Bombay High Court
Mahavir Arun Kaulkar vs State Of Maharashtra And Anr on 8 August, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:34053-DB
1/7 WPST-11288-24.odt
MANDIRA MILIND
SALGAONKAR
Digitally signed by MANDIRA
MILIND SALGAONKAR
Date: 2024.08.27 00:41:19 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO.11288 OF 2024
Mahavir Arun Kaulkar .. Petitioner
Versus
The State of Maharashtra & Anr. .. Respondents
...
Mr.Pankaj Das for the Petitioner.
Mr.J.P.Yagnik, A.P.P. for the State/Respondent.
...
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 08th AUGUST, 2024
JUDGMENT (Per Bharati Dangre, J.) :
-
1. The Petitioner, who has been detained by the order
passed by the Commissioner of Police, Nashik on 15/04/2024,
classifying him as a "bootlegger" under 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 (for short, "Act of 1981"), has
assailed the said order on various grounds, set out in the
Petition.
M.M.Salgaonkar
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2. We have heard learned counsel Mr.Pankaj Das for the
Petitioner and learned Additional Public Prosecutor
Mr.J.P.Yagnik for the Respondents.
Pursuant to the Rule issued on 22/05/2024, we have
heard the Petition finally, on receipt of the response from the
Detaining Authority as well as the State Government.
3. The order dated 15/04/2024 is passed by the Detaining
Authority with a view to prevent the Petitioner from acting in
any manner prejudicial to the maintenance of the public order,
as a 'bootlegger" and from the date of passing of the order, he
was committed to Nashik Central Prison.
The grounds of detention are also communicated to the
detenu on the very same date and the same are placed on
record alongwith the Petition.
4. The Detaining Authority has referred the detenu as a
"bootlegger" and has asserted that he is in illegal business of
"bootlegging" within Panchvati and adjoining areas and was
involved in selling hatbhatti liquor to hotels, dhabas and
common people in Nashik and nearby areas and his
bootlegging activities have created a threat to the public order.
It is also stated that the activities of detenu operating
over a span of time, has resulted in incidents of loss of life due
to consumption of hatbhatti liquor, and has endangered public
health and to prevent his illegal and criminal activities, State
Excise Department and Police Department had raided his
illegal den of hatbhatti from time to time and cases are
registered against him.
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5. In order to form a subjective opinion, that it is necessary
to detain the detenu to prevent his prejudicial activities, the
Detaining Authority enlisted five cases registered against him
under the Maharashtra Prohibition Act, 1949 from the year
2021, which are pending for trial.
However, in the wake of his recent involvement reflecting
his tendency and inclination to continue bootlegging activities
prejudicial to the maintenance of the public order in future,
the Detaining Authority relied upon the two offences and two
in-camera statements.
In paragraph 4(i) and (ii), the Detaining Authority had
encapsulated the material against the detenu reflecting upon
his involvement in bootlegging activities, which created an
apprehension that if he is not detained, his activities may
continue to cause disturbance to public order.
6. Referring to the first C.R., registered on the complaint of
Mr.Mangalsingh Shivsingh Jadhav on 19/12/2023, the
grounds of detention narrate that Sub-Inspector B.R.Bhirad
received an information, that a woman is selling hatbhatti
liquor at Wadalnaka, Nashik and, thereafter, he alongwith his
staff and two panchas raided the place, where a woman,
namely, Asha Satish Donde, was found selling liquor. Search
lead to seizure of 29 litre of hatbhatti liquor, in two plastic
cans.
During interrogation, she informed that hatbhatti liquor
was supplied to her by the Petitioner.
M.M.Salgaonkar
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After drawing sample for chemical analysis, C.R.No.186
of 2023, invoking Section 65(e) of the Maharashtra
Prohibition Act, 1949 was registered at State Excise
Department, A-Division, Dist. Nashik.
Since the offence was punishable upto seven years,
notice under Section 41(a) of the Criminal Procedure Code,
1973 was served upon the detenu as well as Asha Donde and
on completion of investigation, the charge-sheet is filed.
Similarly in respect of C.R.No38 of 2024 filed on
13/03/2024, which is relied upon by the Detaining Authority
for passing the order of detention, on an information received
that a person is selling hatbhatti liquor behind public toilet,
near Amardham, Panchvati, the said spot was raided and one
Rohan Balasaheb Tejale was found selling liquor.
106 plastic pouches of 500 ml capacity, totaling to 53
litre hatbhatti liquor worth Rs.2,650/-, were recovered from
the spot. During interrogation, the person disclosed that the
liquor belong to the Petitioner and he was working on daily
wages at his den. The prescribed procedure was followed by
forwarding the substance seized for analysis and 41(a) notice
was issued against Rohan Tejale as well as the Petitioner.
7. When we perused both the CRs registered with the State
Excise Department, A-Division, Nashik, we have noticed that
the offences are registered under Section 65(e) of the
Maharashtra Prohibition Act, 1949 and which are pending for
investigation and in both the CRs, accused persons were found
selling hatbhatti liquor and there is no presence of the
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Petitioner on the spot nor did the investigating team reached
to the place where the Petitioner was alleged to have been
distilling the hatbhatti liquor, which he asked the accused
persons to sell.
It is only the accused in both cases, during investigation,
disclosed the name of the Petitioner as their supplier of liquor,
but it is not the case against the Petitioner in either of these
two CRs that he was the person, who was engaged in distilling,
manufacturing, storing, transporting, importing, exporting,
selling or distributing any liquor, which is a requirement of a
person to be classified as "bootlegger" under Section 2(b) of the
Act of 1981.
8. When we turned our attention to the in-camera
statements, both the witnesses in sync with one another, have
stated that they knew the Petitioner as 'bootlegger', as he was
running a den of hatbhatti at Panchvati and adjacent areas
and it is surprising that despite having information that the
Petitioner was running a den of hatbhatti at Panchvati, no
steps are taken to raid the place.
The in-camera statements have only reported that many
criminals gathered at his den, which has created an
atmosphere of fear and "by drinking hatbhatti at his den,
people are vomiting and lying on the road, thereby putting the
bad smell in the area".
In none of the cases, the Petitioner himself was found
buying, selling or possessing any intoxicant, as Section 65 in
Chapter VII of the Maharashtra Prohibition Act, 1949 makes
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the act of selling, buying or possessing any intoxicant, in
contravention of the provisions of law or of any rule,
regulation or order made or of any licencee, pass, permit or
authorization granted thereunder, punishable.
9. Both the CRs, which have invoked Section 65(e) of the
Maharashtra Prohibition Act, 1949 against the present
Petitioner/detenu is based upon only an information given by
the accused persons that the liquor, which they were found in
possession of, was given to them for sale by the Petitioner.
However, in absence of the Petitioner actually found indulged
in selling or in possession of the liquor, the Detaining Authority
has wrongly arrived at the conclusion that the Petitioner is a
"bootlegger" within Section 2(b) of the Act of 1981.
Since none of the activity of the detenu has come to the
forefront, which could be said to be disturbing the normal
tempo of life of citizen of the said localities and the mentioned
areas, the subjective satisfaction reached by the Detaining
Authority for his detention, with a view to prevent him from
acting in any manner prejudicial to the maintenance of the
public order, is not sustainable.
In case of a 'bootlegger', he is said to act prejudicial to the
maintenance of the public order in Section 2(a)(ii), 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.
Since none of the ingredients of the aforesaid provision
are established from the activities of detenu, which are
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indicated in the grounds of detention, based on the two CRs
and two in-camera statements and form the basis of the
impugned order of detention, we are satisfied that the
Detaining Authority was not justified in reaching a subjective
satisfaction to detain the Petitioner, by classifying him as a
'Bootlegger'.
In the result, the impugned order dated 15/04/2024
passed by Respondent No.2 is quashed and set aside.
By making the Rule absolute, the Petitioner is directed to
set at liberty forthwith.
(MANJUSHA DESHPANDE,J.) (BHARATI DANGRE, J.)
M.M.Salgaonkar
