JUDGMENT - N. ARUMUGHAM, J.:---By filing this writ of Habeas Corpus under Article 226 of the Constitution of India, the detenu himself has challenged the order of detention passed by the 1st respondent Mr. R.H. Mendonca, Commissioner of Police, Greater Bombay, on 24th April, 1998 in D.O. 74/PCB/BL/Zone-III of 1998 dated 24th April, 1998 detaining the petitioner by virtue of sub-section (1) of section 3 of Maharashtra Prevention of the Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 as amended upto date and that has been approved by the Government of Maharashtra, second respondent vide its Order No. DDS/1398/SPL/3(B) dated 16th March, 1998. By virtue of section 3 of the said Act or its alleged illegality and impropriety, both orders of detention shown at Exh. B, on the grounds of detention shown in Exh. C and the list of documents relied on by the Detaining Authority shown in Exh. A were all served on 4th May, 1998 itself simultaneously upon the detenu. The prejudicial activities grounded by the Detaining Authority for clamping the detention order against detenu as aforementioned are stated as follows : 2. At 21.00 hrs. on 5-11-1997 when Mr. Tayshete the Senior Inspector of Police, R.A. Kidwai Marg Police Station on the receipt of the information from the credible source that the liquor joint was being conducted in a room near Samson Hotel, Wadala Sewree Cross Road, the Senior Inspector of Police accompanied by Police Inspector Shri Naik, Shri Vinayak Sambhaji Tawade, P.N. 19470/R.A.K. Marg Police Station with panchas raided the said place i.e. a room by the side of Samson Hotel and found the following persons: 1. Vithal Mulu Dabholkar, who was found serving illicit liquor to customers. 2. Dilip Yeshwant Pawar, he was collecting money from customers. 3. Santosh Dattaram Sawant, he was customer and was consuming liquor. 4. Suresh Shankar Salvi, he was a customer and was consuming liquor. 5. Shrinivas Yvankatesh Bhat, he was a customer and was consuming liquor. 3. On search the following contraband articles and cash were found in the room. 1. Two black coloured tyre tubes each containing 40 liters of illicit liquor valued Rs. 1,600/-. 2. One white coloured plastic can containing 10 liters of illicit liquor valued Rs. 200/-. 3. 10 glasses valued Rs. 20/-. 4. Cash of Rs. 1,727/- in different denominations. 5. 3. On search the following contraband articles and cash were found in the room. 1. Two black coloured tyre tubes each containing 40 liters of illicit liquor valued Rs. 1,600/-. 2. One white coloured plastic can containing 10 liters of illicit liquor valued Rs. 200/-. 3. 10 glasses valued Rs. 20/-. 4. Cash of Rs. 1,727/- in different denominations. 5. Xerox copy of relation sic ration card bearing No. 258126 having detenus name, as head of the family and address of the place of offence. 4. After obtaining necessary samples from the contraband, the contraband, above articles and cash were seized under the panchanama by the Police Party. In this connection on complaint from Shri Vinayak Sambhaji Tawade, R.A. Kidwai Marg Police Station registered an offence under section 66(i)(b), 65(e), 68 and 81 of the Bombay Prohibition Act, 1949 vide P.C.R. No. 85/97 against detenu and their associates and the said consumers. All aforesaid persons found at the place of offence were arrested in the said case and then the consumer were sent to K.E.M. Hospital for examination. Consumers Shri Santosh Sawant and Shrinivas Bhat were certified clinically under the influence of alcohol. On 16-11-1997 the detenu produced B.M.C. Rent Receipt No. 123840 dated 18-12-1996 issued in the name of detenu, in connection with the said incriminating room to police and police seized the said bill under panchanama and arrested the detenu. The detenu has admitted his complicity in the aforesaid crime in his statement before police and panchas. 5. On 7-11-1997 he was placed for remand before the Ld. Metropolitan Magistrate, 13th Court, Dadar, when he was ordered to be released on bail in the sum of Rs. 5,000/- with one surety in like amount of cash bail Rs. 5,000/- in lieu of surety. The detenu has availed of the bail facility on the same day. 6. During the course of investigation statements of witnesses were recorded and that the samples of the contraband seized were sent for examination and the same were certified by the Asstt. Chemical Analyzer to the Government of Maharashtra, Mumbai as Sample No. 1 to 3 contain 24% v/v of ethyl alcohol in water. None of those is medicinal/anti-septic/toilet preparation, nor a flavouring material. Chemical Analyzer to the Government of Maharashtra, Mumbai as Sample No. 1 to 3 contain 24% v/v of ethyl alcohol in water. None of those is medicinal/anti-septic/toilet preparation, nor a flavouring material. A statement of the Police Constable No. 27193/R.A.K. Marg Police Station and P.C. No. 21519/R.A.K. Marg Police Station were recorded which were in corroboration with the above facts of the instant case. 7. At about 20.00 hrs. on 7-11-1997, Police Sub Inspector Kshirsagar and P.C. No. 21519/R.A.K. Marg Police Station while on patrol at 20.45 hours, found that detenu and his associates Subhash Vithal Tadge in Room No. B-195, 2/2, Om Bajarang Vikas Mandal, Wadala Sewree Cross Road, Mumbai 31 with three plastic cans each containing 10 liters of illicit liquor and that the said three cans after obtaining necessary samples from the contraband, cash of Rs. 50/-, three glasses and a plastic tube were seized under a panchanama. 8. In this connection on complaint from Shri. Milind Abba Prabhu, P.C. No. 27847/R.A.K. Marg Police Station registered an offence under section 66(i)(b) r/w section 81 of the Bombay Prohibition Act, 1949 against the detenu and his associates vide P.C.R. No. 86/97. The detenu and his associate Subhash Vithal Tadge were arrested on 7-11-1997 in the said case. The detenu has admitted his complicity in the said offence. 9. On 8-11-1997 when the detenu with his associates were placed for remand before Ld. Metropolitan Magistrate, 13th Court, Dadar, he was ordered to be released on bail in the sum of Rs. 300/- with one surety in like amount or cash of the same amount and the detenu availed of the bail facility on 8-11-1997. The sample of the contraband seized were sent for examination and the same were certified by the Asstt. Chemical Analyzer to the Government of Maharashtra, Mumbai as Sample No. 1 to 3 contain 24% v/v of ethyl alcohol in water. None of those is a medicinal antiseptic/toilet preparation, nor a flavouring material vide his letter No. B-III/4502/98 dated 23-2-98. 10. Besides the above, confidential enquiry into the bootlegging activities were made and that it was learnt that the witnesses to the said activities of the detenu were terribly frightened and therefore were reluctant to complain and make statements against the detenu to the police. In view of the above situation, assurances were given to the local people that their names, identifying particulars etc. In view of the above situation, assurances were given to the local people that their names, identifying particulars etc. would be kept secret and that they would not be called upon to give evidence in the Court or any other open forum. On this, two respectable person from the area expressed their willingness to give their statement. Their statements are recorded "in camera" gist of which is as under : 11. According to witness "A" he is working in a hotel in the Wadala Market area. In his statement dated 2-3-1998 he stated that he knew the detenu as bootlegger selling illicit liquor to people in a hut at Wadala village. Due to his bootlegging activities, people from Wadala village, Santosh Nagar, Sanman Nagar, Parnakuti Zopadpatti, Mang Garudi Zopadpatti and areas adjoining thereto are being unnecessarily harassed. Students from the nearby Axillium English High School and also their guards are harassed by the drunkards. People are frightened of the detenu and are reluctant to complain. 12. Some workers from the hotel where the witness works used to drink liquor at detenu's liquor den. From them the witness came to know that police have carried out raids and arrested the detenu. At early morning in the first week of January, 1998 when the witness was waiting for vehicle to bring milk, a black coloured Fiat motor car came to be stopped near Samson Hotel and one person alighted and took out 3 to 4 rubber tubes filled with liquor from the said car and the car was sped away. Out of curiosity, the witness was watching the same. At that time, the detenu and his two associates rushed there and questioned the witness as to why he was watching. The detenu and his associates assaulted him with first blows and kicks. Then the witness shouted loudly, the detenu took out a chopper and held it against his chest and threatened him to kill. People going for their work and those for answering natural call and some taxi drivers who had parked their taxies waiting for passengers collected there. The detenu threatened them all at the point of choppers due to which they got scared and ran away. The area wore a deserted look. Thereafter, detenu and his associates lifted those tyre tubes and went into the hutments. While leaving, the detenu threatened the witness not to report the incident to police. The detenu threatened them all at the point of choppers due to which they got scared and ran away. The area wore a deserted look. Thereafter, detenu and his associates lifted those tyre tubes and went into the hutments. While leaving, the detenu threatened the witness not to report the incident to police. Due to fear of retaliation, the witness did not report the matter to police. 13. Witness "B" is also a servant in a lime depot in the Wadala area. In his statement dated 3-3-1998 he stated that he knew the detenu as a bootlegger due to whose activities and also due to the drunkards from his den, women and girls from nearby Auxillium School and other people are put to unnecessary trouble. The witness knows that detenu was arrested by police after raids in his den. However, due to detenu's fear, people are reluctant to complain against detenu. 14. On the night of 10-2-1998, evening at 19.15 hours, the witness and his colleagues were sitting in the shop. The detenu accompanied by his two associates carrying tyre tubes filled with liquor rushed there and asked the witness to keep those tubes in his shop. When the witness refused, the detenu took out a chopper and threatened him to kill. The witness took a chance and came out of his shop and shouted loudly for help. Hearing his shouts, nearby shop keepers and passers by and also hawkers collected in front of the shop. The detenu and his associates at the point of choppers threatened all of them, due to which they all ran away in different directions. Nobody came for helping the witness. Thereafter, the detenu and his associates kept the tyre tubes containing liquor in the shop and threatened the witness not to inform anyone. After some time, the detenu and his associates returned to his shop and took away the tyre tubes and went away. This witness came to know that the detenu kept the tyre tubes in his shop as police were about to search the detenu's place. Due to fear of retaliation, the witness didn't report the incident to police. 15. After some time, the detenu and his associates returned to his shop and took away the tyre tubes and went away. This witness came to know that the detenu kept the tyre tubes in his shop as police were about to search the detenu's place. Due to fear of retaliation, the witness didn't report the incident to police. 15. Placing reliance upon the above incidents by applying its mind, the Detaining Authority has identified the detenu as Bootlegger engaged in procuring, storing and selling illicit liquor for the purpose of consumption of public in the room near Samson Hotel, Wadala Sewree Cross Road, Mumbai in contravention of the provisions of Bombay Prohibition Act, 1949 and to facilitate his bootlegging activities, the detenu was also causing and calculated to cause harm, alarm, danger and a feeling of insecurity amongst a section of public in the said area and a grave, widespread danger to the life of public health. Therefore, the Detaining Authority came to the conclusion that the very activities of the detenu by itself are prejudicial to the maintenance of public order within meaning of definition of section 2 of the Maharashtra Prevention of Dangerous Activities of the Slumlords and Bootleggers Drug Offenders and Dangerous Persons Act, 1981 as amended upto date and after intimating all the constitutional mandate to the detenu, the first respondent being the Detaining Authority has passed impugned order of detention on 27th April, 1990 which order is being challenged in the writ petition by the detenu himself. 16. Shri. R.H. Mendonca, Commissioner of Police, Bombay has responded to the various contentions raised in the writ petition on behalf of the detenu while challenging the impugned detention order by inter alia contending that each and every one of the grounds and averments made in the writ petition are not correct and in fact the Detaining Authority by filing his reply affidavit denied each and every one of the grounds so also every averments made on behalf of the petitioner. Shri V.B. Sankhe, Secretary to the Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai has also filed sworn affidavit stating that the every averment and the grounds made by the petitioner are not correct and the details of the process adopted by 2nd respondent in chronological order is given in their rely affidavit. 17. We have heard rival submissions made by the Counsel for the respective parties. 17. We have heard rival submissions made by the Counsel for the respective parties. Though several grounds has been urged in the writ petition itself by and on behalf of the petitioner, Mr. Tripathi, learned Counsel for the petitioner has confined his arguments while challenging the impugned order of detention only on the basis of grounds (a) and (b) of the writ petition, which would in short go to show that the entire order of detention is a result of total non application of mind and that as regards the allegation that the petitioner is causing activities to cause harm, alarm, danger and feeling of insecurity amongst the section of public in the areas and grave wide danger to the public health and thereby it is described that the activities of the petitioner are prejudicial to the maintenance of public order, there was no allegation to that regard and that having no record or prima facie case, order of the detaining authority is total non application of mind and hence, it is liable to be quashed and set aside. 18. In short to say, the learned Counsel for the petitioner has confined his argument in attacking the impugned order only on this ground of the non application of mind and nothing else. 19. On the contrary, Mr. R.L. Patil, the learned Additional Public Prosecutor appearing for the respondent would controvert to the said contention by stating that the impugned detention order has been passed by the detaining authority on arriving at the subjective satisfaction by applying its mind in full upon all the documents and incidents noted here in the grounds of detention as sponsored by the Sponsoring Authority and that therefore, he has countered the every contention made on behalf of the petitioners. 20. Regarding the only contention raised by Mr. Tripathi, learned Counsel for the petitioner, that the impugned detention order is vitiated for the non application of mind against the Detaining Authority, he dwelled very much upon the report of the Chemical Analyzer to the Government of Maharashtra which was dated 23rd Feb. 1998 which pertains to the similar things for the two consequences of samples subjected for the chemical analysis. It is seen that the three samples of the each recovered at both instances have been analysed chemically and the identical report has been given which has been adumbrated in the impugned grounds of detention itself. 1998 which pertains to the similar things for the two consequences of samples subjected for the chemical analysis. It is seen that the three samples of the each recovered at both instances have been analysed chemically and the identical report has been given which has been adumbrated in the impugned grounds of detention itself. However, for the sake of appreciation of the factual matrix in the instant case, we are deducing the same once again as stated hereunder : "Each of the Sample Nos. (1) to (3) contains 24% of ethyl alcohol -- in water. None of these is a medicinal/antiseptic/toilet preparation, preparation. -- nor a flavouring material." 21. This identical information given by the Chemical Analyzer upon the sample sent by the Sponsoring Authority do not contain any adverse remarks namely to the extent that the sample do not contain any adverse element which is hazardous to public health or public safety. To name the particular overt act as prejudicial activity to come especially within the precincts of affecting the public health or public security, there must be cogent and convincing opinion or reasoning to be given particularising what is the material contained adversely so as to affect the public health hazardously or adversely is a must in any of the report or opinion given by the Chemical Examiner or the medical expert. Unless and until the Chemical Analyst's report gives such positive adverse opinion affecting the public health or the public order, it highly becomes impossible for the Court to hold the view or the concept that the activities of the detenu become prejudicial to and hazardous to public health affecting the public security or public order. Concedingly the Chemical Analyst's report on both the samples sent on two occasions which was recovered by the raiding Inspector of Police, who took samples from the alleged contraband do not contain anything which is hazardous to public health or public safety. Further there is no material at all to show that the selling of the alcohol, even if it is admitted for argument sake, in our considered view, do not come within the category or prejudicial activities affecting public health. 22. To counteract the above contention made by Mr. Tripathi, learned Counsel for the petitioner, Mr. Further there is no material at all to show that the selling of the alcohol, even if it is admitted for argument sake, in our considered view, do not come within the category or prejudicial activities affecting public health. 22. To counteract the above contention made by Mr. Tripathi, learned Counsel for the petitioner, Mr. R.L. Patil, learned Additional Public Prosecutor strained much before us in canvassing the plea that the report of the Chemical Analyst that the tested sample is not fit nor be considered for medicinal or anti-septic, or toilet preparations would raise presumption that it is otherwise as it appears amount to the health hazard and that therefore there arises the public order in as much as it affects the health of those persons who actually consumes the liquor. It is pertinent at this stage to note that none of the consumers of the alcohol to whom the detenu and his associates sold out of the same had complained of any adverse affect upon actual consumption of the said contraband. It is in this context, we are at every difficulty to identify any presumption as envisaged and contained by Shri R.L. Patil, learned Additional Public Prosecutor in the absence of any material or complaint of adverse effect by any one, it is not possible to raise any presumption under section 114 of the Evidence Act or any other provisions of the Indian Evidence Act. 23. Section 3 of the Maharashtra Prevention of Dangerous Activities Act runs like this : "(1) 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." 24. The definition of "Bootlegger" has been defined in sub-clause (ii) of Clause (2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 as amended is as hereunder : "acting in any manner prejudicial to the maintenance of public order means - (ii) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order." Explanation provided thereto is as follows : "For the purpose of this Clause (a), public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely, inter alia, if any of the activities of any of the persons referred to in this Clause, directly or indirectly, is causing or calculated to cause any harm, danger or alarm of a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public heath." 25. In the light of the above definition provided in the section itself, all the proviso provided there, we have meticulously looked into the every case records and the grounds of detention in the impugned order of detention in order to identify the prejudicial activities in any manner affecting the maintenance of public order for the case of bootlegger as spelt out clearly in the exception column thereto but we have failed totally to identify with regard to any material therefor. 26. In (Jyot @ Jude Wilson Patel v. R.H. Mendonca, Commissioner of Police and others)1, 1999(5) Bom.C.R. 91 : 1998(3) Mah. 26. In (Jyot @ Jude Wilson Patel v. R.H. Mendonca, Commissioner of Police and others)1, 1999(5) Bom.C.R. 91 : 1998(3) Mah. L.J. 430, the Division Bench of this Court of which one of us (N. Arumugham, J.) is a party has had occasion to consider the similar and identical factual matrix in the above case and in the said case law it has been observed as follows: "A combined reading of the definitions, the Explanation, section 2(a)(ii) and section 3 of the M.P.D.A. Act would clearly postulate the fact that either of the persons categorised in the said sections for the purpose of arriving at a subjective satisfaction would necessarily indulge in any activities or in any manner necessarily prejudicial to the maintenance of public order and that the said legal concept has been clearly spelt out in section 2(a)(ii) and section 3(1) of the said Act. To simply suggest to detain a person who is indulging in the activities referred to in the said Act under the detention as contemplated not only he must be a bootlegger or a slumlord and so on but his activities indulged in must be in the category of prejudicially and adversely affecting or likely to affect the maintenance of public order and that unless and until the said prejudicial activities affecting public order has been arrived, found out and identified, it is not at all possible for the hierarchy of courts in the country to accept that the said detention of the said person is valid." 27. We have no doubt in our mind that the above part in the above case law in 1999(5) Bom.C.R. 91 : 1998(3) Mah. L.J. 430 (D.B./Bom.) would squarely be made applicable to the facts of the instant case for the very reasoning that there was no material to show that the detenu had indulged himself in committing prejudicial activities affecting public hazardous or public health. In fact particularly the Chemical Analyst report do not support at all the case of the Sponsoring Authority or the Detaining Authority. In fact particularly the Chemical Analyst report do not support at all the case of the Sponsoring Authority or the Detaining Authority. In our considered view, in so far as the report of the Chemical Analyst do not contain any adverse finding or opinion that the sample of contraband contains any adverse elements or the material which is hazardous to or affects the public health, it is very difficult for us to appreciate the factual aspects of the instant case within the definition of section itself. In our opinion the detention order passed by the Detaining Authority thus clearly comes into the teeth of the concept of non application of mind as justifiably argued and contended by Mr. Tripathi, learned Counsel appearing for the petitioner. 28. It was the very endeavour of the learned Additional Public Prosecutor Mr. R.L. Patil by referring case law held between (Mrs. Harpreet Kaur Harvinder Singh Bedi v. State of Maharashtra)2, A.I.R. 1992 S.C. 979. In our considered and respectful view the said authority cannot be made applicable to the rescue of the respondents in the instant case, for the simple reasoning that the factual matrix in that case can be distinguished from the factual aspects of instant one and that as well the Chemical Analyst report in the instant case do not contain any adverse report and that besides there was no iota of material to say that the detenu himself had indulged in committing the prejudicial activities which affects or harm or hazardous to the public health as contemplated by law. Therefore, we are of the respectful view that the said case law held by the Apex Court will not come to the rescue of Additional Public Prosecutor to justify his contention and the impugned detention order. Of course it can be inferred from the instances referred to by the Detaining Authority or the Sponsoring Authority that the detenu has indulged in selling the illicit liquor. But as pointed out by learned Additional Public Prosecutor the said offences are coming within the purview of provisions of Maharashtra sic Bombay Prohibition Act and therefore, the concerned Police Officer who conducted raid can or is entitled to take proper proceedings against the detenu and his associates, as the clamping of the detention order is preventive one and not punitive one. On the above factual matrix, we do not find any substance in the contentions raised by the learned Additional Public Prosecutor. 29. For the foregoing reasoning, we have to say that the impugned order of detention against the detenu passed by the Detaining Authority has to fail and accordingly it becomes vitiated. 30. No other substantial point has been argued before us either canvassing the impugned order or otherwise. Ultimately, we find there are every merit in the contentions submitted on behalf of the petitioner. 31. In the result, writ petition succeeds. Accordingly writ petition is allowed. Impugned order of detention passed by 1st respondent in D.D. No. 74/PCB/BL/Zone-III of 1998 dated 24-4-1998 against the detenu is hereby set aside and quashed. Consequently the petitioner is hereby set at liberty forthwith unless he is required by the Authorities under any other law Rule is thus made absolute accordingly. Petition allowed. *****