High Court

Legal Reasoning

1 4-CrWP-1696-23(2).odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1696 OF 2023JALINDER LAXMAN JADHAV VERSUSTHE DISTRICT MAGISTRATE, BEED AND OTHERS...Advocate for Petitioner : Mr. Yogesh Bidve, Advocate, Mr. DheerajPanchanre i/b Mr. Shomit Salunkhe a/w Mr. G.D. Tamboli, Advocatesfor PetitionerAPP for Respondents – State : Mr. A.R. Kale ... CORAM : R. G. AVACHAT AND SANJAY A. DESHMUKH, JJ. DATE : 04th DECEMBER, 2023PER COURT : 1.Heard.2.Challenge in this petition is to the order of detentiondated 11/09/2023, passed by learned District Magistrate, Beed,under Section 3 of the Maharashtra Prevention Of DangerousActivities Of Slumlords, Bootleggers, Drug-Offenders, DangerousPersons And Video Pirates Act, 1981 (‘MPDA Act’). Petitioner hasbeen detained for a period of 12 months on account of he beingbootlegger and his such activity to be prejudicial for maintenance ofpublic order. Challenge is made on the ground of non-subjectivesatisfaction by the detaining authority.3.Learned advocate for petitioner would submit althoughSVH 2 4-CrWP-1696-23(2).odtthere are five crimes registered against petitioner, only last twocrimes bearing C.R. Nos. 253/2023 and 264/2023 have beenconsidered besides to in-camera statements of the two witnesses.He would submit that in both the crimes, there is no C.A. report forthe detaining authority to observe allegedly seized liquor from thepetitioner was hazardous to human life. So far as in-camerastatements are concerned, he submits that those statements arevague. None of the witnesses claims to have seen the petitionerdealing in illicit liquor. Their statements indicate that petitioner hadintercepted them and extended threats since both of them werelikely to report to the policemen about petitioner’s illegal activities.Challenge is also made on the ground of delayed submission of thereport to Advisory Board for it’s opinion. The report has not beensubmitted by the Advisory Board within the time limit of sevenweeks from the date of receipt thereof. Learned advocate forpetitioner ultimately urges for grant of the petition.4.Learned APP would submit that the petitioner in spite ofbeing Member of Grampanchayat indulged in criminal activities. Notless than five crimes have been registered against him. The firstthree crimes were referred to show his criminal tendency, althoughlast two crimes were relied on besides to in-camera statements.Learned APP then took us through the entire detention order toSVH 3 4-CrWP-1696-23(2).odtindicate that petitioner was found on the spot in possession of illicitliquor. On having seen the policemen, the customers fled. Accordingto him, the order of detention itself indicates that consumption ofalcohol was injurious to health. He adverted our attention to the in-camera statements of both the witnesses to indicate the petitionerhad intercepted them and given threats if they went public as toillegal activities of the petitioner. According to him, subjectivesatisfaction of detaining authority cannot be subject to judicialreview. Sufficiency or insufficiency of material cannot be consideredin a petition under Article 226 of the Constitution of India. He wouldfurther submits that all the time-frames prescribed under the MPDAAct have been adhered to. The detention order was timely placedbefore the Advisory Board on 20/09/2023, i.e. within a week’s time.The Advisory Board also gave it’s opinion within a time-frame.According to learned APP, petitioner did not make anyrepresentation either to the detaining authority or to the StateGovernment which has confirmed the order and therefore, thepetition is not maintainable. Learned APP ultimately urges fordismissal of the petition.5.Considered the submissions advanced. Perused theorder of detention and documents relied on. Close reading of thedocuments would indicate that all the timelines have been adheredSVH 4 4-CrWP-1696-23(2).odtto by the detaining authority. Preferring the representation todetaining authority or the State Government (confirming authority)is not a condition precedent for taking exception to the order ofdetention in writ petition. Our attention has been adverted by thelearned advocate for petitioner to the representation preferred tothe Advisory Board. Be that as it may.6.The challenge is merely on the ground of non-subjectivesatisfaction by the detaining authority. Although five crimes ofsimilar nature registered under Section 65(e) of the MPDA Act havebeen referred in the detention order, first three crimes have onlybeen referred to as prelude. It has been specifically mentioned inthe order of detention that only last two crimes and the two in-camera statements have been considered while passing the order ofdetention. We, therefore, do not refer to earlier crimes which havenot been relied on.7.So far as regards the two crimes bearing C.R. Nos.253/2023 and 264/2023, registered on 25/07/2023 and03/08/2023 respectively, those have been registered under Section65(e) of the Prohibition Act. The documents indicate that thepetitioner was served with notice under Section 41-A of the Cr.P.C.Offence under Section 65(e) is punishable with five years ofimprisonment. Meaning thereby, it is non-bailable offence. TheSVH 5 4-CrWP-1696-23(2).odtsame suggests that the investigating officer could very well havearrested the petitioner as a deterrent measure. Instead, hepreferred to issue notice to the petitioner. Needless to mention thatwhen ordinarily law falls short to curb illegal activities of detainu,then and then only recourse to preventive measures are resortedto. In this case, petitioner was not arrested and he was given noticeunder Section 41(A) of the Cr. P.C., this indicates the sponsoringauthority did not prefer to have the petitioner arrested even for asingle day. In such circumstances, proposal for his detention underthe MPDA Act ought not to have been preferred, nor the detainingauthority should have accepted it and passed the order impugnedherein.8.So far as regards the in-camera statements areconcerned, those are very vague. Both the witnesses did not givedate or time on which the petitioner had intercepted them andgiven threats if they went public about his illegal activities. Hadthose witnesses been specific about the time and date, thepetitioner could not have been prejudiced in his defence. As such, inour view, considered rationally the detaining authority ought not tohave passed the order of detention on such quality of material,more so, when the sponsoring authority did not prefer to arrest thepetitioner even for an hour, for the offences which wereSVH 6 4-CrWP-1696-23(2).odtnon-bailable. In view of the same, interference with the orderimpugned herein is warranted. Hence, the following order:-ORDER(I)Criminal writ petition is allowed.(II)Order of detention dated 11/09/2023, passed bylearned District Magistrate, Beed, bearingNo.2023/RB-Desk-1/Pol-1/MPDA-11, is herebyquashed and set aside.(III)The petitioner be released forthwith if not required inany other case.(SANJAY A. DESHMUKH, J.) (R. G. AVACHAT, J.) SVH