Anil Motiram Rathod vs State Of Mha. Thr. Pso Its ...
2023 Latest Caselaw 7554 Bom

                                        1                8-J-WP-666-22.doc


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

               CRIMINAL WRIT PETITION NO. 666 OF 2022

 PETITIONER:                   Anil Motiram Rathod,
                               Aged about 47 years, Occ. Labourer,
                               R/o Khirada, Tq. Malegaon, Dist. Washim
                               (presently in Jail).

                               VERSUS

 RESPONDENTS :                 1.    State of Maharashtra
                                     Through its Secretary,
                                     Department of Home,
                                     Mantralaya, Mumbai.

                               2. Collector and District Magistrate,
                                  Washim.

                               3.    Superintendent of Police,
                                     Washim.
 -------------------------------------------------------------------------------------------
 Shri R. S. Kurekar, Advocate for petitioner.
 Shri N. R. Rode, Additional Public Prosecutor for respondent Nos.1 to 3.
 -------------------------------------------------------------------------------------------
                               CORAM:- VINAY JOSHI AND
                                              VALMIKI SA MENEZES, JJ.

 RESERVED ON                   : 26/07/2023

 PRONOUNCED ON                 : 28/07/2023



 JUDGMENT : (PER VALMIKI SA MENEZES, J.) :

1. Heard Shri R. S. Kurekar, learned counsel for the

petitioner and Shri N. R. Rode, learned Additional Public

Prosecutor for respondent Nos.1 to 3.

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2. By this petition, the writ jurisdiction of this Court under

Article 226 of the Constitution of India is invoked seeking relief of

quashing and setting aside the detention order and committal

order No.DESK-2/HA/HOME/WS-646/2022, dated 04/08/2022

passed by the respondent No.2 and to set aside the order dated

14/09/2022 passed by respondent No.1, confirming the order of

respondent No.2. The impugned orders have been passed in terms

of the provisions of Section 3 r/w Section 12 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 (hereinafter referred to as "the Act").

3. The facts as gathered from the statements made in the

petition and the record produced therewith, which have led to the

passing of the impugned orders and their challenge in the petition

are as under :-

A] The petitioner was served with the impugned detention

order dated 04/08/2022 issued under Section 3 of the Act on

ground of detention which has been annexed to the order. The

main ground for detention is that the petitioner is alleged to be a

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'Bootlegger' in the village of Khirda, within the jurisdiction of

Jaulka Police Station, Dist, Washim; it was further alleged in the

grounds that as a habitual bootlegger, the petitioner has

committed 11 offences from the year 2017 to the year 2022 under

Section (3) of the Maharashtra Prohibition Act, 1949, for which

FIRs were registered and investigation was completed and Reports

were filed in the concerned Court at least 9 of these cases, which

were pending trial before the concerned Magistrates. Of the eleven

cases registered of bootlegging, two were pending investigation

pertaining to the year 2022.

B] The further grounds for detention state that preventive

action was also initiated against the petitioner in the year 2021,

the first being under the provisions of Section 93(b) of the

Maharashtra Prohibition Act, 1949 and the second being

proceeding under Section 110 (e) and (g) of the Code of Criminal

Procedure, in which interim bonds of good behavior respectively

for the period of one and two years were taken from the petitioner,

who had thereafter committed breach of these bonds.

C] That two offences have been committed by the petitioner

under Section 65(E) of the Maharashtra Prohibition Act, 1949 in

the year 2022 in which confidential statements have been taken

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from witness 'A' and from witness 'B', both of whom have alleged

that they had fear of deposing against the petitioner, hence giving

confidential statements; that confidential statement of witness 'A'

discloses that the petitioner was selling "Gawathi Hatta Bhati

Daru" (country liquor) resulting in many people getting addicted

to drinking liquor and beating their wives, thus destroying

families; witness 'A' further stated that he was also threatened by

the petitioner, when on his way home, when the petitioner uttered

foul language and threatened this witness by holding his collar

and then beating him.

D] That witness 'B' has also a fear of deposing against the

petitioner for facing a reprisal from him and has stated that the

petitioner was manufacturing and selling "Gawathi Hatta Bhati

Daru" (country liquor) resulting in causing alcohol addiction

amongst villagers. Witness 'B' has also stated that on 17 th May,

2022 evening, when he was in his house, was threatened by the

petitioner.

E] Along with the detention order, the petitioner was served

with documents on the basis of which the authority claimed to

have arrived at its subjective satisfaction before passing the

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impugned order; the documents mainly consist of the FIRs and

investigation papers forming part of the report filed before the

concerned Magistrate. Amongst these documents, all of which

were relied upon to substantiate the allegation that the petitioner

was a habitual bootlegger, were several reports of the Regional

Forensic Science Laboratory, reporting that the samples taken from

the confiscated material were in possession of the petitioner under

various FIRs, contain at least 14 % V/V of Ethyl alcohol in water.

F] After the detention order was passed, the petitioner was

immediately detained in prison on 04/08/2022 till date.

Thereafter, the opinion of the Advisory Board was sought, which

recommended the detention of the petitioner, which was then

considered by the respondent No.1, which has confirmed the

detention order on 14/09/2022 for a period of 12 months from

the date of detention.

4. The main grounds on which the petitioner seeks to

challenge the order of detention and confirmation are as under :-

A] That the impugned order of confirmation has been passed

without any hearing being given to the petitioner; even the order

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of detention dated 04/08/2022 has been passed without giving

the petitioner an opportunity to file his reply and be given hearing

and therefore, both orders are passed in contravention of the

principles of natural justice. The petitioner claims that even a copy

of the order passed by respondent No.1 was not furnished to him,

thus, the authorities have acted in violation of petitioner's

fundamental rights.

B] That an order of detention essentially impinges upon the

citizens' fundamental right of freedom of movement under Articles

21 and 22 of the Constitution of India, as they suspend the

petitioner's personal liberty, and such detention order cannot be

issued without granting the petitioner an opportunity of being

heard and dealing with the material on record; the impugned

orders are, therefore, arbitrary.

C] The impugned orders are arbitrary since the subjective

satisfaction recorded by the authority is not based upon any

material, which could be considered sufficient to justify denial of

the petitioner's personal liberty; moreso, the in-camera statements

of the witnesses 'A' and 'B', relied upon the detaining authority

were neither verified statements nor contained material that could

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be termed to be such that would disrupt public order; further, that

the statements do not disclose any offence, which could be termed

as one where the petitioners act would be of the nature that would

disrupt public order or fall within the provisions of Section 2(a)

i.e. acting in any manner prejudicial to the maintenance of public

order.

D] That in any event, all the other offences being allegedly

committed under Section 65(e) of the Maharashtra Prohibition Act

would be conveniently dealt with by the concerned Magistrate,

who is ceased of the cases, which are pending trial, no cause has

been made out for the detention of the petitioner.

5. The respondents have chosen not to file any

affidavit-in-reply and not traversed the specific averments made in

the petition that the petitioner was neither served with a copy of

the order of confirmation nor was heard or given an opportunity

of hearing, to meet the allegations and grounds to the detention

order, prior to same being confirmed.

6. Section 3 of the Act requires the authority to record its

subjective satisfaction on a material before it as to the reason why

it was necessary to detain the petitioner to prevent him from

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acting in any manner prejudicial to the maintenance of public

order. Such order shall be reported to the State Government

together with the grounds which formed the opinion of the

authority, and the order of detention will remain in force for 12

days thereafter unless, in the meantime, is approved by the State

Government.

In the present case, it is clear from the record that the

order of detention was confirmed only on 14/09/2022 and then

not informed to the petitioner. There is also nothing brought

before us to demonstrate that the order dated 14/09/2022 which

would be in operation only for 12 days thereafter was

communicated to the respondent No.2 within that period and the

opinion of the Advisory Board was sought within a reasonable

time. There is, thus no compliance with the provisions of Section 3

on the face of it in terms of the timelines set down therein.

7. We also note that from the record it appears, and so

also, from a plain reading of the order dated 14/09/2022, that the

petitioner was neither heard nor his representation was considered

before passing of the confirmation order. We must presume so

since the confirmation order makes no reference to any

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representation or reply that the petitioner may have filed or that

may have been considered by the Advisory Board. In our opinion

that the order dated 14/09/2022 confirming the detention order is

passed without hearing the petitioner or considering any

representation or reply that could have been given by him.

8. The subjective satisfaction to be arrived at by the

authority under Section 3 of the Act, would have to be based upon

material placed before it. The two in-camera witnesses no doubt

record the fear of the witnesses deposed against the petitioner, but

neither the statements can be said to record any act by the

petitioner that would cause a disruption of public order, at most,

the acts stated to have been committed by the petitioner therein,

would be, if proved, offences personally against the complainant

and not such that would cause alarm or disruption of public life in

the locality. In fact, they are more in the nature of altercations

between the petitioner and individuals, rather than acts done in a

public place, seen by a community at large, which would cause

alarm. In our opinion, the statement of these witnesses would

certainly not be claimed to be material, which would form the

basis for arriving at a subjective opinion in terms of Section 3 of

the Act to state that the activity complained of was one which

would be prejudicial to the maintenance of public order.

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9. We take note of all other offences numbering 11 which

are registered under the Maharashtra Prohibition Act and 9 out of

those are pending trial before a Court. Suffice to state that for the

purpose of the Act, wherein 'Bootlegger' has been defined to mean

a person to distill, manufacture, store or transport or sell liquor in

contravention of the Prohibition Act, the question would have to

be answered by the authority itself in the impugned order. Though

the authority concludes that the petitioner is a bootlegger under

the Act, considering that the petition would succeed on first two

grounds, which we have referred to in the abovementioned

paragraphs, we deem it unnecessary to examine this issue.

10. For the reasons stated above, we are of the opinion that

the impugned orders dated 04/08/2022 and 14/09/2022 cannot

be sustained and are hereby quashed and set aside.

11. Rule is made absolute in terms of Prayer Clauses (i)

and (i-a) of the petition. No order as to costs.

            [VALMIKI SA MENEZES, J.]                        [VINAY JOSHI, J.]

Choulwar