Bombay High Court
Supadu Bandu Tadvi vs The District Magistrate, Jalgaon And ... on 7 May, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:9715-DB
1 Cr. W.P. 112 / 2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 112 OF 2024
Supadu Bandu Tadvi
Age : 42 years, Occu. : Agri.,
R/o Chilgaon, Tq. Jamner,
District - Jalgaon .. Petitioner
Versus
1] District Magistrate, Jalgaon,
District - Jalgaon
2] The State of Maharashtra,
Through the Additional Chief Secretary,
Govt. of Maharashtra, Home Department,
Mantralaya, Mumbai - 32.
3] The Jail Superintendent,
Central Prison, Amravati,
District - Amravati .. Respondents
...
Advocate for the petitioner : Mr. Satej Jadhav
APP for the respondent - State : Mrs. V.N. Patil - Jadhav
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 02 MAY 2024
PRONOUNCED ON : 07 MAY 2024
JUDGMENT (MANGESH S. PATIL, J.) :
This is a petition under Article 226 of the Constitution of
India, putting up a challenge to the order passed by respondent no.1 -
District Magistrate, Jalgaon under section 3(2) and approved and
confirmed by respondent no. 2 - State under section 3(3) 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, 1982 (hereinafter the 'MPDA Act').
2. The impugned orders brand the petitioner as a bootlegger.
The following offences registered against him have been taken into
consideration :-
Sr. Police Crime No. Sections Date of Percentage Details of Present Status
No. Station registration of ethyl arrest
of crime alcohol
1 Pahur 325/2022 Under section 04-09-2022 27%, No arrest Pending trial
65(f),(b),(c),(e) of 3%,
Maharashtra 4%
Prohibition Act,
2 Pahur 397/2022 Under section 19-11-2022 8% No arrest Pending trial
65(f),(b),(c),(e) of 3%
Maharashtra 4%
Prohibition Act,
3 Pahur 51/2023 Under section 25-02-2023 10% No arrest Pending trial
65(e) of
Maharashtra
Prohibition Act,
4 Pahur 269/2023 Under section 21-07-2023 - No arrest Under Police
65(f) of Investigation
Maharashtra
Prohibition Act,
5 Pahur 437/2023 Under section 22-10-2023 - No arrest Under Police
65(e) of Investigation
Maharashtra 27-12-2023
Prohibition Act,
The following preventive actions have also been taken into
consideration :-
Sr. Name of Police Date of Registration Registration No. Section
No. Station
1 Pahur 11-01-2021 13/2021 As per section 93 of Maharashtra Prohibition
Act, 1949
2 Pahur 24-11-2022 265/2022 As per section 93 of Maharashtra Prohibition
Act, 1949
3 Pahur 18-09-2023 233/2023 As per section 93 of Maharashtra Prohibition
Act, 1949
3. In addition, as many as 11 offences registered against him
under different sections of the Maharashtra Prohibition Act, 1949
(hereinafter 'M.P. Act') right from the year 2017 up to 25-07-2022 have
been looked into by respondent no. 1 - detaining authority. Further,
statement of couple of witnesses who preferred to be anonymous for
the alleged apprehension, have also been recorded and considered by
the detaining authority. He reached a subjective satisfaction that
ordinary law of the land was insufficient to deter his activities of
manufacturing and selling liquor illegally which has the potential of
being hazardous for human consumption and has the tendency to
affect the public order.
4. The learned advocate for the petitioner Mr. Jadhav would
basically seek to demonstrate as to how the subjective satisfaction
arrived at by the detaining authority is perverse and arbitrary. It lacks
application of mind. Old and stale cases, having no proximate relation
with the latest criminal activities, have been considered. He would
submit that there is no chemical analysis report in respect of the latest
two crimes. The observation of the detaining authority about the liquid
seized from the petitioner being potentially hazardous to life, is not
substantiated by any report of the expert. This being a matter of
preventive detention, the detaining authority should have been more
vigilant and careful in approving the proposal forwarded by the
concerned police.
5. Mr. Jadhav would submit that in none of the cases, he has
ever been arrested and was simply served with a notice under section
41-A(1) of the Code of Criminal Procedure, which in itself is indicative
of the fact that even the police machinery never thought it necessary to
arrest him. He would place reliance on the decisions in the matters of
(1) Dhanubai @ Dhanno Yashvant Netlekar Vs. State of
Maharashtra and others; 2024 SCC OnLine Bom 484 (Judgment
dated 08-02-2024 in Criminal Writ Petition no. 1527 of 2023) and (2)
Vishwas Arun Garunge Vs. The District Magistrate and others
(Judgment dated 14-03-2024 in Criminal Writ Petition no. 1578 of
2023) .
6. Per contra, the learned APP would support the orders.
She would submit that necessary statutory compliances and the
timeline, as laid down in different sections of the MPDA Act has been
religiously followed. The subjective satisfaction arrived at is for
plausible reasons. This Court has inherent limitations in substituting its
views in exercise of power under Article 226 of the Constitution of
India. The subjective satisfaction is supported by the circumstances
as mentioned in the impugned orders passed by him. Only the latest
two crimes committed within six months next before passing of the
order have been considered together with three similar crimes of the
immediate past. Preventive actions have also been considered. Old
offences have been referred only to demonstrate tendency of the
petitioner. Those do not form the basis for arriving at the subjective
satisfaction. Though the chemical analysis report in the latest two
crimes committed on 21-07-2023 and 22-10-2023 are not available, the
other three offences preceding those committed on 04-09-2022,
19-11-2022 and 15-02-2023 contain the chemical analysis reports. The
samples were found containing 27%, 3% and 4% ethyl alcohol. Since
the activity of manufacturing and selling illicit liquor was undertaken
without any licence under the M.P. Act, there is no standardization and
control of any authority. There is every possibility of percentage of the
ethyl alcohol exceeding permissible limits having potential to be
harmful for human consumption.
7. She would advert our attention to similar argument in the
matter of Vinod Dhannulal Jaiswal Vs. District Magistrate,
Aurangabad and others; AIROnline 2024 BOM 105 which was
authored by one of us (Mangesh S. Patil, J.). The definition of
'bootlegging' given under section 2(b) contemplates inter alia distilling,
manufacturing and selling of intoxicants, drug or any intoxicant, in
contravention of the provisions of the M.P. Act. When the petitioner
does not possess any such licence, that in itself is sufficient to brand
him as a bootlegger.
8. The learned APP would further submit that the incessant
bootlegging activity undertaken by the petitioner would inherently have
the potential to disturb the public order.
9. The learned APP would then submit that there are couple
of anonymous witnesses; one of whom has expressly stated as to how
running of a den by the petitioner and his offending behaviour has
created disturbance to the public order.
10. She would submit that similar argument that the petitioner
was served with only a notice under section 41-A(1) of the Code of
Criminal Procedure in all the crimes registered against him and in none
of these, he was ever been arrested, has been considered by this
Court in the matter of Vinod Jaiswal (supra). The purpose of arrest is
distinct and different than preventing an activity under the M.P.D.A. Act.
The matter of arrest would be governed by the principles laid down by
Arnesh Kumar V. State of Bihar; (2014) 8 SCC 273 and can seldom
be said to be aimed at preventing any unlawful activity.
11. Lastly, the learned APP also relies upon the decision of this
Court in the matter of Chandrakala W/o Ramlal Jadhav Vs. The
State of Maharashtra and others; 2021 SCC OnLine Bom 634.
12. At the outset, it is necessary to note that the order of
preventive detention passed by respondent no.1 and approved and
confirmed by respondent no. 2 is being assailed solely on the ground of
subjective satisfaction arrived at by respondent no. 1 - detaining
authority. Since no other ground has been raised, we would restrict the
discussion only to ascertain if the subjective satisfaction reached by
respondent no. 1 - detaining authority, is based on plausible
appreciation of the facts and circumstances.
13. Admittedly, though several other previous crimes have
been taken into consideration by respondent no.1 - detaining authority,
the decision has been based on the last two crimes being crime no.
269 of 2023 and crime no. 437 of 2023 under section 65(f) of the M.P.
Act as also three crimes immediately prior to the afore-mentioned two
crimes being crime no. 325 of 2022, 377 of 2022 and 51 of 2023. In
addition, 3 preventive action under section 93 of the M.P. Act also have
been relied upon by him.
14. It is necessary to note that admittedly, the latest two crimes
no. 269 of 2023 and 437 of 2023 are pending investigation and there is
no report of the chemical analysis in respect of the liquid allegedly
seized from the petitioner. In the absence of any such report at this
juncture, it cannot be said even prima facie that it was an intoxicant.
We are consciously referring to these facts to demonstrate as to if the
live link between the crime being relied upon and the impugned order
has ever been snapped. Once it is found that the latest two crimes are
still under investigation and there are no chemical analysis reports, that
makes it abundantly clear as to why respondent no. 1 - detaining
authority has also been relying upon the earlier three crimes no. 325 of
2022, 397 of 2022 and 51 of 2023, which were registered on
04-09-2022, 19-11-2022 and 25-02-2023 respectively only because in
all these matters, there are chemical analysis reports and the
chargesheets have been filed. Resultantly, irrespective of the stand
being taken by the respondents and the learned APP, the impugned
order can certainly be said to have been passed not on the basis of the
latest crimes which they could not have legally done in the absence of
chemical analysis reports but passed on three crimes immediately prior
thereto.
15. Last of the earlier three crimes i.e. crime no. 51 of 2023
was registered on 25-02-2023 whereas the impugned order of
preventive detention has been passed on 27-12-2023, with a gap of
more than 10 months. This precisely, in our considered view, is a
clinching fact which adversely affects the subjective satisfaction arrived
at by respondent no.1 - detaining authority. If the impugned order was
passed after 10 months of registration of crime no. 51 of 2023 on 25-
02-2023, the period of 10 months intervening clearly snaps the live link
between the crime and the preventive action. Merely because in the
meantime, the last two offences have been registered would be
inconsequential for the simple reason that no person could have
reached a subjective satisfaction of the activity being bootlegging in the
absence of the report of the chemical analysis. One cannot overlook
this long period of more than 10 months from the registration of crime
no. 51 of 2023 and the impugned order.
16. Again, it appears that, the action under section 93 of the
M.P. Act bearing registration no. 233 of 2023 was initiated on 18-09-
2023, during that period of 10 months. However, bearing in mind the
fact that the petitioner was not involved in any bootlegging activity
during these 10 months, duly supported by a prima facie material in the
form of chemical analysis report of the liquid seized in crime no. 269 of
2023 and 437 of 2023, such initiation of action under section 93 of the
M.P. Act would not provide any link between crime no. 51 of 2023
registered on 25-02-2023 and the impugned order of preventive
detention passed on 27-12-2023.
17. There is one more aspect in this regard. Though it has
been perceived by the respondents that normal law of the land was
unable to prevent the petitioner's activities of bootlegging, although on
three occasions an action under section 93 of the M.P. Act was initiated
against him, there is absolutely no record to demonstrate that steps
were even taken to forfeit the bonds executed by the petitioner and to
recover bond amount from him. The first such action was taken on 11-
01-2021, the second one was on 24-11-2022 and the latest being on
18-09-2023. A bare look at the afore-mentioned charts would
demonstrate that according to the respondents, the petitioner had
continued the bootlegging activity in spite of such actions under section
93 of the M.P. Act and if that be so, one cannot comprehend as to how
without even taking the steps to forfeit the bonds and to recover the
money since many of these crimes were apparently committed during
the bond period of three years stipulated under that section and still,
the inference has been drawn by respondent no. 1 - detaining authority
that the ordinary law of the land was unable to prevent the petitioner's
activities. This, in our considered view, goes to the root of the
sustainability of the subjective satisfaction reached by him.
18. Turning to the statements of couple of witnesses relied
upon by respondent no. 1 - detaining authority, the witness 'A' has
stated that while he was proceeding to his home on 15-02-2023 in the
evening hours, 3-4 drunkards were sitting in the petitioner's house.
One of the drunkard hit his motorcycle and he fell down. He was
thereafter lifted by the other persons and drunkards started hurling
abuses at him. Seeing the incident, the petitioner have come out of his
house with 2-3 henchmen. The witness confronted the petitioner
saying that because of his den foul smell had spread in the area and
the persons consuming liquor were indulging in squabbling and teasing
womenfolk, drove their vehicles rashly causing injuries to children and
such incidents were occurring frequently. He then asked the petitioner
to close down his den or else he would file a complaint with the police.
He states that enraged by it, the petitioner abused him in filthy
language and brandished a knife by putting it to the chest. Though the
people had gathered, none of them could rescue him due to fear of the
petitioner. As can be appreciated, if really the witness was under threat
and the petitioner was running terror, it seems highly unbelievable and
improbable that the witness could have expressly called upon the
petitioner to close down the den declaring that else he would file a
complaint. If he was so bold, that would be inconsistent with the stand
being taken by the respondents about the petitioner having potential of
disturbing the public order.
19. The next witness 'B' has alleged about an incident
occurred on 20-03-2023 which is clearly a matter of road rage having
no potential of demonstrating any threat from the petitioner to public
order. The witness has stated that the petitioner was carrying a liquor
can on his motorcycle. A stick in his hand brushed the can accidently
and the petitioner lost balance and fell down and the liquor spilled on
the road. The petitioner is alleged to have abused this witness and
insisted for compensating him and extended threats. The petitioner is
alleged to have taken out Rs.500/- from this witness's pocket forcibly
and asked him to pay the remaining amount and left the spot by
extending threats. We fail to understand as to how this version of the
witness could be resorted to, to draw an inference that the petitioner
being at large would put the public order in peril. This road rage
incident can occur with anybody and any person in place of the
petitioner in all probability would demonstrate a similar conduct.
Merely because he was carrying a liquor can, in our considered view,
would not make any difference.
20. If such is the quality of the statements recorded and the
incidents reported by these anonymous witnesses, in our considered
view, the subjective satisfaction based thereon, by no stretch of
imagination could be a plausible one.
21. In view of above state-of-affairs, we are of the considered
view that the subjective satisfaction arrived at by respondent no. 1 -
detaining authority is not based on plausible appreciation of the
material referred to by him. This goes to the root of the order passed
by him and approved and confirmed by respondent no. 2.
22. The petition is allowed.
23. The order of detention bearing
no. DANDPARA/KAVI/MPDA/86/2023 issued under section 3(2) of the
MPDA Act, 1981 dated 27-12-2023 passed by respondent no. 1 -
District Magistrate, Jalgaon and approved and confirmed by
respondent no. 2 - State under section 3(1) of the MPDA Act is
quashed and set aside.
24. The petitioner be released forthwith, if not required to be
detained in any other matter.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
