Bombay High Court
Vinod S/O Babulal Pawar vs State Of Mha. Thr. Govt. Of Mah. Home Dep. ... on 30 November, 2023
Author: M. W. Chandwani
Bench: Vinay Joshi, M. W. Chandwani
2023:BHC-NAG:16624-DB
1 wp-341-23j.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO. 341 OF 2023
Vinod S/o. Babulal Pawar,
Aged about 47 years, Occ. Pvt. Work,
R/o. Sheshnagar, Near Bus Stop,
Police Station, Hingna, Nagpur City,
Nagpur (Presently Central Prison, Nagpur) . . . PETITIONER
// V E R S U S //
1. State of Maharashtra through
Government of Maharashtra, Home
Department (Special), Second Floor,
Main Building, Mantralaya, Madam
Cama Road, Hutatma Rajguru Chowk,
Mumbai- 400032.
2. Commissioner of Police,
Nagpur City, Nagpur.
3. Superintendent of Central Prison, Nagpur. . . . RESPONDENTS
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Shri A. K. Bhangde, Advocate for petitioner.
Shri M. J. Khan, APP for respondents/State.
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CORAM :- VINAY JOSHI &
M. W. CHANDWANI, JJ.
RESERVED ON :- 08.11.2023
PRONOUNCED ON :- 30.11.2023
JUDGMENT (PER: M. W. CHANDWANI, J.):-
Heard.
2 wp-341-23j.odt
2. Rule. Rule made returnable forthwith. By consent of the learned counsel for the parties, the matter is taken up for final disposal.
3. By invoking writ jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner seeks relief of quashing and setting aside the order dated 04.03.2023 passed by the respondent no. 2 and confirmed by the respondent no. 1 vide order dated 14.03.2023. The impugned orders have been passed in terms of provisions of Section 3 r/w. Section 12 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 (hereinafter referred to as "the MPDA Act").
4. The facts as gathered from the statement made in the petition and record produced therewith which have lead to passing of the impugned orders and their challenge in the petition are as under:-
The petitioner was served with the order dated 04.03.2023 issued under Section 3 of the MPDA Act with the grounds of detention, which has been annexed to the impugned order. The main ground for detention is that the petitioner is alleged to be a 3 wp-341-23j.odt 'bootlegger' in village Hingna within the jurisdiction of Police Station Hingna, District Nagpur. It was further contended in the grounds of detention that as a habitual bootlegger, the petitioner has committed these offences from the year 2020 to 2023 under the provisions of the Maharashtra Prohibition Act, 1949 (hereinafter referred to as, "the Act of 1949") for which the First Information Reports were registered and the investigation were completed, rather final reports were filed in the concerned Courts in all these cases and which were pending for their trial before the concerned Magistrate.
Further the grounds for detention state that preventive action was also initiated against the petitioner in the year 2022 under the provisions of Section 93 of the Act of 1949. In the said preventive action, bond of good behavior, for a period of six months, had been executed by the petitioner, which was subsequently breached by the petitioner. The second offence has been committed by the petitioner under Section 65(e) of the Act of 1949 in the year 2023.
Thereafter, confidential statements from witnesses 'A' and 'B' have been recorded. Both of them alleged that they had fear of deposing against the petitioner hence, they gave confidential statements. According to respondent no. 1, he is satisfied that the petitioner is a bootlegger within the meaning of Section 2(b) of the 4 wp-341-23j.odt MPDA Act and his activities are extremely prejudicial to the maintenance of public order and public health. Therefore, the impugned orders came to be passed.
5. Though, in the petition various grounds have been raised but, the order of the detention is challenged mainly on the ground that the impugned orders are arbitrary since, subjective satisfaction recorded by the Authority is not based upon any material which could be considered sufficient to justify denial of the petitioner's personal liberty; more so, the in-camera statements of witnesses 'A' and 'B' relied upon by the Detaining Authority do not contain material that could termed to be such that it would disturb public order or fall within the provisions of Section 2(a) of MPDA Act i.e. acting in any manner prejudicial to the maintenance of public order.
6. Heard Shri A. K. Bhangde, learned counsel appearing on behalf of the petitioner and Shri M. J. Khan, learned APP for the respondents/State also we have perused the original record.
7. Before we proceed to dealt with the submissions made by respective parties, it will be convenient to note the provisions of MPDA Act, which bear upon the controversy sought to be raised on behalf of 5 wp-341-23j.odt the petitioner. The provisions of Section 2(a)(ii) and (b) of the MPDA Act are reproduced hereunder:-
"2. In this Act, unless the context otherwise requires,--
(a) "acting in any manner prejudicial to the maintenance of public order" means--
* * *
(ii) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order ;
* * * Explanation.--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 ; or disturbs the life of the community by producing and distributing pirated copies of music or film products, thereby resulting in a loss of confidence in administration. ;
(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 animal, 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 ;
8. From the aforesaid provisions, it is clear that as bootlegger can be detained by making provision under Section 3(1) of the MPDA Act not only in a case where bootlegger's activities are causing or calculated to cause any harm, danger or alarm, feeling of insecurity 6 wp-341-23j.odt amongest the general public or any section thereof but, also in a case where it has propensity to create widespread danger to life or public health.
9. The legal position which thus emerges is that while testing the legality of an order of detention passed by the Detaining Authority, by resorting to the provisions of Section 3 of the MPDA Act in the case of a bootlegger, what has to be seen is whether there was credible material before the Detaining Authority, on the strength of which, an inference is justifiable that the bootlegging activity directly or indirectly was 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 and thereby adversely affected the maintenance of public order as explained under Section 2 of the MPDA Act.
10. Indisputably, the sufficiency or otherwise of the material is a matter for the subjective satisfaction of the Detaining Authority. Whether the such material existed and the Detaining Authority considered the relevant material to arrive at such satisfaction is the remit of judicial review. On the aforesaid touchstone, reverting to the facts of the case, we find that apart from the cases, which were 7 wp-341-23j.odt registered against the petitioner, the Detaining Authority considered the statements of two witnesses recorded in-camera.
11. Perusal of the statements of witnesses 'A' and 'B' reveals that the petitioner is carrying illicit liquor business within the jurisdiction of Police Station, Hingna, District Nagpur. Perusal of the statements of witnesses 'A' and 'B' reveals that the petitioner was indulged in making and selling "Gawathi Hath Bhhati Daru" (country liquor) at village Hingna and its surroundings. The witness 'A' has narrated an incident of the third week of January-2023 that two people, after taking liquor from den of the petitioner, were abusing each other in filthy language when the women in neighborhood were cleaning their courtyards. When this witness confronted them, they started shouting and abusing this witness. Even the petitioner came there and abused this witness and threatened him on the point of knife. Perusal of the entire record show that this is a solitary incident of the drunken persons abusing in front of neighboring women. Nothing is found in the statement of this witness that by this incident even tempo of the life of the community is affected.
12. Perusal of the statement of witness 'B' also suggest that the petitioner, under the influence of liquor, caught hold of his collar and 8 wp-341-23j.odt threatened him in filthy language and slapped on his cheek and on the point of knife forcibly took ₹1200/- from his pocket.1200/- from his pocket.
13. In the decision in the case of Kanu Biswas Vs. State of West Bangal 1 in para nos. 6 and 7 the Apex Court has held as under:-
"6. The distinction between the concept of public order and that of law and order has been adverted to by this Court in a number of cases. In the case of Dr. Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R. 709, Hidayatullah J. (as he then was) said that any contravention of law always affected order, but before it could be said to affect public order, it must affect the community at large. He considered three concepts, law and order, public order and the security of the State, and observed that to appreciate the scope and extent of each one of them, one should imagine the concentric circles. The largest of them represented law and order, next represented public order and the smallest represented the security order, just as an act might affect public order but not the security of the State. In the subsequent case of Arun Ghosh v. State of West Bengal, [1970] 3 S.C.R. 288, the Court dealt with the matter in the following words: "Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance, of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of' the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An Act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different.
7. The question where a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance, of the public order, according to the dictum laid 1 (1972) 3 SCC 831 9 wp-341-23j.odt down in the above case is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above, case, is : Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order, or does it affect merely an individual leaving the tranquillity of the society undisturbed ? "
14. In the present case, both the incidents stated by the witnesses do not suggest that these incidents lead to disturbance of life of the community at large so as to amount to disturbance of public order, rather it affects merely an individual person leaving tranquility of the society undisturbed.
15. The Detaining Authority has also came to the conclusion that the petitioner's activity as bootlegger posed danger to public health. For this purpose, it has relied on the two offences registered against the petitioner. The first offence being Crime No. 20/2023 registered by Police Station, Hingna under Section 65(e) of the Act of 1949, wherein 27 liters of country liquor were seized from the petitioner. The sample of 180 ml seized liquor was taken and sent to Chemical Analysis (CA) and he has been charge-sheeted before the Judicial Magistrate First Class, Hingna, Nagpur.
16. In the second incident registered with Police Station Hingna bearing Crime No. 41/2023, 10 liters of country liquor was 10 wp-341-23j.odt seized from the petitioner under the panchnama and the sample taken from the said seized country liquor was sent to CA for investigation and charge-sheet came to be filed before the Judicial Magistrate First Class, Hingna, Nagpur.
17. The opinion was obtained from the medical expert that consumption of Ethyl Alcohol, in excessive quantity, is harmful to human body which may cause death. Notably, in none of two crimes, which were relied by respondent no. 2- Detaining Authority for its subjective satisfaction, the CA reports were available showing the percentage of Ethyl Alcohol in country liquor. In absence of CA report, it will be very difficult to say that the said seized liquor was containing Ethyl Alcohol in excessive quantity and therefore, there was danger to public health. Both the offences allegedly committed under Section 65(e) of the Act of 1949 and would be conveniently dealt by the concerned Court, who is seized with the cases which are pending for trial.
18. Applying the ratio laid down in case of Kanu Biswas (supra), in our view the material relied by the Detaining Authority could not form the basis for recording satisfaction, as stated by the Detaining Authority in terms of Section 3 of the MPDA Act, as none of the cases can to be termed as disturbance to the maintenance of public 11 wp-341-23j.odt order or public health. We are of the opinion that the impugned detention order is not sustainable and is passed contrary to the provisions of Section 3 of the MPDA Act.
19. In that view of the matter, the petition is allowed. We hereby quashed and set aside the impugned orders dated 04.03.2023 and 14.03.2023 passed by the respondents. We direct that the detenu be set at liberty forthwith unless his detention is required for some other cause.
20. Accordingly, the Rule is made absolute in the above terms.
(M. W. CHANDWANI, J.) (VINAY JOSHI, J.) RR Jaiswal Signed by: Mr. Rajnesh Jaiswal Designation: PA To Honourable Judge Date: 01/12/2023 11:00:45