Bombay High Court
Baban Shamrao Pawar vs The District Magistrate And Others on 6 May, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:9568-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No. 643 / 2024
Baban Shamrao Pawar
Age : 50 years,
R/o Neknoor,
Taluka & District Beed. ...Petitioner
Versus
1. The District Magistrate,
Beed.
2. State of Maharashtra
Through its Secretary,
Home Department (Special),
Mantralaya, Mumbai.
3. The Superintendent of Jail,
Aurangabad Central Prison,
Harsul. ..Respondents
___
Advocate for the Petitioner : Mr. Rupesh A. Jaiswal
A.P.P. for Respondents /State : Mr. G.A. Kulkarni
___
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 29 APRIL 2024
PRONOUNCED ON : 6 MAY 20241
5 APRIL 2024
JUDGMENT [Per Shailesh P. Brahme, J.] :
. Rule. Rule is made returnable forthwith. Heard both the
sides finally with their consent.
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2. The petitioner is aggrieved by order of detention dated
05.02.2024 passed by the respondent no.1/District Magistrate,
Beed under Section 3(1) of the Maharashtra Prevention of
Dangerous Activities of Slumlords Bootleggers, Drug-Offenders,
Dangerous Persons and Video Pirates, Sand Smugglers and
Persons Engaged in Black-Marketing of Essential Commodities
Act Act, 1981 (hereinafter referred to as the MPDA Act for the
sake of brevity and convenience).
3. Learned Counsel for the petitioner submits that the
subjective satisfaction by the respondent no.1 is arbitrary and
perverse. In the absence of any expert opinion, conclusion has
been reached that the activities are prejudicial to the
maintenance of public order. It is further submitted that
translation of few english documents were not furnished
causing prejudice to petitioner's right to make effective
representation. Learned Counsel further submits that there is
delay in deciding representation. It is further urged that there
is delay in granting approval under Section 3(3) of the Act.
4. Learned Counsel for the petitioner has placed on record
written submissions alongwith judgments being relied on.
Additionally during the course of argument, a bunch of papers
which were given to the detaining authority has also been
placed on record.
5. Learned APP supports impugned order on the basis of
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three affidavits filed on different dates. He has also placed on
record the documents, which were before the detaining
authority. He submits that there is cogent material available
against the petitioner indicating the activities detrimental to
the public order. He would point out that seizure of material
collected during investigation of both the offences to show
gravity. He would submit that subjective satisfaction is
intelligible. It is further pointed out that in one of the offences
charge-sheet has been filed which prima facie shows
involvement of the petitioner. He would further submit that the
detaining authority has not recorded any finding that
contraband seized from the petitioner was injuries to public
health. Lastly, he would submit that neither there is delay in
processing the proposal, nor is there violation of any statutory
provision.
6. Having heard both the Counsels, we find that C.R.
No.226/2023 and C.R. No.336/2023 registered under Section
65(f) of the Maharashtra Prohibition Act coupled with
preventive actions, earlier order of detention and in-camera
statements are the foundation to reach the subjective
satisfaction. Interestingly, grounds of detention refer earlier
order of detention passed on 14.11.2022 against petitioner.
However, it has not been clarified as to what happened to the
earlier order of detention. Once the sponsoring authority refers
to earlier proposal of detention and order passed on 14.11.2022
under Section 3(1) of the Act, it was incumbent for the
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detaining authority to enquire into it. The respondents should
have clarified and placed on record relevant documents of
earlier action of detention. We were curious to know as to
whether the petitioner had undergone detention or the order of
detention was upset either by State Government or Advisory
Board. It is left to the speculation that as to what prompted the
respondents to undertake action for detention for the second
time. This reflects on the jurisdiction exercised by the detaining
authority.
7. It has been recorded by the detaining authority that
during the course of investigation of C.R. No.226/2023,
samples of the contraband were referred to chemical analysis.
Charge-sheet has also been reported to be filed. In another
offence i.e. C.R. No.336/2023, the report of chemical analysis is
awaited and the charge-sheet has not been filed. It is concluded
by the detaining authority that criminal activities of the
petitioner were affecting public order. It is doubtful as to the
contraband in last offence is illicit liquor or not. The detaining
authority has not referred to experts opinion. Therefore, we
find substance in the submission of learned Counsel for the
petitioner that without there being an expert's opinion,
subjective satisfaction was arrived at.
8. We have considered the judgments cited by the petitioner
in the case of Satyavan Shakha Rathod Vs. Commissioner of
Police Pune City & Ors., Criminal Writ Petition Stamp
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No.15879/2023; Prakash Chandrakant Kanjar Vs. State of
Maharashtra & Anr., Criminal Writ Petition No.1258/2023;
Dhanubai @ Dhanno Yashvant Netlekar Vs. State of
Maharashtra & Ors., Criminal Writ Petition No.1527/2023 and
Vishwas Arun Garunge Vs. District Magistrate, Jalgaon,
Criminal Writ Petition No.1578/2023. In those matters, a
finding was arrived at by the detaining authority that
consumption of contraband would be hazardous to public
health. We are of the considered view that ratio of these
judgments cannot be made applicable to the present case.
9. In the present matter, petitioner was found to be in
possession of material and the chemical to manufacture illicit
liquor. In C.R. No.226/2023, a report of chemical analysis is
available. We have perused it. It does not spell out any opinion
that the contraband would be dangerous to human
consumption. On the basis of two offences, preventive actions
and the in-camera statements, the activities of the petitioner
are held to be detrimental to the public order. Learned Counsel
for the petitioner has rightly submitted that there has to be an
expert's opinion to infer that the contraband is dangerous to
human consumption and ultimately would affect public order.
He has aptly referred to judgment in the matter of District
Collector, Ananthapur Vs. Laxmanna, 2005 CJ(SC) 400. The
relevant paragraphs are as follows :
"7. We do not think this argument of the learned counsel can be accepted. If the
detention is on the ground that the detenu is indulging in manufacture or transport or
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sale of arrack 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 Excise Act but if the arrack sold by the detenu is dangerous to public
health then under the Act, 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 him that the arrack dealt with by the detenu is an arrack
which is dangerous to public health to attract the provisions of the 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 such material should also be given to the
detenu to afford him an opportunity to make an effective representation."
8. Therefore, while holding that dealing with arrack which is dangerous to public
health would become an act prejudicial to the maintenance of public order attracting the
provisions of the Act. It must be held that it is obligatory for the detaining authority to
provide the material on which it has based its conclusion on this point. Therefore, we
are in agreement with the High Court that if the detaining authority is of the opinion
that it is necessary to detain a person under the Act to prevent him from indulging in
sale of goods dangerous for human consumption the same should be based on some
material and the copies of the such material should be given to the detenu."
10. In the present matter also, petitioner was not found with
the illicit liquor but found to be in possession of material to
manufacture illicit liquor. That itself would not lead to
conclusion that the activities are detrimental to the public
order. The subjective satisfaction in our considered view is
perverse.
11. Learned Counsel for the petitioner would refer to page
nos. 216 to 219 which are reports of the chemical analysis,
collected during the course of investigation of the offences
registered against the petitioner. They are in english. We notice
that report dated 20.11.2023 pertains to C.R. No.226/2023
which is pitted against petitioner. Learned APP would point
out paragraph no.15 of reply filed on 15.04.2024. We do not
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find that translated copies of above mentioned documents were
furnished to the petitioner. This has affected right to make an
effective representation which is important safeguard under
Article 22(5) of the Constitution of India.
12. Learned Counsel refers to judgment of Yogesh Nandu
Pujari Vs. Commissioner of Police, Thane & Ors., 2013 ALL MR
(Cri) 1779. We have considered relevant paragraph nos. 8 and
9 of the judgment. We propose to follow the same. We also
propose to follow the view taken in the matter of Ketan Gorakh
Darekar Vs. Commissioner of Police, Pune City & Ors., Criminal
Writ Petition Stamp No.16438/2023 and Vishwas Arun
Garunge Vs. District Magistrate, Jalgaon, Criminal Writ
Petition No.1578/2023. There is substance in the submissions
that the safeguard provided by Article 22(5) of the
Constitution of India, has been violated in the present matter.
13. Petitioner submitted representation on 21.02.2024. It
was rejected on 20.03.2024. It was communicated to the
petitioner on 21.03.2024. We have considered paragraph no. 7
of the reply dated 16.04.2024 which states that representation
was received on 28.03.2024.
14. There is delay of 27 days in deciding representation for
which no explanation has been tendered by the respondents.
Learned Counsel for the petitioner refers to judgment of Harish
Pahwa Vs. State of Uttar Pradesh, 1981 CJ(SC) 139. It lays
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down that it is duty of state to proceed to determine
representation with utmost expedition. The matter must be
taken up for consideration as soon as representation is
received and dealt with continuously until a final decision is
taken and communicated. We propose to follow the same view
and constrained to record that delay vitiates the impugned
order. To avoid repetition, we record that judgments in the
matter of Akash Annasaheb Hodade Vs. District Magistrate
Latur & Ors., Criminal Writ Petition NO.391/2023, S. Amutha
Vs. The Government of Tamil Nadu & Ors., 2022 LiveLaw (SC)
25 and Prakash Chandra Yadav @ Mungeri Yadav Vs. State of
Jharkhand & Ors., 2023 LiveLaw (SC) 529, lay down ratio on
similar lines which would support our findings.
15. Impugned order was passed on 05.02.2024. The
petitioner was detained on 06.02.2024. Order of detention
received approval under Section 3(3) of the Act on 13.02.2024.
A delay of eight days is sought to be explained by reply dated
18.04.2024. Even if it is presumed that on 08.02.2024
proposal was received by the State Government, further delay
has not been explained. Learned Counsel for the petitioner is
justified in contending that delay has vitiated impugned order.
He relies on the judgment of Hetchin Haokip Vs. State of
Manipur & Ors., 2018 ALL SCR (Cri) 1240. We have carefully
considered paragraph nos. 13 to 19 of the judgment. The
purport of word forthwith occurring in Section 3(3) of the Act,
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has been explained by the Supreme Court. In that matter also
there was delay of five days. We propose to follow ratio laid
down to conclude that impugned order is vitiated. Incidentally,
the judgment of the Supreme Court has been followed in Akash
Annasaheb Hodade (supra) and Dharani Raja Padyachi Vs.
State of Maharashtra and Others, 2019 CJ(Bom) 1658.
16. Learned APP would refer to ratio laid down in the matter
of Smt. Phulwari Jagadambaprasad Pathak Vs. R.H. Mendonca
and Others, 2000 AIR SCW 2727. We have gone through the
paragraph no.16. We are of the considered view that the same
would not enure to the benefit of the respondents as facts are
distinguishable.
17. On the basis of above analysis, we conclude that the
impugned order is unsustainable. We, therefore, pass following
order :
ORDER
(i) The Criminal Writ Petition is allowed in terms of prayer
clause 'B'.
(ii) Rule is made absolute in the above terms.
SHAILESH P. BRAHME MANGESH S. PATIL
JUDGE JUDGE
NAJEEB
