Bombay High Court
Sitaram Kalidas Kale vs The State Of Maharashtra And ... on 22 September, 2021
Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni
1
Cri.W.P.216-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 216 OF 2021
Sitaram s/o Kalidas Kale,
Age 47 years, Occu. Labour,
R/o Pardhiwada, Village Ashti,
Taluka Partur, District Jalna ..Petitioner
Versus
1. State of Maharashtra,
Through its Secretary,
Home Department, Mantralaya,
Mumbai 32
2. District Magistrate, Jalna
Office of Collector and
District Magistrate, Jalna,
Administrative Building,
Survey No.488, Jalna
3. Superintendent of Police,
Jalna ..Respondents
Mr Sushant V. Dixit, Advocate for petitioner
Mr Sachin J. Salgare, A.P.P. for respondents/State
CORAM : V.K. JADHAV AND
SHRIKANT D. KULKARNI, JJ.
JUDGMENT RESERVED ON : 21.08.2021
JUDGMENT PRONOUNCED ON : 22.09.2021
JUDGMENT (Per Shrikant D. Kulkarni, J.)
1. Rule. Rule made returnable forthwith. Heard finally with the consent of
both the sides at admission stage.
2. The Writ Petition invites this Court to exercise its plenary powers vested
under Article 226 read with Article 227 of the Constitution of India and prays to
quash and set aside detention order No.2020/RB-Desk-1/Pol-1/MPDA/Kavi-442
dated 26.10.2020, issued by respondent no.2/District Magistrate, Jalna under
Section 3(1) of the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video
Cri.W.P.216-2021
Pirates, Sand Smugglers and Persons engaged in Black Marketing of Essential
Commodities Act, 1981 (hereinafter referred as 'MPDA Act'), and approved by
respondent no.1/State under Section 3(3) of the MPDA Act, vide order No.
MPDA-1120/CR-182/Spl-3B dated 3.11.2020.
3. Factual matrix essential for the purpose of deciding this petition in
narrow compass is as under :
(a) On 23rd August 2020, Assistant Police Inspector of Ashti Police Station,
Taluka Partur, District Jalna moved proposal for detention of the petitioner in
view of the provisions of Section 3 (1) of the MPDA Act. The Sub-Divisional
Police Officer, Sub-Division, Partur, District Jalna recommended the proposal
and forwarded it to respondent no.2/District Magistrate, Jalna on 15.9.2020.
After perusing the proposal submitted by the A.P.I. Ashti Police Station and
recommended by the Sub-Divisional Police Officer, Sub-Division, Partur,
District Jalna, respondents no.2/District Magistrate, Jalna passed order of
detention on 26.10.2020 against the petitioner. On 27.10.2020, respondent
no.2/District Magistrate, Jalna submitted the proposal to respondent no.1/State
of Maharashtra and sought approval of detention order passed by him dated
26.10.2020. It was informed to the petitioner that his case has been referred to
the Advisory Board for review and asked the petitioner to submit his
representation against the order of detention to the Advisory Board. The
petitioner's case was referred to Advisory Board for review. Respondent
no.1/State informed to the petitioner that the Advisory Board has also decided
to confirm the detention of the petitioner and under Section 12(1) of the MPDA
Act, respondent no.1/State confirmed the detention order passed by
respondent no.2 and continued the detention of the petitioner for a period of
one year from the date of detention.
Cri.W.P.216-2021
(b) The petitioner has challenged the impugned order of detention as well as
order of approval issued by the State dated 24.11.2020 on various grounds.
4. Heard Mr Sushant V. Dixit, learned Advocate for the petitioner and Mr
Sachin J. Salgare, learned A.P.P. for respondent no.1/State at length.
5. We have perused the impugned order of detention and approval granted
by respondent no.1/State and affidavit-in-reply filed by respondent no.2 -
District Magistrate, Jalna.
6. Mr Dixit, learned Advocate for the petitioner vehemently submitted that
the impugned order of detention is perverse and bad in law. According to him,
statements of two confidential witnesses have been considered by the authority
and on that basis, the petitioner has been termed as dangerous person, which
is not in consonance with the definition given under Section 2 (b-1) of the
MPDA Act. The petitioner does not fall within the purview of definition of
dangerous person. He is not a member or leader of gang habitually committing
or attempting to commit or abetting commission of offences punishable under
Chapter XVI or XVII of the Indian Penal Code or any offences punishable under
Chapter V of Arms Act. The petitioner cannot be said to be acting in any
manner prejudice to the maintenance of public order.
7. He submitted that in view of provisions of Section 3(2) of the MPDA Act,
the period of detention is only for six months, however, in the instant case, no
period of detention is mentioned in the order of detention dated 26.10.2020
and, therefore, such order of detention is liable to be quashed and set aside.
He submitted that order of detention has been passed in a very casual manner.
The authorities have not applied their mind before passing the impugned order
Cri.W.P.216-2021
of detention against the petitioner. The petitioner has been detained without
trial and personal liberty of the petitioner has been curtailed.
8. According to Mr Dixit, learned Advocate for the petitioner, in the
impugned order of detention, the petitioner has been termed as a dangerous
person in view of his so called criminal activities. But, in the affidavit-in-reply
filed by respondent no.2, the State has come out with a different story that the
petitioner is involved in manufacturing and selling of illicit liquor, which clearly
speaks non-application of mind by the authorities while passing the impugned
order of detention. Mr Dixit urged to quash and set aside the impugned order
of detention passed by respondent no.2 and approved by respondent
no.1/State.
9. Mr Dixit has placed his reliance in case of Lahu Shrirang Gatkal Vs.
State of Maharashtra, through the Secretary and Ors., reported in 2017
DGLS (SC) 894 and submitted that the authorities could not have passed a
blanket order of detention without specifying the period of detention. The
Government cannot extend the period of detention upto the maximum period of
twelve months in one stroke.
10. Per contra, Mr Salgare, learned A.P.P. for respondent no.1/State
supported the impugned order of detention passed by respondent no.2/District
Magistrate, Jalna and approved by respondent no.1/State. He submitted that in
the proposal itself, the Assistant Police Inspector, Ashti has mentioned about
the illegal activities of the petitioner in manufacturing and selling of illicit liquor.
It is the stand of the authority that the criminal activities of the petitioner of
manufacturing and selling illicit liquor has caused breach of public peace and
order within Ashti city and nearby vicinity. The said illicit liquor is harmful for
Cri.W.P.216-2021
human body and may cause death of a person. The authority has considered
the antecedents of the petitioner. The authority has passed order of detention
after subjective satisfaction and arrived at a conclusion that detention of the
petitioner is necessary in the maintenance of public order. He submitted that
the petitioner is a 'bootlegger' as defined in MPDA Act, 1981 since he is
involved in the commission of offences punishable under Maharashtra
Prohibition Act, 1949. The authority has also considered in-camera statements
of two witnesses and accordingly, passed the order of detention. He submitted
that the impugned order of detention passed by the authority needs to be
upheld. Mr Salgare has also placed reliance on following stock of citations :
(i) Ramesh Balu Chavan Vs. The Commissioner of Police &
Ors., reported in 2017 ALL MR (Cri) 3683;
(ii) Kanuji S Zala Vs. State of Gujarat
reported in 1999 DGLS (SC) 555;
(iii) Magar Pansingh Pimple Vs. State of Maharashtra & Anr.,
reported in 2006 ALL MR (Cri) 491;
(iv) Smt. Gobibai Vs. Ghanavat Vs. State of Maharashtra &
Ors., reported in 2003 ALL MR (Cri) 406;
(v) Machindra Dnyanoba Jadhav Vs. State of Maharashtra &
Ors., reported in 2021 DGLS (Bom.) 33;
(vi) T. Devaki Vs. Government of Tamil Nadu and ors.,
reported in (1990) 2 SCC 456
11. We have considered the submissions of Mr Dixit, learned Advocate for
the appellant and Mr Salgare, learned A.P.P. for respondent no.1/State. We
have gone through the impugned orders passed by the authorities and the
relevant provisions of the MPDA Act.
Cri.W.P.216-2021
12. Respondent no.2/District Magistrate, Jalna seems to have considered
the following criminal activities of the petitioner :
Sr. Name of Cr. No. Sections Date of Current
No. Police registration position
Station
1 Ashti 6028/2017 65(A) (E) (F) of 22/04/2017 Pending
Maharashtra before Court
Prohibition Act
2 Ashti 102/2018 122 of Bombay Police 11/07/2018 Cost of
Act, 1951 Rs.500/-
3 Ashti 141/2019 324, 323, 504, 506 of 23/11/2019 Pending
IPC before Court
4 Ashti 62/2020 65 (A) (E) (F) of 07/04/202 Pending
Maharashtra 0 before Court
Prohibition Act, 188,
269 of IPC, 51 (b) of
Disaster Management
Act
5 Ashti 73/2020 65 (A) (E) (F) of 16/04/2020 Pending
Maharashtra before Court
Prohibition Act, 188,
270, 271 of IPC, 51 (b)
of Disaster
Management Act
6 Ashti 106/2020 65 (A) (E) (F) of 09/06/2020 Under
Maharashtra investigation
Prohibition Act, 188,
269, 270, 271 of IPC,
51 (b) of Disaster
Management Act
Preventive Actions
Sr.No. Name of Police Chapter Section Disposal
Station case No.
1 Ashti 1/2020 93 of Maharashtra
Prohibition Act
Cri.W.P.216-2021
13. Section 2 (b) of the MPDA Act defines, "bootlegger", whereas Section 2
(b-1) of the MPDA Act defines, "dangerous person". In the impugned order of
detention, the petitioner has been termed as "dangerous person". It is also
equally mentioned in the impugned order that the act of the petitioner is harmful
for public order in Jalna district and as such, the authority has arrived at a
conclusion to issue detention order against the petitioner. If the proposal
submitted by the Assistant Police Inspector, Ashti is taken into consideration, it
would throw light as to how the petitioner is involved in the illegal activities of
manufacturing and selling of illicit liquor in the vicinity of Ashti. It is evident from
the above chart that in all four cases have been registered against the
petitioner under the provisions of Maharashtra Prohibition Act, 1949. One
crime is of year 2017 and remaining three crimes are of year 2020. The details
of the crime have been given in the impugned order of detention. The authority
seems to have carefully perused the material as well as considered the two in-
camera statements (Confidential witnesses A and B). In this background, we
are not convinced to accept the argument advanced by Mr Dixit, learned
Advocate for the petitioner that the State has changed its stand by way of
affidavit by terming the petitioner from 'dangerous person' to 'bootlegger'. It is
evident from the record that since beginning, the State/authority contended that
the petitioner is involved in the manufacturing and selling of illicit liquor and
thereby raised serious question mark about public order.
14. So far as other grounds raised by Mr Dixit, learned Advocate for the
petitioner are concerned, we have gone through the affidavit-in-reply filed by
respondent no.2/District Magistrate, Jalna carefully. Judicial review of
administrative action/order is certainly permissible on three grounds. The first
ground is "illegality", the second is "irrationality" and third is "procedural
Cri.W.P.216-2021
impropriety". It is needless to say that the Court will be slow to interfere in such
matters relating to administrative functions unless the decision is tainted by any
vulnerability enumerated above; like illegality, irrationality and procedural
impropriety. Whether action falls within any of the categories has to be
established. Mere assertion in that regard would not be sufficient.
15. We have gone through the citation in case of Lahu Shrirang Gatkal Vs.
State of Maharashtra, through the Secretary and Ors. (supra) relied by Mr
Dixit, learned Advocate for petitioner. In the said cited case, the detention
order was challenged merely on the ground that detention period was not
mentioned. The Honourable Supreme Court held that respondent/authority
could not have passed such a blanket order of detention without specifying the
period of detention.
16. Mr. Salgare, learned APP for the State has rightly invited our attention to
the decision of Hon'ble three Judges Bench of the Apex Court in the case
of T.Devaki Vs. Government of Tamil Nadu and others reported in (1990)
2 SCC 456 and submitted that the Hon'ble Supreme Court has taken a view
that an order of detention is not rendered illegal merely because it does not
specify the period of detention. He submitted that the citation in the case of T.
Devaki Vs. Government of Tamil Nadu and others (supra) was not brought
to the notice of the Hon'ble Supreme Court while deciding the case of Lahu
Shrirang Gatkal Vs. State of Maharashtra, through the Secretary and Ors.
(supra). He submitted that the decision of Hon'ble three Judges Bench of the
Apex Court governs the field and the detention order cannot be said to be
illegal merely because it does not indicate the period of detention. We have
carefully gone through the citation in the case of T. Devaki Vs. Government of
Tamil Nadu and others (supra). The Hon'ble Supreme Court in para nos. 12
Cri.W.P.216-2021
and 13 has observed as under:
"12. Section 3 of the Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers and Drug-offenders Act, 198 1
is identical in terms to Section 3 of the Tamil Nadu Act. Section 3
of Maharashtra Act does not require the State Government, District
Magistrate or a Commissioner of Police to specify period of
detention in the order made by them for detaining any person with
a view to preventing the detenu from acting in any manner
prejudicial to the maintenance of public order. Section 3(1) which
confers power on the State Government to make order directing
detention of a person, does not require the State Government to
specify the period of detention. Similarly, sub-sections (2) or (3) of
Section 3 do not require the District Magistrate or the
Commissioner of Police to specify period of detention while
exercising their powers under sub-section (1) of Section 3. The
obser- vations made in Gurbux Biryani's case that the scheme of
the Maharashtra Act was different from the provisions contained in
other similar Acts and that Section 3 of the Act contem- plated
initial period of detention for three months at a time are not correct.
The scheme as contained in other Acts providing for the detention
of a person without trial, is similar. In this connection we have
scrutinised, the Preventive Detention Act, 1950, the Maintenance
of Internal Security Act, 1971 COFEPOSA Act, 1974, National
Security Act, 1980, but in none of these Acts the detaining
authority is required to specify the period of detention while making
the order of detention against a person.
13. This Court has consistently taken the view that an order of
detention is not rendered illegal merely because it does not specify
the period of detention."
17. Having regard to the legal position made clear by the Hon'ble Supreme
Court in the Case of T. Devaki Vs. Government of Tamil Nadu and others
(supra), the impugned order of detention cannot be said to be illegal because it
does not specify the period of detention.
Cri.W.P.216-2021
18. In the case in hand, on perusing the order as well as papers made
available by the learned A.P.P., it is evident that the committal order came to
be issued in view of sub-section (1) of Section 3 of the MPDA Act read with
Government order, Home Department (Special), Mantralaya Mumbai No.
MPDA/0620/76/Vsha-3(B) dated 8.7.2020. The grounds of detention have been
communicated to the petitioner on 26.10.2020 itself. The District Magistrate,
Jalna/respondent no.2, vide his letter dated 27.10.2020 itself sought approval
from the Government within twelve days before 6.11.2020. Accordingly,
respondent no.1/State seems to have given approval to the detention order
issued by respondent no.2/District Magistrate, Jalna, vide letter No.MPDA-
1120/CR-183/Spl-3B dated 3.11.2020. Further, it is evident that the Advisory
Board also, after considering the material was pleased to accord the detention
order. Accordingly, the Home Department (Special), vide its order dated
10.12.2020 was pleased to issue detention order of the petitioner for a period of
one year from the date of detention.
19. In view of the above facts, we do not find any material defect.
20. Mr Salgare, learned A.P.P. for the State has referred stock of citations
referred above. On making analysis of the same, the clear legal position is
emerged that the authorities must have arrived at a subjective satisfaction on
the basis of material placed before it that the detenu was a 'bootlegger' and that
his activities as a bootlegger/dangerous person 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.
Cri.W.P.216-2021
21. Now turning back to the facts of the case in hand and the impugned
order of detention. On perusing the impugned order of detention, it is evident
that there was credible material before the authorities, on the basis of which
reasonable inference could have been drawn as regards adverse effect on the
maintenance of public order, as defined under the MPDA Act. By looking to the
material available on record in the present case, we find that there was
sufficient and adequate material for holding that the alleged prejudicial activities
of the detenu have adversely affected or are likely to affect adversely the
maintenance of public order. Furthermore, in this case, the detaining authority
has specifically mentioned in the grounds that the activities of the detenu are
likely to cause harm to the public health. The authorities also considered in-
camera statements in detail and seems to have arrived at a proper conclusion.
In view of the material on record, it cannot be said that the subjective
satisfaction of respondent no.2/District Magistrate, Jalna in its order, was not
reasonable or genuine.
22. In case of Ramesh Balu Chavan Vs. The Commissioner of Police &
Ors. (supra), it is held by the Division Bench of this Court at principal seat at
Bombay that if the detaining authority arrived at the 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 MPDA Act. The facts of the case in hand
are practically similar and identical and as such, we do not find any error on the
part of the detaining authority while passing the impugned order of detention.
Cri.W.P.216-2021
23. Having regard to the above reasons and discussion, we do not find any
merit in this petition.
ORDER
Criminal Writ Petition stands dismissed. Rule discharged.
( SHRIKANT D. KULKARNI, J.) ( V.K. JADHAV, J.)
vvr
