Bombay High Court
Vinod Rajendra Wakare vs State Of Maharashtra And Ors on 2 September, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:35774-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 15496 OF 2024
Vinod Rajendra Wakare,
Age : 27, Occu.: Labour,
R/at : Walmikinagar, Near Shriram
Temple, Waghadi, Panchvati, Nashik.
(Presently lodged at Nashik Road
Central Prison, Nashik) .. Petitioner
Versus
1. The State of Maharashtra
through
Secretary Advisory Board, Home
Department, Desk Special Team, New
Administration Building, Mantralaya,
Mumbai - 400 032.
2. Additional Chief Secretary,
Home Department, Mantralaya,
Mumbai - 400 032.
3. Mr. Sandeep Karnik,
The Commissioner of Poilce, Nashik
City, Nashik.
Office : Gangapur Road, Nashik.
4. Through District Magisterte, Nashik
Collector Office, Tarabai Park, Kolhapur
- 422 001.
5. The Superintendent of the Jail, Nashik
Central Open Jail, Nashik - 422 006. .. Respondents
Chaitanya
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...
Mr. Harshvardhan B. Suryavanshi, for the Petitioner
Ms. M. H. Mhatre, A.P.P., for the State-Respondent.
...
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 2nd SEPTEMBER, 2024
JUDGMENT (PER MANJUSHA DESHPANDE, J.) :-
1. The Petitioner herein is assailing the Order issued by the Commissioner of Police, Nashik, dated 07.05.2024, in exercise of his 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. ("the MPDA Act"). According to the Petitioner, he has been detained in Central Prison, Nashik, without following due procedure of law.
2. On 07.05.2024, the Order of Detention alongwith Grounds of Detention and Committal Order, have been served upon the Petitioner. In furtherance of Order of Detention, he is presently lodged at Central Prison, Nashik.
Chaitanya
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3. It is the contention of the Petitioner that he has made a representation to the State Government, Mantralaya, Mumbai, as well as the Advisory Board on 15.06.2024 and 18.06.2024 respectively. The Order of Detention was confirmed by the State Government on 04.07.2024, which was served on the Petitioner on 16.07.2024. It is his contention that, his detention is in violation of the fundamental rights, guaranteed under the Constitution of India, therefore he has challenged the Order of Detention on the grounds mentioned in the memo of the Writ Petition.
4. While making his submissions, the Petitioner has raised a ground that the report as contemplated under Section 3(3) of the MPDA act, has not been sent to the State Government "forthwith". It is his contention that the said report has been sent after seven days of his detention. Therefore, it has not been sent forthwith and with a sense of urgency, by the Detaining Authority making the detention illegal, as has been declared by this Court in number of judicial pronouncements. However, the intent of Section 3(3) of the MPDA Act, is unambiguous, it contemplates that the order issued by the Detaining Authority has to be approved by the State Government within 12 days of passing of the Order. The Chaitanya ::: Uploaded on - 06/09/2024 ::: Downloaded on - 26/09/2024 22:55:22 ::: 4/12 Judgement-Wp-St-15496-2024.doc report is to be sent forthwith, in order to enable the State Government to approve the said Order of Detention within the prescribed period. The said provision does not lay down any time limit for sending the report to the State Government, it only contemplates approval to be granted by the State Government within 12 days. Hence, there is no substance in this ground raised by the Petitioner.
5. The learned counsel for the Petitioner has drawn our attention to the Ground No.3 of Grounds of Detention, wherein list of offenecs committed by the Petitioner is reproduced by the Detaining Authority, while passing the Order of Detention. The Detaining Authority has relied on three offences and two confidential statements. The three offences which have been relied, are C.R. No. 315 of 2023, dated 12.12.2023, registered under Section 65(e) of the Maharashtra Prohibition Act; the second offence is registered vide C.R. No.320 of 2023, under Section 65(e) of the Maharashtra Prohibition Act, on 21.12.2023 and the third offence has been registered on 09.03.2024, vide C.R. No. 36 of 2024, registered under Section 65(e) of the Maharashtra Prohibition Act.
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While statement of witness 'A' has been recorded on 01.04.2024 for the incident that had occurred in first week of February, 2024 and statement of witness 'B' has been recorded on 02.04.2024 for the incident that had occurred in March, 2024. Relying on the three offences and two in-camera statements, the Detaining Authority has recorded his satisfaction that the Petitioner is a 'Bootlegger', within the meaning of Section 2(b) of the MPDA Act. It is observed that, the action taken against the Petitioner under normal law of the land, was found to be insufficient and ineffective to deter him from indulging in the bootlegging activities, therefore the Order of Detention has been issued against the Petitioner.
6. The Detaining Authority has reproduced the history of bootlegging activities of the Petitioner in para No.3 of the Grounds of Detention. While considering his bootlegging activity, the Detaining Authority has observed that he is in a 'habit' of committing similar crimes, which is not a necessary characteristic in order to attract Section 2(b) of the MPDA Act. As far as 'habit' is concerned, it is a characteristic of a 'Dangerous Person', as defined under Section 2(b-1) of the MPDA Act. The Petitioner is classified as a 'bootlegger' therefore only the activities covered under the definition of Chaitanya ::: Uploaded on - 06/09/2024 ::: Downloaded on - 26/09/2024 22:55:22 ::: 6/12 Judgement-Wp-St-15496-2024.doc bootlegger would be applicable to the Petitioner.
7. It is the contention of the Petitioner that the Detaining Authority has passed the Order of Detention mechanically and in a very casual and cavalier manner. The order suffers from total non application of mind, resulting in his Detention, hence it is required to be quashed and set aside.
When we have perused the Grounds of Detention, the Detaining Authority has declared the Petitioner to be a 'bootlegger' as defined in the said Act. The bootlegging activities of the Petitioner are alleged to have created threat to the maintenance of public order in the area. The Petitioner is alleged to have sold Hatbhatti Liquor, which is harmful and dangerous to human health. Reliance is also placed on the opinion given by the Civil Surgeon, District Civil Hospital, Nashik, about likelihood of causing death and casualties by consuming the hatbhatti liquor sold by the Petitioner.
While recording his bootlegging activity, the Detaining Authority has referred to the cases registered against him and observed that he is in 'habit' of committing similar crimes. While declaring him to be a bootlegger, the Detaining Authority has referred to the six offences, which Chaitanya ::: Uploaded on - 06/09/2024 ::: Downloaded on - 26/09/2024 22:55:22 ::: 7/12 Judgement-Wp-St-15496-2024.doc have been re-produced in a tabular form. Those offences have been referred in order to demonstrate that the Petitioner in a habit of committing offences, under the Maharashtra Prohibition Act. The Petitioner is classifed as a 'bootlegger' under the MPDA Act, which is defined under Section 2(b), which reads thus :
"2(b) "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 above mentioned things by or through any other person, or who abets in any other manner the doing of any such thing ;
8. The said definition of 'bootlegger' does not contemplate habitual commission of offence under the Maharashtra Prohibition Act. On the other hand a 'Dangerous Person', defined under Section 2(b-1) of the MPDA Act, contemplates habitual commission of offence, which reads thus :
Chaitanya ::: Uploaded on - 06/09/2024 ::: Downloaded on - 26/09/2024 22:55:22 ::: 8/12 Judgement-Wp-St-15496-2024.doc [(b-1) "dangerous person" means a person, who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959.] Though, the Grounds of Detention communicated to the Petitioner reflects that, the Detaining Authority has classified the Petitioner as 'bootlegger' but, while doing so has also applied the characteristics of a 'Dangerous Person'.
9. The Detaining Authority has observed in Ground No.3 that, the Petitioner continued to indulge in bootlegging as well as violent activities thereby causing danger to human life and disturbance to the public order.
10. In Ground No.11, he has again observed that the Petitioner is a 'bootlegger' and the normal laws are not sufficient to curb his bootlegging and dangerous activities.
Though the Detaining Authority has classified the Petitioner as 'bootlegger', however simultaneously he has also referred the Petitioner's dangerous activities and has observed that his activities have created terror in the mind of people of Chaitanya ::: Uploaded on - 06/09/2024 ::: Downloaded on - 26/09/2024 22:55:22 ::: 9/12 Judgement-Wp-St-15496-2024.doc the locality. When a 'bootlegger' is causing disturbance to the maintenance of the public order, only the activities as defined under Section 2(a)(ii) as provided in the definition are to be considered. Only those activities which are mentioned in the definition would affect the maintenance of public order.
11. When a Detenu is classified under the MPDA Act, the Detaining Authority is required to strictly adhere to the definition of the category to which the Detenu is classified while passing the Order of Detention. The Detaining Authority has to satisfy himself about the activities of the Detenu which are detrimental to the maintenance of public order. He cannot be in two minds while issuing the Order of Detention. The satisfaction of the Detaining Authority should be based on sound grounds. The subjective satisfaction has to be clearly communicated to the Detenu, whenever he is detained under the Law of Preventive Detention. Since, the detention is a precautionary measure which curtails the individual liberty without being tried. The grounds should be clear and specific, in order to enable the Detenu to file an appropriate representation against such order. In the present case, the Detaining Authority does not seem to be sure as to which Chaitanya ::: Uploaded on - 06/09/2024 ::: Downloaded on - 26/09/2024 22:55:22 ::: 10/12 Judgement-Wp-St-15496-2024.doc activities of the Petitioner as a 'bootlegger' are causing disturbance to the maintenance of public order.
12. This Court, in a reported Judgment of Anil Preetam Kumbhar V/s. Commissioner of Police, Pune City and Ors., reported in 2018 SCC OnLine Bom 1967, had an occasion to consider similar order passed by the Detaining Authority, wherein this Court has observed that, the activities of a bootlegger are dangerous and they ought to be prevented, but the 'bootlegger' is not a 'Dangerous Person' as defined under the Act. Even the definition of 'activities prejudicial to the maintenance of the public order' is with reference to the activities of each category of persons in the MPDA Act. The activities in which the bootlegger is involved are brought within the sweep of the Act by defining the term 'bootlegger' and also defining each of the acts, which he commits. A 'Dangerous Person' has also been defined, alongwith the Acts and activities attributable to him. The activities that would result in prejudicially affecting the maintenance of public order also have been defined. There cannot be any confusion in the mind of the Detaining Authority. In the process of recording his subjective satisfaction, he cannot make a Chaitanya ::: Uploaded on - 06/09/2024 ::: Downloaded on - 26/09/2024 22:55:22 ::: 11/12 Judgement-Wp-St-15496-2024.doc departure and seek to bring him within the sweep of a dangerous person. In that process if the acts attributed to him are not possible to be brought within the sweep of the law by terming them as that of a bootlegger and prejudicial to the maintenance of public order, midway the Detaining Authority cannot change the track and hold that in his/her opinion he is also a Dangerous Person.
Thus, the subjective satisfaction has to be based on the grounds which are precise, pertinent and relevant, specific satisfaction has to be recorded in terms of law. The above observation's would squarely apply to the case in hand, where the Detaining Authority has tried to apply the characteristics of a 'Dangerous Person' when the Petitioner is classified as bootlegger.
13. The non-application of mind of the Detaining Authority can be gathered from the following observations recorded by him in the Grounds of Detention.
(i) The earlier offences of the Petitioner have been taken into consideration, in order to reflect his 'habit' of committing similar crimes, though he is classified as a 'bootlegger'. History of crimes of an offender is always required to be shown only in Chaitanya ::: Uploaded on - 06/09/2024 ::: Downloaded on - 26/09/2024 22:55:22 ::: 12/12 Judgement-Wp-St-15496-2024.doc respect of a person who is classified as a 'Dangerous Person'.
(ii) The last offence relied on by the Detaining Authority is registered on 09.03.2024, while the Detention Order is issued on 07.05.2024. The gap in the last offence and Order of Detention has not been explained by the Detaining Authority, as a result the live link is snapped.
Therefore, considering the above glaring instances of non-application of mind by the Detaining Authority makes the said Order of Detention unsustainable and therefore is required to be quashed and set aside.
14. Accordingly, the Order of Detention dated 07.05.2024, issued by the Commissioner of Police, Nashik, is hereby quashed and set aside and Rule is made absolute in terms of prayer clause (B).
"B. Issue a Writ of Habeas Corpus to the Respondents thereby quashing and setting aside the impugned detention order dated 07.05.2024 bearing No. Ref: 2024/MPDA/DET-07/CB-157 issued under section 3 of the M.P.D. Act 1981 by the Respondent and on quashing the same the Petitioner ordered for release forthwith;"
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.) Digitally signed by CHAITANYA CHAITANYA ASHOK Chaitanya ASHOK JADHAV JADHAV Date:
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