Bombay High Court
Rajendrasingh Chotusingh Bavari vs State Of Maha Thr Its Secretary, Deptt Of ... on 4 September, 2025
Author: Anil L Pansare
Bench: Anil L Pansare
2025:BHC-NAG:8711-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION No. 332 OF 2025.
Rajendrasingh s/o Chotusingh Bavari,
Aged 55 years, Occupation
Labour, Resident of Ward No.5, Kelzar,
Tahsil Saloo, District Wardha. ... PETITIONER.
VERSUS
1.State of Maharashtra,
through its Secretary, Department
of Home, Mantralaya,
Mumbai-32.
2.The District Magistrate,
Wardha, District Wardha.
3.The Police Station Officer,
Police Station Seloo,
District Wardha. ... RESPONDENTS.
---------------------------------
Mr. P.J. Mehta, Advocate for the Petitioner.
Mr. A.R. Chutke, A.P.P. for Respondents.
----------------------------------
CORAM : ANIL L PANSARE AND
M.M. NERLIKAR, JJ.
Rgd.
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JUDGMENT RESERVED ON : 21.08.2025.
JUDGMENT PRONOUNCED ON : 04.09.2025.
JUDGMENT (Per M.M. Nerlikar, J).
Heard. Issue Rule, returnable forthwith. Mr. A.R.
Chutke, A.P.P. waives notice for Respondents. By their consent, the
matter is taken up for final disposal.
2. By this petition, the petitioner has challenged the order
of detention dated 18.02.2025 passed by respondent no.2 - District
Magistrate, Wardha who by exercising the powers under Section
3[2] of the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video
Pirates, Sand Smugglers and Persons engaged in Black-marketing of
Essential Commodities Act, 1981 (MPDA), ordered detention of the
petitioner in Amravati Central Jail.
3. The facts in the present case in brief are that - the
petitioner is stated to have been indulged in the activities of
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handmade gavthi moha liquor in Kelzar area, within the jurisdiction
of Police Station Seloo, District Wardha. Wardha District is declared
as liquor prohibited dry district by the Government of Maharashtra,
however, inspite of knowing this fact, the petitioner has indulged in
such activities, which are in contravention of the provisions of
Maharashtra Prohibition Act. It is stated that there are in all total 19
cognizable offences registered against the petitioner. In some cases
action was also taken against the petitioner, but, still the petitionr
continued with his illegal activities of dealing in illicit country and
handmade gavthi moha liquor business, which has created terror in
the area. The Authority i.e. respondent no.2 upon recording
satisfaction, found it necessary to detain the petitioner to prevent
him from acting in a manner prejudicial to the maintenance of public
order, which is subject matter of this petition.
4. The learned Counsel for the petitioner submits that
though 12 offences are registered against the petitioner, the
detaining authority has relied upon only two offences. He further
submits that in none of offences which are registered under the
Maharashtra Prohibition Act, the petitioner was ever arrested. Even
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the two offences, on which the Detaining Authority has relied, in
those offences also there was no arrest, and therefore, he has invited
our attention to the judgment of Hon'ble Supreme Court in case of
Arjun Ratan Gaikwad .vrs. The State of Maharashtra and others -
2025 All MR (Cri) 811 (SC). He further submits that the petitioner
was not arrested in those offences, and he was given notice under
Section 41[1][a] of the Code of Criminal Procedure, and therefore,
his case was squarely covered by the aforesaid judgment of Supreme
Court in case of Arjun Gaikwad [supra]. The learned Counsel for
the petitioner moved on to second ground and contented that the
contents of in-camera statements are vague. The subjective
satisfaction cannot be arrived even if the statements are taken as it
is. He further submits that the incident narrated in the statements
do not lead to disturbance of public order or maintenance of public
order.
5. Per contra, the learned A.P.P. has specifically supported
the impugned order by stating that respondent no.2 has taken into
consideration the material placed before it while passing the order.
He further submits that the order of detention is based on two
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offences registered under the Maharashtra Prohibition Act.
However, the area of operation of petitioner was prohibited area for
selling liquor. He submits that the respondent no.2 has subjectively
satisfied himself and accordingly passed the order of detention. He
further submits that though preventive action under Section 110(g)
of the Code was taken on 10.07.2023, however, the petitioner
continued with his activities of bootlegging.
The learned A.P.P. submits that the in-camera
statements recorded and the contents are sufficient to enter into the
aspect of subjective satisfaction. He further submits that the
petitioner is a bootlegger, and therefore, due to his activities of
selling illicit liquor, the people in the nearby vicinity are creating
ruckus due to which the public order is disturbed, and therefore, he
has prayed for dismissal of petition, being devoid of merits.
6. We have considered the rival submissions of the parties
at length, basically the two grounds raised by the petitioner. The
first ground is that though the Detaining Authority has relied upon
the two offences registered against the petitioner i.e. Crime
No.777/2024 under Sections 65F of the Maharashtra Prohibition Act,
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1949 and Crime No.750/2024 under Section 65E of the Maharashtra
Prohibition Act, 1949. The said offences were registered on
15.09.2024 and 10.09.2024 respectively. It reveals from the record
that Crime No.777/2024 is registered on 15.09.2024, however, the
petitioner was given notice under Section 35[3] of the Bhartiya
Nagarik Suraksha Sanhita, 2023 as per the guidelines of the Hon'ble
Supreme Court. Similarly another Crime No.750/2024 is registered
on 10.09.2024, and the petitioner was given notice under Section
35[3] of the BNSS.
7. It further reveals from the record that in both these
crimes, the investigating officer do not thought it fit to arrest the
petitioner. However, only notice, as stated above, has been given.
8. In case of Arjun Gaikwad [supra], while dealing with
the issue of arrest in the offences, in paragraph no.9 and 16 the
Supreme Court has held as under :
"9. Insofar as all the six cases are concerned,
they are pertaining to illicit manufacture of
handmade liquor. It is to be noted that these
cases are registered during the period between
29th January 2023 to 18th October, 2023. It is
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to be noted that in none of these cases the
authorities found it necessary to arrest the
appellant herein.
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."
Therefore, considering this fact, the respondent no.2 Authority has
not considered whether arrest of the petitioner would have
prevented him from indulging in continuous activity of bootlegging.
The Detaining Authority ought to have considered the effect of not
arresting the petitioner. The authority in its ground of detention in
paragraph no.13 has observed that "I am subjectively satisfied that
the ordinary laws of preventive action have failed to deter you from
indulging in bootlegging activities. You have violated the conditions
of the bond and you are habitual in doing the offence came under
the provision of Maharashtra Prohibition Act 1949. Due to your
habitual offence you have disturbed the peace and public order of
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the area under the Seloo Police Station at near of it ." Further in
paragraph no.15, it has observed that " I have considered the bond
executed by you in above referred matter of you/detenue, however,
from the record it is seen that you have also violated the conditions
of the bond/notice given to you U/s 41[a] Crpc and U/s 35[3] BNSS
2023 even after executing the bail bonds, you have again committed
the offences."
9. Therefore, as was observed by the Supreme Court in
case of Arjun Gaikwad [supra], it is crystal clear that the Detaining
Authority has failed to consider that if the detenue was arrested, it
would have impact on his further activities. It is further to be noted
that the aspect of not arresting the petitioner is completely given go-
bye by the respondent no.2. Had it been a case that the detenue was
arrested, thereafter released on bail, and then again the detenue
continued with the activities, the case would have been different.
However, this is not the case here. Though the Authority has relied
on two offences, there are series of offences committed by the
petitioner under the Maharashtra Prohibition Act, and it is surprising
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that in none of the offence/crime, the petitioner was ever arrested,
and therefore directly invoking the draconian provisions of MPDA,
would be a harsh step.
It is to be noted that the preventive action under Section
110(g) of the Criminal Procedure Code was taken and on
10.07.2023, a final bond of Rs.30,000/- for good behaviour was
executed before the Special Executive Magistrate and the police
inspector, local crime branch, Wardha for the period from
10.07.2023 to 09.07.2024. Even thereafter, 7 offences under the
Maharashtra Prohibition Act was committed by the petitioner.
Though final bond was executed by the petitioner, however, the
same was not cancelled by the concerned Authority, inspite of the
bond being executed for keeping good behaviour. Even this issue
has not been answered by the Detaining Authority and therefore,
merely observing that ordinary and normal law of the land is not
sufficient to curb the activities of the petitioner is not sufficient.
10. So far as the in-camera statements are concerned, the
witness "A" stated that around 6 p.m. the witness was going to his
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friends place for some work, and when he was passing near the
house of the petitioner, at that time infront of the house, two men
were heavily intoxicated, shouting and abusing on each other, and
urinating on the road. Therefore, witness "A" told to those two
persons that they should not urinate at that place, as there are
residential houses. At that time, the petitioner came out of the
house, grabbed the witness by collar and slapped 2-3 times, took out
a knife from his pocket and placed on the neck of the witness and
abused him in filthy language, by uttering that why the witness was
asking his customers to go. Upon this the witness was threatened
and asked for help from the neighbourhood, however, due to fear no
one came forward to help him, and therefore, the witness folded his
hands and promised that he will never say anything to his customers.
11. Further Witness "B" has stated that in the last week of
December, 2024 at around 11 a.m. when the witness was at bus
stop, at that time the petitioner came in the vehicle and stopped the
vehicle in front of the witness, grabbed his hand and took out a
sword hanging in the vehicle in one hand and threatened that he has
given information about his bhatti [place where illicit liquor is
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manufactured], and therefore, he has to sustain the loss due to the
information given by the witness, and accordingly slapped the
witness near his ears. He further stated that the petitioner will not
stop the business of illicit liquor and if further information is
supplied to the police, he will kill him. Accordingly he brandish the
sword in the air. Upon this, no one came forward to help the witness
and people started running in different directions. Shops were shut
down and shop keepers fled away. The witness however managed to
escape from the clutches of the petitioner and ran away. Due to
death threat and fear of intimidation, the witness did not file
complaint with the police.
12. Bare perusal of both these statements would indicate
that the incidences as narrated, even if taken at their face value, are
not sufficient to say that public order is disturbed. Witness "A" has
narrated the incident which is individual in nature. No doubt,
though the act can be individual in nature, still may have some
impact on the society at large. However, the statement of witness
"A" does not have impact on the society at large, as the act of the
petitioner is individual in nature and not affecting disturbance of
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public order or prejudicial to maintenance of public order.
13. The incidence narrated by witness "B", that petitioner
brandish sword and shop keepers have shut their shops and ran
away. Even if this statement is taken as it is, the degree of the act of
the petitioner would not affect the public order.
14. In case of Ram Manohar Lohia .vrs. State of Bihar and
another - [1996] 1 SCR 709, the Supreme Court has discussed as
regards the distinction between 'public order' and 'law and order'.
Paragraph nos. 54 and 55 therein reads as under.
"54. ... Public order if disturbed, must lead to
public disorder. Every breach of the peace does
not lead to public disorder. When two drunkards
quarrel and fight there is disorder but not public
disorder. They can be dealt with under the powers
to maintain law and order but cannot be detained
on the ground that they were disturbing public
order. Suppose that the two fighters were of rival
communities and one of them tried to raise
communal passions. The problem is still one of law
and order but it raises the apprehension of public
disorder. Other examples can be imagined. The
contravention of law always affects order but
before it can be said to affect public order, it must
affect the community or the public at large. A
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mere disturbance of law and order leading to
disorder is thus not necessarily sufficient for action
under the Defence of India Act but disturbances
which subvert the public order are....
55. It will thus appear that just as 'public
order' in the rulings of this Court (earlier cited)
was said to comprehend disorders of less gravity
than those affecting 'security of State', 'law and
order' also comprehends disorders of less gravity
than those affecting 'public order'. One has to
imagine three concentric circles. Law and order
represents the largest circle within which is the
next circle representing public order and the
smallest circle represents security of State. It is
then easy to see that an act may affect law and
order but not public order just as an act may affect
public order but not security of the State."
15. So far as the narration of incident on the part of
Witnesses "A" and "B" is concerned, it does not affect the public
order, considering the observations of the Supreme Court in
aforesaid case of Ram Manohar Lohiya [supra].
Therefore, the statements fall short to bring the
petitioner within the purview of public order. The respondent no.2
has failed to subjectively satisfy himself on the basis of two in-
camera statements, therefore, it vitiates the order of detention based
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on such vague statements. Thus, considering the above facts and
circumstances, we find that the detention order cannot sustain on
the ground on which it is passed. So also, his activities are not
prejudicial to the maintenance of public order. The order impugned
therefore, vitiates and is liable to be quashed and set aside. Hence,
the following order.
ORDER
(1) Criminal Writ Petition is allowed.
(2) The order of detention passed by the respondent
no.2 - District Magistrate, Wardha dated
18.02.2025 is hereby quashed and set aside.
(3) The petitioner be released forthwith if not
required in any other offence.
(4) Rule is made absolute in aforesaid terms.
JUDGE JUDGE
Rgd.
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 04/09/2025 15:20:43
