Judgment · High Court

Heard learned Advocate Mr. Prashant P. Giri for the petitioner andlearned APP Mr. G. A. Kulkarni for respondents – State.[1] wp-446-2025-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 04.10.2024passed by respondent No.2 bearing No.2024/RB-1/Desk-2/T-4/MPDA/CR-58 and the approval order dated 14.10.2024 as well as confirmationorder dated 04.12.2024 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.338 of 2024 registered with Nanded RuralPolice Station, District Nanded for the offences punishable under Sections 457, 380 of Indian Penal Code and Crime No.784 of 2024registered with Nanded Rural Police Station, District Nanded for theoffences punishable under Sections 3, 7 punishable under Section 25 ofthe Arms Act. Learned Advocate for the petitioner submits that thoughthe petitioner is stated to be involved in fourteen offences, only twooffences i.e. Crime No.338 of 2024 and Crime No.784 of 2024 wereconsidered for passing the detention order. Both these offences were[2] wp-446-2025-J.odtstill under investigation. If the contents of both the FIRs are considered, then it can be seen that they would have raised only law and ordersituation at the most and not the public order. Further, it is stated that in Crime No.338 of 2024, the petitioner has been released on bail30.09.2024 and in Crime No.784 of 2024 he has been released on18.09.2024 by the competent Court.

The detaining authority had notconsidered the bail orders passed by the competent Court, when in factthe detention order came to be passed on 04.10.2024. As regardsstatements of confidential witnesses ‘A’ and ‘B’ are concerned, at themost those statements would have raised law and order situation andnot the public order. 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 Video 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 relied on the affidavit-in-reply of Mr. Abhijit[3] wp-446-2025-J.odtRaut, the District Magistrate, Nanded/detaining authority. He supportsthe detention order passed by him and tries to demonstrate as to how hehad arrived at the subjective satisfaction. He further states that his orderhas been approved by the State Government and also by the AdvisoryBoard. 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 and Ors., (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 while[4] wp-446-2025-J.odtpassing 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 Hon’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. The first and the foremost fact to be notedis that only two offences have been considered by the detaining authorityi.e. Crime No.338 of 2024 dated 24.04.2024 and Crime No.784 of 2024dated 28.08.2024. The incident in both the FIRs would show that generalpublic was not involved.

At the most law and order situation would havebeen arisen and not the public order. In fact, the petitioner has beenreleased on bail in both the offences on 30.09.2024 and 18.09.2024respectively, but the detaining authority has not considered the bailorders. Here, we would like to rely on the decision in Joyi Kitty JosephVs. Union of India and Ors., [Criminal Appeal No.___ of 2025(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 of Telangana 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 the Constitution Bench decision in Haradhan Saha vs. State of W.B.[5] wp-446-2025-J.odt[(1975) 3 SCC 198], in the limited judicial review available toconstitutional courts in preventive detention matters.

However, in Ameena Begum (Supra), the Hon’ble Supreme Court explained the truedistinction between a threat to “law and order” and acts “prejudicial topublic 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 :-[6] wp-446-2025-J.odt“17. From perusal of Section 2(j), it is evident that aperson who indulges in activities “harmful to maintenanceof public order” is sought to be covered by the Act. ThisCourt in Sk. Nazneen Vs. State of Telangana, [(2023) 9SCC 633] had emphasized on the distinction betweenpublic order as also law and order situations : “18. In two recent decisions [BankaSneha Sheela v. State of Telangana, (2021) 9SCC 415 : (2021) 3 SCC (Cri.) 446; Mallada K.Sri Ram v. State of Telangana, (2023) 13 SCC537: 2022 SCC OnLine SC 424], this Court hadset aside the detention orders which werepassed, under the same Act i.e. the presentTelangana Act, primarily relying upon thedecision in Ram Manohar Lohia [Ram ManoharLohia v.

State of Bihar, 1965 SCC OnLine SC9]and holding that the detention orders were notjustified as it was dealing with a law and ordersituation and not a public order situation.” 19.…...The observations made in the detention order donot ascribe any reason as to how the actions of thedetenu are against the public order of the State. Asdiscussed above, given the extraordinary nature of thepower of preventive detention, no reasons are assignedby the detaining authority, as to why and how the actionsof the detenu warrant the exercise of such an exceptionalpower. [7] wp-446-2025-J.odt20.Moreover, it has been stated therein by theauthority that the detenu is violating the conditions of bailimposed upon him in the cases that have beenconsidered for passing the order of detention. However, pertinently, no application has been filed by therespondent-State in any of the four cases, allegingviolation of such conditions, if any, and moreover, havenot even been spelt out here.” 9.