Bombay High Court

Suman Sanjay Kadmanchi vs State Of Maharashtra And Anr on 15 December, 2023

Author: Gauri Godse

Bench: Revati Mohite Dere, Gauri Godse

2023:BHC-AS:39664-DB


                                Digitally signed by
              VARSHA VIJAY VARSHA VIJAY RAJGURU
              RAJGURU      Date: 2023.12.28
                           18:56:21 +0530



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 varsha                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL WRIT PETITION(STAMP) NO. 16358 OF 2023

                    Suman Sanjay Kadmachi
                    R/at:- Survey No.89/A, 261, Samarth
                    Nagar, Near Mhasoba Temple, Hinge Mala,
                    Hadapsar, Pune -411 028.
                                                            ... Petitioner
                    Presently at Nashik Central Jail.
                                      vs.
                    1. State of Maharashtra
                       Through Pune Police Commissioner.

                    2. Mr. Retesh Kumaarr
                       Commissioner of Police, Pune City
                       Office of the Commissioner of Police-2
                       Sadhu Wasvani Road, Camp,
                       Pune - 411 001.


                    3. The Jail Superintendent of Nashik                      ... Respondents
                       Central Jail, Nashik.



                  Mr. Vishal M. Janrao, for the Petitioner.
                  Mr. J.P. Yagnik, Addl. P.P for the State.


                                                      CORAM : REVATI MOHITE DERE &
                                                                  GAURI GODSE, JJ.
                                                      DATED : 15th DECEMBER 2023


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 JUDGMENT (PER: GAURI GODSE, J.) :

1. By this petition, the petitioner challenges the detention

order dated 28th July 2023 issued by respondent no. 2 - the

Commissioner of Police, Pune City in exercise of the powers

conferred by sub Section (2) of Section 3 of the Maharashtra

Prevention of Dangerous Activities of Slumlords, Bootleggers,

Drug-offenders and Dangerous Persons, Video Pirates, Sand

Smugglers and Persons Engaged in Black Marketing of Essential

Commodities Act, 1981 ("the M.P.D.A. Act") for detaining the

petitioner.

2. The aforesaid detention order is passed by relying upon

one complaint registered against the petitioner vide CR No. 381

of 2023, dated 5th March 2023, for the offence punishable under

section 65(e) of the Maharashtra Prohibition Act. The allegations

in the said CR against the petitioner are that during the raid

conducted by the police, they saw a lady selling toddy from the

blue barrel. On reaching the spot, the police found 80-liter toddy

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worth Rs. 2000/- and thus, the toddy, as well as other articles,

were seized from the petitioner. The detaining authority has

recorded that the sample seized from the petitioner was sent for

chemical analysis, and as per the report, the seized sample

contains 2% Ethyl Alcohol and 1% Chloral Hydrate. The charge

sheet was filed in the said matter, and the same is pending trial.

3. The detaining authority has relied upon the in-camera

statements of two witnesses. Witness 'A' has stated that the

petitioner is in the business of selling illicit toddy, and the

petitioner creates terror amongst the public and threatens and

assaults people who complain about his illegal activities. The in-

camera statement of witness 'B' also indicates similar allegations.

Witness 'B' has also stated that the petitioner is in the business of

selling illegal toddy and creates terror in the locality, and

threatens and abuses people who complain against the

petitioner's illicit business. The detention order does not indicate

the date of recording the in-camera statements.

4. Thus, by relying upon the aforesaid CR and the two in-

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camera statements, the detaining authority has recorded the

finding that the petitioner is a 'bootlegger' within the meaning of

the MPDA Act and has recorded subjective satisfaction that the

petitioner is involved in prejudicial activities which is harmful to

health and life of the people. Hence, to prevent the petitioner

from indulging in the said activities, the detaining authority has

passed the detention order.

5. Learned counsel for the petitioner has raised various

grounds to challenge the detention order. However, has pressed

into service the ground of challenge raised in the amended

ground 18(a), which reads as follows:-

"The petitioner says and submits that the detaining authority has taken into consideration one C.R. and two in camera statements of witness A and B to arrive at his subjective satisfaction and pass the detention order. Solitary C.R. No. 381/2023 U/sec. 65 (e) of Maha. Prohibition Act 1949, dated 06.03.2023 is considered for passing the detention order. It is pertinent to note that there is no Chemical Analyzers Report/Opinion of any expert or medical

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research/hospital certifying that the sized toddy is injurious or harmful and unfit for human consumption, human health, this material viz opinion/ report is neither placed before the detaining authority nor copy furnished to the detenu. In cases where the detenu is designated as a bootlegger under MPDA Act copies of chemical analyzer's report along with opinion of chemical analyzer is considered as most vital and relevant document/material and is mandatory on the part of the detaining authority to consider before passing detention order, this is the same material on which the detaining authority ought to arrive at his subjective satisfaction before passing a valid detention order. The said material/document should be placed before the detaining authority and a copy of the same material should be given to the detenu to afford her an earliest opportunity to make an effective representation. In the present case the procedure of placing cogent material before the detaining authority and copy to be furnished to the detenu is not followed at all. Non supply of vital documents/material also amounts to non- communication of grounds of detention. This also shows non application of mind of the detaining authority. Also, non-supply of the C.A. Report and opinion of the Chemical analyzer has

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disabled the detenu to make any effective representation, thereby the detenu's right guaranteed under Article 22(5) of the constitution of India is violated. The order of detention is illegal and bad in law for non-placement of relied on material like Chemical Analyzers Report and opinion, the order of detention is liable to be quashed and set aside."

6. The learned counsel submitted that the detaining authority

has recorded the subjective satisfaction without referring to any

expert opinion or medical research papers certifying that the

seized sample of toddy is injurious or harmful or not fit for

human consumption. Learned counsel submitted that in the

absence of any such material to show that the petitioner's

activities are harmful or injurious to public health and life, the

subjective satisfaction recorded by the detaining authority is not

sustainable. He submitted that subjective satisfaction recorded by

the detaining authority in the absence of material and cogent

evidence on record shows non-application of mind of the

detaining authority. He therefore submitted that the detention

order stands vitiated for non-application of mind, and continued

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detention of the detenu is rendered illegal and impermissible.

7. Learned Additional PP supported the detention order by

relying on the respective affidavits filed on behalf of the

detaining authority and the jail authorities. He submitted that it

is not necessary to obtain any expert opinion as contended by the

petitioner. He submitted that the sample seized from the

petitioner was sent for chemical analysis, which showed that the

seized sample contained 2% Ethyl Alcohol and 1% Chloral

Hydrate, which is dangerous to life and people and is prejudicial

to the maintenance of public order. Learned Additional PP,

therefore, submitted that there is no substance in the ground

raised on behalf of the petitioner.

8. We have perused the detention order as well as supporting

documents and the affidavits relied upon by the learned

Additional PP. It is not disputed that the chemical analysis report

shows that a certain percentage of Ethyl Alcohol and Chloral

Hydrate is found in the seized sample. However, there is no

expert opinion to show that the consumption of toddy would be

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harmful and dangerous to public life and health. The detaining

authority has recorded subjective satisfaction only based on one

CR registered against the petitioner, which is pending trial, and

two in-camera statements. The detaining authority does not even

indicate the date of recording the in-camera statements.

9. Perusal of the grounds of detention recorded in the

detention order does not show that the detaining authority has

relied upon any cogent or substantial material to arrive at a

subjective satisfaction that the petitioner is a bootlegger and his

activities are prejudicial or harmful for public life and health.

10. In view of the aforesaid facts and circumstances, it is

necessary to refer to the decision of this court in the case of

Gurunath alias Mahesh Jalinder Kamble Vs. Commissioner of

Police, Pune City, Pune1. In the said decision, this court after

referring to various decisions of this court and the Hon'ble

Supreme Court, has held in paragraphs 12 to 14 as under:

Criminal Writ Petition (St.) No. 17554 of 2023, dated 8th November 2023.

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"12. In the case of Sharad Vishnu Patil Vs. State of Maharashtra2 this Court has also taken a similar view and accepted the contention raised on behalf of the detenu that registration of the criminal cases against the detenu could not have been the basis to form the ground for detention as they were irrelevant and had no connection whatsoever with public order or public health. In the said case, the report of the chemical analysis was placed before the detaining authority.

However, there was no material placed before the detaining authority for arriving at a conclusion that the detenu was indulging in an activity which was dangerous to public health. This Court, by relying upon the decisions of the Hon'ble Supreme Court in the case of District Collector, Ananthapur Vs. V. Laxmanna3, set aside the order of detention.

13. Even in the case of Haresh Vinayak Patil Vs. State of Maharashtra, this Court, by relying upon the aforesaid decisions in the case of Sharad Vishnu Patil and the decision of the Hon'ble Supreme Court in the case of District Collector, Ananthapur Vs. V. Laxmanna set aside the order of detention. Even in the case of Vinod S. Chavan Vs. Himmatrao Deshbhartar & Ors this Court has held that under the provisions of the MPDA Act, the term habitual bootlegger is not defined;

2005 SCC (Cri) 882

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however, the term bootlegger is defined under clause

(b) of section 2 of the MPDA Act. This Court, by referring to the aforesaid provisions, has held in paragraphs 5 and 6 as under:

"5. It must be noted here that under the provisions of the said Act, the term ''habitual bootlegger" is not defined. However, the term "bootlegger" is defined in Clause (b) of Section 2 of the said Act which reads thus:-

2(b) "bootlegger" means a person, who distils, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicants in contravention of any provisions of the Bombay Prohibition Act, 1949 (Bom.XXV of 1949) and the rules and orders made thereunder, or of any other law for the time being in force or who knowingly spends 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."

6. We may note here that the subjective

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satisfaction recorded is that the activities of the Petitioner are prejudicial to both the maintenance of public order and public health. In the Grounds, it is stated that due to consumption of illicit liquor of the Petitioner, many people have become seriously ill and died. We are examining only the decision making process and not the correctness of the decision itself. Now, the question is what was the material placed before the detaining authority for recording subjective satisfaction that the conduct of the Petitioner affects the public health and that due to consumption of unhygienic country made liquor supplied by the Petitioner, the people have become seriously ill and died. On this aspect, it will be necessary to make a reference to the decision of the Apex Court in the case of District Collector, Ananthapur (supra). The Apex Court was dealing with an order of preventive detention passed under Section 3 of the Andhra Pradesh Prevention of Dangerous Activities of Boot- Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986. The argument noted by the Apex Court in Paragraph 5 was that sale of arrack which is dangerous to public health which alone

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would become an act prejudicial to the maintenance of public order. While dealing with the said argument, in Paragraphs 7 and 8, the Apex Court has held thus:

"7. We do not think that this argument of the learned counsel can be accepted. If the detention is on the ground that the detenu is indulging in manufacture or transport or sale of arrack then that by itself would not become an activity prejudicial to the maintenance of public order because the same can be effectively dealt with under the provisions of the Excise Act but if the arrack sold by the detenu is dangerous to public health then under the Act, it becomes an activity prejudicial to the maintenance of public order, therefore, it becomes necessary for the detaining authority to be satisfied on material available to it that the arrack dealt with by the detenu is an arrack which is dangerous to public health to attract the provisions of the Act and if the detaining authority is satisfied that such material exists either in the form of report of the Chemical Examiner or otherwise, copy of such material should also be given to the detenu to afford him an opportunity to make an effective representation.

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8. Therefore, while holding that dealing with arrack, which is dangerous to public health would become an act prejudicial to the maintenance of public order attracting the provisions of the Act, it must be held that it is obligatory for the detaining authority to provide the material on which it has based its conclusion on this point. Therefore, we are in agreement with the High Court that if the detaining authority is of the opinion that it is necessary to detain a person under the Act to prevent him from indulging in sale of goods dangerous for human consumption the same should be based on some material and the copies of such material should be given to the detenu.

(emphasis added)"

14. Thus, this Court, by relying upon the principles of law laid down by the Hon'ble Supreme Court in the case of District Collector, Ananthapur Vs V. Laxmanna set aside the order of detention by holding that there was no report of an expert for recording subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and public health."

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11. The principles laid down by the Hon'ble Supreme Court

and this Court, as stated above, are squarely applicable to the

facts of the present case. Without any cogent material to hold

that the petitioner's activities are prejudicial to public order and

public health, the detention order only based on the registration

of the FIR and in-camera statements is not sustainable. In the

absence of any cogent material relied upon by the detaining

authority and supplied to the petitioner for holding him as a

bootlegger and detaining him on the ground for his activities

prejudicial to public order and public health, the petitioner was

deprived of making effective representation. Hence, the

detention order stands vitiated, and there is a breach of the

petitioner's right under Article 22(5) of the Constitution of

India. Thus, the continued detention of petitioner is rendered

illegal and impermissible.

12. Hence, for the reasons recorded above, the petition is

allowed by passing the following order:

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ORDER

1. Despite leave to amend being granted to the learned

counsel for the petitioner to delete part of the prayer

clause, which seeks quashing of FIRs, the said amendment

has not been carried out, till date.