[Cites 22, Cited by 0]
Bombay High Court
Suyog Allias Sushil Madhukar Solunke vs The District Magistrate And Others on 11 February, 2026
2026:BHC-AUG:6089-DB
1 941.Cri.WP.1447.2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1447 OF 2025
Suyog @ Sushil Madhukar Solunke,
Age : 36 Years, Occu.: Agriculture,
R/o. Gondi, Tq. Ambad,
Dist. Jalna. ...Petitioner
VERSUS
1. The District Magistrate,
Jalna.
2. Superintendent of Police
Jalna.
3. The State of Maharashtra
(Through the Secretary Home Department (Spl)
Mantralaya, Mumbai.
4. The Superintendent Aurangabad
Central Prison, Aurangabad. ...Respondents
...
Mr. Abhaysinh K. Bhosle, Advocate for the Petitioner.
Mr. P. S. Patil, A.P.P. for Respondent Nos. 1 to 4.
...
CORAM : SANDIPKUMAR C. MORE AND
ABASAHEB D. SHINDE, JJ.
Reserved on : 03.02.2026
Pronounced on : 11.02.2026
JUDGMENT (PER : ABASAHEB D. SHINDE, J.) :
1. Heard.
2. Rule. Rule is made returnable forthwith. With the consent of
the parties Writ Petition is taken up for final hearing at the stage of
admission.
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3. By this Writ Petition, the petitioner is taking an exception to
the detention order and committal order dated 15.07.2025 bearing
No.2025/RB-Desk-1/Pol-1/Kavi-155, passed by Respondent No.1-
District Magistrate, Jalna in exercise of powers under Section 3 (1)
of the Maharashtra Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug-offenders, Dangerous Persons, Video Pirates,
Sand Smugglers, Persons Engaged in Black-Marketing of Essential
Commodities, Illegal Gambling, Illegal Lottery and Human
Trafficker Act, 1981 (hereinafter referred to as "MPDA Act"). By the
impugned detention order, the petitioner has been directed to be
detained on the ground that the petitioner is a "sand smuggler"
within the meaning of Section 2 (e-2) of the MPDA Act, holding his
activities prejudicial to the maintenance of public order.
4. It seems that the Assistant Police Inspector, Police Station
Gondi, Jalna submitted a proposal seeking detention of the
petitioner. The said proposal appears to have been routed through
the Sub-Divisional Police Officer, Sub-Division Ambad, Jalna and
Superintendent of Police, Jalna and eventually placed before
Respondent No.1-District Magistrate, Jalna who in turn found that
the petitioner's detention is necessary to prevent him from acting in
any manner prejudicial to public order. It is pertinent to note that,
3 941.Cri.WP.1447.2025.odt
though the basis for submission of proposal for detention of
petitioner is registration of five (5) past criminal cases, one Chapter
Case No. 03 of 2024 under Section 110 (e),(g) of the Code of
Criminal Procedure, 1973 and one Externment Order
No.2025/KaVi/MG/SDMAm/123 dated 06.02.2025 registered
against the petitioner at Gondi Police Station , however, the
impugned detention order is based only on recent four (4) offences
bearing Crime No. 205 of 2025 under Sections 118(1), 115(2), 352,
351(2), 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short
"BNS"), dated 05.06.2025, Crime No. 217 of 2025 under Sections
303 (2), 3(5) of BNS read with Sections 3 and 4 of the Mines And
Minerals (Development And Regulation) Act, 1957 (for short
"MMDR Act") dated 12.06.2025, Crime No. 218 of 2025 under
Sections 303 (2), 3(5) of BNS, read with Sections 3 and 4 of the
MMDR Act dated 12.06.2025 and Crime No. 230 of 2025 under
Sections 303 (2), 3(5) of BNS, read with Sections 3 and 4 of the
MMDR Act dated 20.06.2025. In addition to above crimes, two in-
camera statements of witnesses 'A' and 'B' are also considered while
passing the impugned detention order.
5. Learned Counsel for the petitioner would submit that,
although the impugned detention order refers to release of
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petitioner on bail in pending cases, copies of bail application and
the bail orders were admittedly neither placed on record nor has
been considered by the Competent Authority, this lacks the basic
principle of subjective satisfaction. In support of his submission he
placed reliance on the judgment of the Hon'ble Apex Court in the
case of Banka Sneha Sheela Vs. State of Telangana & Ors. reported
in AIR 2021 SC 3656, wherein it has been held that, 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.
6. It is further submitted by the learned Counsel for the petitioner
that out of four (4) offences bearing Crime No. 205 of 2025 dated
05.06.2025, Crime No. 217 of 2025 dated 12.06.2025, Crime No. 218
of 2025 dated 12.06.2025 and Crime No. 230 of 2025 dated
20.06.2025, three (3) offences registered in recent past are under
Sections 303 (2), 3(5) of BNS, read with Sections 3 and 4 of the MMDR
Act. He would submit that the allegations in the said complaint pertains
to alleged illegal excavation and transportation of sand. So far as Crime
bearing No. 205 of 2025 registered on 05.06.2025 is concerned, it is
registered under Sections 118(1), 115(2), 352, 351(2), 3(5) of BNS.
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7. Learned Counsel for the petitioner also submits that Crime No.
217 of 2025 and Crime No. 218 of 2025 have been registered on
one and the same day. He also submits that when these offences
were registered against the petitioner, he was in Magistrate custody
in connection with Crime No. 205 of 2025. He thus submits that
merely because the petitioner was arrested in connection with
Crime No. 205 of 2025, his name has been inserted in Crime No.
217 of 2025 and Crime No. 218 of 2025. He therefore submits that
the said two crimes have been falsely registered against the
petitioner.
8. He however submits that, even taking the allegations of all the
four crimes as it is, the same would not amount to the act
prejudicial to the public order but at the most it could be said to be
an act disturbing the law and order. In that regard he relied on the
judgment of the Hon'ble Apex Court in the case of Hasan Khan Ibne
Haider Khan Vs. R. H. Mendonca and Ors. reported in (2000) 3 SCC
511, and more particularly paragraph 7 which reads thus :
7. This Court in Amanulla Khan Kudeatalla Khan Pathan v. State of
Gujarat [(1999) 5 SCC 613 : 1999 SCC (Cri) 1014] considered the expression
"acting in any manner prejudicial to the maintenance of public order" and
referring to an earlier decision of this Court in Mustakmiya Jabbarmiya
Shaikh v. M.M. Mehta, Commr. of Police [(1995) 3 SCC 237 : 1995 SCC (Cri)
454] held that the fallout and the extent and reach of the alleged activities must
be of such a nature that they travel beyond the capacity of the ordinary law to
6 941.Cri.WP.1447.2025.odt
deal with him or to prevent his subversive activities affecting the community at
large or a large section of society and it is the degree of disturbance and its
impact upon the even tempo of life of the society or the people of a locality
which determines whether the disturbance caused by such activity amounts
only to a breach of "law and order" or it amounts to a breach of "public
order".
9. Learned Counsel for the petitioner would further urge that so
far as in-camera statements of witnesses 'A' and 'B' are concerned,
perusal of these statements would show that those are cyclostyled
lacking details about dates, places and particulars about the alleged
incidents, even otherwise those have been recorded within a span of
few days. In short, the contention of the learned Counsel for the
petitioner is that the in-camera statements are vague and concocted.
It could not have been made basis for passing the impugned order of
detention. In support of his submission he relied on the judgment of
this court in the case of Sourabh s/o Sahebrao Rathod Vs. State of
Maharashtra & Ors. reported in 2022 ALL MR (Cri) 2348 . He would
further submit that, the in-camera statements are neither verified
properly nor the material required for such verification was served
on the petitioner which amounts to depriving the petitioner of
making an effective representation as guaranteed under Article 22
(5) of the Constitution of India, in that regard he relied on the
judgment of the Hon'ble Apex Court in the case of Rashid Kapadia
Vs. Medha Gadgil reported in (2012) 11 SCC 745.
7 941.Cri.WP.1447.2025.odt
10. Per contra, the learned APP supports the impugned order of
detention of the petitioner as well as the order of confirmation.
According to the learned APP the petitioner is a habitual offender
who creates terror and the residents within the jurisdiction of Gondi
Police Station and adjoining areas remain in constant fear. He would
further submit that Respondent No.1-District Magistrate was
subjectively satisfied that, if not prevented, the petitioner is most
likely to indulge in further dangerous activities which are prejudicial
to the maintenance of public order in the future. He would further
submit that Respondent No.1-District Magistrate has adhered to all
the mandatory provisions contained in MPDA Act before passing the
impugned order of detention. He would further submit that
considering the statements of the in-camera witnesses 'A' and 'B', it is
evident that there was threat and violence in both the incidents
which would have directly affected the public order.
11. Learned AGP would further submit that the allegations made
in the offences registered against the petitioner coupled with the in-
camera statements of witnesses 'A' and 'B' shows that the petitioner
used to excavate and transport the sand illegally and even there was
a threat not only to the peace living citizen but even to the police
personnel as well as the officers from Revenue Department as the
8 941.Cri.WP.1447.2025.odt
petitioner even abused, threatened and assaulted these officers. He,
therefore, submits that Respondent No.1-District Magistrate has
rightly considered the entire material placed before him and has
arrived at a subjective satisfaction, that the preventive detention of
the petitioner is very much warranted.
12. Bare perusal of impugned detention order depicts
observations made by Respondent No.1-District Magistrate that, the
petitioner has been released on bail in Crime bearing No. 205 of
2025, and is absconding in other three crimes and thus he is likely
to revert the similar activities prejudicial to the maintenance of
public order in future and therefore, the detention of petitioner is
necessary. In short, Respondent No.1-District Magistrate was aware
that the petitioner has already been released on bail in connection
with one of the crime, which was also the basis for passing the
impugned detention order.
13. The Hon'ble Apex Court in the case of Joyi Kitty Joseph Versus
Union of India and Ors.; (2025) 4 SCC 476 has observed thus :-
"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
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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 vs. State of Telangana, (2023) 9 Supreme
Court Cases, 587, noticed with approval Vijay Narain Singh v.
State of Bihar (1984) 3 Supreme Court Cases 14 and extracted
paragraph 32 from the same (Vijay Narain Singh): (SCC pp.35-
36).
"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 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."
(emphasis supplied)
34. The criminal prosecution launched and the preventive
detention ordered are on the very same allegations of organised
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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
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".
14. It would also be apt to refer to the decision of the Hon'ble
Apex Court in the case of Shaik Nazneen Vs. State of Telangana and
others reported in (2023) 9 SCC 633, more particularly paragraph
19 which reads thus :-
"19. In any case, the State is not without a remedy, as in case the
detenu is much a menace to the society as is being alleged, then
the prosecution should seek for the cancellation of his bail and/or
move an appeal to the Higher Court. But definitely seeking shelter
under the preventive detention law is not the proper remedy
under the facts and circumstances of the case"
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15. We thus find that impugned detention order depicts non-
application of mind at the hands of Respondent No.1-District
Magistrate while appreciating the material as, although the order
asserts that petitioner is on bail in one of the pending case, however,
the record do not contained a copy of bail application or bail order.
As held by the Hon'ble Apex Court in the case of Joyi Kitty Joseph
(Supra), Shaik Nazneen (Supra), as well as the Banka Sneha
Sheela (Supra), wherein it has been held that, when a detaining
authority takes into account the fact that the detenue is on bail, it
must examine the bail orders themselves to assess the nature of
offence, the conditions imposed by a Competent Court while
releasing the accused on bail and also to ascertain as to whether
there exists a real likelihood of detenue committing similar kind of
offence if released on bail. In short, absence of these documents
shows that the petitioner was denied an opportunity to make an
effective representation which is mandatory under Article 22(5) of
the Constitution of India.
16. So far as the reliance placed on the two in-camera statements
of witnesses 'A' and 'B' are concerned, as observed above, we find
that both the statements are cyclostyled as well as vague as it can be
12 941.Cri.WP.1447.2025.odt
seen that, the allegations made in the said statements are general in
nature. The record also depicts that there is no proper verification of
these statements nor the detaining authority appears to have
applied its mind to its credibility. It is settled position of law that
such vague statements that too without any proper verification
cannot be made the basis of preventive detention.
17. Before parting we find that neither the impugned order of
detention nor the committal order stipulate the period of detention
of the petitioner, as admittedly the confirmation order is not placed
on record so as to ascertain the stipulated period of detention. The
learned APP is not in a position to point out nor he is able to place
on record the confirmation order so as to substantiate this aspect.
Perusal of impugned detention order and the record available shows
that, this vital aspect is missing which is also one of the facet which
vitiates the impugned detention order. Even otherwise as has been
held above the impugned order of detention and as well as
committal order do not satisfy the test of subjective satisfaction.
18. It is settled position of law that, the preventive detention is
not mean to punish for past act but to prevent future conduct that
threatens public order. It is equally required to be considered, as to
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whether, mere pendency of criminal cases without a live link to
eminent disturbances of public order justify preventive detention,
whether it is only concern about law and order or a public order, in
that regard the Hon'ble Apex Court in the case of Ram Manohar
Lohia v. State of Bihar reported in 1965 SCC OnLine SC 9, while
explaining the term 'Law and Order' and 'Public Order' observed
thus :
"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 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
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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."
19. Thus, 'Public Order' refers to disturbances affecting
community at large whereas, 'Law and Order' can encompass a
broader range of disturbances, including those of local and minor
nature. Thus the underline principle is that the activity of a person
should be such that it will affect the public order. The three circles
referred to by the Hon'ble Apex Court had explained that the
activities disturbing law and order may not necessarily disturb the
public order. We find that merely because of pendency of criminal
cases without a live link to eminent disturbances of public order
cannot justify preventive detention.
20. We find that there is no material placed on record to
substantiate that the petitioner was likely to commit any specific act
prejudicial to public order in the immediate future. As can be seen
that the alleged incidents dated 05.06.2025, 12.06.2025, and
20.06.2025, cannot be said to have such a live link. In the light of
above, we are of the considered view that the impugned detention
order is unsustainable in law so also find that, the confirmation order
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of the State Government also does not sustain. Hence, we pass the
following order:-
:: ORDER ::
i. The Criminal Writ Petition stands allowed.
ii. The impugned order of detention bearing No.2025/RB-
Desk-1/Pol-1/Kavi-155 dated 15.07.2025 passed by
Respondent No.1-District Magistrate, Jalna as well as
confirmation order dated 23.07.2025 passed by Respondent
No.- 3 State Government are hereby quashed and set aside.
iii. The Petitioner - Suyog @Sushil Madhukar Solunke
shall be released forthwith, if not required in any other
offence/offences.
iv. Rule is made absolute in the above terms.
(ABASAHEB D. SHINDE, J.) (SANDIPKUMAR C. MORE , J.)
habeeb/
