High Court
Legal Reasoning
wp-647-2025-J.odtnot a public order situation.”19.…...The observations made in the detention order donot ascribe any reason as to how the actions of the detenu areagainst the public order of the State. As discussed above,given the extraordinary nature of the power of preventivedetention, no reasons are assigned by the detaining authority,as to why and how the actions of the detenu warrant theexercise of such an exceptional power. 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 been considered forpassing the order of detention. However, pertinently, noapplication has been filed by the respondent-State in any ofthe four cases, alleging violation of such conditions, if any, andmoreover, have not even been spelt out here.”9.Perusal of the statements of witnesses ‘A’ and ‘B’ would show thatthe incidents in both the cases were individual in nature and therefore, atthe most law and order situation would have been created and not thepublic order.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 detaining[8] wp-647-2025-J.odtauthority 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/WS-306 passed by respondent No.2 as well asthe approval order dated 22.11.2024 and the confirmation orderdated 09.04.2025 passed by respondent No.1, are hereby quashedand set aside.III)Petitioner - Sonu s/o Santosh Jadhav 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]
Arguments
wp-647-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.647 OF 2025Sonu s/o Santosh JadhavAge: 25 years, Occu.: Labour,R/o. Near Chate Kirana,Nutan Vasahat, Jalna... PetitionerVersus1.The State of MaharashtraThrough its Section Officer,Home Department (Special),Mantralaya, Mumbai-322.The District Magistrate,Jalna, Taluka and Dist. Jalna.3.The Superintendent of Jail,Central Jail, Harsool,Aurangabad, District Aurangabad. .. Respondents…Mr. Shailendra S. Gangakhedkar, Advocate for the petitioner.Mrs. R. P. Gour, APP for respondents/State.… CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.DATE : 22 JULY 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Mr. Shailendra S. Gangakhedkar for thepetitioner and learned APP Mrs. R. P. Gour for the respondents – State.[1] wp-647-2025-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/WS-306 passed by respondentNo.2 as well as the approval order dated 22.11.2024 and theconfirmation order dated 09.04.2025 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. (i) Crime No.338 of 2024 dated 03.07.2024 registeredwith Kadim Jalna Police Station, District Jalna for the offencespunishable under Sections 118(2), 118(1), 308(2), 351(2)(3), 3(5) ofBharatiya Nyaya Sanhita, 2023 and (ii) Crime No.427 of 2024 dated20.10.2024 registered with Kadim Jalna Police Station, District Jalna forthe offences under Section 3 punishable under Section 25 of the IndianArms Act. Learned Advocate for the petitioner submits that though thepetitioner is stated to be involved in nine offences, only two offences i.e.[2] wp-647-2025-J.odtCrime No.338 of 2024 and Crime No.427 of 2024 were considered forpassing the detention order. Both these offences were still underinvestigation. If the contents of both the FIRs are considered, then it canbe seen that they would have raised only law and order situation at themost and not the public order. Further, it is stated that in Crime No.338 of2024, the petitioner has been released on bail 03.09.2024 and in CrimeNo.427 of 2024 he has been released on 23.10.2024 by the competentCourt. The detaining authority had not considered the bail orders passedby the competent Court, when in fact the detention order came to bepassed on 14.11.2024. Similarly, as regards the statements ofconfidential witnesses ‘A’ and ‘B’ are concerned, at the most thosestatements would have raised law and order situation and not the publicorder. 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 not[3] wp-647-2025-J.odtcoming forward to lodge report against him and, therefore, it affects thepublic order. Learned APP relied on the affidavit-in-reply of Dr.Shrikrishna Panchal, the District Magistrate, Jalna/detaining authority.He supports the detention order passed by him and tries to demonstrateas to how he had arrived at the subjective satisfaction. He further statesthat his order has been approved by the State Government and also bythe Advisory Board. Learned APP submits that in spite of involvement ofthe petitioner in so many cases, his criminal activities have not beencurtailed. The criminal antecedents can be taken into consideration forpassing the detention order. There is no illegality or error committed bythe learned District Magistrate in holding the petitioner as a dangerousperson. Therefore, no fault can be found in the impugned 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], (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];[4] wp-647-2025-J.odt(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. The first and the foremost fact to be notedis that only two offences have been considered by the detaining authorityi.e. Crime No.338 of 2024 dated 03.07.2024 and Crime No.427 of 2024dated 20.10.2024. The incident in both the FIRs would show that generalpublic was not involved. At the most law and order situation would havebeen arisen and not the public order. In fact, the petitioner has beenreleased on bail in both the offences on 30.09.2024 and 18.09.2024respectively, but the detaining authority has not considered the bail[5] wp-647-2025-J.odtorders while passing the detention order. Here, we would like to rely onthe decision in Joyi Kitty Joseph Vs. Union of India and Ors.,[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 not[6] wp-647-2025-J.odtlooked 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.” 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 a personwho indulges in activities “harmful to maintenance of publicorder” is sought to be covered by the Act. This Court in Sk.Nazneen Vs. State of Telangana, [(2023) 9 SCC 633] hademphasized on the distinction between public order as alsolaw and order situations : “18.In two recent decisions [Banka Sneha Sheelav. State of Telangana, (2021) 9 SCC 415 : (2021) 3SCC (Cri.) 446; Mallada K. Sri Ram v. State ofTelangana, (2023) 13 SCC 537: 2022 SCC OnLineSC 424], this Court had set aside the detentionorders which were passed, under the same Act i.e.the present Telangana Act, primarily relying uponthe decision in Ram Manohar Lohia [Ram ManoharLohia v. State of Bihar, 1965 SCC OnLine SC9] andholding that the detention orders were not justifiedas it was dealing with a law and order situation and[7]