Bombay High Court
Vinod Rajendra Wakare vs State Of Maharashtra And Ors on 2 September, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:35774-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 15496 OF 2024
Vinod Rajendra Wakare,
Age : 27, Occu.: Labour,
R/at : Walmikinagar, Near Shriram
Temple, Waghadi, Panchvati, Nashik.
(Presently lodged at Nashik Road
Central Prison, Nashik) .. Petitioner
Versus
1. The State of Maharashtra
through
Secretary Advisory Board, Home
Department, Desk Special Team, New
Administration Building, Mantralaya,
Mumbai - 400 032.
2. Additional Chief Secretary,
Home Department, Mantralaya,
Mumbai - 400 032.
3. Mr. Sandeep Karnik,
The Commissioner of Poilce, Nashik
City, Nashik.
Office : Gangapur Road, Nashik.
4. Through District Magisterte, Nashik
Collector Office, Tarabai Park, Kolhapur
- 422 001.
5. The Superintendent of the Jail, Nashik
Central Open Jail, Nashik - 422 006. .. Respondents
Chaitanya
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...
Mr. Harshvardhan B. Suryavanshi, for the Petitioner
Ms. M. H. Mhatre, A.P.P., for the State-Respondent.
...
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 2nd SEPTEMBER, 2024
JUDGMENT (PER MANJUSHA DESHPANDE, J.) :
-
1. The Petitioner herein is assailing the Order issued
by the Commissioner of Police, Nashik, dated 07.05.2024, in
exercise of his powers under Section 3(2) 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. ("the MPDA Act"). According
to the Petitioner, he has been detained in Central Prison,
Nashik, without following due procedure of law.
2. On 07.05.2024, the Order of Detention alongwith
Grounds of Detention and Committal Order, have been served
upon the Petitioner. In furtherance of Order of Detention, he is
presently lodged at Central Prison, Nashik.
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3. It is the contention of the Petitioner that he has
made a representation to the State Government, Mantralaya,
Mumbai, as well as the Advisory Board on 15.06.2024 and
18.06.2024 respectively. The Order of Detention was
confirmed by the State Government on 04.07.2024, which was
served on the Petitioner on 16.07.2024. It is his contention
that, his detention is in violation of the fundamental rights,
guaranteed under the Constitution of India, therefore he has
challenged the Order of Detention on the grounds mentioned in
the memo of the Writ Petition.
4. While making his submissions, the Petitioner has
raised a ground that the report as contemplated under Section
3(3) of the MPDA act, has not been sent to the State
Government "forthwith". It is his contention that the said
report has been sent after seven days of his detention.
Therefore, it has not been sent forthwith and with a sense of
urgency, by the Detaining Authority making the detention
illegal, as has been declared by this Court in number of judicial
pronouncements. However, the intent of Section 3(3) of the
MPDA Act, is unambiguous, it contemplates that the order
issued by the Detaining Authority has to be approved by the
State Government within 12 days of passing of the Order. The
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report is to be sent forthwith, in order to enable the State
Government to approve the said Order of Detention within the
prescribed period. The said provision does not lay down any
time limit for sending the report to the State Government, it
only contemplates approval to be granted by the State
Government within 12 days. Hence, there is no substance in
this ground raised by the Petitioner.
5. The learned counsel for the Petitioner has drawn
our attention to the Ground No.3 of Grounds of Detention,
wherein list of offenecs committed by the Petitioner is
reproduced by the Detaining Authority, while passing the
Order of Detention. The Detaining Authority has relied on
three offences and two confidential statements. The three
offences which have been relied, are C.R. No. 315 of 2023,
dated 12.12.2023, registered under Section 65(e) of the
Maharashtra Prohibition Act; the second offence is registered
vide C.R. No.320 of 2023, under Section 65(e) of the
Maharashtra Prohibition Act, on 21.12.2023 and the third
offence has been registered on 09.03.2024, vide C.R. No. 36 of
2024, registered under Section 65(e) of the Maharashtra
Prohibition Act.
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While statement of witness 'A' has been recorded on
01.04.2024 for the incident that had occurred in first week of
February, 2024 and statement of witness 'B' has been
recorded on 02.04.2024 for the incident that had occurred in
March, 2024. Relying on the three offences and two in-camera
statements, the Detaining Authority has recorded his
satisfaction that the Petitioner is a 'Bootlegger', within the
meaning of Section 2(b) of the MPDA Act. It is observed that,
the action taken against the Petitioner under normal law of the
land, was found to be insufficient and ineffective to deter him
from indulging in the bootlegging activities, therefore the
Order of Detention has been issued against the Petitioner.
6. The Detaining Authority has reproduced the
history of bootlegging activities of the Petitioner in para No.3
of the Grounds of Detention. While considering his bootlegging
activity, the Detaining Authority has observed that he is in a
'habit' of committing similar crimes, which is not a necessary
characteristic in order to attract Section 2(b) of the MPDA Act.
As far as 'habit' is concerned, it is a characteristic of a
'Dangerous Person', as defined under Section 2(b-1) of the
MPDA Act. The Petitioner is classified as a 'bootlegger'
therefore only the activities covered under the definition of
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bootlegger would be applicable to the Petitioner.
7. It is the contention of the Petitioner that the
Detaining Authority has passed the Order of Detention
mechanically and in a very casual and cavalier manner. The
order suffers from total non application of mind, resulting in
his Detention, hence it is required to be quashed and set aside.
When we have perused the Grounds of Detention,
the Detaining Authority has declared the Petitioner to be a
'bootlegger' as defined in the said Act. The bootlegging
activities of the Petitioner are alleged to have created threat to
the maintenance of public order in the area. The Petitioner is
alleged to have sold Hatbhatti Liquor, which is harmful and
dangerous to human health. Reliance is also placed on the
opinion given by the Civil Surgeon, District Civil Hospital,
Nashik, about likelihood of causing death and casualties by
consuming the hatbhatti liquor sold by the Petitioner.
While recording his bootlegging activity, the
Detaining Authority has referred to the cases registered
against him and observed that he is in 'habit' of committing
similar crimes. While declaring him to be a bootlegger, the
Detaining Authority has referred to the six offences, which
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have been re-produced in a tabular form. Those offences have
been referred in order to demonstrate that the Petitioner in a
habit of committing offences, under the Maharashtra
Prohibition Act. The Petitioner is classifed as a 'bootlegger'
under the MPDA Act, which is defined under Section 2(b),
which reads thus :
"2(b) "bootlegger" means a person, who
distills, manufactures,stores, transports,
imports, exports, sells or distributes any
liquor, intoxicating drug or other intoxicant
in contravention of any provisions of the
*Bombay Prohibition Act, 1949 and the rules
and orders made thereunder, or of any other
law for the time being in force or who
knowingly expends or applies any money or
supplies any animal, vehicle, vessel or other
conveyance or any receptacles or any other
materials whatsoever in furtherance or
support of the doing any of the above
mentioned things by or through any other
person, or who abets in any other manner the
doing of any such thing ;
8. The said definition of 'bootlegger' does not
contemplate habitual commission of offence under the
Maharashtra Prohibition Act. On the other hand a 'Dangerous
Person', defined under Section 2(b-1) of the MPDA Act,
contemplates habitual commission of offence, which reads thus
:
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[(b-1) "dangerous person" means a person, who
either by himself or as a member or leader of a
gang, habitually commits, or attempts to
commit or abets the commission of any of the
offences punishable under Chapter XVI or
Chapter XVII of the Indian Penal Code or any of
the offences punishable under Chapter V of the
Arms Act, 1959.]
Though, the Grounds of Detention communicated to the
Petitioner reflects that, the Detaining Authority has classified
the Petitioner as 'bootlegger' but, while doing so has also
applied the characteristics of a 'Dangerous Person'.
9. The Detaining Authority has observed in Ground
No.3 that, the Petitioner continued to indulge in bootlegging as
well as violent activities thereby causing danger to human life
and disturbance to the public order.
10. In Ground No.11, he has again observed that the
Petitioner is a 'bootlegger' and the normal laws are not
sufficient to curb his bootlegging and dangerous activities.
Though the Detaining Authority has classified the
Petitioner as 'bootlegger', however simultaneously he has also
referred the Petitioner's dangerous activities and has observed
that his activities have created terror in the mind of people of
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the locality. When a 'bootlegger' is causing disturbance to the
maintenance of the public order, only the activities as defined
under Section 2(a)(ii) as provided in the definition are to be
considered. Only those activities which are mentioned in the
definition would affect the maintenance of public order.
11. When a Detenu is classified under the MPDA Act,
the Detaining Authority is required to strictly adhere to the
definition of the category to which the Detenu is classified
while passing the Order of Detention. The Detaining Authority
has to satisfy himself about the activities of the Detenu which
are detrimental to the maintenance of public order. He cannot
be in two minds while issuing the Order of Detention. The
satisfaction of the Detaining Authority should be based on
sound grounds. The subjective satisfaction has to be clearly
communicated to the Detenu, whenever he is detained under
the Law of Preventive Detention. Since, the detention is a
precautionary measure which curtails the individual liberty
without being tried. The grounds should be clear and specific,
in order to enable the Detenu to file an appropriate
representation against such order. In the present case, the
Detaining Authority does not seem to be sure as to which
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activities of the Petitioner as a 'bootlegger' are causing
disturbance to the maintenance of public order.
12. This Court, in a reported Judgment of Anil Preetam
Kumbhar V/s. Commissioner of Police, Pune City and Ors.,
reported in 2018 SCC OnLine Bom 1967, had an occasion to
consider similar order passed by the Detaining Authority,
wherein this Court has observed that, the activities of a
bootlegger are dangerous and they ought to be prevented, but
the 'bootlegger' is not a 'Dangerous Person' as defined under
the Act. Even the definition of 'activities prejudicial to the
maintenance of the public order' is with reference to the
activities of each category of persons in the MPDA Act. The
activities in which the bootlegger is involved are brought
within the sweep of the Act by defining the term 'bootlegger'
and also defining each of the acts, which he commits. A
'Dangerous Person' has also been defined, alongwith the Acts
and activities attributable to him. The activities that would
result in prejudicially affecting the maintenance of public
order also have been defined. There cannot be any confusion in
the mind of the Detaining Authority. In the process of
recording his subjective satisfaction, he cannot make a
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departure and seek to bring him within the sweep of a
dangerous person. In that process if the acts attributed to him
are not possible to be brought within the sweep of the law by
terming them as that of a bootlegger and prejudicial to the
maintenance of public order, midway the Detaining Authority
cannot change the track and hold that in his/her opinion he is
also a Dangerous Person.
Thus, the subjective satisfaction has to be based on
the grounds which are precise, pertinent and relevant, specific
satisfaction has to be recorded in terms of law. The above
observation's would squarely apply to the case in hand, where
the Detaining Authority has tried to apply the characteristics
of a 'Dangerous Person' when the Petitioner is classified as
bootlegger.
13. The non-application of mind of the Detaining
Authority can be gathered from the following observations
recorded by him in the Grounds of Detention.
(i) The earlier offences of the Petitioner have been taken
into consideration, in order to reflect his 'habit' of committing
similar crimes, though he is classified as a 'bootlegger'. History
of crimes of an offender is always required to be shown only in
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respect of a person who is classified as a 'Dangerous Person'.
(ii) The last offence relied on by the Detaining Authority is
registered on 09.03.2024, while the Detention Order is issued
on 07.05.2024. The gap in the last offence and Order of
Detention has not been explained by the Detaining Authority,
as a result the live link is snapped.
Therefore, considering the above glaring instances
of non-application of mind by the Detaining Authority makes
the said Order of Detention unsustainable and therefore is
required to be quashed and set aside.
14. Accordingly, the Order of Detention dated
07.05.2024, issued by the Commissioner of Police, Nashik, is
hereby quashed and set aside and Rule is made absolute in
terms of prayer clause (B).
"B. Issue a Writ of Habeas Corpus to the
Respondents thereby quashing and setting aside
the impugned detention order dated 07.05.2024
bearing No. Ref: 2024/MPDA/DET-07/CB-157 issued
under section 3 of the M.P.D. Act 1981 by the
Respondent and on quashing the same the
Petitioner ordered for release forthwith;"
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)
Digitally
signed by
CHAITANYA
CHAITANYA ASHOK Chaitanya
ASHOK JADHAV
JADHAV Date:
2024.09.06
11:02:36
+0530
