High Court
Legal Reasoning
wp-988-2025-J.odtnot 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 general public was not involved. Those statements wouldhave created at the most law and order situation and not the publicorder. 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 detaining[9] wp-988-2025-J.odtauthority 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 19.06.2025 bearing No.2025-RB-1/Desk-2/T-4/MPDA/CR-39 passed by respondent No.2 as well as theapproval order dated 30.06.2025 and the confirmation order, if any,passed by respondent No.1, are hereby quashed and set aside.III)Petitioner – Mohit @ Chiku s/o Ramesh Godbole 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]
Arguments
wp-988-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.988 OF 2025Mohit @ Chiku s/o Ramesh GodboleAge: 22 years, Occu.: Labour,R/o. Degaonchal, Nanded,Tq. And Dist. Nanded. .. PetitionerVersus1.The State of MaharashtraThrough its Section Officer,Home Department (Special),Mantralaya, Mumbai-32.2.The District MagistrateNanded, Tq. And Dist. Nanded.3.The Superintendent of Jail,Central, Jail, Harsool, Aurangabad,District Aurangabad. .. Respondents…Mr. Shailendra S. Gangakhedkar, Advocate for the petitioner.Mr. G. A. Kulkarni, APP for the respondents/State.... CORAM : SMT. VIBHA KANKANWADI & SUSHIL M. GHODESWAR, JJ.DATE : 20 AUGUST 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Mr. Shailesh S. Gangakhedkar for thepetitioner and learned APP Mr. G. A. Kulkarni for respondents – State.[1] wp-988-2025-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 19.06.2025bearing No.2025-RB-1/Desk-2/T-4/MPDA/CR-39 passed by respondentNo.2 as well as the approval order dated 30.06.2025 and theconfirmation order, if any, 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 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, two offences wereconsidered i.e. Crime No.13 of 2025 dated 09.01.2025 registered withBhagyanagar Police Station, District Nanded for the offences punishableunder Sections 118(1), 118(2), 352, 352(2), 189(2), 191(1), 191(3), 109of Bharatiya Nyaya Sanhita, 2023, under Section 4 punishable underSection 25 of the Indian Arms Act and Crime No.38 of 2025 dated28.01.2025 registered with Vazirabad Police Station, District Nanded forthe offences punishable under Sections 118, 115(2), 352, 354(2), 189(2),191(1), 191(3), 109 of Bharatiya Nyaya Sanhita, 2023 and under Section4 punishable under Section 25 of the Indian Arms Act. Learned Advocate[2] wp-988-2025-J.odtfor the petitioner submits that the impugned order would show that thematerial that was placed before the detaining authority was not sufficientto arrive at subjective satisfaction. Further, the detaining authority hadsimply considered that the earlier writ petition challenging the earlierdetention order was allowed by this Court i.e. Criminal Writ PetitionNo.1730 of 2024 decided on 03.01.2025, but the observations and thelaw therein has absolutely not been considered. The detainingauthorities are in fact without considering the law laid down are passingillegal orders. Therefore, those orders cannot be allowed to sustain.Here, in the present impugned order, two offences have beenconsidered i.e. Crime No.13 of 2025 dated 09.01.2025 and Crime No.38of 2025 dated 28.01.2025. The prosecution story in the those offenceswould show that the those offences are individual in nature and generalpublic is not involved. At the most law and order situation would havebeen created. Further, in both the offences, the petitioner has beenreleased on bail on 04.03.2025 and 27.02.2025 respectively by thecompetent Court, however, the detaining authority has not consideredthe bail orders. Further, the in-camera statements of witnesses ‘A’ and ‘B’would show that at the most law and order situation would have beencreated and not the public order and, therefore, such illegal orderdeserves to be quashed and set aside. [3] wp-988-2025-J.odt5.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 relies on the affidavit-in-reply filed by Mr.Rahul Kardile, the District Magistrate, Nanded/detaining authority. Hesupports the detention order passed by him and tries to demonstrate asto how he had arrived at the conclusion that the petitioner is a dangerousperson. The subjective satisfaction was arrived at on the basis of the in-camera statements and the contents of the FIRs. After the subjectivesatisfaction, the detaining authority has passed a reasoned order, whichis then confirmed with the opinion of the Advisory Board and, thereafter,confirmed by the State Government on 30.06.2025. Learned APPsubmits that in spite of involvement of the petitioner in so many casesand though the earlier detention order as against him has been set asideby this Court, yet his criminal activities have not been curtailed.[4] wp-988-2025-J.odtTherefore, 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 :-(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 the[5] wp-988-2025-J.odtHon’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 whilepassing the impugned order the detaining authority has taken note of theearlier detention order dated 26.07.2024, which has been set aside bythis Court in Criminal Writ Petition No.1730 of 2024 vide judgment andorder dated 03.01.2025, however, the detaining authority has notconsidered the observations and the law therein. Though the earlierdetention order was set aside, still the criminal activities of the petitionerhave not been curtailed. Further, it is not stated as to whether any actionin respect of externment has been taken as against the petitioner. Whennormal legal recourse is available, then the competent authority shouldnot take recourse to the detention laws which are even as per theobservations of the Hon’ble Supreme Court as a draconian provision andaffects the fundamental rights of a person. Now, in the present impugnedorder, as stated above, two offences have been considered i.e. CrimeNo.13 of 2025 and Crime No.38 of 2025. Perusal of the contents of boththe FIRs would show that the offences are individual in nature andgeneral public was not involved. At the most, law and order situationwould have been arisen and not the public order. Further, it appears thatin respect of both these offences, the petitioner has been released onbail by the competent Court on 04.03.2025 and 27.02.2025 respectively,[6] wp-988-2025-J.odthowever, the detaining authority has not considered the bail orders.Here, we would like to rely on the decision in Joyi Kitty Joseph Vs.Union of India and Ors., [Criminal Appeal No.___ of 2025 (arisingout of Special 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 sufficientto 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 detaining[7] wp-988-2025-J.odtauthority 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], 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 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 and[8]