Bombay High Court
Hirabai Kondiba Kale vs The State Of Maharashtra And Others on 19 January, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:1209-DB
CRWP 1533 23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1533 OF 2023
Hirabai Kondiba Kale,
Age 55 years, Occ. Household,
R/o. Barmachiwadi, Tq. Kallam, Dist. Osmanabad.
... Petitioners
VERSUS
1) The State of Maharashtra
Through the Secretary Home Department
(Special) Mantralaya, Mumbai.
2) The Collector and the District Magistrate
Osmanabad.
3) The Superintendent of Police,
Osmanabad.
4) The Sub Divisional Officer,
Kallam, Dist. Osmanabad.
5) The Police Inspector, Yermala Police Station
District Osmanabad ... Respondents
...
Advocate for Petitioner : Mr. D.A. Madake
AP.P. for Respondents/State : Mr. K.N. Lokhande
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 15.01.2024
PRONOUNCED ON : 19.01.2024
JUDGMENT :
(PER : MANGESH S. PATIL, J.)
By invoking Article 226 of the Constitution of India the petitioner has
been challenging the order passed by the respondent no. 2 dated 28.09.2023
thereby detaining her under Section 3 of the Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous
Persons and Video Pirates Act, 1981 (hereinafter 'MPDA Act').
2. Heard. Rule. Rule is made returnable forthwith. Learned A.P.P. waives
service. At the joint request of the parties the matter is heard finally at the
stage of admission.
3. The learned advocate for the petitioner submits that the impugned
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order is a product of non application of mind. He has arrived at a subjective
satisfaction arbitrarily. It is based on only two offences registered under
Section 65(e) of the Maharashtra Prohibition Act (hereinafter 'the Act').
Even the investigating officer did not feel it necessary to arrest the petitioner
who was merely served with a notice under Section 41A of the Code of
Criminal Procedure. There is nothing to demonstrate that ordinary law was
falling short to prevent the petitioner from the alleged illegal activity. No
offence against body or property was ever registered against her. There is no
Chemical Analysis report opining about the contraband seized from the
petitioner was injurious to health, still the detaining authority has jumped to
the conclusion that it was injurious to health of public.
4. The learned advocate would rely upon the decision of this Court in
the matter of Sandeep Govind Pawar Vs. State of Maharashtra; 2023 ALL
M.R. (Cri.) 1698
5. Per contra, the learned A.P.P. by referring to the affidavit in reply filed
by the respondent no. 2 would submit that he has arrived at the subjective
satisfaction based on the objective material. Couple of cases for
manufacturing and selling illicit liquor were registered. Even a preventive
action under Section 93 of the Act was resorted to. However, such action
under the ordinary law was insufficient to prevent her activities. She was
again involved in a recent crime for an offence punishable under Section
65(e) of the Act. The petitioner is a known bootlegger. Due to her activity
there is risk to the public health which has resulted in adversely affecting
public order. Statements of couple of witnesses have been recorded. These
witnesses have spoken about the terror in their mind due to the activities of
the petitioner. The timeline as is laid down in the law has been followed
and the order of detention has been confirmed by the State Government.
The opinion of the advisory board was obtained. She availed opportunity of
being heard by the advisory board. Though the concerned investigating
officer had simply issued notice to the petitioner under Section 41-A of the
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Code of Criminal Procedure but had not felt it necessary to arrest her, that
cannot be a ground to question the order of preventive detention. Both these
provisions operate in different field.
6. We have carefully considered the rival submissions and perused the
papers. At the outset it is necessary to emphasize that the petitioner is
putting up a challenge to the order of preventive detention on specific
grounds as indicated in the petition and cannot be allowed to travel beyond
it.
7. It is pertinent to note that essentially the respondent no.2 has arrived
at the subjective satisfaction only on the ground of registration of two crimes
in the year 2022 and the latest crime committed in July 2023 for the
offences punishable under Section 65(e) of the Act and preventive action
initiated under Section 93 of the Act. Though the order of detention speaks
about the petitioner having indulged in manufacturing illicit liquor for
number of years, except pointing out the three offences under Section 65(e)
of which the first two were allegedly committed in the year 2022 and the
latest one in the year 2023, there is absolutely no material to substantiate
this statement in the impugned order. Again, though a prohibitory action
under Section 93 of the Act was initiated against the petitioner in the year
2022, a subsequent similar action though was initiated in the year 2023 has
been subsequently dropped.
8. The statements of both the anonymous witnesses were recorded on
the same day that is on 03.07.2023. Both are almost identical and state
that the petitioner has been distilling liquor and selling it from her home.
Many villagers got addicted to it. They disturbed public peace under the
influence of liquor. Women and girls avoid passing by her house. She and
her husband threaten and assault persons who make complaints to police
about her activity. Witness 'A' has not stated about any specific incident but
witness 'B' has stated that on 20.04.2023 when he was returning home, a
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drunkard accosted him, caught hold by coller and started shouting. The
petitioner and her husband arrived after hearing commotion and then she
abused him. When he tried to tell her about the drunkard having abused
him, she threatened him of dire consequences.
9. In our considered view, mere registration of couple of crimes under
Section 65(e) of the Act in the year 2022 and occurrence of latest crime of
similar kind in the year 2023 after lapse of almost one year since registration
of the earlier crimes and the action initiated against her under Section 93 of
the Act could not be said to be sufficient enough to substantiate the
inference drawn by the respondent no. 2 about her being at large would be
injuries to the public health and order.
10. Rather there is no record to demonstrate that the chemical analyzer
had opined that the substance seized from the petitioner was injuries to
health.
11. Even the statements of witness no. 'A' is as vague as it could be.
Though the witness no. 'B' has stated about some incident about his personal
experience, admittedly, at no point of time any crime was registered against
the petitioner for having committed any offence against body or property at
any point of time. In our considered view, the material relied upon by the
respondent no. 2 and discussed herein above is too scant for anybody to
reach a subjective satisfaction of the kind arrived at by the respondent no. 2.
12. True it is that the petitioner cannot be allowed to take a stand that the
investigating officers having merely served her a notice under Section 41-A
of the Code of Criminal Procedure and did not find it necessary to arrest her
could have any bearing albeit, this Court has resorted to such a reasoning in
the matters of Prashant Bharat Datar Vs. State of Maharashtra and another
(Criminal Writ Petition No. 914/2021)(Nagpur Bench), Devidas Lalji Ade
Vs. State of Maharashtra and others (Criminal Writ Petition No. 469/2022)
(Aurangabad Bench) and Sandip Govind Pawar (supra). Conspicuously,
CRWP 1533 23.odt
none of these decisions refer to any similar submission as is being advanced
before us by the learned A.P.P.. The purpose of arrest during investigation of
a crime would always be aimed at facilitating the investigation. It cannot
be resorted to to prevent the accused from indulging in any activity.
Besides, the investigating officer will be bound by the mandate of law laid
down in the matter of Arnesh Kumar Vs. State of Bihar; (2014) 8 SCC 273 if
he is to arrest the accused. As against this the purpose of order of
preventive detention is essentially aimed at preventing certain individuals
from continuing with certain activities which otherwise is not possible by
resorting to the ordinary law of the land. Therefore, we are not in
agreement with the submission of the learned advocate for the petitioner
seeking to draw some inference based on the fact that the investigating
officer did not feel it appropriate to arrest the petitioner and had merely
served her with notices under Section 41A of the Code of Criminal
Procedure.
13. The upshot of the above discussion, the subjective satisfaction arrived
at by the respondent no. 2 based on the material collected by him and
referred to in the impugned order, in our considered view is not sufficient to
reach a conclusion that petitioner being at large would be to the detriment
of public order as is contemplated under Section 3 of the M.P.D.A. Act.
14. The Criminal Writ Petition is allowed. The impugned order is quashed
and set aside. The petitioner who has already been released on interim bail
is set at liberty. Her bail bonds are cancelled.
15. Rule is made absolute.
( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)
mkd/-
