Bombay High Court
Rani Shankar Kale vs The State Of Maharashtra And Others on 5 February, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:3982-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.2067 OF 2024
Rani Shankar Kale
Age: 36 year, Occu.: Labour,
R/o. Sheregalli, Kalamb,
Tq. Kalamb, Dist. Dharashiv,
(Osmanabad). .. Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
Home Department,
Mantralaya, Mumbai-32.
2. The District Magistrate/Collector,
Dharashiv, (Osmanabad),
District Dharashiv, (Osmanabad).
3. The Superintendent of Police
D.S. P. Office, Dharashiv, (Osmanabad)
Dist. Dharashiv, (Osmanabad)
4. The Police Inspector,
Police Station, Kalamb,
Tq. Kalamb, Dist. Dharashiv,
(Osmanabad). .. Respondents
...
Mr. A. V. Indrale Patil, Advocate for the petitioner.
Mr. A. M. Phule, APP for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 05 FEBRUARY 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. A. V. Indrale for the petitioner
and learned APP Mr. A. M. Phule for the respondents - State.
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2. Rule. Rule made returnable forthwith. The petition is
heard finally with the consent of the learned Advocates for the
parties.
3. The petitioner challenges the detention order dated
29.11.2024 bearing D.O. No.2024/DC/MAG-3/KAVI-490 passed by
respondent No.2 as well as the approval order dated 09.12.2024
and the confirmation order dated 11.10.2024 passed by
respondent No.1, by invoking the powers of this Court under
Article 226 of the Constitution of India.
4. Learned Advocate for the petitioner has taken us through
the impugned orders and the material which was supplied to the
petitioner by the detaining authority after passing of the order.
He submits that the detaining authority has considered all the
eight offences for passing the impugned order i.e. (i) Crime No.51
of 2022 dated 04.02.2022, (ii) Crime No.122 of 2022 dated
13.04.2022, (iii) Crime No.271 of 2022 dated 15.07.2022, (iv)
Crime No.319 of 2022 dated 19.08.2022, (v) Crime No.323 of
2023 dated 15.07.2023, (vi) Crime No.519 of 2023 dated
13.12.2023, (vii) Crime No.84 of 2024 dated 21.02.2024 and (viii)
Crime No.359 of 2024 dated 02.10.2024. All these offences were
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registered with Kalamb Police Station, District Dharashiv for the
offence punishable under Section 65(e) of the Maharashtra
Prohibition Act. Learned Advocate for the petitioner submits that
the impugned order suffers from live link. The petitioner is
involved in eight offences since 2022 and all the offences have
been considered by the detaining authority for passing the
detention order, which is illegal. He further submits that only in
respect of Crime No.51 of 2022 and Crime No.319 of 2022, CA
Reports have been received and in respect of other six offences,
CA reports were not received. He further submits that in all the
offences the petitioner was given notice under Section 41(1)(a) of
the Code of Criminal Procedure and was not arrested at all. As
regards the statements of in-camera witnesses 'A' and 'B' are
concerned, the incident in both the cases are personal in nature.
At the most law and order situation would have been created.
Therefore, the impugned order is illegal and cannot be allowed to
sustain.
5. Per contra, the learned APP strongly supports the action
taken against the petitioner. He submits that the petitioner is a
dangerous person as defined under Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders,
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Dangerous Persons and Video Pirates Act, 1981 (hereinafter
referred to as the "MPDA Act"). The detaining authority has relied
on the two in-camera statements and the subjective satisfaction
has been arrived at. There is no illegality in the procedure
adopted while recording the in-camera statements of the
witnesses. Due to the terror created by the petitioner, people are
not coming forward to lodge report against him and, therefore, it
affects the public order. Learned APP relies on the affidavit-in-
reply of Dr. Sachin Ombase, the District Magistrate,
Dharashiv/detaining authority. He supports the detention order
passed by him and tries to demonstrate as to how he had arrived
at the subjective satisfaction. He further states that his order has
been approved by the State Government and also by the Advisory
Board. Thereafter, the confirmation has been given. The material
before the detaining authority was sufficient to arrive at a
conclusion that the petitioner was undertaking bootlegging
activities and the liquor that was seized from him in some of the
matters contain ethyl alcohol. Further, the statements of in-
camera witnesses 'A' and 'B' show that ordinary law would not
have curtailed the bootlegging activities of the petitioner.
Therefore, no fault can be found in the impugned order.
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6. Before considering the case, we would like to take note of
the legal position as is emerging in the following decisions :-
(i) Nenavath Bujji etc. Vs. State of Telangana and
others, [2024 SCC OnLine SC 367],
(ii) Ameena Begum Vs. The State of Tamilnadu and
Ors., [2023 LiveLaw (SC) 743];
(iii) Kanu Biswas Vs. State of West Bengal, [1972 (3)
SCC 831] wherein reference was made to the decision in Dr.
Ram Manohar Lohia vs. State of Bihar and Ors. [1966
(1) SCR 709];
(iv) Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta,
[1995 (3) SCC 237];
(v) Pushkar Mukherjee and Ors. Vs. The State of West
Bengal, [AIR 1970 SC 852];
(vi) Phulwari Jagdambaprasad Pathak Vs. R. H.
Mendonca and Ors., (2000 (6) SCC 751) and;
(vii) Smt. Hemlata Kantilal Shah Vs. State of
Maharashtra and another, [(1981) 4 SCC 647].
7. Taking into consideration the legal position as summarized
above, it is to be noted herein as to whether the detaining
authority while passing the impugned order had arrived at the
subjective satisfaction and whether the procedure as
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contemplated has been complied with or not. In Nenavath Bujji
(Supra) itself it has been reiterated by the Hon'ble Supreme Court
that illegal detention orders cannot be sustained and, therefore,
strict compliance is required to be made, as it is a question of
liberty of a citizen. The first and the foremost fact that is required
to be considered is that there should be a live link to arrive at a
conclusion that the detenu is carrying out any bootlegging
activity or is a dangerous person. It appears that the petitioner is
involved in eight offences since 04.02.2022. The detaining
authority has considered all the eight offences to arrive at a
conclusion that the petitioner is doing bootlegging activities. It
appears that CA reports in respect of Crime No.51 of 2022
registered on 04.02.2022 and Crime No.319 of 2022 registered on
19.08.2022 were before the detaining authority which showed
that the percentage of the ethyl alcohol in the substance therein
is 6% and 3% respectively. In respect of other offences, the CA
reports were not before the detaining authority on the date of
passing of the detention order. Therefore, how much percentage
of ethyl alcohol was found therein could not have been gathered
by the detaining authority. Now, taking into consideration the
date of the impugned order i.e. 10.06.2024 and as in respect of
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other offences CA reports were not received, the detaining
authority could have relied only on Crime No.51 of 2022
registered on 04.02.2022 and Crime No.319 of 2022 registered on
19.08.2022 to consider that there was ethyl alcohol found in the
substance seized in the matters. That means, in respect of the
activity which had taken place more than one and half year ago
the detaining authority was considering whether to detain the
petitioner or not. Therefore, we hold that there was in fact no live
link which could have been considered by respondent No.2.
Further, it appears that Chapter Case No.04 of 2022 dated
25.05.2022 was proposed under Section 93 of the Maharashtra
Prohibition Act, however, the said case was closed. Thereafter,
again Chapter Case No.01 of 2024 dated 13.01.2024 under
Section 93 of the Maharashtra Prohibition Act was proposed,
however, after taking interim bond the said case was stayed.
Section 93 of the Maharashtra Prohibition Act, 1949 prescribes
for demand of security for good behaviour to be taken from such
person. Section 93 (1) of the said Act empowers a District
Magistrate or a Sub-Divisional Magistrate, whenever he receives
information that any person within the local limits of his
jurisdiction habitually commits or attempts to commit or abets
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the commission of any offence punishable under this Act, such
Magistrate may require such person to show cause why he should
not be ordered to execute a bond, with sureties, for his good
behaviour for such period, as the Magistrate may direct. If the
said procedure would have been taken to the logical end, the
Magistrate i.e. respondent No.2 was entitled/empowered to take
such bond of good behaviour maximum for a period of three
years. Further, sub-section (2) of Section 93 of the said Act
prescribes that the provisions of Code of Criminal Procedure
would be applicable to any proceedings under sub-section (1) of
Section 93 as if bond referred to therein were a bond required to
be executed under Section 110 of the said Code. Section 110 of
the Code then prescribes the procedure for breach of such bond.
That means there is inbuilt mechanism in the Maharashtra
Prohibition Act to curtail the activities of a habitual offender.
These proceedings under the Act were not taken to the logical
end.
8. Perusal of the statements of in-camera witnesses 'A' and 'B'
would show that the incident in both the cases are personal in
nature and at the most law and order situation would have been
created. Those statements have been considered by the detaining
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authority and even the detaining authority says that the
petitioner is a bootlegger. In fact, except the offences under the
Maharashtra Prohibition Act, there are no other offences against
him. To brand the person as a 'bootlegger', there has to be a
proper evidence. Therefore, these grounds do not justify the
impugned order.
9. Further, in all the offences it can be seen that the petitioner
was given notice under Section 41(1)(a) of the Code of Criminal
Procedure and was not arrested at all. This aspect ought to have
been properly considered. Reliance can be placed on the recent
decision of the Hon'ble Supreme Court in Arjun s/o Ratan
Gaikwad Vs. The State of Maharashtra and others, [Criminal
Appeal (Arising out of SLP (Crl.) No.12516 of 2024 dated
11.12.2024 :: 2024 INSC 968], wherein it has been observed
that :-
"16. In the present case, all the six cases are
with regard to selling of illicit liquor. Though six
cases are registered, the Excise Authority did not find
it necessary to arrest the appellant even on a single
occasion. It would have been a different matter, had
the appellant been arrested, thereafter released on
bail and then again the appellant continued with his
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activities. However, that is not the case here."
10. Thus, taking into consideration the above observations and
the decisions of the Hon'ble Apex Court, at the most, the
statements as well as the offences allegedly committed would
reveal that the petitioner had created law and order situation and
not disturbance to the public order. Though the Advisory Board
had approved the detention of the petitioner, yet we are of the
opinion that there was no material before the detaining authority
to categorize the petitioner as a dangerous person or bootlegger.
11. For the aforesaid reasons, the petition deserves to be
allowed. Hence, following order is passed :-
ORDER
I) The Writ Petition stands allowed.
II) The detention order dated 29.11.2024 bearing D.O.
No.2024/DC/MAG-3/KAVI-490 passed by respondent No.2
as well as the approval order dated 09.12.2024 and the
confirmation order dated 17.01.2025 passed by respondent
No.1, are hereby quashed and set aside.
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III) Petitioner - Rani Shankar Kale shall be released
forthwith, if not required in any other offence.
IV) Rule is made absolute in the above terms.
[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
