Bombay High Court
Hanif Karim Laluwale vs State Of Mah. Thr. Additional Chief ... on 28 June, 2022
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, G. A. Sanap
333 cr. wp 75.22.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.75 OF 2022
1. Hanif Karim Laluwale,
Aged about 39 years, Occupation: Laborer
R/o Gawlipura, Taluka: Karanja.
District: Washim
.... PETITIONER
// VERSUS //
1. State of Maharashtra through
Additional Chief Secretary, Advisory,
Board, Home Department,
2nd Floor Mantralaya,
Mumbai-440032,
2. The Collector & District Magistrate,
Washim
3. Senior Police Inspector,
PSO of PS Karanja (City)
District: Washim
4. Sub Divisional Police Officer,
Washim Division, District : Washim
....RESPONDENTS
....
_______________________________________________________
Shri Parvez W. Mirza, learned counsel for the petitioner.
Shri S.S. Doifode, learned APP for the respondents/State.
____________________________________________________________
333 cr. wp 75.22.odt
2
CORAM : SUNIL B. SHUKRE AND G. A. SANAP, JJ.
DATE : 28/06/2022
ORAL JUDGMENT: (Per: SUNIL B. SHUKRE, J.)
1. Heard. Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel for the parties.
2. Upon careful perusal of impugned detention order, we find that learned counsel for the petitioner is right in his submission that when the Investigating Officer did not think it fit to arrest the petitioner in any of the core crimes which have been considered while passing the detention order, it is quite strange to find that preventive detention of such a person is necessary.
3. Shri S.S. Doifode, learned APP submits that there was an intimation given by the Investigating Officer to the petitioner under Section 41(A-1) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") and therefore, it cannot be said that no control whatsoever was exercised upon the petitioner. He also submits that since this control was found to be inadequate, in view of what is stated by confidential 333 cr. wp 75.22.odt 3 witnesses, it became necessary that the petitioner was preventively detained by invoking the provisions of (Maharashtra Prevention Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black Marketing of Essential Commodities Act, 1981 (for short the "MPDA Act, 1981") and as such nothing wrong could be found in issuing intimation under Section 41-A (1) of the Cr.P.C.
4. The argument of Shri S.S. Doifode, learned APP appears to be sound but only at the first blush. Sometimes, the authorities may find that the control measures initiated by them, Section 41-A (1) Cr.P.C. is one of the control measures, are inadequate to prevent an offender from repeating his unlawful activities and outrageous conduct. Therefore, the authorities would be justified in invoking power of preventive detention under the provisions of MPDA Act, 1981. But, for such invocation, it is necessary that there is sufficient material available on record. In the present case, however, we find that there is absolutely no material available on record which would have enabled the detaining authority to reach his subjective satisfaction regarding the need for preventing 333 cr. wp 75.22.odt 4 activities of the petitioner which were prejudicial to the maintenance of public order in future.
5. It is seen that the detaining authority has relied upon the four crimes registered against the petitioner under different provisions of Maharashtra Prohibition Act, 1949 and also two statements of confidential witnesses. So far as the crimes registered under the Maharashtra Prohibition Act, 1949 are concerned, we have already found substance in the argument of learned counsel for the petitioner that it would be wrong to say that even for these crimes detention of the petitioner was necessary on the ground that the petitioner was habitual bootlegger.
6. This is for the reason that for these very crimes, the Investigating Officer did not think it fit to arrest the petitioner. Arrest for these crimes, which are cognizable, was possible for the Investigating Officer by recording his requisites satisfaction under Section 41-(1)(ii)(a) of the Cr.P.C. which lays down that Police Officer may without an order of Magistrate and without a warrant, arrest any person if he is satisfied that such arrest is necessary, for the reason inter-alia, of preventing such person 333 cr. wp 75.22.odt 5 from committing any further offence. Such being the nature of the power of the Investigating Officer, which power Investigating Officer has not exercised in the present case, it cannot be said that registration of four bootlegging crimes against the petitioner provided any reasonable material for detaining authority to arrive at his requisite satisfaction.
7. If the four bootlegging crimes registered against the petitioner are excluded from the material available for the detaining authority to reach his subjective satisfaction, what would remain would be the statements of two confidential witnesses. Now, if we take a look at these statements, we would find that it is very difficult to find that the incidents mentioned therein had any live link with the object sought to be achieved by passing the detention order.
8. This could be seen from a close consideration of these statements. In the first statement, it is seen that no period of the incident has been mentioned and therefore, it cannot be ascertained that the incident stated therein had occurred in the recent past so as to have any material bearing upon the satisfaction to be reached by the detaining authority.
333 cr. wp 75.22.odt 6 This statement therefore, would not constitute any relevant material for the purpose of the present case.
9. About the second statement, the alleged incident of threatening appears to have occurred in January, 2021, which is quite an old incident, for the detention order passed in November, 2021. Therefore, even this statement does not bear out any live link with the purpose of detention order.
10. Such being the nature of both the statements, we do not think that they could have been considered as constituting any relevant material for reaching the subjective satisfaction by the detaining authority.
11. The impugned order, it is further seen, also does not explain as to how bootlegging activity per se and by itself would adversely affect public order. Any bootlegging activity in which involved is manufacture of illicit liquor can be presumed to be adversely affecting public health. But, there is no presumption in fact or law that every incidence of disturbance of public health would necessarily result in disturbance of public order. Covid-19 pandemic is the biggest 333 cr. wp 75.22.odt 7 example of this preposition. During that period of time, public at large was afflicted with Covid-19 infection. It was an en masse phenomenon but, our common experience has shown that it did not lead to disturbance of public order in general. Therefore, the authorities would be required to satisfy themselves as to how disturbance of public health in certain cases would result in also disturbance of public order. Such satisfaction has not been reached in the present case.
12. For all these reasons, we find that the impugned order is bad in law and must go.
13. The petition is allowed in terms of prayer clause- (1), which reads thus:-
"Quash and set aside the impugned order dated 30/11/2021 passed by the Respondent No.2, in Case No.D.O. No. Desk-2/HA/HOME/WS/931/2021 (Annexure-C), and confirmation order dated 05/01/2022 passed by the Respondent No.1 (Annexure-F), in the interest of justice and direct the respondents to release the petitioner."
333 cr. wp 75.22.odt 8
14. The petitioner is directed to be set free forthwith, if not required in any crime.
JUDGE JUDGE
manisha
Signed By:MANISHA ALOK
SHEWALE
Signing Date:30.06.2022 18:10