Haroon Sikandar Tadvi v. The State Of Maharashtra And Others
2024:BHC-AUG:27217-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1607 OF 2024 Haroon Sikandar Tadavi Age: 35 years, Occu.: Labour, R/o. Fardapur, Tq. Soyegaon, District Chhatrapati Sambhajinagar .. Petitioner
Versus
1.
The State of Maharashtra Through the Secretary, Department of Home Affairs, Mantralaya, Mumbai.
2.
The District Magistrate, Chhatrapati Sambhajinagar.
3.
The Superintendent of Police, Chhatrapati Sambhajinagar.
.. Respondents ...
Mr. M. K. Bhosale, Advocate for the petitioner. Mr. V. K. Kotecha, APP for the respondents/State. ...
CORAM : SMT. VIBHA KANKANWADI & R. W. JOSHI, JJ.
DATE : 12 NOVEMBER 2024 JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .
Heard learned Advocate Mr. M. K. Bhosale for the petitioner and learned APP V. K. Kotecha for the respondents - State. 2.
Rule. Rule made returnable forthwith. The petition is [1]
heard finally with the consent of the learned Advocates for the parties.
3.
The petitioner challenges the detention order dated 24.06.2024 bearing No. 2024/MPDA/DET-06/DC-193 passed by respondent No.2 as well as the approval order dated 29.06.2024 and the confirmation order dated 07.08.2024 passed by respondent No.1, by invoking the powers of this Court under Article 226 of the Constitution of India.
4.
Learned Advocate for the petitioner has taken us through the impugned orders and the material which was supplied to the petitioner by the detaining authority after passing of the order. He submits that though several offences were registered against the petitioner, yet for the purpose of passing the impugned order, two offences were considered i.e. Crime No.27 of 2024 and Crime No.46 of 2024. Both these offences were registered with Fardapur Police Station, District Chhatrapati Sambhajinagar for the offence punishable under Section 65(f) of the Maharashtra Prohibition Act, 1949. Both these cases are stated to be pending for trial. Learned Advocate for the petitioner submits that there was no subjective satisfaction arrived at by the detaining authority. There was no opinion of any expert medical officer certifying that [2]
the seized liquor was injurious or harmful to human consumption. The detaining authority only relied on the CA reports for arriving at a conclusion that the substance that was seized was dangerous to the health of the public at large. In both the cases, the petitioner has been served with notice under Section 41(A) of the Code of Criminal Procedure. Further, Chapter Case No.01 of 2023 was proposed against the petitioner, however, in view of action taken under M.P.D.A., said chapter case was dropped. The statements of in-camera witnesses 'A' and 'B' would show that at the most law and order situation would have been created. Therefore, the impugned order is illegal and cannot be allowed to sustain.
5.
Per contra, the learned APP strongly supports the action taken against the petitioner. He submits that the petitioner is a bootlegger person as defined under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons and Video Pirates Act, 1981 (hereinafter referred to as the "MPDA Act"). The detaining authority has relied on the two in-camera statements and the subjective satisfaction has been arrived at. There is no illegality in the procedure adopted while recording the in-camera statements of the [3]
witnesses. Due to the terror created by the petitioner, people are not coming forward to lodge report against him and, therefore, it affects the public order. Learned APP is relying upon the affidavitin-reply filed by Mr. Deelip Veerpakshappa Swami, District Magistrate, Chhatrapati Sambhajinagar. He supports the detention order passed by him and tries to demonstrate as to how he had arrived at the conclusion that the petitioner is a bootlegger. The subjective satisfaction was arrived at on the basis of CA reports as well as in-camera statements and the contents of the FIR. In all, two offences were considered along with the two in-camera statements. After the subjective satisfaction, the detaining authority has passed a reasoned order, which is then confirmed with the opinion of the Advisory Board and, thereafter, confirmed by the State Government on 07.08.2024. 6.
Before considering the case, we would like to take note of the legal position as is emerging in the following decisions :- (i) Nenavath Bujji etc. Vs. State of Telangana and others, [2024 SCC OnLine SC 367], (ii) Ameena Begum Vs. The State of Tamilnadu and Ors., [2023 LiveLaw (SC) 743];
(iii) Kanu Biswas Vs. State of West Bengal, [1972 (3) [4]
SCC 831] wherein reference was made to the decision in Dr. Ram Manohar Lohia vs. State of Bihar and Ors. [1966
(1) SCR 709];
(iv) Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, [1995 (3) SCC 237];
(v) Pushkar Mukherjee and Ors. Vs. The State of West Bengal, [AIR 1970 SC 852];
(vi) Phulwari Jagdambaprasad Pathak Vs. R. H. Mendonca and Ors., (2000 (6) SCC 751) and;
(vii) Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, [(1981) 4 SCC 647].
7.
Taking into consideration the legal position as summarized above, it is to be noted herein as to whether the detaining authority while passing the impugned order had arrived at the subjective satisfaction and whether the procedure as contemplated has been complied with or not. In Nenavath Bujji (Supra) itself it has been reiterated by the Hon'ble Supreme Court that illegal detention orders cannot be sustained and, therefore, strict compliance is required to be made, as it is a question of liberty of a citizen. As aforesaid, the detaining authority had taken note of two offences i.e. Crime No.27 of 2024 dated [5]
28.02.2024 and Crime No.46 of 2024 dated 26.03.2024 and two in-camera statements. Perusal of these cases would show that the CA reports have been received and the percentage of ethyl alcohol that was found was 11% and 6% respectively. There was no opinion of any expert medical officer certifying that the seized liquor would have been injurious or harmful to human consumption. Further, it appears that Chapter Case No.01 of 2023 was proposed under Section 93 of the Maharashtra Prohibition Act, however, in view of the action taken under M.P.D.A., the said Chapter case was dropped. When the Chapter case was filed/proposal for Chapter case under Section 93 of Maharashtra Prohibition Act was submitted, has not been stated. If that would have been started prior to the present proposal, then such somersault is not permitted.
Section 93 of the Maharashtra Prohibition Act, 1949 prescribes for demand of security for good behaviour to be taken from such person.
such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, as the Magistrate may direct. If the said procedure would have been taken to the logical end, the Magistrate i.e. respondent No.2 was entitled/empowered to take such bond of good behaviour maximum for a period of three years. Further, subsection (2) of Section 93 of the said Act prescribes that the provisions of Code of Criminal Procedure would be applicable to any proceedings under sub-section (1) of Section 93 as if bond referred to therein were a bond required to be executed under Section 110 of the said Code. Section 110 of the Code then prescribes the procedure for breach of such bond. That means there is inbuilt mechanism in the Maharashtra Prohibition Act to curtail the activities of a habitual offender. These proceedings under the Act were not taken to the logical end. 8.
As regards the in-camera statements are concerned, it is stated that those witnesses were threatened by the petitioner on the ground that they were giving information to the police or speaking against the business of the petitioner. They have been considered and even the detaining authority says that the petitioner is a dreaded criminal. In fact, except the offences under [7]
the Maharashtra Prohibition Act, there are no other offences against him. To brand the person as a 'bootlegger', there has to be a proper evidence. Giving threat to the person will not amount disturbance to public order and, therefore, these grounds do not justify the impugned order.
9.
Thus, taking into consideration the above observations and the decisions of the Hon'ble Apex Court, at the most, the statements as well as the offences allegedly committed would reveal that the petitioner had created law and order situation and not disturbance to the public order. Though the Advisory Board had approved the detention of the petitioner, yet we are of the opinion that there was no material before the detaining authority to categorize the petitioner as a dangerous person or bootlegger. 10.
For the aforesaid reasons, the petition deserves to be allowed. Hence, following order is passed :-
ORDER
I) The Writ Petition stands allowed.
II) The detention order dated 24.06.2024 bearing No. 2024/MPDA/DET-06/DC-193 passed by respondent No.2 as [8]
well as the approval order dated 29.06.2024 and the confirmation order dated 07.08.2024 passed by respondent No.1, are hereby quashed and set aside.
III) Petitioner - Haroon Sikandar Tadavi shall be released forthwith, if not required in any other offence. IV) Rule is made absolute in the above terms.
[ R. W. JOSHI ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGE scm [9]