Bombay High Court
Jitendra @ Jitu Ranbhid Meshram vs The State Of Maharashtra, Thr. Its ... on 2 September, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:10036-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.395 OF 2024
Jitendra @ Jitu Ranbhid Meshram (in jail),
Aged 39 years, Occup. Labour, R/o
Sangam/Rehabilitation, Tahsil, Bhandara,
Dist. Bhandara, Maharashtra-441904. Petitioner
-Versus-
1. The State of Maharashtra, through its
Secretary, Home Department, (Special)
Mantralaya, Mumbai.
2. The District Magistrate and Collector
Bhandara, District Bhandara.
3. The Superintendent, Bhandara District,
Prison, Bhandra, Maharashtra
4. The Police Inspector, Police Station,
Jawahar Nagar, District Bhandara. Respondents
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Mr.Burhanul Hasan, Advocate for the petitioner.
Mr.M.K.Pathan, APP for respondent Nos.1 to 4
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CORAM : VINAY JOSHI AND
MRS.VRUSHALI V. JOSHI, JJ.
Date of Reserving the judgment:- 27/08/2024
Date of Pronouncing the judgment:- 02/09/2024
JUDGMENT (Per : Vrushali V.Joshi, J.)
Heard.
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2. Rule. Rule made returnable forthwith. The Criminal Writ
Petition is heard finally with the consent of the learned counsel
appearing for the parties.
3. The petition challenges the detention order passed by
respondent no.2 against the petitioner, bearing no.
O.NO/AK/DAND-1/C.R.03/MPDA/120/24 on 02.02.2024 and
its approval dated 12.02.2024 passed by respondent no.1 by
invoking the powers of this Court under Article 226 of the
Constitution of India.
4. The order in question is passed tagging the petitioner
as a "Bootlegger". Among the four cases forming the basis of
detention order and past history, Respondent no.2 had considered
C.R. no.285/2023 under section 65(f) Maharashtra Prohibition
Act, registered on 28.10.2023, which is still under investigation.
The confidential in-camera statements of witnesses A and B have
too been considered. The statements are alleged to be recorded on
13.12.2023.
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5. The learned Advocate of the petitioner submits that,
C.R. no.149/2022 under section 65(f) of the Maharashtra
Prohibition Act, C.R.no.50/2023 under section 65(a) of the
Maharashtra Prohibition Act, C.R.no.241/2023 under section
65(f) of the Maharashtra Prohibition Act, are pending before the
concerned Court. In the first two cases as mentioned above, the
petitioner has been discharged by Judicial Magistrate, First Class,
Bhandara, on 01.03.2023 and 07.12.2023 respectively. The
material available for detaining authority to arrive at subjective
satisfaction is insufficient. He further points out that, the offences
are stale and more than an year prior to the impugned detention
order.
6. The learned counsel for the petitioner further submits
that, the material does not explain how the bootlegging activities
themselves would adversely affect public order. Manufacture of
illicit liquor can be presumed to be adversely affecting public health
but not always resulting into disturbance of public order. In all the
offences as stated above, no conviction has been secured by the
State.
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7. Per contra, the learned APP submits that, the
petitioner is habitual to commit bootlegging activities. All the
crimes taken into account are similar. Preventive action was also
initiated against the petitioner under section 93 of the Maharashtra
Prohibition Act, wherein, he had executed a final bond of Rs.
10,000 for a good behaviour. Still the activities have not been
stopped. The facts in Crime no. 285 of 2023, which is still under
investigation, would show that, the detenu was preparing Sadwa
Mohapas for straining Mohafula liquor in plastic jugs on the banks
of the river Wainganga.
8. Statements of witnesses would disclose that, the
incident inflicted by the petitioner on them, is aiding in promotion
of alcohol addiction among school students and domestic quarrels
becoming common. The opinion of the Department of Forensic
Medicine and Toxicology, Government Medical College, Nagpur,
shows that the samples contain 4.08% v/v of ethyl alcohol
including sugar and yeasts which can used for the distillation of
intoxicating liquors. Learned APP relied upon one of the significant
rulings of this Court in MagarPansingh Pimple vs State of
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Maharashtra; 2005 LawSuit (BOM) 1257.
9. For passing the detention order, one offence and two
in-camera statements are considered by the detaining authority. In
all four offences are there under Section 65(e)(f) of the
Maharashtra Liquor Prohibition Act and in the grounds of
detention, the preventive action taken by the authority is also
mentioned. Here for passing the detention order, the Crime No.
285/2023 for the offence punishable under Section 65(e)(f) of the
Maharashtra Liquor Prohibition Act is considered. The raid was
conducted on 28.10.2023 and 90 plastic bags each filled with 25
kg amounting total 22250 kg litre of liquor worth Rs. 15,000/-
filled in five black colour tubes with 20 litre liquor it its tube
under Sindhi tree were found. It was seized.
10. The notice under Section 41(A) is issued in this case.
The Chemical Analyser report is not available in this crime though
the sample was sent for C.A. It is still awaiting. Though the C.A.
report is not there, the opinion of doctor about four percent of
ethyl alcohol is injurious to health is considered by the detaining
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authority while passing he order.
11. The learned counsel appearing for the petitioner by
relying on the four offences has stated that the two offences which
are shown is pending are already disposed by the Magistrate, which
is not considered while passing the detention order. It appears that
said crimes (no.149 of 2022 and 50 of 2023) are not considered
for passing the detention order. Hence, the submission made by the
petitioner cannot be considered. The detaining authority has relied
on the two statements. On perusal of the statement of the witnesses
A and B, it reveals that the detaining authority has completed only
formality of considering the statements of two witnesses. We have
gone through the statements of two witnesses, it appears that both
the witnesses have given identical statement. It is nothing but copy
paste statements. The statements are not even verified by the
person, who has recorded it. All the persons have only signed the
statements. It is even seen by the detaining authority and has stated
about satisfaction which shows that how mechanically it is signed
by the authority without even verifying whether it is recorded and
verified by the said person. No specific incident is mentioned in
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the said statement. General character of the petitioner is stated by
both the witnesses. It is observed by this Court in Criminal Writ
Petition No.697 of 2022 (Chandbee Usman Patel Vs. The State of
Maharashtra and ors). In this case, it is held as under:-
13. Our findings on the contents of the two
witnesses' statements are supported by
observations of this Court in Shaikh Usman
Shaikh Maheboob (supra), which referred to two
confidential witnesses where it was held that such
statements suggest that the detenue is a
dangerous person, who habitually indulges in
bootlegging activities. That Judgment has held
such incidents to be irrelevant and unreliable for
arriving at a subjective satisfaction to be recorded
under Section 3 of the Act while passing the
detention order.
12. The learned counsel appearing for the petitioner has
relied on the judgment of this Court in Criminal Writ Petition
No.697 of 2022 (Chandbee Usman Patel Vs. The State of Maharashtra
and ors.) in which it is held that the two confidential statements
suggest that the detenu is a dangerous person, who habitually
indulges in bootlegging activities. The judgment has held such
incident to be irrelevant for arriving at a subjective satisfaction
while passing detention order.
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13. Another ground on which the petitioner has relied is
about the delay in passing the detention order. While considering
the issue of delay, we have to go through the dates of (incidents)
offences. The time will not start to run from the date of the last
offence that was registered. For considering the delay, we will have
to consider the time till last offence, then the in-camera statement.
Verification by superior Police Officer and also by detaining
authority. It reveals that the crime which is considered by the
detaining authority is of 28.10.2023 and the statements of
witnesses are of 13.12.2023. The detention order is passed on
02.02.2024. No specific incident is mentioned by both the
witnesses. The authority has casually signed the statement.
Therefore, there is inordinate delay.
14. The respondent No.2 has not filed the reply. There is
no explanation for delay in passing the detention order. Stale crimes
are considered while passing the detention order, which itself
vitiates the detention order passed by the detaining authority.
15. The learned counsel appearing for the petitioner has
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placed reliance on the judgment in Criminal Writ Petition No.104
of 2024, Rama Devchand Kumbhalkar Vs. The State of
Maharashtra passed by this court in which reliance is placed on the
case of:-
11. The Hon'ble Apex Court in the case of
Pradeep Nilkanth Paturkar vs S Ramamurthi
and others reported in AIR 1994 SC 656 has
observed that the unexplained delay whether
short or long, specially when the petitioner has
taken a plea of delay, vitiates the detention
order. In para 9 of the said exposition in
Pradeep Nilkanth Paturkar's case (supra) the
Hon'ble Apex Court has referred to its earlier
decision in the case of T A Abdul Rahman
V/s. State of Kerala reported in (9189) 4 SCC
741 in paragraph 15 as follows:-
"The question whether the prejudicial
activities of a person necessitating to pass an
order of detention is proximate to the time
when the order is made or the live-link
between the prejudicial activities and the
purpose of detention is snapped depends on
the facts and circumstances of each case. No
hard and fast rule can be precisely formulated
that would be applicable under all
circumstances and no exhaustive guidelines
can be laid down in that behalf. It follows
that the test of proximity is not a rigid or
mechanical test by merely counting number
of months between the offending acts and the
order of detention. However, when there is
undue and long delay between the prejudicial
activities and the passing of detention order,
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the Court has to scrutinize whether the
detaining authority has satisfactorily
examined such a delay and afforded a tenable
and reasonable explanation as to why such a
delay has occasioned, when called upon to
answer and further the Court has to
investigate whether the causal connection has
been broken in the circumstances of each
case."
16. So far as the delay is concerned there is no
explanation offered by respondent No.2/Detaining authority.
Therefore, keeping in view the exposition of law laid down by the
Hon'ble Supreme Court in the case of Pradeep Nilkanth
Paturkar's case (supra) and since no plausible explanation has
been offered by detaining authority for passing the detention
order it will have to be held that there was delay in passing the
order of detention".
17. Each and every bootlegging activity cannot be
presumed to be adversely affecting public health. In this case
though the samples were send for C.A. the report was not received
and not considered by the authority. It is observed by this Court in
Writ Petition No. 75 of 2022 ( Hanif Karim Laluwale Vs. State of
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Maharashtra and ors.) that any bootlegging activity in which
manufacture of illicit liquor is involved 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 disturbance of public order.
18. The learned counsel appearing for the petitioner has
also relied on the following judgments:-
1. Criminal Writ Petition No.400 of 2023
( Jumma @ Munna Burhan Hiriwale Vs.The State of
Maharashtra and ors.
2. Ameena Begum Vs. State of Telangana
Criminal Appeal No.2706 of 2023, (2023) 9 SCC
3. Nenavath Bujji etc. Vs. State of Telangana and
ors. reported in (2024) SCC OnLine SC 367.
19. Considering the above said observations, we, thus, find
the substance in the present Writ Petition.
20. In the result, we find that this Writ Petition deserves to
be allowed and it is allowed in terms of it's prayer clause (b).
Rule is made absolute in above terms.
(MRS.VRUSHALI V. JOSHI, J) (VINAY JOSHI, J)
Signed by: Kavita P Tayade
Designation: PA To Honourable Judge
Date: 05/09/2024 19:01:46 Kavita
