Bombay High Court
Paras Rajendra Apte vs State Of Maharashtra Through Its ... on 4 September, 2025
Author: Anil L Pansare
Bench: Anil L Pansare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION No. 453 OF 2025.
Paras Rajendra Apte,
Aged about 24 years, Occupation
Labour, Resident of Santaji Plot,
Sankat Mochan Road, Yavatmal. ... PETITIONER.
VERSUS
1.The State of Maharashtra,
through its Secretary, Home
Department (Special), Mantralaya,
Mumbai.
2.The Collector/District Magistrate,
Yavatmal. ... RESPONDENTS.
---------------------------------
Mr. M.N. Ali, Advocate for the Petitioner.
Ms S.S. Jachak, A.P.P. for Respondents.
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CORAM : ANIL L PANSARE AND
M.M. NERLIKAR, JJ.
JUDGMENT RESERVED ON : 21.08.2025.
JUDGMENT PRONOUNCED ON : 04.09.2025.
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JUDGMENT (Per M.M. Nerlikar, J).
Heard. Issue Rule, returnable forthwith. Ms S.S. Jachak,
A.P.P. waives notice for Respondents. By their consent, the matter
is taken up for final disposal.
2. By this petition, the petitioner has challenged the order
of detention dated 09.04.2025 passed by respondent no.2 - District
Magistrate, Yavatmal who by exercising the powers under Section
3[2] of the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video
Pirates, Sand Smugglers and Persons engaged in Black-marketing of
Essential Commodities Act, 1981 (MPDA), ordered detention of the
petitioner in District Prison, Class-1, Yavatmal Central Jail, Amravati
District.
3. The facts in the present case in brief are that - the
petitioner is stated to have been regularly committing offences of
various kinds i.e. threatening to kill, assault, threat, robbery,
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spreading terror with weapon, attempt to murder since 2019, and
that this act on his part have created danger amongst the people and
further created a sense of insecurity amongst, which is adversely
affecting maintenance of public order and prejudicial to public order.
There are in all total 7 cognizable offences registered against him
under Chapter XVI and XVII of the Indian Penal Code and punishable
under Chapter V of the Arms Act. In some cases preventive action
was also taken against the petitioner from committing crime. The
Authority i.e. respondent no.2 thus, passed the impugned detention
order branding the petitioner as 'dangerous person', which is subject
matter of this petition.
4 The petitioner has challenged this order of detention
mainly on two grounds - firstly, that the conditions of bail has not
been considered by the respondent no.2, though bail order dated
20.12.2024 was part of the material placed before him, and
secondly, the in-camera statements recorded by the Sponsoring
Authority do not satisfies the test of subjective satisfaction, and
therefore, the activities which are narrated in the said statements,
are not prejudicial to pubic order. In support, the learned Counsel
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for the petitioner has relied on the recent judgment of Hon'ble
Supreme Court in case of Joyi Kitty Joseph .vrs. Union of India and
others - (2025) 4 SCC 476.
5. Per contra, the learned A.P.P. has conceded that though
bail order was part and parcel of the material placed before
respondent no.2, respondent no.2 has not taken into consideration
the grounds of bail. However, that by itself will not render the order
of detention as invalid, as there are other grounds on which the
order of detention can be sustained. She further submits that the
order of detention is based on two criminal offences i.e. (1) Crime
No.1312/2024 registered with Awdhutwadi Police Station, Yavatmal
for offence punishable under Sections 109, 189[4], 190, 191[2] of
Bhartiya Nyaya Sanhita and (2) Crime No.1316/2024 registered
with Awdhutwadi Police Station, Yavatmal for offence punishable
under Sections 4, 25 of the Arms Act and two in-camera statements
of witnesses "A" and "B". She submits that the entire material was
considered by respondent no.2 objectively and based on that, the
respondent no.2 has subjectively satisfied himself and accordingly
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passed the order of detention. She further submits that even though
the detention order does not sustain on one ground, however, the
order would sustain on other grounds like two in-camera statements.
6. Upon consideration of rival submissions, it appears to us
that the order of detention was basically passed on the grounds i.e.
two crimes and two in-camera statements. While considering the
grounds of detention by the Detaining Authority in paragraph no.10,
it is mentioned as under :
"10. Paragraph no.8 to 8.2 on the basis of
offence and incidents as well as paragraph no.9,
9.1 and 9.2 I am satisfied from the testimony of
the witnesses that we are aware that the
provisions of the Maharashtra Slum Gangs,
Handicrafts, Drug Offenders, Dangerous Persons
and Unlicensed Exhibitors of Audio Visual Works
Act, 1981 (Amendment 2015) Section 2(B-1) is a
dangerous person and that your act constitutes an
act which would disturb public order as per
Section 2(Four-A) of the said Act you are a
Dangerous Person. From the above record and I
personally am fully satisfied for the above reasons
that your criminal activities are disturbing to the
maintenance of public order on a large scale. You
are a dangerous person and your criminal
activities have created a sense of fear in the mind
of poor people within Police Station
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Awadhutwadi. From your criminal attitude and
actions which have been shown here, it is clear
that you are likely to commit such acts disturbing
the public order in the future as well. All the
reasons given here are sufficient to satisfy me that
we need to be placed in order to prevent us from
committing acts which disturb public order."
7. So far as the first ground raised by the learned Counsel
for the petitioner is concerned, there is no subjective satisfaction as
there is no consideration of conditions of bail. Therefore, the order
would not sustain. In case of Joyi Kitty Joseph (supra), the Hon'ble
Court has in paragraph nos. 32 to 35 held as under :
"32. Likewise, in the present case, we are
not concerned as to whether the conditions
imposed by the Magistrate would have taken care
of the apprehension expressed by the detaining
authority; of the detenu indulging in further
smuggling activities. We are more concerned with
the aspect that the detaining authority did not
consider the efficacy of the conditions and enter
any satisfaction, however subjective it is, as to the
conditions not being sufficient to restrain the
detenu from indulging in such activities.
33. Ameena Begum, noticed with
approval Vijay Narain Singh v. State of Bihar and
extracted paragraph 32 from the same (Vijay
Narain Singh) : (SCC pp.35-36)
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"32. .... It is well settled that the
law of preventive detention is a hard law
and therefore it should be strictly
construed. Care should be taken that the
liberty of a person is not jeopardised
unless his case falls squarely within not be
used merely to clip the wings of an
accused who is involved in a criminal
prosecution. It is not intended for the
purpose of keeping a man under detention
when under ordinary criminal law it may
not be possible to resist the issue of orders
of bail, unless the material available is
such as would satisfy the requirements of
the legal provisions authorising such
detention. When a person is enlarged on
bail by a competent criminal court, great
caution should be exercised in scrutinising
the validity of an order of preventive
detention which is based on the very same
charge which is to be tried by the criminal
court."
[emphasis supplied]
34. The criminal prosecution launched
and the preventive detention ordered are on the
very same allegations of organised smuggling
activities, through a network set up, revealed on
successive raids carried on at various locations, on
specific information received, leading to recovery
of huge cache of contraband. When bail was
granted by the jurisdictional Court, that too on
conditions, the detaining authority ought to have
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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.
35. 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 of smuggling."
8. Thus, the Hon'ble Supreme Court has highlighted the
importance of conditions of bail imposed by the concerned Court
while releasing an accused on certain terms and conditions in the
same offence, wherein the case of detenu for detention was also
considered. In such circumstances it was imperative on the part of
the Detaining Authority to consider the importance of the conditions
and enter into satisfaction.
9. The Hon'ble Supreme Court while relying in the case of
Amena Begum .vrs. State of Telengana (2023 9 SCC 587, has
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observed that when a person is enlarged on bail by a competent
Criminal Court, great caution should be exercised in scrutinizing the
validity of an order of preventive detention which is based on the
very same charge which is to be tried by the criminal court.
Therefore, the Hon'ble Supreme Court has in clear terms held that in
order to arrive at a conclusion the Detaining Authority shall
subjectively satisfy himself by considering the conditions of bail.
However, upon perusal of the grounds of detention by respondent
no.2, we do not find that the Detaining Authority has considered
the conditions of bail order dated 20.12.2024 passed in Criminal Bail
Application No.581/2024 relating to Crime No.1312/2024. Even
this fact is also conceded by the learned A.P.P.
10. The learned Counsel for the petitioner further pressed
into service his second ground in respect of two in-camera
statements and submits that even if those statements are taken as it
is, the activities which are mentioned in those statements, do not led
to the disturbance of public order or prejudicial to the maintenance
of public order. The incidents narrated are individual in nature, and
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therefore, the Detaining Authority has failed to consider the contents
of statements in its true perspective and therefore, it cannot be said
to be subjectively satisfied.
11. However, the learned A.P.P. vehemently submitted that
due to terror of the petitioner no one is coming forward to lodge
complaint/first information report against the petitioner. He further
submits that these two in-camera statements discloses that, there is
threat to kill witness "A" and asked him to pay money for alcohol.
Further in statement of witness "B", the petitioner demanded
money. He slapped this witness and also threatened to kill him, and
therefore, these activities of the petitioner are sufficient to brand him
as 'dangerous person', which is defined under Section 2[b-1] of the
MPDA Act.
12. Having considered this second ground, it is necessary to
reproduce the statements of witness "A" and "B".
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Bare perusal of statements of these witnesses, it can be
gathered that the act of petitioner, which are narrated by these
witnesses was of individual in nature. The activities narrated in
those statements cannot be said to be causing any harm to the public
at large, and therefore, it cannot be in any said that the activities
would led to disturbance of public order or prejudicial to the
maintenance of public order.
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13. In case of Ram Manohar Lohia .vrs. State of Bihar and
another - [1996] 1 SCR 709, the Supreme Court has discussed as
regards the distinction between 'public order' and 'law and order'.
Paragraph nos. 54 and 55 therein reads as under.
"54. ... Public order if disturbed, must lead to
public disorder. Every breach of the peace does
not lead to public disorder. When two drunkards
quarrel and fight there is disorder but not public
disorder. They can be dealt with under the powers
to maintain law and order but cannot be detained
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on the ground that they were disturbing public
order. Suppose that the two fighters were of rival
communities and one of them tried to raise
communal passions. The problem is still one of law
and order but it raises the apprehension of public
disorder. Other examples can be imagined. The
contravention of law always affects order but
before it can be said to affect public order, it must
affect the community or the public at large. A
mere disturbance of law and order leading to
disorder is thus not necessarily sufficient for action
under the Defence of India Act but disturbances
which subvert the public order are....
55. It will thus appear that just as 'public
order' in the rulings of this Court (earlier cited)
was said to comprehend disorders of less gravity
than those affecting 'security of State', 'law and
order' also comprehends disorders of less gravity
than those affecting 'public order'. One has to
imagine three concentric circles. Law and order
represents the largest circle within which is the
next circle representing public order and the
smallest circle represents security of State. It is
then easy to see that an act may affect law and
order but not public order just as an act may affect
public order but not security of the State."
14. Thus, the Supreme Court has clarified the situation
which would led to disturbance of public order. Therefore,
respondent no.2 in order to brand the petitioner as dangerous
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persons relied on two in-camera statements. However, both the
statements referred above, do not indicate that the activities of the
petitioner is prejudicial to the maintenance of public order or it leads
to disturbance of public order, and therefore, the respondent no.2
while arriving at the subjective satisfaction has utterly failed to
consider the activities of the petitioner. Needless to mention that
the respondent no.2 ought to have considered whether the activities
of petitioner are individual in nature and whether it affects the
public order. However, merely observing that the petitioner is a
dangerous person and his criminal activities are disturbing
maintenance of public order is not sufficient. The gravity and degree
of criminal activity will have to be taken into consideration, the
activity must be such that it should affect community or the public at
large. However, this consideration is missing in the entire impugned
order.
15. We have already reproduced paragraph no.10 of the
grounds of detention order which deals with subjective satisfaction.
It would indicate that the respondent no.2 has not applied his mind
for the simple reason that he has quoted the name of the Act
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wrongly, but, also has not discussed anything either on two crimes
or two in-camera statements, as to how they are sufficient to enter
into a subjective satisfaction. We find that there is no application of
mind, and therefore, it cannot be said that the respondent no.2 has
arrived at a subjective satisfaction. Apart from this, considering the
fact that there is no consideration of bail order dated 20.12.2024,
and further the activities shown / narrated in in-camera statements
cannot form basis for passing order of detention, as the activities are
individual in nature and therefore, there is no disturbance of public
order. The order impugned therefore, cannot be sustained in law
and is liable to be quashed and set aside. Hence, the following order.
ORDER
(1) Criminal Writ Petition is allowed.
(2) The order of detention passed by the respondent
no.2 - Collector/ District Magistrate, Yavatmal
dated 09.04.2025 is hereby quashed and set
aside.
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(3) The petitioner be released forthwith if not
required in any other offence.
(4) Rule is made absolute in aforesaid terms.
JUDGE JUDGE
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