High Court

Legal Reasoning

wp-375-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.375 OF 2025Vaibhav s/o Raju HundeAge: 22 years, Occu.: Educated UnemployedR/o. Near Datta Mandir, HADCO, Nanded,District Nanded (at present in jail).. PetitionerVersus1.The State of MaharashtraThrough Addl. Chief Secretary,Home Department (Special),Mantralaya, Mumbai-32.2.The District Magistrate, Nanded,Office of the District Magistrate,Nanded.3.Superintendent of Police,S. P. Office, Nanded.4.Superintendent, Central Jail,Chh. Sambhajinagar. .. Respondents…Ms. Ranjana Reddy, Advocate for the petitioner (Appointed ThroughLegal Aid).Mr. A. R. Kale, APP for respondents/State.... [1] wp-375-2025-J.odt CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.DATE : 26 JUNE 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Ms. Ranjana Reddy for the petitioner(Appointed Through Legal Aid) and learned APP Mr. A. R. Kale forrespondents – State.2.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 20.12.2024bearing No.2024/RB-1/Desk-2/T-4/MPDA/CR-66 passed by respondentNo.2 as well as the approval order dated 27.12.2024 and theconfirmation order dated 06.02.2025 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. She submits thatthough several offences were registered against the petitioner, yet forthe purpose of passing the impugned order, two offences were[2] wp-375-2025-J.odtconsidered i.e. Crime No.745 of 2024 registered with Nanded RuralPolice Station, District Nanded for the offences punishable under Section311 of Bhartiya Nyaya Sanhita and Crime No.176 of 2024 registered withMudkhed Police Station, District Nanded for the offences punishableunder Sections 109, 132, 3(5) of Bhartiya Nyaya Sanhita, under Section4 punishable under Section 25 of the Arms Act and under Section 7 ofthe Criminal Law Amendment Act. Learned Advocate for the petitionersubmits that two offences i.e. Crime No.745 of 2024 dated 19.08.2024and Crime No.176 of 2024 dated 18.08.2024 as well as two in-camerastatements have been considered by the detaining authority for passingthe detention order. However, the order would demonstrate that therewas no such material which would give subjective satisfaction to thedetaining authority to pass the order of detention. The ordinary law wassufficient to take care of the alleged criminal activities of the petitioner.The bail order has not been considered by the learned DistrictMagistrate. The in-camera statements were based on unbelievable storyand, therefore, such illegal order deserves to be quashed and set aside. 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”). The[3] wp-375-2025-J.odtdetaining 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 filed byMr. Abhijit Raut, the then District Magistrate, Nanded, presently workingas Joint Commissioner, SGST, Chhatrapati Sambhajinagar. It has beenstated in the affidavit-in-reply as to what was the material before him toarrive at the subjective satisfaction. Taking into consideration all thecriminal activities of the petitioner it can be concluded that he was thedangerous person as defined under M.P.D.A. and unless detention, hiscriminal activities could not have been curtailed. The threat wasapparent from the statements of the in-camera witnesses. Learned APPalso submits that there was no delay at all committed by any authority ineither forwarding the proposal or passing the order. The Advisory Boardhad heard the petitioner and then gave its approval to the order.Thereupon, the confirmation order of the detention has been passed bythe respondent/State. 6.Before considering the case, we would like to take note of thelegal position as is emerging in the following decisions :-[4] wp-375-2025-J.odt(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 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, though in the impugned order, inseven offences, it is stated that the involvement of the petitioner is[5] wp-375-2025-J.odtquoted, however, for passing the order of detention, it appears that thelearned District Magistrate considered only two offences i.e. CrimeNo.745 of 2024 and Crime No.176 of 2024. Perusal of the impugnedorder would show that as regards the offence vide Crime No.745 of 2024is concerned, the investigation was still pending when the order waspassed, however, there is absolutely no mention about the date on whichthe petitioner was released on bail by the concerned Court. Though thepetitioner in his petition has not given the date of the bail order, butmakes a categorical statement that in respect of Crime No.745 of 2024,he has been released on bail. In his order, the learned Magistrate hasobserved the date of arrest and it is stated that the said crime is underpolice investigation. The impression that is given by the learned DistrictMagistrate in the order is that the petitioner has not been released inconnection with Crime No.745 of 2024. If he has not been released, thenwhy the District Magistrate should take the action for detention would bethen the question. Even in his affidavit-in-reply, he is then silentregarding the position whether the petitioner was released on bail or not.Further, as regards Crime No.176 of 2024 registered with MudkhedPolice Station is concerned, the petitioner was arrested on 19.08.2024and he has been released on bail on 25.10.2024. In the entire file, whichis made available, we cannot see the bail order. The bail order has notbeen considered at all by the learned District Magistrate. We would like[6] wp-375-2025-J.odtto 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 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 bail[7] wp-375-2025-J.odtfor 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.” 8.Further, reliance can be placed on the decision in Dhanyam Vs.State of Kerala and Ors., [Criminal Appeal No.2897 of 2025 (Arisingout of SLP (Crl.) No.14740 of 2024) decided on 06.06.2025], whereinit has been observed that :-“17.From perusal of Section 2(j), it is evident that aperson who indulges in activities “harmful to maintenanceof public order” is sought to be covered by the Act. ThisCourt in Sk. Nazneen Vs. State of Telangana, [(2023) 9SCC 633] had emphasized on the distinction betweenpublic order as also law and order situations : “18.In two recent decisions [BankaSneha Sheela v. State of Telangana, (2021) 9SCC 415 : (2021) 3 SCC (Cri.) 446; Mallada K.Sri Ram v. State of Telangana, (2023) 13 SCC537: 2022 SCC OnLine SC 424], this Court hadset aside the detention orders which werepassed, under the same Act i.e. the presentTelangana Act, primarily relying upon thedecision in Ram Manohar Lohia [Ram ManoharLohia v. State of Bihar, 1965 SCC OnLine SC9]and holding that the detention orders were not[8] wp-375-2025-J.odtjustified as it was dealing with a law and ordersituation and not a public order situation.”19.…...The observations made in the detention order donot ascribe any reason as to how the actions of thedetenu are against the public order of the State. Asdiscussed above, given the extraordinary nature of thepower of preventive detention, no reasons are assignedby the detaining authority, as to why and how the actionsof the detenu warrant the exercise of such an exceptionalpower.20.Moreover, it has been stated therein by theauthority that the detenu is violating the conditions of bailimposed upon him in the cases that have beenconsidered for passing the order of detention. However,pertinently, no application has been filed by therespondent-State in any of the four cases, allegingviolation of such conditions, if any, and moreover, havenot even been spelt out here.”9.Further, as regards in-camera statements of witnesses ‘A’ and ‘B’are concerned, we would say that at the most law and order situationwould have arisen and not the public order and, therefore, we concludethat there was no such material before the learned District Magistrate,which would have given him subjective satisfaction that only detention ofthe petitioner would curtail the criminal activities of the petitioner and theordinary law will not give the same result. The fundamental rights of the[9] wp-375-2025-J.odtcitizen are then jeopardized because of such action, which is thendeprecated by the Hon’ble Supreme Court by saying the law under thepreventive detention as a draconian rule. 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.Further, it is to be noted that the co-accused i.e. Atish GangadharShinde, against whom the detention order was passed on similargrounds, has challenged the same in Criminal Writ Petition No.436 of2025. By judgment and order dated 25.06.2025, this Court has quashedand set aside the said detention order. Therefore, on the ground ofparity also, the impugned order passed against the petitioner deservesto be quashed and set aisde.12.For the aforesaid reasons, the petition deserves to be allowed.Hence, following order is passed :-[10] wp-375-2025-J.odtORDERI)The Writ Petition is allowed.II)The detention order dated 20.12.2024 bearingNo.2024/RB-1/Desk-2/T-4/MPDA/CR-66 passed by respondentNo.2 as well as the approval order dated 27.12.2024 and theconfirmation order dated 06.02.2025 passed by respondent No.1,are hereby quashed and set aside.III)Petitioner - Vaibhav s/o Raju Hunde 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[11]