Bombay High Court
Shaikh Mahebub @ Gorya Shaikh Babu vs The District Magistrate on 8 May, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:13650-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.2062 OF 2024
Shaikh Mahebub @ Gorya s/o Shaikh Babu
Age: 22 years, Occu.: Labour,
R/o. Near Gram Panchayat,
Wajegaon, Nanded. .. Petitioner
Versus
1. The District Magistrate,
Nanded.
2. Superintendent of Police,
Nanded.
3. The State of Maharashtra
(Through the Secretary Home
Department (Spl.) Mantralaya,
Mumbai
4. The Superintendent Aurangabad
Central Prison, Aurangabad. .. Respondents
...
Mr. A. K. Bhosale, Advocate for the petitioner.
Mr. N. R. Dayama, APP for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 08 MAY 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. A. K. Bhosale for the petitioner and
learned APP Mr. N. R. Dayama for the 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 26.08.2024
bearing No.2024/RB-1/Desk-2/T-4/MPDA/CR-48 passed by respondent
No.1 as well as the approval order dated 05.09.2024 and the
confirmation order dated 11.10.2024 passed by respondent No.3, 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, two offences were
considered i.e. Crime No.164 of 2024 registered with Nanded Rural
Police Station, District Nanded for the offences punishable under Section
397 read with Section 34 of Indian Penal Code and Crime No.491 of
2024 registered with Nanded Rural Police Station, District Nanded for
the offences punishable under Sections 3, 7 punishable under Section
25 of the Arms Act. Learned Advocate for the petitioner submits that
though the chart in paragraph No.3 is of eight offences, only two
offences out of them as well as the in-camera-statements of two
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witnesses have been considered for passing the detention order. In both
the matters, the petitioner has been released on bail. Though the note of
bail order has been taken, however, the reasons given in the bail order
by the competent Courts have not been taken into consideration. Even if
the facts in the matter are taken as it is, they would have at the most
created law and order situation and not the public order. He further
submits that perusal of the statement of in-camera witness 'A' would
show that though in the upper part, the name of the present petitioner
has been taken, yet in the last paragraph, name of another person has
been stated as the person who has created terror in the vicinity. The
said statement is stated to have been verified by the Deputy
Superintendent of Police, Nanded, Rural Division and also by the District
Magistrate, but still this fact has not been noticed by them. Even if the
statements of in-camera witnesses 'A' and 'B' are taken as it is, they
would also have created law and order situation and not the public order.
The impugned order is, therefore, illegal and cannot be allowed to
sustain.
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
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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 on the affidavit-in-reply of Mr. Abhijit
Raut, the District Magistrate, Nanded i.e. detaining authority, who has
stated as to how he had arrived at the subjective satisfaction and what
was the material before him at the time of passing the impugned order.
Learned APP submits that the petitioner is involved in offences against
body and almost all the cases except one are still going on. The one
case which was initially registered i.e. Crime No.104 of 2020 appears to
have been settled. The contents of the FIR in both the matters would
show that the criminal activity of the petitioner had not stopped even
after taking preventive action against him under Section 107 of the Code
of Criminal Procedure on 25.09.2023. Final bond was taken from him for
Rs.10,000/-. There is no illegality or error committed by the learned
District Magistrate in holding the petitioner as a dangerous person. The
terror can be spelt from the statements of confidential witnesses.
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. Though it appears that the petitioner is
involved in eight criminal cases, seven cases are still pending and one
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has been settled. However, only two cases and two in-camera
statements have been considered by the learned District Magistrate to
pass the impugned order. The first offence that is considered is Crime
No.164 of 2024 registered with Nanded Rural Police Station, District
Nanded for the offences punishable under Section 397 read with Section
34 of Indian Penal Code, which came to be registered on 04.03.2024
and it is still under investigation. Perusal of the FIR in the matter would
show that the FIR was against unknown person. The record shows that
the supplementary statements of the informant and the witnesses were
placed before the learned District Magistrate. As per the FIR, amount of
Rs.90,000/- and a mobile was extorted from the informant. There is
discovery panchanama and it is stated that on the statement of the
present petitioner, the motorcycle and amount of Rs.90,000/- with other
articles have been seized. However, the documents before the learned
District Magistrate were not in the form of identification parade of the
petitioner by the informant and, therefore, the connection between the
petitioner and the crime should have been the important aspect that
ought to have been considered by the learned District Magistrate.
Further, the petitioner was released on bail by learned Additional
Sessions Judge, Court No.3, Nanded on 24.04.2024. When even the
conditions were put that the applicant should attend the police station on
every Sunday and Friday and cooperate with the investigating officer till
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filing of the charge-sheet and the charge-sheet was not filed even till the
date the impugned order was passed, the District Magistrate ought to
have considered the terms and conditions attached to the bail order.
8. Perusal of the second offence i.e. Crime No.491 of 2024 would
show that the petitioner was found possessing a pistol. That fact was
revealed when secret information was received at the police station and
the informant along with the other police officers went for patrolling and
arrested the petitioner around 13:45 hours on 17.06.2024. It is stated
that in his personal search, a country made pistol was found to his waist
and two cartridges were found in the pocket of his pant. The FIR, the
panchanama and the statements of witnesses which were the part of the
record do not show that the place of keeping pistol was visible to the
public at large. If it would have been seen by the people, then only there
was question of terror in the mind of people. Here, we are not
considering the other merits of the case, but only the angle of the
allegation that the activity of the petitioner was dangerous to the public. If
the said pistol was in a sealed state attached to his waist, then people
would not have gathered about it and, therefore, from the facts of the
said case, there could not have been a subjective satisfaction for the
District Magistrate to arrive at the conclusion. Further, the petitioner has
been released on bail in respect of that offence on 21.08.2024, however,
the bail order has not been considered by the detaining authority. We
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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 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
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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."
9. In respect of in-camera statements of witnesses 'A' and 'B', first of
all, those facts would have at the most raised law and order situation and
not the public order. Another fact to be noted is that in statement of
witness 'A', the name of another person i.e. Shaikh Jubair Shaikh Khadir
has been mentioned as the person who has created terror and nobody
came forward to help the said witness. The name of the present
petitioner is different, still Deputy Superintendent of Police, Nanded
Division and the District Magistrate could not find the error at the time of
verification. This also shows non application of mind by the District
Magistrate.
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
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bootlegger.
11. For the aforesaid reasons, the petition deserves to be allowed.
Hence, following order is passed :-
ORDER
I) The Writ Petition is allowed.
II) The detention order dated 26.08.2024 bearing No.2024/RB-
1/Desk-2/T-4/MPDA/CR-48 passed by respondent No.1 as well as
the approval order dated 05.09.2024 and the confirmation order
dated 11.10.2024 passed by respondent No.3, are hereby quashed
and set aside.
III) Petitioner - Shaikh Mahebub @ Gorya s/o Shaikh Babu
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
