Bombay High Court
Bhushan Raghunath Sapkale vs District Magistrate And Others on 12 June, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:15516-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.301 OF 2025
Bhushan Raghunath Sapkale
Age: 32 years,
R/o. At-Khedi Khurd,
Taluka and District Jalgaon .. Petitioner
Versus
1. District Magistrate, Jalgaon,
Jalgaon.
2. The State of Maharashtra
Through Addl. Chief Secretary
to Government of Maharashtra
Mantralaya, Home Department,
Mantralaya, Mumbai.
3. The Superintendent
Yerwada Central Prison,
Pune. .. Respondents
...
Mr. Rupesh Jaiswal, Advocate h/f Ms. Jayshree Tripathi, Advocate for the
petitioner.
Mrs. P. R. Bharaswadkar, APP for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 12 JUNE 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. Rupesh Jaiswal holding for learned
Advocate Ms. Jayshree Tripati for the petitioner and learned APP Mrs. P.
R. Bharaswadkar 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 27.09.2024
bearing No.Dandapra/KAVI/MPDA/38/2024 passed by respondent No.1 as
well as the approval order dated 08.10.2024 and the confirmation order
dated 18.12.2024 passed by respondent No.2, 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, four offences were
considered i.e. (i) Crime No.105 of 2021 registered with Jalgaon Taluka
Police Station, District Jalgaon for the offences punishable under
Sections 341, 323, 504, 506 of Indian Penal Code, (ii) Crime No.531 of
2021 registered with Jilha Peth Police Station, District Jalgaon for the
offences punishable under Section 302 read with Section 34 of Indian
Penal Code, (iii) Crime No.80 of 2024 registered with Savda Police
Station, District Jalgaon for the offences punishable under Section 142
of the Maharshtra Police Act, 1951 and (iv) Crime No.283 of 2024
registered with Jilha Peth Police Station, District Jalgaon for the offences
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punishable under Section 3 punishable under Section 25 and under
Section 27 of Indian Arms Act, under Section 142 of the Maharashtra
Police Act. Learned Advocate for the petitioner submits that though the
petitioner as per the impugned order was involved in all seven offences,
the detaining authority has considered only four offences. As regards
first two offences i.e. Crime No.105 of 2021 dated 18.04.2021 and Crime
No.531 of 2022 dated 24.08.2022 are concerned, there was absolutely
no live link between these two offences and the detention order. As
regards the other two offences i.e. Crime No.80 of 2024 dated
24.04.2024 and Crime No.283 of 2024 dated 28.08.2024 are concerned,
it can be seen that those offences were personal i.e. individualistic and
public was not affected by the alleged acts of the petitioner. He submits
that though the petitioner has been released on bail in all of the four
offences, which were considered, yet the bail orders have not been
considered at all. Even the statements of in-camera witnesses 'A' and 'B'
would show that at the most the alleged acts would have caused law and
order situation and not the public order. Therefore, the impugned order is
illegal and cannot be allowed to sustain.
5. Per contra, the learned APP strongly supports the action taken
against the petitioner. She submits that the petitioner is a dangerous
person as defined under Maharashtra Prevention of Dangerous Activities
of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons and
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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 relies on the affidavit-in-reply of Mr. Ayush
Prasad, District Magistrate, Jalgaon/detaining authority, who tries to
demonstrate as to how he had arrived at the subjective satisfaction.
Learned APP submits that the activities of the petitioner were repeatedly
going on and even the preventive actions under Sections 107 and 110
(e)(g) of the Code of Criminal Procedure had not stopped him from
committing further offences. The impression about the petitioner in the
mind of public could be reflected from the in-camera statements of
witnesses 'A' and 'B'. Due to the fear of the petitioner they had not
lodged any report. As the petitioner was not curtailing his activities,
which were detrimental to the public at large, the detaining authority had
no option but to declare him as dangerous person and direct him to be
detained.
6. Before considering the case, we would like to take note of the
legal position as is emerging in the following decisions :-
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(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
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. At the outset, it is to be noted that Crime
No.105 of 2021 is registered on 18.04.2021 and Crime No.531 of 2022 is
registered on 24.08.2022 and the order of detention has been passed on
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27.09.2024. Therefore, it can be said that there was no live link between
those two offences and the order of detention. As regards Crime No.80
of 2024 dated 24.04.2024 and Crime No.283 of 2024 are concerned, the
incidents in both the offences would show that general public was not
involved. At the most, law and order situation would have been created
and not the public order. It is further to be noted that in 2017, 2018, 2021
and 2022, preventive actions under Section 107 and under Section
110(e)(g) of the Code of Criminal Procedure were taken. Whether those
were taken to the logical end or not has not been mentioned. Further, it
is to be noted that in all the four offences, which were considered, the
petitioner has been released on bail, 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 when the ordinary law of the
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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 27.09.2024 bearing
No.Dandapra/KAVI/MPDA/38/2024 passed by respondent No.1 as
well as the approval order dated 08.10.2024 and the confirmation
order dated 18.12.2024 passed by respondent No.2, are hereby
quashed and set aside.
III) Petitioner - Bhushan Raghunath Sapkale 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
