Bombay High Court

Sattar Jafar Tadavi vs The State Of Maharashtra And Others on 30 August, 2024

Author: Vibha Kankanwadi

Bench: Vibha Kankanwadi

2024:BHC-AUG:20783-DB


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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD

                    CRIMINAL WRIT PETITION NO.1069 OF 2024

                  Sattar Jafar Tadavi
                  Age: 37 years, Occu.: Labour
                  R/o. Fardaur, Tq. Soyegaon,
                  Dist. Chh. Sambhajinagar                       .. Petitioner

                        Versus

             1.   The State of Maharashtra
                  Through the Secretary,
                  Department of Home Affairs
                  Mantralaya, Mumbai.

             2.   The District Magistrate,
                  Chhatrapati Sambhajinagar.

             3.   The Superintendent of Police,
                  Chhatrapati Sambhajinagar.                     .. Respondents

                                              ...
             Mr. M. K. Bhosale, Advocate for the petitioner.
             Mr. A. D. Wange, APP for the respondents - State.
                                              ...

                                  CORAM      :     SMT. VIBHA KANKANWADI &
                                                   SANDIPKUMAR C. MORE, JJ.

                                    DATE     :     30 AUGUST 2024.


             JUDGMENT (Per Smt. Vibha Kankanwadi, J.)

. Heard learned Advocate Mr. M. K. Bhosale for the petitioner

and learned APP Mr. A. D. Wange for the respondents - State.

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2. Rule. Rule made returnable forthwith. The petition is

heard finally with the consent of the learned Advocates for the

parties.

3. Petitioner challenges the detention order bearing

No.2024/MPDA/DET-05/DC-175 passed by respondent No.2 on

09.05.2024 and the approval order dated 05.07.2024 passed by

respondent No.1 by invoking the powers of this Court under

Article 226 of the Constitution of India.

4. Learned Advocate for the petitioner has taken us through

the impugned order and the material which was supplied to the

petitioner by the detaining authority after passing of the order. It

is submitted that though several offences were registered against

the petitioner, the detaining authority has taken into

consideration two offences i.e. Crime Nos.212 of 2023 and 33 of

2024. Both the offences are under Section 65(f) of the

Maharashtra Prohibition Act, 1949. Both these cases are stated

to be pending trial. The detaining authority has contended that

since the petitioner is carrying out the activity of storing illicit

liquor, he is a bootlegger within the meaning of Section 2(b) of the

Maharashtra Prevention of Dangerous Activities of Slumlords,

Bootleggers, Drug-Offenders, Dangerous Persons and Video

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Pirates Act, 1981 (hereinafter referred to as the "M.P.D.A. Act.").

However, the grounds of detention would show that there was no

subjective satisfaction arrived at by the detaining authority. It

has been wrongly considered by the detaining authority that in

both these offences charge-sheet has been filed. In fact, in

discussion Nos.4(i) and 4(ii) of the grounds of detention, words

used are, "after due investigation charge-sheet has been filed

against you in the Judicial Magistrate First Class, Court Soygaon.

Now, the said case is pending trial before the Court of Law." In

his additional affidavit-in-reply, respondent No.2 Deelip

Veerpakshappa Swami, the District Magistrate, Chhatrapati

Sambhajinagar, has stated that the investigation in these two

matters is in progress, but the sponsoring authority have shown

in the proposal that in all three cases were pending for the trial.

Therefore, mistakenly, the status of all three cases were

mentioned as pending for trial. This shows that there was no

proper application of mind on the part of the detaining authority

so also it was not considered that in the old case i.e. Crime

No.120 of 2020, though it was shown as pending trial in the

proposal and in the grounds of detention, the petitioner was

already acquitted by the concerned Court on 04.09.2023. In

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Crime No.212 of 2023 registered with Fardapur Police Station, so

also in the other case, the CA report has been taken, yet there is

no independent certificate of the medical expert that the said

substance was dangerous to the health of people. In both the

cases, the petitioner has been served with notice under Section

41(A) of the Code of Criminal Procedure. The in-camera

statements are vague. The proposal was submitted on 08.04.2024

and the detention order was passed on 09.05.2024. Therefore,

there is delay of one month in passing the detention order.

Therefore, the impugned order is illegal and cannot be allowed to

be sustained.

5. Per contra, learned APP strongly opposed the petition and

submitted that there is absolutely no delay in passing the order.

The proposal and the statements were seen by the detaining

authority on 09.05.2024 and on the same day, the order of

detention has been passed. The petitioner is a bootlegger as

defined under M.P.D.A. He is indulging in bootlegging activity in

a densely populated area of Parundi and in order to protect his

illicit liquor business, he is indulged in the activities of abusing,

threatening and assaulting the residents of Parundi and

adjoining areas. Due to his customers, foul smell spread and it

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creates an unhygienic atmosphere in the area of Parundi and

adjoining areas. The people in the locality are put under constant

fear, which has resulted in public order situation. The preventive

action under Section 93 of the Maharashtra Prohibition Act was

taken, however, it had no effect on his bootlegging activities.

After the subjective satisfaction, the detaining authority has

passed a reasoned order, which is then confirmed with the

opinion of the Advisory Board and, thereafter, confirmed by the

State Government on 05.07.2024.

6. We would like to rely on the Three Judge Bench decision of

the Hon'ble Supreme Court in Nevanath Bujji etc. Vs. State of

Telangana and others, [2024 SCC OnLine SC 367], wherein

after considering various judgments, the legal position has been

summarized as follows -

"43. We summarize our conclusions as under :-

(i) The Detaining Authority should take into consideration only relevant and vital material to arrive at the requisite subjective satisfaction,

(ii) It is an unwritten law, constitutional and administrative, that wherever a decision-making function is entrusted to the subjective satisfaction of the statutory functionary, there is an implicit duty to apply his mind to the pertinent and proximate

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matters and eschew those which are irrelevant & remote,

(iii) There can be no dispute about the settled proposition that the detention order requires subjective satisfaction of the detaining authority which, ordinarily, cannot be questioned by the court for insufficiency of material. Nonetheless, if the detaining authority does not consider relevant circumstances or considers wholly unnecessary, immaterial and irrelevant circumstances, then such subjective satisfaction would be vitiated,

(iv) In quashing the order of detention, the Court does not sit in judgment over the correctness of the subjective satisfaction. The anxiety of the Court should be to ascertain as to whether the decision-making process for reaching the subjective satisfaction is based on objective facts or influenced by any caprice, malice or irrelevant considerations or non-application of mind,

(v) While making a detention order, the authority should arrive at a proper satisfaction which should be reflected clearly, and in categorical terms, in the order of detention,

(vi) The satisfaction cannot be inferred by mere statement in the order that "it was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order". Rather the detaining authority will have to justify the detention order from the material that existed before him and the process of considering the said material should be reflected in the order of detention while expressing its satisfaction,

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(vii) Inability on the part of the state's police machinery to tackle the law and order situation should not be an excuse to invoke the jurisdiction of preventive detention,

(viii) Justification for such an order should exist in the ground(s) furnished to the detenu to reinforce the order of detention. It cannot be explained by reason(s) / grounds(s) not furnished to the detenu. The decision of the authority must be the natural culmination of the application of mind to the relevant and material facts available on the record, and

(ix) To arrive at a proper satisfaction warranting an order of preventive detention, the detaining authority must, first examine the material adduced against the prospective detenu to satisfy itself whether his conduct or antecedent(s) reflect that he has been acting in a manner prejudicial to the maintenance of public order and, second, if the aforesaid satisfaction is arrived at, it must further consider whether it is likely that the said person would act in a manner prejudicial to the public order in near future unless he is prevented from doing so by passing an order of detention. For passing a detention order based on subjective satisfaction, the answer of the aforesaid aspects and points must be against the prospective detenu. The absence of application of mind to the pertinent and proximate material and vital matters would show lack of statutory satisfaction on the part of the detaining authority."

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7. Taking into consideration the legal position as summarized

above, it is to be noted herein as to whether the detaining

authority while passing the impugned order had arrived at the

subjective satisfaction and whether the procedure as

contemplated has been complied with or not. In Nevanath

(Supra) itself it has been reiterated by the Hon'ble Supreme Court

that illegal detention orders cannot be sustained and, therefore,

strict compliance is required to be made, as it is a question of

liberty of a citizen. In the present case, the first and the foremost

fact that is required to be considered is that though the petitioner

was acquitted from the case arising out of Crime No.120 of 2020

on 04.09.2023 that means before the proposal was submitted on

08.04.2024, yet the sponsoring authority had not put the proper

data. So also, the sponsoring authority appears to have stated

the present status in respect of Crime Nos.212 of 2023 and 33 of

2024 that they are pending for trial, that means the charge-sheet

is filed. But, in fact, till today the charge-sheet is not filed in both

the matters, yet, as aforesaid, the detaining authority, without

going through the record, has stated that charge-sheet is filed

against the petitioner before the learned Judicial Magistrate First

Class. This shows total non application of mind and, therefore, it

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cannot be said that there was subjective satisfaction. Another

aspect to be noted is that the proposal was submitted on

08.04.2024, when it is stated that on the same day statement of

in-camera witness 'A' was recorded. Statement of in-camera

witness 'B' is recorded on 09.04.2024, that means a day after the

proposal was submitted. Those statements came to be verified on

09.04.2024 and 10.04.2024 respectively. Further, it appears that

Chapter Case No.03 of 2023 was proposed under Section 93 of

the Maharashtra Prohibition Act, however, in view of the action

taken under M.P.D.A., the said Chapter case was dropped.

Intentionally, in the detention order, when the Chapter case was

filed/proposal for Chapter case under Section 93 of Maharashtra

Prohibition Act was submitted, has not been stated. If that would

have been started prior to the present proposal, then such

somersault is not permitted. It appears that though the charge-

sheet was not filed in respect of Crime Nos.212 of 2023 and 33 of

2024, yet the CA reports in both the cases were collected and the

copy of the same was provided to the petitioner. The question is

when almost the investigation is over, then what prevented the

investigating officer in those cases to file the charge-sheet. We

have considered the FIR in both the matters to consider as to

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whether there was sufficient material for arriving at the

subjective satisfaction. In Crime No.212 of 2023 registered with

Fardapur Police Station, the FIR is by a Police Constable Shri

Narendra Khandare, wherein it is stated that two white colour

can of 10 litre each were found in possession of the petitioner,

but then it is stated that out of that 1 litre bottle was kept

separate for Chemical Analysis. The panchanama also does not

show how the sample was extracted. Under such circumstance,

that is also one of the subjective satisfaction that was required to

be considered by the detaining authority. In Crime No.33 of 2024,

fifteen litre can was found in possession of the petitioner having

10 litre of liquor. Out of that, it is said that sample was taken in

a bottle to the extent of 180 ml. Again in the panchanama, we

are unable to get as to how the sample was extracted. Mere

statements or facts are not sufficient to arrive at the subjective

satisfaction.

8. As regards the in-camera statements are concerned, it is

stated that those witnesses were threatened by the petitioner on

the ground that they were giving information to the police or

speaking against the business of the petitioner. They have

considered and even the detaining authority says that the

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petitioner is a dreaded criminal. In fact, except the offences under

the Maharashtra Prohibition Act, there are no other offences

against him. To brand the person as a bootlegger, there has to be

a proper evidence. We do not want to give much importance to

the delay point, since it can be sufficient that on the day the

proposal and the statements were seen by the detaining

authority, the order has been passed.

9. The second question that would arise as to whether the

statements of the in-camera witnesses and the aforesaid two

cases were to such an extent that it would create a problem of

public order. To explain this concept, we may take help of the

observations in Nevanath (Supra) made in paragraph No.32 :-

"32. The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order, 'Public order' has a narrower ambit, and could be affected by only such contravention, which affects that community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of 'law and order' and 'public order' is one of degree and extent of the reach, of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the

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maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. In other words, the true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different. [See: Union of India v. Amrit Lal Manchanda, (2004) 3 SCC 75]."

10. Thus, taking into consideration the above observations and

the decisions of the Hon'ble Apex Court, at the most, the

statements as well as offences allegedly committed would reveal

that the petitioner had created law and order situation and not

disturbance to the public order. Though the Advisory Board had

approved the detention of the petitioner, yet we are of the opinion

that there was no material before the detaining authority to

categorize the petitioner as a dangerous person or bootlegger.

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11. For the aforesaid reasons, the petition deserves to be

allowed. Hence, following order is passed :-

ORDER

I) The Writ Petition is allowed.

II) The detention order dated 09.05.2024 passed by

respondent No.2 bearing No.2024/MPDA/DET-05/DC-175 and

the approval order dated 05.07.2024 passed by respondent

No.1, are hereby quashed and set aside.