Kashinath Motiram Chavan v. The Commissioner of Police

10. Clause (b) of section 2 of the MPDA Act defnes a ‘bootleger’ as under: “2(b) “bootlegger” means a person who distills, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any provisions of the Bombay Prohibition Act, 1949 and the rules and orders made thereunder, or of any other law for the time being in force or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or support of the doing of any of the things described above by or through any other person or who abets in any other manner the doing of any such thing."

11. In the light of the aforesaid defnition, which is of wide amplitude, it becomes clear that a person who distills, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating substance or who knowingly expends or applies any money or supplies any other animal, vehicle or conveyance or receptacle or any other material whatsoever to facilitate the doing of any of the prohibited acts either himself or by any other person or who abets the doing of such prohibited acts in any other manner can be termed as a bootlegger. In the backdrop of aforesaid expansive defnition, we fnd it rather diffcult to accede to the submission on behalf of the Shraddha Talekar, PS 8/26 petitioner that the mere fact that the petitioner was not found in actual and conscious possession of illicit liquor would take him out of the dragnet of being a “bootlegger”. In view of the expansive ambit of the term “bootlegger”, the supply and distribution of illicit liquor squarely falls within the tentacles of the said provision.

12. In the case at hand, there is a consistency in the narration of the facts of above-referred six cases that the petitioner had supplied the contraband material which was found in the possession of the co-accused. It is imperative to note that in addition to above six offences registered against the petitioner, the Detaining Authority had noted that during the period 19th April 2018 to 10th February 2021, as many as 51 cases were registered against the petitioner for the offences punishable under section 65(e) and 81 of the Act, 1949. In the face of the aforesaid material, it would be rather diffcult to accede to the submission on behalf of the petitioner that the Detaining Authority was not justifed in designating the petitioner as a ‘bootleger’. The sheer weight of the material is such that no other view is conceivable. Shraddha Talekar, PS 9/26

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

14. In order to lend support to the aforesaid submission, Ms. Tripathi placed a very strong reliance on a judgment of the Supreme Court in the case of Rashidmiya @ Chhava Ahmedmiya Shaik Vs. Police Commissioner, Ahmedabad and Anr. 1. Reliance was also placed on a Division Bench judgment of this Court in the case of Dattatray Baswant Jagtap Vs. The Commissioner of Police, Solapur and Ors. 2, (to which one of us [S.S. Shinde, J.] was a Party)

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

2 Writ Petition No. 3427/2019 dt. 18-10-2019 Shraddha Talekar, PS 10/26 bear upon the controversy sought to be raised on behalf of the petitioner. Under section 2(a), “acting in any manner prejudicial to the maintenance of public order” means— “(ii) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order.” Explanation to clause 2(a) reads as under: Explanation.—For the purpose of this clause (a), public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely, inter alia, if any of the activities of any of the persons referred to in this clause, directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health; [or disturbance in public safety and tranquility or disturbs the day to day life of the community by black-marketing in the essential commodities which is resulting in the artifcial scarcity in the supply of such commodities and rises in the prices of essential commodities which ultimately causes infation] [or disturbs the life of the community by producing and distributing pirated copies of music or flm products, thereby resulting in a loss of confdence in administrations.]

16. From the phraseology of section 2(a)(ii) read with Explanation thereto, it becomes abundantly clear that a bootleger can be detained by invoking the provisions contained in section 3 of the MPDA Act not only in a case where the bootlegging activity is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof but also in a case where it has the propensity of a grave or Shraddha Talekar, PS 11/26 widespread danger to life or public health.

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

18. It would be contextually relevant to note that the Explanation to section 2(a) of the MPDA Act (extracted above) incorporates a legal fction as to the adverse effect on public order. Shraddha Talekar, PS 12/26 A proftable reference in this context can be made to the judgment of the Supreme Court in the case of Harpreet Kaur (Mrs.) Harvinder Singh Bedi v. State Of Maharashtra And Another 3, wherein the connotation of the Explanation was elucidated as under:

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

Shraddha Talekar, PS 13/26 “Section 3: ….. (4) For the purpose of this section, a person shall be deemed to be "acting in any manner prejudicial to the maintenance of public order" when such person is engaged in or is making preparation for engaging in any activities whether 5 [as a bootlegger or common gambling house paper or and person] or dangerous person or drug offender or immoral traffc offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order.”

20. In the context of the aforesaid provisions, the Supreme Court observed as under:

23. The legal position which, thus, emerges is that while testing the legality of an order of detention passed by the Detaining Authority, by resorting to the provisions of section 3 of the MPDA Shraddha Talekar, PS 17/26 Act, in the case of a bootleger, what has to be seen is whether there was credible material before the Detaining Authority, on the strength of which, an inference is justifable that the bootlegging activity was causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or a grave or widespread danger to life or public health and thereby adversely affected the maintenance of public order as explained under section 2 of the MPDA Act. Indisputably, the suffciency or otherwise of the material is a matter for the subjective satisfaction of the Detaining Authority. Whether the such material existed and the Detaining Authority considered the relevant material to arrive at such satisfaction is the remit of judicial review.

24. On the aforesaid touchstone, reverting to the facts of the case, we fnd that apart from the numerous cases which were registered against the petitioner, the Detaining Authority considered the statements of two witnesses recorded in-camera. The statement of witness ‘A’ reveals that the petitioner and his associates were carrying a plastic can containing illicit liquor on motor cycles. Children were playing on the road in front of the shop of the said witness. There was an accident and one of the children was dashed by one motorcycle. The child suffered a Shraddha Talekar, PS 18/26 minor injury. The plastic can fell off the motorcycle and the illicit liquor spilled on the ground. When the witness remonstrated the driving of the motor cycle in a rash manner, the petitioner and his associates abused and assaulted the said witness. Alarmed by the assault, the neighbours came thereat. The petitioner threatened them on the point of knife. The associates of the petitioner beat those persons by sticks. The people started to run helter-skelter on account of the terror created by the petitioner and his associates. Nobody came forward to help the witness. After giving threats of dire consequences and robbing him of Rs.1,500/-, the petitioner and his associates decamped. On account of fear, the witness did not report the matter to police.

25. The statement of witness ‘B’ reveals that the petitioner and his associates accosted and questioned him as to why he was reporting the bootlegging activity of the petitioner to the police. At that time, the petitioner and his associates were armed with sticks and iron rods. When the witness declined to have informed the police, the petitioner abused the witness on the point of knife. The associates of the petitioner beat the witness and his friends with sticks and iron rods. As the persons gathered, the petitioner and his associates charged upon those persons. Some of them ran Shraddha Talekar, PS 19/26 helter-skelter and the nearby shopkeepers downed the shutters of their shops and residents shut the doors of their houses. The said witness also claimed to have not reported the matter to police on account of the fear of the petitioner.

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

27. In our view, the aforesaid observations of the Detaining Authority cannot be said to be based on no material and, thus, Shraddha Talekar, PS 20/26 unsustainable. The antecedents and acts attributed to the petitioner are required to be considered as a whole. There is material to indicate that the activities of the petitioner were such that they disturbed the even tempo of life of the ordinary citizens. It was not a case of a solitary incident. On the contrary, the material on record unmistakably indicates that the petitioner has been continuously indulging in the acts prohibited under the Act,

1949. Registration of almost 57 cases in a span of three years indicates the frequency and intensity with which the petitioner was indulging in bootlegging. From this stand point, the satisfaction arrived at by the Detaining Authority based on the statements of the witnesses, recorded in-camera, cannot be said to be unsustainable.

28. In the light of the aforesaid facts, the reliance placed by Mr. Yagnik on the judgment of this Court in the cases of Machindra Dnyanoba Jadhav (Now in jail) Vs. The State of Maharashtra 6 and Ramesh Balu Chavan Vs. The Commissioner of Police & Ors. 7 appears well founded.

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

6 Cri. Writ Petition No.1191 of 2020 (Coram: T.V. Nalawade & M/G. Sewlikar, JJ) 7 2017 All MR (Cri) 3683 Shraddha Talekar, PS 21/26 therein, wherein also, the detenue was alleged to be the person, who had supplied and distributed illicit liquor, and the in-camera statements of witnesses, the Division Bench had recorded that the incidents attributed to the detenue therein were such that there was a feeling of alarm, danger and insecurity in the minds of the people who had gathered at the spots.

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

31. We have noted above that the Detaining Authority took into account the fact that the samples of contraband which were seized from the co-accused of the petitioner were sent for forensic analysis and the Forensic Science Laboratory reported that the sample contained 4% to 14% Ethyl alcohol in water. It further noted that the Department of Forensic Medicine and Toxicology, Dr. V.M. Government Medical College, Solapur opined that Shraddha Talekar, PS 22/26 consumption of ethyl alcohol in excessive amount is harmful to human body, which causes death.

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

33. The aforesaid observations, as is evident, were made in the peculiar facts of the said case. This Court had, in terms, recorded in the preceding paragraph (Para.12) that there was nonapplication of mind on the part of the Detaining Authority in Shraddha Talekar, PS 23/26 ignoring the important requirement that there was no cogent material available before the Detaining Authority to show that the activities of the petitioner were prejudicial to the maintenance of public order. Vague and general allegations were made in the grounds of detention and the absence of material that the petitioner’s activities were prejudicial to the maintenance of public order, vitiated the impugned order.

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

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

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

37. Hence, the following order: O R D E R The petition stands dismissed. Rule discharged. (N. J. JAMADAR, J.) (S. S. SHINDE, J.) Shraddha Talekar, PS 26/26