Bombay High Court
Chhayabai W/O Ramesh Sakat vs District Magistrate And Others on 17 January, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:1562-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1992 OF 2024
Chhayabai w/o Ramesh Sakat .. Petitioner
Versus
1. District Magistrate, Jalgaon.
2. The State of Maharashtra
Through the Additional Chief Secretary,
Govt. of Maharashtra, Home Department,
Mantralaya, Mumbai-32.
3. The Jail Superintendent
Akola Central Prison. .. Respondents
...
Ms. M. R. More and Mr. A. A. Kashyap, Advocate for the petitioner.
Mr. G. A. Kulkarni, APP for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
ROHIT W. JOSHI, JJ.
DATE : 17 JANUARY 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Ms. M. R. More and Mr. A. A.
Kashyap for the petitioner and learned APP Mr. G. A. Kulkarni
the for respondents - State.
2. Rule. Rule made returnable forthwith. The petition is
heard finally with the consent of the learned Advocates for the
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parties.
3. The petitioner challenges the detention order dated
18.04.2024 bearing No. Dandapra/KAVI/MPDA/12/2024 passed
by respondent No.1 as well as the approval order dated
26.04.2024 and the confirmation order dated 07.06.2024 passed
by respondent No.2, 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 though several offences were registered against
the petitioner, yet for the purpose of passing the impugned order,
five offences were considered i.e. (i) Crime No.307 of 2020,
(ii) Crime No.174 of 2021, (iii) Crime No.286 of 2021, (iv) Crime
No.252 of 2023 and (v) Crime No.72 of 2024. All the aforesaid
offences were registered with Ramanand Nagar Police Station,
District Jalgaon for the offence punishable under Section 65(e) of
the Maharashtra Prohibition Act. Learned Advocate for the
petitioner submits that in respect of last offence which is
considered under the caption "Details of offences registered
recently within six months", the detaining authority had taken
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note of Crime No.72 of 2024 registered under Section 65(e) of the
Maharashtra Prohibition Act, 1949, however, on the date of
passing the detention order, the CA report was not received in
respect of the said offence. He further submits that the detaining
authority has considered old and stale cases to come to the
conclusion that the petitioner is a bootlegger. There was no live
link in respect of other four offences, which were also considered.
In all the cases, the petitioner has been served with notice under
Section 41(A) of the Code of Criminal Procedure. The statements
of in-camera witnesses 'A' and 'B' would should that public was
not involved. At the most law and order situation would have been
created. Further, action was taken under Section 93 of the
Maharashtra Prohibition Act, 1949 against the petitioner,
however, it was not taken to the logical end. This shows that the
action against the petitioner was predetermined. 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,
Dangerous Persons and Video Pirates Act, 1981 (hereinafter
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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 is relying upon the affidavit-
in-reply filed by Mr. Ayush Prasad, District Magistrate, Jalgaon.
He supports the detention order passed by him and tries to
demonstrate as to how he had arrived at the conclusion that the
petitioner is a bootlegger. The subjective satisfaction was arrived
at on the basis of CA reports as well as in-camera statements and
the contents of the FIR. In all, five offences were considered along
with the two in-camera statements. After the subjective
satisfaction, the detaining authority has passed a reasoned order,
which is then confirmed with the opinion of the Advisory Board
and, thereafter, confirmed by the State Government on
07.06.2024.
6. Before considering the case, we would like to take note of
the legal position as is emerging in the following decisions :-
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(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].
(viii) 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].
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
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subjective satisfaction and whether the procedure as
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. As aforesaid, the detaining authority had
considered the aforesaid five offences and two in-camera
statements. Perusal of these cases would show that the CA
reports have been received in respect of first four offences and
percentage of ethyl alcohol that was found was 10%, 10%,
24%/40% and 9% respectively. The detaining authority has not
considered that in respect of last offence i.e. Crime No.72 of 2024,
CA report was not received. The detaining authority ought not to
have considered Crime No.307 of 2020, Crime No.174 of 2021
and Crime No.286 of 2021 filed against the petitioner for passing
the detention order, as there was no live link. Further, it appears
that the first four offences i.e. Crime No.307 of 2020 registered on
29.09.2020, Crime No.174 of 2021 registered on 20.06.2021,
Crime No.286 of 2021 registered on 04.10.2021 and Crime
No.252 of 2023 registered on 21.07.2023 were already considered
while taking action under Section 93 of the Maharashtra
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Prohibition Act i.e. Chapter Case No.06 of 2023 and final bond of
two years was taken from the petitioner, still it appears that those
four offences were considered by the detaining authority for
passing the detention order, which is illegal. Further, the
impugned order states that action under Section 93 of
Maharashtra Prohibition Act, 1949 was taken against the
petitioner, which 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 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 it would have been taken to the logical
end, the Magistrate i.e. respondent No.1 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
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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 in built 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. Therefore, the statement by respondent No.1 that ordinary
law would not have curbed the activities of the petitioner and
only the detention order would have taken care of said activities
in the public interest cannot be upheld.
8. Perusal of the statements of in-camera witnesses 'A' and 'B'
would show that public was not involved and at the most, law and
order situation would have been created. In fact, except the
offences under the Maharashtra Prohibition Act, there are no
other offences against her. To brand the person as a 'bootlegger',
there has to be a proper evidence and, therefore, these grounds
do not justify the impugned order.
9. 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
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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.
10. 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 18.04.2024 bearing No.
Dandapra/KAVI/MPDA/12/2024 passed by respondent No.1
as well as the approval order dated 26.04.2024 and the
confirmation order dated 07.06.2024 passed by respondent
No.2, are hereby quashed and set aside.
III) Petitioner - Chhayabai Ramesh Sakat shall be
released forthwith, if not required in any other offence.
IV) Rule is made absolute in the above terms.
[ ROHIT W. JOSHI ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
