Bombay High Court
Gopichand S/O. Fakru Mandhare vs State Of Mah. Thr. Section Officer Home ... on 16 July, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-NAG:7524-DB
1 crwp.36.24-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 36 OF 2024
Gopichand S/o. Fakru Mandhare,
Aged about 48 years, Occ. Labour,
R/o. Gangapur, Umred, ... PETITIONER
Tah. Umred, Dist. Nagpur. (In Jail)
...VERSUS...
1. State of Maharashtra
Through Section Officer,
Home Department (Special),
2nd Floor Main Building Mantralaya,
Madam Cama Road, Mumbai - 400032.
2. District Magistrate, Dist. Nagpur.
3. Sub Divisional Police Officer,
Umred, Dist. Nagpur.
4. Police Station Officer,
Police Station Umred, Dist. Nagpur.
5. Superintendent,
District Prison, Dist. Nagpur. ... RESPONDENTS
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Mr. Amol Hunge, Advocate for Petitioner.
Mr. M. K. Pathan, A.P.P. for Respondents/State.
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CORAM : SMT. VIBHA KANKANWADI AND
MRS. VRUSHALI V. JOSHI, JJ.
RESERVED ON : 24.06.2024
PRONOUNCED ON :16.07.2024
JUDGMENT (PER : MRS. VRUSHALI V. JOSHI, J.):-
1. Rule. Rule is made returnable forthwith. Heard finally by consent of learned counsel appearing for the parties.
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2. The petitioner detenue takes an exception to the order dated 09.10.2023 and confirmation order dated 24.11.2023 passed by the Section Officer to the Government of Maharashtra, Home Department preventively detaining the detenue in exercise of powers under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons and Video Pirates, Sand Smugglers and Persons Engaged in Black Marketing of Essential Commodities Act, 1981 (the MPAD Act, 1981).
3. The facts in brief are as under :-
A proposal dated 21.09.2023 was initiated to detain the detenue in terms of Section 3 of MPDA. Act, 1981 as the activities of the detenue rendered him as a bootlegger. It transpired that the detenue has been a habitual illegal liquor seller and a dangerous person possessing weapons. It includes continuously engaging in criminal activities, creating terror in the mind of people.
4. The police have recorded two in-camera statements of witnesses "A" and "B". It reveals that the detenue was causing hurt to the witnesses. The crowd which come to consume liquor at the square near the house of the detenue, raise quarrel with each other, hurl abuses to each other, threaten, pass vulgar comments to the passers-by comprising of common 3 crwp.36.24-J.odt people, females and students which diluted the atmosphere of the vicinity.
5. Shri Hunge, Learned Counsel for the petitioner submits that the perusal of the in-camera statements do not show that there was a disturbance of public order. The crimes which have been taken into account for passing the detention order, i.e., Crime No. 218/2023 and 338/2023, are sub-judice before the concerned Court.
6. Learned Counsel for the petitioner, further submits that, the perusal of in-camera statement reveals that, it proceeds on the ground that, the petitioner is a dangerous person whereas the order has been passed on the premise that the detenue is a bootlegger. Thus, the statements contradict to each other. He adds on to state that in the in-camera statements, the signature of the authorities have been appeared as a blank and the same was appeared to be seen and verified on 21.09.2023 causing a delay of more than a month which remained unexplained.
7. Learned A.P.P., contends that, 9 litres of Mohaful country liqour was recovered from the petitioner in a white plastic can worth Rs.100/- per litre, total valued Rs. 900/-.
8. The perusal of the statements of the witnesses show that the associates of the petitioner beat witness "A" with kicks and fist blows, took the mobile phone handset from the pocket of the witness and broke it by 4 crwp.36.24-J.odt banging it on the ground. All the people involved were under the influence of liquor.
9. He further states that, the perusal of the C.A. reports by Civil Surgeon found that the samples of liquor contained minimum 4.23 and maximum 22.67 ethyl alcohol. Similarly, the opinion and the report of the Civil Surgeon is that if a blood alcohol level of 0.3% and higher then complete loss of consciousness may occur and blood level of 0.5% or higher may cause death. Similarly, the harmful effects of the consumption of liquor containing ethyl alcohol would lead to ailments such as pancreatitis, Gastrointestinal problems, Hypoglycemia convulsions, metabolic acidosis, cardiac arrhythmias and so on and prayed to dismiss the petition.
10. The learned Counsel for the petitioner has relied on the following judgments in support of his argument :
i] Shri. Vidyadhar H. Varma Vs. Shri. R. H. Mendonca & Ors [2000 ALL MR (Cri) 773], ii] Rajkumar @ Anda s/o. Jaglal Jaiswal Vs. State of Maharashtra & Ors. [2017 ALL MR (Cri) 4791], iii] Shahnawaj Khan s/o. Ismail Khan Vs. The State of Maharashtra & Anr. [2014 All MR (Cri) 940], iv] Jakir @ Jakira Hussain Vs. State of Maharashtra and Anr.
[Criminal Writ Petition No.587/2023], v] Sanjay S/o. Balaram Kirale Vs. State of Maharashtra & Anr. [2001 ALL MR (Cri) 1616], vi] Ramesh Tarachand Rathod Vs. The State of Maharashtra and Anr. [Criminal Writ Petition No.90/2024], vii] Ashokrao s/o. Uttamrao Pawar Vs. State of Maharashtra and Ors. [Criminal Writ Petition No.738/2022], 5 crwp.36.24-J.odt
11. The learned A.P.P. for the respondents has relied on the following judgment :
i] Magar s/o. Pansingh Pimple Vs. State of Maharashtra and another [2006(1) Mh.L.J. (Cri.) 28].
12. Two offences and two statements of the confidential witnesses are considered for passing the detention order. In both the crimes offences under Section 65(e) of the Maharashtra Prohibition Act, 1949 are registered against the petitioner. No offence is registered against the detenue. The list of earlier offences is also given along with the grounds of the detention. In all the cases, the offence under Section 65(e) of the Maharashtra Prohibition Act, 1949 is registered. In both the offences, the notices were issued under Section 41(1)(2)(a) of the Code of Criminal Procedure, 1973.
13. Section 41 A of Cr. P.C. mandatorily provides that a person must be served with notice by the police prior to his arrest for the offences punishable with imprisonment for less than seven years and Section specifies the procedure to be followed before a person can be deprived of his liberty. Therefore, as per the guidelines given by the Hon'ble Apex Court in Arnesh Kumar..Vs.. State of Bihar and anr. reported in (2014) 8 SCC 273 and Satender Kumar Antil Vs. Central Bureau of Investigation and anr. reported in (2021) 10 SCC 773, notice under Section 41(1)(a) was issued as the punishment for the offence punishable under Section 65(e) is three years therefore, there is no question of arresting the 6 crwp.36.24-J.odt accused. There is provision made in Section 41-A of the Code of Criminal Procedure which empowers the Investigating Officer to arrest a person who has not been detained under Section 41-A (1) of the Code of Criminal Procedure. All this required for effecting an arrest in exercise of these powers, is to record reasons.
14. In the present case, instead of taking recourse to this provision as contained in sub section 3 of Section 41-A of the Code of Criminal Procedure, the detaining authority has straight way resorted to the action of preventively detaining a person which has created contradiction in the action of Law Enforcement Authority. One action of Law Enforcement Authority indicates that petitioner is not such a dangerous person as would warrant his arrest in bootlegging crimes while other authority feels that petitioner is such a dreaded criminal that his activities are detrimental to public order unless he is sent behind the bar. This aspect of the matter has not been considered in any way by the detaining authority and thus, the impugned order suffers from non-consideration of relevant material by the detaining authority. Though the detenue was released on 'Suchna Patra' it is not produced before the detaining authority. Therefore, it cannot be said that registration of a bootlegging crime against the petitioner provided reasonable material for detaining authority to arrive at its requisite satisfaction.
15. In both the offences, the informant is the police constable. On 7 crwp.36.24-J.odt receiving the information, the raid was conducted and the articles were seized. The detenue was not arrested in these offences and the offences are still pending before the Court. If these two crimes registered against the petitioner are excluded to reach the detaining authority for arriving at its subjective satisfaction then only two in-camera statements would remain. Now, if we take a look at the statements, we would find from these statements that the incidents mentioned therein had no live link with the object sought to be achieved by passing the detention order.
16. Witness "A" has stated that in the first week of July, when he was passing in front of the house of the detenue on his motorcycle, there was crowd of liquor consuming people in front of the house of the detenue and square and therefore, the witness blew horn and a person out of the person consuming liquor said to him "do not give more horn". On this, the witness replied by saying, "there is crowd and to avoid giving push and blowing horn". At that time, the detenue came out and asked the witness abusing him, why he is talking with his people and he gave threats of breaking his limbs and asked him not to pass through said road. Thereafter, the five companions, who were with the detenue followed there and pulled down the witness from his vehicle, out of them, one gave the kicks and fist blows, the detenue took out the mobile from the pocket of the witness and broke it by banging it on the ground. The detneue was also under the influence of liquor at that time.
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17. Witness "B" has stated that in the second week of August at about 3 O'clock in the afternoon, when the witness was in his locality, some people came towards his house and when they arrived in front of his house, he found that they were under influence of liquor and started quarreling and using hurling, vulgar abuses. The witness asked them to remain calm. At that time, the petitioner used abusive language and asked the witness to keep quiet and slapped him for four to five times and threatened him not to say anything to his customers and gave threats of killing him.
18. On perusal of the contents of both the statements, it appears that these statements are of general nature. The witnesses were not remembering the dates of the incidents. The order was passed in the month of September and the witness "A" has stated the incident of July. There is no live link in said statements. These statements would not constitute any relevant material for the purpose of present case.
19. Such being the nature of both the statements, we do not think that they could have been considered as constituting relevant material for reaching the subjective satisfaction by the detaining authority.
20. Though the learned Counsel for the petitioner has stated that he was considered as bootlegger but the statements were recorded for 9 crwp.36.24-J.odt dangerous person. The petitioner was involved in manufacture of illicit liquor and out of the said business, the quarrels took place and the statements are made by witness "A" and "B".
21. The impugned order does not explain as to how bootlegging activity can be involved in the manufacture of illicit liquor so as to presume to be adversely affecting the public health. The C.A. reports and opinion of Medical Officer are considered while passing the order of detention. The C.A. samples contained minimum 4.23 percent and maximum 22.67 percent ethyl alcohol. The opinion of Civil Surgeon of Meyo Hospital, Nagpur is also obtained in respect of Chemical Analysis Report of the muddemal. On enquiring about ethyl alcohol mentioned in the Chemical Analysis Report, whether it cause harm to the human body and whether consumption of adulterate distilled liquor causes harm to the human body. The Civil Surgeon Dr. N. B. Rathod has opined that the C.A. samples contained minimum 4.23 percent and maximum 22.67 percent ethyl alcohol. If a blood alcohol level of 0.3 percent and higher, then the complete loss of consciousness may occur and blood alcohol level of 0.5 percent and higher, may cause death. From the opinion, it appears that it will depend on age, habit of person and the strength of liquor taken. It depends on consumption of quantity of liquor. There is no presumption in the Act or Law that every incident of disturbance of public health would necessarily result in disturbance of public order. The authorities would be required to 10 crwp.36.24-J.odt satisfy themselves as to how public disturbance would result in disturbance of public order. Such satisfaction has not been reached in the present case.
22. For these reasons, we find that the impugned order is bad in law and it must go.
23. The writ petition is allowed in terms of prayer clauses - i and ii.
The petitioner be set at liberty forthwith, if not required in any other crime.
(MRS. VRUSHALI V. JOSHI, J.) (SMT. VIBHA KANKANWADI, J.) RGurnule