High Court
Legal Reasoning
wp-841-2025-J.odtpassing 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, the incidents in both the cases would show that generalpublic was not involved. At the most, law and order situation would havebeen created 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 orbootlegger. 11.For the aforesaid reasons, the petition deserves to be allowed.Hence, following order is passed :-ORDERI)The Writ Petition stands allowed.[8] wp-841-2025-J.odtII)The detention order dated 06.05.2025 bearingNo.2025/MAG/MPDA/Desk-2/WS-143 passed by respondent No.2 aswell as the approval order dated 15.05.2025 and the confirmationorder dated 03.07.2025 passed by respondent No.1, are herebyquashed and set aside.III)Petitioner – Rohan Namdeo Bhalekar 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-841-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.841 OF 2025Rohan Namdeo BhalekarAge: 24 years, Occu.: Labour,R/o. Nearby S.S.C. Borad,Coil Nagar, Latur,Taluka and District Latur. .. PetitionerVersus1.The State of MaharashtraThrough Section Officer,Home Department (Special),2nd Floor, Mantralaya, Mumbai-32.2.The District Magistrate,Office of District Magistrate, Latur.3.The Superintendent,Central Prison,Harsool, Aurangabad. .. Respondents…Ms. Sunita G. Sonawane, Advocate for the petitioner.Mr. N. R. Dayama, APP for the respondents/State.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.DATE : 13 AUGUST 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Ms. Sunita G. Sonawane for thepetitioner and learned APP Mr. N. R. Dayama for the respondents –State.[1] wp-841-2025-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 06.05.2025bearing No.2025/MAG/MPDA/Desk-2/WS-143 passed by respondentNo.2 as well as the approval order dated 15.05.2025 and theconfirmation order dated 03.07.2025 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, only one offence wasconsidered i.e. Crime No.54 of 2025 dated 10.02.2025 registered withShivaji Nagar Police Station, District Latur for the offences punishableunder Sections 118(2), 118(1), 115(2), 352, 79, 333, 324, 189(2), 191(2),191(3), 190 of Bharatiya Nyaya Sanhita, 2023 and under Sections 4punishable under Section 25 of the Indian Arms Act. Learned Advocatefor the petitioner submits that the detaining authority had consideredCrime No.54 of 2025 as well as two in-camera statements for passingthe detention order. Further, he submits that in the said offence, the[2] wp-841-2025-J.odtpetitioner came to be released on bail by order dated 28.03.2025,however, the bail order was not considered by the detaining authoritywhile passing the impugned order. Similarly, as regards in-camerawitnesses ‘A’ and ‘B’ are concerned, the incident in both the cases wouldshow that general public was not involved. At the most, law and ordersituation would have been created and not the public order and,therefore, the impugned order deserves to be 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”). 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 byMs. Varsha Thakur-Ghuge, District Magistrate, Latur. She supports thedetention order passed by her and tries to demonstrate as to how shehad arrived at the conclusion that the petitioner is a dangerous person.The subjective satisfaction was arrived at on the basis of the in-camera[3] wp-841-2025-J.odtstatements 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 03.07.2025. 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].7.Taking into consideration the legal position as summarized above,it is to be noted herein as to whether the detaining authority while[4] wp-841-2025-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. At the outset, it is to be noted that thedetaining authority has considered only one offence i.e. Crime No.54 of2025 dated 09.02.2025 and two in-camera statements for passing thedetention order. In the said offence, the contents of the FIR even if takenas it is would show that general public was not involved and at the mostlaw and order situation would have been created and not the publicorder. Further, it is to be noted that though in the proposal it is mentionedthat the petitioner has been released on bail on 28.03.2025 in the saidoffence, however, while passing the detention order, there is absolutelyno reference to the said bail order by the detaining authority. Here, wewould like to rely on the decision in Joyi Kitty Joseph Vs. Union ofIndia and Ors., [Criminal Appeal No.___ of 2025 (arising out ofSpecial Leave Petition (Crl.) No.16893 of 2024) decided by theHon’ble Supreme Court on 06.03.2025], wherein reliance has beenplaced on the decision in Ameena Begum v. State of Telangana andothers, [(2023) 9 SCC 587] and it has been observed that preventivedetention is impermissible when the ordinary law of the land is sufficient[5] wp-841-2025-J.odtto deal with the situation was per incuriam to the Constitution Benchdecision in Haradhan Saha vs. State of W.B. [(1975) 3 SCC 198], inthe limited judicial review available to constitutional courts in preventivedetention matters. However, in Ameena Begum (Supra), the Hon’bleSupreme Court explained the true distinction between a threat to “lawand order” and acts “prejudicial to public order” and it is stated that itcannot be determined merely by the nature or quality of the actcomplained of, but in the proper degree and extent of its impact on thesociety. Further, it is observed that “When bail was granted by thejurisdictional Court, that too on conditions, the detaining authority oughtto have examined whether they were sufficient to curb the evil of furtherindulgence in identical activities; which is the very basis of the preventivedetention ordered. The detention order being silent on that aspect, weinterfere with the detention order only on the ground of the detainingauthority having not looked into the conditions imposed by theMagistrate while granting bail for the very same offence; the allegationsin which also have led to the preventive detention, assailed herein, toenter a satisfaction as to whether those conditions are sufficient or not torestrain the detenu from indulging 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], wherein[6] wp-841-2025-J.odtit 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 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 for[7]