Criminal Writ Petition No. 2476 of 2012

23rd October, 2012

Petitioner Counsel: Shri D.S. MHAISPURKAR
Respondent Counsel: Smt. M.H. MHATRE

Cases Cited:
District Collector, Ananthapur & Anr. Vs. V. Laxmanna, 2005 ALL MR (Cri) 1800 (S.C.) [Para 2,6,7,8]
Gobibai V. Ghanavat Vs. State of Maharashtra & Others, 2003 ALL MR (Cri) 406=2003 (2) Mh.L.J. 851 [Para 2,7,8]
Haresh Vinayak Patil Vs. D. Shivanandhan & Ors, 2008 ALL MR (Cri) 887 =2008 (1) Bom.C.R.(Cri.) 786 [Para 2,8]

JUDGMENT

A. S. OKA, J :- By this Writ Petition under Article 226 of the Constitution of India, the Petitioner is seeking a writ of habeas corpus praying for quashing and setting aside the order passed under Sub-section (1) of Section 3 of the The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, [Drugoffenders, Dangerous Persons and Video Pirates] Act, 1981 ( hereinafter referred to as "the said Act"). The order of detention has been passed by the first Respondent-Commissioner of Police, Solapur, purportedly with a view to prevent the Petitioner from acting in any manner prejudicial to the maintenance of public order and public health.

2. Learned counsel appearing for the Petitioner has invited our attention to the grounds of detention communicated to the Petitioner in accordance with Section 8 of the said Act. He pointed out that the subjective satisfaction recorded by the detaining authority is that the Petitioner is likely to revert to similar activities set out in the grounds prejudicial to the maintenance of public order and public health in future. He pointed out that subjective satisfaction has been recorded that the Petitioner is a habitual bootlegger within the meaning of Clause (b) of Section 2 of the said Act. He pointed out that thus the subjective satisfaction recorded is that the activities of the Petitioner were prejudicial not only to the public order but also to the public health. He pointed out that the detaining authority has relied upon nine offences registered against the Petitioner under the provisions of Section 65(e) of the Bombay Prohibition Act, 1949. He pointed out that the detaining authority has relied upon a proceeding of preventive action under Section 93 of the Bombay Prohibition Act, 1949 and a noncognizable offence punishable under Section 323, 504 and 506 read with Section 34 of the Indian Penal Code. Reliance is also placed on the preventing action in the form of proceedings under Section 107 of the Code of Criminal Procedure, 1973. He invited our attention to the fact that in-camera statements of the two witnesses have been relied upon. He pointed out that it is set out in the grounds that due to consumption of unhygienic country made liquor, many people have become seriously ill and died. He placed reliance on a decision of the Apex Court in the case of District Collector, Ananthapur & Anr. v. V. Laxmanna [(2005 ALL MR (Cri) 1800 (S.C.)]. He submitted that the Apex Court has held that when ground of detention is that prejudicial activities are dangerous to public health, it becomes necessary for the detaining authority to be satisfied on material available to it that the liquor dealt with by the detenu is dangerous to public health and such material has to be in the form of report of the chemical examiner. He pointed out that the Petitioner was arrested in connection with the offence under the Bombay Prohibition Act, 1949 and was released on bail on 3rd May, 2012. He submitted that incamera statements have been subsequently recorded on 5th June, 2012 and 6th June, 2012, respectively. He submitted that there is no explanation as to why in-camera statements were not recorded when the Petitioner was in custody. He submitted that the subjective satisfaction is thus vitiated. The learned APP in support of the impugned order submitted that the subjective satisfaction recorded is that the Petitioner is a habitual bootlegger and that his activities are prejudicial to the maintenance of public order and public health. The learned APP submitted that perusal of the order and grounds of detention shows that there was sufficient material to record subjective satisfaction that the activities of the Petitioner were prejudicial to public order. The learned APP submitted that for recording the subjective satisfaction that the Petitioner is a habitual bootlegger, filing of charge sheets for the offence under the Bombay Prohibition Act, 1949 is more than sufficient and it is not necessary that the subjective satisfaction should be recorded only on the basis of the report of the Chemical Analyzer. In that behalf, she relied upon a decision of the Division Bench of this Court in the case of Gobibai V. Ghanavat Vs. State of Maharashtra & Others [2003(2) Mh.L.J. 851] : [2003 ALL MR (Cri) 406]. She, therefore, submitted that there is no merit in the Petition in view of the law laid down by this Court. The learned counsel appearing for the Petitioner relied upon a decision of the Division Bench of this Court in the case of Haresh Vinayak Patil v. D. Shivanandhan & Ors. [2008(1)Bom. C.R. (Cri.) 786] : [2008 ALL MR ( Cri ) 887]. He submitted that in view of the subsequent decision of the Apex Court in the case of District Collector, Ananthapur (supra), the Division Bench held that the decision in the case of Gobibai, [2003 ALL MR (Cri) 406] (supra) was no longer a binding precedent.

3. We have carefully considered the submissions. It will be necessary to make a reference to the subjective satisfaction recorded by the detaining authority which is reflected from the grounds supplied under Section 8 of the said Act. After referring to several cases registered under the Bombay Prohibition Act, 1949 and to the preventive actions taken against the Petitioner, the detaining authority has considered in-camera statements of the witnesses. The incamera statements of the witnesses have been reproduced in the grounds. In Ground No.5(b), it is stated thus:

"05(b) From the above facts and Incamera statements of witness A and B and your criminal record placed before me it is clearly seen that you are committing serious offences like molestation, house trespass, assault and riot and also committing offences like transportation, selling and distribution of Hathbhatti-Country made liquor in contravention of the provisions of the Bombay Prohibition Act, 1949 for your benefit.

Your customers behave indecently, quarrel amongst themselves or with others, vomit in the street cause nuisance and create an unhygienic atmosphere. During the transportation of country made liquor you and your employees tend to ride Motorcycles in a rash and negligent manner to avoid interception by the Police and thereby endangering the life of other road users.

Due to consumption of this unhygienic country made liquor many people have became seriously ill and died and many people have become bankrupt." (emphasis added)

4. In Paragraphs 6 and 7 of the Grounds, it is stated thus:

"6. I am subjectively satisfied that you are a habitual bootlegger within the meaning of section 2(b-1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, [Drugoffenders, Dangerous Persons and Video Pirates] Act, 1981 (No.LV of 1981) (Amendment-1996 & 2009). You are thereby become perpetual and potential danger to the society and public health at large. You have created terror in the areas of Vijapur Naka Police Station, Solapur. The people in the said areas are experiencing a sense of insecurity and are living and carrying out their daily avocation under a constant shadow of fear, and also have become mute spectators to your atrocities. Where by even tempo of life of citizens in the above areas is badly disturbed. Thus, your activities pertaining to your illegal business of Hathbhatti-country made liquor are prejudicial to the maintenance of public order and public health in the above areas.

7. I have carefully gone through the material placed before me and I am subjectively satisfied that you are a habitual bootlegger acting in a manner prejudicial to the maintenance of public order and public health. In view of your tendency reflected in the offences committed by you as stated above, I am further satisfied that you are likely to revert to the similar activities prejudicial to the maintenance of public order and public health in future and so it is necessary to detain you." (emphasis added)

5. It must be noted here that under the provisions of the said Act, the term "habitual bootlegger" is not defined. However, the term "bootlegger" is defined in Clause (b) of Section 2 of the said Act which reads thus:-

"2(b) "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 Bombay Prohibition Act, 1949 (Bom.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 materials whatsoever in furtherance or support of the doing any of the abovementioned things by or through any other person, or who abets in any other manner the doing of any such thing."

6. We may note here that the subjective satisfaction recorded is that the activities of the Petitioner are prejudicial to both the maintenance of public order and public health. In the Grounds, it is stated that due to consumption of illicit liquor of the Petitioner, many people have become seriously ill and died. We are examining only the decision making process and not the correctness of the decision itself. Now, the question is what was the material placed before the detaining authority for recording subjective satisfaction that the conduct of the Petitioner affects the public health and that due to consumption of unhygienic country made liquor supplied by the Petitioner, the people have become seriously ill and died. On this aspect, it will be necessary to make a reference to the decision of the Apex Court in the case of District Collector, Ananthapur (supra). The Apex Court was dealing with an order of preventive detention passed under Section 3 of the Andhra Pradesh Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986. The argument noted by the Apex Court in Paragraph 5 was that sale of arrack which is dangerous to public health which alone would become an act prejudicial to the maintenance of public order. While dealing with the said argument, in Paragraphs 7 and 8, the Apex Court has held thus:

" 7 We do not think that this argument of the learned counsel can be accepted. If the detention is on the ground that the detenu is indulging in manufacture or transport or sale of arrack then that by itself would not become an activity prejudicial to the maintenance of public order because the same can be effectively dealt with under the provisions of the Excise Act but if the arrack sold by the detenu is dangerous to public health then under the Act, it becomes an activity prejudicial to the maintenance of public order, therefore, it becomes necessary for the detaining authority to be satisfied on material available to it that the arrack dealt with by the detenu is an arrack which is dangerous to public health to attract the provisions of the Act and if the detaining authority is satisfied that such material exists either in the form of report of the Chemical Examiner or otherwise, copy of such material should also be given to the detenu to afford him an opportunity to make an effective representation.

8. Therefore, while holding that dealing with arrack, which is dangerous to public health would become an act prejudicial to the maintenance of public order attracting the provisions of the Act, it must be held that it is obligatory for the detaining authority to provide the material on which it has based its conclusion on this point. Therefore, we are in agreement with the High Court that if the detaining authority is of the opinion that it is necessary to detain a person under the Act to prevent him from indulging in sale of goods dangerous for human consumption the same should be based on some material and the copies of such material should be given to the detenu." (emphasis added)

7. At this stage, we may make a reference to the decision of the Division Bench of this Court in the case of Gobibai V. Ghanavat, [2003 ALL MR (Cri) 406] (supra). The Division Bench relied upon the earlier decisions of this Court. The relevant portion of the decision of the Division Bench of this Court reads thus:

"18. ...In the said case the Bench had relied on earlier judgment of another Division Bench of this Court decided on 5th October 1982 in Criminal Writ Petition No.533 of 1982 wherein reference was made to decision in Criminal Writ Petition No.327 of 1982. In Sakharam Patil's case the Bench had quoted the observations made in Criminal Writ Petition No.533 of 1982, which read as under:

"It is not the law that for passing an order of preventing detention against a bootlegger the report of the Chemical Analyser is a must. The Chemical Analyser's report is one of the methods of establishing that what was seized was prohibited liquor. But it that what was seized was prohibited liquor. But it is not the only method of evidence by which a fact of bootlegging can be established. There can be other modes of evidence including the detenu, his hirelings or the evidence of the panchas and the police officers conversant with the nature of liquor."

19. In this case also the chargesheets have been filed not in one but in four cases in which according to the police officers what was found from the possession of the detenu was illicit liquor. The information received by the police officers, panchanamas of seizure, the liquor and the glasses seized during the raids smelling of alcohol and cases registered against the detenu under the provisions of Bombay Prohibition Act, in our view, do furnish material from which the detaining authority could have arrived at a subjective satisfaction that the detenu was a bootlegger within the meaning of the Act." (emphasis added)

This decision in Gobibai V. Ghanavat, [2003 ALL MR (Cri) 406] (supra) was rendered before the aforesaid decision of the Apex Court in the case of District Collector, Ananthapur (supra).

8. In the case of Haresh Vinayak Patil, [2008 ALL MR (Cri) 887] (supra), a Division Bench of this Court was dealing with the challenge to the order of detention under the said Act. This Court considered the definition of the bootlegger. This Court, thereafter, referred to the decision of the Apex Court in the case of District Collector, Ananthapur (supra). Thereafter, this Court dealt with the decision in the case of Gobibai V. Ghanavat, [2003 ALL MR (Cri) 406] (supra). While referring to the decision of the Division Bench of this Court, this Court held thus:

"4. ...The learned Counsel for the petitioner has drawn our attention to the judgment of the Division Bench of this Court report in the case of (Smt. Gobibai Ghanavat Vs. State of Maharashtra & Ors.), 2003 Bomb. C.R. (Cri.) 851: 2003 ALL M.R.(Cri) 406. This Court held in paragraph 14 as under:

"14. As per the above explanation, the public order shall be deemed to have been affected adversely in one of the two ways. If any of the activities of a bootlegger directly or indirectly is 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. Thus a bootlegger's activities may cause or pose danger either to the health of the public or to the security of the members of the public. If the liquor found from the possession of a bootlegger is shown as per the CA report to pose danger to the public health, the bootlegger can be detained under the provisions of this Act. He can also be detained under this Act in case his activities as a bootlegger are posing danger to the security of the public or creating feeling of insecurity among the members of the public without endangering the public health.

"Since the Supreme Court has considered the matter and the judgment of the High Court is prior in time to the judgment of the Supreme Court, therefore controversy raised in this petition is covered by the judgment of the Supreme Court rather than the judgment of this Court."

In view of this decision, what binds this Court is the decision in the case of District Collector, Ananthapur (supra).

9. In the grounds of detention, except for referring to the offences registered under the Bombay Prohibition Act, 1949, there is no other material considered such as a report of the expert of analysis of the liquor sold and/or supplied by the Petitioner for recording the subjective satisfaction that the activities of the Petitioner are prejudicial to the maintenance of public order and public health. There is no consideration of the reports, if any, forming part of charge sheets in the cases registered against the Petitioner under the Bombay Prohibition Act. All the cases against the petitioner under the Bombay Prohibition Act referred to in the grounds are pending for trial. In one of the Grounds, the detaining authority observed that due to consumption of unhygienic country made liquor supplied by the Petitioner, many people have become seriously ill and died. There is no material considered by the detaining authority in this behalf. Therefore, as held by the Apex Court, if the detaining authority is of the opinion that it is necessary to detain a person under the said Act for preventing him from indulging in the sale or supply of liquor which is dangerous to human beings, the same should be based on some material. Even the subjective satisfaction that the activities of the Petitioner are prejudicial to the maintenance of public health must be based on the consideration of some material which is absent in the present case. This is not a case of mere inadequacy of the material, but this is a case of the absence of any material. Therefore, subjective satisfaction recorded by the detaining authority is vitiated. This amounts to depriving the Petitioner an effective opportunity to make representation against the order of detention. The Petition must succeed and we pass the following order.

ORDER :

(a) The Rule is made absolute in terms of prayer clause

(a) which reads thus:

"That this Hon'ble Court be pleased to issue a Writ of Habeas Corpus or any other appropriate writ, order or direction quashing and setting aside the said order of detention bearing No.04/CB/DP/2012, dated 18.6.2012 and be pleased to direct that the Subhash Sitaram Chavan be set at liberty."

Petition allowed.