Bombay High Court
Kiran Sharavan Koli vs The District Magistrate, Jalgaon And ... on 17 March, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:9665-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.186 OF 2025
Kiran Shrawan Koli
Age: 28 years,
R/o. Bholane,
Taluka and District Jalgaon. .. Petitioner
Versus
1. District Magistrate, Jalgaon,
Jalgaon.
2. The State of Maharashtra
(Through Additional Chief Secretary
to Government of Maharashtra,
Mantralaya, Home Department,
Mantralaya, Mumbai.
3. The Superintendent
Thane Central Prison, Thane. .. Respondents
...
Mr. Rupesh A. Jaiswal h/f Ms. Jayshree Tripathi, Advocate for the petitioner.
Mr. N. R. Dayama, APP for respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 17 MARCH 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. R. A. Jaiswal holding for learned
Advocate Ms. Jayshree Tripathi for the petitioner and learned APP Mr. N.
R. Dayama for 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 18.07.2024
bearing No.Dandapra/KAVI/MPDA/26/2024 passed by respondent No.1 as
well as the approval order dated 29.07.2024 and the confirmation order
dated 11.09.2024 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, four offences were
considered i.e. (i) Crime No.363 of 2022 registered with State Excise
Duty Flying Squad, Jalgaon for the offence punishable under Section
65(a)(e) of the Maharashtra Prohibition Act, 1949, (ii) Crime No.24 of
2023 registered with State Excise Duty Flying Squad, Jalgaon for the
offence punishable under Section 65(a)(e) of the Maharashtra
Prohibition Act, 1949, (iii) Crime No.31 of 2023 registered with State
Excise Duty Department, Jalgaon for the offence punishable under
Section 65(a)(e) of the Maharashtra Prohibition Act, 1949 and (iv) Crime
No.42 of 2024 registered with State Excise Duty Department, Jalgaon.
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for the offence punishable under Section 65(a)(f)(e) of the Maharashtra
Prohibition Act, 1949. Learned Advocate for the petitioner submits that
paragraph No.5 of the grounds of detention would show that in all four
offences were considered by the detaining authority. The first offence
that is considered is Crime No.363 of 2022 and it cannot be said that for
passing order of detention on 18.07.2024, there was any live link
between the said offence and the order. He further submits that only in
respect of Crime Nos.363 of 2022, Crime No.24 of 2023 and Crime
No.31 of 2023, CA Reports have been received and in respect of the last
offence i.e. Crime No.42 of 2024, the CA report was not received. He
further submits that in all the four 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 statements of in-camera witnesses 'A'
and 'B' are concerned, they are copy paste. The incidents in those
statements would show that general public was not involved. 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, Dangerous Persons and
Video Pirates Act, 1981 (hereinafter referred to as the "MPDA Act"). The
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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 relied on the affidavit-in-reply of Mr. Ayush
Prasad, the District Magistrate, Jalgaon/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.
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];
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(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 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 four offences and two in-camera statements.
As regards the first offence i.e. Crime No.363 of 2022 is concerned,
there was no live link and therefore, it cannot be considered for passing
the detention order on 18.07.2024. Further, in respect of Crime Nos.24
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of 2023, Crime No.31 of 2023, CA reports have been received and
percentage of ethyl alcohol that was found was 46% and 9%
respectively. The detaining authority has not considered that in respect
of last offence i.e. Crime No.42 of 2024, CA report was not received.
There was no opinion of any expert medical officer certifying that the
seized liquor would have been injurious or harmful to human
consumption. Further, it appears that the action under Section 93 of
Maharashtra Prohibition Act was taken against the petitioner on
31.05.2023 i.e. Chapter Case No.61 of 2023 and obtained bond of
Rs.15,000/- for two years from the petitioner. Again action under Section
93 of Maharashtra Prohibition Act was taken against the petitioner on
21.09.2023 i.e. Chapter Case No.205 of 2023 and obtained bond of
Rs.25,000/- for a period of three years. However, it is not stated whether
the final order was passed or not and if at all, it was passed then why
upon disobedience or recurring of the offence, the bond that was got
executed from the petitioner was not put for execution i.e. the amount
under the same was not recovered. 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 the
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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. 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. As regards in-camera statements of witnesses 'A' and 'B' are
concerned, they are copy paste and the incidents in both the cases
would show that general public was not involved. At the most law and
order situation would have been created. Therefore, these grounds do
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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 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
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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 18.07.2024 bearing
No.Dandapra/KAVI/MPDA/26/2024 passed by respondent No.1 as
well as the approval order dated 29.07.2024 and the confirmation
order dated 11.09.2024 passed by respondent No.2, are hereby
quashed and set aside.
III) Petitioner - Kiran Shrawan Koli 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
