1. The petitioner/detenu, detained at Yerwada Central Prison under the provisions of 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, has approached this Court praying for quashing and setting aside the impugned order of detention dated 27/9/2017 passed by the Commissioner of Police, Solapur and thereupon seeking his release forthwith.
The impugned order of detention is passed by respondent
no.1 in exercise of the power conferred by sub-Section (2) of Section
3 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, 1981"). In the grounds
of detention, the detaining authority had referred to number of
offences registered against the detenu. The said offences are registered
under the Bombay Prohibition Act, 1949 in the year 2015 and 2016.
The grounds of detention also makes a reference to the preventive
actions initiated against the detenu in the year 2016. Though in the
grounds of detention, the detaining authority has categorically
mentioned that he is not relying upon the previous offences to pass the
impugned order but these offences are reflected only to highlight his
previous criminal history. The grounds of detention, then, sets out that
the order of detention is based on two offences, namely, C.R. No.
0237/2017 and C.R.No. 0434/2017, both registered under Section
65(e) of the Bombay Prohibition Act, 1949 with the Faujdar Chawadi
Police Station. The grounds of detention, thereafter, refer to the two
in-camera statements of residents of Solapur and based on this
material, the detaining authority has formed the subjective satisfaction
that the detenu is a free person and his tendency previously reflected
from the offences committed by him in the recent past, there was
likelihood of the detenu resorting to similar activities, prejudicial to
the maintenance of public order and public health. The detaining
authority recorded a satisfaction that the detenu is a habitual
bootlegger and it is necessary to detain him. The grounds of
detention, then, inform the detenu of the rights which he could avail
in terms of the Constitutional safeguards.
2. The impugned order of detention is assailed on several
grounds. However, on hearing the learned Counsel for the petitioner
Shri Udaynath Tripathi, we are convinced that the writ petition needs
to be allowed on the very first ground which has been putforth before
us by the learned Counsel and which is reflected in ground (b) of the
writ petition.
(b) The Petitioner says and submits that while recording the satisfaction in paragraph 7 of the grounds of detention, the detaining authority has taken into consideration six prohibition cases, in all these cases samples were sent to Chemical Analysis, opinion obtained and conclusion drawn that the facts relating to said C.R. resulting to cause danger to public heath. However, the detaining authority has taken only 2 prohibition cases for passing order of detention, thereby the detaining authority has taken into consideration extraneous material. The satisfaction of detaining authority vitiates. The order of detention is illegal and bad in law, liable to be quashed and set aside.By referring to the said ground as raised in the petition, the learned Counsel invited our attention to the grounds of detention on him. In the opening paragraph 1 of the grounds of detention communicated to the detenu, the detaining authority has observed as follows :-In pursuance of section ''8'' of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and person engaged in Black-marketing of Essential Commodities Act, 1981 (No. L.V of 1981) (Amendment-1996, 2009 & 2015) r/w Article 22(5) of the Constitution of India. I hereby communicate to you the grounds as mentioned in paragraph No.5 below on which a detention order has been made by me on this day against you, under sub section (2) of section 3 of the said Act. Copies of the documents placed before me are enclosed except the names and identifying particulars of the witnesses/victims in connection with the grounds mentioned in paragraph No.5-4 and 5-5 below, which cannot be furnished to you in the public interest and for which I claim privilege.Paragraph 4 the grounds of detention read as follows :You are a habitual bootlegger and had been committed many offences in the contravention of the provisions of the Bombay Prohibition Act, 1949. In past following offences were registered against you.
Sr.No. Police CR No. & Date Under Section Status Station 1 Faujdar 6056/2015 Chawa Dt.24/07/15 di Sec.65 (e) of Court Chawa Dt.24/07/15 Bombay Prohibition Pendin Act, 1949 2 Faujdar 6072/2015 Chawa Dt.17/09/15 dig Sec.65(e) of Bombay Court Chawa Dt.17/09/15 Prohibition Act, 1949 Pendin The learned counsel would, then, invite our attention to paragraph 7 of the grounds of detention which is reproduced below :-I have carefully gone through the material as well as statements of in-camera witnesses A and B, placed before me.On going through fact of offences registered against you it becomes clear that you are a habitual bootlegger.Police have sent samples, collected in C.R.No. 6056/15, 6072/15, 6092/15, 190/16, 368/16, 237/17, which are committed by you, in contravention of the provisions of the Bombay Prohibition Act, 1949 to Regional Forensic Science Laboratory, Pune for chemical analysis, and Assistant Director of Regional Forensic Science Laboratory, Pune has given his result stating as "Sample contains Ethyl alcohol in water"As per this result, opinion was asked to Department of Forensic Medicine and Toxicology, Dr. V.M. Government Medical College, Solapur, that if said Ethyl alcohol is injurious to human body. On that Department of Forensic Medicine and Toxicology, Dr. V.M.Government Medical College, Solapur, has given its opinion stating that, "consumption of Ethyl alcohol in excessive amount is harmful to human body, which cause death".Thus, the facts relating to the above C.Rs i.e C.R.No. 6056/15, 6072/15, 6092/15, 190/16, 368/16, 237/17 shows that the activities of you are such that they have caused danger to the public health.
3. The learned counsel for the petitioner would argue that the grounds of detention are reflective of the thought process gone into by the detaining authority and the said grounds are rather justification or rationale behind passing the order of detention. The learned counsel would argue that the detaining authority has relied on the factum of offences registered against the detenu to arrive at a conclusion that the detenu is habitual bootlegger. What Mr. Tripathi objects to is the later part contained in Paragraph 7 of the grounds of detention where the detaining authority steps that the police had forwarded the samples collected in CR Nos. 6056/2015, 6072/2015, 6092/2015, 190/2016, 368/2016 and 237/2017 which are alleged to be committed by the detenu in contravention of provisions of the Bombay Prohibition Act, to the Regional Forensic Science Laboratory, Pune for chemical analysis on which the Regional Forensic Science Laboratory has given its opinion. The Department of Forensic Medicine and Toxicology, Dr.V.M. Government Medical College, Solapur has then opined that the said Ethyl alcohol is injurious to human body.
According to Mr. Tripathi, by referring the samples of the offences on
which the detaining authority has not relied on for passing the order
of detention and opinion based on those samples amounts to taking
into consideration the extraneous material and thus vitiating the
subjective satisfaction. The learned counsel would argue that on this
ground the subjective satisfaction reached by the detaining authority
suffers from the vice of non-application of mind and the detention
order passed on the basis of such subjective satisfaction cannot be
sustained.
We had called upon learned APP to deal with the said
ground putforth by the learned counsel for the detenue. The learned
APP Ms. Mhatre invited our attention to the portion of the affidavit
filed by the Detaining Authority on 29th January, 2018. Paragraph 9 of
the affidavit deals as below:-
With reference to Ground 6(b) of the petition, it is denied that I being Detaining Authority considered extraneous material pertaining to six prohibition cases as stated in paragraph 7 of the grounds of detention.It is submitted that I being Detaining Authority has considered only four incidents I.e two offences under Bombay Prohibition Act and statements of two in-camera witnesses while issuing the order of detention against the detenu. The reference of six prohibition cases have been mentioned only to show habitual nature of the detenu to involve into the bootlegging activities. The said reference about six cases has been mentioned in the grounds of detention while narrating the past history of the detenu in bootlegging activities. The said material was not considered by me while issuing the Order of detention. Hence, there is no substance in the say of the Petitioner in this para.
The learned APP would argue that the detaning authority
has clearly made a distinction between the offences which have been
referred to in the grounds of detention only for the purposes of
demonstrating the past conduct of the detenu consistently from the
year 2015. According to her, the said offences have been referred to
reflect the tendency of the detenu to repeatedly indulge into such type
of offences. She would argue that in the grounds of detention even the
detaining authority has dissected the offences, which have formed the
basis for the detention order and this would include only two offences
namely C.R. No.0237/2017 and 0434/2017 registered under Section
65(e) of the Bombay Prohibition Act, 1949 and which are pending for
adjudication. According to learned APP, the said offences are sufficient
enough for forming the subjective satisfaction that the detenu is a
bootlegger and in fact the said two offences together with two in-
camera statements are sufficient to clamp the detenu with an order of
detention.
4. We have carefully perused the grounds of detention,
affidavits filed and also considered the arguments advanced by the
respective counsel. On going through the grounds of detention, we
have noted that the detaining authority has made reference to the
criminal record of the detenu to establish and label his activity as
known bootlegger who had established many dens for selling of
country made liquor and "Hatbhatti" in the areas of North Kasba, Tarti
Naka Chawl, MG Road, Chambhar Galli, Balives, Salai Maruti and
nearby area within the jurisdiction of Faujdar Chawadi Police Station
and that he is engaged in committing offences of transportation of
selling country made liquor and "Hatbhatti" in contravention of the
provisions of the Bombay Prohibition Act, 1949. It is also alleged that
the detenu is the owner of these dens. The detaining authority, then,
mentions that the detenu along with his associate armed with knives
visit these dens every day in order to manage the illegal business and
openly assault people who oppose such business or who provide the
information to the police. In this way, the detenu has created terror in
the minds of people from the locality. It is also alleged that the people
who consume such liquor, indulge into activities of harassing
women/girls, quarreling, creating an uproar in the locality and also
creating unhygienic atmosphere by vomiting on streets. The activities
of detenu are recorded by the detaining authority by making a
reference to the offences registered against him in the year 2015
under the provisions of the Bombay Prohibition Act, 1949. The
detaining authority also makes a reference to the preventive action
initiated against the detenu in the year 2015 under section 110 of the
Code of Criminal Procedure. Then, the detaining authority refers to
the crime registered against the detenu in the year 2016 and the
preventive action initiated against him in the year 2016. The grounds
of detention then mentions that the preventive actions taken against
the detenu, has not deterred him from indulging into such activities
and was booked in CR No. 0056/2017 on 25/2/2017 at Faujdar
Chawadi Police Station under Section 65(e) of the Bombay Prohibition
Act, 1949 read with section 109 of the Indian Penal Code. All the
offences registered against the detenu in the year 2015 and 2016 and
the preventive action against the detenu have been noted by the
detaining authority to highlight the antecedents/criminal history of the
detenu. The grounds, mention that the Detaining Authority is not
relying on the offences but he refers to two recent crimes registered
with Faujdar Chavdi Police Station in the recent times, namely on
18/4/2017 and 30/6/2017 to show that the detenu has no respect for
the normal law of land and he is a habitual bootlegger with the
tendency to revert to such similar activities. The detaining authority,
therefore, relied upon two C.Rs., namely C.R.No. 0237/2017 and
C.R.No. 0434/2017 registered with Faujdar Chawadi Police Station,
Solapur under Section 65 (f) of the Bombay Prohibition Act, 1949 for
passing the order of detention. Perusal of the details of the C.Rs.
would reflect the involvement of the detenu in the said offences. The
charge-sheets have been filed in both the said crimes before the
Competent Court and the Court cases are pending. Perusal of the said
crimes would reveal that a huge stock of country made liquor-
Hatbhatti was seized from the custody of the appellant by following
the proper procedure of law and when the samples from the seized
contraband were forwarded to the Regional Forensic Science
Laboratory, it had opined that the samples contained 8% ethyl alcohol
in water. No doubt, in both the said offences the detenu is accused of
dealing in country made liquor / Hatbhatti and a case is made out for
violation of provisions of the Bombay Prohibition Act, 1949. Since both
the offences are bailable, a notice under Section 41 (1)(a) of the
Cr.P.C . was given to the detenu.
The detaining authority has also relied on two in-camera
statements of witnesses from the locality who had confided that the
detenu was carrying out the business of selling illegal country made
liquor/Hatbhatti dens. The in-camera witnesses have also given the
narration of reign of terror created in the locality by detenu and his
associates who are running the dens.
5. Indisputably, the said acts referred to by the detaining
authority in ground No. 5.1 to 5.5 are serious in nature and affecting
the public order. If the detaining authority would have based his
subjective satisfaction on this material, then, it would have been
difficult to interfere with the order of detention. However, the
detaining authority while forming his subjective satisfaction based on
the aforesaid material has also taken into consideration the samples
collected in C.R.No. 6056/2015, 6072/2015, 6092/2015, 6190/2016
and 0368/2016 registered under the Bombay Prohibition Act, 1949
along with the samples collected in C.R. No. 0237/2017 and
0434/2017. The detaining authority has formed the subjective
satisfaction on the basis of the report that is obtained from the
Assistant Director of Regional Forensic Science Laboratory, Pune after
sending the samples collected in all the aforesaid C.Rs. with the result,
"sample contains ethyl alcohol in water" and further opinion is given by
the Department of Forensic Medicine and Toxicology, Dr. V.M.
Government Medical College, Solapur, that "consumption of Ethyl
alcohol in excessive amount is harmful to human body, which cause
death". The detaining authority in paragraph 4 had clearly mentioned
activities of the detenu in two parts, the first being two crimes which
the detaining authority has relied on allegedly to reflect the criminal
antecedents of the detenu and the second being the material in the
form of crime on which the detaining authority has relied upon to pass
the order of detention. C.R.No. 6056/2015, 6072/2015, 6092/2015,
6190/2016 and 0368/2016 registered under the Bombay Prohibition
Act, 1949 belong to the first category which have been merely referred
for demonstrating the above criminal activities of the detenu. C.R. No.
0237/2017 is the crime on which the detaining authority would have
based his subjective satisfaction. If the detaining authority has based
his subjective satisfaction only on two C.Rs. namely, 0237/2017 and
0434/2017 registered with Faujdar Chawadi Police Station under
Sections 65 (e) of the Bombay Prohibition Act, 1949, then, it would
have been the relevant material and the Chemical Analyser''s report of
the substances involved in these offences as only relevant material
ought to be taken into consideration while forming the subjective
satisfaction. But the detaining authority has taken into consideration
the report of the samples collected in C.R. Nos. 6056/2015,
6072/2015, 6092/2015, 6190/2016 and 0368/2016 to the following
effect:-
"Thus, the facts relating to the above C.Rs. i.e.
C.R. No. 6056/2015, 6072/2015, 6092/2015,
190/2016, 368/2016, 237/2017 shows that the
activities of you are such that they have caused danger
to the public health."
This observation of the detaining authority vitiates the
subjective satisfaction arrived at, since he has taken into consideration
the details of C.R. No. 6056/2015, 6072/2015, 6092/2015, 190/2016,
368/2016 registered with Faujdar Chawadi Police Station, Solapur.
Whereas, he has not supplied any documents to the detenu in respect
of the said C.Rs. and allegedly so since he intended to place reliance
only on the grounds mentioned in paragraph 5 of the order of
detention which covers C.R. No. 0237/2017 and 0434/2017 registered
with Faujdar Chawadi Police Station under Sections 65 (e) of the
Bombay Prohibition Act, 1949.
The detaining authority has taken into consideration
material which is not germane to the order of detention and we are in
agreement with the learned counsel for the petitioner that the
subjective satisfaction of the detaining authority stands viaited on
account of consideration of irrelevant and extraneous material.
In a recent judgment delivered by this Bench (Coram: S.C.
Dharmidhikari and Smt. Bharati H.Dangre,JJ) in Criminal Writ Petition
No. 4646/2017 dated 31st January, 2018 this Court had an opportunity
to deal with the similar challenge about extraneous material being
taken into consideration by the detaining authority resulting into the
subjective satisfaction being vitiated, this Court has observed thus:
"Communication of grounds presupposes formulation of grounds and such formulation requires application of mind of the detaining authority to the facts and material placed before it, that is to say to the relevant and proximate matter in regard to each individual''s case. It should comprise all the constituent facts and material that went into making of the mind of a statutory functionary. Thus, when the Authority gives its decision based on his subjective satisfaction, it is expected that he would record his satisfaction based on a bunch of facts and influenced by his personal feelings and opinion. The word "subjective" is defined in Oxford Dictionary to mean dependent on the mind or on an individual''s perception for its existence. The subjective satisfaction is the satisfaction of a reasonable man which can be arrived at on the basis of some material, influenced by or based on personal beliefs or feelings rather than on objective facts. It is an entire thought process of an authority which goes into to forming what is called "subjective satisfaction". It is a state of mind on which the conclusions are reached, based on the material placed before the authority and an extraneous consideration or material would affect the formation of subjective satisfaction.""Perusal of the material on which the detaining authority has formed the subjective satisfaction that the detenu is "dangerous person", has revealed that the Authority has taken into consideration not only the offences punishable under Chapter XVI or XVI of the IPC which is the basis for categorizing a person as "dangerous person" as defined in Section 2 (b-1) but it also refers to the material by which a person is clamped as "sand smuggler" who is engaged in unauthorized extraction, removal, collection, picking or transportation of sand. The Detaining Authority has not been able to segregate the activities of detenu and in any case when the facts and the material placed before the detaining authority has been bundled together, it is not always possible for a person to put it in strict water tight compartment and the subjective satisfaction would then be based on all the materials taken.
Detention order of detaining a individual preventively,
under a harsh law, deprives an individual of his life and liberty
without taking recourse to the normal procedure of availing of an
opportunity of answering charges and facing the trial where in due
process the suspect becomes an accused and the accused becomes
convict. However, the law of detention is based on suspicion and
therefore the requirement of complying with the procedural
safeguards is more onerous. The detaining authority has to form a
subjective satisfaction that the detenu needs to be detained and it is
open for the detaining authority to take into account such material as
he deems fit to arrive at such a conclusion. But the subjective
satisfaction has to be reached on the basis of relevant material placed
before him and should reflect application of mind of the detaining
authority. Non consideration of relevant material or irrelevant
material would vitiate the subjective satisfaction and this is what we
have precisely observed in the present case where the grounds of
detention clearly reflect total non application of mind on the part of
detaining authority. It is difficult to segregate or dissect the material
which is germane and relevant from what is not relied upon or
referred merely to emphasize the criminal antecedents. Both have
been so mixed up that the exercise now attempted by the learned APP
is impossible. The materials are so inextricable or intricately confused
that it is impossible to discern what is merely referred and what is
relied upon.
6. Resultantly, we are unable to sustain the order of detention
based on the said grounds which suffers from the non-application of
mind.
7. In the result, the writ petition is allowed. The impugned order of detention dated 27/9/2017 passed by the Commissioner of Police, Solapur is quashed and set aside. The petitioner/detenu Suryakant @ Mukesh Laxman Dhotre, residing at 144, North Kasba, Solapur and 151/21 Raviwar Peth, Near Kuchan Prashala Solapur is directed to be set at liberty forthwith, if he is not required in any other case/ offence;
