High Court
Legal Reasoning
wp-790-2025-J.odtexercise 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.As regards the statements of in-camera witnesses ‘A’ and ‘B’ areconcerned, we have perused the original statements and it appears thatthere is difference of ink in the name of witness ‘A’ and his statement.The difference in the ink is glaring indicating that it might have beenprepared at a later point of time. Even if we take those statements as itis, the incidents in both the cases would show that general public wasnot involved. At the most, law and order situation would have beencreated and not the public 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 detainingauthority to categorize the petitioner as a dangerous person or[9] wp-790-2025-J.odtbootlegger. 11.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 29.03.2025 bearing2025/RB-1/Desk-2/T-4/MPDA/CR-17 passed by respondent No.2 aswell as the approval order dated 07.04.2025 and the confirmationorder dated 14.05.2025 passed by respondent No.1, are herebyquashed and set aside.III)Petitioner – Dilipsingh Harising Pawar 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[10]
Arguments
wp-790-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.790 OF 2025Dilipsingh Harising PawarAge: 38 years, Occu.: Labour,R/o. Extended Nath Nagar,Nanded, Tq. And Dist. Nanded. .. PetitionerVersus1.The State o MaharashtraThrough its Section Officer,Home Department (Special),Mantralaya, Mumbai-32.2.The District Magistrate,Nanded, District Nanded.3.The Superintendent of Jail,Central Prison, Aurangabad. .. Respondents…Ms. Ashwini A. Lomte, Advocate for the petitioner.Mr. Govind A. Kulkarni, APP for respondents/State.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.DATE : 11 AUGUST 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Ms. Ashwini A. Lomte for the petitionerand learned APP Mr. Govind A. Kulkarni for the respondents – State.[1] wp-790-2025-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 29.03.2025bearing 2025/RB-1/Desk-2/T-4/MPDA/CR-17 passed by respondent No.2as well as the approval order dated 07.04.2025 and the confirmationorder dated 14.05.2025 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. He submits thatthough several offences were registered against the petitioner, yet forthe purpose of passing the impugned order, only one offence wasconsidered i.e. Crime No.446 of 2024 dated 14.12.2024 registered withItwara Police Station, District Nanded for the offences punishable underSections 140(1), 115(2), 351(3), 352, 3(5) of Bharatiya Nyaya Sanhita,2023. Learned Advocate for the petitioner submits that the detainingauthority had considered Crime No.446 of 2024 as well as two in-camerastatements for passing the detention order. Perusal of the FIR in CrimeNo.446 of 2024 would show that it was against unknown person andeven if the contents of the FIR are taken as it is, then it would haveraised only law and order situation at the most and not the public order.[2] wp-790-2025-J.odtFurther, he submits that in the said offence, the petitioner came to bereleased on bail by order dated 28.03.2025, however, the bail order wasnot considered by the detaining authority while passing the impugnedorder. As regards in-camera witnesses ‘A’ and ‘B’ are concerned, theincident in both the cases would show that general public was notinvolved. At the most, law and order situation would have been createdand not the public order. Further, he submits that there is delay inpassing the detention order, which has not been explained by therespondents and, therefore, the impugned order deserves to be setaside. 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 is relying upon the affidavit-in-reply filed byMr. Rahul Kardile, District Magistrate, Nanded. He supports the[3] wp-790-2025-J.odtdetention order passed by him and tries to demonstrate as to how hehad arrived at the conclusion that the petitioner is a dangerous person.The subjective satisfaction was arrived at on the basis of the in-camerastatements and the contents of the FIR. After the subjective satisfaction,the detaining authority has passed a reasoned order, which is thenconfirmed with the opinion of the Advisory Board and, thereafter,confirmed by the State Government on 14.05.2025. Therefore, no faultcan 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];(iv)Pushkar Mukherjee and Ors. Vs. The State of WestBengal, [AIR 1970 SC 852];(v) Phulwari Jagdambaprasad Pathak Vs. R. H. Mendoncaand Ors., (2000 (6) SCC 751) and;(vi)Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, [(1981) 4 SCC 647].[4] wp-790-2025-J.odt7.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 thestatements of in-camera witnesses ‘A’ and ‘B’ were taken on 13.10.2024.Proposal was then submitted by sponsoring authority on 27.12.2024 andit was forwarded to Assistant Commissioner of Police. AssistantCommissioner of Police had then forwarded it to Superintendent ofPolice and after verification of the statements on 05.12.2024,Superintendent of Police had then forwarded it to District Magistrate andthe detention order has been passed on 29.03.2025. That means, thereis delay in passing the detention order. The affidavit-in-reply byMr. Rahul Kardile, the District Magistrate, Nanded/detaining authority, istotally silent on the point of delay. This ground alone is sufficient to setaside the detention order. Further, the detaining authority has consideredonly one offence i.e. Crime No.446 of 2024 dated 14.12.2024 and two in-camera statements for passing the detention order. Perusal of thecontents of the FIR would show that on 13.12.2024 at about 9.00 p.m.,[5] wp-790-2025-J.odtwhen the informant and one Sohail Ali Layak Ali were doing work of hisprivate vehicle at Lucky Welding and Works, at that time, one unknownperson along with five to seven other persons came and took theinformant away in white Tata Safari Car and by saying that “You aretalking a lot against the leader. After this, stop talking against the leader”,he was threatened to kill. Thereafter, the FIR was registered against theunknown persons. It is stated that thereafter the investigating officer hasconducted the investigation. During investigation, an iron dagger hasbeen seized from the possession of the petitioner. Further, thestatements of the witnesses have been recorded and it was found thatthe petitioner has committed the crime. If the contents of the FIR even iftaken as it is would show that general public was not involved and at themost law and order situation would have been created and not the publicorder. Further, it is to be noted that though the petitioner has beenreleased on bail on 28.03.2025 in the said offence, however, thedetaining authority has not considered the bail order while passing thedetention order. Here, 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 observed[6] wp-790-2025-J.odtthat 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.[(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.” [7] wp-790-2025-J.odt8.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 andnot 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 the[8]