Bombay High Court
Ashok S/O Marotrao Shinde vs The District Magistrate, Parbhani And ... on 2 May, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:13071-DB
wp-422-2025-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.422 OF 2025
Ashok s/o Marotrao Shinde
Sakhala Plot, Dnyaneshwar Nagar,
Parbhani. .. Petitioner
Versus
1. The District Magistrate, Parbhani.
2. The State of Maharashtra,
Through Addl. Chief Secretary to
Government of Maharashtra,
Mantralaya, Home Department,
Mantralaya, Mumbai.
3. The Superintendent
Central Prison, Chh. Sambhajinagar. .. Respondents
...
Mr. Rupesh A. Jaiswal, Advocate for the petitioner.
Mr. A. D. Wange, APP for respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 02 MAY 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.) :
-
. Heard learned Advocate Mr. Rupesh A. Jaiswal for the petitioner
and learned APP Mr. A. D. Wange for the respondents - State.
2. Rule. Rule made returnable forthwith. The petition is heard finally
with the consent of the learned Advocates for the parties.
wp-422-2025-J.odt
3. The petitioner challenges the detention order dated 10.02.2025
bearing No.2025/HOME/POL-1/MPDA/CR-01 passed by respondent
No.1 as well as the approval order dated 20.02.2025 and the
confirmation order dated 06.03.2025 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, nine offences were
considered i.e. (i) Crime No.231 of 2023 registered with Inspector, State
Excise, Parbhani, (ii) Crime No.409 of 2023 registered with Inspector,
State Excise, Flying Squad, Parbhani, (iii) Crime No.270 of 2023
registered with Inspector, State Excise, Parbhani, (iv) Crime No.515 of
2023 registered with State Excise, Flying Squad, Parbhani, (v) Crime
No.206 of 2024 registered with Inspector State Excise, Flying Squad,
Parbhani, (vi) Crime No.421 of 2024 Inspector State Excise, Flying
Squad, Parbhani, (vii) Crime No.353 of 2024 registered with Sub
Inspector State Exercise, Parbhani and (viii) Crime No.366 of 2024
registered with Inspector State Excise, Parbhani. All the aforesaid
crimes were registered for the offence punishable under Section 65(E) fo
wp-422-2025-J.odt
the Maharashtra Prohibition Act, 1949 and (ix) Crime No.548 of 2024
was registered with Inspector State Excise, Flying Squad, Parbhani for
the offence punishable under Section 65(B) (D) (E) (F), 90, 103 of the
Maharashtra Prohibition Act. Learned Advocate for the petitioner submits
that paragraph No.4 of the grounds of detention would show that in all
nine offences were considered by the detaining authority. As regards the
first four offences i.e. Crime Nos.231 of 2023 dated 15.08.2023, Crime
No.409 of 2023 dated 19.09.2023, Crime No.270 of 2023 dated
28.09.2023 and Crime No.515 of 2023 dated 06.11.2023, it cannot be
said that for passing the order of detention on 10.02.2025, there was any
live link between those offences and the detention order. He further
submits that only in respect of aforesaid four offences, CA Reports have
been received and in respect of last five offences i.e. Crime No.206 of
2024 dated 12.05.2024, Crime No.421 of 2024 dated 17.09.2024, Crime
No.353 of 2024 dated 12.11.2024, Crime No.366 of 2024 dated
17.11.2024 and Crime No.548 of 2024, the CA reports were not
received, as it is not stated how much percentage of ethyl alcohol was
found in the substance. He further submits that in all the nine offences,
the petitioner was given notice under Section 41(A) of the Code of
Criminal Procedure and was not arrested at all. Learned Advocate for
the petitioner further submits that though statements of witnesses 'A' and
'B' were recorded on 27.09.2024 and 30.09.2024, yet the proposal was
wp-422-2025-J.odt
submitted on 07.01.2025. and therefore, there is delay in sending the
proposal, which is not explained by the sponsoring authority. As regards
statements of in-camera witnesses 'A' and 'B' are concerned, at the most
law and order situation would have been created and not the public
order. 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
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.
Raghunath Gawade, the District Magistrate, Parbhani/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
wp-422-2025-J.odt
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'
would 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];
(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;
wp-422-2025-J.odt
(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 nine offences and two in-camera statements. In
fact, as regards first four offences are concerned, there is no live link.
Further, the detaining authority has not considered that in respect of last
i.e. Crime No.206 of 2024 dated 12.05.2024, Crime No.421 of 2024
dated 17.09.2024, Crime No.353 of 2024 dated 12.11.2024, Crime
No.366 of 2024 dated 17.11.2024 and Crime No.548 of 2024, CA reports
were 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 there is delay in passing
the detention order. Here, the confidential statements of witnesses 'A'
and 'B' were recorded on 27.09.2024 and 30.09.2024 respectively. In
fact, those statements were not verified by District Magistrate. The
wp-422-2025-J.odt
proposal has been submitted by the sponsoring authority on 07.01.2025.
Why there was so much delay in sending the proposal has not been
explained by the sponsoring authority. There is no affidavit by the
sponsoring authority explaining the said delay. The time spent between
recording of confidential statements and verification thereof till the
detention order, is more than four months. If the petitioner was really a
dangerous person and his criminal activities were supposed to be
curtailed, then the sponsoring authority cannot afford to remain idle.
Further, it is to be noted that action under Section 93 of the Maharashtra
Prohibition Act has been taken against the petitioner on 15.12.2023, but
it has not been taken to the logical end. Thereafter, again on 13.06.2024,
action under Section 93 of Maharashtra Prohibition Act was taken
against the petitioner and request was forwarded to Sub Divisional
Magistrate, Parbhani to cancel the bond of good behaviour. 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 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
wp-422-2025-J.odt
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. As regards in-camera
statements of witnesses 'A' and 'B' are concerned, 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.
8. 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.
wp-422-2025-J.odt
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.
9. 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 10.02.2025 bearing
No.2025/HOME/POL-1/MPDA/CR-01 passed by respondent No.1 as
well as the approval order dated 20.02.2025 and the confirmation
order dated 06.03.2025 passed by respondent No.2, are hereby
quashed and set aside.
III) Petitioner - Ashok s/o Marotrao Shinde 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
