Decided on April 04,2018

Vilas Ramchandra Hunnare Appellant
District Magistrate, Sindhudurg And Others Respondents


Bharati H. Dangre, J. - (1.) The petitioner/detenu, has invoked jurisdiction of this Court for quashing and setting aside the impugned order dated 15th November, 2017 passed by the Section Officer to the Government of Maharashtra, Home Department (Special) MPDA-1017/CR-260/Spl3B, thereby approving the order dated 6th October 2017, passed by the District Magistrate, Sindhudurg in D.O. No. DM/Bootlegger/2017. The petitioner has prayed that he be set at liberty on quashing the said order.
(2.) The petitioner/detenu has been detained by the impugned order of detention dated 6th October, 2017, 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"). The grounds of detention supplied to the detenu in pursuance of Section 8 of the MPDA Act,1981, reveal that the petitioner is a bootlegger and is involved in selling prohibited liquor in the area of Poyekarwadi, Shivaji Nagar, within the jurisdiction of Kankavali Police Station and is engaged in committing offences of selling of liquor in contravention of the provisions of the Maharashtra Prohibition Act, 1949. It is also a ground of detention that the petitioner is involved in selling of the liquor manufactured in the State of Goa, which is not permitted in the State of Maharashtra. The grounds of detention also makes a reference to the activities of detenu by referring to the offences registered against him in the past and also the offences with which he is charged in the year 2017, in order to demonstrate that the petitioner/detenu is habitual bootlegger and has tendency to revert to similar activities. Reliance is also placed on two in camera statements in support of the grounds of detention, justifying the detention of the petitioner as a bootlegger under the MPDA Act, 1981.
(3.) The petitioner has assailed the order of detention on several grounds as raised in the petition. The order of detention is attacked on the ground that the order of detention was passed on 6th October, 2017 giving documents mentioning the grounds of detention and the order of detention came to be approved by the Section Officer on 11th October, 2017. According to the petitioner, an opportunity of making representation to the Detaining Authorities is lost once the order is approved by the Government of Maharashtra and the grievance of the petitioner is that no sufficient time is provided to the petitioner to make a representation before the District Magistrate resulting in loss of opportunity to him. Another ground on which the impugned order is assailed has been mentioned in ground (b) of the petition, where it is alleged that the detention order did not mention the period of detention, which is mandatory compliance of Section 3(3) of the MPDA Act,1981. The ground raised is that the District Magistrate, Sindhudurg presumed that the petitioner is aware of law and he did not take effort to mention the period as given in Section 3 (3) of the MPDA Act, 1981, whereas law requires strict compliance of the provisions while passing the order of detention. It is therefore prayed that non-mention of the period of detention in the order, vitiates the order of detention. Reliance is placed on the judgment of the Apex Court in the case of Commissioner of Police & Anr. v. Gurbux Anandram Bhiryani, 1988 SCC(Cri) 914. Another ground is raised that if the in camera statement is read carefully, it can be seen that nowhere in the verification statement of detaining authority mentions that in camera statements are read over and duly verified by Dy.S.P. The in camera statement was recorded on 1st September, 2017 and it was verified by the Dy.S.P. on 6th September, 2017. It can be seen from the remark of the Dy.S.P. that the remark on witness "B" statement is written as witness "A". The ground is therefore raised that the statements are not duly verified and the procedure prescribed by law is not valid which is in utter violation of Article 22 (5) of the Constitution of India. It is also a ground in the petition that the offences that are registered against the petitioner and relied and referred to by the detaining authority are only under the provisions of Maharashtra Prohibition Act and not under the IPC and therefore it cannot be said that activities of the petitioner are prejudicial to the maintenance public order. The order is also sought to be clamped on the ground that there is no conviction in the cases registered against the petitioner and the detention order therefore is looked upon as per se punitive in character rather than preventive in nature.;

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