Bombay High Court

Akash @ Chakan @ Golu Ajay Motghare vs The State Of Maharashtra Thrrough Its ... on 13 February, 2025

Author: Nitin W. Sambre

Bench: Nitin W. Sambre

2025:BHC-NAG:1491-DB




                                                   1                      wp732.2024

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

                        CRIMINAL WRIT PETITION NO.732/2024

              Akash @ Chakan @ Golu Ajay
              Motghare, aged about 30 Yrs.,
              Occ. Labour, R/o Near Circus
              Ground, Ramnagar, Wardha                              ... Petitioner
              - Versus -

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

              2.   District Collector, Wardha                  ...     Respondents
                           -----------------
              Mr. Mir Nagman Ali, Advocate for the petitioner.
              Mr. S.S Doifode, A.P.P. for respondent Nos.1 and 2.
                         ----------------
              CORAM: NITIN W. SAMBRE & MRS.VRUSHALI V. JOSHI, JJ.

              DATE OF RESERVING THE JUDGMENT: 30.1.2025.
              DATE OF PRONOUNCING THE JUDGMENT: 13.2.2025.



               JUDGMENT (Per Mrs. Vrushali V. Joshi, J.)

Rule. Rule made returnable forthwith. Heard finally

with the consent of learned Advocates for the parties.

2 wp732.2024

2. The petitioner/detenu, who is detained in furtherance

of an order dated 10.7.2024 passed by respondent No.2/the

District Collector, Wardha, has approached this Court praying for

quashing and setting aside the said order and to release him

forthwith. The petitioner has been detained by respondent No.2,

who has confirmed the detention order dated 10.7.2024 by

exercising powers conferred under sub-section (2) of Section 3 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 Commodities Act, 1981 (for short "MPDA Act") and

directed him to be detained at Nagpur Central Prison, Nagpur.

The petitioner was served with the grounds of detention on the

very same day.

3. Two crimes have been relied upon, in particular,

Crime No.402/2024 and Crime No.222/2024 while passing the

detention order. Twelve earlier offences alleged to have been 3 wp732.2024

committed by the detenu since 2022 to 2024 are also considered

by the detaining authority. The petitioner has been shown as an

under trial for two years. Both the above recent crimes considered

for passing the detention order are registered under Section 65(e),

77(a) and 83 of the Maharashtra Prohibition Act, 1949.

Crime No.402/2024 was registered at Police Station

Ramnagar, Distt. Wardha on 24.5.2024 while Crime

No.222/2024 was registered at Police Station Sewagram, Distt.

Wardha on 15.3.2024. Grounds of detention state about illegal

smuggling and selling of foreign and country liquor in the area of

jurisdiction of Police Stations Ramnagar, Sewagram, Sawangi

(Meghe), Kharangana and adjoining areas of District Wardha.

4. The petitioner has assailed the detention order on

various grounds, as set out in the petition, which are as under:-

(a) One of the grounds raised is that Chemical Analyzer

report in Crime No.402/2024 is still awaited and thus, said crime

could not have been relied upon for passing the detention order.

4 wp732.2024

(b) Further, the offences at serial Nos.4 to 14 are old and

stale and are relied on for passing the detention order and,

therefore, subjective satisfaction of detaining authority is vitiated.

based on two offences and thereafter twelve earlier offences from

2022 to 2024 are also considered for passing the detention order

which shows non-application of mind by the detaining authority.

5. Learned Advocate for the petitioner submits that the

opinion of the Chief Medical Officer, General Hospital, Wardha is

based on nine C.A. reports and C.A. reports of Crime

Nos.478/2021, 724/2021, 347/2020, 229/2020 and 358/2018

are supplied to the Chief Medical Officer, General Hospital,

Wardha for seeking his opinion. These crimes have not been

taken into account while passing the order of detention. Thus,

irrelevant and extraneous material is placed before respondent

No.2 which is considered by the detaining authority. He further

submitted that illegible copy of C.A. report in Crime

No.478/2021 is provided to the detenu.

5 wp732.2024

The learned Advocate for the petitioner further

argued that the last offence was registered against the petitioner

on 24.5.2024 and the detention order came to be passed on

10.7.2024, therefore, there is delay in passing the detention order.

Hence he has prayed to allow the writ petition.

6. Per contra, learned A.P.P. strongly opposed the

submissions made on behalf of the petitioner. Learned A.P.P

contended that C.A. reports of earlier offences showing

bootlegging activities of the detenu and percentage of ethyl

alcohol was found dangerous to the public health and, therefore,

considering this aspect, the detaining authority after being

satisfied from the record, has passed the detention order.

Learned A.P.P invited our attention to the aspect that

the documents annexed with this petition at page Nos.80 to 95

would show C.A. reports of various crimes, were sent along with

letter dated 27.3.2023 to the Civil Surgeon, General Hospital,

Wardha for getting his opinion about the effect of ethyl alcohol

on human health. It is submitted that said letter was sent on 6 wp732.2024

27.3.2023 and the rest of the offences considered are subsequent

to it. It is pertinent to note that the petitioner has not commented

on the report of the Civil Surgeon, Civil Hospital, Wardha dated

12.4.2023.

Learned A.P.P vehemently argued that the offences

mentioned by the petitioner in his petition of which C.A. reports

have been placed before the detaining authority, are relevant and

submitted that C.A. reports of these crimes were placed before

respondent No.2 considering the continuity of commission of

offences of petitioner and the effect of consumption of alcohol on

human health. He has placed reliance on the judgment in

Criminal Writ Petition No.1191/2020 (Machindra Dyanoba

Jadhav V/s. The State of Maharashtra and others) of the

Aurangabad Bench of this Court wherein it is held that the

verification of the in-camera statements by the Sub-Divisional

Police Officer is appreciated by the detaining authority with

regards to its subjective satisfaction of the same. Moreover,

circular dated 19.9.2002 of the Home Department shows that the 7 wp732.2024

verification of S.D.P.O is sufficient to take action under the

MPDA, Act.

Learned A.P.P submitted that on perusal of the

confidential statements of witnesses "A" and "B" it is clear that the

activities of the petitioner were causing danger to the maintenance

of public order. It is further submitted that initially the proposal

was for three offences of last six months, however, at the time of

passing the detention order, offence at serial No3 i.e. Crime

No.6/2024 having been of the period of more than six months,

the detention order is based only on two offences i.e. Crime

No.402/2024 and Crime No.222/2024. It is further submitted

that it was clearly mentioned in the grounds of detention that if

there was any objection with regard to copy of C.A. reports

supplied to the detenu, he had a right to submit application for

providing the said copies to him and no such application was

received from the petitioner. Hence he has prayed to dismiss the

petition.

8 wp732.2024

7. Learned Advocate for the petitioner has took us

through the record. On careful perusal of record, it appears that

two offences i.e. Crime Nos.402/2024 and 222/2024 which are

punishable under Sections 65(e), 77(a) and 83 of the

Maharashtra Prohibition Act are considered while passing the

detention order. Though it is specifically mentioned in para 10.1

of the detention order that above two offences are considered, in

para 10.3 it is stated that all 12 offences within the period of two

years are considered for passing the detention order and discussed

in detail which itself vitiates the detention order passed by the

detaining authority as the extraneous material and stale offences

are considered by the detaining authority while passing the

detention order.

8. Learned Advocate for the petitioner has relied on para

13 of the judgment passed by this Court in Hanuman Rajaram

Mhatre V/s. Commissioner of Police reported in 2018 DGLS

(Bom.) 1306 wherein it is observed as follows:-

9 wp732.2024

"13. .....we are of the firm opinion that the subjective satisfaction formed by the Detaining Authority suffers from non-application of mind, as the same is formed by taking into consideration extraneous and irrelevant material and, therefore, it is vitiated. Since it is this subjective satisfaction formed by the Detaining Authority on which the edifice of the impugned order rests, resultantly the order of detention is also vitiated."

In the present case Chemical Analyzer reports in

earlier offences are considered along with two recent offences.

This Court in case of Suryakant @ Mukesh Laxman Dhotre V/s.

The Commissioner of Police, Solapur and Ors. reported in 2018

ALL MR (CRI) 2004 has observed in para 5 as under:-

"..... 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."

"..... 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."

10 wp732.2024

9. The legible copy of C.A. report is not provided to the

petitioner which affects his right to represent. The petitioner has

relied on the judgment of this Court in Hanuman Rajaram

Mhatre (supra) in which it is observed that the detention order

was assailed on the ground that copy of the document supplied to

the detenu was illegible and was in Urdu language, which disabled

him from making a representation to the detaining authority. The

detaining authority took a stand that the said document was not

taken into consideration by the detaining authority though it was

placed before it. In this context, the Division Bench observed as

follows :-

"10. In our opinion, this is an unsustainable position to be taken up by a detaining authority. In the first place, we would regard it as a duty on the part of the detaining authority to furnish copies of the documents to which he referred and on which he placed reliance, to the detenu in a language known to the detenu. This can be done only when the detenu is informed of the documents to which the detaining authority made a reference and upon which he placed reliance. In the grounds of detention, which have been served upon the detenu, it has not been mentioned by the detaining authority that there are the documents to which he made reference and on which he placed reliance. However, an equivocal statement is to be found in 11 wp732.2024

Paragraph III of the grounds of detention, which is as follows:-

"......."

10. Two confidential statements on which the detaining

authority has relied, the contents therein do not show that they

affect the public order.

11. Learned Advocate for the petitioner has relied on the

judgment in case of Arjun S/o Ratan Gaikwad V/s. The State of

Mahabharata and others (Criminal Appeal No.----/2024 arising

out of SLP (Cri.) No.12516/2024) which reads as follows:-

"10. Insofar as the reliance on the statement of the two unnamed witnesses are concerned, the statements are identical in toto. What is stated is that the appellant is engaged in production of handcrafted liquor for the last few years. It is stated that due to these activities there have been various problems for the Government machinery. It is stated that due to the fear and terror created by the appellant nobody appears to raise complaint against him.

It is further stated that due to these activities of bootlegging the nearby residents have left their houses and shifted elsewhere. The first witness statement further states that on some day in the last month at

12 wp732.2024

07:00 P.M., when the witness was returning from work towards his residence, the appellant met him near the Gram Panchayat Office and quarrelled with him and threatened by saying that if his liquor business was no more, he will not spare him. It is further stated that he had not filed a complaint with the police against the appellant herein due to fear."

12. While considering the material as regards the recently

registered two offences against the petitioner punishable under

the provisions of the Maharashtra Prohibition Act, earlier offences

within the period of two years ought not to have formed the basis

for ordering detention. The subjective satisfaction recorded by

the detaining authority for ordering detention sans consideration

of the aforesaid issue. In this regard, reliance is placed on the

judgment passed by this Court in Criminal Writ Petition

No.464/2024 (Moreshwar Sudhakar Nighot V/s. State of

Maharashtra and another) wherein this Court has placed reliance

on paras 7 and 8 of the judgment of Hon'ble Apex Court in case

of District Collector, Ananthapur V/s. V. Laxmnna reported in

2005 DGLS (SC) 274 which read as follows:-

13 wp732.2024

"7. We do not think this argument of the learned counsel can be accepted. If the detention is on the ground that the detenu is indulging in manufacture or transport or sale of arrack then that by itself would not become an activity prejudicial to the maintenance of public order because the same can be effectively dealt with under the provisions of the Excise Act but if the arrack sold by the detenu is dangerous to public health then under the Act, it becomes an activity prejudicial to the maintenance of public order, therefore, it becomes necessary for the detaining authority to be satisfied on material available to him that the arrack dealt with by the detenu is an arrack which is dangerous to public health to attract the provisions of the Act and if the detaining authority is satisfied that such material exists either in the form of report of the Chemical Examiner or otherwise copy such material should also be given to the detenu to afford him an opportunity to make an effective representation.

8. Therefore, while holding that dealing with arrack which is dangerous to public health would become an act prejudicial to the maintenance of public order attracting the provisions of the Act. It must be held that it is obligatory for the detaining authority to provide the material on which it has based its conclusion on this point. Therefore, we are in agreement with the High Court that if the detaining authority is of the opinion that it is necessary to detain a person under the Act to prevent him from indulging in sale of goods dangerous for human consumption the same should be based on some material and the copies of the such material should be given to the detenu."

14 wp732.2024

13. Report of Chemical Analyzer for brining home the

guilt of the accused is necessary for proving the offence under the

Maharashtra Prohibition Act. Two offences i.e. No.402/2024

and Crime No.222/2024 which are considered, in Crime

No.402/2024 C.A. report is not received and also not placed on

record though C.A. reports in earlier offences are considered. In

absence of C.A. report in Crime No.402/2024 it cannot be

presumed or cannot be said to have provided basis for recording

subjective satisfaction so as to infer that a strong case exists against

the accused like the petitioner. To prove disturbance of the health

of public the reports of chemical analyser are important. The