Bombay High Court

Mulchand /O Rama Jadhav ( In Jail) vs State Of Maha Thr Section Officer, Maha ... on 2 April, 2025

Author: Nitin W. Sambre

Bench: Nitin W. Sambre

2025:BHC-NAG:3428-DB




                                                   1                    wp160.2025

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH : NAGPUR

                          CRIMINAL WRIT PETITION NO.160/2025

              Mulchand s/o Rama Jadhav,
              age 65 Yrs., Occ. Labour,
              R/o Mohana Bk., Tq. Mehkar,
              Dist. Buldana.
              (Presently lodged in Buldana Jail)               ...    Petitioner
                       - Versus -
              1.   State of Maharashtra, through
                   Section Officer to the Govt. of
                   Maharashtra, Home Department
                   (Special), Mumbai - 32.

              2.   The District Magistrate and
                   the Collector, Buldana.

              3.   The Superintendent of Police,
                   Buldana, Distt. Buldana.

              4.   Police Station Officer,
                   P.S. Janefal, Tq. Mehkar,
                   Dist. Buldana.                              ...   Respondents
                             -----------------
              Mr. A.J. Thakkar, Advocate with Mr. Sagar A. Thakkar, Advocate
              for the petitioner.
              Mr. A.B. Badar, A.P.P. for respondent Nos.1 to 4.
                           ----------------
              CORAM: NITIN W. SAMBRE & MRS.VRUSHALI V. JOSHI, JJ.
              DATE OF RESERVING THE JUDGMENT: 20.3.2025.
              DATE OF PRONOUNCING THE JUDGMENT: 2.4.2025.
                                       2                  wp160.2025

ORAL JUDGMENT (Per Mrs. Vrushali V. Joshi, J.)

Rule. Rule made returnable forthwith. Heard finally

with the consent of learned Advocates for the parties.

2. By the present petition, the petitioner seeks to

invoke the extraordinary writ jurisdiction of this Court to quash

and set aside the detention order passed by respondent No.2 on

9.9.2024 which was confirmed by respondent No.1 on

23.10.2024 under the provisions 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 (for short "MPDA Act").

3. The detaining authority has relied upon the following

offences in order to pass the detention order:-

(i) Crime No.415/2021 registered under Section 65(E)

of the Maharashtra Prohibition Act, 3 wp160.2025

(ii) Crime No.181/2022 registered under Section 65(E)

of the Maharashtra Prohibition Act,

(iii) Crime No.303/2022 registered under Section 65(E)

of the Maharashtra Prohibition Act,

(iv) Crime No.46/2023 registered under Section 65(E) of

the Maharashtra Prohibition Act,

(v) Crime No.133/2023 registered under Section 65(E)

of the Maharashtra Prohibition Act,

(vi) Crime No.201/2023 registered under Section 65(E)

of the Maharashtra Prohibition Act,

(vii) Crime No.340/2023 registered under Section 65(E)

of the Maharashtra Prohibition Act and

(viii) Crime No.109/2024 registered under Section 65(E)

of the Maharashtra Prohibition Act.

4. One of the major grounds on which the petitioner has

relied is mentioned as under:-

4 wp160.2025

(a) The statements of confidential witnesses have not

been verified by the detaining authority. Moreover, both the

statements are cyclostyled copies of each other. Hence the

subjective satisfaction reached by the detaining authority is

vitiated.

5. Learned Advocate for the petitioner Mr. Thakkar

submitted that a detailed representation was submitted to

respondent No.1 but the detaining authority erred in not

examining the representation submitted by the petitioner. He

further stated that a bare perusal of the impugned order clearly

shows that no subjective satisfaction has been recorded about the

unwillingness of the witnesses/victims to come forward and give

statement against the petitioner.

6. Per contra, learned A.P.P. Mr. Badar vehemently

opposed the submissions made by the petitioner. He submitted

that the petitioner through his Advocate made a representation to 5 wp160.2025

respondent No.1 which has been decided after granting ample

opportunity of hearing to the petitioner and thereafter the

detention order was confirmed. Further, learned A.P.P argued that

the detaining authority after verifying and considering all the

material placed before it had a dialogue with the authority who

had recorded and verified the in-camera statements and

thereafter only the detaining authority has passed the detention

order. Furthermore, on perusal of the grounds of detention it

appears that the criminal activities of the petitioner have created a

sense of fear in the minds of people. Therefore, the detaining

authority has rightly reached the subjective satisfaction.

7. The petitioner is detained as a bootlegger. As

mentioned above, eight offences are considered for passing the

detention order against the petitioner. The offences are from

2021 to 2024. It appears that stale offences are considered for

passing the detention order. The C.A. Reports in earlier six

offences are on record, however, it is the requirement of the Act to 6 wp160.2025

consider the recent crimes within six months to pass the detention

order. C.A. Reports in recent crimes are not produced and

considered by the detaining authority. Stale offences have no

bearing on the provability of the detenu engaging in criminal

activities.

8. The petitioner has relied on the judgment in Khaja

Bilal Ahmed V/s. State of Telangana reported in (2020) 13 SCC

632 the Hon'ble Apex Court has held that it is not open to the

detaining authority to simply refer to stale incidents and hold

them as the basis of an order of detention. Such stale material will

have no bearing on the probability of the detenu engaging in

prejudicial activities in the future.

9. The C.A. Reports of earlier six offences are not

sufficient to come to the conclusion that the bootlegging activity

of the petitioner is prejudicial to public health; one Toxicology

Report of Civil Surgeon is also filed along with record, however, it 7 wp160.2025

is not considered while passing the detention order. If we

consider it, it appears that opinion is given if the liquor containing

ethyl alcohol is consumed in large quantity then it is injurious to

health. It depends on consumption of quantity of liquor.

Therefore, though C.A. Reports and opinion are placed on record,

they are of no use. The C.A. Reports in recent crime are neither

considered nor made available.

10. The Hon'ble Apex Court in the matter of District

Collector, Ananthapur V/s. V. Laxmanna reported in 2005 DGLS

(SC) 2745 in Paragraph Nos.7 and 8 has made following

observations:-

"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 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 8 wp160.2025

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."

11. Without considering recent C.A. Report the

detention order is passed which cannot be sustained in the eye of

law.

12. Furthermore, two confidential statements which are

considered for passing the detention order is a mere formality.

Two identical statements are considered wherein the general

character of the petitioner is mentioned by both the witnesses.

9 wp160.2025

Stereotype statements are considered for passing the detention

order.

13. The Hon'ble Apex Court in the recent judgment

about stereotype statements in case of Arjun S/o Ratan Gaikwad

V/s. The State of Maharashtra and others in Criminal Appeal

No.5204/2024 (Arising out of SLP (Cri.) No.12516/2024)

decided on 11.12.2024 has in para 17 has observed as under:-

"17. Insofar as statements of the two unnamed witnesses are concerned, the allegations are as vague as it could be. In any case the statements which were stereotype even if taken on its face value would show that the threat given to the said witnesses is between the appellant and the said witnesses. The statements also do not show that the said witnesses were threatened by the appellant in the presence of the villagers which would create a perception in the mind of the villagers that the appellant herein is a threat to the public order."

14. On the basis of C.A. Reports in earlier crimes the

order for detention cannot be passed. It is clear that there is

non-availability of the C.A. Reports in recent crimes to prove that

the liquor is injurious to the health of public at large, no public

order is disturbed, stale offences are considered since 2021 10 wp160.2025

whereas it is necessary to consider the offences within the period

of six months from the date of passing the detention order or

from the date of sending the proposal. The statements are also not

helpful to pass the detention order they being identical statements

made by both the witnesses.

15. For the aforesaid reasons, the detention order passed

by respondent No.2 dated 9.9.2024 which was confirmed by