Kashinath Motiram Chavan vs The Commissioner Of Police ...
2021 Latest Caselaw 9853 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CRIMINAL APPELLATE JURISDICTION

                        WRIT PETITION NO. 1831 OF 2021

Kashinath Motiram Chavan
Aged : 32 years, r/o Jyotiba Nagar,
Mulegaon Tanda, Solapur                       ...Petitioner
           vs.
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

                                 ***
Ms.Jayshree Tripathi for petitioner.
Mr.J.P. Yagnik, APP for the State.
                                 ***

                              CORAM : S.S. SHINDE &
                                         N.J. JAMADAR, JJ.
                         Reserved for Judgment on : 3rd July 2021.
                         Judgment Pronounced on : 28th July 2021.

                               (THROUGH VIDEO CONFERENCE)

                          ******
JUDGMENT (PER N.J. JAMADAR, J.) :

1. Rule. Rule made returnable forthwith and, with the consent

of the learned counsels for the parties, heard fnally.

Shraddha Talekar, PS                                                               1/26




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2. This petition under Article 226 of the Constitution of India

takes exception to the order of detention, dated 23rd March 2021

passed against the petitioner by the Commissioner of Police,

Solapur-respondent No.1 under the provision of section 3(2) of the

Maharashtra Prevention of Dangerous Activities of Slumlords,

Bootleggers,Drug-offenders, Dangerous persons and video pirates,

Sand Smugglers and Persons Engaged in Black Marketing of

Essential Commodities Act, 1981 (for short, 'MPDA Act').

3. Shorn of unnecessary details, the background facts leading

to this petition can be stated as under :-

(a) A proposal was initiated to detain the

petitioner by invoking the provisions contained

in section 3(2) of the MPDA Act alleging, inter-

alia, that the petitioner was a habitual bootleger

in the areas falling within the jurisdiction of

Jailroad Police Station, Solapur. The petitioner

habitually indulged in manufacture,

transportation and sale of illicit liquor in

contravention of the provisions of the

Maharashtra Prohibition Act, 1949. A number of

illicit liquor dens were operated by the petitioner.

Shraddha Talekar, PS                                                                     2/26




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The Detaining Authority noted that numerous

offences were registered against the petitioner at

Jailroad Police Station, Solapur from the year

2018 to 2021. A proceeding under section 93 of

the Maharashtra Prohibition Act, 1949 (for short,

'the Act, 1949') was also initiated against the

petitioner but to no avail.

(b) The petitioner had again indulged in the

acts in contravention of the provisions of the

Act, 1949. Six cases were registered thereunder

from 19th July 2020 to 30th September 2020.

Investigation revealed that the petitioner had

supplied and distributed the illicit liquor which

came to be seized in those crimes.

(c) The chemical analyst reported that the

samples collected during the course of raids

contained ethyl alcohol in water. Opinion was

solicited from the Department of Forensic

Medicine and Toxicology, Dr. V.M. Government

Medical College, Solapur. It was opined that

consumption of ethyl alcohol in excessive

Shraddha Talekar, PS 3/26

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amount is harmful to human body and causes

death.

(d) In view of the activities of the petitioner, the

people were not willing to come forward to lodge report

and give evidence for the fear of reprisal. Statements of

two witnesses were recorded in-camera. The

bootlegging activity of the petitioner coupled with the

violent acts resulted in disturbance of the public order.

(e) Thus, the Detaining Authority, upon recording

satisfaction that it was necessary to detain the

petitioner to prevent him from acting in a manner

prejudicial to the maintenance of public order, passed

the impugned order dated 23rd March 2021.

(f) The petitioner has assailed the impugned order

by taking multiple grounds including the non-

application of mind by the Detaining Authority and

absence of material to indicate that the bootlegging

activity, even if taken at its face value, was prejudicial

to the maintenance of public order.

4. Affdavits in reply are fled by the respondent No.1 and on

behalf of respondent No.2-State.

Shraddha Talekar, PS                                                                      4/26




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5. We have heard Ms.Tripathi, the leaned counsel for the

petitioner and Mr. Yagnik, the learned APP for the respondents.

We have also perused the original record made available by the

learned APP.

6. Ms. Tripathi restricted the challenge to three grounds :

(i) There is no material to brand the petitioner as a

'bootlegger'. Since the petitioner was not found in

possession of illicit liquor, in any of the crimes registered

against him, and taken into account by the Detaining

Authority, the satisfaction arrived at by the Detaining

Authority that the petitioner is a bootlegger, within the

meaning of section 2(b) of the MPDA Act, is completely

vitiated.

(ii) None of the acts and conduct attributed to the

petitioner, even if it is assumed that the petitioner is a

bootleger, make out a case that the said act or conduct

was prejudicial to the maintenance of public order. There

is no material to demonstrate that the bootlegging

activities of the petitioner were causing or calculated to

cause any harm, danger or alarm or a feeling of insecurity

among the general public. In short, the element of the

Shraddha Talekar, PS 5/26

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activities of the petitioner having distributed the even

tempo of life of ordinary persons is conspicuous by its

absence. Mere allegations, or for that matter proof, of

being a bootlegger by itself is not a ground for preventive

detention.

(iii) The satisfaction arrived at by the Detaining

Authority to the effect that the bootlegging activity caused

danger to public health is vitiated as its based on the

opinion of the Department of Forensic Medicine and

Toxicology, Dr. V.M. Government Medical College, Solapur,

and not on the objective assessment of the prevailing

situation allegedly caused by the bootlegging activity of

the petitioner, by the Detaining Authority.

7. In order to bolster up the frst ground of absence of material,

which would justify the branding of the petitioner as a bootleger,

Ms.Tripathi took us through the grounds of detention served on

the petitioner. A strenuous effort was made to draw home the

point that in none of the six cases registered against the

petitioner, for the offences punishable under section 65(e) and 81

of the Maharashtra Prohibition Act, 1949, during the period 19 th

July 2020 to 30th September 2020, the petitioner was found in

Shraddha Talekar, PS 6/26

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actual and conscious possession of illicit liquor. In the absence of

such material, the Detaining Authority was not at all justifed in

designating the petitioner as a bootleger, urged Ms. Tripathi.

8. The Detaining Authority has considered the following

offences registered against the petitioner in addition to in-camera

statements of two witnesses :

Sr. Police Station CR No. & Date U/section Status No.

5-1 Jailroad 1075/2020 Dt. 65(e) of Maharashtra Court 19/07/20 Prohibition Act, 1949 r/w Pending sec.188, 269, 290 of IPC, sec. 51(b) of Disaster Management Act, 2005, sec. 3 of the Epidemic Diseases Act, 1897.

5-2     Jailroad             1175/2020    Dt. 65(e), 81 of Maharashtra Court
                             19/08/20         Prohibition Act, 1949    Pending
5-3     Jailroad             1202/2020    Dt. 65(e), 81 of Maharashtra Court
                             30/08/20         Prohibition Act, 1949    Pending
5-4     Jailroad             1215/2020    Dt. 65(e), 81 of Maharashtra Court
                             09/09/20         Prohibition Act, 1949    Pending
5-5     Jailroad             1219/2020    Dt. 65(e), 81 of Maharashtra Court
                             12/09/20         Prohibition Act, 1949    Pending
5-6     Jailroad             1240/2020    Dt. 65(e), 81 of Maharashtra Court
                             30/09/20         Prohibition Act, 1949    Pending

9. The narration in respect of each of the cases, which follows

the aforesaid tabulation of the offences registered against the

petitioner, reveals that the accused, who were apprehended in

each of the crimes along with the contraband material, allegedly

disclosed that the illicit liquor was supplied and distributed by the

Shraddha Talekar, PS 7/26

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petitioner. Identical role is attributed to the petitioner in each of

the aforesaid crimes.

10. Clause (b) of section 2 of the MPDA Act defnes a 'bootleger'

as under :

"2(b) "bootlegger" means a person who distills, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any provisions of the Bombay Prohibition Act, 1949 and the rules and orders made thereunder, or of any other law for the time being in force or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or support of the doing of any of the things described above by or through any other person or who abets in any other manner the doing of any such thing."

11. In the light of the aforesaid defnition, which is of wide

amplitude, it becomes clear that a person who distills,

manufactures, stores, transports, imports, exports, sells or

distributes any liquor, intoxicating substance or who knowingly

expends or applies any money or supplies any other animal,

vehicle or conveyance or receptacle or any other material

whatsoever to facilitate the doing of any of the prohibited acts

either himself or by any other person or who abets the doing of

such prohibited acts in any other manner can be termed as a

bootlegger. In the backdrop of aforesaid expansive defnition, we

fnd it rather diffcult to accede to the submission on behalf of the

Shraddha Talekar, PS 8/26

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petitioner that the mere fact that the petitioner was not found in

actual and conscious possession of illicit liquor would take him

out of the dragnet of being a "bootlegger". In view of the expansive

ambit of the term "bootlegger", the supply and distribution of

illicit liquor squarely falls within the tentacles of the said

provision.

12. In the case at hand, there is a consistency in the narration

of the facts of above-referred six cases that the petitioner had

supplied the contraband material which was found in the

possession of the co-accused. It is imperative to note that in

addition to above six offences registered against the petitioner, the

Detaining Authority had noted that during the period 19 th April

2018 to 10th February 2021, as many as 51 cases were registered

against the petitioner for the offences punishable under section

65(e) and 81 of the Act, 1949. In the face of the aforesaid material,

it would be rather diffcult to accede to the submission on behalf

of the petitioner that the Detaining Authority was not justifed in

designating the petitioner as a 'bootleger'. The sheer weight of the

material is such that no other view is conceivable.

Shraddha Talekar, PS                                                          9/26




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13. Ms. Tripathi next urged that mere proof of the fact that the

petitioner is a bootleger is of no avail. It was incumbent upon the

Detaining Authority to record a subjective satisfaction, based on

objective material, that the bootlegging activities of the petitioner

were prejudicial to maintenance of public order. In the absence of

such satisfaction, an order of preventive detention is legally

unsustainable for bootlegging can be dealt with in accordance

with ordinary law, namely, Maharashtra Prohibition Act, 1949 and

resort to the provisions of preventive detention under the MPDA

Act is wholly unwarranted.

14. In order to lend support to the aforesaid submission, Ms.

Tripathi placed a very strong reliance on a judgment of the

Supreme Court in the case of Rashidmiya @ Chhava Ahmedmiya

Shaik Vs. Police Commissioner, Ahmedabad and Anr. 1. Reliance

was also placed on a Division Bench judgment of this Court in

the case of Dattatray Baswant Jagtap Vs. The Commissioner of

Police , Solapur and Ors. 2, (to which one of us [S.S. Shinde, J.]

was a Party)

15. Before we advert to consider the aforesaid judgments, it may

be apposite to note the provisions contained in MPDA Act, which

1 (1989) 3 SCC 321

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bear upon the controversy sought to be raised on behalf of the

petitioner. Under section 2(a), "acting in any manner prejudicial to

the maintenance of public order" means--

"(ii) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order."

Explanation to clause 2(a) reads as under :

Explanation.--For the purpose of this clause (a), public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely, inter alia, if any of the activities of any of the persons referred to in this clause, directly or indirectly, is causing or 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; [or disturbance in public safety and tranquility or disturbs the day to day life of the community by black-marketing in the essential commodities which is resulting in the artifcial scarcity in the supply of such commodities and rises in the prices of essential commodities which ultimately causes infation] [or disturbs the life of the community by producing and distributing pirated copies of music or flm products, thereby resulting in a loss of confdence in administrations.]

16. From the phraseology of section 2(a)(ii) read with

Explanation thereto, it becomes abundantly clear that a bootleger

can be detained by invoking the provisions contained in section 3

of the MPDA Act not only in a case where the bootlegging activity

is causing or calculated to cause any harm, danger or alarm or a

feeling of insecurity, among the general public or any section

thereof but also in a case where it has the propensity of a grave or

Shraddha Talekar, PS 11/26

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widespread danger to life or public health.

17. We may note with beneft, the concept of "public order"

generally and its particular connotation under the MPDA Act. The

distinction between the concepts of "public order" and "law and

order" is well recognised. Public order is something more than

ordinary maintenance of law and order. A proper test to

distinguish between "law and order" and "public order" is whether

the complained acts led to disturbance of the ordinary tempo of

life of the community so as to amount a disturbance of the public

order or it merely affected an individual leaving the tranquility of

society undisturbed. It is, therefore, said that the essential

distinction between the concepts of "public order" and "law and

order" is not in the nature or quality of the act but in the degree,

potentiality and extent of its reach upon society. The given act by

itself may not be determinant of its own gravity. It is the

propensity and potentiality of the act of disturbing the even tempo

of life of the community that renders it prejudicial to the

maintenance of public order.

18. It would be contextually relevant to note that the

Explanation to section 2(a) of the MPDA Act (extracted above)

incorporates a legal fction as to the adverse effect on public order.

Shraddha Talekar, PS                                                                        12/26




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A proftable reference in this context can be made to the judgment

of the Supreme Court in the case of Harpreet Kaur (Mrs.)

Harvinder Singh Bedi v. State Of Maharashtra And Another 3,

wherein the connotation of the Explanation was elucidated as

under :

"28. The explanation to Section 2(a) (supra) brings into effect a legal fction as to the adverse effect on 'public order'. It provides that if any of the activities of a person referred to in clauses (i)-(iii) of Section 2(a) directly or indirectly causes or is 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 a widespread danger to life or public health, then public order shall be deemed to have been adversely affected. Thus, it is the fall-out of the activity of the "bootlegger" which determines whether 'public order' has been affected within the meaning of this deeming provision or not. This legislative intent has to be kept in view while dealing with detentions under the Act."

19. Now, it may be apposite to consider the pronouncement in

the case of Rashidmiya @ Chhava Ahmedmiya Shaik (Supra). It

was a case under the provisions of Gujarat Prevention of Anti-

Social Activities Act, 1985. Section 2(b) of the Gujarat Prevention

of Anti-social Activities Act, 1985 which defnes a "bootlegger" is

pari materia section 2(b) of the MPDA Act. Section 3(4) of the

Gujarat Prevention of Anti-Social Activities Act, 1985 reads as

under :

3 (1992) 2 SCC 177

Shraddha Talekar, PS                                                                      13/26




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                 "Section 3 :
                 .....
                 (4)     For the purpose of this section, a person shall

be deemed to be "acting in any manner prejudicial to the maintenance of public order" when such person is engaged in or is making preparation for engaging in any activities whether 5 [as a bootlegger or common gambling house paper or and person] or dangerous person or drug offender or immoral traffc offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order."

20. In the context of the aforesaid provisions, the Supreme

Court observed as under :

"16 ..............A conjoint reading of Section 2(b) and Section 3(4) with the explanation annexed thereto clearly spells out that in order to clamp an order of detention upon a 'boot- legger' under Section 3 of the Act, the detaining authority must not only be satisfed that the person is a bootlegger within the meaning of Section 2(b) but also that the activi- ties of the said bootlegger affect adversely or likely to affect adversely the maintenance of public order. Reverting to the facts of this case, the vague allegations in the grounds of detention that the detenu is the main member of the gang of Abdul Latif Abdul Wahab Shaikh indulging in bootlegging activities and that the detenu is taking active part in such dangerous activities, are not suffcient for holding that his activities affected adversely or were likely to affect adversely the maintenance of public order in compliance with sub- section 4 of Section 3 of the Act that the activities of the detenu have caused 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, property or public health as per the explanation to Section 3(4). 17 The offences registered in the above mentioned four cases against the detenu on the ground that he was dealing in liquor have no bearing on the question of maintenance of public order in the absence of any other material that those activities of the detenu have adversely affected the maintenance of public order.

18 There is a catena of decisions dealing with the question of 'maintenance of public order'. But we think

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that it will be suffcient to make reference to the following two decisions.

19 This Court in Ashok Kumar v. Delhi Administration, [1982] SCC 403 has observed:

                               "It is the potentiality of the act     to
                               disturb the even tempo of the life     of
                               the community which makes               it
                               prejudicial to the maintenance         of
                               public order."
                 20      In a recent decision of this Court in Piyush

Kantilal Mehta v. The Commissioner of Police, Ahmedabad City and Anr., Judgments Today 1988 (4) 703 a question similar to one before us arose for consideration. In that case, the allega- tions in the grounds of detention were that the detenu was a prohibition bootlegger, that he was indulged into the sale of foreign liquor and that he and his associates indulged in use of force and violence and also beating innocent citizens by which an atmosphere of fear was created. In that case the detenu was alleged to have been caught red- handed possessing English wines with foreign marks and in the second occasion he was caught while shifting 296 bottles of foreign liquor in an Ambassador car. While deal- ing with that case, this Court observed as follows:

"It is true some incidents of beating by the petitioner had taken place, as alleged by the witnesses. But, such inci- dents, in our view, do not have any bearing on the mainte- nance of public order. The petitioner may be punished for the alleged offences committed by him but, surely, the acts constituting the offences cannot be said to have affected the even tempo of the life of the community. It may be that the petitioner is a bootlegger within the meaning of Section 2(b) of the Act, but merely because he is a bootlegger he cannot be preventively detained under the provisions of the Act unless, as laid down in sub-section (4) of Section 3 of the Act, his activities as a bootlegger affect adversely or are likely to affect adversely the maintenance of public order."

(emphasis supplied)

21. From the aforesaid observations, it becomes evident that the

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Supreme Court, in the facts of the said case, found that the mere

fact that the petitioner therein was dealing in liquor had no

bearing on the question of maintenance of public order in the

absence of any other material that those activities of the detenu

have adversely affected the maintenance of public order.

22. The aforesaid pronouncement, in our view, would be of no

assistance in a case where the Detaining Authority, based on

cogent material, forms an opinion that the activity of bootlegging

was prejudicial to the maintenance of pubic order. A useful

reference in this context can be made to the judgment of the

Supreme Court in the case of Kanuji S. Zala Vs. State of Gujarat

& Ors. 4, wherein the aforesaid pronouncements in the case of

Rashidmiya @ Chhava Ahmedmiya Shaik (Supra) and Piyush

Kantilal Mehta Vs. Commissioner of Police, Ahmedabad City &

Anr. 5 were explained. After adverting to the aforesaid

pronouncements, the Supreme Court, in the case of Kanuji S.

Zala (Supra), observed as under :

"4 In our opinion there is no substance in this contention. In none of the three cases relied upon by the learned counsel the point whether public order can be said to have been disturbed on the ground that the activity of the detenue was harmful to the public health arose for consideration. It appears that in those three cases, the detaining authority had not recorded such 4 (1999) 4 SCC 514 5 1989 Supp (1) SCC 322

Shraddha Talekar, PS 16/26

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satisfaction. Moreover, in those cases the detaining authorities had referred to some incidents of beating but there was no material to show that as a result thereof even tempo of public life was disturbed. In this case, the detaining authority has specifcally stated in the grounds of detention that selling of liquor by the petitioner and its consumption by the people of that locality was harmful to their health. The detaining authority has also stated that the statements of witnesses clearly show that as a result of violence resorted to by the petitioner even tempo of the public life was disturbed in those localities for some time. The material on record clearly shows that members of the public of those localities had to run away from there or to go inside their houses and close their doors. 5 What is required to be considered in such cases is whether there was credible material before the detaining authority on the basis of which a reasonable inference could have been drawn as regards the adverse effect on the maintenance of public order as defned by the Act. It is also well settled that whether the material was suffcient or not is not for the courts to decide by applying an objective test as it is a matter of subjective satisfaction of the detaining authority. The observation made by this Court in Om Prakash Vs. Commissioner of Police & Ors. - 1988 Supp. (2) SCC 576 that "as in Piyush Mehta Case, the materials available on record in the present case are not suffcient and adequate for holding that the alleged prejudicial activities of the detenu have either affected adversely or likely to affect adversely the maintenance of public order within the meaning of Section 4(3) of the Act and as such, the order is liable to be quashed"

are to be understood in the context of the facts of that case."

emphasis supplied)

23. The legal position which, thus, emerges is that while testing

the legality of an order of detention passed by the Detaining

Authority, by resorting to the provisions of section 3 of the MPDA

Shraddha Talekar, PS 17/26

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Act, in the case of a bootleger, what has to be seen is whether

there was credible material before the Detaining Authority, on the

strength of which, an inference is justifable that the bootlegging

activity was causing or calculated to cause any harm, danger or

alarm or a feeling of insecurity, among the general public or a

grave or widespread danger to life or public health and thereby

adversely affected the maintenance of public order as explained

under section 2 of the MPDA Act. Indisputably, the suffciency or

otherwise of the material is a matter for the subjective satisfaction

of the Detaining Authority. Whether the such material existed and

the Detaining Authority considered the relevant material to arrive

at such satisfaction is the remit of judicial review.

24. On the aforesaid touchstone, reverting to the facts of the

case, we fnd that apart from the numerous cases which were

registered against the petitioner, the Detaining Authority

considered the statements of two witnesses recorded in-camera.

The statement of witness 'A' reveals that the petitioner and his

associates were carrying a plastic can containing illicit liquor on

motor cycles. Children were playing on the road in front of the

shop of the said witness. There was an accident and one of the

children was dashed by one motorcycle. The child suffered a

Shraddha Talekar, PS 18/26

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minor injury. The plastic can fell off the motorcycle and the illicit

liquor spilled on the ground. When the witness remonstrated the

driving of the motor cycle in a rash manner, the petitioner and his

associates abused and assaulted the said witness. Alarmed by the

assault, the neighbours came thereat. The petitioner threatened

them on the point of knife. The associates of the petitioner beat

those persons by sticks. The people started to run helter-skelter

on account of the terror created by the petitioner and his

associates. Nobody came forward to help the witness. After giving

threats of dire consequences and robbing him of Rs.1,500/-, the

petitioner and his associates decamped. On account of fear, the

witness did not report the matter to police.

25. The statement of witness 'B' reveals that the petitioner and

his associates accosted and questioned him as to why he was

reporting the bootlegging activity of the petitioner to the police. At

that time, the petitioner and his associates were armed with sticks

and iron rods. When the witness declined to have informed the

police, the petitioner abused the witness on the point of knife. The

associates of the petitioner beat the witness and his friends with

sticks and iron rods. As the persons gathered, the petitioner and

his associates charged upon those persons. Some of them ran

Shraddha Talekar, PS 19/26

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helter-skelter and the nearby shopkeepers downed the shutters of

their shops and residents shut the doors of their houses. The said

witness also claimed to have not reported the matter to police on

account of the fear of the petitioner.

26. In the light of the aforesaid cases registered against the

petitioner and in-camera statements of the witnesses, the

Detaining Authority recorded as under :

"6 I have carefully gone through the referred, in-camera statements and relied documents as well as statements of in-camera witnesses A and B, placed before me. Ongoing through fact of offences registered against you it becomes clear that you are a habitual bootleger. As well as Department of Forensic Medicine and Toxicology, Dr. V.M. Government Medical College, Solapur have also given opinion that "Consumption of ethyl alcohol in excessive amount is harmful to human body, which causes death."

Ongoing through the fact of in-camera witnesses A and B as shown in Para No.5-9 and 5-10 of grounds of detention it becomes clear that you have created terror in the minds of public in that area.

I am aware that, now a days you are free person, taking into consideration that you are a free person, your tendency and propensity refected into the offences committed you recently, as shown in above Para No.5-1 to 5-6 and Para No.5-9, 5-10, I am satisfed that you will likely to revert to the similar activities prejudicial to the maintenance of public order in future.

Thus, I am satisfed that you proved yourself as habitual bootleger and acting in a manner prejudicial to the maintenance of public order.

So, it has become necessary for me to detain you under MPDA Act, 1981 to prevent you from acting in such a prejudicial manner in future too."

27. In our view, the aforesaid observations of the Detaining

Authority cannot be said to be based on no material and, thus,

Shraddha Talekar, PS 20/26

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unsustainable. The antecedents and acts attributed to the

petitioner are required to be considered as a whole. There is

material to indicate that the activities of the petitioner were such

that they disturbed the even tempo of life of the ordinary citizens.

It was not a case of a solitary incident. On the contrary, the

material on record unmistakably indicates that the petitioner has

been continuously indulging in the acts prohibited under the Act,

1949. Registration of almost 57 cases in a span of three years

indicates the frequency and intensity with which the petitioner

was indulging in bootlegging. From this stand point, the

satisfaction arrived at by the Detaining Authority based on the

statements of the witnesses, recorded in-camera, cannot be said

to be unsustainable.

28. In the light of the aforesaid facts, the reliance placed by Mr.

Yagnik on the judgment of this Court in the cases of Machindra

Dnyanoba Jadhav (Now in jail) Vs. The State of Maharashtra 6 and

Ramesh Balu Chavan Vs. The Commissioner of Police & Ors. 7

appears well founded.

29. In the case of Ramesh Balu Chavan (Supra), after recording

the facts relating to the crimes registered against the detenue

6 Cri. Writ Petition No.1191 of 2020 (Coram : T.V. Nalawade & M/G. Sewlikar, JJ) 7 2017 All MR (Cri) 3683

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therein, wherein also, the detenue was alleged to be the person,

who had supplied and distributed illicit liquor, and the in-camera

statements of witnesses, the Division Bench had recorded that the

incidents attributed to the detenue therein were such that there

was a feeling of alarm, danger and insecurity in the minds of the

people who had gathered at the spots.

30. The judgment in the case of Ramesh Balu Chavan (Supra)

also bears upon the third ground sought to be urged on behalf of

the petitioner, namely, the satisfaction arrived at by the Detaining

Authority that the prejudicial activity of the petitioner was likely

to cause a grave or widespread danger to life or public health was

based on the mere opinion of the Department of Forensic

Medicine and Toxicology, Dr. V.M. Government Medical College,

Solapur.

31. We have noted above that the Detaining Authority took into

account the fact that the samples of contraband which were

seized from the co-accused of the petitioner were sent for forensic

analysis and the Forensic Science Laboratory reported that the

sample contained 4% to 14% Ethyl alcohol in water. It further

noted that the Department of Forensic Medicine and Toxicology,

Dr. V.M. Government Medical College, Solapur opined that

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consumption of ethyl alcohol in excessive amount is harmful to

human body, which causes death.

32. Ms. Tripathi would urge that reliance on aforesaid opinion,

in itself, was not suffcient to record a satisfaction that the

bootlegging activity was prejudicial to the maintenance of public

order. Our attention was invited to the following observations in

the case of Dattatray Baswant Jagtap (Supra) :-

"13. Merely the fact that the Petitioner is a bootlegger is not suffcient to warrant the invocation of the provisions of the M.P.D.A. Act against the Petitioner. Mere possessing liquor also is not suffcient though in the facts of the present case, the Petitioner was not found in possession of the liquor at any point of time. But there is no material on record to show that the bootlegging activities of the Petitioner are prejudicial to the public order. The Petitioner can be effectively dealt with under the General Law, i.e., under the Maharashtra Prohibition Act, so far as his involvement in the liquor business is concerned and he is being dealt with. In this view of the matter, the invocation of provisions of the M.P.D.A. Act by the detaining authority was not warranted in the facts of the present case. Only because the consumption of Ethyl Alcohol in excessive amount is harmful to human body, which may cause death is the opinion given, it cannot be presumed that the Petitioners activities are likely to prejudice the maintenance of public health in future. The detention in these facts under the M.P.D.A. Act is not warranted."

33. The aforesaid observations, as is evident, were made in the

peculiar facts of the said case. This Court had, in terms, recorded

in the preceding paragraph (Para.12) that there was non-

application of mind on the part of the Detaining Authority in

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ignoring the important requirement that there was no cogent

material available before the Detaining Authority to show that the

activities of the petitioner were prejudicial to the maintenance of

public order. Vague and general allegations were made in the

grounds of detention and the absence of material that the

petitioner's activities were prejudicial to the maintenance of public

order, vitiated the impugned order.

34. In the case at hand, as indicated above, there is cogent

material. Moreover, in the case of Ramesh Balu Chavan (Supra),

the Division Bench dealt with an identical challenge based on the

opinion of department of forensic medicine and toxicology. The

observations in paragraph Nos. 14, 15 and 21 bear upon the

controversy and hence extracted below :

"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 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

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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 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 favouring 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.

.....

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 harm, danger or alarm or a feeling of insecurity among the members of the public. We have briefy 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."

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35.      In     the     case         at   hand,     the    persistent      and      relentless

bootlegging activity, as manifested by the registration of as many

as 57 cases, against the petitioner coupled with the chemical

analysis reports and the opinion of the Medical Expert, justify an

inference that the said activity was potentially dangerous to public

health. We, thus, fnd that the acts and conduct attributed to the

petitioner were prejudicial to maintenance of public order on both

counts namely harm, danger or alarm or a feeling of insecurity

among the general public, and grave danger to public health.

36. The upshot of the aforesaid consideration is that the

challenge to the impugned order does not deserve countenace.

The petition, therefore, deserves to be dismissed.

37. Hence, the following order :

ORDER

The petition stands dismissed.

Rule discharged.

    (N. J. JAMADAR, J.)                                          (S. S. SHINDE, J.)




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