Dismissed

Kashinath Motiram Chavan v. the Commissioner of Police Solapur and Ors.

Bombay HC28 Jul 2021WP/1831/2021

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order of preventive detention under the MPDA Act. The Court held that the petitioner's history of 57 liquor-related cases and witness testimonies regarding violence and terror justified designating him as a bootlegger and finding his activities prejudicial to public order and public health.

What did the court decide?

The petition was dismissed, the interlocutory rule was discharged, and the order of detention was upheld.

Kashinath Motiram Chavan Vs the Commissioner… — Pension and Retirement Benefits | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO. 1831 OF 2021

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Kashinath Motiram Chavan Aged : 32 years, r/o Jyotiba Nagar, Mulegaon Tanda, Solapur ...Petitioner vs. 1. The Commissioner of Police Solapur

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The State of Maharashtra, (Through Addl. Chief Secretary to Government of Maharashtra, Mantralaya, Home Department, Mantralaya, Mumbai)

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The Superintendent, Yerwada Central Prison, Pune.

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...Respondents

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Ms.Jayshree Tripathi for petitioner. Mr.J.P. Yagnik, APP for the State.

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CORAM : S.S. SHINDE &

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N.J. JAMADAR, JJ.

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Reserved for Judgment on : 3^rd July 2021. Judgment Pronounced on : 28^th July 2021.

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(THROUGH VIDEO CONFERENCE)

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JUDGMENT (PER N.J. JAMADAR, J.) :

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Rule. Rule made returnable forthwith and, with the consent

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of the learned counsels for the parties, heard fnally.

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Shraddha Talekar, PS

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This petition under Article 226 of the Constitution of India takes exception to the order of detention, dated 23^rd March 2021 passed against the petitioner by the Commissioner of Police, Solapur-respondent No.1 under the provision of section 3(2) 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 (for short, ‘MPDA Act’).

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Shorn of unnecessary details, the background facts leading to this petition can be stated as under :-

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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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Shraddha Talekar, PS

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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.

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(b) The petitioner had again indulged in the acts in contravention of the provisions of the Act, 1949. Six cases were registered thereunder from 19^th July 2020 to 30^th September 2020. Investigation revealed that the petitioner had supplied and distributed the illicit liquor which came to be seized in those crimes.

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(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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Shraddha Talekar, PS

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amount is harmful to human body and causes death.

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(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 23^rd March 2021.

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(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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Affdavits in reply are fled by the respondent No.1 and on behalf of respondent No.2-State.

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Shraddha Talekar, PS

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We have heard Ms.Tripathi, the leaned counsel for the petitioner and Mr. Yagnik, the learned APP for the respondents. We have also perused the original record made available by the learned APP.

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Ms. Tripathi restricted the challenge to three grounds :

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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.

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(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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Shraddha Talekar, PS

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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.

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(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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In order to bolster up the frst ground of absence of material, which would justify the branding of the petitioner as a bootleger, Ms.Tripathi took us through the grounds of detention served on the petitioner. A strenuous effort was made to draw home the point that in none of the six cases registered against the petitioner, for the offences punishable under section 65(e) and 81 of the Maharashtra Prohibition Act, 1949, during the period 19^th July 2020 to 30^th September 2020, the petitioner was found in

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Shraddha Talekar, PS

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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.

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The Detaining Authority has considered the following offences registered against the petitioner in addition to in-camera statements of two witnesses :

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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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The narration in respect of each of the cases, which follows the aforesaid tabulation of the offences registered against the petitioner, reveals that the accused, who were apprehended in each of the crimes along with the contraband material, allegedly disclosed that the illicit liquor was supplied and distributed by the

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Shraddha Talekar, PS

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petitioner. Identical role is attributed to the petitioner in each of the aforesaid crimes.

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Clause (b) of section 2 of the MPDA Act defnes a ‘bootleger’ as under :

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“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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In the light of the aforesaid defnition, which is of wide amplitude, it becomes clear that a person who distills, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating substance or who knowingly expends or applies any money or supplies any other animal, vehicle or conveyance or receptacle or any other material whatsoever to facilitate the doing of any of the prohibited acts either himself or by any other person or who abets the doing of such prohibited acts in any other manner can be termed as a bootlegger. In the backdrop of aforesaid expansive defnition, we fnd it rather diffcult to accede to the submission on behalf of the

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Shraddha Talekar, PS

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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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In the case at hand, there is a consistency in the narration of the facts of above-referred six cases that the petitioner had supplied the contraband material which was found in the possession of the co-accused. It is imperative to note that in addition to above six offences registered against the petitioner, the Detaining Authority had noted that during the period 19^th April 2018 to 10^th February 2021, as many as 51 cases were registered against the petitioner for the offences punishable under section 65(e) and 81 of the Act, 1949. In the face of the aforesaid material, it would be rather diffcult to accede to the submission on behalf of the petitioner that the Detaining Authority was not justifed in designating the petitioner as a ‘bootleger’. The sheer weight of the material is such that no other view is conceivable.

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Shraddha Talekar, PS

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Ms. Tripathi next urged that mere proof of the fact that the petitioner is a bootleger is of no avail. It was incumbent upon the Detaining Authority to record a subjective satisfaction, based on objective material, that the bootlegging activities of the petitioner were prejudicial to maintenance of public order. In the absence of such satisfaction, an order of preventive detention is legally unsustainable for bootlegging can be dealt with in accordance with ordinary law, namely, Maharashtra Prohibition Act, 1949 and resort to the provisions of preventive detention under the MPDA Act is wholly unwarranted.

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In order to lend support to the aforesaid submission, Ms. Tripathi placed a very strong reliance on a judgment of the Supreme Court in the case of Rashidmiya @ Chhava Ahmedmiya

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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)

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Before we advert to consider the aforesaid judgments, it may be apposite to note the provisions contained in MPDA Act, which

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1 (1989) 3 SCC 321

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2 Writ Petition No. 3427/2019 dt. 18-10-2019

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Shraddha Talekar, PS

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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—

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“(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.”

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Explanation to clause 2(a) reads as under :

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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.]

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16. From the phraseology of section 2(a)(ii) read with

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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

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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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Shraddha Talekar, PS

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widespread danger to life or public health.

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We may note with beneft, the concept of “public order” generally and its particular connotation under the MPDA Act. The distinction between the concepts of “public order” and “law and order” is well recognised. Public order is something more than ordinary maintenance of law and order. A proper test to distinguish between “law and order” and “public order” is whether the complained acts led to disturbance of the ordinary tempo of life of the community so as to amount a disturbance of the public order or it merely affected an individual leaving the tranquility of society undisturbed. It is, therefore, said that the essential distinction between the concepts of “public order” and “law and order” is not in the nature or quality of the act but in the degree, potentiality and extent of its reach upon society. The given act by itself may not be determinant of its own gravity. It is the propensity and potentiality of the act of disturbing the even tempo of life of the community that renders it prejudicial to the maintenance of public order.

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It would be contextually relevant to note that the Explanation to section 2(a) of the MPDA Act (extracted above) incorporates a legal fction as to the adverse effect on public order.

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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 :

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“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.”

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Now, it may be apposite to consider the pronouncement in the case of Rashidmiya @ Chhava Ahmedmiya Shaik (Supra). It was a case under the provisions of Gujarat Prevention of AntiSocial Activities Act, 1985. Section 2(b) of the Gujarat Prevention of Anti-social Activities Act, 1985 which defnes a “bootlegger” is pari materia section 2(b) of the MPDA Act. Section 3(4) of the Gujarat Prevention of Anti-Social Activities Act, 1985 reads as

under :

3 (1992) 2 SCC 177

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“Section 3 :

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(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.”

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20. In the context of the aforesaid provisions, the Supreme

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Court observed as under :

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“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).

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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.

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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.

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19 This Court in Ashok Kumar v. Delhi Administration, [1982] SCC 403 has observed:

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"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."

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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:

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"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. "

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(emphasis supplied)

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From the aforesaid observations, it becomes evident that the

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Shraddha Talekar, PS

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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.

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The aforesaid pronouncement, in our view, would be of no assistance in a case where the Detaining Authority, based on cogent material, forms an opinion that the activity of bootlegging was prejudicial to the maintenance of pubic order. A useful reference in this context can be made to the judgment of the Supreme Court in the case of Kanuji S. Zala Vs. State of Gujarat & Ors.⁴ , wherein the aforesaid pronouncements in the case of Rashidmiya @ Chhava Ahmedmiya Shaik (Supra) and Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad City & Anr.⁵ were explained. After adverting to the aforesaid pronouncements, the Supreme Court, in the case of Kanuji S. Zala (Supra), observed as under :

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“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

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4 (1999) 4 SCC 514

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5 1989 Supp (1) SCC 322

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Shraddha Talekar, PS

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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.

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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

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"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"

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are to be understood in the context of the facts of that case.”

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emphasis supplied)

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The legal position which, thus, emerges is that while testing

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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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Shraddha Talekar, PS

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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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On the aforesaid touchstone, reverting to the facts of the case, we fnd that apart from the numerous cases which were registered against the petitioner, the Detaining Authority considered the statements of two witnesses recorded in-camera. The statement of witness ‘A’ reveals that the petitioner and his associates were carrying a plastic can containing illicit liquor on motor cycles. Children were playing on the road in front of the shop of the said witness. There was an accident and one of the children was dashed by one motorcycle. The child suffered a

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Shraddha Talekar, PS

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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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The statement of witness ‘B’ reveals that the petitioner and his associates accosted and questioned him as to why he was reporting the bootlegging activity of the petitioner to the police. At that time, the petitioner and his associates were armed with sticks and iron rods. When the witness declined to have informed the police, the petitioner abused the witness on the point of knife. The associates of the petitioner beat the witness and his friends with sticks and iron rods. As the persons gathered, the petitioner and his associates charged upon those persons. Some of them ran

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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.

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In the light of the aforesaid cases registered against the petitioner and in-camera statements of the witnesses, the Detaining Authority recorded as under :

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“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.

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Ongoing through fact of offences registered against you it becomes clear that you are a habitual bootleger.

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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.”

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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.

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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.

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Thus, I am satisfed that you proved yourself as habitual bootleger and acting in a manner prejudicial to the maintenance of public order.

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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.”

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In our view, the aforesaid observations of the Detaining

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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.

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In the light of the aforesaid facts, the reliance placed by Mr. Yagnik on the judgment of this Court in the cases of Machindra Dnyanoba Jadhav (Now in jail) Vs. The State of Maharashtra⁶ and Ramesh Balu Chavan Vs. The Commissioner of Police & Ors.⁷ appears well founded.

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In the case of Ramesh Balu Chavan (Supra), after recording the facts relating to the crimes registered against the detenue

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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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The judgment in the case of Ramesh Balu Chavan (Supra) also bears upon the third ground sought to be urged on behalf of the petitioner, namely, the satisfaction arrived at by the Detaining Authority that the prejudicial activity of the petitioner was likely to cause a grave or widespread danger to life or public health was based on the mere opinion of the Department of Forensic Medicine and Toxicology, Dr. V.M. Government Medical College, Solapur.

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We have noted above that the Detaining Authority took into account the fact that the samples of contraband which were seized from the co-accused of the petitioner were sent for forensic analysis and the Forensic Science Laboratory reported that the sample contained 4% to 14% Ethyl alcohol in water. It further noted that the Department of Forensic Medicine and Toxicology, Dr. V.M. Government Medical College, Solapur opined that

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consumption of ethyl alcohol in excessive amount is harmful to human body, which causes death.

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Ms. Tripathi would urge that reliance on aforesaid opinion, in itself, was not suffcient to record a satisfaction that the bootlegging activity was prejudicial to the maintenance of public order. Our attention was invited to the following observations in the case of Dattatray Baswant Jagtap (Supra) :-

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“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.”

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The aforesaid observations, as is evident, were made in the

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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.

¶213

In the case at hand, as indicated above, there is cogent material. Moreover, in the case of Ramesh Balu Chavan (Supra), the Division Bench dealt with an identical challenge based on the opinion of department of forensic medicine and toxicology. The observations in paragraph Nos. 14, 15 and 21 bear upon the controversy and hence extracted below :

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“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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Admittedly, the order of detention, grounds of detention along with accompanying documents were served on the detenu. Report from the Department of Forensic Medicine & Toxicology has also been furnished to the detenu. This report clearly states that regular consumption of Ethyl alcohol and Methyl alcohol causes ill

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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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As far as the two C.Rs. i.e 245/2016 and 257/2016 are concerned, we have, in the earlier paragraphs, discussed the C.A. reports and the report of Department of Forensic Medicine & Toxicology which show that the samples were such that it would cause danger to the public health. On going through Section 2 of the MPDA Act, we are of the view that a bootlegger can be detained under the provisions of this Act not only in case, he is dealing in liquor which as per the report of the expert is harmful to the public health but also in case his activities as bootlegger create a feeling of harm, danger or alarm or a feeling of insecurity among the members of the public. We have briefy discussed the facts relating to C.R. Nos. 245/16 and 257/2016 and the statements of incamera witnesses "A" & "B". All of them are such that they disturb the public order in one way or the other. Thus, this ground too fails.”

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In the case at hand, the persistent and relentless bootlegging activity, as manifested by the registration of as many as 57 cases, against the petitioner coupled with the chemical analysis reports and the opinion of the Medical Expert, justify an inference that the said activity was potentially dangerous to public health. We, thus, fnd that the acts and conduct attributed to the petitioner were prejudicial to maintenance of public order on both counts namely harm, danger or alarm or a feeling of insecurity among the general public, and grave danger to public health.

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The upshot of the aforesaid consideration is that the challenge to the impugned order does not deserve countenace. The petition, therefore, deserves to be dismissed.

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