High Court
Legal Reasoning
wp-130-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.130 OF 2025Suyog @ Chotya Machhindra PradhanAge: 24 years, Occu.: Labour,R/o. Malives, Beed,Taluka and District Beed... PetitionerVersus1.The State of MaharashtraThrough its Section Officer,Home Department (Special),Mantralaya, Mumbai-32.2.The District Magistrate,Beed, Taluka and District Beed.3.The Superintendent of Jail,Central Jail, Harsool,Aurangabad. .. Respondents…Mr. D. S. Patil, Advocate for the petitioner.Mr. G. A. Kulkarni, APP for respondents/State.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. DATE : 18 MARCH 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Mr. D. S. Patil for the petitioner andlearned APP Mr. G. A. Kulkarni for respondents – State.2.Rule. Rule made returnable forthwith. The petition is heard finallywith the consent of the learned Advocates for the parties.[1] wp-130-2025-J.odt3.The petitioner challenges the detention order dated 10.05.2024bearing No.2024/RB-Desk-1/Pol-1/MPDA-11 passed by respondent No.2as well as the approval order dated 17.05.2024 and the confirmationorder dated 23.07.2024 passed by respondent No.1, by invoking thepowers of this Court under Article 226 of the Constitution of India.4.Learned Advocate for the petitioner has taken us through theimpugned orders and the material which was supplied to the petitionerby the detaining authority after passing of the order. Learned Advocatefor the petitioner submits that though the detention authority has takennote of nine offences against the petitioner, yet it is stated that only oneoffence i.e. Crime No.05 of 2024 registered with Beed Rural PoliceStation, District Beed for the offence punishable under Section 3punishable under Section 25 of the Arms Act was considered for passingthe detention order. The detaining authority has not considered the bailorder that was passed in that case. The statements of witnesses ‘A’ and‘B’ would show that at the most law and order situation would havearisen and not the public order. Therefore, the impugned order cannot beallowed to sustain.5.Per contra, the learned APP strongly supports the action takenagainst the petitioner. He submits that the petitioner is a dangerousperson as defined under Maharashtra Prevention of Dangerous Activities[2]
Legal Reasoning
wp-130-2025-J.odtof Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons andVideo Pirates Act, 1981 (hereinafter referred to as the “MPDA Act”). Thedetaining authority has relied on the two in-camera statements and thesubjective satisfaction has been arrived at. There is no illegality in theprocedure adopted while recording the in-camera statements of thewitnesses. Due to the terror created by the petitioner, people are notcoming forward to lodge report against him and, therefore, it affects thepublic order. Learned APP relied on the affidavit-in-reply of Ms. DeepaMudhol Munde, the then District Magistrate, Beed, wherein she hasgiven the circumstances and the evidence which was before her to arriveat the subjective satisfaction. The petitioner was found possessingcountry made pistol with cartridges and then he has stated upon inquirythat the said Pistol was purchased by him from one PoonamchandJariya, R/o. Badwani Madhya Pradesh State. The statements ofwitnesses ‘A’ and ‘B’ would also show that the petitioner was carryingpistol at that time and by showing the same, he had snatched the moneyfrom the person of the witnesses. Therefore, no fault can be found in theimpugned order.6.Before considering the case, we would like to take note of thelegal position as is emerging in the following decisions :-(i) Nenavath Bujji etc. Vs. State of Telangana and others,[2024 SCC OnLine SC 367], [3] wp-130-2025-J.odt(ii) Kanu Biswas Vs. State of West Bengal, [1972 (3) SCC831] wherein reference was made to the decision in Dr. RamManohar Lohia vs. State of Bihar and Ors. [1966 (1) SCR 709];(iii)Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, [1995(3) SCC 237];(iv)Pushkar Mukherjee and Ors. Vs. The State of WestBengal, [AIR 1970 SC 852];(v) Phulwari Jagdambaprasad Pathak Vs. R. H. Mendonca andOrs., (2000 (6) SCC 751) and;(vi)Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, [(1981) 4 SCC 647].7.Taking into consideration the legal position as summarized above,it is to be noted herein as to whether the detaining authority whilepassing the impugned order had arrived at the subjective satisfactionand whether the procedure as contemplated has been complied with ornot. In Nenavath Bujji (Supra) itself it has been reiterated by theHon’ble Supreme Court that illegal detention orders cannot be sustainedand, therefore, strict compliance is required to be made, as it is aquestion of liberty of a citizen. Here, the impugned order shows that in allnine offences have been registered against the petitioner and all of themare stated to be pending. Out of nine offences, three are still underinvestigation which are under Section 3 punishable under Section 25 ofthe Arms Act. Now, the detaining authority states that only one offence[4] wp-130-2025-J.odti.e. Crime No.05 of 202 was considered for passing the detention order.Perusal of the FIR therein would show that on the secret information, thepolice party with panchas went to the spot. They apprehended petitionerwho was trying to flee away and when the search of his person wastaken, he was found with pistol and cartridges in his sack. LearnedAdvocate appearing for the petitioner has produced the photocpy of theorder of bail which was passed by the learned Magistrate on 06.01.2024.Copies of bail application and objection by the prosecution have alsobeen produced. Attendance was also granted as a condition for grantingbail by the learned Magistrate. The attendance was till filing of charge-sheet or expiration of 60 days whichever is earlier. Note of sending thepetitioner to police custody till 06.01.2024 has been taken in the orderbut what happened on 06.01.2024 is absolutely not mentioned in theimpugned order. We would like to rely on the decision in Joyi KittyJoseph Vs. Union of India and Ors., [Criminal Appeal No.___ of2025 (arising out of Special Leave Petition (Crl.) No.16893 of 2024)decided by the Hon’ble Supreme Court on 06.03.2025], whereinreliance has been placed on the decision in Ameena Begum v. State ofTelangana and others, [(2023) 9 SCC 587] and it has been observedthat preventive detention is impermissible when the ordinary law of theland is sufficient to deal with the situation was per incuriam to theConstitution Bench decision in Haradhan Saha vs. State of W.B.[5] wp-130-2025-J.odt[(1975) 3 SCC 198], in the limited judicial review available toconstitutional courts in preventive detention matters. However, inAmeena Begum (Supra), the Hon’ble Supreme Court explained the truedistinction between a threat to “law and order” and acts “prejudicial topublic order” and it is stated that it cannot be determined merely by thenature or quality of the act complained of, but in the proper degree andextent of its impact on the society. Further, it is observed that “When bailwas granted by the jurisdictional Court, that too on conditions, thedetaining authority ought to have examined whether they were sufficientto curb the evil of further indulgence in identical activities; which is thevery basis of the preventive detention ordered. The detention orderbeing silent on that aspect, we interfere with the detention order only onthe ground of the detaining authority having not looked into theconditions imposed by the Magistrate while granting bail for the verysame offence; the allegations in which also have led to the preventivedetention, assailed herein, to enter a satisfaction as to whether thoseconditions are sufficient or not to restrain the detenu from indulging infurther like activities.” 8.The statements of witnesses ‘A’ and ‘B’ would show that thosestatements were recorded on 27.03.2024 and 29.03.2024 respectivelyand they say about the incident dated 20.03.2024 and 24.03.2024. Thatmeans, after the alleged incident, the statements were recorded within a[6] wp-130-2025-J.odtperiod of eight days. However, there is no attempt on the part of thepolice to seek the cancellation of bail in Crime No.05 of 2024 granted on06.01.2024. The statements of confidential witnesses cannot be usedonly for the detention purpose under MPDA, but it could have beencertainly used for getting the bail cancelled. The obvious reaction on thepart of the police is missing in this case though police got to know aboutuse of pistol again by the petitioner. The pistol and the cartridges whichwere the property in Crime No.05 of 2024 were seized on 03.01.2024itself, then the question arises how another pistol came in possession ofthe petitioner on 20.03.2024 and 24.03.2024 as stated by witnesses ‘A’and ‘B’. Therefore, immediate action on the part of police was required,if they were believing what the witnesses had told in their statements.Those statements were got verified on 19.04.2024. Now, we will have totake into consideration that when a person, against whom the proposalis made that he should be declared as dangerous person and should bedetained, stated to have threatened the witnesses by country madepistol, then there should be immediate verification. It appears that theSuperintendent of Police, Beed forwarded the said proposal to detainingauthority on 21.04.2024 and the order came to be passed on10.05.2024. Technically, there may not be so much of delay, but whenthe State authority are insisting upon the fact that the petitioner ishabituated to use pistol by procuring them, then certainly a deeper[7] wp-130-2025-J.odtprobe/investigation was necessary. The offences under Section 3punishable under Section 25 of the Arms Act lodged against thepetitioner on 09.08.2023 and 20.09.2023 are stated to be still pending forinvestigation. When police themselves are adopting a lethargic attitudeand not able to curtail the activities by adopting general law procedure,the detaining authority cannot try to take action under the detention laws.9.In the present matter, though the order of detention was passedon 10.05.2024, it is stated to have been served on 03.06.2024. Wemade inquiry with learned APP as to why there was delay. Learned APPinforms that the petitioner was absconding. We are surprised to note thatduring the said period of almost a month, no steps were taken underSection 7 of the MPDA and then the police are coming with the case thatthe petitioner was then arrested in connection with Crime No.101 of2024 registered with Beed City Police Station, District Beed for theoffences punishable under Section 392 read with Section 34 of IndianPenal Code and at that time, the present impugned order was served.We have considered the entire file, but we are unable to get any suchdocument that at any earlier point of time there was an attempt to servethe grounds of detention and, the order of detention served on thepetitioner. It appears that the petitioner came to be arrested on29.05.2024 in connection with said Crime No.101 of 2024 and then bytaking permission from Chief Judicial Magistrate, Beed on 01.06.2024,[8] wp-130-2025-J.odtthe order of detention and the grounds were served on 03.06.2024 to thepetitioner. We have also considered the FIR vide Crime No.101 of 2024.It is to be noted that it is filed by Police Inspector, (Wireless Branch),Chhatrapati Sambhajinagar in respect of incident dated 05.05.2024 andhe says that his gold ring, Bluetooth device and cash of Rs.5,000/- wastaken away by two unknown persons. Thus, the delay in serving thedetention order is not at all explained properly and the proper procedurehas not been then adopted. By no stretch of imagination it can be saidthat the activities of the petitioner had raised public order situation.10.Thus, taking into consideration the above observations and thedecisions of the Hon’ble Apex Court, at the most, the statements as wellas the offences allegedly committed would reveal that the petitioner hadcreated law and order situation and not disturbance to the public order.Though the Advisory Board had approved the detention of the petitioner,yet we are of the opinion that there was no material before the detainingauthority to categorize the petitioner as a dangerous person orbootlegger. 11.For the aforesaid reasons, the petition deserves to be allowed.Hence, following order is passed :-ORDERI)The Writ Petition stands allowed.[9] wp-130-2025-J.odtII)The detention order dated 10.05.2024 bearing No.2024/RB-Desk-1/Pol-1/MPDA-11 passed by respondent No.2 as well as theapproval order dated 17.05.2024 and the confirmation order dated23.07.2024 passed by respondent No.1, are hereby quashed andset aside.III)Petitioner – Suyog @ Chotya Machhindra Pradhan shall bereleased forthwith, if not required in any other offence.IV)Rule is made absolute in the above terms. [ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[10]