Bombay High Court
Mohan S/O Nurchand Chavan vs The State Of Maharashtra And Others on 7 March, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:4814-DB
1 cri wp 1900.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1900 OF 2023
Mohan Nurchand Chavan,
Age - 43 years, Occu. : Labour,
R/o Akhatwada Tanda, Post
Palaswadi, Tq. Khultabad,
Dist. Chhatrapati Sambhajinagar. .. Petitioner
Versus
1. The State of Maharashtra
Through Section Officer,
Home Department (Special)
2nd Floor, Mantralaya, Mumbai.
2. The District Magistrate,
Collector Office,
Chhatrapati Sambhajinagar.
3. The Superintendent,
Central Prison, Harsool (Aurangabad)
Chhatrapati Sambhajinagar. .. Respondents
Shri Ravindra V. Gore, Advocate for the Petitioner.
Shri V. K. Kotecha, A.P.P. for the Respondent Nos. 1 to 3.
CORAM : MANGESH S. PATIL AND
SHAILESH P. BRAHME, JJ.
CLOSED FOR JUDGMENT ON : 01.03.2024
JUDGMENT PRONOUNCED ON : 07.03.2024
JUDGMENT (Per Shailesh P. Brahme, J.) -:
. Rule. Rule is made returnable forthwith. Heard both the
sides finally with their consent.
2 cri wp 1900.23
2. The petitioner has assailed order of detention dated
13.10.2023 passed by respondent No. 2/District Magistrate
Aurangabad and order of confirmation dated 04.12.2023 passed
by respondent No. 1/State of Maharashtra, under provisions of
the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug Offenders and Dangerous Persons
and Video Pirates Act, 1981 (hereinafter referred as to the
'M.P.D.A. Act' for the sake of brevity and convenience).
3. Respondent No. 2/Detaining Authority found that the
petitioner is a bootlegger. For arriving at subjective satisfaction,
four offences and two in camera statements have been taken into
account. The offences considered by the authorities are as
follows :
Sr. Police Station CR No. & Under Section Present
No. Date Status
01. State Excise 90/2023 Dt. U/Sec. 65(k)(e)(f) Pending
Department, C- 06.05.2023 of the Trial
Division, Sillod, Maharashtra
Chhatrapati Prohibition Act,
Sambhajinagar. 1949
02. State Excise 148/2023 Dt. U/Sec. 65(f) of Pending
Department 19.05.2023 the Maharashtra Trial
Divisional Prohibition Act,
Flying Suqad, 1949
Chhatrapati
Sambhajinagar.
03. Sub Inspector, 148/2023 Dt. U/Sec. 65(e)(f) of Pending
State Excise 19.05.2023 the Maharashtra Trial
Department, C- Prohibition Act,
1, Kannad, 1949
Chhatrapati
3 cri wp 1900.23
Sambhajinagar.
04. Inspector, State 155/2023 Dt. U/Sec. 65(e) of Pending
Excise 28.07.2023 the Maharashtra Trial
Department, C- Prohibition Act,
Division, Sillod 1949
Chhatrapati
Sambhajinagar.
4. The record reveals that the impugned order was passed on
13.10.2023. The petitioner is served with relevant papers and
grounds of objection on 17.10.2023. On 03.11.2023 he made
representation to respondent No. 3/Superintendent. He received
notice dated 20.11.2023 intimating hearing before the Advisory
Board through video conferencing scheduled on 30.11.2023. On
30.11.2023 he was heard. On 04.12.2023, respondent No. 1
passed order confirming order of detention. With these
undisputed facts, we proceed to examine the matter on merits.
5. The learned counsel for the petitioner submits that his
representation dated 03.11.2023 has not been placed before
Advisory Board with three weeks from the date of detention,
which is against the provisions of Sec. 10 of the M. P. D. A. Act.
He would further submit that subjective satisfaction of the
detaining authority is perverse. There is no cogent material to
resort to the drastic action under the M. P. D. A. Act. There is no
live link. Unexplained delay vitiates impugned orders. It is
further submitted that the petitioner is being served with notices
U/Sec. 41-A of the Code of Criminal Procedure for the offences
pitted against him which should work as a mitigating factor.
Learned counsel would refer to the judgments of this Court in
4 cri wp 1900.23
the matters of Prakash Chandrakant Kanjar Vs. State of
Maharashtra Cri. W. P. No. 1285 of 2023 dated 19.10.2023
and Sandeep Govind Pawar Vs. The State of Maharashtra others
reported in 2023(5) Mh.L.J. (Cri) 124.
6. The learned Assistant Public Prosecutor would repel the
submissions on the basis of three affidavits in reply. According
to him, relevant material has been taken into consideration for
arriving at the subjective satisfaction. He would submit that the
petitioner has been indulging in illegal activities not only
between 06.05.2023 and 28.07.2023, but even before that. There
is no delay in passing the impugned order. After impugned order
was passed, the papers were placed before Advisory Board within
stipulated time. The petitioner was heard and thereafter order
was passed on 04.12.2023, confirming the order of detention. He
would submit that there is no violation of statutory procedure.
He has placed reliance on our judgment dated 17.01.2024 in
the matter of Vinod Dhannulal Jaiswal Vs. District
Magistrate, Aurangabad and others in Cri. W. P. No. 1430
of 2023.
7. We have considered submissions of both the parties. We
have perused pleadings and gone through the papers. The
petitioner is held to be bootlegger. The last offence bearing CR
No. 155/2023 was registered on 28.07.2023. In camera
statements were recorded and they were verified by the
competent authority. The respondent No. 1 approved detention
order on 20.10.2023. On 03.11.2023 the petitioner submitted
5 cri wp 1900.23
representation.
8. It is case of the petitioner that his representation dated
03.11.2023 was not placed before the Advisory Board within a
period of three weeks as contemplated U/Sec. 10 of the M. P. D.
A. Act. The petitioner has produced on record representation
submitted on 03.11.2023 to the respondent No. 3. There is postal
acknowledgment on record. Our attention is invited to notice
dated 20.11.2023 intimating the date of hearing scheduled on
30.11.2023. The petitioner is called upon to make representation
by this notice. Learned counsel for the petitioner has tendered
on record a photo copy of track consignment to show that on
04.11.2023 his representation was delivered to the respondent
No. 3.
9. As regards compliance with Section 10 of the M. P. D. A.
Act, which is a statutory right of the detenu, as per Section 8(1)
of the M. P. D. A. Act a detenu has a right to make a
representation. Affidavits in reply are silent on this aspect of the
matter. We called upon learned A. P. P. to clarify as to when
representation dated 03.11.2023 was received and whether it
was placed before the Advisory Board within three weeks from
the date of detention. Learned A.P.P. failed to tender any
explanation. This aspect has also not been dealt with in reply
filed by the respondents. It can be safely concluded that the
representation dated 03.11.2023 reached the respondent No. 3 on
04.11.2023. Respondent No. 3 should have placed it before the
Advisory Board within three weeks. Notice dated 20.11.2023
6 cri wp 1900.23
shows that the representation received by respondent No. 3 was
not at all forwarded to respondent No. 1. Otherwise, petitioner
would not have been called upon to submit any representation.
There is violation of Section 10 of the M. P. D. A. Act, which has
caused prejudice to the petitioner. This is against the safeguard
provided by Article 22(5) of the Constitution of India.
10. Though the petitioner made another representation on
25.11.2023, his earlier representation was not placed before the
Advisory Board along with the proposal. The procedural flaw
goes to the root of the matter and vitiates entire action against
the petitioner.
11. As regards the ground of absence of live link, last offence
was registered on 28.07.2023 and impugned order was passed on
13.10.2023. In camera statements were recorded on 08.09.2023
and 11.09.2023. This delay from 28.07.2023 (registration of last
offence) and 08.09.2023 has not been explained by the
respondents. This could have been avoided. Affidavits in reply
do not provide satisfactory explanation for the delay in passing
impugned order. We, therefore, find merit in the submission of
the learned counsel for the petitioner.
12. The petitioner was served with notice U/Sec. 41-A of the
Cr. P. C. for the offences pitted against him. This is indicative of
the fact that if he is being at large would not be prejudicial to the
public order. The petitioner refers to the judgment of the
Division Bench of this Court in the matter of Sandeep Govind
7 cri wp 1900.23
Pawar Vs. State of Maharashtra and others (supra). We have
considered para Nos. 12 and 13. However, learned A. P. P. has
rightly pointed out view taken by us in the latest judgment
rendered in the matter of Vinod Dhannulal Jaiswal Vs. District
Magistrate, Aurangabad and others (supra). We have elaborately
considered this aspect of the matter in paragraph No. 36 to hold
that without arresting detenu if only a notice U/Sec. 41-A of the
Cr. P. C. is served upon him would not be a mitigating factor.
We do not find any merit in the submission of the petitioner.
13. The learned counsel for the petitioner vehemently argued
that offences pitted against him are not sufficient to justify
action of detention under the M. P. D. A. Act. We find that in all
four offences under the provisions of the Maharashtra
Prohibition Act have been taken into account. Relevant police
papers of the offences are placed on record. We find that the
petitioner indulged in criminal activity regularly and within
short span. Considering the quantum of illicit liquor involved in
the offences the detaining authority has rightly recorded that the
activity is against the public order. In camera statements do
support the offence. We are of the considered view that
subjective satisfaction of the detaining authority cannot be
faulted with.
14. As we have recorded findings on the point of delay and non
consideration of representation in favour of the petitioner, we are
inclined to allow this petition. We are being consistent with the
law laid down vide judgment dated 04.03.2024 in the matter
8 cri wp 1900.23
of Santosh Koli Vs. State of Maharashtra in Cri. W. P. No.
1858 of 2023.
15. For the reasons recorded above, we pass following order.
ORDER
(i) The criminal writ petition is allowed in terms of prayer clause "B".
(ii) The petitioner shall be set at liberty forthwith.
(iii) Rule is made absolute in above terms.
[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ] bsb/March 24