Nandu Sakhalal Rathod v. The State Of Mah. Home Dept. (Spl.), Thr. Its Section Officer And Others.
2023:BHC-NAG:14360-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.
OF PETITIONER : 1 Nandu Sakhalal Rathod Aged about 41 years, Occupation:
Laborer R/o Karanji, Taluka:
Kelapur. District: yavatmal ..VERSUS..
RESPONDENTS : 1 The State of Maharashtra, Home Department (Special), Through its Section Officer, Second Floor, Main Building, Mantralaya, Mumbai.
2 The Collector & District Magistrate, Yavatmal.
3 Police Inspector P.S. Pandharkawada, Dist. Yavatmal.
----------------------------------------------------------------------------------------- Mr D. N. Mudgale, Advocate for Petitioner.
Mr S. S. Doifode, APP for Respondent Nos.1 to 3. -------------------------------------------------------------------------------------------------------- CORAM : NITIN W. SAMBRE AND VALMIKI SA MENEZES, JJ.
DATE : 26th SEPTEMBER, 2023.
JUDGMENT : (PER : VALMIKI SA MENEZES, J.) .
Heard. Rule. Rule made returnable forthwith. Heard finally by consent of the learned Counsel appearing for the parties.
2.
By this Petition, under Article 226 of the Constitution of India, the Petitioner seeks to quash and set aside the impugned order dated 08.08.2022 passed by the District Magistrate, Yavatmal (Respondent No.2) under Section 3(1) 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 (hereinafter referred to as "MPDA"); the Petitioner further lays challenge to order dated 27.09.2022 passed by the Respondent No.1 - Secretary, Home Department (Special) under sub-section 1 of Section 12 of the MPDA, confirming the order dated 08.08.2022 passed by the District Magistrate, Yavatmal, detaining the Petitioner for a period of twelve months. 3.
Two main grounds raised in challenge to these orders in the Petition are :
(a) That, the two offences relied upon by the Detaining Authority, forming basis for passing the detaining order concern an alleged act which is detrimental to the maintenance of the public order; the acts alleged in those offences can be at most termed as acts which are disruptive of law and order; that both offences are registered under Section 65(E) of the Maharashtra Prohibition Act, 1949, one of which was pending investigation, and there is no subjective satisfaction recorded by the Authority on the basis of these acts that they would amount to causing disturbance of life in the community so as to affect public order.
(b) That, the two in-camera/anonymous statements relied upon by the Detaining Authority dated 02.07.2022 and 05.07.2022, have been respectively relate to incidents of March-2022 and April-2022; there was
unexplained delay of three months in recording the statements. That these two in-camera statements are purported to have been verified by the Sub-Divisional Police Officer, only on 12.07.2022 i.e. more than two months after the incident was alleged to have taken place. The Detaining Authority has not verified the authenticity of the content of the statements by interacting with the concerned Officer or verifying Authority. The impugned order having been passed on 08.08.2022, almost five months after the date of the incident referred to in these statements, there was no live link established between the incident and the requirement for detention under the impugned order. That in any event, the contents of the statements are vague, not reliable and do not disclose acts which could be considered prejudicial to maintenance of public order.
4.
In answer to the allegations made in the Petition, the Respondents have filed an Affidavit-in-reply dated 13.06.2023, through the Joint Secretary, Home Department (Special), Government of Maharashtra reiterating their stand that the Petitioner was considered as a "dangerous person" and a "bootlegger" under the MPDA and sought to justify his detention and support the impugned orders.
5.
We have heard the learned Counsel Mr D. N.
Mudgale for the Petitioner and Mr S. S. Doifode, learned Additional Public Prosecutor for the Respondents, perused the record of the Detaining Authority, and both the impugned orders.
6.
The main contention of the Petitioner is that the two crimes which form the basis of passing the detention order are all under Section 65(E) of the Prohibition Act in which the Petitioner was released on bail by the concerned Magistrate in the first Crime No.163/2022, while the
second case bearing Crime No.544/2022 was still under investigation, and therefore, there was no cause for the Authorities to proceed with any action, in terms of the MPDA, since the matters would proceed under regular penal laws. It is further the Petitioner's contention that there is delay of almost five months in passing the impugned order on 08.08.2022, since the date of the alleged incident in March-2022 in the in-camera statement, and the similar delay from the last offence referred to in the order, and thus, there is no live link established between the incidents alleged to be the basis for the order, and the requirement of detention of the Petitioner.
It was further argued that none of the offences relied upon could constitute an act which is to the detriment of maintenance of public order, and therefore, the impugned orders are passed in total absence of jurisdiction under Section 3 read with Section 12 of the MPDA. It is further the Petitioner's contention that the
two in-camera statements, appear from the record, to be verified only on 12.07.2022, almost two months after the date of the alleged incident. Thus, the impugned order was passed with gross unexplained delay as from the date of the alleged incident and there was no live link established between the incident and the need for detention of the Petitioner.
7.
Per contra, Mr S. S. Doifode, learned Additional Public Prosecutor appearing for the Respondents has supported the impugned orders contending that the Petitioner had indulged in acts of "bootlegging" and as such, sale of liquor by the Petitioner to the people of the locality causes wide spread alcoholism and drunkenness leading to disruption of the daily lives of the citizens which is detrimental to the maintenance of public order. He further submits that a perusal of the in-camera statements "A" and "B" disclose that the involvement of the Petitioner in bootlegging and the violent behaviour of the Petitioner referred to in the statements has caused alarm to the people
in the vicinity. It was further submitted that the in-camera statements were relied upon by the Detaining Authority only after being verified and an endorsement to that effect "opened and seen by me" has been recorded on the statements.
8.
At the outset, we quote the judgment of the Hon'ble Supreme Court in Kanu Biswas Vs. State of West Bengal, reported in (1972) 3 SCC 831 on the question of what constitutes breach of "public order" as opposed to breach of "law and order" :
"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 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 ? " 9.
In Banka Sneha Sheela Vs. State of Telangana, reported in (2021) 9 SCC 415; the Hon'ble Supreme Court
has considered the very same question and has set down the distinction between what acts constitute of breach of public order and those which are, in contradistinction, to be in contravention of law and order in the following terms:
"13. There can be no doubt that for 'public order' to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects 'law and order' but before it can be said to affect 'public order', it must affect the community or the public at large.
14. There can be no doubt that what is alleged in the five FIRs pertain to the realm of 'law and order' in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Indian Penal Code set out in the five FIRs. A close reading of the Detention Order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are wellknown remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail.
The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case."
10.
The above view has been further reiterated by the Hon'ble Supreme Court in its recent judgment of 04.09.2023 passed in SLP (Criminal) No.8510 of 2023 (Ameena Begam vs. State of Telangana), where the following has been held :
"39.
In fine, what we find is that the order of detention impugned in that writ petition failed to differentiate between offences which create a "law and order" situation and which prejudicially affect or tend to prejudicially affect "public order". The present Detention Order fares no better. Even if the offences referred to in the Detention Order, alleged to have been committed by the Detenu have led to the satisfaction being formed, still the same are separate and stray acts affecting private individuals and the repetition of similar such acts would not tend to affect the even flow of public life.
The offence in respect of the minor girl did exercise our consideration for some time but we have noted that the Detenu was not arrested because of an order passed by the High Court on an application under section 438 of the Criminal Procedure Code ("Cr. PC", hereafter). The investigating agency not having elected to have such order quashed by a higher forum, the facts have their own tale to tell. Even otherwise, the gravity of the offences alleged in Arun Ghosh (supra) was higher in degree, yet, the same were not considered as affecting 'public order'.
the Detenu has been charged under section 353, IPC and where the police has not even contemplated an arrest under section 41 of the Cr. PC.
40. On an overall consideration of the circumstances, it does appear to us that the existing legal framework for maintaining law and order is sufficient to address like offences under consideration, which the Commissioner anticipates could be repeated by the Detenu if not detained. We are also constrained to observe that preventive detention laws an exceptional measure reserved for tackling emergent situationsought not to have been invoked in this case as a tool for enforcement of "law and order". This, for the reason that, the Commissioner despite being aware of the earlier judgment and order of the High Court dated 16th August, 2021 passed the Detention Order ostensibly to maintain "public order" without once more appreciating the difference between maintenance of "law and order" and maintenance of "public order". The order of detention is, thus, indefensible.
49. The other aspect requiring some guidance for detaining authorities and on which we wish to comment is that there is no requirement in law of orders of detention being expressed in language that would normally be considered elegant or artistic. An order of detention, which is capable of comprehension, has to precisely set forth the grounds of detention without any vagueness. The substance of the order and how it is understood by the detenu determines its nature. An order in plain and simple language providing clarity of how the subjective satisfaction was formed is what a detenu would look for, since the detenu has a right to represent against the order of detention and claim that such order should not have
been made at all. If the detenu fails to comprehend the grounds of detention, the very purpose of affording him the opportunity to make a representation could be defeated. At the same time, the detaining authority ought to ensure that the order does not manifest consideration of extraneous factors. The detaining authority must be cautious and circumspect that no extra or additional word or sentence finds place in the order of detention, which evinces the human factor - his mindset of either acting with personal predilection by invoking the stringent preventive detention laws to avoid or oust judicial scrutiny, given the restrictions of judicial review in such cases, or as an authority charged with the notion of overreaching the courts, chagrined and frustrated by orders granting bail to the detenu despite stiff opposition raised by the State and thereby failing in the attempt to keep the detenu behind bars.
57. It requires no serious debate that preventive detention, conceived as an extraordinary measure by the framers of our Constitution, has been rendered ordinary with its reckless invocation over the years as if it were available for use even in the ordinary course of proceedings. To unchain the shackles of preventive detention, it is important that the safeguards enshrined in our Constitution, particularly under the 'golden triangle' formed by Articles 14, 19 and 21, are diligently enforced."
11.
Keeping in mind the principles laid down in the above case law, we proceed to examine the material before the Detaining Authority, which has led it to record its subjective satisfaction for arriving at a conclusion that the
acts of the Petitioner constituted an act prejudicial to maintenance of public order or that the Petitioner could be considered to be a "bootlegger" as defined under the MPDA.
The first crime relied upon under Crime No.163/2022 was registered on 13.02.2022 under Section 65(E) of the Maharashtra Prohibition Act and is pending before the concerned Court. A perusal of the record of this case, reveals that the crime was registered after the Police received secrete information and raided the house of the Petitioner, wherein they seized a plastic can containing five litres of country liquor. The second crime registered under Crime No.544/2022 on 30.04.2022 under Section 65(E) of the Prohibition Act relates to a seizure of five liters of country liquor from the Petitioner and is still under investigation. Perusal of the record of both these crimes reveals that there was no certificate or report of chemical analysis of samples taken from these seized country liquor to substantiate whether it contained ethyl alcohol or
prohibited spirit or whether such spirit was harmful to human life if consumed. Thus, there is no material on record to substantiate the allegation, at least for the purpose of arriving at a subjective satisfaction by the Detaining Authority, that the act of the Petitioner, by distributing liquor, could cause harm to human life and thereby commit an act which was disruptive of public order.
12.
Going through the paras 8.1 and 8.2 of the impugned order of detention, we find that other than reference to the fact that country liquor was confiscated from the Petitioner's house, there is absolutely no reference made to any chemical analysis report or whether the seized material was in fact harmful to human life or in what manner it could be considered detrimental to the maintenance of public order.
In fact, the order has been passed so mechanically that para 8.1 and para 8.2 which referred to two different crime numbers have exactly the same content including the
date (30.04.2022) of the complaint, when the dates of the two incidents and crime numbers are more than two months apart. Thus, clearly, the Detaining Authority has proceeded in the matter in a mechanical manner, with no application of mind to the facts of the case and without considering the impote of the two crimes referred in the order.
13.
Referring to the in-camera statement of "witness A", perusal of the statement discloses that the same was recorded on 05.07.2022 but, however, the witness refers to an incident three months prior to its recording, of April2022. There is no explanation in the record as to why it took three months for the statement to be recorded. That apart the statement refers to an incident at the house of the witness, wherein the Petitioner alongwith three/four of his accomplices threatened the witness suspecting that the witness was a Police informer. Clearly, the incident has taken place within the house of the witness and there is no recording of the fact that by the incident any fear was
caused to other persons in the locality. The statement appears to have been verified only on 12.07.2022. However, there is no endorsement on the statement or its verification by the Detaining Authority that it has interacted with the verifying Authority or with the Police Inspector to record the statement to ascertain the genuineness of its content as well as to determine whether the anonymous witness was in fact so fearful of the repercussions of making a formal complaint.
The second in-camera statement which is dated 02.07.2022 refers to an even earlier incident of March2022 discloses that the witness was threatened and insulted in front of the house of the Petitioner, when one person who had consumed alcohol stepped out of the Petitioner's house. The narration in the statement does not disclose any act which could be said to cause alarm in the locality or a sense of panic amongst the residents of the area, such as to disrupt public lives. In this statement too, the verification has been done on 12.07.2022, but there is no endorsement
of the Detaining Authorities that it has interacted with the concerned Officer and ascertaining the truth and reliability of the statement. The only endorsement of the statement is "opened and seen by me".
Thus, clearly there is no application of mind demonstrated by the Detaining Authority whilst dealing with the statement and placing reliance upon them as referred to in paragraphs 9.1 and 9.2 of the impugned order. Apart from this, the statements having been recorded three or four months after the alleged incident, which delay is unexplained, and their content not having disclosed any act which could be said to cause alarm in the locality or a sense of panic amongst the residents of the area, such as to disrupt public lives cannot be considered as material for arriving at a subjective satisfaction as required by Section 3 of the MPDA.
14.
Applying the ratio laid down in Ameena Begam (supra), Kanu Biswas (supra) and Banka Sneha Sheela
(supra), we are clearly of the opinion that there is no material on the record of the Detaining Authorities to which could be considered an act that would bring the Petitioner for the purpose of MPDA under the definition of "bootlegger" or could be considered to be acts which are prejudicial to the maintenance of public order or which necessitate the detention of the Petitioner under the Act. 15.
For reasons stated above, we quash and set aside the impugned orders dated 08.08.2022 and 27.09.2022 and make rule absolute in terms of prayer Clause (ii) of the Petition. No costs.
16.
Consequently, the Respondents are directed to release the Petitioner from detention, unless required in any other case.
(VALMIKI SA MENEZES, J.) (NITIN W. SAMBRE, J.) TAMBE