High Court
Legal Reasoning
1Writ Petition 906 of 2025.odtTHE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL WRIT PETITION NO. 906 OF 2025Vijay Raju Pathare, Age: 34 years, Occ: - Labour, R/o: - Siddharthnagar, Municipal Colony, Tq. and Dist. Ahilyanagar.... PetitionerVersus1.The State of MaharashtraThrough Section Officer, Home Department (Special), 2nd Floor, Mantralay, Mumbai-32.2. The District Magistrate,Office of District Magistrate, Ahilyanagar.3.The Superintendent,Central Prison, Harsool, Aurangabad.... Respondents…Ms. Sunita G. Sonawane, Advocate for Petitioner.Mr. A. D. Wange, APP for Respondents.…CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE :05th August, 2025. 2Writ Petition 906 of 2025.odtJ U D G M E N T : (Per Sanjay A. Deshmukh, J.) 1 Rule. Rule made returnable forthwith. The petition isheard finally with the consent of the learned Advocates for the parties.2By invoking the powers of this Court under Article 226 ofthe Constitution of India, the petitioner has challenged the order ofdetention order dated 5th June, 2025 passed by respondent No.1,whereby detention order dated 25th March, 2025, passed by thelearned District Magistrate, Ahilyanagar, in exercise of powersconferred under Section 3(1) of the Maharashtra Prevention ofDangerous Activities of Slumlords, Bootleggers, Drug-Offenders,Dangerous Persons, Video Pirates, Sand Smugglers and Personsengaged in Black Marketing of Essential Commodities Act, 1981(hereinafter referred to as the “MPDA Act”) has been confirmed. 3The learned counsel for the petitioner has pointed out theimpugned order and the material, which was relied upon and suppliedto the petitioner by the detaining authority at the time of passing of theimpugned order. The learned counsel for the petitioner pointed outthe grounds of detention in the impugned order, as per the followingcharts:- 3Writ Petition 906 of 2025.odtOffencesSr.No.PoliceStationCrime register No. and SectionFiling DateCurrentPosition1.Tophkhana272/2016 u/s 384, 427, 326, 143, 147,148, 149, 504, 506 & 37(1)(3) of Mah.Police Act03.09.2016CourtPending RCCNo 441/20172.Tophkhana1/2018 u/s 395, 307, 427, 324, 323,504, 506 of I.P.C r.w. 4/25, 3/25 ofArms Act & u/s 37(1)(3)/135 of Mah.Police Act.01.01.2018CourtPending RCCNo.304/20213.Tophkhana901/2019 u/s 452, 504, 506, 34 of IPCand u/s 142 of Mah. Police Act.14.06.2019CourtPending RCCNo.152/20214.Tophkhana7458/2020 u/s 188 of I.P.C and u/s142 (2) of Mah. Police Act.13.10.2020CourtPending SCCNo.5577/20205.Tophkhana7494/2020 u/s 452, 504, 506, of I.P.C18.10.2020CourtPending RCCNo.865/20216.Tophkhana7603/2020 u/s 353, 332, 143, 147,149, 504, 506 of I.P.C.10.11.2020CourtPending RCCNo.384/20217.Tophkhana228/2021 u/s 395, 386, 452, 427,323, 504, 506, 120(b), 201 of I.P.C,142 of Mah. Police Act. and 3(1)(ii),3(2) and 3(4) of MOCCA.20.03.2021CourtPendingSpecial CaseNo.360/20218.Tophkhana385/2021 u/s 323, 324, 506, 504, 34of I.P.C.19.05.2021CourtPending RCCNo.1080/20219.Tophkhana71/2024, u/s 324, 323, 143, 147, 148,149, 506, 34 of IPC17.01.2024UnderInvestigation10.BhingarCamp69/2024 u/s 324, 323, 504, 506, 34 ofIPC28.01.2024CourtPending RCCNo 640/202411.Tophkhana475/2024 u/s 307, 143, 147, 148, 149,323, 324, 504, 506, 427 of IPC, 37(1)(3)/135 of Mah. Police Act, and 7 ofCriminal Law Amendment Act13.04.2024UnderInvestigation12.Tophkhana1308/2024 u/s 118(1), 352, 351(2),351(3) of B.N.S. Act.15.12.2024UnderInvestigation(The MPDAproposal isbased on aspecificoffence.) 4Writ Petition 906 of 2025.odtPreventive ActionSr.No.PoliceStationPreventiveActionSectionCurrent Position1.TophkhanaO No-4353/2018Dtd 24/06/201855 of Mah. PoliceAct.Externment for two years byExternment Authority &Superintendent of Police,Ahilyanagar 1326/2019 OnDated 27/04/20192.BhingarCampChapter CaseNo.17/2024Dtd.02/02/2024110(e)(g) Cr.P.C.The preventive action hasbeen cancelled.Offence considered for passing Detention OrderSr.No.PoliceStationC.R number andsectionsFiling DateCurrent Position1.Tophkhana1308/2024 u/s 118(1),352, 351(2), 351(3)15/12/2024(The MPDA proposal isbased on a specific offence.)4The learned counsel for the petitioner pointed out thegrounds of objections raised in the petition and submitted that thedetaining authority has not arrived at the subjective satisfaction as thetwo in-camera statements are certainly not establishing the issue ofthreat to public order on the part of the petitioner. The detainingauthority has passed the detention order mechanically and in a casualmanner and has not applied the mind properly while passing thedetention order and did not arrive at the subjective satisfaction as tothe statements of two in-camera witnesses. The authority also did not
Decision
5Writ Petition 906 of 2025.odtconsider the reasons stated in the order passed by the Courts whilegranting bail to the petitioner. The crimes registered against thepetitioner are not showing that he is an habitual offender. The actionof the detaining authority is drastic, illegal and not sustainable in theeyes of law, as it causes injustice to the petitioner. There is inordinatedelay caused for taking action against the petitioner, which shows thatthere is no such issue of public order. The essential ingredients ofSection 3(2) of the MPDA Act are not establishing against thepetitioner. He is not a dangerous person as defined under the MPDAAct. The issue of public order is not establishing from the crimesupon which the action is taken against the petitioner. The actiontaken against the petitioner is against the provisions of the MPDA Actas well as Article 22(5) of the Constitution of India. Thecircumstances and reasons given by the concerned authority are notacceptable and sustainable in the eyes of law. The authorityconcerned failed to consider the material aspects in its properperspectives while passing the impugned order. It is lastly prayed toallow the writ petition by quashing and setting aside the impugnedorder. 5The learned APP for the respondents submitted that thepetitioner is a “dangerous person” as defined under the MPDA Act. 6Writ Petition 906 of 2025.odtThere are two in-camera statements of the witnesses about which thesubjective satisfaction has been arrived at by the detaining authority.There is neither legal nor factual error on the part of the detainingauthority while recording in-camera statements of the witnesses. Thepetitioner has created grave terror in the surrounding area. Therefore,general people are not ready to proceed against him by lodging thereport for taking criminal action, which can be seen from the in-camera statements of witnesses A and B. This is sufficient to holdthat because of the petitioner, there is an issue of public order in thearea in which criminal activities of the petitioner are going on. Nodelay is caused in taking the action and passing the impugned order.The petitioner is involved in number of crimes, which are serious.Therefore, he comes under the category of dangerous person as perthe MPDA Act. The activities of the petitioner could not have beenstopped, except upon his detention under the MPDA Act. No legal orfactual error is committed by the detaining authority while passing theimpugned order. He, therefore, lastly prayed to dismiss the writpetition. 6We have perused the impugned order of detention andthe grounds upon which it is based as well as the objections raised bythe petitioner in the petition. 7Writ Petition 906 of 2025.odt 7From the impugned order, it reveals that the action istaken against the petitioner on the basis of last crime, which isregistered as Crime No.1308 of 2024, for the offences punishableunder Sections 118(1), 352, 351(2) and 351(3) of the BNS. It is anadmitted fact that all the Sections invoked against the petitioner in thesaid crime are bailable. However, this crucial aspect appears to havebeen overlooked by the detaining authority. 8On perusal of the statements of the in-camera witnesses,it reveals that on 15th November, 2024, while Witness-A was stayingwith his relatives, the petitioner alongwith his accomplice, wascampaigning for a particular political party in connection with theAssembly Elections. On seeing Witness-A, the petitioner questionedhim by saying, “What work do you have here ? Why have you comein our locality ?” Then the said witness replied to the petitioner that,“My in-laws reside here, and I have come to meet my relatives.”Thereafter, the petitioner threatened him by saying, “If you are donemeeting them, then leave immediately, and also tell them to cast theirvotes in favour of the particular candidate, otherwise I will finish you.”The said witness asked the petitioner, “What wrong have I done toyou ?” On hearing this, the petitioner became enraged, caught hold 8Writ Petition 906 of 2025.odthis collar, pushed him, beat him with kicks, and said, “If you dare tospeak another word, I will kill you.” The petitioner further warned therelatives of Witness-A by saying, “If you ever call him to your house,then you too will not be allowed to reside here.” Because of thethreats and terror of the petitioner, the said witness did not lodge acomplaint against him at that time. Out of fear, the said witness andhis family returned home. Due to petitioner’s fear, the said witnessdid not file any complaint against him. Since the said witness hasbeen assured that his statement will be kept confidential and that hewill not be required to appear before anybody, the said witness hasdeposed against the petitioner. 9The statement of Witness-B discloses that on 25thNovember, 2024, while he was proceeding on his motorcycle, thepetitioner signaled him and asked him to stop. This witness gotfrightened because of the petitioner and did not stop the vehicle andcontinued to proceed ahead. Upon that, the petitioner came frombehind, crossed his vehicle in front of the witness’s motorcycle andobstructed his way. He then told the said witness“Why did you ignoreme ? When I told you to stop, how dare you proceed ahead?” andthen gave a slap on his cheek. The said witness further stated that herequested the petitioner not to beat and asked him to disclose the 9Writ Petition 906 of 2025.odtreason for stopping him. Upon that, the petitioner said, “Do you notknow ? In this locality my dominance prevails, you shall not beallowed to travel daily on this road unless you pay me.” The petitionerthen caught hold the collar of this witness and demanded a sum ofRs.5,000/-. Then this witness replied by saying, “I am a labourer, I gofor daily wages, and I do not have such an amount.” Upon that, thepetitioner threatened him, by saying, “If you do not pay me money, Iwill not allow you to pass on this road, I will break your hands andlegs.” The petitioner then abused him, shouted loudly and createdfear. On account of his shouting, the people standing nearby, gotfrightened and ran away. The said witness further stated that there isterror of the petitioner in the area and therefore, earlier, no one haddared to lodge any complaint against him. He stated that sinceassurance was given that his statement would be kept confidentialand he would not be called before anybody, he was giving statementagainst the petitioner. He apprehended that if the petitioner came toknow about it, then there would be danger to his life as well as to thelives of his family members. 10From these two in-camera statements, it is not revealedthat the petitioner created an issue of public order. The allegations inthe said crime and the in-camera statements are of personal nature, 10Writ Petition 906 of 2025.odtwhich do not establish the essential ingredients of Section 3(2) of theMPDA Act. Further, though it is alleged and held that there was anissue of public order due to fear of the petitioner, it is not establishedeither from the said crime or from the in-camera statements that thecriminal activities of the petitioner were creating an issue of publicorder. Thus, from all the documents relied upon by the detainingauthority, we are of the view that the material upon which the authorityrelied and arrived at a conclusion, is not sufficient to arrive at thesubjective satisfaction that the petitioner is a dangerous person for thepublic at large and because of him, there is constant fear and issue ofpublic order arose. 11In the case of Mustakmiya Jabbarmiya Shaikh Vs. M.M.Mehta, [1995 (3) SCC 237], the statements of in-camera witnesseswere not accepted as those anti-social activities amounting to publicorder issue was not proved against the petitioner. As per the law laiddown in the case of Ameena Begum Vs. The State of Tamilnaduand Ors., [2023 LiveLaw (SC) 743], the fairness and reasonablenesson the part of the detaining authority is lacking. The detainingauthority has failed to apply the criteria that the acts of the petitionerare dangerous and it affects the public order, which is different fromthe law and order. The acts of the petitioner did not cause 11Writ Petition 906 of 2025.odtdisturbance to the current life of the public at large, so as to causedisturbance of public order. On the contrary, the record shows that itmerely affects on the individual living and the tranquility of the societyat large remained undisturbed as held in the case of Kanu BiswasVs. State of West Bengal, [1972 (3) SCC 831], wherein a referencewas made to the decision in the case of Dr. Ram Manohar Lohia vs.State of Bihar and Ors. [1966 (1) SCR 709]. 12Therefore, we are of the view that the detaining authorityhas failed to exercise its discretion in accordance with the Section 3 ofthe MPDA Act. The authority has not acted as per the provisions ofthe MPDA Act. 13Though the impugned order has been approved by theAdvisory Board, we are of the view that it has not considered theabove foundational factual aspects as held in the case of Smt.Hemlata Kantilal Shah Vs. State of Maharashtra and another,[(1981) 4 SCC 647]. 14Further, the statements of in-camera witnesses arerecorded on 18th December, 2024 and 19th December, 2024. Thestatements of in-camera statements were verified on 24 December, 12Writ Petition 906 of 2025.odt2024 and 26th December, 2024. The proposal was sent by theconcerned authority on 20th December, 2024. The SP forwarded thesame on 13th January, 2025. The detention order was passed on 25thMarch, 2025. It was served on the petitioner on same day i.e. 25thMarch, 2025. This shows that there is delay of more than one month.The grounds of detention were served on 26th March, 2025 (i.e. withinfive days from the date of detention) and the report was sent to theStatement Government on 25th March, 2025 (i.e. well in advancewithin twelve days from the date of issuance of detention order). Itwas sent within 12 days from the date of issuance of the detentionorder. The approval order was passed by the Statement Governmenton 4th April, 2025. The Advisory Board passed the order on the sameday i.e. on 4th April, 2025. The matter was kept before the AdvisoryBoard on 21st April, 2025. The petitioner was heard by the AdvisoryBoard on 28th April, 2025. The date of confirmation of the detentionorder was 14th May, 2025. The representation of the petitioner wasforwarded to the Statement Government on 21st May, 2025. The saidrepresentation was received by the State Government on same dayi.e. 21st May, 2025. The remarks were called from the detainingauthority on 26th May, 2025. The remarks of the detaining authoritywere submitted on 2nd June, 2025. The remarks of the detainingauthority were received to the Statement Government on same day 13Writ Petition 906 of 2025.odti.e. on 2nd June, 2025. The Additional Chief Secretary (Home)considered the remarks and rejected the representation on 5th June,2025. If the period required for processing of the action and passingof the impugned order and granting of the approval etc. is considered,then there is unreasonable delay which creates reasonable doubtabout existence of public order on the part of the petitioner. From thedates discussed above, there appears no need of taking urgent actionto secure object of maintaining public order against the petitioner tocontrol his activities, which affects the public at large and create anissue of public order as contemplated by MPDA Act. 15Considering all these aspects and the reasons discussedabove as well as the law laid down in the above authorities and fromthe criminal cases registered against the petitioner relied upon by therespondent authority and statements of witnesses A and B, we are ofthe view that the petitioner had not created an issue affecting publicorder. He had not caused disturbance to the public order. He is not adangerous person as per Section 3 of the MPDA Act. 16The Advisory Board though approved the detention of thepetitioner, we are of the view that there is no reliable relevant materialto proceed against the petitioner to categorize him as a dangerous 14Writ Petition 906 of 2025.odtperson. By passing the impugned order, the fundamental rights,particularly, the liberty of the petitioner as per Article 21 of theConstitution of India is affected and there is no legal as well as factualground for passing of the impugned order. Therefore, we areconstrained to hold that the impugned order is illegal and notsustainable. The same deserves to be quashed and set aside. Thepetition deserves to be allowed. Hence, the following order:-O R D E RI)The writ petition stands allowed. II)The detention order, passed by respondent No.2District Magistrate, Ahilyanagar, bearingNo.DC/Desk-9C1/302/2025, Dated 25.03.2025 andthe order bearing No.MPDA-0325/C.R.135/Spl-3b,Dated 05.06.2025, whereby the said detentionorder has been confirmed by respondent No.1State of Maharashtra through Section Officer,Home Department (Special), Mantralay, Mumbai,are hereby quashed and set aside. III)Petitioner Vijay Raju Pathare, shall be releasedforthwith, if not required in any other offence. IV)Rule is made absolute in the above terms. [ SANJAY A. DESHMUKH, J. ] [ SMT. VIBHA KANKANWADI, J. ] nga