Bombay High Court
Amar Balu Bhosale vs The State Of Maharashtra And Others on 11 June, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:14880-DB
wp-413-2025-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.413 OF 2025
Amar Balu Bhosale
Age: 23 years, Occu.: Education,
R/o. At Post Pravaranagar
Tq. Rahata, District Ahilyanagar .. Petitioner
Versus
1. The State of Maharashtra
Through Section Officer,
Home Department (Special),
2nd Floor, Mantralaya, Mumbai-32.
2. The District Magistrate,
Officer of the District Magistrate Office,
Tq. And Dist. Ahilyanagar.
3. The Superintendent,
Central Prison, Nashik,
Tq. And Dist. Nashik. .. Respondents
...
Ms. Sunita G. Sonawane, Advocate for the petitioner.
Ms. Rashmi P. Gour, APP for respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 11 JUNE 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Ms. Sunita G. Sonawane for the petitioner and learned APP Ms. Rashmi P. Gour for respondents - State. [1]
wp-413-2025-J.odt
2. Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned Advocates for the parties.
3. The petitioner challenges the detention order dated 21.02.2025 bearing No.DC/Desk-9C1/195/2025 passed by respondent No.2 as well as the approval order dated 03.03.2025 and the confirmation order dated 09.04.2025 passed by respondent No.1, by invoking the powers of this Court under Article 226 of the Constitution of India.
4. Learned Advocate for the petitioner has taken us through the impugned orders and the material which was supplied to the petitioner by the detaining authority after passing of the order. He submits that though several offences were registered against the petitioner, yet for the purpose of passing the impugned order, only one offence was considered i.e. Crime No.422 of 2024 registered with Kopargaon City Police Station, District Ahilyanagar for the offences punishable under Sections 109(1), 126(2), 189(2), 189(4), 191(2), 191(3), 190 of Bhartiya Nyaya Sanhita, Section 3 punishable under Section 25, 27 of the Arms Act. Learned Advocate for the petitioner submits that the detaining authority had considered Crime No.422 of 2024 as well as two in-camera statements for passing the detention order. Further, in connection with Crime No.422 of 2024, the petitioner came to be released on bail by order dated 27.11.2024, however, the said order was not considered by [2] wp-413-2025-J.odt the detaining authority. Similarly, as regards in-camera witnesses 'A' and 'B' are concerned, general public was not involved. At the most, law and order situation would have been created and, therefore, the impugned order deserves to be set aside.
5. Per contra, the learned APP strongly supports the action taken against the petitioner. He submits that the petitioner is a dangerous person as defined under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons and Video Pirates Act, 1981 (hereinafter referred to as the "MPDA Act"). The detaining authority has relied on the two in-camera statements and the subjective satisfaction has been arrived at. There is no illegality in the procedure adopted while recording the in-camera statements of the witnesses. Due to the terror created by the petitioner, people are not coming forward to lodge report against him and, therefore, it affects the public order. Learned APP is relying upon the affidavit-in-reply filed by Mr. Kailas Wagh, District Magistrate, Ahilyanagar. He supports the detention order passed by him and tries to demonstrate as to how he had arrived at the conclusion that the petitioner is a dangerous person. The subjective satisfaction was arrived at on the basis of the in-camera statements and the contents of the FIR. After the subjective satisfaction, the detaining authority has passed a reasoned order, which is then confirmed with the opinion of the Advisory Board and, thereafter, [3] wp-413-2025-J.odt confirmed by the State Government on 09.04.2025. Therefore, no fault can be found in the impugned order.
6. Before considering the case, we would like to take note of the legal 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) SCC 831] wherein reference was made to the decision in Dr. Ram Manohar 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 West Bengal, [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 passing the impugned order had arrived at the subjective satisfaction [4] wp-413-2025-J.odt and whether the procedure as contemplated has been complied with or not. In Nenavath Bujji (Supra) itself it has been reiterated by the Hon'ble Supreme Court that illegal detention orders cannot be sustained and, therefore, strict compliance is required to be made, as it is a question of liberty of a citizen. Here, we are concerned with what was the material before the detaining authority when the impugned order came to be passed. As aforesaid, the order is based on one FIR and two in-camera statements. As regards the offence vide Crime No.422 of 2024 is concerned, the incident dated 19.09.2024 even if taken as it is would show that general public was not involved. Further, it is to be noted that the petitioner has been released on bail on 27.11.2024 in the said offence, however, while passing the detention order, there is absolutely no reference to the said bail order by the detaining authority and there is no discussion as to why the conditions those were imposed while granting bail to the petitioner are not sufficient to take care of and curtail the criminal activities of the petitioner. Here, we would like to rely on the decision in Joyi Kitty Joseph Vs. 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], wherein reliance has been placed on the decision in Ameena Begum v. State of Telangana and others, [(2023) 9 SCC 587] and it has been observed that preventive detention is impermissible [5] wp-413-2025-J.odt when the ordinary law of the land is sufficient to deal with the situation was per incuriam to the Constitution Bench decision in Haradhan Saha vs. State of W.B. [(1975) 3 SCC 198], in the limited judicial review available to constitutional courts in preventive detention matters. However, in Ameena Begum (Supra), the Hon'ble Supreme Court explained the true distinction between a threat to "law and order" and acts "prejudicial to public order" and it is stated that it cannot be determined merely by the nature or quality of the act complained of, but in the proper degree and extent of its impact on the society. Further, it is observed that "When bail was granted by the jurisdictional Court, that too on conditions, the detaining authority ought to have examined whether they were sufficient to curb the evil of further indulgence in identical activities; which is the very basis of the preventive detention ordered. The detention order being silent on that aspect, we interfere with the detention order only on the ground of the detaining authority having not looked into the conditions imposed by the Magistrate while granting bail for the very same offence; the allegations in which also have led to the preventive detention, assailed herein, to enter a satisfaction as to whether those conditions are sufficient or not to restrain 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 (Arising [6] wp-413-2025-J.odt out of SLP (Crl.) No.14740 of 2024) decided on 06.06.2025], wherein it has been observed that :-
"17. From perusal of Section 2(j), it is evident that a person who indulges in activities "harmful to maintenance of public order" is sought to be covered by the Act. This Court in Sk. Nazneen Vs. State of Telangana, [(2023) 9 SCC 633] had emphasized on the distinction between public order as also law and order situations :
"18. In two recent decisions [Banka Sneha Sheela v. State of Telangana, (2021) 9 SCC 415 : (2021) 3 SCC (Cri.) 446; Mallada K. Sri Ram v. State of Telangana, (2023) 13 SCC 537: 2022 SCC OnLine SC 424], this Court had set aside the detention orders which were passed, under the same Act i.e. the present Telangana Act, primarily relying upon the decision in Ram Manohar Lohia [Ram Manohar Lohia v. State of Bihar, 1965 SCC OnLine SC9] and holding that the detention orders were not justified as it was dealing with a law and order situation and not a public order situation."
19. ......The observations made in the detention order do not ascribe any reason as to how the actions of the detenu are against the public order of the State. As discussed above, given the extraordinary nature of the power of preventive detention, no reasons are assigned by the detaining authority, as to why and how the actions [7] wp-413-2025-J.odt of the detenu warrant the exercise of such an exceptional power.
20. Moreover, it has been stated therein by the authority that the detenu is violating the conditions of bail imposed upon him in the cases that have been considered for passing the order of detention. However, pertinently, no application has been filed by the respondent-State in any of the four cases, alleging violation of such conditions, if any, and moreover, have not even been spelt out here."
9. As regards the statements of in-camera witnesses 'A' and 'B' are concerned, the incidents in both the cases would show that general public was not involved. At the most, law and order situation would have been created and not the public order.
10. Thus, taking into consideration the above observations and the decisions of the Hon'ble Apex Court, at the most, the statements as well as the offences allegedly committed would reveal that the petitioner had created 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 authority to categorize the petitioner as a dangerous person or bootlegger.
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11. For the aforesaid reasons, the petition deserves to be allowed. Hence, following order is passed :-
ORDER I) The Writ Petition stands allowed. II) The detention order dated 21.02.2025 bearing No.DC/Desk-
9C1/195/2025 passed by respondent No.2 as well as the approval order dated 03.03.2025 and the confirmation order dated 09.04.2025 passed by respondent No.1, are hereby quashed and set aside.
III) Petitioner - Amar Balu Bhosale shall be released forthwith, if not required in any other offence.
IV) Rule is made absolute in the above terms.
[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
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