Bombay High Court
Dhanubai @ Dhanno Yashvant Netlekar vs The State Of Maharashtra And Others on 8 February, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:2720-DB
1 902.Cri.WP-1527-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No. 1527 / 2023
Dhanubai @ Dhanno Yashvant Netlekar
Age : 50 years, R/o Harivithal Nagar, Jalgaon,
Tal and District Jalgaon. ...Petitioner
Versus
1. State of Maharashtra
Home Department (Special)
Mantralaya, Mumbai.
2. The District Magistrate, Jalgaon,
Office of the District Magistrate, Jalgaon.
3. The Superintendent,
Woman Central Prison, Akola,
District Akola.
4. The Superintendent of Police, Jalgaon
7, Mahatma Gandhi Rd, Jilha Peth,
Pratap Nagar, Jalgaon - 425001.
5. Police Inspector,
Ramanandnagar Police Station, Jalgaon
Near Govt Engineering College,
Kolhe Nagar, Jalgaon 425001. ...Respondents
___
Mr. Vivek Punjabi h/f Mr. Pratik P. Kothari, Advocate for the Petitioner.
Mr. M.M. Nerlikar, Addil.P.P. for Respondent /State.
___
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CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ..
RESERVED ON : 12 JANUARY 2024
PRONOUNCED ON : 8 FEBRUARY 2024
JUDGMENT [ Per Shailesh P. Brahme, J.] :
. Rule.
2. Rule is made returnable forthwith with the consent of the parties.
Heard the learned Counsel for the litigating sides finally.
3. The petitioner has questioned an order dated 31.08.2023 passed
by the respondent no.2 detaining the petitioner by branding him as a
'bootlegger' under Section 3(2) of the Maharashtra Prevention of
Dangerous Activities of Slumlords Bootleggers, Drug-Offenders,
Dangerous Persons and Video Pirates Act, 1981 (hereinafter referred
to as the MPDA Act for the sake of brevity and convenience). The
impugned order is approved by the respondent no.1 under Section 3(3)
of the MPDA Act, on 11.09.2023. The Advisory Board confirmed the
order of detention vide order dated 17.10.2023.
4. The action under the provisions of the Act was taken against the
petitioner on the basis of the offences registered against her, the
preventive actions under Section 93 of the Maharashtra Prohibition
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Act and the two statements of the anonymous witnesses recorded
against her. The details of the offences registered against the
petitioner is recorded in paragraph no.4 of the impugned grounds of
detention. The gist of the depositions of the witnesses is recorded in
paragraph no.4.5 of the order of detention.
5. Considering the activities of the petitioner, the respondent
no.2/detaining authority formed subjective satisfaction in paragraph
no.8 that the petitioner falls in the categories of 'dangerous person' and
'bootlegger'. Her being at large is harmful to the lives of the public in
general and it would disturb public tranquility, law and order and
general public peace.
6. The petitioner has been held to be indulging in illegally selling
liquor. It is further recorded that the reports of the chemical analysis
collected during the course of investigation of various offences
registered against her, show percentage of the alcohol found in the
water to the tune of 24%, 20%, 8%, 23%, 14%, 9%, 18%. It is held to be
hazardous for consumption of general public and it is harmful for
human life which is likely to cause jaundice, accumulation of water in
stomach, cancer. It is likely to deplete blood level in the body, giving
rise to the risk of death.
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7. Learned Counsel for the petitioner submits that the petitioner
was acquitted in ten criminal cases registered under Section 65 of
Maharashtra Prohibition Act from time to time. In two cases, the
proceedings were closed under Section 258 of the Code of Criminal
Procedure. Only three actions were initiated under Section 93 of the
Prohibition Act. The petitioner has suffered conviction only in one case.
Therefore according to the Counsel, this material is not sufficient to
bring the petitioner within the ambit of dangerous person or a
bootlegger. Ordinary course of laws would be sufficient to deal with the
activities of the petitioner.
8. He would further submit that the reports of the chemical analysis
collected during the investigation of the offences registered against the
petitioner, do not spell out any opinion that the consumption of the
contraband would be dangerous for human consumption and hazardous
to public health. Without there being any experts' opinion, the
respondent no.2/detaining authority has arrived at conclusion in
paragraph no. 10 and 11 of the impugned order which reflects lack of
application of mind.
9. Learned Counsel for the petitioner submits that petitioner was
not arrested in any of the matters. Only on couple of occasions, she was
served with notice under Section 41 (A)(1) of Code of Criminal
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Procedure which shows that the activity alleged against the petitioner
is not of serious nature, requiring arrest. This would cast doubt on the
subjective satisfaction of the detaining authority. It is further
submitted that though the petitioner was running business since 8 to
10 years prior to the impugned action, no offence as such was
registered against her. The criminal activities of the petitioner is
confined to the offences under the provisions of Maharashtra
Prohibition Act and not under any other provisions of Penal Laws.
Hence it would be perverse to brand her as dangerous person and to
detain her.
10. Lastly learned Counsel would submit that entire action of the
respondent no.2 and the approving authority is without application of
the mind and the activities of the petitioner could have been curbed by
the regular criminal laws instead of resorting to MPDA Act.
11. To buttress the submissions, learned Counsel for the petitioner
seeks to rely upon following judgments :
(i) Devidas Lalji Ade Vs. State of Maharashtra & Ors.
2023 ALL MR (Cri) 130
(ii) Prakash Chandrakant Kanjar Vs. State of Maharashtra & Anr.
Criminal Writ Petition No.1285/2023.
(iii) Sandeep Govind Pawar Vs. State of Maharashtra & Ors.
2023 ALL MR (Cri) 698.
6 902.Cri.WP-1527-2023.doc
(iv) A.ST. Arunachalam Pillai Vs. Southern Roadways Ltd. & Anr.
AIR 1960 SC 1191.
12. The learned APP referred to the affidavit in reply to oppose the
petition and to justify the action taken against the petitioner by the
detaining authority which is confirmed by the respondent no.1. He
referred to the criminal antecedent of the petitioner, the papers of
investigation especially reports of the chemical analysis collected
during the course of investigation of the various offences against her.
Learned APP would refer to paragraph no.5 and 6 of grounds of
detention to demonstrate the material considered to arrive at subjective
satisfaction and objectively assessing her activities. He would refer to
paragraph no.7 to 12 of the grounds of order of detention to
demonstrate as to how subjective satisfaction is arrived at by the
detaining authority.
13. Learned APP submitted that the petitioner has indulged in the
criminal activities repetitively and has created a terror in the vicinity.
A deterrent action was required to be taken considering the notoriety of
the petitioner. The acquittal recorded against the petitioner in the
matters is not the sole relevant factor. Despite the preventive actions
taken against her, she has not stopped indulging in the criminal
activities.
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14. Learned APP submitted that the reports of the chemical analysis
collected in the various offences registered against the petitioner
demonstrate the percentage of the alcohol. The detaining authority has
rightly held that the consumption of a liquor is injurious to the public
health. He would vehemently submit that the activities of the
petitioner could not have been curbed by the regular criminal laws and
therefore the drastic action was required to be taken against her.
15. It is further submitted that the arrest of the petitioner is not
relevant consideration for taking action under the provisions of the
MPDA Act. Though the petitioner was served with a notice under
Section 41 (A)(1) of the Code it would not mean that the activities of
the petitioner is of the lesser evil. Learned APP would submit that the
impugned action seeks to achieve two purposes, deterrent and
reformative.
16. Learned APP seeks reliance upon the following judgments :
(i) Pesala Nookaraju Vs. Government of Andhra Pradesh;
Criminal Appeal No.2304/2023
(ii) Ambhika Magasvargiya Mastyavaivasaik Sahakari Sanstha
Maryadit Vs. State of Maharashtra & Ors., W.P. No.8607/2019
(iii) Ramesh Balu Chavan Vs. Commissioner of Police Solapur, 2017
ALLMR (Cri.) 3683
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17. Before we enter into the merits of the matter, it would be relevant
to refer to the objections raised by the learned APP Mr. Mahendra
Nerlikar, for following submissions made by the petitioner for the first
time in the High Court :
(i) The petitioner was acquitted from ten offences and has not been
arrested in any of the offences and as such there is no incriminating
material against him to arrive at subjective satisfaction.
(ii) The petitioner was being served only with a notice under Section
41 (A)(1) which is indicative of the fact that his arrest was not
required.
(iii) There is no subjective satisfaction as the reports of the chemical
analysis which are sought to be pitted against the petitioner do not
spell out opinion that consumption of contraband was injurious to
public health.
18. He would submit that the petitioner was granted leave to amend
the petition by order dated 22.12.2023. Without amending memo, the
learned Counsel for the petitioner preferred to work out the matter and
argued certain points which are not incorporated in the grounds of
objection of the petition. Learned APP submits that he is surprised by
the submissions of the petitioner and he has no opportunity to deal with
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the submissions as affidavit-in-reply was already filed. Learned APP
submits that if a petition is filed under Chapter XVII, Rule 1 of High
Court Appellate Side Rules, it is incumbent to raise specific grounds of
objections.
19. Learned Counsel for the petitioner has countered the above
submissions. He would submit that already grounds of objection
especially ground no. F and G have been raised and there was sufficient
opportunity to the respondent to counter the submissions. He would
submit that the submissions advanced by the petitioner are borne from
the grounds of detention and record. No submission is advanced which
is alien to the reasoning or the grounds of objection of the detaining
authority. He would further submit that the submissions go to the root
of the matter and it is permissible to raise such grounds.
20. Learned APP has relied upon the order passed by the Division
Bench on 14.02.2022 in the matter of Ambhika Magasvargiya
Mastyavaivasaik Sahakari Sanstha (supra) as well as Ramesh Balu
Chavan (supra) to buttress the preliminary objection. Learned Counsel
for the petitioner has countered it by relying upon judgments of the
Supreme Court in the matter of A.ST. Arunachalam Pillai (supra).
10 902.Cri.WP-1527-2023.doc
21. We have considered the rival submissions of the parties on the
ground of preliminary objection. The petition has been filed under
Article 226 and 227 of the Constitution of India. The grounds of
detention cum reasons assigned by the respondent no.2/detaining
authority are assailed by the petitioner. The present matter falls under
the provision of Chapter XVII Rule 18 of the Appellate Side Rules. If
petition is purely filed under Article 226 of the Constitution of India
then it would fall under Chapter XVII Rule 1. In the present matter,
the petitioner is not invoking original jurisdiction of the High Court.
The composite jurisdiction original and supervisory is being invoked by
the petitioner. Therefore the order which is sought to be relied by the
learned APP in the matter of Ambhika Magasvargiya Mastyavaivasaik
Sahakari Sanstha (supra) would have no application to the matter in
hand.
22. We have not been pointed out any submission made by Counsel
which is not dealt with by the detaining authority. Neither anything is
being pointed out by the respondents which is being raised for the first
time in the writ petition. The submissions are being borne from the
record produced before the detaining authority. We are of the
considered view that when the High Court is examining sustainability
of orders of detention referring to the grounds of objections and reasons
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for arriving of subjective and objective satisfaction, no separate ground
of objection need to be incorporated in the memo when those are
already borne from the record.
23. Only when the submission which is totally alien or which is
outside the record placed before the detaining authority or which is
being pressed into service for the first time in the High Court need an
incorporation in the memo of petition. The petitioner has already raised
ground no. F and G. The submission in respect of purport of report of
chemical analysis or purport of notice under Section 41 (A)(1) of the
Code, are borne from the record. We find the preliminary objection
raised is unsustainable. If the submissions go to the root of the matter
then those are required to be considered by the Writ Court. We find
that the submissions raised by the petitioner are substantive and need
adjudication.
24. We have considered the submissions of the learned Counsel on
merits. We have gone through the relevant record with the assistance
of learned Counsel. The impugned order of detention was passed on
31.08.2023. The proposal under Section 3(3) of the Act was approved
on 11.09.2023 by the respondent no.1. Thereafter the matter was
placed before the advisory Board. The petitioner was heard on
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09.10.2023. The Advisory Board confirmed the order of detention by
order dated 17.10.2023.
25. Learned Counsel for the petitioner submitted that the detaining
authority has recorded in paragraph no. 11 that the contraband seized
from the petitioner in various offences is harmful to the human lives
and considering the percentage of the alcohol, it is hazardous for
human consumption. We have gone through the reports of the chemical
analysis in respect of the liquid collected during the course of
investigation of the respective offences under Section 65 of the
Maharashtra Prohibition Act. We do not find that in any of the
reports, there is a specific opinion of the analyzer that consumption of
the liquid would be dangerous to human lives. We have not been
pointed out any material on record on the basis of which, the subjective
satisfaction has been arrived at by the detaining authority. The
respondent no.2/detaining authority is not an expert. To come to
conclusion that consumption of contraband having particular
percentage of alcohol would be hazardous to public lives, need an
expert's opinion. In the absence of the exercise required to be
undertaken by the detaining authority to confirm from the experts, the
consequences and repurcation recorded in paragraph no.11 of the
grounds of detention are unsustainable and perverse.
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26. A useful reference can be made to the judgment rendered by a co-
ordinate bench in the matter of Satyavan Shakha Rathod Vs.
Commissioner of Police and Others in Criminal Writ Petition Stamp
No. 15879/2023 decided on 25.10.2023 which is squarely applicable to
the facts of the present matter for quashing the detention order.
Similar type of arguments were noted by the Apex Court in the matter
of District Collector, Ananthapur Vs. V. Laxmanna, (2005)3 SCC 633.
Paragraph No.7 and 8 reads as follows :
"7. We do not think that this argument of the learned counsel can be accepted. If the
detention is on the ground that the detenu is indulging in manufacture or transport or
sale of arrack then that by itself would not become an activity prejudicial to the
maintenance of public order because the same can be effectively dealt with under the
provisions of the Excise Act but if the arrack sold by the detenu is dangerous to public
health then under the Act, it becomes an activity prejudicial to the maintenance of
public order, therefore, it becomes necessary for the detaining authority to be satisfied
on material available to it that the arrack dealt with by the detenu is an arrack which is
dangerous to public health to attract the provisions of the Act and if the detaining
authority is satisfied that such material exists either in the form of report of the
Chemical Examiner or otherwise, copy of such material should also be given to the
detenu to afford him an opportunity to make an effective representation.
8. Therefore, while holding that dealing with arrack, which is dangerous to public
health would become an act prejudicial to the maintenance of public order attracting
the provisions of the Act, it must be held that it is obligatory for the detaining
authority to provide the material on which it has based its conclusion on this point.
Therefore, we are in agreement with the High Court that if the detaining authority is
of the opinion that it is necessary to detain a person under the Act to prevent him from
indulging in sale of goods dangerous for human consumption the same should be
based on some material and the copies of such material should be given to the detenu."
14 902.Cri.WP-1527-2023.doc
27. In this regard, learned Counsel for the petitioner is justified in
placing reliance upon the judgments of Prakash (supra); the relevant
paragraph 15 reads as follows :
"15. So far as regards the challenge on the other ground is concerned, it is to be
stated that, registration of the last two crimes, being C.R. No.31/2023 and
159/2023 and two in-camera statements appear to have triggered the sponsoring
authority to put up a proposal for petitioner's detention. Admittedly, C.A. reports
of the illicit liquor seized from the petitioner appear to have not been available
for being presented before the detaining authority. There was, therefore, nothing
before the detaining authority to reach to a conclusion that the illicit liquor
seized from the petitioner in those two crimes was unfit for human
consumption. Although there were C.A. reports pertaining to the illicit liquor
seized from the petitioner in connection with the other crimes relied on, none of
the C.A. reports indicate the said liquor was unfit or hazardous for even
consumption although it contained ethyl alcohol in different percentage. The
facts of the case in case of Pesala (supra) would indicate the seized illicit liquor
therein was subjected to chemical analysis. The C.A. reports indicate the same
was unfit for human consumption. It is true that the detaining authority has, in
the order of detention, observed the consumption of illicit liquor was harmful.
However, there was no material before him to substantiate his view. In case of
Pesala, the Apex Court, observed in paragraph No.65 as under :
"65. Just because four cases have been registered against the appellant detenu
under the Prohibition Act, by itself, may not have any bearing on the
maintenance of public order. The detenu may be punished for the offences which
have been registered against him. To put it in other words, if the detention is on
the ground that the detenu is indulging in manufacture or transport or sale of
liquor then that by itself would not become an activity prejudicial to the
maintenance of public order because the same can be effectively dealt with under
the provisions of the Act 1986, it becomes an activity prejudicial to the
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maintenance of public order, therefore, it becomes necessary for the detaining
authority to be satisfied on material available to it that the liquor dealt with by
the detenu is liquor which is dangerous to public health to attract the provisions
of the 1986 Act and if the detaining authority is satisfied that such material exists
either in the form of report of the Chemical Examiner or otherwise, copy of such
material should also be given to the detenu to afford him an opportunity to make
an effective representation."
28. Learned Counsel for the petitioner vehemently submitted that
there is only one conviction recorded against the petitioner and in
almost ten matters, she was acquitted. According to him the alleged
criminal activity of the petitioner can be dealt with by the regular
criminal law and resorting to MPDA Act is not required. We have
considered the criminal antecedents of the petitioner. It reveals from
record that there are in all sixteen offences registered against her. All
the offences are under the provisions of Section 65(e) of Maharashtra
Prohibition Act. Out of them, she was acquitted in ten offences. Only in
case of offence bearing No.65/2021 there is imposition of fine of
Rs.300. In case of two offences, the matter was directed to be closed
under the provisions of Section 258 of the Code of Criminal Procedure.
In three cases, the proceedings are still pending at various levels.
29. It also reveals that the preventive action has been taken against
the petitioner under Section 93 of the Maharashtra Prohibition Act on
three occasions. After the last preventive action registered on
24.07.2023 bearing no. 5/2023, only one offence bearing C.R. No.
16 902.Cri.WP-1527-2023.doc
267/2023 has been registered under the provision of Section 65(e) of
the Prohibition Act. There appears to be tendency to indulge in
offences under the provisions of Maharashtra Prohibition Act. There
is no record available that any offence under other penal provisions has
been registered and action has been taken against the petitioner. After
last preventive action registered on 24.07.2023, only one offence
bearing C.R. No.267/2023 has been registered against her which
cannot be said to be alarming number. We do not find any aggravated
form of activity of the petitioner. We find that the petitioner could
have been dealt with under regular criminal law instead of resorting to
provision of MPDA Act.
30. The grounds of objection of detention recorded by respondent no.2
shows that in paragraph no.8, it is recorded that the petitioner falls
within the meaning of dangerous person as well as she is also branded
as a bootlegger. We are of the opinion that there is material on record
to suggest that petitioner can be branded as a bootlegger. But there is
no evidence on record to bring her within purview of 'dangerous
person'. The petitioner appears to be involved in a peculiar type of
offence under the prohibition act. We do not find that any other
offences registered against her under Indian Penal Code or any other
criminal law.
17 902.Cri.WP-1527-2023.doc
31. Learned Counsel for the petitioner has also referred to the
statements of two anonymous witnesses. The record shows that the
petitioner was indulging in the illegal activity of selling of liquor for
last 8 to 10 years preceding action of detention. The witnesses also
referred to the terror established by the petitioner and her notorious
activities of threatening, abusing the persons concerned. During this
period no offence under Chapter XVI or XVII of Penal Code has been
registered against her. Therefore, we find force in the submissions
made by the petitioner by referring to paragraph no.15, 16 and 18 of
the judgment of Devidas Lalji Ade (supra). They are as follows :
"15. That leaves three registered offences against the Petitioner i.e. C.R.Nos.
125/2021, 373/2021 and 468/2021 referred to herein above. Admittedly, in none of
these offences the Petitioner was arrested. He was merely served with a notice
under Section 41-A(1) of the Code of Criminal Procedure, 1973 in each offence.
That means the notice was given to the Petitioner where his arrest was not
required. Thus, in all these registered offences, the investigating agency did not
feel it necessary to arrest the Petitioner. In Paragraph No.4 of the grounds there
is a reference that the action was initiated under Section 93 of the Maharashtra
Prohibition Act for execution of bond on 06.09.2021. The bond was for security.
Those proceedings were dropped on 24.11.2021. No action was taken for the
alleged breach of the bond.
16. Thus, it is quite clear that action was knowingly not taken by the police
authorities under the ordinary law. In this view of the matter, resorting to this
extraordinary step of detaining the Petitioner by way of preventive detention
order can not be justified. In this context, observations of the Hon'ble Supreme
Court in the case of Mallada K Sri Ram Vs. State of Telangana and others reported
in 2022 SCC OnLine SC 424 are important. It is observed in Paragraph No.15 thus -
"A mere apprehension of a breach of law and order is not sufficient to meet
the standard of adversely affecting the "maintenance of public order". In
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this case, the apprehension of a disturbance to public order owing to a
crime that was reported over seven months prior to the detention order
has no basis in fact. The apprehension of an adverse impact to public order
is a mere surmise of the detaining authority, especially when there have
been no reports of unrest since the detenu was released on bail on 8
January 2021 and detained with effect from 26 June 2021. The nature of the
allegations against the detenu are grave. However, the personal liberty of
an accused cannot be sacrificed on the altar of preventive detention merely
because a person is implicated in a criminal proceeding. The powers of
preventive detention are exceptional and even draconian. Tracing their
origin to the colonial era, they have been continued with strict
constitutional safeguards against abuse. Article 22 of the Constitution was
specifically inserted and extensively debated in the Constituent Assembly
to ensure that the exceptional powers of preventive detention do not
devolve into a draconian and arbitrary exercise of state authority. The case
at hand is a clear example of non-application of mind to material
circumstances having a bearing on the subjective satisfaction of the
detaining authority. The two FIRs which were registered against the detenu
are capable of being dealt by the ordinary course of criminal law."
18. In the present case, the Petitioner was not even arrested in the three
registered offences and, therefore, these observations are applicable to the
present case. Learned APP submitted that the Petitioner's activities are
prejudicial to the maintenance of public order, however, the detaining authority
has failed to record a satisfaction as to why ordinary law of the land was
ineffective in curbing his activities. Merely stating that ordinary law of the land
was not effective to curb his activities is not enough. In the Petitioner's case no
steps were taken under normal law to curb his activities and hence it can not be
said they were ineffective. Therefore resorting to passing of the detention order
was not necessary. It shows non-application of mind on the part of the detaining
authority. In this situation, it was not necessary to have resorted to this
extraordinary remedy without exercising the powers under the ordinary law."
32. The learned Counsel for the petitioner has also sought reliance
upon the judgment of Prakash (supra). Paragraph no.23 is the
19 902.Cri.WP-1527-2023.doc
relevant to support the submissions of the petitioner which is as
follows :
"23. The aforesaid two in-camera statements have been verified by the Sub-
Divisional Police Officer. Relying on this statement, the learned A.P.P. would
submit that, the activities of the petitioner were necessarily prejudicial to
maintenance of public order. He would further submit that, it is well settled that,
whether material was sufficient or not is not for the Court to decide by applying
objective basis. The detaining authority had rightly arrived at the subjective
satisfaction based on the two in-camera statements. In our view, in first instance,
we are of the view that, it is very risky to rely on the only in-camera statements
to sustain the order of detention in the facts and circumstances of the case. Close
reading of both those statements no way lead to us to infer that the persons with
whom the witness had a wrangle, had consumed illicit liquor at the petitioner's
liquor den. The petitioner, giving threats to those 2 witnesses and his associates
manhandling them, was at the most, in the facts and circumstances of the case,
an issue of maintenance of law and order. The petitioner has been allegedly
running business of illicit liquor for 4 - 5 years next before the action of his
preventive detention was taken. There is not a single incident reported at the
police station alleging him to have abused and assaulted anyone. No crime for the
offences punishable under any of the Sections of the Indian Penal Code has ever
been registered against him with such allegations. It is, therefore, reiterated that,
the in-camera statements taken at their face value, it would at the most be a
question of law and order. Based on such statements alone, the order of
detention, in our view, in the present case, does not sustain. For all the aforesaid
reasons, we find the petition deserves to be allowed. Hence the order :
ORDER
(I) The Criminal Writ Petition is allowed in terms of prayer clause (b) and (c).
(ii) The petitioner be set at liberty forthwith if not required in any other case." . We are of the opinion that this aspect of the matter is not properly appreciated by the detaining authority. There is no subjective 20 902.Cri.WP-1527-2023.doc satisfaction on this aspect of the matter and the impugned order is unsustainable.
33. Learned Counsel for the petitioner has also made submissions on the purport of notice under Section 41(A)(1). However our bench has taken a view in the matter of Vinod (supra). The relevant portion of paragraph no.36 is as follows :
"36. It is to be noted that Section 41-A (1) of the Code of Criminal Procedure is to be resorted to by the Investigating Officer before arresting an individual and that provision would regulate his powers to arrest an individual. Needless to state that the arrest contemplated under the Code of Criminal Procedure for carrying out the investigation into a crime by resorting to custodial interrogation would be essentially for completing the investigation. Suffice for the purpose to observe that in the matter of Arnesh Kumar Vs. State of Bihar and Anr.; (2014) 8 SCC 273 the Supreme Court has laid down several guidelines which have to be borne in by the investigating Officer before arresting a person. We are pointing out the law to demonstrate that the submission of the learned advocate for the petitioner that the very fact that the I.O. did not feel necessary to arrest the petitioner although the crimes were registered would be indicative of the fact that even he did not require the petitioner to be sent behind the bars, is fallacious. The arrest for carrying out investigation into a crime would be for a limited purpose of facilitating the Investigating Officer to complete the investigation. Such arrest cannot be looked upon as an action which can be aimed at preventing the accused from indulging in a similar activity rather any such approach would be inconsistent with the mandate of law laid down in Arnesh Kumar (supra). The action of preventive detention under the preventive detention laws would be aimed at abating the specific activities of an individual whereas the arrest for the purpose of investigation cannot be aimed at preventing him from indulging in any such activity. Precisely for this reason, we are not in agreement with the submission of the learned advocate for the petitioner that petitioner being not arrested in the crimes should be taken into account to draw an inference that even the I.O. did not feel it necessary to abate his unlawful activities. In short the 21 902.Cri.WP-1527-2023.doc purpose of arrest in respect of crime is aimed at conclusion of the investigation, whereas, detention of a person under the preventive detention law is to prevent him from indulging in certain activities."
. We are not inclined to approve submissions in respect of notice under Section 41(A)(1) of the Code.
34. Learned APP has referred to judgment of Pesala (supra) especially paragraph no. 64, 65 and 71. The judgment of the Supreme Court is distinguishable on the facts. We have already expressed our reservations for the subjective satisfaction recorded by the respondent no.2 in the case in hand. Similarly, we are not in the agreement with learned APP for relying upon the judgment of the Division Bench in the matter of Ramesh Balu Chavan (supra).
35. Learned APP has not made any submissions on the application of Section 5A of the Act, albeit there is a plea raised in the affidavit-in- reply. We have already recorded that the subjective satisfaction of the detaining authority is not only doubtful but perverse. The material on record is not adequate to take recourse to the drastic provision of action under the Act. The criminal antecedent and the statements of two witnesses are not sufficient to show involvement of the petitioner to the criminal overtact under Penal Code or other Criminal Law. The grounds of detention which are the basis for passing impugned order 22 902.Cri.WP-1527-2023.doc are unsustainable. We do not find impediment of Section 5A of the Act to quash the impugned order.
36. For the reasons stated above, we are inclined to allow writ petition. We therefore pass following order.
ORDER
(i) The order dated 31.08.2023 passed by the respondent no.2/detaining authority, detaining the petitioner under Section 3(2) of MPDA Act is quashed and set aside.
(ii) Needless to state that the order of approval passed by the respondent no.1 dated 09.10.2023 is also unsustainable and quashed and set aside.
(iii) The petitioner shall forthwith be released from imprisonment. The rule is made absolute in above terms.
[SHAILESH P. BRAHME, J.] [MANGESH S. PATIL, J.] NAJEEB....