VINOD SUBHAS CHAVAN Vs. HIMMATRAO DESHBHARTAR

JUDGEMENT

(1.) By this Writ Petition under Article 226 of the Constitution of India, the Petitioner is seeking a writ of habeas corpus praying for quashing and setting aside the order passed under Sub-section (1) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, [Drug offenders, Dangerous Persons and Video Pirates] Act. 1981 (hereinafter referred to as "the said Act"). The order of detention has been passed by the first Respondent-Commissioner of Police, Solapur, purportedly with a view to prevent the Petitioner from acting in any manner prejudicial to the maintenance of public order and public health. Learned counsel appearing for the Petitioner has invited our attention to the grounds of detention communicated to the Petitioner in accordance with Section 8 of the said Act. He pointed out that the subjective satisfaction recorded by the detaining authority is that the Petitioner is likely to revert to similar activities set out in the grounds prejudicial to the maintenance of public order and public health in future. He pointed out that subjective satisfaction has been recorded that the Petitioner is a habitual bootlegger within the meaning of Clause (b) of Section 2 of the said Act. He pointed out that thus the subjective satisfaction recorded is that the activities of the Petitioner were prejudicial not only to the public order but also to the public health. He pointed out that the detaining authority has relied upon nine offences registered against the Petitioner under the provisions of Section 65(e) of the Bombay Prohibition Act, 1949. He pointed out that the detaining authority has relied upon a proceeding of preventive action under Section 93 of the Bombay Prohibition Act, 1949 and a non cognizable offence punishable under Section 323, 504 and 506 read with Section 34 of the Indian Penal Code. Reliance is also placed on the preventing action in the form of proceedings under Section 107 of the Code of Criminal Procedure, 1973. He invited our attention to the fact that in-camera statements of the two witnesses have been relied upon. He pointed out that it is set out in the grounds that due to consumption of unhygienic country made liquor, many people have become seriously ill and died. He placed reliance on a decision of the Apex Court in the case of District Collector, Ananthapur & Anr. v. V. Lax manna, 2005 AllMR(Cri) 1800. He submitted that the Apex Court has held that when ground of detention is that prejudicial activities are dangerous to public health, it becomes necessary for the detaining authority to be satisfied on material available to it that the liquor dealt with by the detenu is dangerous to public health and such material has to be in the form of report of the chemical examiner. He pointed out that the Petitioner was arrested in connection with the offence under the Bombay Prohibition Act, 1949 and was released on bail on 3rd May, 2012. He submitted that in camera statements have been subsequently recorded on 5th June, 2012 and 6th June, 2012, respectively. He submitted that there is no explanation as to why in-camera statements were not recorded when the Petitioner was in custody. He submitted that the subjective satisfaction is thus vitiated. The learned APP in support of the impugned order submitted that the subjective satisfaction recorded is that the Petitioner is a habitual bootlegger and that his activities are prejudicial to the maintenance of public order and public health. The learned APP submitted that perusal of the order and grounds of detention shows that there was sufficient material to record subjective satisfaction that the activities of the Petitioner were prejudicial to public order. The learned APP submitted that for recording the subjective satisfaction that the Petitioner is a habitual bootlegger, filing of charge sheets for the offence under the Bombay Prohibition Act, 1949 is more than sufficient and it is not necessary that the subjective satisfaction should be recorded only on the basis of the report of the Chemical Analyzer. In that behalf, she relied upon a decision of the Division Bench of this Court in the case of Gobibai V. Ghanavat Vs. State of Maharashtra & Others, 2003 AllMR(Cri) 406. She, therefore, submitted that there is no merit in the Petition in view of the law laid down by this Court. The learned counsel appearing for the Petitioner relied upon a decision of the Division Bench of this Court in the case of Haresh Vinayak Patil v. D. Shivanandhan & Ors., 2008 AllMR(Cri) 887. He submitted that in view of the subsequent decision of the Apex Court in the case of District Collector, Ananthapur , the Division Bench held that the decision in the case of Gobibai V. Ghanavat Vs. State of Maharashtra & Others, 2003 AllMR(Cri) 406 was no longer a binding precedent.

(2.) We have carefully considered the submissions. It will be necessary to make a reference to the subjective satisfaction recorded by the detaining authority which is reflected from the grounds supplied under Section 8 of the said Act. After referring to several cases registered under the Bombay Prohibition Act, 1949 and to the preventive actions taken against the Petitioner, the detaining authority has considered in-camera statements of the witnesses. The in camera statements of the witnesses have been reproduced in the grounds. In Ground No. 5(b), it is stated thus:

(3.) In Paragraphs 6 and 7 of the Grounds, it is stated thus: