Nagpur :- Division Bench presided over Nitin Sambre and Valmiki Menezes JJ have quashed and set aside order of detention dated 19-01-2023 passed by Collector, Yavatmal thereby detaining him under sec 12 (1) of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug offenders, Dangerous persons and Video Pirates Act, 1981.
Vijay Palasram Rathod was detained on the allegations that he is a habitual bootlegger as a result of which people are scared to depose against him. There were 8 criminal cases registered against him and 2 persons had given in camera statement against him. It was alleged that his activities were disturbing the public order.
Adv Mir Nagman Ali appearing for Sudhakar submitted that, there are the 8 crimes pertaining to sale of illicit liquor but in camera statement of witnesses show that same do not have any nexus with the disturbance of public order. That, detaining authority has failed to apply its mind to the fact that, disturbance of public order and disturbance of public health are two different things. It was further argued that, in two crimes relied on, CA report has not been placed before detaining authority and therefore impugned order deserves to be quashed and set aside as there was no material to show that the material which was seized was indeed liqour.
While allowing the writ petition, Hon’ble Division Bench observed-
10. As far as, the recently registered offences on 14/07/2022 to 12/11/2022, which are two in numbers, the submissions of the learned counsel for the petitioner that the report of Forensic Science Laboratory are not received or made available is a fact not in dispute. As such, it has to be inferred that before passing the detention order, the Detaining Authority was not conscious of the fact as to absence of report from the Forensic Science Laboratory in relation to the petitioner’s involvement in offence of bootlegging.
11. As a sequel of above, the Detaining Authority while considering the material as regards the recently registered two offences against the petitioner punishable under the provisions of the Maharashtra Prohibition Act, in addition to earlier offences ought not to have formed basis for ordering detention. The subjective satisfaction recorded by the Detaining Authority for ordering detention sans consideration of the aforesaid issue i.e. absence of report from the Forensic Science Laboratory, in the recently registered offences being in Crime Nos.151/2022 and 279/2022.
14. Apart from the above, fact remains that the report of the Chemical Analyzer for bringing home the guilt of the accused is necessary for proving the offence under the Maharashtra Prohibition Act. In absence of such report, it cannot be presumed or cannot be said to have provided basis for recording subjective satisfaction so as to infer the strong case against the accused like petitioner. In absence of report of the Chemical Analyzer / report from the Forensic Science Laboratory, gravity or seriousness of the prosecution case looses its significance. In this background, it cannot be said that the recent offences, which are two in numbers punishable under the Maharashtra Prohibition Act can be said to be relied on for recording subjective satisfaction by the Detaining Authority.
Adv Mir Nagman Ali appeared for Vijay Rathod.
Adv Mir Nagman Ali,
Bombay High Court, Nagpur Bench, Nagpur
