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Babu Kantappa Shetty Vs. M.S. Kasbekar and Others - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. No. 1129 of 1981
Judge
Reported in1982CriLJ1303
ActsConstitution of India - Articles 22(5) and 226; Drug Offenders Ordinance, 1981 - Sections 2, 3 and 3(1); Bombay Prohibition Act, 1949
AppellantBabu Kantappa Shetty
RespondentM.S. Kasbekar and Others
Excerpt:
.....to object of ordinance - whole order of detention is violative of article 22 (5) if any one of grounds of detention is irrelevant or vague - order of detention would stand vitiated - petition allowed. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter addressed to the 1st respondent, viz., s, he is purported to have recorded that the he had..........july 1981. the affidavit in reply shows that the same was explained to the detenu in hindi. the grounds of detention dt. 6th july 1981 along with the material on which they were based together with the copies of the translations thereof in kannada were served on the petitioner on 10th july 1981 at the nasik central prison where he was detained.3. although in this petition, challenge to the order of detention was on several grounds, only one of such grounds was sufficient to dispose of this petition.4. the contention of the learned counsel for the petitioner is that ground nos. 5 to 9 in the grounds of detention served on the detenu had no nexus with the object of the ordinance viz. maintenance of public order making the said grounds of detention irrelevant and, thereby vitiating the.....
Judgment:

Rege, J.

1. This is a petition for Habeas Corpus under Art. 226 of the Constitution of India by the petitioner detained under a detention order dt. 5th July 1981 made under an Ordinance called the Maharashtra Prevention of Dangerous activities of Slumlords, Bootleggers and Drug Offenders Ordinance, 1981 (Mah. Ord. III of 1981) (hereinafter for the sake of brevity referred to as the said Ordinance) challenging the said detention order on various grounds.

2. The order of detention in English language was served on the detenu on 6th July 1981. The affidavit in reply shows that the same was explained to the detenu in Hindi. The grounds of detention dt. 6th July 1981 along with the material on which they were based together with the copies of the translations thereof in Kannada were served on the petitioner on 10th July 1981 at the Nasik Central Prison where he was detained.

3. Although in this petition, challenge to the order of detention was on several grounds, only one of such grounds was sufficient to dispose of this petition.

4. The contention of the learned counsel for the petitioner is that ground Nos. 5 to 9 in the grounds of detention served on the detenu had no nexus with the object of the ordinance viz. maintenance of public order making the said grounds of detention irrelevant and, thereby vitiating the order of detention.

5. To appreciate the said contention of the learned counsel for the petition it would be convenient to deal with certain provisions of the said ordinance to understand its ambit.

6. The ordinance is for preventing the dangerous activities of slumlords, Bootleggers and drug offenders. S. 3(1) of the said Ordinance gives power to the detaining authority to make the detention order and it provides as under :-

'The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.'

The words 'in any manner prejudicial to the maintenance of public order' have been defined by the said Ordinance in S. 2. The said definition, so far as relating to 'the bootleggers' as is relevant in this case provides :-

'2(b) :- 'Bootleggers' means a person who distills, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any provisions of the Bombay Prohibition Act, 1949. and the Rules and orders made thereunder, or of any other law for the time being in force or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacles or any other materials what-so-ever in furtherance or support of doing any of the above mentioned things by or through any other person or who abets in any other manner the doing of any such thing.'

7. A reading of the said provisions of the Ordinance shows that activities of a person to constitute a 'bootlegger' are only those as are specifically covered by the said definition and it was only such activity of a bootlegger which was required to be prejudicial to the maintenance of Public Order to the subjective satisfaction of the detaining authority to enable him to pass a detention order under Section 3 of the Ordinance.

8. In the light of the said provisions grounds 5 to 9 in the grounds served on the detenu may be considered. The said grounds are as under :-

'5. On 27-1-1971 at about 6.00 p.m. a resident of Gopalji Garadge Wadi Bunder Road, Mazgaon, Bombay-10 visited your liquor joint (Homi Hall Compound, Temporary Shed), Mazgaon, Bombay-10, for drinks. You accused the said resident as the Police Informant and fisted him and drove him away.

6. On 29-1-1981 at about 8.00 p.m. a resident of D'lima Street, Mazgaon, Bombay-10 was going along Shivdas Chapshi Marg, Mazgaon, Bombay-10 towards Homji Hall compound, you accosted the said resident at Homji Hall Compound, Gate and caught hold of him by his neck, You then whipped out a knife and said :

'Khabari Dhanda Karata Hai Kya, Bahut Chalaak Hai, Iss Ialake Mein Muzase Sab Darate Hein, Mein Aaj Tuzhe Khatam Kar Dungaa.'

The said resident pleaded mercy from you, Then you allowed him to go.'

7. On 20-2-1981 at about 6.00 p.m. a resident of Wadi Bunder Road, a Labour from Homji Hall Compound, while he was going for his work, he was dragged by one of your hireling and brought before you in the Homji Hall Compound, you Kicked him and accused him that on the pretext of work, he (the said resident) was visiting Homji Hall compound and passing information to the Police about your liquor business. You then drove him out of the said compound.

8. On 7-4-1981 at about 7.00 p.m. a resident of Tarwadi and working in B.P.T. while returning home by the side of Homji Hall compound, as usual at that time you caught the said resident by his shirt and pulled him down. You then assaulted the said person by fist blows and kicks and warned him not to give information about your liquor business to the police. Thereafter you allowed him to go.

9. On 11-4-1981, at about 6.00 p.m. you approached a pan shop keeper on Wadi Bunder Road and accused him to be a Police informant. You then whipped out a knife and put the said knife on the neck of the said pan shop keeper and warned him (pan shop keeper)

'Policeko Khabar Dega To Zindgi Barbaad Karunga.'

In the public interest, the source of information about the instance at Sr. Nos. 5 to 8 mentioned above cannot be disclosed to you.'

10. The main contention of the learned Counsel for the petitioner is that none of the above mentioned grounds has any nexus to the object of the Ordinance. None of the activities of the detenu in the said grounds viz. assaulting persons on the fear that they were informants, falls within the four corners of the definition of 'bootleggers' as covered by the provisions of the said ordinance. As pointed out above, if only those activities of a person defined as a 'bootlegger' in S. 2(b) of the Ordinance were to lead the detaining authority to an inference that the same were prejudicial to the maintenance of Public Order, that he has been authorised to issue a detention order under Section 3 of the Ordinance. However, the grounds 5 to 9 of the grounds of detention appear to fall outside the purview of the said Ordinance and they are, therefore, irrelevant for making a detention order under the said Ordinance, having no nexus to the object of the Ordinance.

11. The learned Public Prosecutor has contended that since every one of those activities of the detenu enumerated in the grounds 5 to 9 was indulged in by him to facilitate the running of his illicit liquor business, the said activities must be considered as falling within the object of the Ordinance. It is difficult to accept the said contention of the learned Public Prosecutor. The said activities of the detenu cannot by any stretch be considered to be falling within the ambit of the activities of a bootlegger covered under the Ordinance. The Ordinance only authorises the detaining authority to detain a person by depriving him of the fundamental right to freedom only if his activities were to fall within the four corners of the Ordinance. For any activity falling outside the ambit of the Ordinance the detaining authority can have no power to make a detention order under Section 3 of the Ordinance referred to above.

12. It is now settled law that, if any one of the grounds of the detention were irrelevant or vague. The whole order is vitiated as violative of Art. 22(5) of the Constitution. In this case, as pointed out above, since the said ground Nos. 5 to 9 being irrelevant having no nexus to the object of the Ordinance, the order would stand vitiated.

13. In that view of the matter, the petition is allowed. Rule is made absolute in terms of prayer (a). Petitioner to be set at liberty forthwith, if not required in any other proceedings. Writ to be directed to the Superintendent, Bombay Central Prison Arther Road, Bombay.

14. Petition allowed


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