Quashed

Kisna S/O Namdev Mundre v. the State of Maharashtra Thr. Home Dept.,(Spel),Mantralaya,Madam Kama Road, Mumbai and 2 Another

Bombay HC20 Sept 2024WP/421/2024

Case brief

AI extract

What is this about?

Preventive detention as bootlegger challenged. Detention rested on one Section 65(e) Maharashtra Prohibition Act offence and two general in-camera statements; no Chemical Analyser report existed when the order was passed. The Court held the material insufficient and set aside the detention, ordering release.

What did the court decide?

Detention order dated 31.3.2024 set aside; petitioner to be released forthwith if not required in any other offence.

Kisna S/O Namdev Mundre Vs the State of Maharashtra Thr. Home Dept.,(Spel),Mantralaya,Madam Kama Road, Mumbai and 2 Another — Bombay HC (2024) — LawSathi Research

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2024:BHC-NAG:10534-DB

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wp421.2024

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR

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CRIMINAL WRIT PETITION NO.421/2024

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Kisna S/o Namdev Mundre Aged about 42 years, Occ. Labour, R/o Ambada, Tq. Morshi, District Amravati. ... Petitioner - Versus - 1. The State of Maharashtra Through Home Department (Special), Mantralaya, Madam Kama Road, Mumbai-32. 2. The Principal Secretary to Government of Maharashtra, Home Department (Special), Mantralaya, Madam Kama Road, Mumbai - 400 032. 3. The Collector & District Magistrate, Amravati, Tq. & District Amravati. ... Respondents ----------------Ms. Aastha Sharma, counsel for the petitioner. Shri S.S. Doifode, A.P.P. for respondent Nos.1to 3/State. ---------------- CORAM: VINAY JOSHI & MRS.VRUSHALI V. JOSHI, JJ. DATE OF RESERVING THE JUDGMENT: 10.9.2024. DATE OF PRONOUNCING THE JUDGMENT: 20.9.2024.

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JUDGMENT (Per Mrs. Vrushali V. Joshi, J.)

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Heard Ms. Aastha Sharma, Advocate for the

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petitioner and Shri S.S. Doifode, A.P.P. for respondent Nos.1 to 3/State. Rule .

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The petitioner/detenue has preferred this petition questioning the detention order passed against him on 31.3.2024 by respondent No.3-Collector and District Magistrate, Amravati which is approved by respondent No.1-Government of Maharashtra on 10.4.2024. The said detention order has been passed in exercise of the powers under 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. At present, the petitioner has been lodged at the Central Prison, Amravati.

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A proposal dated 22.3.2024 was forwarded by the Sub-Inspector, State Excise, Morshi, District Amravati to the

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Detaining Authority. The order of detention is based on a singular crime i.e. Crime No.26/2024 dated 13.3.2024 under Section 65(e) of the Maharashtra Prohibition Act, 1949 pursuant to the raid conducted in which 50 litres of hand-brewed liquor was found at the backside of the house of detenue and a total muddemal valued at Rs.2,800/- was seized. Three bottles of 180 millilitre capacity were seized out of which two bottles were taken as sample and sent to the Regional Forensic Science Laboratory, Amravati for further analysis which is under investigation.

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The petitioner is alleged to be indulged in the sale and business of illicit hathbhatti liquor and transport of the same in Morshi Taluka as well as Ambada, Amravati through the route of Madhya Pradesh border.

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Ms. Sharma, learned Advocate appearing for the petitioner has pressed into service several grounds. She submitted that the proposal of detention was forwarded without C.A. report.

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Till the order of detention was passed by respondent No.3 no C.A. report was received. The detention order under reference is based on two in-camera statements recorded on 7.3.2024 and 12.3.2024 which are general in nature and no specific instance is

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recorded. She further submitted that there is no subjective satisfaction arrived at by the Detaining Authority by considering the relevant material. The grounds of detention nowhere depict the truthfulness or genuineness of the recitals in the in-camera statements and there is no nexus between the incident and the order of detention as unreasonable delay is there between the date of incident and the date of passing the detention order. She has also pointed out the other material which is compilation consisting of all the cases registered earlier against the detenue.

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Learned A.P.P. Mr. Doifode relied upon the

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confidential statements of the witnesses. He submitted that notice under section 41 of the Code of Criminal Procedure was issued to the petitioner. The particulars of the criminal activities have been

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mentioned in the in-camera statements recorded by the Police Officer and the same are verified by the Sub-Divisional Police Officer along with a dialogue with the Detaining Authority. He further submitted that the respondents have considered the material and documents produced by the Superintendent of State Excise Department. Learned A.P.P. submitted that the liquor store of the petitioner is always crowded where drunkards are sitting in front of his shop teasing school girls and temple-going women. Due to the low cost of the hathbhatti liquor teenagers and young people of the village come to drink alcohol at the place and also got addicted to it. Excessive consumption of the hathbhatti liquor has taken place which is harmful and hazardous to the public health at large causing fights and arguments often among the people disturbing life in the vicinity of village Ambada, Morshi Taluka, District Amravati.

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Learned Advocate for the petitioner has relied on the

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following judgments:-

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(i) Criminal Writ Petition No.366/2024 (Krishna S/o Ramesh

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Katekhaye V/s. The State of Maharashtra and another) dated 22.8.2024.

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(ii) Criminal Writ Petition No.903/2023 (Abhishek @ Golu Pawan Kharbalkar V/s. State of Maharashtra and another) dated 28.6.2024 and

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(iii) Criminal Writ Petition No.90/2024 (Ramesh Tarachand Rathod V/s. The State of Maharashtra and another) dated 30.4.2024.

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The petitioner is detained as a bootlegger. Earlier crimes registered against the petitioner are for the offence punishable under Section 65(e) of the Maharashtra Prohibition Act. The recent crime is considered for passing the detention order i.e. Crime No.26/2024 punishable under Section 65(e) of the Maharashtra Prohibition Act and two confidential statements of witnesses are also considered and while passing the impugned

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order. The offence which is considered by the Detaining Authority is dated 13.3.2024 and the order is passed on

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31.3.2024. The question is whether it amounts to disturbing the public order.

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The offence which is considered there is no C.A. report in it. The report of Chemical Analyser for brining home the guilt of the accused is necessary for proving the offence under the Maharashtra Prohibition Act. In absence of such report it cannot be presumed or cannot be said to have provided the basis for recording subjective satisfaction so as to infer strong case against the accused like petitioner. In absence of report of the Chemical Analyser gravity or seriousness of the prosecution case loses its significance. In this background it cannot be said that recent offence which is under the Maharashtra Prohibition Act can be said to be relied on for recording subjective satisfaction by the Detaining Authority.

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Learned A.P.P. has stated that 5 C.A. reports are there which are of earlier offences. It is necessary to prove the offence

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which is considered for passing the detention order. In absence of C.A. report said offence cannot be considered for passing the detention order.

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On perusal of both confidential statement of witnesses, it appears that the general statements about the petitioner is stated by both these witnesses. No specific incident is mentioned. How he is nuisance to the society is mentioned by making a usual statement about the activities of the petitioner. Though it is verified and signed by the Detaining Authority the contents in the statements cannot be considered for passing the detention order and the statements are not sufficient to pass the detention order. Hence it is required to be set aside. Accordingly, it is set aside. The petitioner be released forthwith, if not required in any other offence.

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(MRS.VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)

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Tambaskar.

Kisna S/O Namdev Mundre v. the State of Maharashtra Thr. Home Dept.,(Spel),Mantralaya,Madam Kama Road, Mumbai and 2 Another

Case brief

What is this about?

What did the court decide?

Kisna S/O Namdev Mundre v. the State of Maharashtra Thr. Home Dept.,(Spel),Mantralaya,Madam Kama Road, Mumbai and 2 Another

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

Coram

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