Bombay High Court
Ramesh Balu Chavan vs The Commissioner Of Police And Ors on 3 April, 2017
Author: V.K. Tahilramani
Bench: V.K. Tahilramani, M.S. Karnik
1. cri wp 4403-16 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4403 OF 2016
Ramesh Balu Chavan
Age - 38 Years, Residing at
Bakshi Hipparga, Taluka - South Solapur,
Dist. Solapur.
[ At present lodged in Yerwada Central Petitioner/
Prison, Pune. ] .. detenu
Versus
1. The Commissioner of Police
Solapur.
2. The State of Maharashtra
(Through Addl. Chief Secretary to
Government of Maharashtra,
Mantralaya, Home Department,
Mantralaya, Mumbai.)
3. The Superintendent
Yerwada Central Prison, Pune. .. Respondents
...................
Appearances
Mr. U.N. Tripathi Advocate for the Petitioner
Mr. J.P. Yagnik APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
M.S. KARNIK, JJ.
DATE : APRIL 3, 2017.
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ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. Heard the learned counsel for the petitioner and the learned APP for the State.
2. The petitioner / detenu Ramesh Balu Chavan has preferred this petition questioning the preventive detention order passed against him on 22.11.2016 by respondent No. 1
- the Commissioner of Police, Solapur. The said detention order has been passed in exercise of the 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 (No. LV of 1981) (Amendment - 1996, 2009 & 2015) (hereinafter referred to as the "MPDA Act"). The said order has been passed as the detenu is a bootlegger whose activities are prejudicial to the maintenance of public order and public health. The said detention order is based on three C.Rs. and two incamera statements of witness "A" and witness "B". The three C.Rs. jfoanz vkacsjdj 2 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc are 245/2016, 257/2016 and 276/2016 of Jodbhavi Peth Police Station, Solapur. The order of detention, grounds of detention along with accompanying documents were served on the detenu on 22.11.2016
3. Though a number of grounds have been raised in the present petition whereby the detention order has been assailed, however, the learned counsel appearing for the petitioner has pressed only four grounds before us. They are grounds (i), (g), (b) and (d).
4. Ground (i) is in relation to the averment of Detaining Authority in para 05(b-i) of the grounds of detention. It is stated that the averment in the said ground is absolutely vague and no details have been disclosed or any material is provided in support thereof. It is stated that five averments are made in this paragraph in the grounds of detention which are as under:-
(1) many people were hiddenly running many dens;
(2) In past, many accidents took place;jfoanz vkacsjdj 3 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc (3) Drunken people tease ladies, create unhygienic atmosphere by vomiting in street;
(4) many people have become bankrupt;
(5) since last many years.
Mr. Tripathi, the learned counsel for the petitioner submitted that these five averments in the grounds of detention are not based on any material. The allegations made are too general and there are no specific incidents mentioned, hence, there is non application of mind on the part of the Detaining Authority which would result in vitiating the order of detention.
5. We have perused paragraph 05(b-i) of the grounds of detention. It pertains to witness "A". Learned APP placed reliance on the statement of incamera witness "A" and showed us that all these averments were made by incamera witness "A" in his statement. On perusal of the statement of incamera witness "A", we find that all these averments which have been made by the Detaining Authority in paragraph 05(b-i) are found in the statement of incamera witness "A". jfoanz vkacsjdj 4 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc Thus, there was material before the Detaining Authority to make these averments in the grounds of detention and the material on which this averment was made, has admittedly been furnished to the detenu i.e incamera statement of Witness "A". Thus, we find no merit in this ground.
6. Mr. Tripathi thereafter pointed out that in the said paragraph, it is also stated, "But there is constant demand to curb criminal activities of you and your associates, from the people and traders of locality." He submitted that there was no material before the Detaining Authority to make this averment in the grounds of detention, hence, there was non application of mind on the part of the Detaining Authority, which would vitiate the order of detention. As far as this contention is concerned, it is seen that no such ground has been raised in the present petition, hence, strictly speaking the petitioner should first raise the ground and thereafter, the respondent should be given an opportunity to deal with the said ground by filing appropriate reply and then only the jfoanz vkacsjdj 5 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc ground can be considered.
However, learned APP Mr. Yagnik fairly submitted that he will not insist on this formality. As Mr. Yagnik did not insist for time to file reply and stated that he will directly answer this contention, we are considering the said ground.
7. Mr. Yagnik in answer to the above contention placed reliance on the statement of incamera witness "A" to show that such an averment was made by incamera witness "A" in his statement. Mr. Tripathi, as far as this averment is concerned, has placed reliance on the decision of this Court in the case of Pramod @ Laba Bhalchandra Ingle Vs. The Commissioner of Police, Solapur1. Mr. Tripathi pointed out that in the said case also, an averment was made by the Detaining Authority in the grounds of detention that, "there was a constant demand by traders and the general public to curb your criminal activities". Mr. Tripathi pointed out that as there was no material before the Detaining Authority to 1 Criminal Writ Petition No. 3345 of 2016 decided on 6.2.2017 (Coram : V.K. Tahilramani & Revati Mohite Dere, JJ) jfoanz vkacsjdj 6 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc make such an averment, the detention order came to be quashed. We have carefully gone through the said decision. In the said case, the Detaining Authority had stated in the grounds of detention that, "there is a constant demand from traders and general public to curb your criminal activities", however, in the statement of incamera Witness "A", there was only mention of constant demand from businessmen and there was no reference to the constant demand by "general public". Thus, there was no material before the Detaining Authority to make an averment about constant demand by general public, hence, the detention order was quashed.
8. Mr. Tripathi pointed out in the case of Pramod Ingle that as far as the demand by traders in the said case was concerned, it was observed that neither the concerned Police Station nor any police official had received any complaint or letter from any trader, hence, there was no material before the Detaining Authority to make any such averment in the jfoanz vkacsjdj 7 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc grounds of detention, hence, the detention order was quashed. He pointed out that in the present case also neither the concerned Police Station nor any police official including the Commissioner of Police had received any complaint or letter from any trader or public that the criminal activities of the detenu need to be curbed. However, one distinguishing factor in the present case and the case of Pramod Ingle is that in the said case the incamera witness had made no reference at all to constant demand by general public that the criminal activities of the detenu should be curbed. In the said case, there was also no other material before the Detaining Authority to make such an averment. Every case turns on its own facts. In the present case, the statement of incamera Witness "A" clearly shows that there is constant demand to curb the criminal activities of the detenu and his associates from the people and the traders of the locality. Thus, in the present case, there was material before the Detaining Authority to make all these averments in the grounds of detention and copies of these material jfoanz vkacsjdj 8 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc have been furnished to the detenu. Hence, it cannot be said that the detention order is vitiated.
9. As long as the averment in the grounds of detention is based on some material and even if the said material is a statement of an incamera witness, the detention order would not be vitiated. Only if the Detaining Authority made an averment in the grounds of detention relating to some vital or material aspect and there was no material before the Detaining Authority to make such an averment, it would reflect non application of mind on the part of the Detaining Authority which would in turn, vitiate the order of detention. In the present case, there was sufficient material before the Detaining Authority to make these averments in the grounds of detention. The observations in the case of Pramod Ingle were made in the peculiar facts of that case. Looking to the facts of the present case, the said decision would not be applicable to the case in hand. Thus, we find no merit in this ground raised by learned counsel for the petitioner. jfoanz vkacsjdj 9 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
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10. Thereafter, Mr. Tripathi relied on the decision of the Supreme Court in the case of Moulana Shamshunnisa & Ors. Vs. Additional Chief Secretary & Ors. 2. Mr. Tripathi pointed out that in the said case, it was held that in absence of any material to justify such conclusion, detention order is liable to be quashed. However, on perusal of the material which was before the Detaining Authority in the present case and the copies whereof have been furnished to the detenu, we find that there was material before the Detaining Authority to make such an averment in the grounds of detention. The statement of incamera witness "A" clearly shows that he has stated all these facts in his statement. Thus, there was material before the Detaining Authority to make such an averment. Thus, this decision cannot be made applicable to the present case.
11. Thereafter, Mr. Tripathi raised ground (g) of the petition. The said ground is in relation to C.R. No. 276/2016. It is contended in the said ground that no expert's opinion / 2 (2010) 15 SCC 72 jfoanz vkacsjdj 10 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc C.A. report is obtained by the sponsoring authority and placed before the Detaining Authority nor copy furnished to the detenu in this C.R. Mr. Tripathi submitted that the detenu has been detained as he is a bootlegger and as far as C.R. No. 276/2016 is concerned, as there was no expert's opinion or C.A. report in relation to liquor which was seized, there was no material to show that the liquor was such that there was widespread danger to the life or public health.
12. As far as the above contention is concerned, it is an admitted fact that when the order of detention was issued, the C.A. report pertaining to C.R. No. 276/2016 was not placed before the Detaining Authority. However, as stated earlier, the detention order is based on three C.Rs. and two incamera statements. Thus, the detention order is based on five grounds. Thus, even if one ground is excluded i.e pertaining to C.R. No. 276/2016, the detention order is sustainable on the remaining grounds.
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13. 20 Section 5A of the MPDA Act reads as under:
"5A. Grounds of detention severable.- Where a person has been detained in pursuance of an order of detention under Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly-
(a) Such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are-
(i) vague;
(ii) non-existent,
(iii) not relevant;
(iv) not connected or not proximately connected
with such person, or
(v) invalid for any other reason whatsoever,
and it is not, therefore, possible to hold that the State Government or an officer mentioned in sub-section (2) of Section 3 making such order would have been satisfied as provided in Section 3 with reference to the remaining ground or ground and made the order of detention;
(b) the State Government or such officer making the order of detention shall be deemed to have made the order of detention under the said Section 3 after being satisfied as provided in that Section with reference to the remaining ground or grounds."jfoanz vkacsjdj 12 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc Thus, even if it is assumed that the ground relating to C.R. No. 276/2017 is not relevant for issuing the detention order under the MPDA Act or is invalid for some reason, the same can be severed in view of Section 5A of the MPDA Act. This would mean that the detention order is based on the remaining four grounds. These 4 grounds, in our opinion, are sufficient for the detaining authority to reach his subjective satisfaction that it was necessary to detain the detenu under the provisions of MPDA Act as he is a 'bootlegger'.
14. Thereafter, Mr. Tripathi raised ground (b). In ground (b), it is stated that the Detaining Authority has relied on three C.Rs. registered under Section 65(e) of the Bombay Prohibition Act, 1949. C.A. reports have been received in two cases i.e C.R. No. 245/16 and 257/2016. However, the C.A. reports do not disclose the expert's opinion nor that the consumption of the seized contraband is injurious to health. The C.A. reports simply mention the percentage of Ethyl alcohol in water. As such, it cannot be said that the public jfoanz vkacsjdj 13 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc order is disturbed since there is no danger to the public health.
15. Admittedly, the order of detention, grounds of detention along with accompanying documents were served on the detenu. Report from the Department of Forensic Medicine & Toxicology has also been furnished to the detenu. This report clearly states that regular consumption of Ethyl alcohol and Methyl alcohol causes ill effect over human body or heavy consumption can lead to death depending upon the condition and age of the person. Mr. Tripathi tried to contend that this report shows that only if a person consumes Ethyl alcohol as well as Methyl alcohol together, it would cause ill effect on human body or heavy consumption thereof can lead to death depending upon the condition and age of the person. We are afraid that we cannot read the report in the way as contended by Mr. Tripathi. This report according to us shows that if Ethyl Alcohol 'or' Methyl Alcohol are consumed by a person, it can jfoanz vkacsjdj 14 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc cause ill effect on the human body or heavy consumption of any one of the two types of alcohol can lead to death depending upon the condition and age of the person. The C.A. reports relating to C.R. No. 245/2016 and 276/2016 clearly show that the sample contained Ethyl alcohol which is not a medicinal / antiseptic / toilet preparation nor a flavouring material. In addition, the report of Department of Forensic Medicine & Toxicology clearly shows that the regular consumption of Ethyl alcohol will cause ill effect on the human body or even one time heavy consumption of the same can lead to death depending upon the condition and age of a person. A person can be detained as a bootlegger if any of his activities are such that they directly or indirectly cause or are 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.
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16. Witness "A" has stated that when the incident occurred, many people had gathered at the spot but the detenu holding a knife rushed towards them and gave threats, due to which the people ran helter skelter and neighbouring people shut their doors. Witness "B" has stated that at the time of the incident due to the activities of the detenu and his associates, people who had gathered ran helter skelter and shop owners shut their doors. Thus, the incidents relating to incamera witnesses "A" and "B" show that the activities of the detenu were such that they caused feeling of danger, alarm and insecurity in the minds of general public in that area. The facts relating to the two C.Rs. i.e C.R. Nos. 245/2016 and 257/2016 show that the activities of the detenu are such that they have caused danger to the public health. Thus, this ground too fails.
17. The last ground raised by Mr. Tripathi is ground (d). It is stated therein that the activities of the detenu are not prejudicial to the public order and there is no effect of the jfoanz vkacsjdj 16 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc consumption of country made liquor like death of people or hospitalization or bankruptcy. It, therefore, cannot be held that the consumption of the seized contraband country made liquor is injurious to health. Mr. Tripathi has only pressed the first part of ground (d) wherein the contention is raised that the activities of the detenu are not prejudicial to the public order. In order to detain a person under the MPDA Act as a bootlegger, it must be established in the first instance that he is a bootlegger. As per the definition of bootlegger given in the MPDA Act, "bootlegger" means a person, who distils, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicants in contravention of any provisions of the Maharashtra Prohibition Act (Act No. XXV of 1949) and the rules and orders made thereunder, or of any other law for the time being in force or who knowingly spends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacles or any other material whatsoever in furtherance or support of the doing any of the jfoanz vkacsjdj 17 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc above mentioned things by or through any other person, or who abets in any other manner the doing of any such thing. The detenu certainly falls within this category because the facts relating to C.R. Nos. 245/2016 and 257/2016 show that the detenu was transporting and selling liquor. After going through Section 2 of the MPDA Act, we are of the view that a 'bootlegger' can be detained under the provisions of the MPDA Act not only in case he deals with any liquor which as per the C.A. report is harmful to public health but also in case his activities as bootlegger otherwise creates a feeling of alarm, danger or insecurity among the members of the public or a section thereof.
18. The facts relating to C.R. No. 245/2016 are that on 21.6.2016, two persons carrying six black coloured motor tubes on their motor cycle were apprehended by the police who were on patrolling duty. The contraband came to be seized. On inquiry, those persons stated that the detenu and one other person is the owner of the seized contraband. jfoanz vkacsjdj 18 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc Sample was taken from the said contraband and it showed that it contained Ethyl alcohol in water. Report from the Department of Forensic Medicine and Toxicology shows that regular consumption of Ethyl alcohol causes ill effect on human body or heavy consumption can lead to death depending upon the condition and age of the person. The facts relating to C.R. No. 257/2016 are similar. This shows that the contraband seized in these two C.Rs. was injurious to public health.
19. The facts relating to the statement of incamera witness "A" show that the detenu came to the house of the witness and demanded money from him for the liquor he had taken on credit from the detenu. The younger daughter of witness "A" tried to help the witness whereupon the detenu held her hand and took her to one side and asked for sexual favour from her but she refused. Then the detenu called a rickshaw tempo and took away the household articles of witness "A". When this incident happened, many neighboring people jfoanz vkacsjdj 19 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc gathered there but the detenu holding a knife rushed towards them and gave threats, due to which the people ran helter-skelter and neighboring people shut down their doors and no one came to the rescue of witness "A". This clearly shows that a feeling of danger, alarm and insecurity was caused in the minds of the people at the time of the incident.
20. Witness "B" has stated that the detenu along with 3-4 other persons came to the house of his neighbour. The detenu demanded money which the neighbouring person owed him. The neighbouring person told the detenu who was holding a knife that he would give money in a day or two but the detenu said that he wanted money immediately. The neighboring person shouted loudly for help due to which some people gathered there. On seeing them, the detenu and his associates started pelting stones on the persons who had gathered, hence, the people gathered there ran helter- skelter and shop owners shut their doors. No one came to the aid of the victim. The wife of the neighboring person told jfoanz vkacsjdj 20 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc the detenu to give one or two days to pay money, however, the detenu told her to give her ornaments otherwise he will finish her husband. On seeing the danger to the life of her husband, the wife handed over her gold Mangalsutra and ear rings to the detenu. Thus, this incident also shows that there was a feeling of alarm, danger and insecurity in the minds of the people who had gathered at the spot.
21. As far as the two C.Rs. i.e 245/2016 and 257/2016 are concerned, we have, in the earlier paragraphs, discussed the C.A. reports and the report of Department of Forensic Medicine & Toxicology which show that the samples were such that it would cause danger to the public health. On going through Section 2 of the MPDA Act, we are of the view that a bootlegger can be detained under the provisions of this Act not only in case, he is dealing in liquor which as per the report of the expert is harmful to the public health but also in case his activities as bootlegger create a feeling of jfoanz vkacsjdj 21 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::
1. cri wp 4403-16 (j).doc harm, danger or alarm or a feeling of insecurity among the members of the public. We have briefly discussed the facts relating to C.R. Nos. 245/16 and 257/2016 and the statements of incamera witnesses "A" & "B". All of them are such that they disturb the public order in one way or the other. Thus, this ground too fails.
22. In the above circumstances, we are satisfied that the Detaining Authority was not wrong in arriving at his subjective satisfaction on the basis of the material placed before him that the detenu was a bootlegger and that his activities as a bootlegger adversely affected or are likely to affect adversely the maintenance of public order and therefore, his detention was necessary under the provisions of the MPDA Act.
23. In view of the above, no good ground has been made out for quashing the detention order, hence, rule is discharged.
[ M.S. KARNIK, J. ] [ SMT. V.K. TAHILRAMANI, J. ] jfoanz vkacsjdj 22 ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 21:57:24 :::