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Non mentioning of action taken under the Criminal Procedure Code or the Bombay Police Act in the grounds of detention, ipso facto, would not render the detention order bad or illegal: Bombay High Court

Once a person fulfills the requirement of the definition of a specified person under the MPDA Act, 1981, it is not open to the detaining authority to exercise the authority arbitrarily to select one or another course even while dealing with the same or exactly similar situation. Once a person fulfils the requirement of the definition of a specified person, it would presuppose that the normal law of the land has become ineffective or inadequate qua that person and that there is no other option but to take recourse to the powers under the MPDA Act, 1981. This remarkable judgment was passed by the Bombay High Court in the matter of CHANDRAKALA V THE STATE OF MAHARASHTRA [CRIMINAL WRIT PETITION NO. 16 OF 2021] by Honourable Justice Ravindra V. Ghuge and Justice B. U. Debadwar.

The petitioner challenged the order passed by respondent No.2 through which she has been detained under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers, and Persons Engaged in Black Marketing of Essential Commodities Act, 1981. She has submitted that the order was passed on a mere assumption which is legally unsustainable.

District Collector initiated the proceedings under Section 3(1) and 3(2) of the MPDA Act, 1981 and they contended that the petitioner was sent behind bars and was granted the liberty to make a representation against the order of detention under Article 22(5) of the Constitution of India, before the Advisory Board.

The Inspector of Police of the said police station conducted a confidential inquiry which discloses that the localities do not dare to register complaints against the petitioner since she has terrorized them with the aid of goons. The Police Inspector submitted his report to the detaining authority for initiating action under Section 3(1) of the MPDA Act, 1981.

Court asserted that, “The said report is self-explanatory indicating that the seized material contains 10% V/V of ethyl alcohol in sample No.1 and 04% V/V of ethyl alcohol in sample No.2. Such materials are used for distillation of intoxicating liquor. We have also perused the confidential report (part-1) of the Advisory Board bearing Reference No.69 of 2020 dated 08.01.2021.

Petitioner is a lady about 40 years of age, this Court may take a lenient view. She is willing to tender an affidavit declaring that she would never indulge in any such acts in future. As she has been under preventive detention since 07.12.2020, the period spent by her behind bars may be considered as being an appropriate period of detention” said the petitioner’s advocate.

The Court also stated, “the statements of the two witnesses, who have shown the courage, albeit on the condition of anonymity, would indicate that the act of the petitioner in threatening and assaulting the suspected informants, was clearly to promote the illicit liquor business and deter such witnesses from making statements before the police.”

The HC stated that, “the request of the petitioner to take a lenient view in this matter, we find that the said request could have been considered, if the petitioner did not have a record of crimes/ offences registered against her. However, the record reveals, as noted in the earlier part of this judgment, that the petitioner had executed a good conduct bond which was flouted thereafter. Scant respect was shown by the petitioner to the said bond executed by her. Considering this conduct, even if the petitioner now tenders an undertaking to this Court, we are circumspect that the said undertaking would have no meaning. Hence, the request for leniency is turned down.”

In case at hand all the mandatory compliances under various provisions of the MPDA Act, discussed above, have been complied with within stipulated time. Thus, the court held that the impugned detention order is technically perfect in all respect. Also, in the entire Writ Petition nowhere the detenu says that the substance alleged to have been seized time and again from her in eight prohibition cases, was not illicit liquor but it was the substance, which was not harmful for consumption of human being. Thus, the Writ Petition was dismissed by the HC.

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