Bombay High Court
Sunil @ Golu S/Omadhukarrao Nandeshwar vs The State Of Maharashtra Through Gov Of ... on 5 February, 2025
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2025:BHC-NAG:1144-DB
1 wp811.2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.811/2024
Sunil @ Golu S/o Madhukarrao
Nandeshwar, aged about 35 years,
Occ. Pvt. Work, R/o Panchshil Chowk,
Fail Talav, Yavatmal, Distt. Yavatmal
(Presently District Prison, Washim) ... Petitioner
- Versus -
1. State of Maharashtra,
Through Government of Maharashtra,
Home Department (Special),
Second Floor, Main Building,
Mantralaya, Madam Cama Road,
Hutatma Rajguru Chowk,
Mumbai-400032.
2. The District Magistrate,
Yavatmal, Distt. Yavatmal.
3. Superintendent of District Prison
Washim, Distt. Washim ... Respondents
-----------------
Mr. A.K. Bhangde, Advocate for the petitioner.
Mr. I.J. Damle, A.P.P. for respondent Nos.1 to 3/State.
----------------
CORAM: NITIN W. SAMBRE & MRS.VRUSHALI V. JOSHI, JJ.
DATE OF CLOSING THE JUDGMENT: 15.1.2025.
DATE OF PRONOUNCING THE JUDGMENT: 5.2.2025.
JUDGMENT (Per Mrs. Justice Vrushali V. Joshi, J.)
2 wp811.2024
Rule. Rule made returnable forthwith. Heard finally
with the consent of learned Advocates for the parties.
2. This writ petition challenges the order dated
6.6.2024 passed by the District Magistrate, Yavatmal 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 (for short
"MPDA Act") which was further confirmed by respondent No.1
on 23.7.2024 under Section 12(1) of the MPDA Act thereby
detaining the petitioner for a period of twelve months in order to
prevent him from indulging in the activities of bootlegging.
3. The detaining authority has considered six offences
registered against the petitioner under Section 65(D) and 65(E)
of the Maharashtra Prohibition Act.
4. Several grounds are raised in the petition including
the ground that the in-camera statements of anonymous witnesses
3 wp811.2024
"A" and "B" were recorded on 20.4.2024 and 22.4.2024
respectively which were verified on 2.5.2024 and it is submitted
that respondent no.2 has not made specific endorsement that the
said witnesses were not willing to produce evidence before the
Court of law due to fear. It is also submitted that there was no
nexus with the last prejudicial activity of the petitioner allegedly
committed on 26.3.2024 and the order of detention passed on
6.6.2024 as there was a delay of about two months. It is also
submitted that the copy of bail applications and orders were not
supplied to the detenu.
5. The basis on which the impugned detention is passed
are the following six crimes registered against the petitioner:-
(a) Crime No.38/2024 dated 20.1.2024 for the offence
punishable under Section 65(D) of the Maharashtra Prohibition
Act registered at Police Station, Yavatmal City.
(b) Crime No.252/2024 dated 20.2.2024 for the offence
punishable under Section 65(D) of the Maharashtra Prohibition
Act registered at Police Station, Yavatmal City.
4 wp811.2024
(c) Crime No.291/2024 dated 2.3.2024 for the offence
punishable under Section 65(E) of the Maharashtra Prohibition
Act registered at Police Station, Yavatmal City.
(d) Crime No.303/2024 dated 7.3.2024 for the offence
punishable under Section 65(E) of the Maharashtra Prohibition
Act registered at Police Station, Yavatmal City.
(e) Crime No.325/2024 dated 12.3.2024 for the offence
punishable under Section 65(D) of the Maharashtra Prohibition
Act registered at Police Station, Yavatmal City.
(f) Crime No.352/2024 dated 26.3.2024 for the offence
punishable under Section 65(D) of the Maharashtra Prohibition
Act registered at Police Station, Yavatmal City.
6. Insofar as all the six crimes are concerned, they are
pertaining to the illicit manufacture of handmade liquor. In none
of the crimes, the petitioner was arrested. It is stated that
petitioner has given life threats to the unnamed witnesses. It is
further stated that as a result of the bootlegging activities, the
nearby residents are feeling very insecure due to the presence of
5 wp811.2024
the detenu. It is further stated that both the witnesses have not
raised complaint with the police against the petitioner.
7. Mr. Bhangde, learned Advocate for the petitioner
submits that neither the narration of facts registered against the
petitioner nor the confidential statements of witnesses per se,
justify inference that the acts and conduct attributed to the detenu
had the propensity to cause prejudice to the maintenance of
public order.
8. Learned Advocate for the petitioner specifically
submitted that for prosecuting under the Maharashtra Prohibition
Act, 1949 expert opinion is required to show that alleged liquor is
injurious and bad to the health of public. He further stated that
details furnished by detaining authority while narrating
statements of witnesses had not disclosed the same.
9. It is submitted by the learned Advocate for
petitioner that subjective satisfaction arrived at by the detaining
authority must be based on some criterion which could be
6 wp811.2024
objectively noticed by the reviewing authority and as in the
present case the same is not there, it can be safely said that the
subjective satisfaction so reached by the detaining authority stands
vitiated.
10. Mr. Damle, learned A.P.P. vehemently opposed the
submission of petitioner, supplying emphasis on the
affidavit-in-reply filed on behalf of the respondents. He submitted
that the Sub-Divisional Police Officer, Sub Division
Pandharkawada, Distt. Yavatmal had personally verified the
in-camera statements on 2.5.2024. It is submitted that the
District Superintendent of Police, Yavatmal submitted the
proposal of detention by communication dated 13.5.2024 to the
detaining authority. There had been a consultation and discussion
between respondent No.2 and Police Inspector, Police Station,
Yavatmal City. Hence after following due procedure and
verification, the detention order has been passed.
11. Learned A.P.P. vehemently argued that the detaining
authority is subjectively satisfied with the truthfulness and
7 wp811.2024
genuineness of statements made by witnesses "A" and "B" and
pressed upon the fact that it made an endorsement on said
statements on 31.5.2024. It is the contention of learned A.P.P.
that the proposed detenu had been continuously engaging himself
into the commission of bootlegging activities, causing harm and
threat to public at large and the residents of nearby areas in the
vicinity. It is further submitted by learned A.P.P. that the copy of
the report of medical officer dated 5.3.2024 is provided to the
petitioner along with documents in the said report which
mentioned that liquor/ethyl alcohol has adverse effect on human
beings.
12. Heard learned Advocate for the petitioner and
learned A.P.P. for the respondents and perused the record.
13. Admittedly, in all the offences report of Chemical
Analyzer is not produced before the detaining authority.
14. Learned Advocate for the petitioner has submitted
the detailed chronology of events. From the documents, which
8 wp811.2024
are filed on record, it appears that the opinion of Doctor and the
Chemical Analyzer Reports are filed on record. On perusal of said
reports, it appears that they are of the earlier offences and not the
offences which are considered by the detaining authority while
passing the detention order. Said reports are neither part of the
detention order nor part of the detention proposal for considering
the offences within six months. Therefore, said Chemical
Analyzer Reports are of no use. In absence of the Chemical
Analyzer Reports and the opinion of Doctor, authority has opined
that the consumption of material which was seized from the
detenu is harmful to the persons who may consume the same. In
such an eventuality, we are of the view that the offences which are
relied upon by the detaining authority cannot be said to have
substantiated the Chemical Analyzer Reports to arrive at
subjective satisfaction holding that the petitioner's activities are
dangerous.
15. Learned Advocate for the petitioner has relied on the
judgment of this Court in Criminal Writ Petition No.559/2024
9 wp811.2024
(Rafik Sheku Bhagatwale V/s. The District Magistrate, Washim
and another) wherein this Court has placed reliance on para 7 of
the judgment in Criminal Writ Petition No.78/2022 (Chattu S/o
Ramjan Naurangabadi V/s. State of Maharashtra and others)
which reads as follows:-
"7. Then, although eight crimes have been
registered against the petitioner and all of them have
been considered as constituting relevant material for
reaching subjective satisfaction, we find that at least
in three of them, no cognizance could have been
taken for want of report of chemical analysis
indicating that what was seized from the petitioner
was prohibited liquor. CA reports in these crimes are
still awaited. So, the offences which ought not to
have been considered by the detaining authority have
been considered for reaching the subjective
satisfaction. For this reason also the impugned order
suffers from the vice of non-consideration of relevant
material. We thus find great substance in the
petition."
Same is the situation in case in hand.
16. Insofar as the reliance on the statement of two
confidential witnesses "A" and "B" is concerned, the statements
are identical. The witnesses have stated that the petitioner is
engaged in production of country liquor for the last few years.
10 wp811.2024
Due to his illegal activities, the residents of the area were facing
several problems. Due to terror created by the petitioner nobody
was ready to lodge a complaint against him.
Witness "A" stated that when he tried to make the
petitioner understand, the petitioner threatened to kill him.
Witness "B" has also given statement on the same
lines.
The allegations are vague and identical. The
statements which are stereotyped, even if taken on its face value,
would show that the threats given to the said witnesses are
between the petitioner and the said witnesses.
On perusal of the said statements it appears that the
detaining authority has not even seen the statements. It is verified
by the Sub-Divisional Officer, Yavatmal but not even seen by the
detaining authority. In that view of the matter, we do not find
that the subjective satisfaction arrived at by the detaining
authority holding that the activities of the petitioner were
prejudicial to the maintenance of public order, is substantiated.
11 wp811.2024
17. Though the petitioner has raised many grounds
considering the grounds that the Chemical Analyzer Reports are
not filed on record of the offences which were considered while
passing the detention order and there is no subjective satisfaction
about the truthfulness of the identical statements which were
recorded and verified by the Sub-Divisional Police Officer, are not
sufficient to pass the detention order. That being so, we are of the
view that the impugned detention order dated 6.6.2024 is not
sustainable and is liable to be quashed and set aside.
18. The petition stands allowed in terms of prayer
clause (i).
The petitioner be released 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: 06/02/2025 10:34:30
