Bombay High Court
Haresh Vinayak Patil vs Shri D. Shivanandhan, Commissioner Of ... on 8 February, 2008
Author: Bilal Nazki
Bench: Bilal Nazki, S.A. Bobde
JUDGMENT Bilal Nazki, J.
1. Heard learned Counsel for the petitioner, as well as, the learned APP for the State and perused the record.
2. This writ petition is filed by the brother of the detenu challenging the order of detention passed against Sudarshan Vinayak Patil on 31.5.2007 under the provisions of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as "the Act"). Counter has been filed.
3. Learned Counsel for the petitioner submits that the grounds of detention disclose that the material that was before the Detaining Authority related to two cases, one was a case registered on 4.2.2006 being C.R. No. III-08/2006 under Section 65(b), (c), (d), (f), 66(b) and 81 of Bombay Prohibition Act, 1949. Another case was registered on 26.3.2007 being C.R. No. III-19/2007 under Section 65(e), (f) r/w Section 66(1)(b) of Bombay Prohibition Act, 1949. The other material on which the Detaining Authority relied were the statements of witnesses, whose identity was not disclosed to the detenu. During the discreet enquiry, those witnesses have been referred to in the grounds of detention as "A", "B" and "C".
4. Coming to the first case registered on 4.2.2006, the learned Counsel for the petitioner submits that this case was too remote in point of time as this has been registered 15 months before the order of detention was passed. He further submits that the report of the chemical analyser did not show that the liquor that was seized was in any way dangerous to human life or it was not fit for human consumption. As a matter of fact the chemical analyser had reported the sample No. 1 contained 7% v/v of ethyl alcohol and it could be used for the intoxicating liquor, which would in a way mean that if ethyl alcohol had been even used after distillation as intoxicating liquor, it would be safe for human consumption. Similar is the report with respect to the second case, which was registered on 26.3.2007. The witnesses who were examined in a discreet enquiry being "A", "B" and "C" have referred to certain instances, which according to them had taken place in which the detenu had terrorised the people or by which it could be inferred that the detenu was engaged in manufacture of illicit liquor. Learned Counsel for the petitioner submits that neither the criminal case is registered nor the statement recorded showed that the activity of the detenu was prejudicial to the public order or public health. He submits that public health will have to be read in the context of public order. In view of Explanation to Section 2 of the Act "Public Order" is defined as far as "bootlegger" is concerned in the following words:
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 animals, 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;" and the explanation to Section 2 reads as under:
For the purpose of this Clause (a), public order shall be deemed 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;
We have already interpreted Section 2(b) alongwith the Explanation in the earlier Judgment of this Court [Criminal Writ Petition No. 886 of 2007 Sharad Vishnu Patil v. Shri D. Shivanandhan, Commissioner of Police, Thane and Ors. dated 25.1.2008]. That interpretation was given by us on the basis of the Judgment of the Supreme Court reported in the case of District Collector, Ananthapur and Anr. v. V. Laxmanna 2005 SCC (Cri.) 882. The Supreme Court held in paragraph 8 as under:
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.
The learned Counsel for the petitioner has drawn our attention to the Judgment of the Division Bench of this Court reported in the case of Smt. Gobibai Ghanavat v. State of Maharashtra and Ors. 2003 All MR (Cri.) 406. This Court held in paragraph 14 as under:
14. As per the above explanation, the public order shall be deemed to have been affected adversely in one of the two ways. If any of the activities of a bootlegger directly or indirectly is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or a grave or widespread danger to life or public health. Thus a bootlegger's activities may cause or pose danger either to the health of the public or to the security of the members of the public. If the liquor found from the possession of a bootlegger is shown as per the CA report to pose danger to the public health, the bootlegger can be detained under the provisions of this Act. He can also be detained under this Act in case his activities as a bootlegger are posing danger to the security of the public or creating feeling of insecurity among the members of the public without endangering the public health.
Since the Supreme Court has considered the matter and the Judgment of the High Court is prior in time to the Judgment of the Supreme Court, therefore controversy raised in this petition is covered by the Judgment of the Supreme Court rather than the Judgment of this Court. For these reasons we allow the writ petition. Rule is made absolute. We quash the order of detention and direct that the detenu be released forthwith if not required in any other case.