Bombay High Court
Narhari Kashinath Ade vs The State Of Maharashtra And ... on 5 December, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION 1527 OF 2017
Narhari S/o Kashinath Ade
Age 38 years, Occu : Agril.,
R/o Radi Tanda, Tq. Ambajogai,
District Beed. .. PETITIONER
Versus
1] The State of Maharashtra,
Through its Secretary
Home Department,
Mantralaya, Mumbai-32.
2] The District Magistrate,
Collectorate Office,Beed
Tq. & Dist.Beed.
3] The Police Inspector,
Police Station Ambajogai(Rural)
Ambajogai, Tq. Ambajogai.
(Copy of Respondents is to be
served through Public Prosecutor
High Court of Bombay,Bench
at Aurangabad.) ..Respondents
-----
Mr.Eknath Sawant h/f Mr.M.P.Kale, Advocate for Petitioner.
Mr. D.R.Kale, APP for Respondents - State.
-----
CORAM : S.S.SHINDE &
MANGESH S. PATIL, JJ.
RESERVED ON : 29/11/ 2017.
PRONOUNCED ON :05/12/2017.
JUDGMENT ( PER MANGESH S. PATIL,J.) :
Rule. The Rule is made returnable forthwith. Heard finally
with the consent of the parties.
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2] In this Writ Petition filed under Articles 226 and 227 of the
Constitution of India, the petitioner is objecting to the order dated
12/10/2017 passed by the Government of Maharashtra, Home
Department, under Section 3 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
(hereinafter referred to as the MPDA Act) directing him to be
detained for a period of one year from the date of detention.
3] Shortly stated, the facts leading to the filing of this Writ
Petition are as under :
Respondent No.3 Police Inspector of Ambajogai Rural Police
Station, District Beed submitted a proposal to the Respondent No.2
District Magistrate, Beed on 30/8/2016 informing that the petitioner
has been distilling country liquor in his house at Radi Tanda. Several
crimes were registered against him under the provisions of the
Maharashtra Prohibition Act, 1949 for such activities. He has been
selling country made liquor in the surrounding villages. Few persons
got addicted to such country liquor and there has been increase in
percentage of violence against girls and women in the vicinity.
Because of his nature, nobody is coming forward to lodge any
complaint. Seven criminal cases have been pending against him for
the offences punishable under the Maharashtra Prohibition Act. Thus
a request was made to initiate action against the petitioner under
Section 3 of the MPDA Act on the basis of confidential statements of
three witnesses A,B,C recorded by Respondent No.3 Police Inspector.
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The respondent No.2 District Magistrate after going through the
report, copies of the charge sheets and the statements of witnesses, by
the impugned order (Exh.C collectively.) directed the petitioner to be
detained under the provisions of Section 3(2) of the MPDA Act.
4] The matter was referred to the Advisory Board and the
Government of Maharashtra, Home Department (Special) by its order
dated 12/10/2017 directed the petitioner to be detained for one year
from the date of detention (Exh.E). Hence this Petition.
5] According to the learned Advocate for the petitioner, the
impugned order passed by the respondent No.2 suffers from non-
application of mind. The respondent No.2 has passed the impugned
order in a stereo type manner. The learned Advocate also submitted
that no intimation of the order was delivered to him in breach of the
provisions of Section (8) of the MPDA Act. The Advisory Board did
not give him any opportunity to present his case under Section 11 of
the MPDA Act and directly submitted its report to the State
Government. In turn without following the principles of natural
justice, the State Government has also by the impugned order
confirmed the detention. The learned Advocate further submitted
that in view of proviso to Section 3 of the MPDA Act, the maximum
period to which a person can be directed to be detained at the first
instance is only six months and the impugned order passed by the
State Government directing him to be detained for one year is clearly
in breach of such statutory limit. The learned Advocate for the
petitioner in support of his submission referred to the decision in the
case of Lahu Shrirang Gatkal V/s. State of Maharashtra and Ors; AIR
2017 SC 3770. Thus, according to the learned Advocate, for all these
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reasons the impugned orders are illegal and liable to be quashed and
set aside.
6] The learned Advocate for the petitioner further submitted that
the very basis for passing the impugned orders that the petitioner is
involved in many offences under the Maharashtra Prohibition Act,
1949 has ceased inasmuch as he has been acquitted by the Magistrate
of all these offences. The learned Advocate in support of his
submission also produced copies of the orders passed by the learned
Magistrate stopping all these proceedings by invoking the powers
under Section 258 of the Cr.P.C.
7] The learned APP vehemently opposed the Petition. According
to the learned APP, the respondent no.2 and the State Government
have passed the impugned orders only after application of mind and
giving suitable opportunity to the petitioner to make a
Representation. He also pointed out that intimation of the order was
duly given to a relative of the petitioner viz. Kashinath Rathod R/o
Radi Tanda, Tq.Ambajogai, District Beed and one Atmaram
Harichandra Rathod, R/o Bitargaon Tanda, Tq. Renapur, Dist. Latur
on 7/9/2017 (Exh.R-1). The learned APP by referring to the affidavit
in reply filed by one Manisha Rambhau Telbhate, Tahsildar
(Revenue) in the office of Collector, Beed, further submitted that the
petitioner was produced before the Advisory Board on 4/10/2017 and
the Advisory Board submitted its report to the State Government and
in pursuance of which, by the impugned order, petitioner has been
directed to be detained. The learned APP also submitted that the
period of six months provided under Section 3 of the MPDA Act only
regulates the powers of the authority to whom the State Government
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delegates the power to pass order under Section 3(1) of the MPDA
Act and does not restrict the power of the State Government
conferred on it under Section 13 of the MPDA Act to pass an order for
detention upto 12 months. The learned APP in support of his
submission referred to the decision of Division Bench of this Court at
Principal Seat dated 13/10/2017 in the case of Sachin @ Bobby
Sambhaji Shinde V/s The Commissioner of Police,Solapur and others
in Criminal Writ Petition No.1766/2017 with connected Petitions.
8] We have carefully gone through the papers of investigation. At
the outset, it is necessary to note that the very basis for passing the
impugned orders directing detention of the petitioner has fallen to the
ground inasmuch as admittedly, he has been acquitted of all the
charges under the Maharashtra Prohibition Act by the learned
Magistrate, who has directed all the seven cases to be stopped by
invoking his powers under Section 258 of Cr.P.C. Consequently, when
the petitioner has been acquitted of these crimes under Maharashtra
Prohibition Act, it cannot be said that he has been involved in
bootlegging. There remains no ground, in substance, to brand him as
a bootlegger. Therefore, as has been rightly submitted by the learned
Advocate for the petitioner, the very basis for passing the impugned
order does not survive. For this reason alone, therefore, in our view,
the impugned order is no more sustainable on facts.
9] Apart from the above state of affairs, a careful perusal of the
order passed by the respondent no.1 reveals that he has passed the
order in a stereo type manner. He has simply referred to the pending
cases under the Maharashtra Prohibition Act and thereafter has
referred to the statements of witnesses 'A to C'. However, the
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reference to the statements of these witnesses is apparently in a
stereo type manner. If according to the proposal forwarded by the
respondent No.3 Police Inspector, the distilling of country liquor has
resulted in increase in offences against girls and women, it was
expected that these witnesses should have referred to this fact. But
none of them seem to have referred to such increase in the crimes
against girls and women. The respondent no.2 has clearly ignored
this aspect which demonstrates non application of mind as has been
rightly pointed out by the learned Advocate for the petitioner.
Therefore, merely because the impugned order passed by the
respondent No.2 mentions that he has arrived at subjective
satisfaction, the observation are clearly hollow and demonstrate clear
non application of mind. Without there being any witness saying
that there is increase in the crime against women and girls, he has
observed that there has been such an increase in the crime.
Therefore, we are satisfied that the impugned order passed by the
respondent No.2 also suffers from non application of mind.
10] True it is, that the other ground of not informing the relatives is
concerned, the acknowledgement in writing of the abovementioned
two persons viz. Kashinath Rathod and Atmaram Rathod clearly
belies the submission on behalf of the petitioner.
11] Similarly, in view of the recent judgment of the Division Bench
in the case of Sachin Shinde (supra), wherein a reference is made to
all the judgments of the Supreme Court including the one in the case
of Lahu Shrirang Gatkal (supra) cited by the learned Advocate for the
petitioner have been discussed and relying upon the decision in the
case of Devaki (supra) rendered by three Judge Bench of the Supreme
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Court laying down the law that the period of six months prescribed
under Section 3 of the MPDA Act only restricts the powers of the
authority to whom it is delegated by the State Government and does
not affect the power of the State Government to impose detention
under Section 13 of the MPDA Act for a period of 12 months.
Without burdening the judgment, we therefore, discard the
submission of the learned Advocate for the petitioner that the
impugned order is illegal since it directs detention of the petitioner
for a period of one year.
12] Be that as it may, since in our view the impugned orders passed
by the respondent No.1 State Government and the respondent No.2
District Magistrate are otherwise not sustainable on facts, for the
reasons discussed hereinabove, the orders are liable to be quashed
and set aside.
13] The Writ Petition is allowed. Rule is made absolute in terms of
prayer clause "B".
( MANGESH S. PATIL,J.) (S.S.SHINDE ,J.)
umg/
