Bombay High Court
Manoj Mohan Beniwal vs State Of Maharashtra, Thr. Home Dept, ... on 7 April, 2025
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2025:BHC-NAG:3713
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.135/2025
Manoj Mohan Beniwal
Aged about 50 years, Occ. Labourer
R/o. Pariharpura, Wadali, Camp,
Taluka and Distt. Amravati 444 601. ...Petitioner
Santosh Mohan Beniwal
Aged about 46 years,
R/o. Pariharpura, Wadali,
Taluka and Distt. Amravati
Lodged in Central Prison,
Nagpur. ...Detenu
- Versus -
1. State of Maharashtra,
Through Home Department (Special),
2nd Floor, Mantralaya,
Mumbai 400 032.
2. Commissioner of Police,
Amravati, District Amravati.
3. Deputy Commissioner of Police,
Zone-1, Amravati.
4. Assistant Commissioner of Police,
Frezarpura Zone, Amravati.
5. Senior Police Inspector,
Police Station, Frezarpura,
District Amravati. ... Respondents
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-----------------
Mr. Pankaj Navlani, Advocate for the petitioner.
Mr. N.S. Rao, A.P.P. for respondent Nos.1 to 5.
----------------
CORAM: NITIN W. SAMBRE & MRS.VRUSHALI V. JOSHI, JJ.
DATE OF RESERVING THE JUDGMENT: 27.3.2025.
DATE OF PRONOUNCING THE JUDGMENT: 7.4.2025.
ORAL JUDGMENT (Per Mrs. Vrushali V. Joshi, J.)
Rule. Rule made returnable forthwith. Heard finally
by consent of learned Advocates for the parties.
2. By this writ petition, the petitioner, brother of the
detenu, has challenged the detention order dated 08.11.2024
passed by the respondent No.2 and approved by the respondent
No.1 on 18.11.2024 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, 1981 (for short "M.P.D.A. Act") tagging him as
a "bootlegger" under section 2(b) of the said Act.
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3. The detaining authority has given consideration to
two offences and two in-camera statements in order to pass the
detention order as under:-
(i) Crime No.791/2024 registered on 25.9.2024 at
Frezarpura Police Station under Section 65(e)(f) of the
Maharashtra Prohibition Act.
(ii) Crime No.826/2024 registered on 11.10.2024 at
Frezarpura Police Station under Section 65(f) of the Maharashtra
Prohibition Act.
4. The grounds raised by the petitioner are as under:-
(a) In Crime No.791/2024 the Chemical Analyzer's
report only mentions the percentage of ethyl alcohol in water and
it nowhere mentions the opinion of the Civil Surgeon, District
Hospital, Amravati stating about the nature and quality of the
contraband to the effect that consumption of such contraband is
injurious to health.
(b) In Crime No.826/2024, as per the C.A. report, there
is ethyl alcohol in the sample and as per the opinion of the
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District Surgeon Office, General Hospital, Amravati ethyl alcohol
only when consumed in excess amount can be hazardous to
human health. Hence it does not appear that it will be prejudicial
to the maintenance of the public order.
5. Learned Advocate for the petitioner Mr. Navlani
submitted that in Crime No.791/2024, the detenu was alleged to
have been in possession of 25 litres of distilled liquor when he
came to be arrested by the concerned authorities, hence, there
arises no question of disturbance of public order. Thus, the
detaining authority erred in taking into consideration of the crime
mentioned herein above for passing the detention order.
6. The petitioner further submitted that the in-camera
statements of the confidential witnesses pertain to individual
incidents. Furthermore, the detaining authority nowhere in the
verification of the in-camera statements mentioned about the
unwillingness of the confidential witnesses to speak against the
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petitioner. It was further stated by the learned Advocate for the
petitioner that the detaining authority did not interact with the
sponsoring authority who recorded the in-camera statements or
has recorded satisfaction after the interaction as to satisfy itself
that the statements of the confidential witnesses were genuine.
7. The petitioner has relied on the decision of this Court
in Shaikh Hussain @ Shahrukh Shaikh Fatru v/s. State of
Maharashtra, Criminal Writ Petition No.873/2022, which cites
the judgment of this Court in Shahjahan w/o Kalimkhan
Samshadkhan Pathan V/s. State of Maharashtra & Anr. reported
in 2016 ALL MR (Cri) 4233, which observed as under:-
8. "In the absence of any record of the
statements being seen by the Commissioner of the
Police thereby affecting his subjective satisfaction, the
petitioner is entitled to succeed in the petition. These
observations are clearly attracted to the matter in
hand. There is no contemporaneous material placed
before us to show that the detaining authority had in
fact verified the statements and had any interaction
with the Assistant Superintendent of Police, who
recorded his report. Similarly, by reproducing the
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contents of statements of witness A and B in the
grounds of detention without the material to show
that the detaining authority had in fact interacted
either with the witnesses or discussed it with the
authority, who verified such statements, the order of
detention stands vitiated."
8. Learned A.P.P Mr. Rao, has filed affidavit-in-reply
and has strongly opposed the contentions of the petitioner by
placing reliance on the detention order passed by respondent
No.2. He argued that the witnesses came forward to speak
against the detenu only if their identities were kept confidential
which shows imminent threat of the detenu. It was further stated
that the in-camera statements were recorded by Senior Police
Inspector, Frezarpura, Amravati City. The proposal was then
forwarded through the Assistant Commissioner to be submitted
to the Commissioner of Police, Amravati. It is submitted that the
Assistant Commissioner verified the in-camera statements by
calling upon the witnesses. The Deputy Commissioner of Police,
Zone-I, Amravati City, then interacted with the Assistant
Commissioner regarding the correctness of the in-camera
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statements and after being subjectively satisfied about the
correctness reached at a conclusion that the detenu is a
'Bootlegger' and passed the detention order.
9. Learned A.P.P further contended that the
Investigating Officer issued a letter to the Civil Surgeon,
Amravati, seeking opinion upon the Chemical Analyzer's report
to which the Civil Surgeon opined that the seized spurious liquor
is harmful to human consumption irrespective of quantity found
in the samples and is adverse to the public health. Hence, the
detaining authority has rightly arrived at the subjective
satisfaction that the detenu is a 'Bootlegger' and needs to be
detained as his criminal activities are prejudicial to the public
order.
10. Heard both sides and perused the record.
11. Though the detention order is assailed on several
grounds, we propose to consider only one ground as to whether
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the non-supply of the documents like opinion of the Medical
Officer about the C.A. report as to whether the liquor is injurious
to the health of public at large has affected the right of the detenu
to make an effective representation under Article 22(5) of the
Constitution of India.
12. The petitioner who is the brother of the detenu has
stated that relying on the two offences under the Maharashtra
Prohibition Act and the two confidential statements of the
witnesses the detention order is passed. In this case, it appears
that the C.A. reports in both the offences are available. Ethyl
alcohol is found in samples of both the offences. The opinion of
the medical expert is also available in one of the crimes.
13. The learned Advocate for the petitioner has stated
that though it is not specifically mentioned in the petition that the
medical opinion is not supplied to the petitioner it is mentioned
in the petition that incomplete documents are supplied to the
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petitioner and, therefore, his right of effective representation is
infringed.
14. While arguing the matter, learned Advocate for the
petitioner has stated that the opinion of the medical expert is not
supplied and, therefore, there is infringement of Article 22(5) of
the Constitution of India.
15. The learned Advocate has relied on the judgment of
the Hon'ble Apex Court in Jaseela Shaji V/s Union of India and
others reported in (2024) 9 SC 53 wherein it is observed that it is
necessary to furnish copies of each and every document to which
a casual or passing reference may be made in the narration of facts
and which are not relied upon by the detaining authority, need
not be furnished to the detenu, however, failure to furnish copies
of document/documents, relied on by the detaining authority
which would deprive the detenu to make an effective
representation, would certainly amount to violation of the
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fundamental right guaranteed under Article 22(5) of the
Constitution of India.
16. In the case in hand, the C.A. reports are available and
the opinion of medical expert on said C.A. reports whether
quantity found in the sample is injurious to health of the public is
necessary and if it is injurious then to what extent. As said
document is not supplied to the detenu it definitely affects the
right guaranteed under Article 22(5) of the Constitution of India.
Hence on this ground alone the order passed by the detaining
authority stands vitiated. The writ petition is allowed. The
impugned order dated 08.11.2024 passed by respondent No.2
and confirmed by respondent No.1 on 18.11.2024 is quashed and
set aside. The petitioner be set at liberty forthwith, if not required
in any other crime.
(MRS.VRUSHALI V. JOSHI, J.) (NITIN W. SAMBRE, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PA To Honourable Judge
Date: 08/04/2025 17:53:41
