1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINWAL WRIT PETITION NO. 886 OF 2007 Shri Sharad Vishnu Patil, ) Age 28 years, r/o. Village Padle, ) Taluka & Dist. Thane. ).. .. Petitioner. (son of the detenu) Versus 1) Shri D. Shivanandhan, ) Commissioner of Police, ) Thane. ) 2) The State of Maharashtra ) (Through the Secretary, Home ) Department (Spl.), Mantralaya, ) Mumbai. ) 3) Superintendent, ) Yerwada Central Prison, Pune. ).. .. Respondents. Mr. U. N. Tripathi for the Petitioner. Mr. D. S. Mhaispurkar, Addl.PP for the Respodents. 2 CORAM: BILAL NAZKI and S. A. BOBDE, JJ. DATED : 25TH JANUARY, 2008. JUDGMENT (Per Bilal Nazki, J.): This petition has been filed by the son of the detenu (hereinafter referred as “the detenu”), challenging the order of detention passed by the detaining authority, the Commissioner of Police, Thane, dated 1st March, 2007 under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons Act, 1981 (hereinafter referred to as “the Act”). Counter has been filed. We have perused the record and heard the learned Counsel for the petitioner and also the Addl. Public Prosecutor appearing for the State. 2. The grounds of detention were also communicated by the detaining authority to the detenu within the time prescribed. There are various grounds of attack to the detention made by the petitioner. But he has confined his case to two submissions. 3. It is submitted that two cases registered against the detenu being C.R. No.III-01 of 2007 and C.R. No. III-02 of 2007 under the Bombay Prohibition Act, 1949, were mentioned by the detaining authority in grounds of detention, as part of the material that was taken into consideration, while coming to the conclusion that the detenu needs to be detained. It is further submitted that 3 these two cases were irrelevant and shows non-application of mind, because of the facts that the report given by the Chemical Analyst, while the samples with respect to these two cases were sent, was that the samples were dangerous for human consumption. In one of the reports, it was stated by the Chemical Analyst that the sample contained 11% ethyl alcohol by volume in water it could have been used for distillation of intoxicating liquor. In the second report the contents of ethyl alcohol was 15%. Both the samples could be used for producing and manufacturing intoxicating liquor. It is further submitted by the learned Counsel for the petitioner that by definition under Section 2(a)(ii) of the Act, a bootlegger can be detained, while he is engaged, or is making preparations for engaging, in any of activities as a bootlegger, which affect adversely, or is likely to affect adversely, the maintenance of public order. It is submitted that since the samples were not dangerous to public health, as such there was no reason for coming to a conclusion even subjectively that there was any danger to the maintenance of public order. It is further submitted that such a question is no longer res integra and has come before this Court as also before the Supreme Court on various occasions and the last judgment on the question, where earlier other judgments were also considered by the Supreme Court, is a judgment in the case of District Collector, Ananthapur & Anr. v/s V. Laxmanna, 2005 SCC (Cri.) 882. In the State of Andhra Pradesh, the sale of arrack is a prohibited commodity and in that context an argument was made that since the arrack was 4 a prohibited commodity and manufacture, production and sale of arrack was prohibited under the Act, it should be considered to be sufficient for the detaining authority for coming to the conclusion that the detenu was indulging in an activity which was dangerous to public health as he was engaging himself in manufacture, transport or sale of a commodity which was a prohibited commodity. But the Supreme Court repelled this argument in paragraphs 7 and 8 of the judgment, quoted below : "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 5 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 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.” 4. Therefore, we agree with the learned Counsel for the petitioner that reference to the criminal cases registered against the detenu could not have formed ground for detention as they were irrelevant and had no connection whatsoever with the public order or public health. 5. The second contention of the learned Counsel for the petitioner that in the earlier cases, which were registered against him, he was bailed out on 15th January, 2007 and on the basis of an anonymous complaint against the detenu 6 two in-camera statements were recorded which are also part of the grounds for detention. It is submitted that even these two statements, if read, do not suggest that there was any danger to public order and at best there could be a problem of law and order. He further contends that the anonymous letter was made basis for detention and this anonymous letter was treated as part of the material by the detaining authority, while coming to the conclusion that the detenu needs to be detained. Since the allegations levelled in anonymous letter could not be repelled by the detenu because of its nature, as it was not known to the detenu as to what was the source of the letter. Therefore, he was also deprived of making an effective representation. Since this letter also is taken into consideration by the detaining authority, this is another instance of taking an irrelevant material into consideration. The learned Additional Public Prosecutor, however, submits that this letter was not the only material which was taken into consideration by the detaining authority for passing the impugned order, but on the basis of this letter, the police had made inquiries from the area and two statements were recorded which are termed as statements made by “A” and “B”. These statements were recorded by the Police in camera after the release of the petitioner from earlier detention on 15th January, 2007. According to the counter, anonymous complaint was received on 9th January, 2007. The detenu was arrested in connection with two cases on 12th January, 2007. He was released on bail on 15th January, 2007. The police was only able to record two 7 statements on 17th January, 2007, which became the basis for the order of detention. One of the allegations leveled in these statements were that the detenu and his son had attained property through illegal business of distillation of illicit liquor. When he was asked to stop the trade, he had abused and threatened the respective persons who had asked him to stop the trade. These statements also show that the illicit liquor was manufactured in marshy area and was hazardous for human consumption. When one goes through these statements, there is no allegation which would infer that even if these allegations were true they could have created a danger to public order. Besides it is pointed out by the learned Counsel for the petitioner that one of the instances referred to by witness “A”, was an alleged instance of the month of July, 2006. This was too remote in point of time. After July, 2006, the detenu had been detained in connection with the cases and till that day there was no complaint made against him. Witness “B” also made almost the similar allegations and he referred to one instance (15th of last month). Even if this instance is also taken into consideration, it is almost one and half month before the statement of the witness was recorded. 6. In this connection, learned Counsel for the petitioner relies on the unreported judgment of the Division Bench of this Court dated 28th July, 2006 passed in Criminal Writ Petition No 260 of 2006 (Haroon Mohammed Naim 8 Choudhary v/s A.N.Roy and others). In similar circumstances, this Court after referring the judgments of the Supreme Court in T.A.Abdul Rahman v/s State of Kerala, ((1989) 4 SCC 741) and Kantilal Shah v/s State of Maharashtra, (AIR 1982 SC 8), in para 10 observed as under: "10. However, we are not in agreement with the submissions of the learned Public Prosecutor Mr. Borulkar. If the facts of each case are to be independently considered before applying the ratio, then in this case the first activity is dated 24th January, 2005 and the detention order is of July, 2005. In between and after the detenu was released on bail tow in-camera statements came to be recorded on 30-4-2005 and 2-5-2005. This is nothing but to fill in the gap between 24-1-2005 and 7-7-2005. Therefore, the objection raised by Smt. Ansari for the petitioner to the detention order has to be upheld.” However, the Public Prosecutor made reference to the judgment of the Division Bench of this Court in Zebunnisa v/s M. N. Singh (2001 (1) Mh.L.J. 3). This judgment has also been taken note of by the Division Bench to which a reference has been made earlier. In this case, the High Court held that where the statements are made in-camera and they are recorded after the detenu was released on bail, they should not be viewed with suspicion. There can not be any quarrel with this principle. But in the present case, the whole thing started vide 9 a letter, which is termed as anonymous by the detaining authority himself, and after they received the letter they started inquiries and according to the Police Officers they could not find any witness because of the fear of the detenu and ultimately they found two witnesses who reported two instances which were almost stale on the date when these two witnesses made the statements. 7. For these reasons, we do not find that the order of detention passed by the detaining authority on 1st March, 2007 can sustain. The order of detention, as such, is quashed and set aside. It is directed that the detenu will be released forthwith, if not required in any other cases. Sd/- (BILAL NAZKI, J.) Sd/- (S. A. BOBDE, J.)