High Court · 2025

Legal Reasoning

wp-158-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.158 OF 2025Shaikh Ahemad Shaikh MohammedAge: 45 years, Occu.: Business,R/o. Umapur, Tq. Georai,District Beed. .. PetitionerVersus1.The State of MaharashtraThrough Additional Chief Secretary,Home Department, Mantralaya,Mumbai – 400032.2.District Magistrate, Beed,Collector Office,Nagar Road, Beed.3.The SuperintendentCentral Prison, Harsul,Chhatrapati Sambhajinagar. .. Respondents…Mr. H. B. Suryavanshi a/w Mr. Aniket Singh, Advocate for the petitioner.Mr. A. R. Kale, APP for the respondents/State.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. RESERVED ON : 02 APRIL 2025 PRONOUNCED ON : 21 APRIL 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Mr. H. B. Suryavanshi for the petitionerand learned APP Mr. A. R. Kale for the respondents – State.[1] wp-158-2025-J.odt2.Rule. Rule made returnable forthwith. The petition is heard finallywith the consent of the learned Advocates for the parties.3.The petitioner challenges the detention order dated 14.11.2024bearing No.2024/RB-Desk-1/Pol-1/MPDA-20 passed by respondentNo.2 as well as the approval order dated 25.11.2024 and theconfirmation order dated 17.01.2025 passed by respondent No.1, byinvoking the powers of this Court under Article 226 of the Constitution ofIndia.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. He submits thatthough several offences were registered against the petitioner, yet forthe purpose of passing the impugned order, two offences wereconsidered i.e. Crime No.147 of 2024 registered with Chaklamba PoliceStation, District Beed for the offences punishable under Sections 307,353, 379 read with Section 34 of Indian Penal Code and Crime No.287of 2024 registered with Chaklamba Police Station, District Beed for theoffences punishable under Sections 303(2), 3(5) of Bhartiya NyayaSanhita and under Section 184 of the Motor Vehicles Act. Perusal of therecord in respect of Crime No.147 of 2024 would show that the FIR islodged by Police Head Constable attached to SDPO office, Majalgaon,[2] wp-158-2025-J.odtDistrict Beed. On a secret information received by AssistantSuperintendent of Police, Sub Division, Majalgaon, they had laid the trapfor a vehicle which was to bring sand by illegal means. Around 3:30hours of 22.02.2024, a yellow colour Bharat Benz Hyva having nopassing number was tried to be stopped and was tried to be interceptedby the police party. The vehicle did not stop, however, by taking reverse,it tried to go, however, the police party managed to overpower the driver.The driver informed that the Hyva belongs to the petitioner, thereby thepresent petitioner is involved in the matter. In the second case also i.e.Crime No.287 of 2024, it is almost the same story, however, then in thesecond story, it is tried to be stated that the petitioner came after thedriver informed him and the petitioner had offered amount to the policeofficer, but when the police officer refused and asked the driver to takethe vehicle to the police station, then the present petitioner instigated thedriver to take away the Hyva at a different place. The detaining authorityhas not considered the bail orders passed in both the matters. Both thematters are under investigation and in fact, the detaining authority hasstated on the basis of the documents before him that the presentpetitioner was absconding. The entire order does not show as to whenthe petitioner came to be arrested. The statements of in-camerawitnesses ‘A’ and ‘B’ were taken on 25.09.2024 and 27.09.2024,whereas the detention order came to be passed on 14.11.2024 thereby[3] wp-158-2025-J.odtthere was a delay of two months at least. Under these circumstances,the detention order is unsustainable. 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 Activitiesof 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 relies on the affidavit-in-reply of Mr. AvinashPathak, District Magistrate, Beed to demonstrate as to what was thematerial before him to arrive at the subjective satisfaction. The presentpetitioner is involved in excavating sand illegally and upon obstruction inhis illegal activities, he is going to the extent of giving threats to kill. Thesaid illegal excavation is causing damage to the environment. Even thein-camera witness ‘B’ states that the petitioner had shown him pistolwhile giving threats to him. The petitioner does not carry any legallicence for a firearm and, therefore, it appears that he is involved in theillegal activities. The action for preventive detention taken against the[4] wp-158-2025-J.odtpetitioner has not yielded proper result and, therefore, the detentionorder is legal. The Advisory Board has confirmed the said order and,therefore, the State Government has approved and confirmed the saidorder in due course within the time span available under law.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], (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 while[5] wp-158-2025-J.odtpassing 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. As aforesaid, two offences i.e. CrimeNo.147 of 2024 and Crime No.287 of 2024 were considered by thelearned District Magistrate, Beed for passing the detention order. Boththe cases were still under investigation when the detention order waspassed. Important point to be noted is that after the offence vide CrimeNo.147 of 2024 was registered on 22.05.2024, which was considered forpassing the detention order, it appears that the preventive action underSection 129 of the Bharatiya Nagarik Suraksha Sanhita was initiatedagainst the petitioner on 16.08.2024 i.e. Chapter Case No.23 of 2024and final bond was also taken from the petitioner. Then the next offencevide Crime No.287 of 2024 came to be registered on 24.09.2024. Thequestion is then what has been done with the final bond that was takenunder Section 129 of Bharatiya Nagarik Suraksha Sanhita. Merelypassing the order under Chapter Case and taking bond is not expected.If there is breach of the said bond, then the appropriate authority shouldtake the appropriate action for the said breach. Instead of taking thataction, if drastic action of detention has been taken up, then such action[6] wp-158-2025-J.odtcannot be said to be legal. Another fact to be noted is that while referringboth the matters, the detaining authority has not considered as towhether on the date of passing the detention order, the petitioner hasbeen released on bail or not. When he was arrested when the order waspassed, if he was still in jail, then it ought to have also been seen by thedetaining authority as to whether really the action of preventive detentionis then necessary when the petitioner is in jail. Mere anticipation that hewould be released on bail in future cannot be the reason for passingdetention order and therefore, when the bail orders have not beenconsidered at all, such order of detention cannot be said to be based onsound principles. 8.The in-camera statements of witnesses ‘A’ and ‘B’ were recordedon 25.09.2024 and 27.09.2024 respectively. No doubt, it appears thatSenior Police Inspector, LCB has forwarded the proposal on 03.11.2024and the detention order came to be passed on 14.11.2024 may not showthat there is delay, but if we go by chronology, then the delay emerges.As aforesaid, the in-camera statements of witnesses were recorded on25.09.2024 and 27.09.2024 respectively. The sponsoring authority hadthen put the proposal on 24.10.2024. The verification was done on29.10.2024 and then Senior Police Inspector, LCB forwarded theproposal on 03.11.2024. The District Magistrate/Detaining Authorityverified those in-camera statements on 14.11.2024 and passed the[7] wp-158-2025-J.odtdetention order on the same day. The question therefore would be whythe sponsoring authority was sitting over the file for about more than ayear, if the petitioner was to be branded as dangerous person. Anotheraspect to be noted is that though the detention order has been passedon 14.11.2024, it is stated that it was served on the petitioner on26.11.2024 and then the grounds of detention were served on28.11.2024. No record is produced to show that between 14.11.2024 to26.11.2024, the detaining authority with the help of police had taken theprocedure under Section 7 of M.P.D.A. i.e. for the absconding accused.Further, the facts show that prior to the serving of grounds of detentionon 28.11.2024, the report was already submitted to the StateGovernment under Section 3(3) of MPDA on 18.11.2024 itself. Thatmeans, the grounds of detention were not ready with the detainingauthority on 18.11.2024. It appears that the detaining authority has actedas per the requirement of the sponsoring authority without application ofmind. 9.If we consider the facts of the offence, in one matter the petitionerwas not present at all at the spot and in another matter, it is stated thathe was called by the driver of the Hyva. At the most law and ordersituation had arisen not only as per the contents of both the FIRs, butalso from the in-camera statements of witnesses ‘A’ and ‘B’. We wouldlike to rely on the decision in Joyi Kitty Joseph Vs. Union of India and[8] wp-158-2025-J.odtOrs., [Criminal Appeal No.__ of 2025 (arising out of Special LeavePetition (Crl.) No.16893 of 2024) decided by the Hon’ble SupremeCourt on 06.03.2025], wherein reliance has been placed on the decisionin Ameena Begum v. State of Telangana and others, [(2023) 9 SCC587] and it has been observed that preventive detention is impermissiblewhen the ordinary law of the land is sufficient to deal with the situationwas per incuriam to the Constitution Bench decision in Haradhan Sahavs. State of W.B. [(1975) 3 SCC 198], in the limited judicial reviewavailable to constitutional courts in preventive detention matters.However, in Ameena Begum (Supra), the Hon’ble Supreme Courtexplained the true distinction between a threat to “law and order” andacts “prejudicial to public order” and it is stated that it cannot bedetermined merely by the nature or quality of the act complained of, butin the proper degree and extent of its impact on the society. Further, it isobserved that “When bail was granted by the jurisdictional Court, that tooon conditions, the detaining authority ought to have examined whetherthey were sufficient to curb the evil of further indulgence in identicalactivities; which is the very basis of the preventive detention ordered.The detention order being silent on that aspect, we interfere with thedetention order only on the ground of the detaining authority having notlooked into the conditions imposed by the Magistrate while granting bailfor the very same offence; the allegations in which also have led to the[9] wp-158-2025-J.odtpreventive detention, assailed herein, to enter a satisfaction as towhether those conditions are sufficient or not to restrain the detenu fromindulging in further like activities.” 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 is allowed.II)The detention order dated 14.11.2024 bearing No.2024/RB-Desk-1/Pol-1/MPDA-20 passed by respondent No.2 as well as theapproval order dated 25.11.2024 and the confirmation order dated17.01.2025 passed by respondent No.1, are hereby quashed andset aside.[10] wp-158-2025-J.odtIII)Petitioner - Shaikh Ahemad Shaikh Mohammed 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[11]