Bombay High Court

Mukesh Siddharth Gavai vs The State Of Maharashtra Thr. Its ... on 7 February, 2025

Author: Nitin W. Sambre

Bench: Nitin W. Sambre

2025:BHC-NAG:1261-DB


                                                                     1                               crwp.595.24-J.odt

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

                                   CRIMINAL WRIT PETITION NO. 595 OF 2024

                    Mukesh Siddharth Gavai
                    Aged about 40 years, Occ.-Labour,
                    R/o Dhanaj Bk, Tah. Karanja, Washim                              ... PETITIONER
                               ...VERSUS...

                1. State of Maharashtra,
                    Through its Secretary, Home Department
                    (Special) Mantralaya, Mumbai.

                2. District Collector, Washim                                        ... RESPONDENTS

               ------------------------------------------------------------------------------------------------
               Mr. M. N. Ali, Advocate for the Petitioner.
               Mr. S. S. Doifode, A.P.P. for Respondents/State.
               -----------------------------------------------------------------------------------------------
               CORAM : NITIN W. SAMBRE AND MRS. VRUSHALI V. JOSHI, JJ.
               JUDGMENT RESERVED ON : 29.01.2025
               JUDGMENT PRONOUNCED ON : 07.02.2025

               JUDGMENT (PER : MRS. VRUSHALI V. JOSHI, J.):

1. Rule. Rule is made returnable forthwith. Heard finally by

consent of learned counsel appearing for the parties.

2. The petitioner has preferred this petition questioning the

preventive detention order passed against the detenu on 23.04.2024 by the

District Collector, Washim, in exercise of the powers under Section 3(1) of

the Maharashtra Prevention of Dangerous Activities of Slumlords,

Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand

Smugglers and Person Engaged in Black Marketing of Essential 2 crwp.595.24-J.odt

Commodities Act, 1981, ('MPDA Act' for short). The order of detention is

based on two crimes, i.e., Crime No.389/2023 and Crime No. 76/2024 and

two in-camera statements of witnesses "A" and "B". There is a mention of

six criminal cases in the proposal of detention.

3. The order of detention relies upon the bootlegging activities of

the petitioner. The two accountable offences as stated above are registered

under Section 65(e) of the Maharashtra Prohibition Act, 1949, of which,

Crime No. 389/2023 is pending before the concerned Court and Crime

No.76/2024 is under police investigation.

4. In Crime No. 389/2023, on the complaint of Gajanan War,

Head Constable, Police Station, Dhanaj, Washim, dated 06.12.2023, on the

receipt of secret information, at the time of patrolling, the police raided a

place near old Government Hospital, where the detenu was found selling

handmade liquor (Taddi). The seized sample of liquor was sent to the

Forensic Laboratory, Amravati. A report was received that, said sample had

41.83% of ethyl alcohol. A notice was issued to the petitioner under Section

41A(1) of the Code of Criminal Procedure.

On a similar note, in Crime No. 76/24, it is mentioned in para

No. 5.2 of the grounds of detention that as per the opinion of the District

Civil Surgeon, Washim, the contraband sample of liquor was detected with

ethyl alcohol in water.

3 crwp.595.24-J.odt

As far as the in-camera statements are concerned, petitioner

and his associates beat witness "A", due to a quarrel which took place

between them over people urinating at public places after consuming

alcohol, which was illegally sold by the petitioner. Furthermore, they also

threatened witness "B" to not give the information of detenu being involved

in illegal sell and transport of handmade liquor to the police.

5. Learned Counsel for the petitioner has raised a number of

grounds. The first ground raised is, perusal of Crime No. 389/2023 would

show that, it is registered against one Mangesh Siddharth Gavai and not the

petitioner. It is an old offence as well.

6. The second ground taken up was that, perusal of the Crime No.

76/2024 would reveal that, there was no C.A. report received, thus, instant

crime could not have been considered for passing the detention order.

Further grounds include that, there was no proper verification

of in-camera statements as well as bail orders and applications with respect

to other crimes were not placed before the detaining authority.

7. Learned Counsel for the petitioner submitted that, the

allegations made in the crimes do not have nexus with the breach of public

order. Further, it was submitted that, the C.A. reports which were submitted

does not state that the quantity of ethyl alcohol was dangerous for human 4 crwp.595.24-J.odt

consumption. He further submitted that, there was no endorsement on the

in-camera statements by the detaining authority. Hence, no subjective

satisfaction was reached by the detaining authority.

8. Learned A.P.P Mr. Doifode, while relying upon the affidavit-in-

reply, vehemently opposed the submissions of the petitioner. He submitted

that, the answering respondent has verified and reached to the subjective

satisfaction about the truthfulness of the in-camera statements after having

an interaction with the Police Station Officer, Dhanaj, Tah- Karanja, and

Sub-Divisional Police Officer, Karanja.

9. The Learned A.P.P has further submitted that, upon

consideration of the C.A. report by the District Civil Surgeon, Washim, it

was stated that, ethyl alcohol is injurious to human body and consumption

of the same in excess amount could cause death. Hence, prayed to dismiss

the petition.

10. Heard both the learned Counsel.

11. The petitioner is detained as bootlegger. While passing the

detention order, two offences are considered i.e. Crime Nos. 389/2023 and

76/2024. Though the two offences are considered, the C. A. report is

received in one offence i.e. Crime No.389/2023. On perusal of the order, it

appears that the C. A. reports in other offences are also considered by the

detaining authority, which shows that the extraneous material is considered 5 crwp.595.24-J.odt

by the detaining authority while passing the detention order. The learned

Counsel for the petitioner has relied on the judgment of this Court in the

case of Suryakant @ Mukesh Laxman Dhotre Vs. The Commissioner of

Police, Solapur and Ors. reported in 2018 ALL MR (Cri) 2004, where it is

held in para No.5 as under :

".....the detaining authority has formed the subjective satisfaction on the basis of the report that is obtained from the Assistant Director of Regional Forensic Science Laboratory, Pune after sending the samples collected in all the aforesaid C.Rs. with the result, "sample contains ethyl alcohol in water".

"......It is further held that, the detaining authority has taken into consideration material which is not germane to the order of detention and we are in agreement with the learned counsel for the petitioner that the subjective satisfaction of the detaining authority stands vitiated on account of consideration of irrelevant and extraneous material."

12. The name of the petitioner is wrongly mentioned in Crime

No.76/2024, where the C.A. report is not received. On the basis of one

crime and one C.A. report, the detaining authority has passed the detention

order. The two confidential statements which are considered by the

detaining authority are identical. A general statement is made by the

witnesses against the petitioner. In the statement of witness 'A' he asked

the customer not to urinate on road, at that time, the petitioner quarreled

with the witness and gave threats to him. In another statement of witness

"B", the petitioner had suspected that the witness had informed about his

business to the police and therefore, he gave threats. The detaining

authority has only seen the statements, which is not sufficient to pass the 6 crwp.595.24-J.odt

detention order, therefore, the order passed by the detaining authority is