Bombay High Court
Rakesh Madhukar Koli vs The State Of Maharashtra And Others on 8 May, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:9928-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No. 554 / 2024
Rakesh Madhukar Koli
Age : 27 years, Occ. Labourer,
R/o Indira Nagar, Bholane,
District Jalgaon.
Through his Uncle :
Ravindra s/o Zipa Koli,
Age : 41 years, Occ. Labour. ...Petitioner
Versus
1. State of Maharashtra
Through its Addl. Chief Secretary
to Government of Maharashtra
Home Department (Special),
Mantralaya, Mumbai.
2. The District Magistrate,
Jalgaon.
3. The Superintendent of Jail,
Central Prison, Aurangabad.
4. The Secretary,
Advisory Board (MPDA)
Mantralaya, Mumbai. ..Respondents
_ _ _
Advocate for the Petitioner : Mr. Deepak D.
Choudhari
A.P.P. for Respondents /State : Ms. Priya R.
Bharaswadkar
_ _ _
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CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 3 MAY 2024
PRONOUNCED ON : 8 MAY 2024 26 APRIL
202415
ATE
JUDGMENT [Per Shailesh P. Brahme, J.] :
. Rule. Rule is made returnable forthwith.
Heard both the sides finally.
2. The petitioner is challenging order dated
20.02.2024 passed by the respondent no.2/
District Magistrate, Jalgaon 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). The petitioner
is held to be a 'bootlegger' on the basis of five
offences under the Maharashtra Prohibition Act,
two preventive actions and two in-camera
statements of the witnesses.
3. The petitioner seeks to challenge impugned
3 1023.Cri.WP-554-2024.doc
order on a ground that in the absence of
expert's opinion and absence of report of
chemical analysis in the last offence, subjective
satisfaction cannot be said to be intelligible.
His learned advocate would submit that all
offences are under Maharashtra Prohibition Act.
Therefore, his activities cannot be said to be
detrimental to the public order. It is further
submitted that there is delay of four months in
passing impugned order and there is no live link
and that would vitiate the impugned order. It is
further submitted that he has been only served
with notices under Section 41-A (1) of the
Criminal Procedure Code meaning thereby there
was no need to arrest him, as offences are of
lesser gravity.
4. Per-contra, learned APP supports impugned
order on the basis of affidavit-in-reply. She
would submit that subjective satisfaction is
founded on serious offences and other
incriminating material. Considering track
history, the petitioner is found to be habitual.
She would further submit that due procedure of
law has been followed and time line prescribed
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by the Act, has been adhered to. She would rely
on the judgment of Vinod Dhannulal Jaiswal Vs.
District Magistrate, Aurangabad and Ors., AIR
Online 2024 Bom 105.
5. Having considered rival submissions of the
parties, it reveals from record that the
detaining authority has recorded a specific
finding in paragraph no.11 on the basis of
reports of chemical analysis of the contraband
collected during the course of investigation
that percentage of ethyl alcohol was hazardous
to human consumption and would cause various
diseases. Last offence pitted against petitioner
was registered on 03.11.2023. The contraband
seized in the offence, was sent for chemical
analysis and report is awaited.
6. The grounds of detention do not spell out as
to on what basis, the findings in paragraph no.11
are recorded. No expert's opinion is solicited
in any of the offences pitted against the
petitioner. In the absence of expert's opinion,
the findings are perverse being based on
conjectures and surmises. The report of chemical
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analysis is awaited in the last offence. In such
scenario one is not sure as to whether the
contraband seized in the last offence is illicit
liquor or not. Overlooking this aspect of the
matter, the detaining authority has recorded
findings in paragraph no.10 that the petitioner
was found to be illegally manufacturing, storing
and selling liquor. We are of considered view
that the subjective satisfaction is perverse.
7. All the offences pitted against petitioner
are registered under Maharashtra Prohibition
Act. No offence has been registered falling under
Chapter XVI and XVII of IPC. It is not necessary
that for a drastic action of detention, there
has to be some offence under IPC. In the present
case, petitioner is held to be bootlegger.
Obviously, the material pitted against him is in
respect of bootlegging. We do not approve the
submissions of learned Counsel for the
petitioner in this regard.
8. It is a matter of record that petitioner has
been served with notices under Section 41-A (1)
of the Criminal Procedure Code in the offences
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pitted against him. He was not required to be
arrested. We have already taken a view in the
matter of Vinod Dhannulal Jaiswal (supra) that
serving of notice under Section 41A would not be
a mitigating factor. In view of the ratio laid
down in paragraph no.36, we find no substance in
the submissions of the petitioner. Paragraph
No.36 is as follows :
"36. It is to be noted that Section 41-A (1) of the Code of Criminal Procedure is to be resorted to by the
Investigating Officer before arresting an individual and that provision would regulate his powers to
arrest an individual. Needless to state that the arrest contemplated under the Code of Criminal
Procedure for carrying out the investigation into a crime by resorting to custodial interrogation would be
essentially for completing the investigation. Suffice for the purpose to observe that in the matter of
Arnesh Kumar Vs. State of Bihar and Anr.; (2014) 8 SCC 273 the Supreme Court has laid down several
guidelines which have to be borne in by the investigating Officer before arresting a person. We are
pointing out the law to demonstrate that the submission of the learned advocate for the petitioner that
the very fact that the I.O. did not feel necessary to arrest the petitioner although the crimes were
registered would be indicative of the fact that even he did not require the petitioner to be sent behind
the bars, is fallacious. The arrest for carrying out investigation into a crime would be for a limited
purpose of facilitating the Investigating Officer to complete the investigation. Such arrest cannot be
looked upon as an action which can be aimed at preventing the accused from indulging in a similar
activity rather any such approach would be inconsistent with the mandate of law laid down in Arnesh
Kumar (supra). The action of preventive detention under the preventive detention laws would be aimed
at abating the specific activities of an individual whereas the arrest for the purpose of investigation
cannot be aimed at preventing him from indulging in any such activity. Precisely for this reason, we are
not in agreement with the submission of the learned advocate for the petitioner that petitioner being not
arrested in the crimes should be taken into account to draw an inference that even the I.O. did not feel
it necessary to abate his unlawful activities. In short the purpose of arrest in respect of crime is aimed
at conclusion of the investigation, whereas, detention of a person under the preventive detention law is
to prevent him from indulging in certain activities."
9. Record reveals that the petitioner was
subjected to preventive action under Section 93
of Cr.P.C. on 19.12.2020 and 16.10.2023. He was
required to execute bond. If the petitioner was
habitually indulging into notorious and criminal
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activities, District Magistrate or Sub-
Divisional Magistrate had power to forfeit the
bond. It is not made clear by learned APP as to
whether any such action was taken against
petitioner. This aspect has neither been
considered by the detaining authority nor has it
been explained in affidavit-in-reply. It reveals
that the necessary steps have not been taken to
enforce the law and still, respondents resorted
to the drastic action against the petitioner.
Therefore, the findings recorded by the detaining
authority that the petitioner is undeterred by
ordinary penal laws would not commend us.
10. It reveals that the last offence was
registered on 03.11.2023. Thereafter in-camera
statements were recorded on 30.11.2023 and
02.12.2023. This inaction for 27 days is
detrimental to the proposed action. The
statements were verified on 08.02.2024. The
proposal was processed and reached detaining
authority on 13.02.2024. Thereafter impugned
order was passed on 20.02.2024, with a delay of
near about three months from registration of the
last offence. We have considered affidavit-in-reply
8 1023.Cri.WP-554-2024.doc
so as to ascertain whether the delay has been
explained or not. We find that delay has not been
explained. We find that the delay vitiates
impugned order. The unexplained delay indicates
that drastic action was not warranted against
petitioner. His being at large was not in fact
detrimental to public order.
11. Learned Counsel for the petitioner refers to
judgment rendered in the matter of Vijay Baburao
Avhad Vs. State of Maharashtra and Ors.,
Criminal Writ Petition No.1118/2022. We have
considered paragraph no.18. We are fortified in
our findings on the submissions of delay by the
ratio of that case.
12. We have also examined implication of Section
5A in the present matter. We have recorded that
the subjective satisfaction is not an
intelligible exercise on certain grounds. We are
with the petitioner on the point of delay which
in our considered view goes to the root of the
matter. We do not find Section 5A would be an
impediment in quashing impugned order. We,
therefore, pass following order :
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ORDER
i. Criminal Writ Petition is allowed.
ii. The impugned order of detention
is quashed and set aside.
iii. The petitioner shall be set at
liberty forthwith.
iv. Rule is made absolute in above terms.
SHAILESH P. BRAHME MANGESH S. PATIL
JUDGE JUDGE
NAJEEB...
