High Court
Legal Reasoning
976-25-CRIWP (MPDA Jt.).odt9.Having considered the rival submissions and giving anxiousthought and scrutinizing the entire record, we find ourselves unable tosustain the impugned order of detention. Preventive detention, thoughpermitted by the Constitution, is an exceptional measure which curtailedthe fundamental right to life and liberty and must therefore be confirmedstrictly to the procedure established by law and the safeguardsenshrined in Article 22 of the Constitution of India.10.The principal basis of the detention order is C.R. No.191 of 2025which invokes Sections 4 and 25 of the Arms Act. Section 4 of the ArmsAct empowers the State to issue a notification prohibiting the possessionof certain weapons in specified areas. It is well settled that unless thatexists and is produced such a notification applicable to the concernedarea, no offence under Section 4 can be said to have been committed. Along line of decisions of this Court including Abuld @ Aslam SalimShaikh vs. State of Maharashtra, 2007 (2) Mh.L.J.(Cri.) 812 andDeelip Asaram Zagade vs. State of Maharashtra [CriminalApplication No.3111 of 2018 decided on 18.02.2019 (AurangabadBench)] have reiterated that the absence of Section 4 notification is fatalto a prosecution or preventive action founded on such an offence.11.In the case of Abuld @ Aslam Salim Shaikh (supra), it isobserved as under: [6] 976-25-CRIWP (MPDA Jt.).odt“7.Section 3 of the Arms Act provides that no person shallacquire, have in his possession, or carry any firearm orammunition unless he holds a licence for that purpose.Section 4 of Arms Act deals with weapons other than thefirearms. It reads as follows:-"4. If the Central Government is of opinion that havingregard to the circumstances prevailing in any areait is necessary or expedient in the public interestthat the acquisition, possession or carrying of armsother than firearms should also be regulated, itmay, by notification in the Official Gazette, directthat this section shall apply to the area specified inthe notification and thereupon no person shallacquire, have in his possession or carry in that areaarms of such class or description as may bespecified in that notification unless he holds in thisbehalf a licence issued in accordance with theprovisions of this Act and the rules madethereunder."From this section it is clear that while for firearms in view ofthe provisions of section 3 of Arms Act, it is necessary to holda valid licence normally no licence is required to possess anyarms other than the firearm unless there is a Notificationpublished in the Official Gazette by the Central Governmentfor that purpose and made applicable to the particular areaspecified in the notification II such a notification is issued for aspecified area no person may acquire, possess or carry anysuch weapon, without necessary licence. Before a chargeunder section 4 read with section 25(1D) of the Arms Act couldbe framed, it was necessary for the prosecution to allege thatthere was such a notification issued by the Central[7] 976-25-CRIWP (MPDA Jt.).odtGovernment made applicable to the particular area in whichthe accused persons were found. In the present case in thecharge-sheet nowhere there is any mention of any suchnotification under section 4 of the Arms Act. nor any evidencewas led before the Court that there was any Notificationissued by the Central Government prohibiting possession orcarrying of any such weapon in particular area. In absence ofany such Notification, merely because a person is found inpossession of a weapon, other than the firearms, he cannot beprosecuted, convicted and sentenced under section 25 of theArms Act.”12.In the case of Dilip Asaram Zagade (supra), the Division Benchof this Court has observed as under:“13. Section 4 of the Arms Act reads as under :“4.Licence for acquisition and possession of arms of specified description in certain cases :-If the Central Government is of opinion that havingregard to the circumstances prevailing in any area it isnecessary or expedient in the public interest that theacquisition, possession or carrying of arms other thanfirearms should also be regulated, it may, by notificationin the Official Gazette, direct that this Section shall applyto the area specified in the notification and thereupon noperson shall acquire, have in his possession or carry inthat area arms of such class or description as may bespecified in that notification unless he holds in this behalfa licence issued in accordance with the provisions of thisAct and the rules made thereunder.” [8] 976-25-CRIWP (MPDA Jt.).odt14. Whereas Section 25(1-B) (b) states that, whoeveracquires, has in his possession or carries in any placespecified by notification under Section 4 any arms of suchclass or description as has been specified in that notification,in contravention of that Section, shall be punishable withimprisonment for a term which shall not be less than one year,but which may extend to three years and shall also be liable tofine. 15. In our view, to attract the provisions of Section 4 readwith Section 25(1-B) (b) of the Arms Act, it has to be averredin the F.I.R. that the Central Government, by notification in theofficial gazette, has regulated possession of swords in theparticular area (in this case village Shelapuri), TalukaMajalgaon, District Beed and same is an offence punishableunder Section 25(1-B) (b) of the Act. Notification, if any, issuedby the Central Government under Section 4 has also not beenplaced on record for our perusal. It would, therefore, bedifficult to hold that the allegations in the report dated29.6.2018 lodged by Vijay Ghodke, prima facie constitute anoffence under Section 4 read with 25 of the Arms Act. On thecontrary, for want of averments to this effect in the report, ithas to be observed that no offence is made out from the socalled F.I.R.” 13.In the present case, we specifically inquired with the learned APPwhether any such notification under Section 4 of the Arms Act wasissued for Nanded City and whether the same was placed before theDistrict Magistrate. We were fairly informed that no such notification[9] 976-25-CRIWP (MPDA Jt.).odtexits. The detention record also barely sounds this fact. Consequently,the very foundation of the case under the Arms Act collapsed. Thedetention order, which places considerable reliance on this FIR,therefore suffers from a serious legal infirmity. 14.Apart from this, we found considerable merit in the contention ofthe petitioner that the District Magistrate failed to apply his mind toessential material. The order asserts that the petitioner is on bail in allthe pending cases, but a record does not contain a single copy of anybail application or any bail order. It is trite law that when a detainingauthority takes into account the fact that the detinue is on bail, it mustexamine the bail orders themselves to assess the nature of the offences,the conditions imposed by the competent Courts while releasing theaccused on bail and whether there exists a real likelihood of the detinuecommitting similar acts if released. Failure to do so vitiates the subjectivesatisfaction as required under the provisions of the MPDA Act. Theabsence of such documents also means that the petitioner was deniedthe opportunity to make an effective representation, which is aconstitutional mandate under Article 22 (5) of the Constitution of India. 15.We are equally unimpressed by the reliance on the in camerastatements of witnesses ‘A’ and ‘B’. Perusal of these witnesses’statements discloses that they are of a very general nature and do not[10]
Arguments
976-25-CRIWP (MPDA Jt.).odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.976 OF 2025Prashik @ Parshya S/o. Dilip Odhane,Age: 25 years, Occu: Labour, R/o.R/o. Sangshesen Nagar, NandedTq. & Dist. Nanded… PetitionerVersus1. The State of Maharashtra Through Secretary Home Department, Mantralaya, Mumbai -32 2. The District Magistrate, Office of District Collectorate, Near Gandhi Statue, Station Road, Nanded, Tq. &Dist. Nanded.3. The Superintendent of Police, Nanded, Tq. & Dist. Nanded.4. The Police Inspector, Police Station, Itwara, Nanded Tq. & Dist. Nanded… Respondents……Ms. Pratiksha Magre, Advocate h/f Mr. Sunil G. Magre, Advocate for PetitionerMr. V.K. Kotecha, APP for Respondents Nos.1 to 4….. CORAM : SMT. VIBHA KANKANWADI & HITEN S. VENEGAVKAR, JJ.DATE : 19 SEPTEMBER, 2025JUDGMENT [Per Hiten S. Venegavkar, J.] :-1.Rule. Rule is made returnable forthwith. With the consent of boththe parties the petition is taken up for final hearing and final disposal atthe admission stage itself. [1] 976-25-CRIWP (MPDA Jt.).odt2. We have heard both the learned Advocates at length. 3.The entire records of the detention proceeding including thegrounds of detention, the proposal submitted by the police, the report ofthe superintendent of police, affidavit of district Magistrate and the reportof the advisory board have been placed and have been carefullyperused by us with the assistance of both the Advocates. 4. The brief facts of the present petition in a nutshell are that thepetitioner Prakash @ Parshya Dilip Odhane challenges the legality andvalidity of a detention order dated 01.07.2025 bearingNo.2025/RB-1/Desk-2/T-4/MPDA/CR-37 passed by the District Magistrate,Nanded in exercise of powers under section 3(1) of the MaharashtraPrevention of Dangerous Activities of Slumlords, Bootleggers, DrugOffenders and Dangerous Persons Act (hereinafter referred to as“MPDA” Act). By the said order, the petitioner was directed to bedetained for a period of 12 months on the ground that he is a 'dangerousperson' whose activities are prejudicial to the maintenance of publicorder.5.The detention order came to be passed on a proposal initiated byrespondent No.4, the Police Inspector of Itwara Police Station, Nanded.The proposal was rooted through respondent No.3, the Superintendent[2] 976-25-CRIWP (MPDA Jt.).odtof Police and eventually placed before respondent No. 2 that is theDistrict Magistrate, who claims to have arrived at a subjectivesatisfaction that the petitioner's detention was necessary to prevent himfrom acting in a manner prejudicial to public order. The order is found oneight past criminal cases registered against the petitioner and hisassociates, a chapter case under Section 107 of Cr.P.C. registered in theyear 2023 and one externment proceeding initiated in the year 2025 andmost specifically on C.R.No.191 of 2025, registered with Vimantal PoliceStation under Sections 4 and 25 of the Arms Act and Sections 135 and142 of Maharashtra Maharashtra Police Act. In addition to the above,two in camera statements of witnesses ‘A’ and ‘B’ were also relied upon.6.The Advocate for the petitioner has argued that the impugneddetention order is vitiated on multiple counts. According to the learnedAdvocate for the Petitioner, although the order records that the petitioneris on bail in pending cases, copies of the bail applications and the bailorders were admittedly neither placed before us nor considered by thecompetent authority. It is submitted that this failure goes to root to thesubjective satisfaction and is contrary to the law laid down in the case of Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Ors., (2011) 5 SCC244 and Huidrom Konungjao Singh Vs. State of Manipur and Ors.,(2012) 7 SCC 181, which mandates a careful examination of bail ordersand the conditions imposed therein. Subsequently, the petitioner’s[3] 976-25-CRIWP (MPDA Jt.).odtAdvocate has also ascertained that C.R.No.191 of 2025 is falselyregistered. He took us through the pleadings in the petition stating thatduring the subsistence of an externment order dated 13.12.2024, he hadkept himself outside the notified area, but was summoned through aWhatsApp call by one Head Constable by name Bajaji Yadirwar on thepretext of joining an investigation. Upon his arrival at Itwara PoliceStation, his signatures were allegedly obtained on blank papers and afalse case was registered accusing him of breaching the externmentorder and also of unlawfully possessing a weapon. According to him, thissolitary offence cannot be treated as a genuine act affecting public order.The learned Advocate for the petitioner further argued that two in camerastatements are absolutely vague, lacking in specific dates, places orparticulars and do not disclose any material warranting preventivedetention. He further points out that the statements were not properlyverified and the material required for such verification was not suppliedto him, thereby disbelieving in making any effective representation asguaranteed under Article 22(5) of the Constitution of India.7.The learned APP vehemently opposed the petition by arguing thatrespondent No.2, who is a District Magistrate has filed the detailedaffidavit justifying his decision of detaining the petitioner for a period oftwelve months. According to the prosecutor, the petitioner is a habitualoffender who creates terror and that the residents of the jurisdiction of[4] 976-25-CRIWP (MPDA Jt.).odtItwara Police Station and adjoining areas remain in constant fear. Hefurther argued that the petitioner and his associates are involved insnatching money, committing thefts and dacoities and that people areafraid to come forward to lodge complaints. It is stated that a confidentialinquiry was conducted and only after giving assurance of secrecy, twowitnesses deposed about the petitioner’s criminal activities. The DistrictMagistrate submitted in his affidavit that he carefully examined all thematerial and arrived at a subjective satisfaction that preventive detentionwas imperative. He relies on Section 5A of the MPDA Act to argue thateven if some of the grounds fail, the detention order is not invalidated solong as one ground survives.8.We also want to note that the Head Constable Balaji Yadgirwarhas also filed an affidavit denying that he called the petitioner to thePolice Station for the purpose of interrogation. He admits making aWhatsApp call, but explains that it was only to gather the informationabout another criminal Kamlesh Patil and not to summon the petitioner.He also stated that presently he is attached to Shivajinagar PoliceStation, but at the relevant time, he was attached to the Local CrimeBranch, and therefore, the duty of the Local Crime Branch was to keepwatch on the criminals and also on the movements of the externedcriminals. [5]
Decision
976-25-CRIWP (MPDA Jt.).odtspecify dates, times or places with the particularity required by law.There is nothing on record to show that the statements were properlyverified or that the detaining authority applied his mind to their probativevalue. It is settled principle that such statements, if found vague orlacking verification, cannot be made the basis of preventive detentionaction.16.We cannot overlook the peculiar and disturbing aspect of thealleged WhatsApp call made by Head Constable Balaji Yadgirwar. Thepetitioner’s case is that he was lured into the city in good faith under thebelief that he was required for the investigation of some other case andwas then implicated in a false crime. Significantly, the Head Constableadmits the above call to the petitioner on WhatsApp from the verynumber mentioned by the petitioner, though he ascribes differentreasons. In our considered view, this explanation is unsatisfactory. In asystem governed by the rule of law, such conduct on the part of a policeofficer which has the effect of curtailing the citizens' liberty by initiating afalse case or by creating pretexts for preventive detention is whollyunacceptable and warrants departmental scrutiny.17.Having regard to the serious allegations of impropriety against theHead Constable Baljai Yadgirwar and the admission in his affidavit thathe contacted the petitioner on WhatsApp, we direct the Superintendent[11] 976-25-CRIWP (MPDA Jt.).odtof Police, Nanded to institute a departmental enquiry into the conduct ofthe said officer and to place a report before this Court within a period ofsix weeks from the date of uploading of this order. 18.We are conscious of the States’ arguments based on Section 5-Aof the MPDA Act that insufficiency of one ground does not invalidate thedetention order if other grounds survive. However, this is not a case ofsome grounds falling on their merits; this is a case where the very basisof subjective satisfaction is vitiated by non-application of mind and non-existence of vital legal requirement namely the Section 4 notification.It is a settled law including the Hon’ble Supreme Court’s ruling in RekhaVs. State of T. Nadu (supra), where the detaining authorities satisfactionis itself impaired by non-consideration of relevant and vital material,Section 5-A cannot salvage the order. The preventive detention is notmeant to punish for past acts, but to prevent future conduct thatthreatens public order. The eight criminal antecedents, though pendingare under trial with the charge-sheets filed. Mere pendency of criminalcases or even a previous externment proceedings without a live link toimminent disturbances of public order cannot justify preventivedetention. We found no material on record to demonstrate that thepetitioner was likely to commit any specific act prejudicial to public orderin the immediate future. The alleged incident of 17.05.2025 alreadyfound legally unsustainable, cannot provide such a live link.[12] 976-25-CRIWP (MPDA Jt.).odt19.In the light of the above discussion, we compelled to hold that theimpugned detention order is unsustainable in law and also the approvalof the State Government and further the confirmation by the AdvisoryBoard. Hence, we proceed to pass the following order:-ORDERI)The Writ Petition stands allowed.II)The detention order dated 01.07.2025 bearing No.2025/RB-1/Desk-2/T-4/MPDA/CR-37 passed by respondent No.2 as well as theapproval order dated 11.07.2025 and the confirmation order, if any,passed by respondent No.1, are hereby quashed and set aside.III)Petitioner – Prashik @ Parshya S/o. Dilip Odhane 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 JUDGES.P. Rane[13]