Bombay High Court
Sravan S/O. Hiraman Khelkar vs The State Of Mah. Thr. Its Principal ... on 12 December, 2023
Author: M. W. Chandwani
Bench: Vinay Joshi, M. W. Chandwani
2023:BHC-NAG:17076-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO. 685 OF 2023
Sravan S/o. Hiraman Khelkar,
Age : 39 yrs, Occu. : Agricultural labour,
R/o. Ward No. 15, Deoli, Tah. Deoli,
Dist. Wardha. . . . PETITIONER
// V E R S U S //
1. The State of Maharashtra through
its Principal Secretary, Home Department,
Mantralaya, Mumbai-32.
2. The District Magistrate and Collector,
Wardha, District Wardha.
3. The State of Maharashtra through
P. S. O. Deoli, District Wardha. . . . RESPONDENTS
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Shri Mahesh Rai, Advocate for petitioner.
Shri S. S. Doifode, APP for respondents/State.
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CORAM :- VINAY JOSHI &
M. W. CHANDWANI, JJ.
RESERVED ON :- 29.11.2023
PRONOUNCED ON : 12.12.2023
JUDGMENT (PER: M. W. CHANDWANI, J.):
-
Rule. Rule made returnable forthwith. Heard finally by
the consent of the learned Counsel for the parties.
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2. The petition challenges the order of detention dated
13.03.2023 passed by the respondent no. 2- District Magistrate,
Wardha under sub-sections (1) and (2) of 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 (hereafter referred to as "MPDA Act" for
short). The petitioner further lays challenge to the order dated
24.03.2023 passed by respondent No.1 under Section under Section 3
of the MPDA Act confirming the order dated 13.03.2023 of respondent
No.2.
3. The background facts leading to this petition can be
summarized as under :-
A proposal was initiated for detention by invoking the
provisions contained in Section 3(2) of the MPDA Act alleging, inter
alia, that the petitioner was a habitual bootlegger. The petitioner
habitually indulged in manufacturing, stocking, transporting and
selling of illicit liquor in contravention of the provisions of the
Maharashtra Prohibition Act, 1949 (hereinafter referred to as "Act of
1949" for short), within the jurisdiction of Police Station Deoli, District
Wardha and other adjoining area of Wardha District, which is declared
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as liquor prohibited district by the Government of Maharashtra. From
the year 2015, total 18 cases were registered against the peteitioner
out of which as many as 11 cases were registered under the provisions
of the Act of 1949, 4 cases registered under the provisions of Indian
Penal Code (IPC) and 3 cases under the provisions of Gambling Act.
Investigation in cases under the Act of 1949 revealed that the
petitioner had illegally supplied and distributed the illicit liquor, which
came to be seized from the petitioner in those crimes. In last six
months, one case has been registered against the petitioner under the
provisions of the Act of 1949 and one case under the provision of IPC.
But, the petitioner is continuously indulged in the acts in
contravention of the provisions of the Act of 1949. The people, who
drunk the liquor at den of the petitioner, teases women, girls and
create uproar within the locality and also causes nuisance. Thus, the
Detaining Authority felt to detain the petitioner preventing him from
acting in a manner prejudicial to the maintenance of public order and
passed the impugned order dated 13.03.2023, which is under
challenge by taking multiple grounds including non-application of
mind, absence of material to indicate that bootlegging activities were
prejudicial to the maintenance of public order as well as non-
consideration of bail order.
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4. Heard the learned Counsel for the petitioner as well as the
learned Additional Public Prosecutor (APP) for the respondents/State.
We have also perused the original record made available to us by the
learned APP for the State.
5. Mr. Mahesh Rai, learned Counsel appearing on behalf of the
petitioner assailed the detention order mainly on the ground that in
both in-camera statements, nowhere it is stated that the petitioner
himself is involved in disturbing the tranquility of the society. He
would submit that there are no allegations that the petitioner is
involved in the violent activities. The only allegation made in-camera
statements "A" and "B" that merely because some drunken people are
causing nuisance in the vicinity of the locality of the witnesses, these
statements do not show that there was disturbance of public order.
There is difference between disturbance of public health and
disturbance of public order and both are not synonymous with each
other. None of the statements refer any series of questionable acts of
the petitioner. There is no live link between the crimes relied by the
authority and detention order. The petitioner was not arrested in most
of the crimes and he was issued with notice under Section 41A of the
Code of Criminal Procedure, 1973. When the authority did not feel
necessary to arrest the petitioner in those crimes, and contrary to that
the detention order is passed. The grounds, which have been relied by
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the Detaining Authority, are flimsy and cannot form the basis of
subjective satisfaction. The detention order is contrary to the
provisions of Section 3 of the MPDA Act and, therefore, the same is
liable to be set aside and the petitioner is entitled to be released
forthwith. To buttress his submissions, Mr. Mahesh Rai seeks to rely on
the following cases:-
i) Chattu S/o. Ramjan Naurangabadi Vs. The State of
Maharashtra (Criminal Writ Petition No. 78/2022, decided on
11.07.2022).
ii) Kasam Kalu Nimsurwale Vs. State of Maharashtra (Criminal
Writ Petition No. 269/2022, decided on 26.07.2022).
iii) Hanif Karim Laluwale Vs. State of Maharashtra (Criminal
Writ Petition No. 75/2022, decided on 28.06.2022).
iv) Satish S/o. Bhimrao Narode Vs. The State of Maharashtra
(Criminal Writ Petition No. 478/2022, decided on 19.10.2022).
6. Countering the submission of the petitioner, learned APP, Mr.
S. D. Doifode, for the State vehemently submitted that the order is
well reasoned and has been passed after recording subjective
satisfaction by the learned District Magistrate, Wardha. In-camera
statements of the witnesses "A" and "B" show that the people, who
drinks liquor at the den of the petitioner, tease women and girls of the
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locality and also abuse to the local public. Wardha District is a
prohibited district. There are almost 11 offences registered against the
petitioner under the Act of 1949. All the drunken persons are
misbehaving just because of the illegal manufacturing, stocking and
selling of the illicit liquor and as per Section 3 of the MPDA Act, any
person can be detained with a view to prevent him from acting in any
manner prejudicial to the maintenance of public order. In the present
case, because of acts of the petitioner, there is disturbance in the public
order and even, due to finding of excessive ethyl alcohol, the health of
public at large is at risk. The order passed by the Detaining Authority
and confirmed by respondent No.1 is just, legal and proper. Therefore,
the writ petition requires to be dismissed.
7. Before we proceed to deal with the submissions made by the
respective parties, it will be necessary to note the provisions of the
MPDA Act, which bear upon the controversy sought to be raised on
behalf of the petitioner. The provisions of Section 2(a)(ii) of the
MPDA Act are reproduced:
"2. In this Act, unless the context otherwise requires -
(a) "acting in any manner prejudicial to the maintenance of
public order" means -
(ii) in the case of 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;
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Explanation: For the purpose of this clause -
* * *
(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 receptacles or any other materials
whatsoever in furtherance or support of the doing any of the
above mentioned things by or through any other person, or
who abets in any other manner the doing of any such thing;"
8. From the aforesaid provisions, it is clear that a bootlegger
can be detained by invoking the provisions under Section 3(1) of the
MPDA Act and not only in the case, where the bootlegger's activities
are 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 propensity of a grave or widespread
danger to life or public health. A notable reference in this context is
made in the decision of the Supreme Court in the case of Mrs. Harprit
Kaur Harvinder Singh Bedi vs. State of Maharashtra and Anr. 1, wherein
the contention of the explanation was illustrated as under :
"Explanation to Section 2(a) (supra) brings into effect a legal
fiction as to the adverse affect on `public order'. It provides that
if any of the activities of a person referred to in clause [(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
wide- spread 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
1 (1992) 2 SCC 177
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this deeming provision or not. This legislative intent has to be
kept in view while dealing with detentions under the Act."
9. A profitable reference in this context can also be made to
the judgment of the Supreme Court in the case of Kanuji S. Zala vs.
State of Gujarat & Ors.2 In paragraphs 4 and 5, it has been 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 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 specifically 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 defined by the Act. It is also well settled that
whether the material was sufficient 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 sufficient and
adequate for holding that the alleged prejudicial
activities of the detenu have either affected
adversely or likely to affect adversely the
2 (1999) 4 SCC 514
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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."
10. 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 Act, in the case
of a bootlegger, what has to be seen is whether there was credible
material before the Detaining Authority, on the strength of which, an
inference is justifiable that the bootlegging activity directly or
indirectly 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.
11. Indisputably, the sufficiency 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.
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12. On the aforesaid touchstone, reverting to the facts of the
case, we find that apart from the numerous cases, which were
registered against the petitioner, the Detaining Authority considered
the statements of two witnesses recorded in-camera.
13. Perusal of the statements of witnesses 'A' and 'B' reveal that
the petitioner is carrying an illegal business of illicit liquor within the
jurisdiction of Police Station Deoli, District Wardha, where
manufacturing, stocking and selling of liquor is completely prohibited.
Due to illicit liquor business of the petitioner, the residents of the
locality are being harassed not only by the petitioner, but by the
persons, who used to drink liquor at the den of the petitioner. Under
the influence of liquor, the drunken persons used to abuse each other
and even urinate in their clothes. Due to these activities, the modesty
of ladies, who come out of their house is being outraged, therefore,
they don't come out of the houses. Even the drunken persons used to
quarrel with the people of the locality. When the people of the said
locality stopped the customer to go to the den of the petitioner for
drinking the liquor, the petitioner abused and threatened the witnesses
and people of the said locality. Due to terror of the petitioner, nobody
comes forward to help the witnesses. The petitioner even abuses and
threatens the persons of the locality when the people protest against
his illegal business.
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14. The Detaining Authority has further considered the report of
the Chemical Analyzer stating that samples of liquor seized from the
petitioner contains ethyl alcohol in water more than 40% and as per
the opinion of the Civil Surgeon, Wardha consumption of ethyl alcohol
in excessive amount badly affects the life of people and it also affects
the digestive system, brain, heart, liver kidney, muscles and if the
percent of ethyl alcohol increases or decreases in blood from certain
level, then it can cause even death.
15. In our view, the aforesaid observations of the Detaining
Authority cannot be said to be passed on no material and without
subjective satisfaction. Though, the petitioner has been granted bail in
individual offences, the intention and the 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 even the tempo of the life of ordinary citizens. It is 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 law.
16. This takes us to the decisions of this Coordinate Bench of
this Court in the cases of Chattu Naurangabadi, Kasam Kalu
Nimsurwale, Hanif Karim Laluwale and Satish Narode (supra) relied
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by the petitioner, wherein it has been held that when the authorities
did not even deem it necessary or appropriate to arrest the petitioner
herein for offence on which reliance is placed in the impugned orders,
it cannot be said that the registration of the said offences against the
petitioner would provide any reasonable material for detaining
authority to arrive at his requisite satisfaction.
17. The aforesaid pronouncement, in our view, would be of no
assistance to the petitioner since in the two crimes i.e. Crime No.
1280/2022 and 1240/2022, on which the detention order is based on,
the petitioner was arrested and later on, he was released on bail.
Further, the in-camera statements show continuity of criminal activities
on the part of the petitioner, even after the date on which last crime
was registered. Thus, the detaining authority rightly follwed the
opinion that the activity of bootlegging was prejudicial to the
maintenance of public order.
18. Further, in view of the subjective satisfaction recorded by
the Detaining Authority, the decision in the case of Satish Narode
(supra) relied by the learned Counsel for the petitioner, will not be
helpful to the petitioner.
19. Though, the petitioner was being prosecuted under the
ordinary law, but is of no use. On the contrary, the danger to public
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order and life was increased in view of the activities of the petitioner, a
bootlegger, due to his continuously indulging in the business of illicit
liquor and other illegal activities. The Detaining Authority has rightly
restored to the extraordinary law of preventive detention under the
MPDA Act.
20. Sofar as objection regarding not verifying the in-camera
statements is concerned, perusal of in-camera statements of witnesses
'A' and 'B' show that the Sub-Divisional Police Officer has personally
interacted with the witnesses on 05.01.2023. Therefore, we do not
find force in the argument of the learned counsel for the petitioner.
21. In the case of Ramesh Balu Chavan Vs. The Commissioner of
Police3 after recording the fact relating to the crime registered against
the detenu therein, the detenu was alleged to be a person, who had
supplied and distributed illicit liquor and there are in-camera
statements of the witnesses, the Division Bench had recorded the
incidents attributed to the detenu therein, where there was a feeling of
alarm, danger and insecurity in the minds of the people, who had
gathered at the spot.
22. In the present case also, just because of manufacturing,
stocking and selling of the illicit liquor in the locality of Police Station
3 2017 ALL MR (Cri) 3683
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Deoli, the drunker have created the feeling of alarm, danger and
insecurity in the minds of the person of that locality, which is
attributed to the present petitioner. Not only this, the other criminal
activities of the petitioner also created the feeling of alarm, danger and
insecurity in the mind of the persons of that locality.
23. That apart, we have noted above that the samples of
contraband liquor, which were seized from the petitioner, were sent to
the forensic analysis and the forensic laboratory reported that in some
of cases, the samples containing ethyl alcohol is above 40%. The Civil
Surgeon, Wardha has opined that consumption of ethyl alcohol in
excessive amount is harmful to the human body, which even can cause
death. Thus, due to activity of the petitioner as a bootlegger, there is
grave danger to the public health.
24. The persistent and relentless bootlegging activities, as
manifested by the registration of as many as 18 cases against the
petitioner coupled with the chemical analysis reports and the opinion
of Medical Expert and in-camera statements of witnesses "A" and "B",
justify an inference that said activities are potentially dangerous to
public health. We, thus, find that the acts and conduct attributed to
the petitioner were prejudicial to maintenance of the public order on
both counts namely harm, danger or alarm or a feeling of insecurity
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among the people of the said locality and grave danger to public
health.
25. The upshot of the aforesaid discussions is that challenge to
the impugned order does not deserve countenance. The petition,
therefore, deserves to be dismissed.
26. Hence, the petition stands dismissed. Rule discharged.
(M. W. CHANDWANI, J.) (VINAY JOSHI, J.)
RR Jaiswal
Signed by: Mr. Rajnesh Jaiswal
Designation: PA To Honourable Judge
Date: 12/12/2023 18:17:04
