High Court
Facts
wp-943-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.943 OF 2025Akshay @ Jalkya s/o Balu ShindeAge: 28 years, Occu.: Labour,R/o. Sumbha, Taluka and District Dharashiv.. PetitionerVersus1.The State of MaharashtraThrough the Section Officer,HomeDepartment, Mantralaya,Mumbai-32.2.The District MagistrateDharashiv.3.The SuperintendentHarsul Central Jail, Aurangabad... Respondents…Mr. D. S. Ingole, Advocate h/f Mr. N. S. Ghanekar, Advocate for the petitioner.Mrs. R. P. Gour, APP for the respondents/State.... CORAM : SMT. VIBHA KANKANWADI & HITEN S. VENEGAVKAR, JJ.DATE : 03 SEPTEMBER 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Mr. D. S. Ingole holding for learnedAdvocate Mr. N. S. Ghanekar for the petitioner and learned APP Mrs. R.P. Gour for respondents – State.2.Rule. Rule made returnable forthwith. The petition is heard finallywith the consent of the learned Advocates for the parties.[1] wp-943-2025-J.odt3.The petitioner challenges the detention order dated 23.01.2025bearing No.2024/DC/MAG-3/WS-646/CR-19 passed by respondent No.2as well as the approval order dated 03.02.2025 and the confirmationorder dated 25.02.2025 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 order and the material which was supplied to the petitioner bythe detaining authority after passing of the order. He submits that for thepurpose of passing the impugned order, the detaining authority hasconsidered all the offences i.e. (i) Crime No.95 of 2020 dated02.04.2020 registered with Dhoki Police Station, District Dharashiv (ii)Crime No.193 of 2021 dated 23.06.2021 registered with Dhoki PoliceStation, District Dharashiv (iii) Crime No.116 of 2022 dated 02.06.2022registered with Bembli Police Station, District Dharashiv, (iv) CrimeNo.76 of 2024 dated 10.04.2024 registered with Shiradhon PoliceStation, District Dharashiv, (v) Crime No.103 of 2024 dated 23.05.2022registered with Shiradhon Police Station, District Dharashiv, (vi) CrimeNo.130 of 2024 dated 23.03.2024 registered with Dhoki Police Station,District Dharashiv, (vii) Crime No.221 of 2024 dated 14.06.2024registered with Dhoki Police Station, District Dharashiv, (viii) CrimeNo.266 of 2024 dated 22.07.2024 registered with Dhoki Police Station,District Dharashiv, (ix) Crime No.147 of 2024 dated 24.03.2024[2] wp-943-2025-J.odtregistered with Kalamb Police Station, District Dharashiv, (x) CrimeNo.279 of 2024 dated 03.07.2024 registered with Kalamb Police Station,District Dharashiv, (xi) Crime No.171 of 2024 dated 24.07.2024registered with Bembli Police Station, District Dharashiv and (xii) CrimeNo.276 of 2024 dated 28.07.2024 registered with Dhoki Police Station,District Dharashiv. Learned Advocate for the petitioner submits that thedetaining authority has considered all the offences pending since 2020against the petitioner for passing the impugned order. The petitioner isinvolved in twelve offences and all of them have been considered. Therewas absolutely no live link between the first three offences and thedetention order. As regards other offences are concerned, at the mostlaw and order situation would have been created and not the publicorder. Learned Advocate for the petitioner further submits that there isdelay in sending the proposal by the sponsoring authority, which has notbeen explained at all. As regards statements of in-camera witnesses ‘A’and ‘B’ are concerned, at the most law and order situation would havebeen created and not the public order. Therefore, the impugned order isillegal and cannot be 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 Activitiesof Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons and[3] wp-943-2025-J.odtVideo 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 byDr. Sachin Ombase, the then District Magistrate, Dharashiv presentlyworking as Municipal Commissioner, Solapur Municipal Corporation,Solapur. 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 in-camera statements and the contents of the FIRs.After the subjective satisfaction, the detaining authority has passed areasoned order, which is then confirmed with the opinion of the AdvisoryBoard and, thereafter, confirmed by the State Government on25.02.2025.6.At the outset, we would like to rely on the decisions of the Hon’bleSupreme Court in Nenavath Bujji etc. Vs. State of Telangana andothers, [2024 SCC OnLine SC 367] and Ameena Begum Vs. TheState of Tamilnadu and Ors., [2023 LiveLaw (SC) 743]; wherein thedetention law has been summarized and has been said to be draconian[4] wp-943-2025-J.odtmeasure. Further, it has been observed that illegal detention orderscannot be allowed to sustain and, therefore, strict compliance is requiredto be made, as it is a question of liberty of a citizen. Here, it is to benoted from the impugned order that the District Magistrate hasconsidered all the offences, which were registered against the petitionerfor passing the detention order. As regards, first three offences areconcerned, there was absolutely no live link. As regards the otheroffences are concerned, even if we take the contents of all the FIRs as itis, at the most law and order situation would have been arisen and notthe public order. In first three offences, the petitioner was released onbail, however, the bail orders were not considered by the detainingauthority while passing the detention order. We would like to rely on thedecision in Joyi Kitty Joseph Vs. Union of India and Ors., [CriminalAppeal No.___ of 2025 (arising out of Special Leave Petition (Crl.)No.16893 of 2024) decided by the Hon’ble Supreme Court on06.03.2025], wherein it has been held 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.” Further, in this case, confidential statements ofwitnesses ‘A’ and ‘B’ were recorded on 14.08.2024 and 16.08.2024.Those statements were got verified on 29.10.2024 and then the proposal[5]
Legal Reasoning
wp-943-2025-J.odtwas forwarded by the Superintendent of Police on 20.12.2024 to thedetaining authority. Why there was so much delay in sending theproposal has not been explained by the sponsoring authority. There is noaffidavit by the sponsoring authority explaining the said delay. The timespent between recording of confidential statements and verificationthereof till the detention order, is more than four months. 7.Perusal of the statements of in-camera witnesses ‘A’ and ‘B’ wouldshow that the incidents in both the cases are personal in nature andgeneral public is not involved. Those statements would have created atthe most law and order situation and not the public order. 8.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. 9.For the aforesaid reasons, the petition deserves to be allowed.Hence, following order is passed :-[6] wp-943-2025-J.odtORDERI)The Writ Petition stands allowed.II)The detention order dated 23.01.2025 bearingNo.2024/DC/MAG-3/WS-646/CR-19 passed by respondent No.2 aswell as the approval order dated 03.02.2025 and the confirmationorder dated 25.02.2025 passed by respondent No.1, are herebyquashed and set aside.III)Petitioner – Akshay @ Jalkya s/o Balu Shinde shall bereleased forthwith, if not required in any other offence.IV)Rule is made absolute in the above terms. [ HITEN S. VENEGAVKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[7]