The present matter falls underthe provision of Chapter XVII Rule 18 of the Appellate Side Rules. Ifpetition is purely filed under Article 226 of the Constitution of Indiathen it would fall under Chapter XVII Rule 1. In the present matter,the petitioner is not invoking original jurisdiction of the High Court.The composite jurisdiction original and supervisory is being invoked bythe petitioner. Therefore the order which is sought to be relied by thelearned APP in the matter of Ambhika Magasvargiya MastyavaivasaikSahakari Sanstha (supra) would have no application to the matter inhand. 22.We have not been pointed out any submission made by Counselwhich is not dealt with by the detaining authority. Neither anything isbeing pointed out by the respondents which is being raised for the firsttime in the writ petition. The submissions are being borne from therecord produced before the detaining authority. We are of theconsidered view that when the High Court is examining sustainabilityof orders of detention referring to the grounds of objections and reasonsfor arriving of subjective and objective satisfaction, no separate ground 11 902.Cri.WP-1527-2023.doc of objection need to be incorporated in the memo when those arealready borne from the record. 23.Only when the submission which is totally alien or which isoutside the record placed before the detaining authority or which isbeing pressed into service for the first time in the High Court need anincorporation in the memo of petition. The petitioner has already raisedground no. F and G. The submission in respect of purport of report ofchemical analysis or purport of notice under Section 41 (A)(1) of theCode, are borne from the record. We find the preliminary objectionraised is unsustainable. If the submissions go to the root of the matterthen those are required to be considered by the Writ Court. We findthat the submissions raised by the petitioner are substantive and needadjudication. 24.We have considered the submissions of the learned Counsel onmerits. We have gone through the relevant record with the assistanceof learned Counsel. The impugned order of detention was passed on31.08.2023. The proposal under Section 3(3) of the Act was approvedon 11.09.2023 by the respondent no.1. Thereafter the matter wasplaced before the advisory Board. The petitioner was heard on09.10.2023. The Advisory Board confirmed the order of detention by 12 902.Cri.WP-1527-2023.doc order dated 17.10.2023.25.Learned Counsel for the petitioner submitted that the detainingauthority has recorded in paragraph no. 11 that the contraband seizedfrom the petitioner in various offences is harmful to the human livesand considering the percentage of the alcohol, it is hazardous forhuman consumption. We have gone through the reports of the chemicalanalysis in respect of the liquid collected during the course ofinvestigation of the respective offences under Section 65 of theMaharashtra Prohibition Act. We do not find that in any of thereports, there is a specific opinion of the analyzer that consumption ofthe liquid would be dangerous to human lives. We have not beenpointed out any material on record on the basis of which, the subjectivesatisfaction has been arrived at by the detaining authority. Therespondent no.2/detaining authority is not an expert. To come toconclusion that consumption of contraband having particularpercentage of alcohol would be hazardous to public lives, need anexpert’s opinion. In the absence of the exercise required to beundertaken by the detaining authority to confirm from the experts, theconsequences and repurcation recorded in paragraph no.11 of thegrounds of detention are unsustainable and perverse.26.A useful reference can be made to the judgment rendered by a co- 13 902.Cri.WP-1527-2023.doc ordinate bench in the matter of Satyavan Shakha Rathod Vs.Commissioner of Police and Others in Criminal Writ Petition StampNo. 15879/2023 decided on 25.10.2023 which is squarely applicable tothe facts of the present matter for quashing the detention order.Similar type of arguments were noted by the Apex Court in the matterof District Collector, Ananthapur Vs. V. Laxmanna, (2005)3 SCC 633.Paragraph No.7 and 8 reads as follows :“7. We do not think that this argument of the learned counsel can be accepted. If thedetention is on the ground that the detenu is indulging in manufacture or transport orsale of arrack then that by itself would not become an activity prejudicial to themaintenance of public order because the same can be effectively dealt with under theprovisions of the Excise Act but if the arrack sold by the detenu is dangerous to publichealth then under the Act, it becomes an activity prejudicial to the maintenance ofpublic order, therefore, it becomes necessary for the detaining authority to be satisfiedon material available to it that the arrack dealt with by the detenu is an arrack which isdangerous to public health to attract the provisions of the Act and if the detainingauthority is satisfied that such material exists either in the form of report of theChemical Examiner or otherwise, copy of such material should also be given to thedetenu to afford him an opportunity to make an effective representation.8. Therefore, while holding that dealing with arrack, which is dangerous to publichealth would become an act prejudicial to the maintenance of public order attractingthe provisions of the Act, it must be held that it is obligatory for the detainingauthority to provide the material on which it has based its conclusion on this point.Therefore, we are in agreement with the High Court that if the detaining authority isof the opinion that it is necessary to detain a person under the Act to prevent him fromindulging in sale of goods dangerous for human consumption the same should bebased on some material and the copies of such material should be given to the detenu.”27.In this regard, learned Counsel for the petitioner is justified in 14 902.Cri.WP-1527-2023.doc placing reliance upon the judgments of Prakash (supra); the relevantparagraph 15 reads as follows :“15. So far as regards the challenge on the other ground is concerned, it is to bestated that, registration of the last two crimes, being C.R. No.31/2023 and159/2023 and two in-camera statements appear to have triggered the sponsoringauthority to put up a proposal for petitioner’s detention. Admittedly, C.A. reportsof the illicit liquor seized from the petitioner appear to have not been availablefor being presented before the detaining authority. There was, therefore, nothingbefore the detaining authority to reach to a conclusion that the illicit liquorseized from the petitioner in those two crimes was unfit for humanconsumption. Although there were C.A. reports pertaining to the illicit liquorseized from the petitioner in connection with the other crimes relied on, none ofthe C.A. reports indicate the said liquor was unfit or hazardous for evenconsumption although it contained ethyl alcohol in different percentage. Thefacts of the case in case of Pesala (supra) would indicate the seized illicit liquortherein was subjected to chemical analysis. The C.A. reports indicate the samewas unfit for human consumption. It is true that the detaining authority has, inthe order of detention, observed the consumption of illicit liquor was harmful.However, there was no material before him to substantiate his view. In case ofPesala, the Apex Court, observed in paragraph No.65 as under :“65. Just because four cases have been registered against the appellant detenuunder the Prohibition Act, by itself, may not have any bearing on themaintenance of public order. The detenu may be punished for the offences whichhave been registered against him. To put it in other words, if the detention is onthe ground that the detenu is indulging in manufacture or transport or sale ofliquor then that by itself would not become an activity prejudicial to themaintenance of public order because the same can be effectively dealt with underthe provisions of the Act 1986, it becomes an activity prejudicial to themaintenance of public order, therefore, it becomes necessary for the detainingauthority to be satisfied on material available to it that the liquor dealt with by 15 902.Cri.WP-1527-2023.doc the detenu is liquor which is dangerous to public health to attract the provisionsof the 1986 Act and if the detaining authority is satisfied that such material existseither in the form of report of the Chemical Examiner or otherwise, copy of suchmaterial should also be given to the detenu to afford him an opportunity to makean effective representation.” 28.Learned Counsel for the petitioner vehemently submitted thatthere is only one conviction recorded against the petitioner and inalmost ten matters, she was acquitted. According to him the allegedcriminal activity of the petitioner can be dealt with by the regularcriminal law and resorting to MPDA Act is not required. We haveconsidered the criminal antecedents of the petitioner. It reveals fromrecord that there are in all sixteen offences registered against her. Allthe offences are under the provisions of Section 65(e) of MaharashtraProhibition Act. Out of them, she was acquitted in ten offences. Only incase of offence bearing No.65/2021 there is imposition of fine ofRs.300. In case of two offences, the matter was directed to be closedunder the provisions of Section 258 of the Code of Criminal Procedure.In three cases, the proceedings are still pending at various levels. 29.It also reveals that the preventive action has been taken againstthe petitioner under Section 93 of the Maharashtra Prohibition Act onthree occasions. After the last preventive action registered on24.07.2023 bearing no. 5/2023, only one offence bearing C.R. No.267/2023 has been registered under the provision of Section 65(e) of