Hardilsingh Telsingh Amdharele vs State Of Maharashtra
2025 Latest Caselaw 377 Bom

Bombay High Court

Hardilsingh Telsingh Amdharele vs State Of Maharashtra on 9 July, 2025

Author: Anil S. Kilor

Bench: Anil S. Kilor

2025:BHC-NAG:6470-DB
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                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  NAGPUR BENCH, NAGPUR.

                            CRIMINAL WRIT PETITION NO.306 OF 2025

                        Hardil Singh Telsingh Andherele, Aged 46
                        years, Occup. Agricultural labour, R/o.
                        Kakaddara Talegaon (S.P.), Tah.Ashti, Dist.
                        Wardha.                                                 Petitioner
                                           -Versus-
                1.      The State of Maharashtra,
                        Through its Principal Secretary, Home
                        Department, Mantralaya, Mumbai-32.
                2.      The District Magistrate and Collector, Wardha,
                        District Wardha.
                3     The State of Maharahtra through P.S.O,                        Respondents
                      Talegaon (S.P.), Dist. Wardha.
               ---------------------------------------------------------------------------
                                Mr.Mahesh Rai, Advocate for the Petitioner.
                             Mr.S.S.Doifode,A.P.P. for respondent Nos.1 to 3.
               ---------------------------------------------------------------------------
                                  CORAM : ANIL S. KILOR AND
                                                  MRS. VRUSHALI V. JOSHI, JJ.
                                   DATE : 09/07/2025
                JUDGMENT (Per: Vrushali V. Joshi, J.)

1) Heard. Rule. Rule made returnable forthwith. The Criminal

Writ Petition is heard finally with the consent of the learned counsel

appearing for the parties.

2) The petitioner has been detained by the order dated

28.01.2025 passed by the respondent No.2 - District Magistrate and

Collector, Wardha, under Section 3(2) of the Maharashtra Prevention

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of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders,

Dangerous Persons, Video Pirates, Sand Smugglers and Person

Engaged in Black Marketing of Essential Commodities Act, 1981, (for

short, "the MPDA Act"). This order is under challenge before this

Court, which was thereupon confirmed by respondent no.1 on

06.03.2025.

3) The record of proposal initiated against the detenu for the

purpose of his detention as a "Bootlegger" was produced before

respondent no.2 by the Assistant Police Inspector, Police Station,

Talegaon (S.P), Distt. Wardha, showing offences registered against him

since May 2016 to December 2021, wherein 12 offences have been put

up, highlighting his criminal antecedents. In addition to which since

the year August 2022 to September 2024, 8 offences have been

registered against the petitioner/detenu.

4) Out of them, the detention order is relied upon two offences

of last six months under the MPDA Act, 1949 which are as under:-

(i) C.R. no.553/2024, under Sections 65(e), 77(a) of the

Maharashtra Prohibition Act, 1949, dated 15.09.2024, filed at

the Police Station Talegaon (S.P.), Wardha.

Kavita cri.wp.306-25.odt

(ii) C.R. No. 460/2024, u/s 65(e), 77(a) of Maharashtra

Prohibition Act, 1949, dated 21.08.2024, registered at the Police

Station Talegaon (S.P.), Wardha.

5) In the first offence, i.e., C.R. no. 553/2024, country liquor

of Bobby Orange company worth Rs. 600/- was seized. While, in C.R.

no. 460/2024, country liquor of Rs. 960/- was found. In both the

offences, the detenu was released on notice under Section 35(3) of the

Bharatiya Nagarik Suraksha Sanhita, 2023. The chemical analysis

report received in the said crimes indicate that the samples contained

42.28% and 42.64% of ethyl alcohol respectively. Both the offences are

under trial before the concerned Court.

6) Learned counsel for the petitioner, Mr. Rai, has highlighted

the grounds on which the detention order has been passed which

constitutes of as under:-

(a) Plea of consideration of bail orders, when the petitioner has

been released upon service of notice under Section 35(3) of

BNSS, 2023.

(b)Delay of about 135 days in passing the detention order from

the date of commission of the last offence, snapping the live-link

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between the last prejudicial activity and passing of the detention

order.

(c) Endorsement on the in-camera statements of witnesses "A"

and "B" that, whether the SDPO verified the said statements in

the presence of the detaining authority, or not.

7) Learned advocate of the petitioner, Mr. Rai, submitted

that in the incident narrated in statement of witness "A", there is no

reason to accost the person involved in the dispute as he has not stated

the place where the said person was laying on the public road and thus,

the said incident does not show that the petitioner has caused terror in

the society. It is the contention of the learned advocate that the report

of Assistant Professor, Government Medical College, Akola, opined

that consumption of ethyl alcohol badly affects the life of people and

thus, causes danger to the public health. However, there is no single

report which shows that any person has died in the vicinity where the

petitioner resides or in the village due to the same.

8) The main argument here pertains to non-verification of

the genuineness and authenticity of the in-camera statements by the

detaining authority.

9) Learned APP, Mr. Doifode, vehemently opposed the

arguments advanced by the petitioner, placing reliance on the affidavit- Kavita cri.wp.306-25.odt

in-reply filed on behalf of the respondents.

10) Learned APP, Mr. Doifode, with respect to the service of

notice to the detenu under Section 35(3) of the BNSS, 2023, placed

reliance in the matter of Hirabai Kondiba Kale Vs. State of Maharashtra

observed that "True it is that the petitioner cannot be allowed to take a

stand that the investigating officers having merely served her a notice

under Section 41-A of the Code of Criminal Procedure and did not

find it necessary to arrest her could have any bearing albeit", this Court

has resorted to such a reasoning in the matters of Prashant Bharat Datar

Vs. State of Maharashtra and anr.(Criminal Writ Petition No.914 of

2021 of this Court, Devidas Lalji Ade Vs.State of Maharashtra and

others (Criminal Writ Petition No.469 of 2022) of the Bench at

Aurangbabad .

11) He further stated that the proposal on 13.01.2025 of Police

Station, Talegaon, through the recommendation letter dated 14.1.2025

of SDPO Arvi and with strong recommendation dated 17.1.2005 of

Superintendent of Police, Wardha, was sent to the detaining authority.

It is submitted that on 28.1.2025 the detaining authority SDPO Arvi

verified the statements and after being satisfied with the contents,

issued detention order on the same day i.e., on 28.1.2025 and thus there

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is no delay in issuing the detention order. And hence, this technical time

cannot be referred as delay. Moreover 2-3 months are permissible in

such matter. Hence the contents are not accepted. It is the argument of

the learned APP that as per the opinion of the medical officer which

resulted into the production of toxicology report, the administration

cannot wait for taking action against the petitioner after the death of the

citizens.

12) On the ground with regards to the in-camera statements

of confidential witnesses "A" and "B", learned advocate submitted that

upon perusal of the confidential statements, it could be very clearly seen

that an endorsement has been put up by the detaining authority on both

the statements as, "Personally verified by SDPO, Arvi, in front of me."

13)           Heard both the learned counsel.



14)           The main grounds along with other grounds in which the

petitioner has raised challenge are as under:-

(i) The petitioner was released on notice under Section 35(3)

Bharatiya Nagarik Suraksha Sanhita, 2023 (for short BNSS). It is

observed by the detaining authority in the detention order that he has

considered the bail application and conditions in the bail application Kavita cri.wp.306-25.odt

and has passed the order. As the petitioner has violated conditions of

bail bonds, considering all these aspects has passed the order.

15) The another issue which the petitioner has raised is about the

verification for the statements of the confidential witnesses. According

to him it is not properly verified. The authority has not verified it and

therefore, the order stands vitiated.

16) We have gone through the record with the help of both the

counsels. On perusal of the order it appears that two offences within a

period of six months are considered for passing the detention order.

Crime No.553 of 2024 for the offence punishable under Section 65(e),

77(a) of the Maharashtra Prohibition Act 1949 and Crime No.460 of

2024 for the offence under Section 65(e) and 77(a) of Maharashtra

Prohibition Act,1949 are considered along with two confidential

statements of the witnesses.

17) On going through the detention order, it appears that in

paragraph No.15 it is mentioned by the detaining authority that the bail

orders are considered while passing the detention order and it is

specifically mentioned that, the petitioner has violated the conditions of

bail. Notice has been given under Section 41-A of the Code of Criminal

Procedure or under Section 35(3) of the BNSS, 2023. Even after Kavita cri.wp.306-25.odt

executing the bail bonds, the petitioner committed the offence. It

clearly shows that the order is passed mechanically. The petitioner was

released on issuance of notice. The procedure of violating the bonds if

executed is prescribed under the Act. For violation of bond there is

provision to recover the bond amount, the said provision is not followed

and without considering whether he was on bail or not mechanical

observations were made that the detaining authority has gone through

the bail orders. The petitioner has relied on the judgment of this Court

in support of his argument about passing such mechanical order passed

by this Court in Writ Petition No.937 of 2024 ( Santosh Bhimrao

Parise Vs. The State of Maharashtra and ors.) dated 08.04.2025 and the

judgment of the Hon'ble Apex Court in the matter of Criminal Appeal

No.2897 of 2025 Dhanyam ..Vs. State of Kerala and ors.

18) The another ground which was raised by the petitioner is

about the verification of the statements of confidential witnesses. The

detaining authority has considered the confidential statements for

passing the detention order. The verification of confidential statements

is necessary if the order is passed on the basis of said statements. On

perusal of the statements, it appears that they were recorded on

12.01.2025. The person who has recorded it, has not verified it by

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reading over it to the said witnesses. The SDPO has stated that he has

verified it personally at his office on 18.01.2025 and he was satisfied

with the statements given by the secret witnesses. The purpose of

verification is that the person who has given the statement, it was read

over to said person and he has stated that whatever he has stated in his

statement is correct. Such type of verification is not there. It is the

satisfaction of the SDPO according to him who has verified the said

witnesses. Thereafter, on 28/07/2025, the detaining authority has stated

that in his presence the SDPO he has personally verified the said

statement which creates doubt about the verification of the statements

of witnesses.

19) The learned counsel for the petitioner has relied on the

judgment of this Court in Criminal Writ Petition No.873 of 2022,

wherein this Court has observed that the detaining authority had in fact

interacted either with the witnesses or discussed it with the authority

who verified such statements and thus, the order of detention stands

vitiated.

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20) The learned APP has relied on the judgment of this Court

in support of his argument that there is no specific format of

verification. He has relied on the following judgments:-

1. Vinod Dhannulal Jaiswal Vs. District Magistrate Aurangabad reported in 2024 ALL MR (Cri.)680.

2. Phulwari Jagdambaprasad Pathak Vs. R.H. Mendonca and ors. reported in 2000 ALL MR (Cri.)1503.

3. Badal Manoj Sahare Vs. State of Maharashtra and ors. reported in 2024 ALL MR (Cri.)102.

4. Saraswati Santosh Rathod Vs. Commissioner of Police, Pune City reported in 2024 ALL MR (Cri.)2764.

5. Rohit @ Karan Purshottam Naukariya Vs. State of Maharashtra and ors reported in 2022 ALL MR (Cri.), 3758.

6. Saket Vikas Panase Vs.State of Maharashtra and anr.

Rerported in 2022 ALL MR (Cri) 3760.

7. Harish Patil Vs.The State of Maharashtra and ors.

reported in 2016 ALL MR (Cri.) 5155.

21) We have considered the authorities cited by the learned

APP. As the procedure of verification of the statements is not followed,

which creates doubt about its verification only because the authority has

stated that it is verified in his presence is not sufficient to consider said

statements for passing the detention order.

22) One more aspect is there, to see whether the offences, which

are considered by the detaining authority come under the purview of

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the disturbance of public order. The observation made by the learned

Apex Court in Arjun Ratan Gaikwad Vs. The State of Maharashtra and

ors. reported in Criminal Appeal arising out of SLP (Cri.) No.12516 of

2024 is as under :-

15. As to whether a case would amount to threat to the public order or as to whether it would be such which can be dealt with by the ordinary machinery in exercise of its powers of maintaining law and order would depend upon the facts and circumstances of each case. For example, if somebody commits a brutal murder within the four corners of a house, it will not be amounting to a threat to the public order. As against this, if a person in a public space where a number of people are present creates a ruckus by his behaviour and continues with such activities, in a manner to create a terror in the minds of the public at large, it would amount to a threat to public order. Though, in a given case there may not be even a physical attack.

23) In the recent judgment of Hon'ble Apex Court in Criminal

Appeal N0.2897 of 2015 Dhanyam Vs. State of Kerala and ors., the

Hon'ble Apex Court has observed as under:-

19. In consonance with the above expositions of law, in our view, the attending facts and circumstances do not fall under the category of a public order situation. 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 Kavita cri.wp.306-25.odt

actions of the detenu warrant the exercise of such an exceptional power.

24) By considering the above said judgments, the Hon'ble Apex

Court has come to the conclusion that every offence does not fall in the

category of public order situation.

25) On perusal of the offences which are considered for passing

the detention order, the petitioner was not even arrested. Considering

the above said circumstances, we are of the view that the order passed by

the detaining authority is required to be quashed and set aside.

26) In view of the above mentioned observations, the impugned

order passed by the detaining authority is hereby quashed and set aside.

Hence, we pass the following order.

27) The Writ Petition is allowed in terms of it's prayer clause (i)

The petitioner be set at liberty forthwith, if not required in any other

crime.

                              28)           Rule is made absolute in above terms.




Signed by: Kavita P Tayade     (MRS.VRUSHALI V. JOSHI, J)                  (ANIL S. KILOR, J)
Designation: PS To Honourable Judge
Date: 09/07/2025 18:56:15     Kavita