Bombay High Court

Arjun Ratan Gaikwad vs The State Of Maharashtra And Others on 20 August, 2024

Author: R.G.Avachat

Bench: R.G.Avachat

2024:BHC-AUG:18595-DB



                                                                       WP-698-2024.odt


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                           CRIMINAL WRIT PETITION NO.698 OF 2024

            Arjun s/o. Ratan Gaikwad,
            Age : 30 years, Occ. Labour,
            r/o.Kansur Vasti, Tq. Pathri,
            Dist. Parbhani                                       ..Petitioner

                  Vs.

            1.    The State of Maharashtra,
                  Through Secretary,
                  Home Department,
                  Mantralaya, Mumbai - 32

            2.    The District Magistrate,
                  Parbhani

            3.    The Superintendent of Police,
                  Parbhani

            4.    Sub-Divisional Police Officer,
                  Parbhani                                       ..Respondents

                                                ----
            Mr.P.P.More, Advocate h/f. Mr.K.B.Jadhav, Advocate for petitioner
            Mr.G.A.Kulkarni, APP for respondents
                                                ----

                                     CORAM         :   R.G.AVACHAT AND
                                                       NEERAJ P. DHOTE, JJ.
                             RESERVED ON :             JULY 31, 2024
                           PRONOUNCED ON :             AUGUST 20, 2024

            JUDGMENT (Per R.G.Avachat, J.) :

Rule. Rule made returnable forthwith. Heard finally with

the consent of learned counsel for the parties.

2 WP-698-2024

2. The challenge in this Writ Petition under Article 226 of

the Constitution of India, is to the order dated 05.03.2024, passed by

respondent no.2 - District Magistrate, Parbhani, under Section 3(2) 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", for short), detaining

the petitioner for a period of 12 months, so as to prevent him from

indulging in the activities as bootlegger and thereby, prevent breach

of maintenance of public peace. The order of detention has been

confirmed by the State of Maharashtra in Department of Home, vide

order dated 14.03.2024.

3. Learned counsel for the petitioner would submit that

although six crimes under Section 65(e) of the Maharashtra

Prohibition Act were registered against the petitioner, two of them

have been closed in exercise of the powers under Section 258 of the

Code of Criminal Procedure. The last, i.e. sixth, crime is pending

investigation. In none of the crimes, the petitioner was arrested. He

was simply issued with notice under Section 41-A of Cr.P.C. Same

suggests, the authorities concerned even did not wish the petitioner

to be arrested in connection with any of the crimes registered 3 WP-698-2024

against him. He would further submit that none of the C.A. reports of

the samples of illicit liquor, allegedly seized from the petitioner,

disclose that consumption thereof was injurious to the health of a

human being. The petitioner has neither been convicted in any of the

offences of serious nature nor any such crime has even been

registered against him. The in-camera statements are got up. The

impugned order is outcome of malafide exercise of the powers and

authority vested in respondent no.2. The same is also vague and

violates the provisions of M.P.D.A. Act. No prescribed procedure

under said Act has been followed before the petitioner was detained.

Learned counsel for the petitioner relied on the following judgments:-

(i) Pesala Nookaraju Vs. Government of Andhra Pradesh and ors., 2023 SCC OnLine SC 1003;

(ii) Prakash Chandrakant Kanjar Vs. State of Maharashtra and anr., (Criminal Writ Petition No.1285 of 2023 decided on 19.10.2023 by Bombay High Court, Bench at Aurangabad).

4. Learned APP would, on the other hand, took us through

the affidavit-in-reply filed by respondent no.2 - District Magistrate

and then took us through the order of detention. He would submit

that within a span of less than six months, i.e. from 25.03.2023 to 4 WP-698-2024

20.9.2023, six cases under Section 65(e) of the Maharashtra

Prohibition Act were registered against the petitioner. The

petitioner's such activities continued even after a preventive

measure, chapter case under Section 93 of the very Act, was

initiated against him. The petitioner even executed a bond in the

sum of Rs.1 Lakh, assuring to keep good behaviour. Still, he

continued his activities of manufacturing illicit liquor and sale

thereof. The in-camera statements of the witnesses indicate that the

vicinity, wherein the petitioner manufacture illicit liquor, is affected

by his activities. The consumers of illicit liquor would gather in large

number and on consumption of alcohol, they would vomit in the

area. Foul-smell of manufacture of illicit liquor would spread in the

area. It is a popular area. It was, therefore, found necessary to have

recourse to Section 3(2) of the M.P.D.A. Act, to prevent the petitioner

from indulging in the activities prejudicial to maintenance of public

order. Learned APP relied on the following decisions:-

(i) Phulwari Jagdambaprasad Pathak Vs. R.H.Mendonca, 2000(3) Crimes 112;

(ii) Kanuji S. Zala Vs. State of Gujarat & ors., AIR 1999 SC 2269

Learned APP would, ultimately, urge for dismissal of the Writ Petition.

5 WP-698-2024

5. Considered the submissions advanced. Perused the

order impugned herein besides the affidavit-in-reply.

6. Before adverting to the factual matrix, let us have

reference to the relevant provisions of the M.P.D.A. Act, which 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 a 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 administration.

(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 6 WP-698-2024

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."

7. The order of detention reads thus:-

2. It has been noticed that you are having criminal background as per definition of bootlegger prescribe in the said Act. You are illegally preparing the handmade liquor from chemicals. You are involved in setting up the handmade liquor. The handmade liquor is injurious to the public health and dangerous to the human life. You are aware about this, even then you are openly preparing the handmade liquor and distributing and selling it at Kansur, Pathari city and nearby villages.

There are various instances of death due to consumption of handmade liquor. The State Excise Department Parbhani had registered various offences against you for making, preparing, distributing, possessing the handmade liquor. All the offences registered against you are under Maharashtra Prohibition Act and same are registered with the office of Inspector of State Excise Parbhani. Because of said criminal habit of yourself, and illegal and hazardous preparation of handmade liquor, illegally distributing, selling in the nearby vicinity due to this the law abiding people are loosing faith in law and there is danger to the life of human being. Due to your said activities there is danger to the public peace of villages Kansur, Pathari city and nearby villages of the District. Due to your illegal activities, the State Excise Department on various occasion registered offences against you. The action under section 93 of the Maharashtra Prohibition Act as a restraining action was taken against you, but there is not any effect and you continue the criminal activities.

8. In paragraph 3 of the detention order, a list of six crimes

registered against the petitioner under Section 65(e) of the 7 WP-698-2024

Maharashtra Prohibition Act has been given besides the details as to

preventive action taken against him. Same is reproduced below for

ready reference:-

Sr. Office with whom Crime No, Date and Charge sheet Remark No. offense registered Section and Date 20/2023, dt.

     Sub-Inspector,       29/1/2023,            SCC
 1   State Excise,        Maharashtra           No.211/2023    Subjudice
     Pathhari             Prohibition Act       dt.25.3.2023
                          Sec.65(e)
                          61/2023,
                          dt.18/3/2023,         SCC
     Inspector, State
 2                        Maharashtra           No.335/2023,   Subjudice
     Excise, Parbhani
                          Prohibition Act       dt.23/8/2023
                          Sec.65(e)
                          89/2023,
                          dt.24/4/2023,         SCC
     Inspector, State
 3                        Maharashtra           No.338/2023    Subjudice
     Excise, Parbhani
                          Prohibition Act       dt.23/8/2023
                          Sec.65(e)

                          dt.17/05/2023,        SCC
     Inspector, State
 4                        Maharashtra           No.358/2023,   Subjudice
     Excise, Parbhani
                          Prohibition Act       dt.4/9/2023
                          Sec.65(d)(e)
                          253/2023,
                          dt.09/09/2023,        SCC
     Inspector, State
 5                        Maharashtra           No.419/2023,   Subjudice
     Excise, Parbhani
                          Prohibition Act       dt.20/9/2023
                          Sec.65(e)(f)
                          327/2023,
                          dt.18/10/2023,
     Inspector, State                                          On
 6                        Maharashtra
     Excise, Parbhani                                          Investigation
                          Prohibition Act
                          Sec.65(e)(f)
                                           8                                WP-698-2024



                                  Preventive Action

 Sr. Office who taken     Preventive action        Status           Offences
 No. preventive action                                              registered after
                                                                    preventive
                                                                    action
 1   Inspector of State   Proposal                 Deputy           Though
     Excise, Parbhani     No.DET112023/173/In      Divisional       preventive
                          sp. Dated 26/04/2023     Magistrate,      action was
                          forwarded to Ld.         Pathari,         taken under
                          Deputy Divisional        obtained good    section 93
                          Magistrate, Pathari,     behavior bond    even then
                          for action under         of               continued the
                          section 93 of            Rs.1,00,000/-    offences of
                          Maharashtra                               bootlegging
                          Prohibition Act                           and on
                          (Security for Good                        9/9/2023
                          behaviour)                                offence is
                                                                    registered
 2   Inspector of State   Proposal No.             Pending before   Through
     Excise, Parbhani     DET.112023/279/Insp.     Deputy           procedure of
                          Dated 10/09/2023         Divisional       cancellation of
                          forwarded to Ld.         Magistrate,      good behavior
                          Deputy Divisional        Pathari          bond was
                          Magistrate Pathari for                    pending even
                          cancellation of good                      then
                          behaviour bond of                         bootlegging
                          Rs.1,00,000/- as                          activities
                          further offences                          continued and
                          registered                                all 18/10/2023
                                                                    offence is
                                                                    registered

9. It is further observed in the detention order that inspite

of the fact that the aforesaid cases were registered against the

petitioner from time to time, there has been no effect on him. The

petitioner continued his activities of distillation of handmade liquor

and sale thereof. It has further been observed that the activities of

the petitioner were harmful to human life. The detaining authority 9 WP-698-2024

was subjectively satisfied that the action under Section 3(2) of the

M.P.D.A. Act was warranted against the petitioner. The order further

records the details of the FIRs registered against the petitioner. It

further refers/records the gist of the in-camera statements of the

witnesses. Then, in paragraph 11 of the order, it has been observed

thus:-

11. I have considered your actions and all the ramifications of such actions from all angles. I have also considered the serious consequences of your actions on public order. From the above facts and from the records placed before me, I am convinced that you are a bootlegger as defined in the said Act and I am convinced that your release would adversely affect the public order of Kansur, Pathari city and adjoining areas. Existing laws are not enough to curb your criminal and dangerous activities. As witnesses do not come forward to testify against you. I am convinced from the above mentioned incident number that you have created terror in the minds of the residents of the above mentioned areas.

Due to this, the public order in the said area has been adversely affected and the daily life has been disrupted and the action taken under the prevailing law to curb such activities has been futile. Therefore, I have no option but to book you under Maharashtra Slum Hooligans, Handicrafts, Drug Offenders, Dangerous Persons, Unlicensed Exhibitors, Video Pirates, Sand Smugglers and Black Marketers of Essential Commodities Act, 1981.

10. It is undisputed that within a span of less than six

months, i.e. from 25.03.2023 to 20.9.2023, five offences punishable

under Section 65(e) of the Maharashtra Prohibition Act were 10 WP-698-2024

registered against the petitioner. Thereafter, again on 18.10.2023,

similar crime came to be registered against him. Same is pending

investigation. In none of the crimes, the petitioner was arrested.

The reason there-behind is that those offences were not punishable

with imprisonment for more than seven years. The record further

indicates that the petitioner executed a bond under Section 93 of the

Maharashtra Prohibition Act to maintain peace and good behaviour.

It was executed on 22.04.2023. Post execution of the bond, the

petitioner indulged in the activities of distillation and sale of

handmade/illicit liquor.

11. It is a matter of common knowledge that consumption of

illicit liquor is necessarily injuries to health. The detaining authority

has observed in its order that the witnesses, who gave their

statements on the condition of anonymity, disclosed that the

persons residing in the vicinity, whereat the petitioner distills and

manufacture illicit liquor, feel unsecured. Women and children of

that area even apprehend to move freely. Consumers and persons of

criminal background throng at the petitioner's liquor den. Such

persons consume illicit liquor to such an extent that they behave

disorderly in that area itself. They vomit and even disturb the

tranquility of the area. Both the witnesses have further disclosed the 11 WP-698-2024

petitioner to have met them in the months of February, 2023 and

March, 2023 and threatened them of dire consequences, if they

came in his way of running the liquor den. These statements have

been duly verified by the Superintendent of Police (Excise).

12. It is true, in paragraph 66 of the judgment of the Apex

Court in the case of Pesala Nookaraju (supra), it has been

observed thus :-

"66. 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."

It is also true that in the case of Prakash (supra), this

Court held that issuance of notice under Section 41-A of Cr.P.C. itself 12 WP-698-2024

indicates the authorities did not wish to arrest the petitioner therein.

It was also observed that without resorting to the provisions of the

ordinary law of land, recourse to stringent provisions of preventive

detention may not be had. Those were observations made in the

facts and circumstances of the case.

13. The C.A. reports in all the cases registered against the

petitioner indicate that the samples drawn contained ethyl alcohol in

various percentage. True, it is below 24.60%. The in-camera

statements indicate that the activities of the petitioner were

prejudicial to maintenance of public order. In the case of it has been

observed by the Apex Court thus:-

"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.

13 WP-698-2024

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 observations made by this Court in Om Prakash v. Commissioner of Police, 1989 Supp.(2) SCC 576 :

(AIR 1990 SC 496 : 1990 CriLJ328) that "as in Piyush Mehta Case (AIR 1989 SC 491 : 1989 CriLJ 956), the materials available on record in the present case are not sufficient and adequate for holding that the alleged prejudicial activities of the detenue have either affected adversely or likely to affect adversely the 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."

14. Learned APP was right in submitting that the in-camera

statements can be relied on for passing the detention order. He

even has rightly relied on the judgment of the Apex Court in the case

of Phulwari Jagdambaprasad Pathak (supra), wherein the in-

camera statements of the witnesses, who did not give day, date or

even the time of the incident have been relied upon.

15. So far as regards non-arrest of the petitioner in any of

the crimes registered against him and issuance of notice under

Section 41-A of Cr.P.C. is concerned, we propose to rely on the

following decisions of the Apex Court:-

(i) Mohd. Salim Khan Vs. Shri.C.C.Bose, Deputy

Secretary to the Government of West Bengal and anr., 1972 14 WP-698-2024

AIR (SC) 1670, wherein it is observed thus:-

"A. West Bengal (Prevention of Violent Activities) Act, 1970 (President's Act 19 of 1970), Sections 3(1) and 3(3) - Detention order after discharge of petitioner in criminal case - A valid order of detention could be passed against him in connection with those very incidents.

(ii) Nenavath Bujji etc. Vs. The State of Telangana and

ors., AIR 2024 SC 1610, observed thus:-

25. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution.

An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. [See : Haradhan Saha Vs. the State of W.B., 1974 Cri. L.J. 1479]

16. The Apex Court, in the case of Vijaykumar Vs. Union of

India and others, (1988)2 SCC 57 has observed - Whether the

offence for which the detenue was jailed, was bailable or not is

immaterial for the purpose of prevention detention. In view of the 15 WP-698-2024

same, in the present case, the petitioner has 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.

17. Admittedly, the preventive measure under Section 93 of

the Maharashtra Prohibition Act was taken against the petitioner.

Still, he continued to indulge in manufacture of handmade/illicit

liquor and sale thereof. The in-camera statements indicate that the