Preventive detention for bootlegging was upheld under the MPDA Act. The court held that supplying and distributing illicit liquor fell within the statutory definition despite absence of actual possession, and found credible material of public-order disturbance and danger to public health. The petition was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1831 OF 2021
Kashinath Motiram Chavan Aged : 32 years, r/o Jyotiba Nagar, Mulegaon Tanda, Solapur ...Petitioner vs. 1. The Commissioner of Police Solapur
...Respondents
Ms.Jayshree Tripathi for petitioner. Mr.J.P. Yagnik, APP for the State.
CORAM : S.S. SHINDE &
N.J. JAMADAR, JJ.
Reserved for Judgment on : 3rd July 2021. Judgment Pronounced on : 28th July 2021.
(THROUGH VIDEO CONFERENCE)
JUDGMENT (PER N.J. JAMADAR, J.) :
of the learned counsels for the parties, heard fnally.
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(a) A proposal was initiated to detain the petitioner by invoking the provisions contained in section 3(2) of the MPDA Act alleging, interalia, that the petitioner was a habitual bootleger in the areas falling within the jurisdiction of Jailroad Police Station, Solapur. The petitioner habitually indulged in manufacture, transportation and sale of illicit liquor in contravention of the provisions of the Maharashtra Prohibition Act, 1949. A number of illicit liquor dens were operated by the petitioner.
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The Detaining Authority noted that numerous offences were registered against the petitioner at Jailroad Police Station, Solapur from the year 2018 to 2021. A proceeding under section 93 of the Maharashtra Prohibition Act, 1949 (for short, ‘the Act, 1949’) was also initiated against the petitioner but to no avail.
(b) The petitioner had again indulged in the acts in contravention of the provisions of the Act, 1949. Six cases were registered thereunder from 19th July 2020 to 30th September 2020. Investigation revealed that the petitioner had supplied and distributed the illicit liquor which came to be seized in those crimes.
(c) The chemical analyst reported that the samples collected during the course of raids contained ethyl alcohol in water. Opinion was solicited from the Department of Forensic Medicine and Toxicology, Dr. V.M. Government Medical College, Solapur. It was opined that consumption of ethyl alcohol in excessive
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amount is harmful to human body and causes death.
(d) In view of the activities of the petitioner, the people were not willing to come forward to lodge report and give evidence for the fear of reprisal. Statements of two witnesses were recorded in-camera. The bootlegging activity of the petitioner coupled with the violent acts resulted in disturbance of the public order. (e) Thus, the Detaining Authority, upon recording satisfaction that it was necessary to detain the petitioner to prevent him from acting in a manner prejudicial to the maintenance of public order, passed the impugned order dated 23rd March 2021.
(f) The petitioner has assailed the impugned order by taking multiple grounds including the nonapplication of mind by the Detaining Authority and absence of material to indicate that the bootlegging activity, even if taken at its face value, was prejudicial to the maintenance of public order.
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(i) There is no material to brand the petitioner as a ‘bootlegger’. Since the petitioner was not found in possession of illicit liquor, in any of the crimes registered against him, and taken into account by the Detaining Authority, the satisfaction arrived at by the Detaining Authority that the petitioner is a bootlegger, within the meaning of section 2(b) of the MPDA Act, is completely vitiated.
(ii) None of the acts and conduct attributed to the petitioner, even if it is assumed that the petitioner is a bootleger, make out a case that the said act or conduct was prejudicial to the maintenance of public order. There is no material to demonstrate that the bootlegging activities of the petitioner were causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public. In short, the element of the
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activities of the petitioner having distributed the even tempo of life of ordinary persons is conspicuous by its absence. Mere allegations, or for that matter proof, of being a bootlegger by itself is not a ground for preventive detention.
(iii) The satisfaction arrived at by the Detaining Authority to the effect that the bootlegging activity caused danger to public health is vitiated as its based on the opinion of the Department of Forensic Medicine and Toxicology, Dr. V.M. Government Medical College, Solapur, and not on the objective assessment of the prevailing situation allegedly caused by the bootlegging activity of the petitioner, by the Detaining Authority.
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actual and conscious possession of illicit liquor. In the absence of such material, the Detaining Authority was not at all justifed in designating the petitioner as a bootleger, urged Ms. Tripathi.
| Sr. No. |
Police Station | CR No. & D | ate U/section |
Status |
|---|---|---|---|---|
| 5-1 | Jailroad | 1075/2020 19/07/20 |
Dt. 65(e) of Maharashtra Prohibition Act, 1949 r/w sec.188, 269, 290 of IPC, sec. 51(b) of Disaster Management Act, 2005, sec. 3 of the Epidemic Diseases Act, 1897. |
Court Pending |
| 5-2 | Jailroad | 1175/2020 19/08/20 |
Dt. 65(e), 81 of Maharashtra Prohibition Act, 1949 |
Court Pending |
| 5-3 | Jailroad | 1202/2020 30/08/20 |
Dt. 65(e), 81 of Maharashtra Prohibition Act, 1949 |
Court Pending |
| 5-4 | Jailroad | 1215/2020 09/09/20 |
Dt. 65(e), 81 of Maharashtra Prohibition Act, 1949 |
Court Pending |
| 5-5 | Jailroad | 1219/2020 12/09/20 |
Dt. 65(e), 81 of Maharashtra Prohibition Act, 1949 |
Court Pending |
| 5-6 | Jailroad | 1240/2020 30/09/20 |
Dt. 65(e), 81 of Maharashtra Prohibition Act, 1949 |
Court Pending |
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petitioner. Identical role is attributed to the petitioner in each of the aforesaid crimes.
“2(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 receptacle or any other material whatsoever in furtherance or support of the doing of any of the things described above by or through any other person or who abets in any other manner the doing of any such thing."
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petitioner that the mere fact that the petitioner was not found in actual and conscious possession of illicit liquor would take him out of the dragnet of being a “bootlegger”. In view of the expansive ambit of the term “bootlegger”, the supply and distribution of illicit liquor squarely falls within the tentacles of the said provision.
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Shaik Vs. Police Commissioner, Ahmedabad and Anr.1 . Reliance was also placed on a Division Bench judgment of this Court in the case of Dattatray Baswant Jagtap Vs. The Commissioner of Police , Solapur and Ors.2 , (to which one of us [S.S. Shinde, J.] was a Party)
1 (1989) 3 SCC 321
2 Writ Petition No. 3427/2019 dt. 18-10-2019
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bear upon the controversy sought to be raised on behalf of the petitioner. Under section 2(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 to clause 2(a) reads as under :
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 disturbance in public safety and tranquility or disturbs the day to day life of the community by black-marketing in the essential commodities which is resulting in the artifcial scarcity in the supply of such commodities and rises in the prices of essential commodities which ultimately causes infation] [or disturbs the life of the community by producing and distributing pirated copies of music or flm products, thereby resulting in a loss of confdence in administrations.]
16. From the phraseology of section 2(a)(ii) read with
Explanation thereto, it becomes abundantly clear that a bootleger can be detained by invoking the provisions contained in section 3 of the MPDA Act not only in a case where the bootlegging activity
is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof but also in a case where it has the propensity of a grave or
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widespread danger to life or public health.
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A proftable reference in this context can be made to the judgment of the Supreme Court in the case of Harpreet Kaur (Mrs.) Harvinder Singh Bedi v. State Of Maharashtra And Another3 , wherein the connotation of the Explanation was elucidated as under :
“28. The explanation to Section 2(a) (supra) brings into effect a legal fction as to the adverse effect on ‘public order’. It provides that if any of the activities of a person referred to in clauses (i)-(iii) of Section 2(a) directly or indirectly causes or is 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 a widespread danger to life or public health, then public order shall be deemed to have been adversely affected. Thus, it is the fall-out of the activity of the “bootlegger” which determines whether ‘public order’ has been affected within the meaning of this deeming provision or not. This legislative intent has to be kept in view while dealing with detentions under the Act.”
under :
3 (1992) 2 SCC 177
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“Section 3 :
(4) For the purpose of this section, a person shall be deemed to be "acting in any manner prejudicial to the maintenance of public order" when such person is engaged in or is making preparation for engaging in any activities whether 5 [as a bootlegger or common gambling house paper or and person] or dangerous person or drug offender or immoral traffc offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order.”
20. In the context of the aforesaid provisions, the Supreme
Court observed as under :
“16 …………..A conjoint reading of Section 2(b) and Section 3(4) with the explanation annexed thereto clearly spells out that in order to clamp an order of detention upon a 'boot- legger' under Section 3 of the Act, the detaining authority must not only be satisfed that the person is a bootlegger within the meaning of Section 2(b) but also that the activi- ties of the said bootlegger affect adversely or likely to affect adversely the maintenance of public order. Reverting to the facts of this case, the vague allegations in the grounds of detention that the detenu is the main member of the gang of Abdul Latif Abdul Wahab Shaikh indulging in bootlegging activities and that the detenu is taking active part in such dangerous activities, are not suffcient for holding that his activities affected adversely or were likely to affect adversely the maintenance of public order in compliance with subsection 4 of Section 3 of the Act that the activities of the detenu have caused 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, property or public health as per the explanation to Section 3(4).
17 The offences registered in the above mentioned four cases against the detenu on the ground that he was dealing in liquor have no bearing on the question of maintenance of public order in the absence of any other material that those activities of the detenu have adversely affected the maintenance of public order.
18 There is a catena of decisions dealing with the question of 'maintenance of public order'. But we think
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that it will be suffcient to make reference to the following two decisions.
19 This Court in Ashok Kumar v. Delhi Administration, [1982] SCC 403 has observed:
"It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order."
20 In a recent decision of this Court in Piyush Kantilal Mehta v. The Commissioner of Police, Ahmedabad City and Anr., Judgments Today 1988 (4) 703 a question similar to one before us arose for consideration. In that case, the allega- tions in the grounds of detention were that the detenu was a prohibition bootlegger, that he was indulged into the sale of foreign liquor and that he and his associates indulged in use of force and violence and also beating innocent citizens by which an atmosphere of fear was created. In that case the detenu was alleged to have been caught redhanded possessing English wines with foreign marks and in the second occasion he was caught while shifting 296 bottles of foreign liquor in an Ambassador car. While deal- ing with that case, this Court observed as follows:
"It is true some incidents of beating by the petitioner had taken place, as alleged by the witnesses. But, such inci- dents, in our view, do not have any bearing on the mainte- nance of public order. The petitioner may be punished for the alleged offences committed by him but, surely, the acts constituting the offences cannot be said to have affected the even tempo of the life of the community. It may be that the petitioner is a bootlegger within the meaning of Section 2(b) of the Act, but merely because he is a bootlegger he cannot be preventively detained under the provisions of the Act unless, as laid down in sub-section (4) of Section 3 of the Act, his activities as a bootlegger affect adversely or are likely to affect adversely the maintenance of public order. "
(emphasis supplied)
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Supreme Court, in the facts of the said case, found that the mere fact that the petitioner therein was dealing in liquor had no bearing on the question of maintenance of public order in the absence of any other material that those activities of the detenu have adversely affected the maintenance of public order.
“4 In our opinion there is no substance in this contention. In none of the three cases relied upon by the learned counsel the point whether public order can be said to have been disturbed on the ground that the activity of the detenue was harmful to the public health arose for consideration. It appears that in those three cases, the detaining authority had not recorded such
4 (1999) 4 SCC 514
5 1989 Supp (1) SCC 322
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satisfaction. Moreover, in those cases the detaining authorities had referred to some incidents of beating but there was no material to show that as a result thereof even tempo of public life was disturbed. In this case, the detaining authority has specifcally stated in the grounds of detention that selling of liquor by the petitioner and its consumption by the people of that locality was harmful to their health. The detaining authority has also stated that the statements of witnesses clearly show that as a result of violence resorted to by the petitioner even tempo of the public life was disturbed in those localities for some time. The material on record clearly shows that members of the public of those localities had to run away from there or to go inside their houses and close their doors.
5 What is required to be considered in such cases is whether there was credible material before the detaining authority on the basis of which a reasonable inference could have been drawn as regards the adverse effect on the maintenance of public order as defned by the Act. It is also well settled that whether the material was suffcient or not is not for the courts to decide by applying an objective test as it is a matter of subjective satisfaction of the detaining authority. The observation made by this Court in Om Prakash Vs. Commissioner of Police & Ors. - 1988 Supp. (2) SCC 576 that
"as in Piyush Mehta Case, the materials available on record in the present case are not suffcient and adequate for holding that the alleged prejudicial activities of the detenu have either affected adversely or likely to affect adversely the maintenance of public order within the meaning of Section 4(3) of the Act and as such, the order is liable to be quashed"
are to be understood in the context of the facts of that case.”
emphasis supplied)
the legality of an order of detention passed by the Detaining Authority, by resorting to the provisions of section 3 of the MPDA
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Act, in the case of a bootleger, what has to be seen is whether there was credible material before the Detaining Authority, on the strength of which, an inference is justifable that the bootlegging activity 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. Indisputably, the suffciency 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.
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minor injury. The plastic can fell off the motorcycle and the illicit liquor spilled on the ground. When the witness remonstrated the driving of the motor cycle in a rash manner, the petitioner and his associates abused and assaulted the said witness. Alarmed by the assault, the neighbours came thereat. The petitioner threatened them on the point of knife. The associates of the petitioner beat those persons by sticks. The people started to run helter-skelter on account of the terror created by the petitioner and his associates. Nobody came forward to help the witness. After giving threats of dire consequences and robbing him of Rs.1,500/-, the petitioner and his associates decamped. On account of fear, the witness did not report the matter to police.
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helter-skelter and the nearby shopkeepers downed the shutters of their shops and residents shut the doors of their houses. The said witness also claimed to have not reported the matter to police on account of the fear of the petitioner.
“6 I have carefully gone through the referred, in-camera statements and relied documents as well as statements of in-camera witnesses A and B, placed before me.
Ongoing through fact of offences registered against you it becomes clear that you are a habitual bootleger.
As well as Department of Forensic Medicine and Toxicology, Dr. V.M. Government Medical College, Solapur have also given opinion that “ Consumption of ethyl alcohol in excessive amount is harmful to human body, which causes death.”
Ongoing through the fact of in-camera witnesses A and B as shown in Para No.5-9 and 5-10 of grounds of detention it becomes clear that you have created terror in the minds of public in that area.
I am aware that, now a days you are free person, taking into consideration that you are a free person, your tendency and propensity refected into the offences committed you recently, as shown in above Para No.5-1 to 5-6 and Para No.5-9, 5-10, I am satisfed that you will likely to revert to the similar activities prejudicial to the maintenance of public order in future.
Thus, I am satisfed that you proved yourself as habitual bootleger and acting in a manner prejudicial to the maintenance of public order.
So, it has become necessary for me to detain you under MPDA Act, 1981 to prevent you from acting in such a prejudicial manner in future too.”
Authority cannot be said to be based on no material and, thus,
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unsustainable. The antecedents and acts attributed to the petitioner are required to be considered as a whole. There is material to indicate that the activities of the petitioner were such that they disturbed the even tempo of life of the ordinary citizens. It was not a case of a solitary incident. On the contrary, the material on record unmistakably indicates that the petitioner has been continuously indulging in the acts prohibited under the Act, 1949. Registration of almost 57 cases in a span of three years indicates the frequency and intensity with which the petitioner was indulging in bootlegging. From this stand point, the satisfaction arrived at by the Detaining Authority based on the statements of the witnesses, recorded in-camera, cannot be said to be unsustainable.
6 Cri. Writ Petition No.1191 of 2020 (Coram : T.V. Nalawade & M/G. Sewlikar, JJ) 7 2017 All MR (Cri) 3683
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therein, wherein also, the detenue was alleged to be the person, who had supplied and distributed illicit liquor, and the in-camera statements of witnesses, the Division Bench had recorded that the incidents attributed to the detenue therein were such that there was a feeling of alarm, danger and insecurity in the minds of the people who had gathered at the spots.
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consumption of ethyl alcohol in excessive amount is harmful to human body, which causes death.
“13. Merely the fact that the Petitioner is a bootlegger is not suffcient to warrant the invocation of the provisions of the M.P.D.A. Act against the Petitioner. Mere possessing liquor also is not suffcient though in the facts of the present case, the Petitioner was not found in possession of the liquor at any point of time. But there is no material on record to show that the bootlegging activities of the Petitioner are prejudicial to the public order. The Petitioner can be effectively dealt with under the General Law, i.e., under the Maharashtra Prohibition Act, so far as his involvement in the liquor business is concerned and he is being dealt with. In this view of the matter, the invocation of provisions of the M.P.D.A. Act by the detaining authority was not warranted in the facts of the present case. Only because the consumption of Ethyl Alcohol in excessive amount is harmful to human body, which may cause death is the opinion given, it cannot be presumed that the Petitioners activities are likely to prejudice the maintenance of public health in future. The detention in these facts under the M.P.D.A. Act is not warranted.”
peculiar facts of the said case. This Court had, in terms, recorded in the preceding paragraph (Para.12) that there was nonapplication of mind on the part of the Detaining Authority in
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ignoring the important requirement that there was no cogent material available before the Detaining Authority to show that the activities of the petitioner were prejudicial to the maintenance of public order. Vague and general allegations were made in the grounds of detention and the absence of material that the petitioner’s activities were prejudicial to the maintenance of public order, vitiated the impugned order.
“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 order is disturbed since there is no danger to the public health.
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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 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 favouring 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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O R D E R
The petition stands dismissed.
Rule discharged.
(N. J. JAMADAR, J.)
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3 issues framed by the court
Could a supplier and distributor of illicit liquor be treated as a bootlegger without being found in actual possession?
Was there credible material that the bootlegging activities adversely affected public order?
Was the finding of danger to public health sustainable on the chemical analysis, medical opinion and bootlegging activity?
Colour shows how this judgement treated each authority
Rashidmiya @ Chhava Ahmedmiya Shaik Vs. Police Commissioner, Ahmedabad and Anr.Distinguished¶142
(1989) 3 SCC 321 · Who else cites this
Dattatray Baswant Jagtap Vs. The Commissioner of Police , Solapur and Ors.Distinguished¶206
Writ Petition No. 3427/2019 dt. 18-10-2019
Harpreet Kaur (Mrs.) Harvinder Singh Bedi v. State Of Maharashtra And AnotherRelied on¶110
(1992) 2 SCC 177 · Who else cites this
Kanuji S. Zala Vs. State of Gujarat & Ors.Relied on¶142
(1999) 4 SCC 514 · Who else cites this
Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad City & Anr.Referred¶142
1989 Supp (1) SCC 322 · Who else cites this
Machindra Dnyanoba Jadhav (Now in jail) Vs. The State of MaharashtraRelied on¶189
Cri. Writ Petition No.1191 of 2020
Ramesh Balu Chavan Vs. The Commissioner of Police & Ors.Relied on¶213
2017 All MR (Cri) 3683
5 provisions across 2 enactments
Kashinath Motiram Chavan
The Commissioner of Police Solapur
The State of Maharashtra
The Superintendent, Yerwada Central Prison, Pune
S.S. SHINDE
N.J. JAMADAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
