Nilesh Charandas Gaekwad vs The State Of Maharashtra, Thr. Its ...
2022 Latest Caselaw 5916 Bom

                              1

                                         27-6-2022-Cri.W.P.-804-2021.odt

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH, NAGPUR

              Criminal Writ Petition No.804 of 2021

Nilesh Charandas Gaikwad,
Aged about 42 years,
Occ- Labour,
R/o Mubarakpur,
Tah. Babhulgaon, Dist. Yavatmal,
At present District Prison, Yavatmal.                       ... Petitioner

     Versus

1.   State of Maharashtra,
     through its Secretary,
     Home Department (Special),
     Mantralaya, Mumbai.

2.   The Collector, Yavatmal,
     Dist. Yavatmal.                                        ... Respondents


Shri M.N. Ali, Advocate for Petitioner.
Shri M.J. Khan, Additional Public Prosecutor for Respondents.


         CORAM : SUNIL B. SHUKRE & G.A. SANAP, JJ.

DATE : 27th JUNE, 2022

ORAL JUDGMENT (PER SUNIL B. SHUKRE, J.) :

1. Heard. By consent, the matter is taken up for final hearing.

2. The order dated 9-9-2021 passed by the respondent No.2-

Collector, Yavatmal, whereby the petitioner is preventively detained, is

confirmed by the respondent No.1- State by the order

dated 14-10-2021 by following due procedure, is under challenge in

this petition.

27-6-2022-Cri.W.P.-804-2021.odt

3. We have gone through the impugned order and we find

substance in the argument of the learned counsel for the petitioner

that the order has been made without there being any material

available on record on the basis of which a satisfaction about

continuous activities of the petitioner prejudicial to the public order

could have been reached by the authorities.

4. The crimes which have been taken into consideration for

reaching a conclusion for continuous activities of the petitioner

prejudicial to the public order are Crime No.192 of 2021 registered

under Sections 65(c)(d) and (f) and 83 of the Maharashtra Prohibition

Act, 1949 and Crime No.250 of 2021 registered under Section 65(c)

and (d) of the said Act at Police Station Babhulgaon. In both these

crimes, the Chemical Analyzer's report is awaited and if that is so, as

rightly submitted by the learned counsel for the petitioner, no

conclusion about prima facie involvement of the petitioner in these

crimes could be arrived at, and if that is so, no further conclusion

regarding involvement of the petitioner in prejudicial activities could

be arrived at. This is also the view taken by the Supreme Court in the

case of District Collector Ananthapur and another v. V. Laxmanna,

reported in 2005 ALL MR (Cri) 1800 (S.C.).

27-6-2022-Cri.W.P.-804-2021.odt

5. Shri Khan, learned Additional Public Prosecutor for the

respondents, submits that there are other grounds as well, which have

formed the basis for reaching a requisite satisfaction by the authorities

and these grounds are to be seen in the adverse material made

available on record by the confidential witnesses. In his opinion, this

material is sufficient for upholding the impugned order. He relies

upon the observations made by the Division Bench of this Court in

Para 12 of it's judgment in the case of Ramesh Balu Chavan v. The

Commissioner of Police and Ors., reported in 2017 ALL MR (Ci) 3683.

In the said Para, the Division Bench has held that even if one or two

grounds go away, the other grounds forming the basis for the order of

detention remain there and the same are required to be considered

separately by the Court while evaluating the legality and correctness of

the preventive detention order or otherwise. The Division Bench has

also held that as per Section 5A 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, the

grounds of detention are deemed to have been made separately.

6. There is no dispute about the severability of the grounds of

detention and that would mean that each of the grounds of detention

is examined and evaluated for it's correctness or otherwise separately

27-6-2022-Cri.W.P.-804-2021.odt

and that too, within the well-settled parameters of law.

7. So, now let us examine the gist of the statements of the

confidential witnesses appearing in the impugned order. Witness-A is

a person who does not speak of any bootlegging activities of the

person who was accosted by him, while that person was found to be

passing urine in drunken state. This material considered by the

Detaining Authority has no relevance to the satisfaction which is

arrived at. In other words, the irrelevant material in the nature of

statement of Witness-A appears to have been considered by the

Detaining Authority, which is not permissible in law and, therefore,

this statement would be of no consequence for passing of impugned

order.

8. As regards the statement of Witness-B, we find that it does

refer to the bootleggers activity or the activity of manufacuring illicit

liquor on a certain date and it also refers to the threats issued by the

person indulging in that questionable activity. But, again, this

statement does not refer to any series of questionable acts of that

person.

9. Besides, the Detaining Authority is required to record a

satisfaction that the activity of manufacturing illicit liquor is causing

27-6-2022-Cri.W.P.-804-2021.odt

great prejudice to the maintenance of public order. The activity of

bootlegging may be prejudicial to the maintenance of public health,

but it is also required to be found by the authority that such activity is

prejudicial to the maintenance of public order. There is a huge

difference in public health and maintenance of public order. It is not

necessary that any danger to public health would always lead to

unrest and breach of peace among the members of public. We are,

therefore, of the view that even if the statement of Witness-B is

accepted as it is, it would lead to a conclusion which is not beyond

that of disturbance of public health and, therefore, we are of the

further view that there is no requisite satisfaction arrived at by the

Detaining Authority. In this view of the matter, we find that the

impugned order cannot be sustained in the eye of law.

10. In the result, the petition is allowed and the impugned order

dated 9-9-2021 passed by the respondent No.2- Collector, Yavatmal, is

hereby quashed and set aside.

11. Rule is made absolute in above terms. No costs.

                                  (G.A. SANAP, J.)                        (SUNIL B. SHUKRE, J.)
          Lanjewar

Digitally Signed By :P D
LANJEWAR
Signing Date:27.06.2022
17:52