High Court · 2024
Legal Reasoning
1 938.Cri.WP-1697-2023.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Writ Petition No. 1697 / 2023Vijay s/o Rajendra Kale Age : 27 years, Occ.: Agriculture,R/o Krantinagar, Kaij, Ta.Kaij,District Beed. ...PetitionerVersus1.State of MaharashtraThrough its Secretary, Home DepartmentMantralaya, Mumbai.2.The District Magistrate, Beed.3.The Superintendent of Police,Beed.4.The Police Inspector,Kaij Police Station, Ta. Kaij,Dist. Beed. ..Respondents _ _ _Mr. S.P. Bhagde and Mr. S.S. Mhaske, Advocate for the Petitioner. Mr. K.N. Lokhande, A.P.P. for Respondent /State._ _ _ CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ. RESERVED ON : 16 FEBRUARY 2024 PRONOUNCED ON : 23 FEBRUARY 2024 2 938.Cri.WP-1697-2023.doc JUDGMENT [Per Shailesh P. Brahme, J.] :.Rule. 2.Rule is made returnable forthwith. Heard both the sidesfinally with their consent.3.Being aggrieved by an order of detention dated16.09.2023 passed by the respondent no.2/District Magistrateand order dated 31.10.2023 passed by the respondent no.1confirming the order of detention, the petitioner is invokingjurisdiction under Sections 226 and 227 of the Constitution ofIndia. The petitioner is held to be bootlegger and directed tobe detained under Section 3(1) of the Maharashtra Preventionof Dangerous Activities of Slumlords Bootleggers, Drug-Offenders, Dangerous Persons and Video Pirates Act, 1981(hereinafter referred to as the MPDA Act for the sake ofbrevity and convenience).4.The detaining authority has considered criminalantecedents as follows :(i)C.R. No.159/2023 for the offence punishable underSection 65(e) of the Maharashtra Prohibition Act registered on18.03.2023 with Kaij Police Station.(ii) C.R. No. 444/2023 for the offence punishable under
Legal Reasoning
3 938.Cri.WP-1697-2023.doc Section 65(e) of the Maharashtra Prohibition Act registered on24.07.2023 with Kaij Police Station.(iii) Chapter Case No.3/2023 under Section 93 of theMaharashtra Prohibition Act registered on 29.04.2023.(iv)In-camera statements of two witnesses recorded on15.08.2023.5.The learned Counsel for the petitioner seeks to challengethe impugned order on the following grounds :(i)In-camera statements of two witnesses were not verifiedby the Competent Authority and they are not reliable.(ii) subjective satisfaction is faulty. There was no cogentmaterial against the petitioner.(iii) Both the offences considered by the detaining authoritydo not indicate disturbance to public order.(iv) The petitioner was served with notice under Section 41(A)(1) of Cr.P.C. in both the offences pitted against him whichis mitigating factor.(v)Offence registered on 24.07.2023 was prior to executionof bond of good behaviour executed by the petitioner on22.08.2023. 4 938.Cri.WP-1697-2023.doc (vi)After the representation made by the petitioner, he wasnot being heard and the order of Advisory Board is against theprinciples of natural justice.6.Learned Counsel for the petitioner seeks to rely upon thejudgments rendered in the matter of Pintu @ SidharthBhagwan Devde Vs. State of Maharashtra & Others. inCriminal Writ Petition No.1501/2023 and in the matter ofSandeep Govind Pawar Vs. The State of Maharashtra andOthers in Criminal Writ Petition No.172/2023.7.Learned APP seeks to rely upon affidavit-in-reply filed bythe respondent no.2. He submits that there is cogent materialin the form of two offences registered against the petitioner, apreventive action and in-camera statements. The detainingauthority has rightly arrived at subjective satisfaction. Timeline has been meticulously followed in arriving at impugnedorder. He would further submit that material on recordindicates that the activities were prejudicial to the public orderand drastic action was needed. It is also submitted that thepetitioner was heard by the Advisory Board and thereafterdecision of confirmation of detention order was taken.Learned APP has placed on record the dates and the events.8.We have considered submission of both the parties and 5 938.Cri.WP-1697-2023.doc have gone through the papers. Record reveals that thoughthere were five offences registered against the petitioner,offences bearing C.R. No.159/2023 and 444/2023 wereconsidered by the detaining authority alongwith othermaterial. By the impugned order, the petitioner has been heldto be a bootlegger, indulging in habitual criminal activities. Itis recorded that his activities are detrimental to the publicorder.9.Our attention is invited by the learned Counsel for thepetitioner to the in-camera statements of anonymouswitnesses recorded on 15.08.2023 and 16.08.2023. Both thestatements are being verified by the Sub-Divisional PoliceOfficer on 06.09.2023 independently. The incidents cited inthe statements appear to have been verified by theCompetent Authority. We do not find any infirmity in thestatements and their verification. 10.We have examined the criminal antecedents of thepetitioner to appreciate satisfaction of the detaining authority.It reveals from record that the offences registered against thepetitioner, are under the Maharashtra Prohibition Act. Out ofthem, last two offences are considered alongwith preventiveaction taken under Section 93 of the Maharashtra ProhibitionAct. The relevant papers of C.R. No.159/2023 show that the 6 938.Cri.WP-1697-2023.doc petitioner was found to be selling illicit liquor. In anotheroffence, C.R. No.444/2023, he was found to be in possessionof illicit liquor alongwith chemicals used for its manufacturing.Activity of the bootlegger by itself would not constitutedisturbance to public order. A useful reference can be madeto the principles narrated in paragraph no.11 of the judgmentin the matter of Hanif Karim Laluwale Vs. State ofMaharashtra and Others in Criminal Writ Petition No.75/2022.Paragraph No.11 of the said judgment is as follows :“11. The impugned order, it is further seen, also does not explain as to howbootlegging activity per se and by itself would adversely affect public order. Anybootlegging activity in which involved is manufacture of illicit liquor can be presumed tobe adversely affecting public health. But, there is no presumption in fact or law thatevery incidence of disturbance of public health would necessarily result in disturbanceof public order. Covid-19 pandemic is the biggest example of this preposition. Duringthat period of time, public at large was afflicted with Covid-19 infection. It was an enmasse phenomenon but, our common experience has shown that it did not lead todisturbance of public order in general. Therefore, the authorities would be required tosatisfy themselves as to how disturbance of public health in certain cases would result inalso disturbance of public order. Such satisfaction has not been reached in the presentcase.”11.Learned Counsel for the petitioner has rightly invited ourattention to the judgment rendered in the matter of SandeepGovind Pawar (supra). The relevant paragraph no.12 is asfollows :“12. It is imperative for the detaining authority to reach a subjective satisfaction aboutthe fact that the detenue being at large would be prejudicial to the public order. 7 938.Cri.WP-1697-2023.doc Admittedly, except registration of offences under the Prohibition Act, no offence hasever been registered against the petitioner under the Indian Penal Code or any otherpenal law. The fact that except the latest two cases in all earlier matters, the criminalcases have been stopped under section 258 of the Code of Criminal Procedure makes itnecessary to consider as to if mere registration of the latest two offences under section65E of the Prohibition Act coupled with couple of actions under section 93 of theProhibition Act of securing bonds from petitioner can be said to be sufficient to reach asubjective satisfaction regarding petitioner being at liberty would cause disturbance topublic order. Similarly, it becomes imperative for the State to demonstrate that theprovisions of the common law are insufficient to deter him from engaging him in theactivities which would be prejudicial to the public order.”12.The petitioner has indulged in the activities prohibitedunder the provisions of Maharashtra Prohibition Act. There isno record against him to have indulged in any criminal activitypunishable under Indian Penal Code or any other criminal law.In-camera statements and the preventive action underSection 93 of the Maharashtra Prohibition Act, also do notindicate his involvement, causing disturbance to public order.We are of the considered view that the material pitted againstthe petitioner is scanty. There is nothing on record to showthat his activities could not have been curbed by ordinarypenal laws.13.The submission of the petitioner pertaining to noticeunder Section 41(A)(1) of the Criminal Procedure Code, hasno merit. We have already taken view in the matter of Vinod 8 938.Cri.WP-1697-2023.doc Dhannulal Jaiswal Vs. District Magistrate, Aurangabad andOthers in Criminal Writ Petition No.1430/2023. In view offollowing paragraph no.35 and 36 of the judgment, we are notprepared to concur with the petitioner.“35.Turning to the submission of the learned advocate for the petitioner to theeffect that the petitioner was merely issued with notice under Section 41-A of the Codeof Criminal Procedure and even the Investigating Officer was never required to arrest himwould be a circumstance repelling the stand of the respondent No.1 – detainingauthority that the ordinary law would not be sufficient to prevent the petitioner’s allegedactivities, we are of the considered view that the circumstance that in spite of thepetitioner having involved in as many as twelve crimes of which eleven are in respect ofoffences under the Prohibition Act including the latest three ones, in itself is sufficient todemonstrate that irrespective of having been prosecuted for these many times he iscontinuing with the alleged activity of manufacturing/possessing illicit liquor isdemonstrative of the fact that the ordinary law of the land has been unable to abate hisactivities as a bootlegger. Pertinently, in spite of a preventive action having beeninitiated against him under Section 93 of the Prohibition Act in the month of March2023 he has been involved in subsequent two offence under Section 65(e) of theProhibition Act in the month of June 2023. This further substantiates the inferencedrawn by the respondent No.1 – detaining authority that the ordinary law of the landwas falling short to prevent the petitioner’s activities as a bootlegger.”“36. It is to be noted that Section 41-A (1) of the Code of Criminal Procedureis to be resorted to by the Investigating Officer before arresting an individual and thatprovision would regulate his powers to arrest an individual. Needless to state that thearrest contemplated under the Code of Criminal Procedure for carrying out theinvestigation into a crime by resorting to custodial interrogation would be essentially forcompleting the investigation. Suffice for the purpose to observe that in the matter ofArnesh Kumar Vs. State of Bihar and Anr.; (2014) 8 SCC 273 the Supreme Court haslaid down several guidelines which have to be borne in by the investigating Officerbefore arresting a person. We are pointing out the law to demonstrate that thesubmission of the learned advocate for the petitioner that the very fact that the I.O. did 9 938.Cri.WP-1697-2023.doc not feel necessary to arrest the petitioner although the crimes were registered would beindicative of the fact that even he did not require the petitioner to be sent behind thebars, is fallacious. The arrest for carrying out investigation into a crime would be for alimited purpose of facilitating the Investigating Officer to complete the investigation.Such arrest cannot 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). The action ofpreventive detention under the preventive detention laws would be aimed at abating thespecific activities of an individual whereas the arrest for the purpose of investigationcannot be aimed at preventing him from indulging in any such activity. Precisely for thisreason, we are not in agreement with the submission of the learned advocate for thepetitioner that petitioner being not arrested in the crimes should be taken into account todraw an inference that even the I.O. did not feel it necessary to abate his unlawfulactivities. In short the purpose of arrest in respect of crime is aimed at conclusion of theinvestigation, whereas, detention of a person under the preventive detention law is toprevent him from indulging in certain activities.”14.It reveals from the record that last offence wasregistered on 21.07.2023. Thereafter in-camera statementswere recorded. On 07.09.2023, the proposal was submittedto the detaining authority. On 16.09.2023, impugned orderwas passed. There appears to be gap of 55 days. We haveconsidered affidavit-in-reply. Live link between the materialpitted against the petitioner and the proposed action wouldstand snapped for want of satisfactory explanation.15.We have already recorded that there is no adequatematerial against the petitioner to take the drastic action. Thesubjective satisfaction of the detaining authority is not an 10 938.Cri.WP-1697-2023.doc intelligible decision and the circumstances are not sufficientenough to indicate that the personal liberty of the petitioner,can be curtailed by such draconian law of preventivedetention. We have considered the principles laid down inparagraph no.7 and 8 of the decision rendered in the matterof Pintu @ Sidharth Bhagwan Devde (supra). We do not findthe activities of the petitioner to be prejudicial to the publicorder.16.We, therefore, pass following order :ORDER(i)The Criminal Writ Petition is allowed.(ii)The detention order dated 16.09.2023 passed by therespondent no.2/District Magistrate, Beed and order dated31.10.2023 passed by the respondent no.1, are quashed andset aside.(iii)The petitioner shall be released forthwith.(iv)Rule is made absolute in the above terms. (SHAILESH P. BRAHME J.) (MANGESH S. PATIL J.)NAJEEB