[Cites 11, Cited by 0]
Bombay High Court
Vivek Vidyasagr Gajbhare vs The State Of Maharashtra And Others on 16 March, 2026
2026:BHC-AUG:11169-DB
1 928.Cri.WP.1652.2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1652 OF 2025
Vivek Vidyasagr Gajbhare ... PETITIONER
VERSUS
1. The State of Maharashtra
Through its Section Officer,
Home Department (Special),
Mantralaya, Mumbai-32
2. The District Magistrate,
Nanded, Tq. & Dist. Nanded
3. The Superintendent of Jail,
Central Jail, Harsool, Aurangabad
Dist. Aurangabad ... RESPONDENTS
...
Advocate for the Petitioner : Mr. Dhananjay S. Patil
APP for Respondent Nos. 1 to 3 : Mr. N. B. Patil
...
CORAM : SANDIPKUMAR C. MORE &
ABASAHEB D. SHINDE, JJ.
Date of reserved 11.03.2026
Date of pronouncement : 16.03.2026
JUDGMENT ( ABASAHEB D. SHINDE, J.) :
1. Heard.
2. Rule. Rule is made returnable forthwith. With the consent of
the parties the petition is taken up for final hearing at the stage of
admission.
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3. By this writ petition the petitioner seeks to challenge the
detention order dated 14.10.2025 bearing No.2025/RB-1/Desk-2/T-
4/MPDA/CR-70, passed by the respondent No.2 - District
Magistrate, Nanded 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 (for short the MPDA Act), as well as approval
order dated 20.10.2025 and confirmation order dated 01.12.2025
bearing No. MPDA-1025/CR-596/Spl-3B passed by respondent
No.1- State Government, in exercise of powers under Section 12(1)
of the MPDA Act, by the impugned detention order, the petitioner
has been directed to be detained for a period of 12 months on the
ground that the petitioner is a " dangerous person" within the
meaning of Section 2(b-1) of the MPDA Act, holding his activities
prejudicial to the maintenance of public order.
4. A proposal came to be submitted by Police Inspector, Police
Station Nanded Rural, Nanded, seeking preventive detention of the
petitioner. The said proposal appears to have been routed through
Sub-Divisional Police Officer, Sub-Division Itwara, Nanded and
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Superintendent of Police, District Nanded and eventually placed
before the respondent No.2 - District Magistrate, Nanded who
claims to have arrived at a subjective satisfaction that the
petitioner's detention is necessary to prevent him from acting in a
manner prejudicial to public order. It is pertinent to note that, the
basis for submission of proposal for detention of petitioner is
registration of five (5) past criminal cases and one preventive action
against the petitioner, which are summarised as follows :
Sr. Police C.R.No Under Section Date Date Bail Court Present
No. Station of of Date Case No. Status.
filing arrest
1. Nanded 914/2023 3/25, 7/25 Arms Act 31/12/ 31/12/ 15/01/ RCC No. Court
Rural 2023 2023 2024 504/2024 Pending
2. Itwara 244/2024 118(1), 352, 3(5), BNS, 16/07/ 17/07/ 17/07/ RCC No. Court
4/25 Arms Act 2024 2024 2024 1512/2024 Pending
3. Nanded 913/2024 118(2), 118(1), 115(2), 352, 11/10/ 18/10/ 18/10/ RCC No. Court
Rural 351(2), 351(3), 3(5), BNS 2024 2024 2024 2047/2024 Pending
4. Nanded 396/2024 334(1), 305(e), 3(5) BNS 27/10/ 03/11/ 03/11/ RCC No. Court
Rural 2024 2024 2024 481/2025 Pending
5. Kundalwadi, 67/2025 309(4), 3(5) BNS 19/04/ 25/04/ 02/06/ On On
Dist. 2025 2025 2025 investigati investig
Nanded on ation
Preventive Action :-
Sr. No Police Station Chapter Case No Section Date Present Status
1 Nanded Rural 17/2024 107 Cr.P.C. 17/01/2024 Closed
However the impugned detention order is based only on solitary
offence which is as follows :
Sr. Police C.R.No Under Section Date Date Bail Court Present
No. Station of of Date Case No. Status.
filing arrest
1. Kundalwadi, 67/2025 309(4), 3(5) BNS 19/04/ 25/04/ 02/06/ On On
Dist. 2025 2025 2025 investigati investig
Nanded on ation
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In addition to above crime, two in-camera statements of Witnesses
'A' and 'B' are also made basis for submission of proposal for
detention of petitioner.
5. Learned counsel for the petitioner has contended that the
impugned order of detention vitiates for more than one reason.
According to learned counsel for the petitioner it is significant to
note that, the last crime seems to be registered on 19.04.2025 and
the order of detention is passed on 14.10.2025, the petitioner was
released on bail on 02.06.2025, although the copy of bail
application and the bail order was placed before the competent
authority, those were not considered by the competent authority as
it does not find place in order. According to the learned counsel for
the petitioner this lacks the basic principle of subjective satisfaction
and reflects improper material assessment. To buttress his
submission he relied on the judgment of the Hon'ble Apex Court in
the case of Ameena Begum Vs. The State of Telangana and Ors. ;
(2023) 9 SCC 587.
6. Learned counsel for the petitioner also submits that, the law
laid down by the Hon'ble Apex Court in the matter of Dhanya M. Vs.
State of Kerala and others is not only flouted but the entire activity
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of detention order is in violation of law laid down by the Hon'ble
Apex Court in the matter of Vijay N Singh Vs. State of Bihar
reported in 1984 (3) SCC 14, since the preventive detention action
being a hard law it is therefore, imperative that application of the
same is expected to be complied with in strict sense, however in the
present case the mandatory requirements laid down under MPDA
Act are not followed thereby putting the liberty of a person at stake.
7. Learned counsel for the petitioner further contended that,
though crimes in which the petitioner has been enlarged on bail, an
application seeking cancellation of bails have not been moved by the
State, he mean to say that, when ordinary criminal law has
sufficient means to address apprehension leading to the impugned
detention order, still without resorting to the same, extra ordinary
measures of the law are being resorted to. He would therefore
submit in the light of this factual scenario the impugned order is
unsustainable.
8. It is further contended by the learned counsel for the
petitioner that as far as solitary offence considered while passing
the impugned detention order, bearing Crime No.67/2025 is
concerned, the same has been registered under
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Sections 309(4), 3(5) of the Bhartiya Nyaya Sanhita, 2023 (for
Short "BNS"). Perusal of the allegations in the said FIR would show
that, it is individualistic in nature, therefore it could not be said to
be an issue involving public order more than the issue of law and
order.
9. While assailing the two in-camera statements, the learned
counsel for the petitioner would urge that these statements are
absolutely vague lacking the specific dates, places and particulars
and do not disclose any material so as to warrant preventive
detention. He would further urge that the in-camera statements
were not verified properly as can be seen that the authorities are
claiming to have verified the in-camera statements on the same day
on which those were recorded.
10. Per contra, the learned APP while supporting the impugned
detention order would submit that the affidavit-in-reply filed by
respondent No.2 - District Magistrate justifies his decision of
detaining the petitioner for a period of 12 months. According to
learned APP the petitioner is a "dangerous person" withing the
meaning of Section 2 (b-1) and as a result of his dangerous
activities the residents within the jurisdiction of Nanded Rural Police
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Station and the adjoining areas remain in constant fear. He would
further submit that the petitioner is involved in criminal activities
with his accomplices and committed crimes like illegal possession of
firearms, illegal possession and use of weapons, causing hurt,
forcible theft etc, resultantly, the people are not ready to come
forward to lodge complaints. He would further submit that the
confidential inquiry was conducted and it is only after giving
assurance of secrecy the two witnesses came forward to depose
against the petitioner's criminal activities. It is further submitted
that respondent No.2 - District Magistrate has carefully examined
entire material and has arrived at a subjective satisfaction that the
preventive detention of the petitioner is very much warranted.
11. Having heard learned counsel for the petitioner and the
learned APP for the State, we are of the considered view that
impugned detention order passed by respondent No.2 - District
Magistrate depicts non-application of mind while appreciating the
material. Though the order asserts that the petitioner is released on
bail in all the pending cases, however, the record does not contain a
single copy of any bail application or any bail order. As held by the
Hon'ble Apex Court in the case of Ameena Begum (Supra),
Nenavath Bujji and Ors. Vs. The State of Telangana and Ors. ; (2024)
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17 SCC 294 and in the case of Joyi Kitty Joseph Vs. Union of India
(UOI) and Ors.; (2025) 4 SCC 476, 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 offences,
the conditions imposed by competent Courts while releasing the
accused on bail and also to ascertain as to whether there exits a real
likelihood of detenue committing similar kind of offence if released
on bail. We thus find that non-consideration of all these vital aspects
vitiates the subjective satisfaction as required under the provisions
of the MPDA Act. 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.
12. So far as the reliance placed on the in-camera statements of
witnesses 'A' and 'B' are concerned, as observed above we find that
those statements are vague since, those are general in nature
without specifying the dates, time or places of alleged incidences as
required by law. 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
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cannot be made the basis of preventive detention.
13. We find that, the basis for passing the impugned detention
order is Crime No.67/2025 registered under Sections 309(4), 3(5)
of BNS. Perusal of allegations of the said offence would show that
on 19th April 2025, the complainant was alleged to have been
attacked on a road between babhali bridge on the godavari river
and shelgaon thadi, by three unknown bike-borne robbers who
thrown chilli powder in his eyes and took away his smartphone, 30
to 40 thousand rupees cash from the pocket of his pant and also
taken away his motorcycle. It is further alleged that during
investigation the petitioner has confessed of committing this crime
along with his other accomplices and handed over the stolen
property. The FIR, the panchanama and the statements of co-
accused which were the part of the record does not reveal that at
the place of alleged incident the presence of public was at large.
Had it been viewed by the people, in that case only the question of
terror in the mind of people would arise. Here, we are not
considering the other merits of the case, but only from the point of
view of allegation whether the activity of the petitioner was
dangerous to public.
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14. It is trite law in view of judgment of the Hon'ble Apex Court
in the case of Ram Manohar Lohia Vs. State of Bihar and Ors.
reported in (1966) 1 SCR 709, while explaining the term 'Law and
Order' and 'Public Order' the Hon'ble Apex Court observe thus :
"54. We have here a case of detention under R. 30 of the Defence
of India Rules which permits apprehension and detention of a
person likely to act in a manner prejudicial to the maintenance of
public order. It follows that if such a person is not detained public
disorder is the apprehended result. Disorder is doubt prevented by
the maintenance of law and order also but disorder is a broad
spectrum which includes at one end small disturbances and at the
other the most serious and cataclysmic happenings. Does the
expression "public order" take in every kind of disorders or only
some of them ? The answer to this serves to distinguish "public
order" from "law and order" because the latter undoubtedly takes
in all of them. 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 if 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. A District Magistrate is entitled to
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take action under R.30(1)(b) to prevent subversion of public order
but not in aid of maintenance of law and order under ordinary
circumstances.
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. By using the expression
"maintenance of law and order" the District Magistrate was
widening his own field of action and was adding a clause to the
Defence of India Rules."
15. 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. In other words the activities must not be minor which is
peace of purely local significance, which primarily in the specific
individual and only in secondary sense public interest. 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
12 928.Cri.WP.1652.2025.odt
that merely on the allegation that the petitioner was alleged to have
been found involved in the crime alleging extortion on the basis of
his alleged confession, certainly do not have a live-link to eminent
disturbances to public order and can not justify the preventive
detention.
16. 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 incident dated 19.04.2025 being an individualistic
act is not sufficient to hold that this act of petitioner is prejudicial to
the public order.
17. In the light of above observations, we are of the considered
view that the impugned detention order is unsustainable in law so
also find that the approval order as well as the confirmation order of
the State Government also do not sustain. Hence, we pass the
following order :
ORDER
I. The Writ Petition stands allowed.
II. The impugned detention order No. 2025/RB-1/Desk-2/T-
4/MPDA/CR-70 dated 14.10.2025 passed by respondent
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No.2 as well as the approval order dated 20.10.2025 and
the confirmation order No. MPDA-1025/CR-596/Spl-3B
dated 01.12.2025, passed by respondent No.1, are hereby
quashed and set aside.
III. Petitioner - Vivek Vidyasagr Gajbhare shall be released
forthwith, if not required in any other offence.
IV. Rule is made absolute in the above terms.
(ABASAHEB D. SHINDE, J.) (SANDIPKUMAR C. MORE, J.)
Narwade/
