Bombay High Court
Madhukar Aawba Hegade vs State Of Maharashtra And Anr on 17 April, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S. M. Modak
2025:BHC-AS:17858-DB
Gokhale 1 of 12 7-wp-1319-25
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1319 OF 2025
Madhukar Aawba Hegade ..Petitioner
Versus
The State of Maharashtra & Ors. ..Respondents
__________
Mr. Harshvardhan Suryavanshi for Petitioner.
Mr. S. V. Gavand, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL &
S. M. MODAK, JJ.
DATE : 17 APRIL 2025
JUDGMENT:
(Per Sarang V. Kotwal, J.)
1. Heard Mr. Harshvardhan Suryavanshi, learned counsel
for the Petitioner and Mr. Gavand, learned APP for the State.
2. The Petitioner is a 70 year old person. He has challenged
the Detention Order issued by the Respondent No.2-District
Magistrate, Kolhapur, under section 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
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2025.04.22
10:27:52
+0530
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Act, 1981 (for short 'MPDA Act'), dated 23.01.2025, bearing
No.Desk-7/Home/Pol/MPDA/SR/01/2025. Apart from the
Detention Order, the Detaining Authority passed the Committal
Order directing that the Petitioner be detained at Yerwada Central
Prison, Pune.
3. The Petitioner was served with the grounds of detention.
The grounds of detention are divided in different paragraphs. The
Paragraph-3 lists 10 offences and 2 preventive actions taken
against the petitioner in the past. Those offences were registered at
the instance of Kagal police station, or State Excise Flying Squad,
Kolhapur, or Sub-Inspector, State Excise Department, Kagal. All
those offences were U/s.65(e) of the Maharashtra Prohibition Act,
1949 (for short 'said Act'). Those offences were registered between
the period 14.04.2021 to 12.06.2023. In all these offences, the
cases were pending before the competent courts. Two preventive
actions were U/s.110 of the Cr.P.C. and U/s.93 of the said Act.
Those actions were taken by Kagal police station in the year 2021
and by the State Excise Department, Kagal, in the year 2023. On
both these occasions, a bond was taken from him for a period of
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one year.
4. The paragraph-4 of the grounds of detention mentions
that, in the recent past the petitioner's involvement was noticed in
three offences and in two 'in-camera' statements. It was specifically
mentioned by the Detaining Authority that, while passing the
Detention Order, the Detaining Authority relied upon these three
registered offences and the two confidential statements mentioned
in paragraph-5(A) and 5(B). The registered offences were as
follows:
i) C.R.No.147 of 2024 registered at the instance of
Inspector, State Excise Department, Kagal,
U/s.65(e) and 98 of the said Act. On that date,
on the basis of information the petitioner was
seen suspiciously wandering near one house. He
was taken into custody and the house was
searched. During search, one plastic can of 35
liters of capacity, one plastic bucket and four steel
glasses were found in the corner. 25 liters of
country liquor was found in that house and,
therefore, the offence was registered. However,
the petitioner was not arrested; instead, Notice
U/s.35(3) of the Bhartiya Nagarik Suraksha
Sanhita, 2023 (for short 'BNSS') was served on
him.
ii) C.R.No.162 of 2024 registered at the instance of
the Inspector, State Excise Department, Kagal,
U/s.65(e) and 98 of the said Act, on 26.08.2024,
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on similar allegations. 30 Liters of country liquor
was found in one house. Again in this case, the
petitioner was not arrested. He was given Notice
U/s.35(3) of the BNSS.
iii) C.R.No.211 of 2024 registered at the instance of
the Inspector, State Excise Department, Kagal,
under sections 65(e) and 98 of the said Act, on
25.10.2024. On that occasion, 30 sealed bottles
of 180 ml capacity were found in petitioner's
possession. Again in this case, the petitioner was
not arrested and he was served with a notice
U/s.35(3) of the BNSS.
In C.R.No.211 of 2024, importantly, it is mentioned by
the Detaining Authority that the samples taken during the
investigation were sent for chemical analysis and the report was
awaited.
The C.A. report was available only in the first two
offences mentioning that, there was 30.87% and 30.93% v/v of
ethyl alcohol was found in those samples. Significantly, no such
report was available in the third case when the Detention Order
was passed.
5. The 'in-camera' statement of the witness 'A' was recorded
on 03.12.2024. It refers to general allegations that the Petitioner
was indulging in the activities of selling country liquor near his
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residence. But the statement was specifically in respect of the
particular incident which had taken place in the first week of
November 2024 at 5:00p.m. At that time, this witness was
allegedly threatened by the Petitioner that if the witness made a
complaint about the petitioner's business then the Petitioner would
not leave him alive. This 'in-camera' statement was verified by the
Deputy Superintendent, State Excise Department, Kolhapur, on
23.12.2024.
6. The 'in-camera' statement of witness 'B' was recorded on
04.12.2024. Again here general allegations were made about the
petitioner indulging in the business of selling country liquor near
his residence. The statement was with reference to a particular
incident which had allegedly taken place in the second week of
November 2024. Again the petitioner had allegedly threatened this
witness. This 'in-camera' statement was verified by the Deputy
Superintendent, State Excise Department, Kolhapur, on
24.12.2024.
This is the material, based on which, the Detention
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Order was passed.
7. Learned counsel for the Petitioner submitted that the
grounds of detention show non application of mind on the part of
Detaining authority because in Paragraph-6 the Detaining
Authority had mentioned that the action taken against the
Petitioner under the normal law of land was found to be
insufficient. This satisfaction is incorrect because the Petitioner
was not even arrested in the three registered offences. Learned
counsel further submitted that, in C.R.No.211 of 2024 referred to
herein above, the C.A. report was not even available, therefore, the
Detaining Authority could not have taken that offence into
consideration to reach the subjective satisfaction that the Petitioner
was indulging in the bootlegging activities. He submitted that the
'in-camera' statements referred to the vague allegations about the
petitioner indulging in such activities. The incidents mentioned by
both these witnesses 'A' and 'B' referred to the threats issued to
them, which would at the highest fall within the meaning of
'dangerous person' as defined U/s.2(b-1) of the MPDA Act, but
these particular incidents do not cover the definition of
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'Bootlegger' as mentioned U/s.2(b) of the said Act. He submitted
that, on both these counts, the Detention Order is liable to be set
aside. He relied on the Judgment of a Division Bench of this Court,
at Aurangabad, passed in the case of Devidas Lalji Ade Versus The
State of Maharashtra1.
8. Learned APP submitted that the Petitioner was
continuously indulging in these activities which is evident from the
fact that recent three offences were registered against him and
there were two 'in-camera' statements. He submitted that, though,
he was not arrested in the registered offences, his continuous
activities necessitated issuance of Detention Order. Mr. Gavand
further submitted that the 'in-camera' statements also referred to
the bootlegging activities on the part of the petitioner and,
therefore, the Detaining Authority has rightly relied on those 'in-
camera' statements.
9. We have considered these submissions. The Detaining
Authority, as mentioned earlier, in paragraph-4 of the grounds of
detention has specifically mentioned that, while passing the
1 2023 ALL M.R. (Cri.) 130
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Detention Order, he had relied only on the three registered
offences i.e. C.R.No.147 of 2024, C.R.No.162 of 2024 and
C.R.No.211 of 2024, as well as, two 'in-camera' statements of
witnesses 'A' and 'B'. Therefore, the grounds of detention will have
to be tested on the basis of this particular material. In this case, as
rightly submitted by the learned counsel for the Petitioner, in
C.R.No.211 of 2024 the C.A. report was still awaited. Therefore,
there was no concrete material to reach the subjective satisfaction
that the subject matter of the said C.R. i.e. the incident dated
25.10.2024 attracted any of the activities which are mentioned in
the definition of 'bootlegger' defined U/s.2(b) of the MPDA Act.
This is the first lacuna in the Detention Order which shows non
application of mind. The Detaining Authority could not have relied
on the said registered offence.
10. The Detaining Authority in Paragraph-6 has categorically
stated that the action taken against the petitioner under the
normal law of land is found to be insufficient and ineffective to
deter the petitioner from indulging in bootlegging activities
prejudicial to the maintenance of public order. In this context, it is
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very significant that, in none of the registered offences mentioned
herein above which are the subject matter of passing of the
Detention Order, the detenue was arrested. Therefore, there is no
basis to reach a conclusion that the normal law of the land was
ineffective to curb his activities. The concerned authorities had not
even thought it fit to arrest him in connection with those activities.
Therefore, there was no basis to reach his conclusion or
satisfaction that the normal law of land was ineffective to curb the
activities of the petitioner. In that context, learned counsel has
rightly relied on the case of Devidas (supra). The relevant
paragraph-18 from that Judgment is as follows:
"18. In the present case, the Petitioner was not even
arrested in the three registered offences and, therefore, these
observations are applicable to the present case. Learned APP
submitted that the Petitioner's activities are prejudicial to the
maintenance of public order, however, the detaining
authority has failed to record a satisfaction as to why
ordinary law of the land was ineffective in curbing his
activities. Merely stating that ordinary law of the land was
not effective to curb his activities is not enough. In the
Petitioner's case no steps were taken under normal law to
curb his activities and hence it can not be said they were
ineffective. Therefore resorting to passing of the detention
order was not necessary. It shows non-application of mind
on the part of the detaining authority. In this situation, it was
not necessary to have resorted to this extraordinary remedy
without exercising the powers under the ordinary law."
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11. If the petitioner was arrested in either of these offences,
he could have been released on bail within a short time, but
passing of the Detention Order has resulted into possibility of
keeping him in custody for one year.
12. As far as the 'in-camera' statements are concerned, the
verification was made about two particular incidents mentioned by
the Witnesses 'A' and 'B'. Perusal of those 'in-camera' statements
regarding those instances show that both these witnesses were
threatened, but that particular activity would attract mischief
U/s.2(b-1) of the MPDA Act; which defines 'dangerous person'.
'Bootlegger' is defined U/s.2(b) of the MPDA Act and
the activities are entirely different. The said definition is as
follows:
"(b) "bootlegger" means a person, who distills, manufactures,
stores, transports, imports, exports, sells or distributes any
liquor, intoxicating drug or other intoxicants 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
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above mentioned things by or through any other person, or
who abets in any other manner the doing of any such thing;"
Therefore, the incidents of issuing threats do not fall
within the activities listed in this definition. The said definition
refers to the activities of a person who distills, manufactures,
stores, transports, imports, exports, sells or distributes any liquor,
intoxicating drug or other intoxicant in contravention of the said
Act. Issuing threats would fall within the meaning of activities
committed by a dangerous person U/s.2(b-1) of the MPDA Act.
Therefore, the particular incidents mentioned by both these
witnesses would not attract the provision of the MPDA Act to
enable the Detaining Authority to reach the conclusion that the
petitioner was a 'bootlegger' within the meaning of MPDA Act.
Therefore, the subjective satisfaction of the Detaining Authority
based on those 'in-camera' statements would not be proper. Rest of
the description in those 'in-camera' statements are general and
vague, for which no effective representation could have been made
by the Petitioner; thereby affecting his valuable right of making
earliest effective representation against the Detention Order.
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13. As a result of the above discussion, it is clear that the
Detention Order is not sustainable and is liable to be set aside.
14. Hence, the following order:
ORDER
i) The Petition is allowed and the Rule is made
absolute in terms of prayer clause (B); which
reads thus:
"Issue a Writ of Habeas Corpus to the Respondents,
thereby quashing and setting aside the impugned
detention order dated 23.01.2025 viz MPDA Order
number: Desk-7/Home/Pol/ MPDA/SR/01/2025
issued under section 3 of M.P.D Act 1981 by the
Respondent and on quashing the same the Petitioner
ordered for release forthwith."
ii) The Petitioner be released forthwith if not
required in any other case.
iii) The Petition is disposed of.
(S. M. MODAK, J.) (SARANG V. KOTWAL, J.)
