Bombay High Court
Hanif Karim Laluwale vs State Of Mah. Thr. Additional ... on 28 June, 2022
Bench: S.B. Shukre, G. A. Sanap
333 cr. wp 75.22.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.75 OF 2022
1. Hanif Karim Laluwale,
Aged about 39 years, Occupation: Laborer
R/o Gawlipura, Taluka: Karanja.
District: Washim
.... PETITIONER
// VERSUS //
1. State of Maharashtra through
Additional Chief Secretary, Advisory,
Board, Home Department,
2nd Floor Mantralaya,
Mumbai-440032,
2. The Collector & District Magistrate,
Washim
3. Senior Police Inspector,
PSO of PS Karanja (City)
District: Washim
4. Sub Divisional Police Officer,
Washim Division, District : Washim
....RESPONDENTS
....
_______________________________________________________
Shri Parvez W. Mirza, learned counsel for the petitioner.
Shri S.S. Doifode, learned APP for the respondents/State.
____________________________________________________________
333 cr. wp 75.22.odt
2
CORAM : SUNIL B. SHUKRE AND G. A. SANAP, JJ.
DATE : 28/06/2022
ORAL JUDGMENT: (Per: SUNIL B. SHUKRE, J.)
1. Heard. Rule. Rule made returnable forthwith. Heard
finally by consent of learned counsel for the parties.
2. Upon careful perusal of impugned detention order,
we find that learned counsel for the petitioner is right in his
submission that when the Investigating Officer did not think it
fit to arrest the petitioner in any of the core crimes which have
been considered while passing the detention order, it is quite
strange to find that preventive detention of such a person is
necessary.
3. Shri S.S. Doifode, learned APP submits that there
was an intimation given by the Investigating Officer to the
petitioner under Section 41(A-1) of the Code of Criminal
Procedure, 1973 (for short "Cr.P.C.") and therefore, it cannot
be said that no control whatsoever was exercised upon the
petitioner. He also submits that since this control was found to
be inadequate, in view of what is stated by confidential
333 cr. wp 75.22.odt
witnesses, it became necessary that the petitioner was
preventively detained by invoking the provisions of
(Maharashtra Prevention Dangerous Activities of Slumlords,
Bootleggers, Drug Offenders, Dangerous Persons, Video
Pirates, Sand Smugglers and Persons engaged in Black
Marketing of Essential Commodities Act, 1981 (for short the
"MPDA Act, 1981") and as such nothing wrong could be found
in issuing intimation under Section 41-A (1) of the Cr.P.C.
4. The argument of Shri S.S. Doifode, learned APP
appears to be sound but only at the first blush. Sometimes, the
authorities may find that the control measures initiated by
them, Section 41-A (1) Cr.P.C. is one of the control measures,
are inadequate to prevent an offender from repeating his
unlawful activities and outrageous conduct. Therefore, the
authorities would be justified in invoking power of preventive
detention under the provisions of MPDA Act, 1981. But, for
such invocation, it is necessary that there is sufficient material
available on record. In the present case, however, we find that
there is absolutely no material available on record which
would have enabled the detaining authority to reach his
subjective satisfaction regarding the need for preventing
333 cr. wp 75.22.odt
activities of the petitioner which were prejudicial to the
maintenance of public order in future.
5. It is seen that the detaining authority has relied
upon the four crimes registered against the petitioner under
different provisions of Maharashtra Prohibition Act, 1949 and
also two statements of confidential witnesses. So far as the
crimes registered under the Maharashtra Prohibition Act, 1949
are concerned, we have already found substance in the
argument of learned counsel for the petitioner that it would be
wrong to say that even for these crimes detention of the
petitioner was necessary on the ground that the petitioner was
habitual bootlegger.
6. This is for the reason that for these very crimes, the
Investigating Officer did not think it fit to arrest the petitioner.
Arrest for these crimes, which are cognizable, was possible for
the Investigating Officer by recording his requisites satisfaction
under Section 41-(1)(ii)(a) of the Cr.P.C. which lays down that
Police Officer may without an order of Magistrate and without
a warrant, arrest any person if he is satisfied that such arrest is
necessary, for the reason inter-alia, of preventing such person
333 cr. wp 75.22.odt
from committing any further offence. Such being the nature of
the power of the Investigating Officer, which power
Investigating Officer has not exercised in the present case, it
cannot be said that registration of four bootlegging crimes
against the petitioner provided any reasonable material for
detaining authority to arrive at his requisite satisfaction.
7. If the four bootlegging crimes registered against the
petitioner are excluded from the material available for the
detaining authority to reach his subjective satisfaction, what
would remain would be the statements of two confidential
witnesses. Now, if we take a look at these statements, we
would find that it is very difficult to find that the incidents
mentioned therein had any live link with the object sought to
be achieved by passing the detention order.
8. This could be seen from a close consideration of
these statements. In the first statement, it is seen that no
period of the incident has been mentioned and therefore, it
cannot be ascertained that the incident stated therein had
occurred in the recent past so as to have any material bearing
upon the satisfaction to be reached by the detaining authority.
333 cr. wp 75.22.odt
This statement therefore, would not constitute any relevant
material for the purpose of the present case.
9. About the second statement, the alleged incident of
threatening appears to have occurred in January, 2021, which
is quite an old incident, for the detention order passed in
November, 2021. Therefore, even this statement does not bear
out any live link with the purpose of detention order.
10. Such being the nature of both the statements, we do
not think that they could have been considered as constituting
any relevant material for reaching the subjective satisfaction by
the detaining authority.
11. The impugned order, it is further seen, also does
not explain as to how bootlegging activity per se and by itself
would adversely affect public order. Any bootlegging activity
in which involved is manufacture of illicit liquor can be
presumed to be adversely affecting public health. But, there is
no presumption in fact or law that every incidence of
disturbance of public health would necessarily result in
disturbance of public order. Covid-19 pandemic is the biggest
333 cr. wp 75.22.odt
example of this preposition. During that period of time, public
at large was afflicted with Covid-19 infection. It was an en
masse phenomenon but, our common experience has shown
that it did not lead to disturbance of public order in general.
Therefore, the authorities would be required to satisfy
themselves as to how disturbance of public health in certain
cases would result in also disturbance of public order. Such
satisfaction has not been reached in the present case.
12. For all these reasons, we find that the impugned
order is bad in law and must go.
13. The petition is allowed in terms of prayer
clause- (1), which reads thus:-
"Quash and set aside the impugned order dated
30/11/2021 passed by the Respondent No.2, in Case
No.D.O. No. Desk-2/HA/HOME/WS/931/2021
(Annexure-C), and confirmation order dated
05/01/2022 passed by the Respondent No.1
(Annexure-F), in the interest of justice and direct the
respondents to release the petitioner."
333 cr. wp 75.22.odt
14. The petitioner is directed to be set free forthwith, if
not required in any crime.
JUDGE JUDGE
manisha
Signed By:MANISHA ALOK
SHEWALE
Signing Date:30.06.2022 18:10
