IMPORTANT POINT
The court emphasized the importance of subjective satisfaction, expert opinion, and the adequacy of regular criminal laws in determining the validity of detention under the MPDA Act.

JUDGMENT :

Shailesh P. Brahme, J.

Rule.

2. Rule is made returnable forthwith with the consent of the parties. Heard the learned Counsel for the litigating sides finally.

3. The petitioner has questioned an order dated 31.08.2023 passed by the respondent no.2 detaining the petitioner by branding him as a ‘bootlegger’ under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords Bootleggers, Drug-Offenders, Dangerous Persons and Video Pirates Act, 1981 (hereinafter referred to as the MPDA Act for the sake of brevity and convenience). The impugned order is approved by the respondent no.1 under Section 3(3) of the MPDA Act, on 17.10.2023.

4. The action under the provisions of the Act was taken against the petitioner on the basis of the offences registered against her, the preventive actions under Section 93 of the Maharashtra Prohibition Act and the two statements of the anonymous witnesses recorded against her. The details of the offences registered against the petitioner is recorded in paragraph no.4 of the impugned grounds of detention. The gist of the depositions of the witnesses is recorded in paragraph no.4.5 of the order of detention.

5. Considering the activities of the petitioner, the respondent no.2/detaining authority formed subjective satisfaction in paragraph no.8 that the petitioner falls in the categories of ‘dangerous person’ and ‘bootlegger’. Her being at large is harmful to the lives of the public in general and it would disturb public tranquility, law and order and general public peace.

6. The petitioner has been held to be indulging in illegally selling liquor. It is further recorded that the reports of the chemical analysis collected during the course of investigation of various offences registered against her, show percentage of the alcohol found in the water to the tune of 24%, 20%, 8%, 23%, 14%, 9%, 18%. It is held to be hazardous for consumption of general public and it is harmful for human life which is likely to cause jaundice, accumulation of water in stomach, cancer. It is likely to deplete blood level in the body, giving rise to the risk of death.

7. Learned Counsel for the petitioner submits that the petitioner was acquitted in ten criminal cases registered under Section 65 of Maharashtra Prohibition Act from time to time. In two cases, the proceedings were closed under Section 258 of the Code of Criminal Procedure. Only three actions were initiated under Section 93 of the Prohibition Act. The petitioner has suffered conviction only in one case. Therefore according to the Counsel, this material is not sufficient to bring the petitioner within the ambit of dangerous person or a bootlegger. Ordinary course of laws would be sufficient to deal with the activities of the petitioner.

8. He would further submit that the reports of the chemical analysis collected during the investigation of the offences registered against the petitioner, do not spell out any opinion that the consumption of the contraband would be dangerous for human consumption and hazardous to public health. Without there being any experts’ opinion, the respondent no.2/detaining authority has arrived at conclusion in paragraph no. 10 and 11 of the impugned order which reflects lack of application of mind.

9. Learned Counsel for the petitioner submits that petitioner was not arrested in any of the matters. Only on couple of occasions, she was served with notice under Section 41 (A)(1) of Code of Criminal Procedure which shows that the activity alleged against the petitioner is not of serious nature, requiring arrest. This would cast doubt on the subjective satisfaction of the detaining authority. It is further submitted that though the petitioner was running business since 8 to 10 years prior to the impugned action, no offence as such was registered against her. The criminal activities of the petitioner is confined to the offences under the provisions of Maharashtra Prohibition Act and not under any other provisions of Penal La