High Court · 2025
Legal Reasoning
wp-894-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.894 OF 2025Taufiq Ismail Shaikh @ ShahbarfiwaleAge: 25 years, Occu. Labour,R/o Shahbarfiwale Galli Paranda,Tq. Paranda, Dist. Dharashiv... PetitionerVersus1.The State of MaharashtraThrough Section Officer,Home Department (Special)Mantralaya, Mumbai.2.The District Collector Dharashiv,District: Dharashiv.3.The Police Inspector,Police Station Paranda, Tq. Paranda,District: Dharashiv.4.The Superintendent of Police,Chhatrapati Sambhajinagar,Central Prison, Harsul,District Chhatrapati Sambhajinagar.. Respondents...Mr. Shubham D. Jayabhar, Advocate for the Petitioner.Mr. A. M. Phule, APP for Respondent Nos.1 to 4/State.... CORAM : SMT. VIBHA KANKANWADI & SUSHIL M. GHODESWAR, JJ.DATE : 22 AUGUST 2025 JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Mr. Shubham D. Jayabhar for thepetitioner and learned APP Mr. A. M. Phule for the respondents – State.[1] wp-894-2025-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 06.02.2025bearing No.2025/DC/MAG-3/CR-6 passed by respondent No.2 as well asthe approval order dated 14.02.2025 and the confirmation order dated28.04.2025 passed by respondent No.1, by invoking the powers of thisCourt 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 that thedetaining authority while passing the detention order has considered allthe five offences i.e. (i) Crime No.62 of 2020 dated 20.03.2020registered with Paranda Police Station, District Osmanabad for theoffences punishable under Sections 324, 504, 506 read with Section 34of Indian Penal Code, under Section 3(1)(r), 3(1)(s), 3(2)(va) ofScheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989, (ii) Crime No.180 of 2020 dated 11.07.2020 registered withParanda Police Station, District Osmanabad for the offences punishableunder Sections 326, 504 of Indian Penal Code, (iii) Crime No.148 of2023 dated 31.05.2023 registered with Paranda Police Station, DistrictOsmanabad for the offences punishable under Sections 324, 323 read[2]
Decision
wp-894-2025-J.odtwith Section 34 of Indian Penal Code, (iv) Crime No.246 of 2023 dated23.10.2023 registered with Paranda Police Station, District Osmanabadfor the offences punishable under Section 307, 324 of Indian Penal Codeand (v) Crime No.156 of 2024 dated 10.08.2024 registered withParanda Police Station, District Osmanabad for the offences punishableunder Sections 3 punishable under Section 25 of the Indian Arms Act.Learned Advocate for the petitioner submits that the detaining authorityhas considered old and stale cases to come to the conclusion that thepetitioner is a dangerous person. The detention order suffers from livelink. The material placed before the detaining authority has not beenconsidered by him properly and, there was no subjective satisfactionarrived at before passing of the order. He further submits that thoughthe petitioner has been released on bail in all of the offences, which wereconsidered, yet the bail orders have not been considered at all by thedetaining authority. He further submits that as regards statements of in-camera witnesses ‘A’ and ‘B’ are concerned, the incident in both thecases are personal in nature. At the most law and order situation wouldhave been created. Therefore, the impugned order is illegal and cannotbe allowed to sustain. 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 Activities[3] wp-894-2025-J.odtof 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 relies on the affidavit-in-reply filed by Dr.Sachin Ombase, the then District Magistrate, Dharashiv/detainingauthority. He supports the detention order passed by him and tries todemonstrate as to how he had arrived at the conclusion that thepetitioner is a dangerous person. The subjective satisfaction was arrivedat on the basis of the in-camera statements and the contents of theFIRs. After the subjective satisfaction, the detaining authority has passeda reasoned order, which is then confirmed with the opinion of theAdvisory Board and, thereafter, confirmed by the State Government on28.04.2025. Learned APP submits that in spite of involvement of thepetitioner in so many cases his criminal activities have not beencurtailed. 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 :-[4] wp-894-2025-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. At the outset, it is to be noted that asregards first four offences are concerned i.e. Crime No.62 of 2020,[5] wp-894-2025-J.odtCrime No.180 of 2020, Crime No.148 of 2023 and Crime No.246 of2023, there was no live link and therefore, these offences cannot beconsidered for passing the detention order on 06.02.2025. As regardsthe last offence i.e. Crime No.156 of 2024 is concerned, the contents ofthe FIR even if taken as it is would show that it is individual in nature andat the most law and order situation would have been created. Further, inrespect of all the offences which were considered the petitioner hasbeen released on bail by the competent Court, however, the bail ordershave not been considered by the detaining authority 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 observedthat 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 to[6] wp-894-2025-J.odtpublic 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.” 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 also[7] wp-894-2025-J.odtlaw 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 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 in-camera witnesses ‘A’ and ‘B’ wouldshow that the incidents in both the cases are personal in nature and[8] wp-894-2025-J.odtgeneral public is not involved. Those statements would have created atthe most law and order situation 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.II)The detention order dated 06.02.2025 bearingNo.2025/DC/MAG-3/CR-6 passed by respondent No.2 as well as theapproval order dated 14.02.2025 and the confirmation order dated28.04.2025 passed by respondent No.1, are hereby quashed andset aside.[9] wp-894-2025-J.odtIII)Petitioner – Taufiq Ismail Shaikh @ Shahbarfiwale shall bereleased forthwith, if not required in any other offence.IV)Rule is made absolute in the above terms. [ SUSHIL M. GHODESWAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[10]