Bombay High Court
Ramesh Balu Chavan vs The Commissioner Of Police And Ors on 3 April, 2017
Bench: V.K. Tahilramani
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RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4403 OF 2016
Ramesh Balu Chavan
Age - 38 Years, Residing at
Bakshi Hipparga, Taluka - South Solapur,
Dist. Solapur.
[ At present lodged in Yerwada Central Petitioner/
Prison, Pune. ] .. detenu
Versus
1. The Commissioner of Police
Solapur.
2. The State of Maharashtra
(Through Addl. Chief Secretary to
Government of Maharashtra,
Mantralaya, Home Department,
Mantralaya, Mumbai.)
3. The Superintendent
Yerwada Central Prison, Pune. .. Respondents
...................
Appearances
Mr. U.N. Tripathi Advocate for the Petitioner
Mr. J.P. Yagnik APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
M.S. KARNIK, JJ.
DATE : APRIL 3, 2017.
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ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. Heard the learned counsel for the petitioner and the
learned APP for the State.
2. The petitioner / detenu Ramesh Balu Chavan has
preferred this petition questioning the preventive detention
order passed against him on 22.11.2016 by respondent No. 1
- the Commissioner of Police, Solapur. The said detention
order has been passed in exercise of the powers under
Section 3(2) of the Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers, Drug Offenders,
Dangerous Persons, Video Pirates, Sand Smugglers and
persons engaged in Black-marketing of Essential
Commodities Act, 1981 (No. LV of 1981) (Amendment -
1996, 2009 & 2015) (hereinafter referred to as the "MPDA
Act"). The said order has been passed as the detenu is a
bootlegger whose activities are prejudicial to the
maintenance of public order and public health. The said
detention order is based on three C.Rs. and two incamera
statements of witness "A" and witness "B". The three C.Rs.
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are 245/2016, 257/2016 and 276/2016 of Jodbhavi Peth
Police Station, Solapur. The order of detention, grounds of
detention along with accompanying documents were served
on the detenu on 22.11.2016
3. Though a number of grounds have been raised in the
present petition whereby the detention order has been
assailed, however, the learned counsel appearing for the
petitioner has pressed only four grounds before us. They are
grounds (i), (g), (b) and (d).
4. Ground (i) is in relation to the averment of Detaining
Authority in para 05(b-i) of the grounds of detention. It is
stated that the averment in the said ground is absolutely
vague and no details have been disclosed or any material is
provided in support thereof. It is stated that five averments
are made in this paragraph in the grounds of detention which
are as under:-
(1) many people were hiddenly running many dens;
(2) In past, many accidents took place;
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(3) Drunken people tease ladies, create unhygienic
atmosphere by vomiting in street;
(4) many people have become bankrupt;
(5) since last many years.
Mr. Tripathi, the learned counsel for the petitioner
submitted that these five averments in the grounds of
detention are not based on any material. The allegations
made are too general and there are no specific incidents
mentioned, hence, there is non application of mind on the
part of the Detaining Authority which would result in vitiating
the order of detention.
5. We have perused paragraph 05(b-i) of the grounds of
detention. It pertains to witness "A". Learned APP placed
reliance on the statement of incamera witness "A" and
showed us that all these averments were made by incamera
witness "A" in his statement. On perusal of the statement of
incamera witness "A", we find that all these averments which
have been made by the Detaining Authority in paragraph
05(b-i) are found in the statement of incamera witness "A".
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Thus, there was material before the Detaining Authority to
make these averments in the grounds of detention and the
material on which this averment was made, has admittedly
been furnished to the detenu i.e incamera statement of
Witness "A". Thus, we find no merit in this ground.
6. Mr. Tripathi thereafter pointed out that in the said
paragraph, it is also stated, "But there is constant demand to
curb criminal activities of you and your associates, from the
people and traders of locality." He submitted that there was
no material before the Detaining Authority to make this
averment in the grounds of detention, hence, there was non
application of mind on the part of the Detaining Authority,
which would vitiate the order of detention. As far as this
contention is concerned, it is seen that no such ground has
been raised in the present petition, hence, strictly speaking
the petitioner should first raise the ground and thereafter,
the respondent should be given an opportunity to deal with
the said ground by filing appropriate reply and then only the
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ground can be considered.
However, learned APP Mr. Yagnik fairly submitted that
he will not insist on this formality. As Mr. Yagnik did not
insist for time to file reply and stated that he will directly
answer this contention, we are considering the said ground.
7. Mr. Yagnik in answer to the above contention placed
reliance on the statement of incamera witness "A" to show
that such an averment was made by incamera witness "A" in
his statement. Mr. Tripathi, as far as this averment is
concerned, has placed reliance on the decision of this Court
in the case of Pramod @ Laba Bhalchandra Ingle Vs. The
Commissioner of Police, Solapur1. Mr. Tripathi pointed
out that in the said case also, an averment was made by the
Detaining Authority in the grounds of detention that, "there
was a constant demand by traders and the general public to
curb your criminal activities". Mr. Tripathi pointed out that
as there was no material before the Detaining Authority to
1 Criminal Writ Petition No. 3345 of 2016 decided on 6.2.2017
(Coram : V.K. Tahilramani & Revati Mohite Dere, JJ)
1. cri wp 4403-16 (j).doc
make such an averment, the detention order came to be
quashed. We have carefully gone through the said decision.
In the said case, the Detaining Authority had stated in the
grounds of detention that, "there is a constant demand from
traders and general public to curb your criminal activities",
however, in the statement of incamera Witness "A", there
was only mention of constant demand from businessmen
and there was no reference to the constant demand by
"general public". Thus, there was no material before the
Detaining Authority to make an averment about constant
demand by general public, hence, the detention order was
quashed.
8. Mr. Tripathi pointed out in the case of Pramod Ingle that
as far as the demand by traders in the said case was
concerned, it was observed that neither the concerned Police
Station nor any police official had received any complaint or
letter from any trader, hence, there was no material before
the Detaining Authority to make any such averment in the
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grounds of detention, hence, the detention order was
quashed. He pointed out that in the present case also
neither the concerned Police Station nor any police official
including the Commissioner of Police had received any
complaint or letter from any trader or public that the criminal
activities of the detenu need to be curbed. However, one
distinguishing factor in the present case and the case of
Pramod Ingle is that in the said case the incamera witness
had made no reference at all to constant demand by general
public that the criminal activities of the detenu should be
curbed. In the said case, there was also no other material
before the Detaining Authority to make such an averment.
Every case turns on its own facts. In the present case, the
statement of incamera Witness "A" clearly shows that there
is constant demand to curb the criminal activities of the
detenu and his associates from the people and the traders
of the locality. Thus, in the present case, there was material
before the Detaining Authority to make all these averments
in the grounds of detention and copies of these material
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have been furnished to the detenu. Hence, it cannot be said
that the detention order is vitiated.
9. As long as the averment in the grounds of detention is
based on some material and even if the said material is a
statement of an incamera witness, the detention order would
not be vitiated. Only if the Detaining Authority made an
averment in the grounds of detention relating to some vital
or material aspect and there was no material before the
Detaining Authority to make such an averment, it would
reflect non application of mind on the part of the Detaining
Authority which would in turn, vitiate the order of detention.
In the present case, there was sufficient material before the
Detaining Authority to make these averments in the grounds
of detention. The observations in the case of Pramod Ingle
were made in the peculiar facts of that case. Looking to the
facts of the present case, the said decision would not be
applicable to the case in hand. Thus, we find no merit in this
ground raised by learned counsel for the petitioner.
1. cri wp 4403-16 (j).doc
10. Thereafter, Mr. Tripathi relied on the decision of the
Supreme Court in the case of Moulana Shamshunnisa &
Ors. Vs. Additional Chief Secretary & Ors. 2. Mr. Tripathi
pointed out that in the said case, it was held that in absence
of any material to justify such conclusion, detention order is
liable to be quashed. However, on perusal of the material
which was before the Detaining Authority in the present case
and the copies whereof have been furnished to the detenu,
we find that there was material before the Detaining
Authority to make such an averment in the grounds of
detention. The statement of incamera witness "A" clearly
shows that he has stated all these facts in his statement.
Thus, there was material before the Detaining Authority to
make such an averment. Thus, this decision cannot be
made applicable to the present case.
11. Thereafter, Mr. Tripathi raised ground (g) of the
petition. The said ground is in relation to C.R. No. 276/2016.
It is contended in the said ground that no expert's opinion /
2 (2010) 15 SCC 72
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C.A. report is obtained by the sponsoring authority and
placed before the Detaining Authority nor copy furnished to
the detenu in this C.R. Mr. Tripathi submitted that the
detenu has been detained as he is a bootlegger and as far as
C.R. No. 276/2016 is concerned, as there was no expert's
opinion or C.A. report in relation to liquor which was seized,
there was no material to show that the liquor was such that
there was widespread danger to the life or public health.
12. As far as the above contention is concerned, it is an
admitted fact that when the order of detention was issued,
the C.A. report pertaining to C.R. No. 276/2016 was not
placed before the Detaining Authority. However, as stated
earlier, the detention order is based on three C.Rs. and two
incamera statements. Thus, the detention order is based on
five grounds. Thus, even if one ground is excluded i.e
pertaining to C.R. No. 276/2016, the detention order is
sustainable on the remaining grounds.
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13. 20 Section 5A of the MPDA Act reads as under:
"5A. Grounds of detention severable.- Where a
person has been detained in pursuance of an order of
detention under Section 3 which has been made on two or
more grounds, such order of detention shall be deemed to
have been made separately on each of such grounds and
accordingly-
(a) Such order shall not be deemed to be invalid or
inoperative merely because one or some of the
grounds is or are-
(i) vague;
(ii) non-existent,
(iii) not relevant;
(iv) not connected or not proximately connected
with such person, or
(v) invalid for any other reason whatsoever,
and it is not, therefore, possible to hold that
the State Government or an officer
mentioned in sub-section (2) of Section 3
making such order would have been satisfied
as provided in Section 3 with reference to the
remaining ground or ground and made the
order of detention;
(b) the State Government or such officer making the
order of detention shall be deemed to have made
the order of detention under the said Section 3 after
being satisfied as provided in that Section with
reference to the remaining ground or grounds."
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Thus, even if it is assumed that the ground relating to
C.R. No. 276/2017 is not relevant for issuing the detention
order under the MPDA Act or is invalid for some reason, the
same can be severed in view of Section 5A of the MPDA Act.
This would mean that the detention order is based on the
remaining four grounds. These 4 grounds, in our opinion, are
sufficient for the detaining authority to reach his subjective
satisfaction that it was necessary to detain the detenu under
the provisions of MPDA Act as he is a 'bootlegger'.
14. Thereafter, Mr. Tripathi raised ground (b). In ground (b),
it is stated that the Detaining Authority has relied on three
C.Rs. registered under Section 65(e) of the Bombay
Prohibition Act, 1949. C.A. reports have been received in two
cases i.e C.R. No. 245/16 and 257/2016. However, the C.A.
reports do not disclose the expert's opinion nor that the
consumption of the seized contraband is injurious to health.
The C.A. reports simply mention the percentage of Ethyl
alcohol in water. As such, it cannot be said that the public
1. cri wp 4403-16 (j).doc
order is disturbed since there is no danger to the public
health.
15. Admittedly, the order of detention, grounds of
detention along with accompanying documents were served
on the detenu. Report from the Department of Forensic
Medicine & Toxicology has also been furnished to the
detenu. This report clearly states that regular consumption
of Ethyl alcohol and Methyl alcohol causes ill effect over
human body or heavy consumption can lead to death
depending upon the condition and age of the person. Mr.
Tripathi tried to contend that this report shows that only if a
person consumes Ethyl alcohol as well as Methyl alcohol
together, it would cause ill effect on human body or heavy
consumption thereof can lead to death depending upon the
condition and age of the person. We are afraid that we
cannot read the report in the way as contended by Mr.
Tripathi. This report according to us shows that if Ethyl
Alcohol 'or' Methyl Alcohol are consumed by a person, it can
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cause ill effect on the human body or heavy consumption of
any one of the two types of alcohol can lead to death
depending upon the condition and age of the person. The
C.A. reports relating to C.R. No. 245/2016 and 276/2016
clearly show that the sample contained Ethyl alcohol which is
not a medicinal / antiseptic / toilet preparation nor a
flavouring material. In addition, the report of Department of
Forensic Medicine & Toxicology clearly shows that the
regular consumption of Ethyl alcohol will cause ill effect on
the human body or even one time heavy consumption of the
same can lead to death depending upon the condition and
age of a person. A person can be detained as a bootlegger if
any of his activities are such that they directly or indirectly
cause or are calculated to cause any harm, danger or alarm
or a feeling of insecurity among the general public or any
section thereof, or a grave or widespread danger to life or
public health.
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16. Witness "A" has stated that when the incident occurred,
many people had gathered at the spot but the detenu
holding a knife rushed towards them and gave threats, due
to which the people ran helter skelter and neighbouring
people shut their doors. Witness "B" has stated that at the
time of the incident due to the activities of the detenu and
his associates, people who had gathered ran helter skelter
and shop owners shut their doors. Thus, the incidents
relating to incamera witnesses "A" and "B" show that the
activities of the detenu were such that they caused feeling
of danger, alarm and insecurity in the minds of general
public in that area. The facts relating to the two C.Rs. i.e
C.R. Nos. 245/2016 and 257/2016 show that the activities of
the detenu are such that they have caused danger to the
public health. Thus, this ground too fails.
17. The last ground raised by Mr. Tripathi is ground (d). It
is stated therein that the activities of the detenu are not
prejudicial to the public order and there is no effect of the
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consumption of country made liquor like death of people or
hospitalization or bankruptcy. It, therefore, cannot be held
that the consumption of the seized contraband country made
liquor is injurious to health. Mr. Tripathi has only pressed the
first part of ground (d) wherein the contention is raised that
the activities of the detenu are not prejudicial to the public
order. In order to detain a person under the MPDA Act as a
bootlegger, it must be established in the first instance that
he is a bootlegger. As per the definition of bootlegger given
in the MPDA Act, "bootlegger" means a person, who distils,
manufactures, stores, transports, imports, exports, sells or
distributes any liquor, intoxicating drug or other intoxicants
in contravention of any provisions of the Maharashtra
Prohibition Act (Act No. XXV of 1949) and the rules and
orders made thereunder, or of any other law for the time
being in force or who knowingly spends or applies any
money or supplies any animal, vehicle, vessel or other
conveyance or any receptacles or any other material
whatsoever in furtherance or support of the doing any of the
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above mentioned things by or through any other person, or
who abets in any other manner the doing of any such thing.
The detenu certainly falls within this category because the
facts relating to C.R. Nos. 245/2016 and 257/2016 show that
the detenu was transporting and selling liquor. After going
through Section 2 of the MPDA Act, we are of the view that a
'bootlegger' can be detained under the provisions of the
MPDA Act not only in case he deals with any liquor which as
per the C.A. report is harmful to public health but also in
case his activities as bootlegger otherwise creates a feeling
of alarm, danger or insecurity among the members of the
public or a section thereof.
18. The facts relating to C.R. No. 245/2016 are that on
21.6.2016, two persons carrying six black coloured motor
tubes on their motor cycle were apprehended by the police
who were on patrolling duty. The contraband came to be
seized. On inquiry, those persons stated that the detenu and
one other person is the owner of the seized contraband.
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Sample was taken from the said contraband and it showed
that it contained Ethyl alcohol in water. Report from the
Department of Forensic Medicine and Toxicology shows that
regular consumption of Ethyl alcohol causes ill effect on
human body or heavy consumption can lead to death
depending upon the condition and age of the person. The
facts relating to C.R. No. 257/2016 are similar. This shows
that the contraband seized in these two C.Rs. was injurious
to public health.
19. The facts relating to the statement of incamera witness
"A" show that the detenu came to the house of the witness
and demanded money from him for the liquor he had taken
on credit from the detenu. The younger daughter of witness
"A" tried to help the witness whereupon the detenu held her
hand and took her to one side and asked for sexual favour
from her but she refused. Then the detenu called a rickshaw
tempo and took away the household articles of witness "A".
When this incident happened, many neighboring people
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gathered there but the detenu holding a knife rushed
towards them and gave threats, due to which the people ran
helter-skelter and neighboring people shut down their doors
and no one came to the rescue of witness "A". This clearly
shows that a feeling of danger, alarm and insecurity was
caused in the minds of the people at the time of the incident.
20. Witness "B" has stated that the detenu along with 3-4
other persons came to the house of his neighbour. The
detenu demanded money which the neighbouring person
owed him. The neighbouring person told the detenu who
was holding a knife that he would give money in a day or two
but the detenu said that he wanted money immediately. The
neighboring person shouted loudly for help due to which
some people gathered there. On seeing them, the detenu
and his associates started pelting stones on the persons who
had gathered, hence, the people gathered there ran helter-
skelter and shop owners shut their doors. No one came to
the aid of the victim. The wife of the neighboring person told
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the detenu to give one or two days to pay money, however,
the detenu told her to give her ornaments otherwise he will
finish her husband. On seeing the danger to the life of her
husband, the wife handed over her gold Mangalsutra and ear
rings to the detenu. Thus, this incident also shows that
there was a feeling of alarm, danger and insecurity in the
minds of the people who had gathered at the spot.
21. As far as the two C.Rs. i.e 245/2016 and 257/2016 are
concerned, we have, in the earlier paragraphs, discussed the
C.A. reports and the report of Department of Forensic
Medicine & Toxicology which show that the samples were
such that it would cause danger to the public health. On
going through Section 2 of the MPDA Act, we are of the view
that a bootlegger can be detained under the provisions of
this Act not only in case, he is dealing in liquor which as per
the report of the expert is harmful to the public health but
also in case his activities as bootlegger create a feeling of
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harm, danger or alarm or a feeling of insecurity among the
members of the public. We have briefly discussed the facts
relating to C.R. Nos. 245/16 and 257/2016 and the
statements of incamera witnesses "A" & "B". All of them are
such that they disturb the public order in one way or the
other. Thus, this ground too fails.
22. In the above circumstances, we are satisfied that the
Detaining Authority was not wrong in arriving at his
subjective satisfaction on the basis of the material placed
before him that the detenu was a bootlegger and that his
activities as a bootlegger adversely affected or are likely to
affect adversely the maintenance of public order and
therefore, his detention was necessary under the provisions
of the MPDA Act.
23. In view of the above, no good ground has been made
out for quashing the detention order, hence, rule is
discharged.
[ M.S. KARNIK, J. ] [ SMT. V.K. TAHILRAMANI, J. ]
