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
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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.
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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
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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,
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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
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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
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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
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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
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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
