Bombay High Court
Shyam Suresh Yenelli vs The State Of Maharashtra And Others on 9 August, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:17625-DB
WP-230-24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 230 OF 2024
Shyam Suresh Yenelli
Age: 32 years, Occu.: Labour,
R/o Nalaguttachal,
Tq. & Dist. Nanded ..PETITIONER
VERSUS
1. State of Maharashtra
Through it's Principal Secretary,
Home Department, Mantralaya,
Mumbai
2. State of Maharashtra
Through it's Section Officer,
Home Department (Special),
Mantralaya, Mumbai
3. The Inspector,
State Excise, Nanded City,
Tq. & Dist. Nanded
4. The Sub-Inspector,
State Excise, B Division, Nanded,
Tq. & Dist. Nanded
5. The Inspector,
Police Station Wajirabad,
Tq. & Dist. Nanded ..RESPONDENTS
....
Ms. U.T. Khan, Advocate for petitioner
Mrs. V.N. Patil Jadhav, A.P.P. for respondents
....
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : 02nd AUGUST, 2024
PRONOUNCED ON : 09th AUGUST, 2024
1 / 12
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JUDGMENT ( PER : R.G. AVACHAT, J. ) :
1. Rule. Rule made returnable forthwith. Heard finally with the
consent of learned counsel for the parties.
2. The challenge in this writ petition, under Article 226 of the
Constitution of India, is to order dated 14 th December, 2023 passed by the
District Magistrate, Nanded (detaining authority) detaining the petitioner for a
period of twelve months, in exercise of power under 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.
('MPDA Act'). The State of Maharashtra in Department of Home approved
the order of detention vide its order dated 19th December, 2023. The
detention of the petitioner is on the ground of he being a bootlegger and his
activities as such were likely to affect the maintenance of public order.
3. The Inspector, State Excise Department, Nanded put up a
proposal dated 28th November, 2023 before the detaining authority for
detention of the petitioner. A copy of the proposal is on record. Averments
therein are :-
The petitioner manufactures/distills toddy blended or laced with
hazardous chemicals for sale at Nanded and surrounding places. Not less
than nine crimes were registered against him under Section 65(e) of the
Maharashtra Prohibition Act, 1949 ('Prohibition Act') during the period from
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February 2022 to September 2023. A preventive action under Section 93 of
the Prohibition Act was also taken against him. The petitioner executed a
bond in the sum of Rs.25,000/-, assuring of maintaining good behaviour.
The period of bond was for one year from 15 th June, 2023. He committed
breach of the bond. Last three crimes mentioned in paragraph no.2 of the
proposal were registered against the petitioner during the bond period.
Pursuant to a tip off received by the officials of State Excise Department,
raids were effected at his residence. He was found in possession of the illicit
toddy laced with hazardous chemicals. The authorities concerned obtained
the sample of seized toddy and got it analyzed from the chemical analyst. It
was revealed that the samples contained ethyl alcohol in various percentage.
Some of the samples contained chloral hydrate, sugar and copper sulphate.
The officials in the rank of Associate Professor in the Department of Forensic
Science at Dr. Shankarrao Chavan Government Medical College, Vishnupuri
gave a report on 21st September, 2023. It is reiterated by the authorities that
ethyl alcohol, copper sulfate and chloral hydrate if consumed by a human
being, was harmful for human health. The report further indicates that
concoction of the three i.e. alcohol, copper sulfate and chloral hydrate if
consumed in excess quantity, there is possibility of loss of life.
4. The authorities concerned also recorded two in-camera
statements of the persons on the condition of not disclosing their identity.
Both the witnesses in their statements disclosed the petitioner to have
consistently been indulging in manufacturing of illicit toddy. According to
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witness - A, it was in October 2023 by 08:00 in the evening, he was on his
way home. The petitioner accosted him near Somesh Colony and
threatened at knife point. The petitioner also abused him and gave threats if
he informed the police about his (petitioner) illegal activities.
5. On the same lines is the statement of witness - B. Similar
incident took place with the said incident in the second week of November
2023 by little past 08:30 p.m. The petitioner accosted him and threatened as
he suspected the said person to have instigated the persons in the nearby to
lodge report against the petitioner.
6. The detaining authority, after having gone through the proposal
and all the papers submitted in support thereof, passed the order of
detention, impugned herein. The said order is mainly challenged by the
petitioner on the following grounds :-
(i) The petitioner is a young person in the age group of 30-32 years,
earning his livelihood by working as a labour.
(ii) The petitioner has never been convicted for any of the offences
under the Prohibition Act.
(iii) The petitioner in all the cases was released on his executing P.R.
bond, meaning thereby the authorities concerned even did not
take recourse to the ordinary law of land. The authorities did not
find arrest of the petitioner imminent.
(iv) In some of the reports received from the Forensic Department, no
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chloral hydrate was detected in the sample/s allegedly seized
from the petitioner. In two cases it was termed to be milky hazy
liquid and not toddy. The reports specifically state that no chloral
hydrate was detected. It was not even toddy.
(v) Toddy/Shindi being perishable, it was destroyed after taking
samples therefrom, which were sent for chemical analysis. The
delay in sending the same might have turned the samples to be
unfit for chemical analysis.
(vi) So far as regards the in-camera statements are concerned, those
witnesses claimed to have known the petitioner for over five
years.
(vii) The detaining authority has wrongly mentioned in the detention
order that offence under Section 65(e) of the Prohibition Act is
punishable with seven years imprisonment, when in fact the
punishment provided therefor is a sentence which may extend up
to five years.
(viii) Complainant - Preeti Waghmare in her report dated 11th
September, 2023 described the petitioner being sixty five years of
age.
(ix) All the cases registered against the petitioner could be dealt with
under the ordinary law of land. There was no likelihood of the
alleged activities of the petitioner to result into disturbance to
maintenance of public order.
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7. Learned counsel for the petitioner made oral submissions
reiterating the aforesaid grounds raised in the writ petition. According to her,
the petitioner is behind the bars for about seven months. She ultimately
urged for allowing the petition.
8. Learned A.P.P. would, on the other hand, submit that the
petitioner got indulged in selling toddy. According to her, in view of definition
of 'intoxicant' appearing in Section 2(22) of the Prohibition Act means any
liquor, intoxicating drug, opium or any other substance, which the State
Government may, by notification in official gazette, declare to be an
intoxicant. Then she took us through the definition of 'toddy' appearing in
sub-Section (46) of Section 2 of the very Act. Learned A.P.P. would then
submit that the petitioner would mix hazardous chemicals in the toddy like
liquid and sell it. She then adverted our attention to the report given by the
Associate Professor of Dr. Shankarrao Chavan Government Medical
College, Vishnupuri. She would further submit that the preventive action
taken against the petitioner proved futile. She then took us through the order
of detention impugned herein and submitted that the detaining authority to
have arrived at subjective satisfaction in passing the order. According to her,
judicial review can hardly be there in case of subjective satisfaction in
passing the order of preventive detention. She then adverted our attention to
the in-camera statements of the witnesses, who were threatened by the
petitioner with a view to have him a free hand in dealing with sale of
intoxicants. Learned A.P.P. ultimately urged for dismissal of the petition.
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9. Considered the submissions advanced. Perused the order
impugned herein.
10. Paragraph no.3 of the order gives chart of nine crimes registered
against the petitioner for the offence punishable under Section 65(e) of the
Prohibition Act. Last five crimes mentioned in the chart have been registered
against the petitioner during the period from 14th February, 2023 to 11th
September, 2023. Then there is reference to a preventive action taken
against the petitioner under Section 93 of the the Prohibition Act. The
present action of detention is said to have been taken since, inspite of
chapter case, no. 3 of 2023 under Section 93 of the Prohibition Act, the
petitioner continued to commit similar offences. The order further records
that the samples of toddy/shindi were obtained and have been chemically
analysed.
11. Although the first four crimes that took place and registered in the
year 2022 against the petitioner have been referred to indicate his past
conduct, the same would be relevant so as to indicate his continuous illegal
activities. There is on record C.A. report dated 07th April, 2022 relating to
sample of toddy seized from the petitioner, which reads thus :-
"The Sample contains 1.20% v/v of ethyl alcohol. It contains yeast,
sugar and copper sulphate and it also contains 2.00 mg % w/v of
chloral hydrate in it."
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12. True, the report dated 11th October, 2023 indicates that no chloral
hydrate was detected in the sample. The same was, however found to have
contained 2.19% of ethyl alcohol, besides yeast and sugar. Its appearance
was like milky hazy liquid. The report dated 01st December, 2023, records as
under :-
"The Sample contains 2.71% v/v of ethyl alcohol. It contains yeast,
sugar and copper sulphate. No chloral hydrate is detected in it."
There is one more report dated 21st September, 2023 issued by
the Associate Professor of Department of Forensic Medicine of Dr.
Shankarrao Chavan Government Medical College, Vishnupuri, which reads
thus :-
"1- ojhy lanHkkZafdr frUgh vgokyke/;s bFkkbZy vYdksgksy] dkWij lYQsV vkf.k
Dyksjky gk;MzsV gs ?kVd inkFkZ vlY;kps uewn vkgs- lnjhy inkFkZ ekuokus
lsou dsY;kl 'kjhjkoj gkfudkjd ifj.kke fnlwu ;srkr- rlsp gs frUgh inkFkZ
feJhr nzko.k lsou dsY;kl ekuoh 'kjhjkoj gks.kkjs bFkWukWyps ifj.kke tkLr
izek.kkr fnlwu ;srkr-
2- ojhy lanHkhZr frUgh vgokykrhy inkFkZ feJhr nzko.k vfrizek.kkr lsou
dsY;kl ekuoh 'kjhjkoj gkfudkjd ifj.kke gksowu R;k O;Drhpk e`R;w gksow
'kdrks-"
13. Post receipt of this report only, the proposal for detention of the
petitioner was moved by the Inspector of State Excise Department, Nanded.
Before that two in-camera statements have been recorded. The witnesses,
on condition of anonymity, disclosed the officials the petitioner to have
intercepted them in the months of October and November and threatened
with dire consequences if they report the police about his activities relating to
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sell of toddy. The details of the statements do find place in the detention
order. The in-camera statements to have also been verified by the officer in
the rank of Superintendent of Police, State Excise, Nanded.
14. Relevant provisions of the MPDA Act reads thus :-
"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;
Explanation. - For the purpose of this clause (a), public
order shall be deemed to have been affected adversely, or shall be
deemed likely to be affected adversely, inter alia if any of the activities
of any of the persons referred to in this clause, directly or indirectly, is
causing or 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
widespread danger to life or public health [or disturbance in public
safety and tranquility or disturbs the day to day life of the community
by black- marketing in the essential commodities which is resulting in
the artificial scarcity in the supply of such commodities and rises in the
prices of essential commodities which ultimately causes inflation] [or
disturbs the life of the community by producing and distributing pirated
copies of music or film products, thereby resulting in a loss of
confidence in administrations];
(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;
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15. The toddy laced with dangerous chemicals seized from the
petitioner was, therefore, necessarily intoxicant.
16. The Apex Court, in its judgment in case of Pesala Nookaraju Vs.
The Government of Andhra Pradesh & Ors., [2023] 11 SCR 520 has
observed thus :-
"64. .... The potentiality of the act has to be examined in the
light of the surrounding circumstances, posterior and anterior for the
offences under the Prohibition Act.
65. Just because four cases have been registered against the
appellant detenu under the Prohibition Act, by itself, may not have any
bearing on the maintenance of public order. The detenu may be
punished for the offences which have been registered against him. To
put it in other words, if the detention is on the ground that the detenu
is indulging in manufacture or transport or sale of liquor 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 Prohibition Act but if the liquor sold by the detenu is
dangerous to public health then under the Act 1986, 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 liquor dealt with by the detenu is liquor
which is dangerous to public health to attract the provisions of the 1986
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."
17. In the case in hand, the detaining authority was subjectively
satisfied that the seized toddy from the appellant was dangerous for human
consumption. It relied on the report given by the Associate Professor in the
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Department of Forensic Science at Dr. Shankarrao Chavan Government
Medical College, Vishnupuri. The said reports were given to the petitioner
while the order of detention was served on him. The two in-camera
statements have also been relied on. Needless to mention, that the
preventive detention order is an administrative act.
18. True, in all the cases the appellant had never been arrested. He
was served with the notice under Section 41-A of the Cr.P.C. The record,
however indicates that a preventive measure under Section 93 of the
Prohibition Act was initiated against him. Even a bond of good behaviour
was executed by him. During the period of bond, last 2-3 crimes came to be
registered against him. True, for cancellation of the said bond and recovery
of the bond amount, he need to be served with the notice and given an
opportunity. Same is the different matter.
19. The Apex Court, in case of Vijaykumar Vs. Union of India and
Others, (1988) 2 SCC 57 has observed - Whether the offence for which
detenue was jailed was bailable or not immaterial for the purpose of
preventive detention. In view of the same, even the present petitioner to
have not been arrested in connection with any of the crimes registered
against him, which found basis of his detention order would, therefore, be of
no consequence. Although, the last crime was registered in September
2023. Both the in-camera statements are dated 24 th November, 2023. The
proposal for the petitioner's detention was moved on 28 th November, 2023.
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As such, there is proximity inter se the crimes registered against the
petitioner and even the last crime, in-camera statements, the proposal for
detention and the order of detention itself.
20. For all the aforesaid reasons, we find the detaining authority to
have passed the detention order with his subjective satisfaction. No
interference with the order impugned herein is, therefore, warranted. In the
result, criminal writ petition fails. Same stands dismissed. Rule stands
discharged.
( NEERAJ P. DHOTE, J. ) ( R.G. AVACHAT, J. )
SSD
