Non mentioning of action taken under the Criminal Procedure Code or the Bombay Police Act in the grounds of detention, ipso facto, would not render the detention order bad or illegal: Bombay High Court

 on 26 04 2021 on 27 04 1 cwp16o21(Reportable)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 16 OF 2021Chandrakala w o Ramlal Jadhav Age : 39 years Occupation : Agri R o Khadak Talav Wadarwadi Tq. & Dist. Jalna....PETITIONER VERSUS 1.The State of Maharashtra.Through its Section Officer Home DepartmentMantralaya Mumbai 32.2.The District Collector Jalna Tq. & Dist. Jalna.3.The Superintendent of Jail Aurangabad Central Jail Aurangabad....RESPONDENTS…Shri P.P. More Advocate for the petitioner.Shri R.V. Dasalkar APP for the respondents State.... CORAM : RAVINDRA V. GHUGE & B. U. DEBADWAR JJ.Reserved on : 06th April 2021.Pronounced on : 26th April 2021. on 26 04 2021 on 27 04 2 cwp16o21JUDGMENT: 1.Rule. Rule made returnable forthwith and heard finally by theconsent of the parties.2.By this petition the petitioner has challenged the order dated07.12.2020 passed by respondent No.2 vide which she has been detainedunder the provisions of the Maharashtra Prevention of DangerousActivities of Slumlords Bootleggers Drug Offenders Dangerous Persons Video Pirates Sand Smugglers and Persons Engaged in Black Marketing ofEssential Commodities Act 1981and3(2) of the MPDA Act 1981. It is contended in the petition that the on 26 04 2021 on 27 04 3 cwp16o21petitioner was sent behind bars and was granted the liberty to make arepresentation against the order of detention under Article 22(5) of theConstitution of India before the Advisory Board. 5. The learned advocate for the petitioner makes a statement on instructions that the petitioner does not desire to make suchrepresentation and prays that this Court may consider this petition.6.The petitioner contends that the impugned order is renderedillegal on the following grounds:False offences are registered against the petitioner underpolitical pressure.(l)Personal liberty of the petitioner cannot be taken away whichis guaranteed by Article 21 of the Constitution of India.(m)The petitioner is willing to file an affidavit that she shall neveragain indulge in manufacturing illicit liquor and the detention berestricted to the time already spent by the petitioner behind bars. 7.The learned prosecutor while strenuously opposing thispetition relies upon the affidavit in reply filed by the District Magistrate on 26 04 2021 on 27 04 5 cwp16o21Jalna. It is stated in the said reply as under :(e) ofMaharashtra Prohibition ActPending trial2Kadim Jalna365 2018 u s 65(a)(f) ofMaharashtra Prohibition ActPending trial3Kadim Jalna83 2019 u s 65(a)(e)(f) ofMaharashtra Prohibition ActPending trial4Kadim Jalna108 2019 u s 65(a)(e)(f) ofMaharashtra Prohibition ActPending trial5Kadim Jalna120 2019 u s 65(a)(e)(f) ofMaharashtra Prohibition ActPending trial6Kadim Jalna 129 2019 u s 65(a)(e)(f) ofMaharashtra Prohibition ActPending trial7Kadim Jalna 197 2019 u s 328 188 269 270 of IPC 65(a)(e)(f) ofMaharashtra Prohibition ActUnder policeinvestigation8Kadim Jalna 359 2020 u s 328 of IPC 65(a)of MaharashtraProhibition ActUnder policeinvestigationPreventive actionSr.No.Police StationChapter Case No. & Section Disposal11Kadim Jalna14 2018 u s 93 ofMaharashtra Prohibition ActFinal Bond2Kadim Jalna24 2019 u s 93 ofMaharashtra Prohibition ActFinal Bond on 26 04 2021 on 27 04 7 cwp16o21(j)Despite the above action the petitioner was not deterred andthe police failed to curb her illegal activities.(k)The Inspector of Police of the said police station conducted aconfidential enquiry which discloses that the localites do not dare toregister complaints against the petitioner since she has terrorized themwith the aid of goons. On the assurance of anonymity some of the localiteswho have suffered the atrocious acts of the petitioner have recorded theirstatements in camera. The statements of two persons namely A and B arepart of the record.(l)On the basis of the reports and such statements the PoliceInspector submitted his report to the detaining authority respondent No.2herein for initiating action under Section 3(1) of the MPDA Act 1981.This action was initiated through the Sub Divisional Police OfficerJalna and the Superintendent of Police Jalna. The SDPO verified thewitnesses A and B in view of their statements earlier recorded andsubmitted a report to respondent No.2.(for short “the said Act”).2.The above named detenu has been detained on theground that since 2018 she has been continuouslyengaging herself in the commission of violent activitieswhich has created terror in the minds of residentsresiding in the area of operation and has disturbed theeven tempo of their life as well as public order. It isfurther stated that prosecutions under ordinary law andpreventive action have not affected criminal activities ofdetenu which have continued unabated and therefore inorder to prevent detenu from continuing her criminalactivities she was detained under section 3 of the Act.3.Recent criminal activity of detenu relied upon in supportof the Detention Order consist ofC.R. No.299 2018registered at Kadim Police Station Jalna under section65(A)(E) of Maharashtra Prohibition Act on the basis ofcomplaint filed by Shri Ganesh Duryodhan Jadhav.of MaharashtraProhibition Act on the basis of complaint filed by ShriKailas Madhukar Cheke.C.R. No.83 2019 registeredat Kadim Police Station Jalna under Section 65(A)(E)(F) of Maharashtra Prohibition Act on the basis ofcomplaint filed by PSI Smt.Pallavi Bhausaheb Jadhav.of MaharashtraProhibition Act on the basis of complaint filed by PHCMariyo Banot Squot.C.R. No.120 2019 registered atKadim Police Station Jalna under Section 65(A)(E)(F)of Maharashtra Prohibition Act on the basis ofcomplaint filed by Shri Shrikumar Mohan Adep.C.R.No.129 2019 registered at Kadim Police Station Jalna under section 65(A)(E)(F) of Maharashtra ProhibitionAct on the basis of complaint filed by PN Shri ManojSahebrao Hiwale.C.R. No.197 2020 registered atKadim Police Station Jalna under sections 328 188 269 270 of IPC sec. 51(b) of Disaster Management Act 2005 Epidemic Disease Act 1897 sec. 65(A)(E)(F) of on 26 04 2021 on 27 04 10 cwp16o21Maharashtra Prohibition Act on the basis of complaintfiled by PN Shri Manoj Sahebrao Hiwale.C.R.No.359 2020 registered at Kadim Police Station Jalna under section 65(A)(E)(F) of Maharashtra ProhibitionAct on the basis of complaint filed by PC Shri RaviBhimrao Mehetre.4.In view of history of the detenu and the continuouscriminal activities of detenu confidential enquiry wasmade regarding the terror and fear in the minds ofpeople and during the enquiry two witnesses cameforward to give in camera statements on strictunderstanding that they will not be called to giveevidence in any court of law or before any authority.Their statements show that in the recent past the detenuand his associates had threatened witness A and abusedhim in a filthy language. The detenu and his associateshad assaulted witness A and threatened him not tocomplain against the detenu to the police. The detenuhad threatened witness B by pointing a knife and hadalso assaulted him. The detenu forcibly removed Rs.500from the pocket of witness B. Perusal of the statementsindicates that during all incidents public order wasdisturbed and because of threat of retaliation given bythe detenu the witnesses did not dare to approach thepolice.5.The detenu is produced before us through VideoConferencing and we have heard the detenu. We havealso heard the concerned Police Officer. We havecarefully perused the record and in our opinion there issufficient material for further detention of the detenu.”Place : Mumbai sd Date : 15 01 2021[JUSTICE xxx]Chairman Advisory Board sdState ofMaharashtra as she is pursuing her remedy in this petition. 10.We have gone through the order dated 21.01.2021 issued inthe name of the Governor of Maharashtra under Section 12(1) of theMPDA Act 1981 vide which the Government of Maharashtra confirmedthe decision of the District Magistrate in exercise of his powers conferredby Section 3 of the MPDA Act 1981 and directed the detention of thepetitioner for a period of one year from the date of detention. 11.Sections 3 8 10 and 11 of the MPDA Act 1981 read as under: “3.Power to make orders detaining certain persons.(1)The State Government may if satisfied with respect toany person that with a view to preventing him fromacting in any manner prejudicial to the maintenance ofpublic order it is necessary so to do make an orderdirecting that such person be detained.(2)If having regard to the circumstances prevailing or likelyto prevail in any area within the local limits of thejurisdiction of a District Magistrate or a Commissioner ofPolice the State Government is satisfied that it isnecessary so to do it may by order in writing direct on 26 04 2021 on 27 04 12 cwp16o21that during such period as may be specified in the ordersuch District Magistrate or Commissioner of Police mayalso if satisfied as provided in sub sectionexercisethe powers conferred by the said sub section :Provided that the period specified in the ordermade by the State Government under this sub sectionshall not in the first instance exceed six months but theState Government may if satisfied as aforesaid that it isnecessary so to do amend such order to extend suchperiod from time to time by any period not exceeding sixmonths at any one time.(3)When any order is made under this section by an officermentioned in sub sectionhe shall forthwith reportthe fact to the State Government together with thegrounds on which the order has been made and suchother particulars as in his opinion have a bearing on thematter and no such order shall remain in force for morethan twelve days after the making thereof unless in themeantime it has been approved by the StateGovernment.”“8.Grounds of order of detention to be disclosed to personsaffected by the order.(1)When a person is detained in pursuance of a detentionorder the authority making the order shall as soon asmay be but not later than five days from the date ofdetention communicate to him the grounds on whichthe order has been made and shall afford him theearliest opportunity of making a representation againstthe order to the State Government.(2)Nothing in sub sectionshall require the authority todisclose facts which it considers to be against the publicinterest to disclose.”“10.Reference to Advisory Board.In every case where a detention order has been madeunder this Act the State Government shall within threeweeks from the date of detention of a person under theorder place before the Advisory Board constituted by itunder section 9 the grounds on which the order has beenmade and the representation if any made by the personaffected by the order and in the case where the orderhas been made by an officer also the report by such on 26 04 2021 on 27 04 13 cwp16o21officer under sub sectionof section 3.”“11.Procedure of Advisory Boards.(1)The Advisory Board shall after considering the materialsplaced before it and after calling for such furtherinformation as it may deem necessary from the StateGovernment or from any person called for the purposethrough the State Government or from the personconcerned and if in any particular case the AdvisoryBoard considers it essential so to do or if the personconcerned desires to be heard after hearing him inperson submit its report to the State Government within seven weeks from the date of detention of theperson concerned.(2)The report of the Advisory Board shall specify in aseparate part thereof the opinion of the Advisory Boardas to whether or not there is sufficient cause for thedetention of the person concerned.(3)When there is difference of opinion among the membersforming the Advisory Board the opinion of the majorityof such members shall be deemed to be the opinion ofthe Board.(4)The proceedings of the Advisory Board and its report excepting that part of the report in which the opinion ofthe Advisory Board is specified shall be confidential.(5)Nothing in this section shall entitle any person againstwhom a detention order has been made to appear by anylegal practitioner in any matter connected with thereference to the Advisory Board.”12.In Kanuji S. Zala vs. The State of Gujarat AIR 1999 SC 2269 the Honourable Apex Court has held in paragraphs 4 5 and 6 as under : “4.In our opinion there is no substance in this contention.In none of the three cases relied upon by the learnedcounsel the point whether public order can be said tohave been disturbed on the ground that the activity ofthe detinue was harmful to the public health arose forconsideration. It appears that in those three cases thedetaining authority had not recorded such satisfaction.Moreover in those cases the detaining authorities had on 26 04 2021 on 27 04 14 cwp16o21referred to some incidents of beating but there was nomaterial to show that as a result thereof even tempo ofpublic life was disturbed. In this case the detainingauthority has specifically stated in the grounds ofdetention that selling of liquor by the petitioner and itsconsumption by the people of that locality was harmfulto their health. The detaining authority has also statedthat the statements of witnesses clearly show that as aresult of violence resorted to by the petitioner eventempo of the public life was disturbed in those localitiesfor some time. The material on record clearly shows thatmembers of the public of those localities had to runaway from there or to go inside their houses and closetheir doors. 5.What is required to be considered in such cases iswhether there was credible material before the detainingauthority on the basis of which a reasonable inferencecould have been drawn as regards the adverse effect onthe maintenance of public order as defined by the Act. Itis also well settled that whether the material wassufficient or not is not for the courts to decide byapplying an objective test as it is a matter of subjectivesatisfaction of the detaining authority. The observationmade by this Court in Om Prakash Vs. Commissioner ofPolice & Ors. 1988 Supp.SCC 576 that "as inPiyush Mehta Case the materials available on record inthe present case are not sufficient and adequate forholding that the alleged prejudicial activities of thedetenu have either affected adversely or likely to affectadversely the maintenance of public order within themeaning of Section 4(3) of the Act and as such theorder is liable to be quashed" are to be understood in thecontext of the facts of that case. 6.As already stated earlier in this case the detainingauthority has specifically mentioned in the grounds thatthe activity of the det e nu e was likely to cause harm to the public health and that by itself is sufficient toamount to affecting adversely the public order as definedby the Act. The detaining authority has also stated thatas a result of resorting to violence by the petitioner forcarrying on his bootlegging activity even tempo of publicorder has also disturbed on some occasions. In view ofthe material on record it cannot be said that the on 26 04 2021 on 27 04 15 cwp16o21satisfaction of the District Magistrate in this behalf wasnot reasonable or genuine.”491 the learned Division Bench ofthis Court by placing reliance upon reported judgments has concluded inparagraph 6 as under : “6.Reliance was also placed on the observations of anotherDivision Bench at Nagpur in the matter of2002 Bom.C.R.(Cri.)1616. This ismainly relied upon for the purpose of submitting that there is delay in passing the detention order. So far aspresent matter is concerned we may state that in on 26 04 2021 on 27 04 16 cwp16o21camera statements are recorded on 13th and 14thFebruary 2005. The events narrated by witnesses A Band C are of first week of January 2005 and secondweek of December 2004. In the matter before Nagpur Bench the detentionorder was passed on 30 11 2000. The date of recordingthe statements is not available in the reported judgment but in camera statements of witnesses A and B narratedthe incidents of June and August 2000 respectively.Thus the order happened to be passed after more thanfive months and three months since the incidentsreferred to in the two in camera statements. Even thejudgments of the Honble Supreme Court referred to andrelied upon by the Division Bench at Nagpur do not laydown ratio that delay in passing the order should befatal. In fact in the matter ofBom.C.R. 218 : A.I.R.1982 S.C. 8 referred in paragraph 7 of the judgmentrelied upon the Honble Supreme Court has held thatdelay ipso facto in passing the order after the incident isnot fatal to the detention of a person for in certain cases delay may be unavoidable or reasonable. What isrequired by law is that the delay must be specificallyexplained by the Detaining Authority.In the matter of2000(5) Bom.C.R.1070: A.I.R. 2000 S.C. 1146 theHonble Supreme Court held that there was no unduedelay in passing the order of detention as the inquiryinto the incident was completed in February and theorder was passed in April after going through two stages.In the matter before the Nagpur Bench delay wasmuch more than in the matter of Hasan Khanreferred to by NagpurBench in paragraph 10 of its judgment and we will bejustified in saying that the State is not obliged to explainthe delay. Even considering the observations in thematter of Smt. Hemlatareferred in paragraph 7of the judgment of Nagpur Bench the incidents referredto in in camera statements in that matter were morethan 3 months and 5 months old. In the matter at hands when the statements are recorded on 13th and 14thFebruary 2005 the incidents were one or two monthsold. We are therefore of considered view that in thismatter the delay is neither unreasonable nor inordinateand there appears no necessity to explain the same.Delay is not of such a magnitude that the same canvitiate the detention order itself.We have on our own referred to the judgment ofthe Honble the Apex Court in the matter ofA.I.R. 1994 S.C. 656. In thismatter the Supreme Court was pleased to quash thedetention order by taking into considerationunexplained delay. The detention order was passed onthe basis of some criminal cases against the detenue andalso the statements of the witnesses. The detention orderwas passed after five months and eight days from thedate of registration of last offence and more than 4months from the submission of the proposal. When thetime gaps in the matter before us are compared with thetime gaps in the reported matter it is evident that thetime gaps in the matter at hands cannot be termed asdelay. The things appears to have moved withinreasonable time required in practical life. The last twooffences registered against present petitioner are of theincidents dated 26 11 2004 and 30 12 2004. The lastoffence registered is within less than two months fromthe order passed by the Detaining Authority on 24 2 2005. The same is within ten days from the proposal bythe Crime Branch which recorded the statements on13th and 14th February 2005.Viewed as above we do not think that there is anyunreasonable or unexplained delay which is required tobe explained in the matter at hands. Consequently weare unable to accept the submission of learned Advocate on 26 04 2021 on 27 04 18 cwp16o21Shri Gorhe that the order deserves to be quashed onaccount of delay.We are fortified in taking such a view in the lightof decision in the matter of2002(9) S.C.C. 714. In this matter thematerial was collected against the detenue in the monthof July 2000 and proposal for detention was initiated inAugust 2000. The order of detention was passed inOctober 2000. It was argued that the delay having notbeen properly explained by the respondent State thesame should be accepted as ground for quashing theorder of detention. The High Court upheld the detentionorder by observing that the delay in the case was neitherinordinate nor unexplained. The Supreme Courtconfirmed the decision of the High Court by againrejecting the same contention.”(Emphasis supplied)PERIOD OF DETENTION 15.The learned counsel for the petitioner has strenuouslycontended that the impugned order of detention does not mention theexact period of detention. As recorded herein above we have found thatthe order of confirmation dated 21.01.2021 passed by the Government ofMaharashtra indicates that the period of detention is for one year fromthe date of detention. Nevertheless in Magar Pansingh Pimplethis Court has held in paragraph 7 as under : “7. By relying upon a decision of a Division Bench at Nagpurof this High Court in the matter of2004(1) Bom.C.R.(Cri.)1988(Supp.) S.C.C. 568. Eventually as rightlypointed out by the learned A.P.P. the case relied upon byNagpur Bench is overruled by the Supreme Court whiledeciding the matter of1990 Cri.L.J. 1140 by its observations inparagraphs 10 and 11 of the said judgment which readas follows :"The Act nowhere requires the Detaining Authorityto specify the period for which the detenue is required tobe detained. The expression "the State Government aresatisfied that it is necessary so to do they may by orderin writing direct that during such period as may bespecified in the order" occurring in sub sectionofsection 3 relates to the period for which the order ofdelegation issued by the State Government is to remainin force and it has no relevance to the period ofdetention.""..............…The observations made by theSupreme Court in Gurbux Biryani’s case 1988(Supp.)S.C.C. 568 that the scheme of the Maharashtra Act wasdifferent from the provisions contained in other similarActs and that section 3 of the Act contemplated initialperiod of detention for three months at a time are notcorrect. The scheme as contained in other Acts providingfor the detention of person without trial is similar.Neither under the Preventive Detention Act 1950 norunder the Maintenance of Internal Security Act orCOFEPOSA Act or National Security Act is the DetainingAuthority required to specify the period of detentionwhile making the order of detention against a person. Inthe absence of any period being specified in the orderthe detenue is required to be under detention for themaximum period prescribed under the Act but it isalways open to the State Government to modify orrevoke the order even before the completion of themaximum period of detention. An order of detention isnot rendered illegal on account of the DetainingAuthoritys failure to specify period of detention in the on 26 04 2021 on 27 04 20 cwp16o21order."the contention raised bythe learned Counsel for the Petitioner does not survive.Following the view in the matter of T. Devaki in A.I.R.1992 S.C. 979 in paragraph 8 as under : “8. Copies of the reports of the Chemical Analyst in both thematters which are registered against the petitioner on26 11 2004 and 30 12 2004 are available at paperbookpages 107 and 108 respectively. In both the matters analyst has reported the percentage of ethyl alcohol V. byV. and the reports conclude by saying that the materialcan be used for distillation of intoxicated liquor and thatit is not medicinal antiseptic toilet preparation nor aflavouring material. Advocates Shri Gorhe by placingreliance on the observations of Division Bench of thisHigh Court at Bombay in the matter of1996(2) Bom.Cri.C. 15 urged that since the sample of the matter sent toAnalyser has not been found to be harmful to cause on 26 04 2021 on 27 04 21 cwp16o21danger to life and public health this cannot be a validground for detention as held in unreported judgment ofthe in the case ofin Cri.W.P. No. 9488 Date of Decision : 6 10 1988.The argument is unsustainable for two reasons.Firstly the report of the Analyser is not relied upon fordemonstrating that the preparation which was foundwith the petitioner at the time of raids on 26 11 2004and 30 12 2004 was dangerous to public health. Thereports are relied upon to show that the State has madeout a prima facie case against the petitioner regardingmanufacturing of intoxicant material in breach of theprovisions of the Bombay Prohibition Act. As pointed outby learned Counsel for the petitioner by relying uponthe observations of another Division Bench of in thematter of1986(2)Bom.C.R. 537 : 1986 Cri.L.J. 1421 in order to justify theorder of detention under section 3 of the MPDA Act theDetaining Authority is required to satisfy itself of twoingredients the petitioner is bootlegger within themeaning of Clauseof section 2 of the Act andheis acting in any manner prejudicial to the maintenance ofpublic order. The reliance on the reports of the ChemicalAnalyser is mainly for the purpose of demonstrating thatthe Petitioner is a bootlegger. We may state here itselfthat there was enough material before the DetainingAuthority to arrive at such a conclusion. As can be seenfrom paragraph 5 of the reply filed by Shri R.N. Wagh the then Commissioner of Police Aurangabad therewere three offences registered against the petitionerunder the provisions of Bombay Prohibitions Act 1949 more particularly under sections 66(1)(b) and 65(f) ofthe said Act by Cantonment Police Station Aurangabad.Section 65(f) is pertaining to use or keeping inpossession any material still utensils or apparatus forthe purpose of manufacturing any intoxicant. Section66(1)(b) is pertaining to consumption use possessionor transport of any intoxicant. It appears that theproceedings under section 93 are taken up against thepetitioner in the years 2001 and 2003. These are theproceedings requiring the petitioner to show cause whyhe should not be ordered to execute a bond with sureties on 26 04 2021 on 27 04 22 cwp16o21for his good behaviour for such period not exceedingthree years. These are the preventive actions if notpreventive detention. During pendency of theseproceedings initiated by M.I.D.C. Waluj Police Station the petitioner seems to have shifted his activities in theterritorial jurisdiction of the said Police Station as canbe inferred from the fact that latest two offences underthe same provisions of Bombay Prohibitions Act 1949 are registered against the petitioner by M.I.D.C. Waluj Police Station on the basis of raids effected on 26 11 2004 and 30 11 2004. The magnitude of the contrabandrecovered during the two raids may be stated in brief. Inthe raid dated 26 11 2004 the petitioner is allegedlyfound to be in possession of 11 earthern pots eachcontaining litres of washalong with material of still which then wasnot active was recovered. The report of the Analyserlends support to the prosecution case that the materialallegedly found in possession of the Petitioner wasuseful for production of intoxicating liquor since thesample shows quite a high percentage of alcoholcontents.On this counts learned A.P.P. has also placedreliance upon the wording of section 2(a)(ii) of theM.P.D.A. Act which reads as follows "2. In this Act unless the context otherwiserequires "acting in any manner prejudicial to themaintenance of public order" means i)..... ii) in the case of bootlegger when he is engaged or he is making preparation for engaging in his activitiesas bootlegger which affect adversely or are likely toaffect adversely the maintenance of public order. "As rightly submitted by learned A.P.P. even theapprehension of the activities affecting adversely themaintenance of public order is sufficient for theDetaining Authority to order preventive detention of the on 26 04 2021 on 27 04 23 cwp16o21petitioner. In view of liberal wording in Clauseofsection 2(a) it can be debated whether the proof thatintoxicant material found with the petitioner isdangerous to health of public is really necessary. Afterall the petitioner is not selling his illicit liquor with ISImark. It is unauthorised and illegal production having nocontrol over its quality having no checks that it is notinjurious for human consumption. The courts cannotgive deaf ears to the frequency of reports regarding massfatalities as a result of consumption of illicit liquor. Theobservations of a Division Bench of this High Court recorded in the year 1988 and followed in the year1996 therefore may not be applicable to the fact situation after lapse of 17 years.”17.The Intent and Object of introducing the MPDA Act 1981which received assent of the President of India on 21.09.1981 andpublished in the Maharashtra Government Gazette Part IV Extraordinary on 23.09.1981 is as under : “An Act to provide for preventive detention ofSlumlords Bootleggers Drug offenders and Dangerouspersons for preventing their dangerous activitiesprejudicial to the maintenance of public orders.Whereas public order was adversely affected everynow and then by the dangerous activities of certainperson who are known as Slumlords Bootleggers andDrug offenders And whereas both Houses of the State Legislaturewere not in session And whereas having regard to the resources andinfluence of the person by whom the large scale onwhich and the manner in which the dangerousactivities were being clandestinely organized and carriedon in violation of law by them as Slumlords Bootleggersor drug offenders in the State of Maharashtra andparticularly in its urban areas the Government ofMaharashtra was satisfied that circumstances existedwhich rendered it necessary for him to take immediate on 26 04 2021 on 27 04 24 cwp16o21action to have a special law in this State to provide forpreventive detention of these three classes of person andfor matters connected therewith and therefore promulgated the Maharashtra Prevention of DangerousActivities of Slumlords Bootleggers and Drug OffendersOrdinance 1981 on the 11th June 1981 And Whereas it is expedient to replace the saidOrdinance by an Act State Legislature it is herebyenacted in Thirty Second Year of the Republic of India asfollows: ” 18.In Jaspalsingh Jagatsingh Vig vs. J.F. Rebeiro 1985 Mh.L.J.927 the learned Single Judge held that this Act was enacted with theintention of maintaining public order which was adversely affected onaccount of dangerous activities of a person. It is obvious that the purposeof the Act was to curb and prevent the dangerous activities being indulgedinto by a particular person which prejudicially affected the people at large.The learned Single Judge of this Court concluded that the detainingauthority ought to feel that the detenu’s activities already in existenceprior to the initiation of the proceedings for preventive detention shouldhave resulted in adversely affecting the maintenance of public order whichrealization could synchronize only at that point of time. It becomesmanifest that even for the purpose of attracting the provisions under theAct it is necessary for the detaining authority to show that these activitieshave a nexus with the maintenance of public order and which is beingadversely affected by reason of the said activities. Merely that a person isdealing in illicit liquor would not be sufficient to place his case within the on 26 04 2021 on 27 04 25 cwp16o21clutches of Section 3 of the Act which can only be done if such activitieswould entail into causing any danger to the maintenance of public order.IN CAMERA STATEMENTS19.The record reveals that the in camera statements of the twowitnesses A and B and other material collected during the process ofenquiry was supplied to the petitioner after due verification by thesuperior police officer i.e. SDPO. The said officer has conductedverification of the two witnesses. Though this aspect has not been raisedby the petitioner we are considering the same in view of the law laiddown in Smt.Shubhangi Tukaram Sawant vs. Shri R.H. Mendonca andothers 2001 ALL MR68. As such we do not find that Article 22(5)of the Constitution of India has been violated.20.In Jaspalsinghthis Court dealt with similar featuresas are found by us in the case in hand. In the reported judgment one ofthe witnesses whose statement was recorded in camera was suspected tobe a police informer and the associates of the detenu therein had attackedhim for the reason that he was informing the police about theirbootlegging activities. The learned Single Judge therefore concluded inJaspalsinghthat the so called threats should have a direct nexuswith the bootlegging activities and such act of threat or assault should bedirected against such persons who were adversely affecting the illicit on 26 04 2021 on 27 04 26 cwp16o21business of liquor so as to calculatively cause fear or generate a feeling ofinsecurity to the people from the society.21.In the case in hand witness A was accosted by the petitionerand her two accomplices who whipped out a knife and abused him. Theystated that the said witness was informing the police about their illicitliquor activities and they then slapped the said witness. The petitioner hadthreatened the witness with murder if he approached the police. In thebackdrop of such similar features the learned Single Judge in Jaspalsingh(supra) had concluded that “that is how the circuit even on facts becomescomplete as per the allegations unfolded in the grounds. Consequently itis not permissible to consider the so called acts of threat or assault de horsor independently of the main object which revolves around bootleggingactivity which forms a pivot for the entire activities”.22.In our view therefore the statements of the two witnesses who have shown the courage albeit on the condition of anonymity wouldindicate that the act of the petitioner in threatening and assaulting thesuspected informants was clearly to promote the illicit liquor business anddeter such witnesses from making statements before the police.SUBJECTIVE SATISFACTION23.In Vinod Vithal Rane vs. R.H. Mendonca 2001Mh.L.J.437 this Court concluded that in matters of preventive detention on 26 04 2021 on 27 04 27 cwp16o21subjective satisfaction recorded by the detaining authority cannot belightly interfered with by the Court. The Court cannot sit over thesubjective satisfaction recorded by the detaining authority. Such subjectivesatisfaction once recorded by the detaining authority by virtue of Section5 A of the MPDA Act 1981 cannot be lightly interfered with. Section 5 Apostulates that the order shall not be deemed to be invalid or inoperative even assuming that the subjective satisfaction recorded by the detainingauthority is that the normal law of the land is inadequate or ineffectivewhich is a ground for detention and such order shall not be deemed to beinvalid or inoperative merely because of specified infirmity in one or someof the grounds. 24.It was further held in Vinod Vithal Ranethat theMPDA Act 1981 is a special enactment intended to deal with a specialsituation and specified persons in a special manner. Once a personqualifies the definition of a specified person under the MPDA Act 1981 then inevitably in a larger public interest the said person will have to bedealt with in accordance with the provisions of the MPDA Act 1981 and inno other manner provided the detaining authority records it s satisfactionregarding the necessity to detain that person to prevent him fromindulging in any activity which would tend to prejudicially affect themaintenance of public order. Once a person fulfills the requirement of thedefinition of a specified person under the MPDA Act 1981 it is not open on 26 04 2021 on 27 04 28 cwp16o21to the detaining authority to exercise the authority arbitrarily to select oneor other course even while dealing with the same or exactly similarsituation. Non mentioning of action taken under the Criminal ProcedureCode or the Bombay Police Act in the grounds of detention ipso facto would not render the detention order bad or illegal. Once a person fulfillsthe requirement of the definition of a specified person it wouldpresuppose that the normal law of the land has become ineffective orinadequate qua that person and that there is no other option but to takerecourse to the powers under the MPDA Act 1981. Such is the view of theHonourable Apex Court in the matter of Borjahan Gorey vs. the State ofWest Bengal 2 SCC 550.CONCLUSION25.On the basis of the material before us we are convinced thatrespondent No.2 as well as the State having genuine subjectivesatisfaction have rightly come to the conclusion that not only has thepetitioner indulged in bootlegging activities by resorting to manufacturingand selling illicit liquor she was terrorizing the witnesses so as to deterthem from making any statement to the police. Upon suspecting that oneof the in camera witnesses was providing information to the policeregarding the bootlegging activities of the petitioner she herself hadintimidated and threatened the witness with murder for making any on 26 04 2021 on 27 04 29 cwp16o21statement before the police. 26.This Court has held in Ramesh Balu Chavan vs. TheCommissioner of Police and another 2017 ALL MR3683 that oncethe detaining authority has arrived at the subjective satisfaction and whenillicit liquor containing ethyl alcohol or methyl alcohol causes ill effectsover a human body or regular consumption would lead to death noground can be said to have been made out for quashing the detentionorder. It also reflects from the said case that several poverty strickenpeople or persons with meager sustainability had become borrowers forpurchasing such liquor upon being addicted and there are instances whengoons behaving as recovery agents for a “Hathbhatti Thekedar” usedforce for recovery of due amounts. The detenu in that case used to hold aknife for recovering dues and as noted by this Court the wife of adrunkard husband had handed over her gold mangalsutra and ear rings tothe detenu.27.Insofar as the request of the petitioner to take a lenient viewin this matter we find that the said request could have been considered ifthe petitioner did not have a record of crimes offences registered againsther. However the record reveals as noted in the earlier part of thisjudgment that the petitioner had executed a good conduct bond whichwas flouted thereafter. Scant respect was shown by the petitioner to thesaid bond executed by her. Considering this conduct even if the petitioner on 26 04 2021 on 27 04 30 cwp16o21now tenders an undertaking to this Court we are circumspect that thesaid undertaking would have no meaning. Hence the request for leniencyis turned down. 28. In view of the above we do not find that the petitioner hasmade out any ground for quashing the impugned detention order. ThisCriminal Writ Petition is therefore dismissed. Rule is discharged.(RAVINDRA V. GHUGE J.)Per B.U. Debadwar J. : 29.I have gone through the above judgment delivered by myesteemed brother and I am in complete agreement with the same. I wishto add to the said judgment.30.In case at hand the District Magistrate Jalna a competentauthority under section 3 of the MPDA Act has passed the order ofdetention on 07.12.2020 detained the writ petitioner detenu to theCentral Prison Harsul on the same day and served the copy of grounds ofdetention on her and informed her relatives about her detention. TheDistrict Magistrate Jalna then on the very day forwarded the detentionorder and grounds of detention to the State Government upon which theState Government applied its mind and confirmed the same on10.12.2020. It is pertinent to note that the writ petitioner detenu could on 26 04 2021 on 27 04 31 cwp16o21have made representation in respect of her detention to the StateGovernment on or before 10.12.2020 but in vain though an opportunitywas given to her. The State Government had referred the matter ofdetention of the writ petitioner to the Advisory Board on 11.12.2020. Videletter dated 21.12.2020 the writ petitioner detenu was informed inwriting about the date of hearing through video conferencing fixed on 8thJanuary 2021 at 3.00 p.m. On that day the Advisory Board heard the writpetitioner detenu through video conferencing and passed it’s order on15.01.2021 and communicated it’s opinion to the State Government onthe very day. Upon receiving the report of Advisory Board on 21.01.2021respondent No.1 State of Maharashtra passed the order directing thatthe detention of the writ petitioner detenu be continued for a period ofone year from the date of detention. 31.From the aforesaid particulars we find that in case at hand allthe mandatory compliances under various provisions of the MPDA Act discussed above have been complied with within stipulated time.Therefore we have no hesitation to hold that the impugned detentionorder is technically perfect in all respect. On this backdrop now we turnto the aspect of the correctness and legality of the detention order. 32.On close scrutiny of the record we find that the writpetitioner detenu deals with manufacturing and selling of illicit liquorwithin the area of Saraswati colony Nutun Vasahat Old Jalna where she on 26 04 2021 on 27 04 32 cwp16o21resides. As many as 8 prohibition cases had been registered against herduring the period of 15.10.2018 to 29.07.2020. All these cases are forpossessing the materials still utensils for the purpose of manufacturingany intoxicant with the help of such material possesses and sale ofintoxicant and transport of intoxicant. Out of these eight prohibition cases first six cases were pending in the Court and remaining two were underinvestigation. In addition to eight prohibition cases referred above twomore cases under section 93 of the Maharashtra Prohibition Act werepending before the District Magistrate Jalna for taking preventive actionagainst the writ petitioner.33.On the basis of material on record the District Magistrate Jalna has also observed in his report that inspite of taking preventiveaction under section 93 no change took place in the attitude and conductof the writ petitioner detenu. She has continued her illegal activities as toprevious. Since the illicit liquor manufactured by the writpetitioner detenu is spurious there is every danger to the person whoconsumes the same. Many age old and young persons of the localityaddicted to such spurious illegal liquor as the writ petitioner detenu hasspread her illegal business in the locality in large scale and made availablethe same at cheaper rate. So addicted young person after consuming thespurious liquor disturb the peace and tranquility and cause thedisturbances in daily routine of the locality. on 26 04 2021 on 27 04 33 cwp16o2134.C.A. report in respect of Crime No.120 2019 makes it clearthat the substance which was seized from the writ petitioner detenu wascontaining ethyl alcohol and it can be used for the distillation ofintoxicating liquor. It is pertinent to note that in the entire Writ Petitionnowhere the petitioner detenu says that the substance alleged to havebeen seized time and again from her in eight prohibition cases mentionedin the report was not illicit liquor but it was the substance which was notharmful for consumption of human being.35.In view of the above I concur with the judgment of myesteemed brother in dismissing this Writ Petition. kps(B. U. DEBADWAR J.) 

Summary: Once a person fulfills the requirement of the definition of a specified person under the MPDA Act, 1981, it is not open to the detaining authority to exercise the authority arbitrarily to select one or another course even while dealing with the same or exactly similar situation. Once a person fulfils the requirement of the definition of a specified person, it would presuppose that the normal law of the land has become ineffective or inadequate qua that person and that there is no other option but to take recourse to the powers under the MPDA Act, 1981. This remarkable judgment was passed by the Bombay High Court in the matter of CHANDRAKALA V THE STATE OF MAHARASHTRA [CRIMINAL WRIT PETITION NO. 16 OF 2021] by Honourable Justice Ravindra V. Ghuge and Justice B. U. Debadwar. The petitioner challenged the order passed by respondent No.2 through which she has been detained under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers, and Persons Engaged in Black Marketing of Essential Commodities Act, 1981. She has submitted that the order was passed on a mere assumption which is legally unsustainable. District Collector initiated the proceedings under Section 3(1) and 3(2) of the MPDA Act, 1981 and they contended that the petitioner was sent behind bars and was granted the liberty to make a representation against the order of detention under Article 22(5) of the Constitution of India, before the Advisory Board. The Inspector of Police of the said police station conducted a confidential inquiry which discloses that the localities do not dare to register complaints against the petitioner since she has terrorized them with the aid of goons. The Police Inspector submitted his report to the detaining authority for initiating action under Section 3(1) of the MPDA Act, 1981. Court asserted that, “The said report is self-explanatory indicating that the seized material contains 10% V/V of ethyl alcohol in sample No.1 and 04% V/V of ethyl alcohol in sample No.2. Such materials are used for distillation of intoxicating liquor. We have also perused the confidential report (part-1) of the Advisory Board bearing Reference No.69 of 2020 dated 08.01.2021.” “Petitioner is a lady about 40 years of age, this Court may take a lenient view. She is willing to tender an affidavit declaring that she would never indulge in any such acts in future. As she has been under preventive detention since 07.12.2020, the period spent by her behind bars may be considered as being an appropriate period of detention” said the petitioner’s advocate. The Court also stated, “the statements of the two witnesses, who have shown the courage, albeit on the condition of anonymity, would indicate that the act of the petitioner in threatening and assaulting the suspected informants, was clearly to promote the illicit liquor business and deter such witnesses from making statements before the police.” The HC stated that, “the request of the petitioner to take a lenient view in this matter, we find that the said request could have been considered, if the petitioner did not have a record of crimes/ offences registered against her. However, the record reveals, as noted in the earlier part of this judgment, that the petitioner had executed a good conduct bond which was flouted thereafter. Scant respect was shown by the petitioner to the said bond executed by her. Considering this conduct, even if the petitioner now tenders an undertaking to this Court, we are circumspect that the said undertaking would have no meaning. Hence, the request for leniency is turned down.”