IMPORTANT POINT
The court upheld the subjective satisfaction of the detaining authority and emphasized the importance of reasonable explanation for delay in deciding the representation, as well as the detaining authority's reliance on objective material to support the detention order.

JUDGMENT :

(Mangesh S. Patil, J.) :

Heard. Rule. Rule is made returnable forthwith. Learned APP waives service for all the respondents. At the joint request of the parties the matter is heard finally at the stage of admission.

2. By resorting to the provisions of Articles 226 and 227 of the Constitution of India, the petitioner is challenging the order passed by the respondent No.1 – Detaining Authority under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, void Bootleggers, Drug-Offenders, Dangerous Persons and Video Pirates Act, 1981 (herein after the MPDA Act) dated 14.07.2023, directing his detention with a view to prevent him from acting in any manner prejudicial to the mandates of public order being a bootlegger. He has taken into consideration inter alia, twelve crimes registered against him of which the last three were under the provisions of Section 65(e) of the Maharashtra Prohibition Act, 1949 (the Prohibition Act) registered on 31.03.2023, 17.06.2023 and 18.06.2023. He took into consideration that even a preventive action under Section 93 of the Prohibition Act initiated against him on 31.03.2023. The respondent No.1 – Detaining Authority has also taken into consideration statements of couple of anonymous witnesses to arrive at a subjective satisfaction while passing the order of preventive detention.

3. On the very day of the order, after the grounds of detention (Exhibit-E) were communicated to the petitioner, he was committed to the prison. The order was forwarded to the State which accorded approval under Section 3(3) of the MPDA Act on 20.07.2023 which was also communicated to him on the same day i.e. 20.07.2023.

4. The petitioner then made a representation through his advocate on 10.08.2023 which was forwarded to the State Government through the Superintendent of Aurangabad Central Prison.

5. The learned advocate for the petitioner would submit that contrary to the mandate of law, the petitioner’s representation was not decided expeditiously and the delay would go to the root of the order of detention. To buttress her submission she would rely upon the decisions in the matter of Rama Dhondu Borade Vs. V.K. Saraf, Commissioner of Police and Ors.; (1989) 3 Supreme Court Cases 173, Rashid Kapadia Vs. Medha; (2012) 11 SCC 745, Mrs. Nirmala Sawant Vs. The Commissioner of Police Pune City and Ors.; Criminal W.P. No.3362/2022 decided on 17.01.2023 and Akshay Mukund Gaikwad Vs. Commissioner of Police, Pimpri Chinchwad and Ors.; Criminal W.P. No.1590/2023 decided on 20.07.2023.

6. She would submit that this is the precise and basic ground on which the petitioner is seeking to challenge the order of preventive detention. No attempt was made to explain the delay rather the order if any passed by the State Government on his representation was never communicated to him and consequently the order of preventive detention is liable to be quashed and set aside.

7. The learned advocate for the petitioner would then assail the order of detention on the ground that the Detaining Authority - respondent No.1 has taken into consideration the aforementioned three latest crimes registered against the petitioner under Section 65 (e) of the Prohibition Act. The reports of the Chemical Analyzer have been obtained but are absolutely silent as to the quality of the contraband muchless there is no express opinion that consumption of such contraband was injurious to human health. The CA reports merely give percentage of ethyl alcohol in water as 31%, 41% and 26%, v/v. In the absence of any such opinion of the Chemical Analyzer, the subjective satisfaction arrived at by the respondent No.1 - detaining authority that the petitioner’s alleged activity would be prejudicial to the public health is arbitrary and would vitiate his subjective satisfaction.

8. The learned advocate for the petitioner would then submit that there is absolutely no material to substantiate the subjective satisfaction arrived at by the respondent N