Bombay High Court
Shri Jyot @ Jude Wilson Patel vs Shri R.H. Mondonca, Commissioner Of ... on 19 June, 1998
Equivalent citations: 1999(5)BOMCR91, 1999BOMCR(CRI)~, 1998(3)MHLJ157
ORDER N. Arumugham, J.
1. By virtue of Article 226 of the Constitution of India, this writ petition is filed to quash the detention order passed by the 1st respondent under No. 89/PCB/BL/Zone-III/1997 dated 21st November, 1997 of detention of the petitioner under section 3(1) of the Maharashtra Prevention of Dangerous Activities of Bootleggers, Slumlords, Drug-Offenders & Dangerous Persons Act, 1981 (M.P.D.A. Act for short) with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order.
2. The petitioner is a resident of Wadala Village and residing in House bearing No. 878. Near Auxillium High School, Mumbai. It is alleged in the grounds of detention that on 8-7-1997, at about 8 a.m., the Police Naik with Belt No. 10767 Bhoiwada Division, presently atached to Rafi Ahmed Kidwai Marg Police Station, joined his duty and that on getting the information along with one A.P.I. Kanade and P.C. No. 26187 rushed to Wadala Village near Auxillium High School with the two Panchas. Along the street of Bhairavnath Rahiwasi Mandal near Auxillium High School, Wadala, they found and accosted the two persons who were carrying two black tyre tubes containing some liquid substances in them and that when they opened the mouths of the said two tyre tubes, they smelt to be the contents of the country liquor. Then they collected samples from the liquor from each of the tyre tubes containing 40 litres each in clean bottles, sealed and labelled in the presence of the panchas and the said samples and the contraband were recovered under a panchnama. The accused, viz. the detenu herein was arrested and brought to Rafi Ahmed Kidwai Marg Police Station along with the contraband and samples. Upon a complaint given to the said Police Constable, P.N. No. 10767, a case was registered for an offence under section 66(1)(b) of the Bombay Prohibition Act, 1949 vide P.C.R. No. 37/97. The contraband seized was about worth Rs. 1600/-. Then on the same day, the detenu was released on bail with the obtaining of necessary sureties and bail bond. The samples of the contraband seized were sent to the chemical examination and the report of the chemical examiner certified that each of the sample Nos. (1) and (2) contains 17% v/v of ethyl alcohol in water and the two sample bottles contain no medicinal/anti-septic or toilet preparation nor a flavouring material. The concerned Police has recorded the same in the Diary.
3. On 17th August, 1997 at about 19.00 hours when the Constable by name Suhas Sampat Mahadik with Belt No. 3452, R.A. Kidwai Marg Police Station, Mumbai was on duty, a message was received from the Central Control Room on phone regarding bootlegging activities near Auxillium High School, Wadala Village, Mumbai and when the Police landed at the spot which is an open place in darkness, it was found that the detenu was found in possession of two plastic cans, one white coloured and another green coloured, each containing 10 litres of illicit liquor cumulatively 20 litres. When it was opened, it was found that it was illicit liquor and that therefore necessary samples were obtained from each of the plastic cans in the presence of the panchas and recorded the panchnama. The value of the said contraband was Rs. 400/- and upon the complaint lodged by the P.C. No. 3452, a case was registered against the detenu under section 66(1)(b) of the Bombay Prohibition Act at Rafi Ahmed Kidwai Marg Police Station vide P.C.R. No. 50/97. In both the cases, while the accused viz. the petitioner was examined, he has admitted his guilt for dealing with the illicit liquor. However, he was released on bail on the same day in this case also. The samples taken in this case also were sent to the Chemical Analyser and it was found that each sample contains 16% v/v ethyl alcohol in water and that neither of the samples contains medicinal/anti-septic/toilet preparation nor a flavouring material.
4. Besides, confidential enquiry conducted by the Police revealed that it was learnt that the petitioner had indulged in activities of frightening and threatening the inhabitants of the locality and that therefore none of the public-is reluctant to complain and makes statement against him to the police. However, the statements of few persons of the locality recorded in-camera were made by the concerned police. One witness has stated that he knew the detenu was a bootlegger operating in the locality of Wadala Auxilium High School and continues harassment to the school children and parents and other residents of the locality who are living in the nearby hutment. It is also revealed that the petitioner in a drunken condition abuse people and created always a scene of tension which resulted in the people refraining to complain against him to the police. Another witness who was examined in-camera and the statement was recorded would speak about the factum of the petitioner and his associates used to do bootlegging activities and trial used to create always nuisance and threaten the people of the locality with the abusive languages. The statement of the 3rd witness housewife, the resident of the Wadala Market was also recorded who speaks about the activities of the petitioner on 26th August, 1997. It coincides and corroborates with all the other witnesses who had stated in their statement.
5. On perusing the above and for the cases referred to as the grant and the adverse cases for the petitioner in the backdrop spoken by the residents of the locality wherein he was living and carrying out his usual operations and having satisfied that his activities are prejudicial to the public order in that locality and hence satisfied as a bootlegger, detention order was passed by the 1st respondent herein as approved by the Government of Maharashtra, the 2nd respondent herein. Accordingly, the detenu was arrested and detained in the prison consequently.
6. We have heard the rival contentions on behalf of the respective parties herein.
7. While challenging the detention order above referred, though 8 grounds in the memorandum of grounds had been taken, Mr. U.N. Tripathi, learned Counsel appearing for the detenu-petitioner, however not pressed the last two grounds i.e. grounds Nos. 7 and 8. He pressed the other grounds Nos. 1 to 6. On a perusal of the said six grounds, though the substratum of the two grounds was in the complaint that the rest are incidental to the main two grounds which are the following :--
8. That the respondent while passing the detention order against the detenu had not at all applied its mind particularly with the missing link so as to attract the prejudicial activities to public order as provided by law and that therefore the detention order in question has become totally vitiated and that the second one that there was no material or records or adverse cases at all against the detenu either to term him as the bootlegger or the dangerous person and that therefore the detention order passed in the instant case has been totally vitiated and as such the writ petition has to be allowed.
9. To substantiate this contention, let us first deal with the first contention. The learned Additional Public Prosecutor, Mr. R.L. Patil, strenuously contended that the detention order has been passed with the specific instances in which the petitioner had committed the offence under section 66 of the Bombay Prohibition Act and registered a crime in the concerned Police Station. Further statements were recorded from the witnesses of the locality where the detenu was residing and doing the bootlegging business. The Authorities are correctly and rightly justified in arriving at a full subjective satisfaction that the petitioner has indulged in prejudicial activities which affect the public order of the locality as aforesaid and that therefore nothing was made available to quash this order and on that score the learned A.P.P. tried to persuade us to sustain the detention order passed against the detenu.
10. To substantiate their respective contentions above referred, the Bar for the respective parties have relied upon serveral case-laws on their behalf.
11. Before proceeding to analyse the factual aspects of this case, it has become necessary for us to refer to the definition of 'bootlegger' as defined in section 2 sub-clause (ii) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-Offenders Act, 1981, as amended which is as follows :-
In the case of a bootlegger acting in any manner prejudicial to the maintenance of public order means "(ii) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order."
"Explanation :--For the purpose of this Clause (a), public order shall be deemed likely to have been affected adversely, or shall be deemed likely to be affected adversely, inter alia, if any of the activities of any of the persons referred to in this clause, directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health;"
12. The term "Bootlegger" is also defined in the said Act which is as follows :-
"Bootlegger" means a person, who distills, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any provisions of the Bombay Prohibition Act, 1949 and the rules and orders made thereunder, or of any other law for the time being in force or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacles or any other materials whatsoever in furtherance or support of the doing any of the abovementioned things by or through any other person, or who abets in any other manner the doing of any such thing;"
13. It has also become necessary at this juncture to refer section 3 of the M.P.D.A. Act which runs as under :--
"3. Power to make orders detaining certain persons :--
(1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained."
14. A combined reading of the definitions, the Explanation, section 2(a)(ii) and section 3 of the M.P.D.A. Act would clearly postulate the fact that either of the persons categorised in the said sections for the purpose of arriving at a subjective satisfaction would necessarily indulge in any activities or in any manner necessarily prejudicial to the maintenance of public order and that the said legal concept has been clearly spelt out in section 2(a)(ii) and section 3(1) of the said Act. To simply suggest to detain a person who is indulging in the activities referred to in the said Act under the detention as contemplated not only he must be a bootlegger or a slumlord and so on but his activities indulged in must be in the category of prejudicially and adversely affecting or likely to affect the maintenance of public order and that unless and until the said prejudicial activities affecting public order has been arrived, found out and identified, it is not at all possible for the hierarchy of courts in the country to accept that the said detention of the said person is valid.
15. In this regard, the learned Judges of a Division Bench of this Court in an unreported judgment in Criminal Writ Petition No. 828 of 1997 dated 18th November, 1997 Smt. Bharati Ashok Bhair v. Shri O.P. Bali, Commissioner of Police, Thane & others, observed as follows :-
"The material question to be considered is whether the detenu could be said to have acted in a manner prejudicial to the maintenance of public 'order'. We have considered the nature of the acts attributed to the detenu and in our opinion, they cannot be regarded as such which affect adversely or are likely to affect adversely the maintenance of public order. They are not likely to cause a "grave or widespread danger to life or public health". They appear to be stray incidents connected with the detenu and none of them is of such a nature which directly or indirectly is causing or calculated to cause any harm, danger or alram or feeling of insecurity among the general public or any section thereof.
It must be borne in mind that there is a distinction between "Law and Order" and "Public Order". They cannot be equated with each other."
A few number of judgments delivered by the Bench of this Court which are unreported have been pointed out to us by the Bar in support of the contentions made on behalf of the detenu. In a similar fashion, the learned Additional Public Prosecutor by dwelling his contention upon some case laws, cited, took every strains in order to sustain the detention order.
16. In the context of the above, we have carefully gone into the grounds of detention order in question as well as the other documents in support thereof. It is the common case we find that in the two respective incidents claimed by the respondents i.e. dated 8-7-1997 as well as 17-8-97 the samples of the illicit liquor possessed by the detenu were taken before the panchas and kept in the proper seal in separate bottles which were sent to the Chemical Analyser subsequently. It is also the case of the respondents that on getting the reports of the Chemical Analyser of the said two samples. In both the cases reports were received. Of the four samples analysed by the chemical examiner, the earlier two contain 17% v/v of ethyl alcohol in water and the subsequent two contain 16% v/v ethyl alcohol in water. According to the Chemical Analyser's opinion, it is evident that either 16% v/v of ethyl alcohol in all the four samples found in water which is not eligible to be a medicinal/antiseptic or toilet preparation nor a flavouring material.
17. The sponsoring authority, viz. the concerned Police Officer must necessarily presume to know that the Chemical Analyser's report, above referred four in numbers, do not contain any material to show that the detenu has indulged in acting in any manner prejudicial to the maintenance of public order nor it attracts any limb of the Explanation provided to section 2(a) of the M.P.D.A. ACT. While the alleged activities of the petitioner detenu do not attract either of the limbs provided in the Explanation or section 3(1) of the Act in the context of the Chemical Analyser's report that merely it contains ethyl alcohol of 16% and 17% in water. We hardly find that the activities of the detenu shall prejudicially affect the public order in any manner whatsoever. The other aspects of the activities alleged against the detenu by the so called residents of the locality recorded their statements in camera by the Police though verified by the Assistant Commissioner of Police under the circumstances, in our considered view, would amount of extraneous and may not be accounted.
18. The petitioner may be for the grounds supplied by the respondents a bootlegger as provided by the definition of the Act but to detain him in the material produced is not adequate and something more is required which are essential and basic ingredients of sine qua non and without which as per the settled law by the, various courts and the Apex Court, we are inclined to endorse our view that the first contention raised by the Bar on behalf of the petitioner detenu, namely, that the respondents had not applied its mind in arriving at subjective satisfaction in passing the detention order against the detenue.
19. The Bar for the respective parties agree that they have not pressed other grounds and that what has been stated that only the circumstances in which the petitioner was acting as a bootlegger in that locality, we do not propose to deal with the said aspects for no material was placed before us nor the said grounds were relied upon either by the sponsoring authority or the detaining authority. No other ground was pressed before us.
20. At this juncture, we would like to add the following passage held in an unreported judgment in Criminal Writ Petition No. 940 of 1988 dated 6th October, 1988 Pandu Krishna Shetty v. Commissioner of Police, Greater Bombay & another :
".....Mrs. Desai, the learned Public Prosecutor, wanted us to take a judicial note of the fact that illicit liquor by itself is dangerous. It is not possible for us to take such notice because there is no material, which is of a repetitive nature, which would have enabled a Court to take such judicial notice of that fact. In the Chemical Analysr's report of the liquor seized from the petitioner, there is no mention that the sample posed a threat to persons who would partake that product. That liquor is almost freely available in the State of Maharashtra, which incidentally boasts of having a Prohibition Department, can be taken note of. But liquor by itself has not been held to be a grave or widespread danger to life or public health."
21. In the result, in the facts and circumstances and the findings given by us above, this Criminal Writ Petition succeeds and accordingly is allowed. Consequently, the detention order passed against the detenue petitioner herein by the Commissioner of Police, Brihan Mumbai, dated 21st November, 1997 in D.O. No. 89/PCB/BL/Zone-III/1997 is hereby quashed and set aside. It follows that the petitioner be set at liberty forthwith, if he is not otherwise wanted by any other law.
22. Petition allowed.