Bombay High Court: A Bench of Sunil B. Shukre and Pushpa V. Ganedliwal, JJ. quashed a preventive detention order passed against the petitioner and set him at liberty observing, inter alia, that he was deprived of his fundamental right under Article 21 of the Constitution of India.
The petitioner was preventively detained pursuant to the impugned order passed by the District Magistrate, Wardha. Yogesh V. Nayyar, Advocate for the petitioner challenged the said order on various counts. Per contra, Nitin Rode, Additional Public Prosecutor supported the order of preventive detention.
The High Court perused the record and was of the view that the impugned order became highly suspect in eyes of law as the DM, while passing the impugned order, took into consideration the fact that the petitioner was indulging himself in sale of liquor containing about 20.60% of ethyl alcohol. This, according to the Court, ought to be ignored in the facts and circumstances of the case at hand. Moreover, it was noted that the representation made by the petitioner under Section 10 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 was not considered by the Advisory Board. According to the Court, “This would mean that a valuable right available to the petitioner has been taken away from him. After all, right to liberty is a fundamental right enshrined in Article 21 of the Constitution of India and although this right is subject to reasonable restriction and can also be temporarily taken away in accordance with the procedure established by law, needless to say, the procedure has to be reasonable and the procedure prescribed for restricting this right has also to be followed in letter and spirit. If that is not done, there would be a deprivation of the fundamental right of the petitioner without following the procedure established by law. This is what has happened in the present case and, therefore, in our view, this is a compounding factor to what is seen by us already as an unjustifiable impugned order, making the impugned order as completely vulnerable in law.” Holding as such, the Court allowed the petition and set the petitioner at liberty. [Amir Khan Nasib Khan Pathan v. State of Maharashtra, 2019 SCC OnLine Bom 494, dated 15-03-2019]
