Bombay High Court
Pallavi @ Mahadevi Laxman Pawar vs The State Of Maharashtra And Others on 2 May, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:9279-DB
1 cri wp 400.24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 400 OF 2024
Pallavi @ Mahadevi Laxman Pawar,
Age : 35 Years, Occu. : Agriculture,
R/o Washi, Tq. Washi,
Dist. Dharashiv. .. Petitioner
Versus
1. The State of Maharashtra,
Through Additional Chief Secretary,
State of Maharashtra, Home Department,
Mantralaya, Mumbai - 32.
2. District Magistrate, Dharashiv.
3. Superintendent of Police,
Dharashiv, Dist. Dharashiv.
4. Police Inspector,
Police Station Washi,
Tq. Washi, Dist. Dharashiv. .. Respondents
Shri Sopan P. Bhadge, Advocate for the Petitioner.
Shri V. M. Jaware, A.P.P. for the Respondent Nos. 1 to 4.
CORAM : MANGESH S. PATIL AND
SHAILESH P. BRAHME, JJ.
CLOSED FOR JUDGMENT ON : 23.04.2024
JUDGMENT PRONOUNCED ON : 02.05.2024
JUDGMENT (Per Shailesh P. Brahme, J.) :
-
. Rule. Rule is made returnable forthwith. Heard both the
sides finally at the admission stage.
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2. The petitioner is challenging order of detention dated
22.12.2023 passed by the respondent No. 2/District Magistrate,
Dharashiv U/Sec. 3(1) 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
(for the sake of convenience and brevity hereinafter referred as to
the "M.P.D.A. Act") and order dated 13.02.2024 passed by the
respondent No. 1 confirming the order of detention.
3. The respondent No. 2 has arrived at subjective satisfaction
on the basis of five offences registered against the petitioner, all
are U/Sec. 65(e) of the Maharashtra Prohibition Act and
proceedings U/Sec. 93 of the Maharashtra Prohibition Act.
Petitioner is found to have habitually indulged in criminal
activities, undeterred by action under regular penal laws. In
camera statements of two witnesses have also been considered by
the detaining authority. Petitioner is described to be a dangerous
person and directed to be detained.
4. Learned counsel for the petitioner submits that in camera
statements were not supplied to the petitioner and those were not
verified by the higher authority. The subjective satisfaction is
defective and arbitrary. No offence was registered against the
petitioner under the Indian Penal Code so as to brand her as a
dangerous person. It is further submitted that the activities of
the petitioner cannot be said to be detrimental to law and order.
Lastly, learned counsel would submit that there is inordinate
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delay in passing order of detention from registration of the last
offence, which vitiates impugned action.
5. Learned counsel for the petitioner relies upon following
judgments of this Court :
I. Judgment dated 06.11.2023 passed in the matter of Pintu
@ Sidharth Bhagwan Devde Vs. The State of Maharashtra
and others in Criminal Writ Petition No. 1501 of 2023.
II. Judgment dated 28.06.2022 passed in the matter of Hanif
Karim Laluwale Vs. State of Maharashtra and others in
Criminal Writ Petition No. 75 of 2022.
III. Judgment dated 23.02.2024 passed in the matter of Vijay
Rajendra Kale Vs. State of Maharashtra and others in
Criminal Writ Petition No. 1697 of 2023.
IV. Judgment dated 13.07.2022 passed in the matter of
Devidas Lalji Ade Vs. The State of Maharashtra and others
in Criminal Writ Petition No. 469 of 2022
6. Per contra learned Assistant Public Prosecutor supports
impugned orders on the basis of affidavit in reply. He would
submit that serious offences are registered against the petitioner
and she is habitually indulging into boot-legging activities,
causing danger to the public order. It is further submitted that
due procedure of law was followed by the respondent authorities
and timeline was meticulously followed. It is further submitted
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that in camera statements were verified by the higher police
personnel and supplied to the petitioner. He would further
submit that subjective satisfaction can be said to be plausible and
reasonable. He would press into service Section 5-A of the
M.P.D.A. Act to defend impugned action.
7. Learned A. P. P. relies upon the following judgments of the
Supreme Court and this Court :
I. Gautam Jain Vs. Union of India and another reported in
AIR 2017 SC 230.
II. Kashinath Motiram Chavan Vs. Commissioner of Police
Solapur reported in AIR Online 2021 Bom 2395.
8. We have considered rival submissions of the parties and we
have also gone through relevant papers, which were before the
detaining authority. Learned A. P. P. has also made available a
set of papers which was before the detaining authority.
Pertinently, affidavit in reply filed on record is that of District
Magistrate/respondent No. 2. There is no affidavit of Jail
Authority where the petitioner has been detained. It is stated in
the affidavit of the respondent No. 2 that the grounds of
detention and relevant papers were served on the petitioner on
29.12.2023.
9. Five offences registered against petitioner were considered
by the detaining authority. She was found to be in possession of
illicit liquor which was intended to be sold. All the offences
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pitted against her were under the provisions of the Maharashtra
Prohibition Act. No offence has been registered against her
falling under Chapter XVI and XVII of the Indian Penal Code or
the Arms Act. The M.P.D.A. Act provides definition of a
dangerous person U/Sec. 2(b-1). In the grounds of detention the
petitioner is recorded to be dangerous person in para 4-C, 4-E of
the grounds of detention. Affidavit in reply also does not rectify
this position. We find that this is non application of mind by the
detaining authority.
10. All the offences pitted against the petitioner are under the
provisions of the Maharashtra Prohibition Act. Activities of
bootlegging per-se would not attract drastic action under the
M.P.D.A. Act. There needs to be convincing material to indicate
that activities are detrimental to the public order. Corroborative
material against the petitioner also falls short to show that her
being at large is danger to the public order.
11. Learned counsel for the petitioner relies on the judgment of
this Court in the matter of Hanif Karim Laluwale Vs. State of
Maharashtra and others (supra). Its para No. 11 is as follows :
"11. The impugned order, it is further seen, also does not
explain as to how bootlegging activity per se and by itself
would adversely affect public order. Any bootlegging
activity in which involved is manufacture of illicit liquor can
be presumed to be adversely affecting public health. But,
there is no presumption in fact or law that every incidence of
disturbance of public health would necessarily result in
6 cri wp 400.24
disturbance of public order. Covid-19 pandemic is the
biggest example of this preposition. During that period of
time, public at large was afflicted with Covid-19 infection. It
was an en masse phenomenon but, our common experience
has shown that it did not lead to disturbance of public order
in general. Therefore, the authorities would be required to
satisfy themselves as to how disturbance of public health in
certain cases would result in also disturbance of public order.
Such satisfaction has not been reached in the present case."
We find that there is no adequate material and the subjective
satisfaction is based on perception rather than appropriate
assessment of the material.
12. We have gone through the original record produced by the
respondents. Both in camera statements were verified by the
Sub Divisional Police Officer, Bhoom on 27.09.2023. It appears
that the petitioner is an illiterate lady. Reply of the respondent
No. 2 states that petitioner was served with papers on
29.12.2023. She was in jail. There is no acknowledgment for
having received papers. No affidavit is filed by the Jail Authority
showing service of relevant documents on the petitioner. There is
substance in the contention of the petitioner that in camera
statements were not served on the petitioner. The petitioner
received incomplete documents. There is room to infer that she
was unable to make representation and avail safeguard under
Article 22(5) of the Constitution of India.
13. Last offence was registered against the petitioner on
19.09.2023. Impugned order of detention was passed on
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22.12.2023 after 94 days. Learned A. P. P. would point out
paragraph No. 8 of affidavit in reply to explain delay. It refers
that in camera statements were recorded on 29.08.2023. Those
were verified on 27.09.2023. Delay of 28 days is unexplained and
is unreasonable. Thereafter the proposal was submitted to the
detaining authority on 18.10.2023. There is no explanation for
delay from 18.10.2023 till 22.12.2023. Unexplained delay vitiates
order of detention. It indicates that the petitioner was being at
large for considerable period. It creates doubt about the drastic
action against her.
14. Learned counsel for the petitioner is justified in relying
upon judgment of this Court in the matter of Vijay Rajendra
Kale Vs. State of Maharashtra and others (supra). We propose to
adopt same view. We find that activities of the petitioner cannot
be said to be detrimental to the public order. Petitioner has
rightly referred to the judgments in the matters of Pintu @
Sidharth Bhagwan Devde Vs. The State of Maharashtra and
others and Devidas Lalji Ade Vs. The State of Maharashtra and
others to demonstrate what would be the public order. In the case
in hand there is no material to show activities are detrimental to
the public order.
15. Learned A. P. P. relies on the judgment of the Division
Bench of this Court in the matter of Kashinath Motiram Chavan
Vs. Commissioner of Police Solapur (supra). Our attention is
invited to paragraph Nos. 23 and 27 of the judgment. The
principles laid down in para No. 23 of the judgment cannot be
8 cri wp 400.24
disputed. Facts of the present case are distinguishable from the
facts of the case in the cited judgment. The judgment cannot be
made applicable to the present case.
16. Another judgment cited by the learned A. P. P. of the
Supreme Court in the matter of Gautam Jain Vs. Union of India
and another (supra) to buttress submission based on Section 5A
of the M.P.D.A. Act. Purport of Section 5A has been explained by
the Supreme Court. We have carefully considered relevant
paragraph Nos. 23, 24 and 25 of the judgment. The case in hand
shows that there is non application of mind of the detaining
authority, which is jurisdictional error. The detention is recorded
to be unsustainable on the ground of inordinate delay. We have
recorded our reservation on the subjective satisfaction of the
detaining authority. Our first two findings go to the root of the
matter. In such a scenario, impugned orders cannot be saved by
implication of Section 5A of the M.P.D.A. Act. We are of the
considered view that if there is fundamental defect in the order of
detention, Section 5A of the M.P.A.D. Act would have no
application.
17. For the reasons stated above, we pass following order.
ORDER
I. The criminal writ petition is allowed.
II. The impugned order of detention dated 22.12.2023 passed
by the respondent No. 2/District Magistrate, Dharashiv and
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order of confirmation dated 13.02.2024 passed by the
respondent No. 1, are quashed and set aside.
III. The petitioner shall be set at liberty forthwith.
IV. Rule is made absolute in above terms.
[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ]
bsb/April 24
