High Court

Legal Reasoning

wp-185-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.185 OF 2025Nagesh s/o Uttamrao LadeAge: 25 years, Occu.: Labour,R/o. Mendhale (Kh.), Tq. Ardhapur,District Nanded .. PetitionerVersus1.The State of MaharashtraThrough Secretary of Home Department,Mantrlaya, Mumbai.2.District MagistrateOffice of District Magistrate,Nanded.3.SuperintendentCentral Prison, Harsul,Chh. Sambhajinagar,Tq. And Dist. Chh. Sambhajinagar. .. Respondents…Ms. Maya Jamdhade h/f Mr. N. R. Jamdhade, Advocate for the petitioner.Mr. V. K. Kotecha, APP for respondents/State.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.DATE : 08 APRIL 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Ms. Maya Jamdhade holding for learnedAdvocate Mr. N. R. Jamdhade for the petitioner and learned APP Mr. V.K. Kotecha for the respondents – State.[1] wp-185-2025-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 07.11.2024bearing No.2024/RB-1/Desk-2/T-4/MPDA/CR-57 passed by respondentNo.2 as well as the approval order dated 14.11.2024 and theconfirmation order dated 02.01.2025 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, four offences wereconsidered i.e. (i) Crime No.222 of 2024 registered with Ardhapur PoliceStation, District Nanded for the offences punishable under Section 395of Indian Penal Code, under Section 4 punishable under Section 25 ofthe Arms Act, (ii) Crime No.210 of 2024 registered with Ardhapur PoliceStation, District Nanded for the offences punishable under Sections 399,401, 402 of Indian Penal Code and under Sections 4 punishable underSection 25 of the Arms Act, (iii) Crime No.400 of 2024 registered withNanded Rural Police Station, District Nanded for the offences punishable[2] wp-185-2025-J.odtunder Section 380 of Indian Penal Code and (iv) Crime No.175 of 2024registered with Shivajinagar Police Station, District Nanded for theoffences punishable under Sections 379 read with Section 34 of IndianPenal Code. Learned Advocate for the petitioner submits that though thepetitioner as per the impugned order was involved in all ten offences, thedetaining authority has considered only four offences. If we consider thecontents of the FIR, it can be seen that those offences were personal i.e.individualistic and public was not affected by the alleged acts of thepetitioner. He submits that though the petitioner has been released onbail in all of the offences, which were considered, yet the bail ordershave not been considered at all. Even the statements of in-camerawitnesses ‘A’ and ‘B’ would show that at the most the alleged acts wouldhave caused law and order situation and not the public order. LearnedAdvocate for the petitioner further submits that there is delay in passingthe order, which has not been explained by the respondents. A specificground was also raised in the petition that the statements of in-camerawitnesses ‘A’ and ‘B’ were not supplied to the petitioner. In the affidavit-in-reply, this point has not been clarified or denied. When vitaldocuments have been withheld by the detaining authority from thepetitioner, such order cannot be allowed to sustain.5.Per contra, the learned APP strongly supports the action takenagainst the petitioner. He submits that the petitioner is a dangerous[3] wp-185-2025-J.odtperson 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 relied on the affidavit-in-reply of Mr. AbhijitRaut, the District Magistrate, Nanded/detaining authority. He supportsthe detention order passed by him and tries to demonstrate as to how hehad arrived at the subjective satisfaction. He further states that his orderhas been approved by the State Government and also by the AdvisoryBoard. Thereafter, the confirmation has been given. He further submitsthat the preventive action under Section 110 of the Code of CriminalProcedure has not deterred the petitioner from staying away fromcommitting offences and, therefore, the State Government had nooption, but to detain the petitioner under the detention 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], [4] wp-185-2025-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. At the outset, it is to be noted that perusalof the facts of all the four offences which were considered for passingthe detention order would show that at the most law and order situationwould have been created and not the public order. Further, it is to be[5] wp-185-2025-J.odtnoted that the statements of in-camera witnesses ‘A’ and ‘B’ wererecorded on 15.08.2024 and 14.08.2024 respectively. The proposal wasthen submitted by the sponsoring authority on 16.08.2024. It appearsthat the confidential statements came to be verified on 16.09.2024 and17.09.2024. The DCP then forwarded the said proposal to the detainingauthority on 26.09.2024 and the detention order has been passed on07.11.2024. That means, there is delay in passing the detention order.The affidavit-in-reply by Mr. Abhijit Raut, District Magistrate, Nanded,who is the detaining authority, is totally silent on the point of delay. Thisground alone is sufficient to set aside the detention order. Further, thereis absolutely no answer to the ground raised by the petitioner that thecopies of in-camera statements of witnesses ‘A’ and ‘B’ were notsupplied to the petitioner. When such necessary documents were notsupplied at all, it amounts to violation of the fundamental right of thepetitioner. Another important point to be noted is that though thepetitioner was released on bail in all the offences which were consideredfor passing the detention order, yet the detaining authority has notconsidered the bail orders while passing the detention order. We wouldlike to rely on the decision in Joyi Kitty Joseph Vs. Union of India andOrs., [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 decision[6] wp-185-2025-J.odtin 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 thepreventive detention, assailed herein, to enter a satisfaction as towhether those conditions are sufficient or not to restrain the detenu fromindulging in further like activities.” [7] wp-185-2025-J.odt8.As regards in-camera statements of witnesses ‘A’ and ‘B’ areconcerned, the incidents in both the cases would show that generalpublic was not involved. At the most law and order situation would havebeen created. 9.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. 10.For the aforesaid reasons, the petition deserves to be allowed.Hence, following order is passed :-ORDERI)The Writ Petition stands allowed.II)The detention order dated 07.11.2024 bearing No.2024/RB-1/Desk-2/T-4/MPDA/CR-57 passed by respondent No.2 as well as theapproval order dated 14.11.2024 and the confirmation order dated02.01.2025 passed by respondent No.1, are hereby quashed andset aside.[8] wp-185-2025-J.odtIII)Petitioner – Nagesh s/o Uttamrao Lade shall be releasedforthwith, if not required in any other offence.IV)Rule is made absolute in the above terms. [ SANJAY A. DESHMUKH ][ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[9]