Bombay High Court
Akshay @ Bhaiya Ramesh Wahul vs The Commissioner Of Police And Others on 10 June, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:14512-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.648 OF 2025
Akshay @ Bhaiya s/o Ramesh Wahul
Age: 25 years,
R/o. Shivajinagar, Garkheda Parisar,
Chhatrapati Sambhajinagar. .. Petitioner
Versus
1. Commissioner of Police,
Chhatrapati Sambhajinagar.
2. The State of Maharashtra
(Through the Secretary
Home Department (Spl.)
Mantralaya, Mumbai.
3. The Superintendent
Chhatrapati Sambhaji Nagar
Central Prison. .. Respondents
...
Mr. Rupesh A. Jaiswal, Advocate for the petitioner.
Mrs. R. P. Gour, APP for respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 10 JUNE 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. Rupesh A. Jaiswal for the petitioner
and learned APP Mrs. R. P. Gour for the respondents – State.
2. Rule. Rule made returnable forthwith. The petition is heard finally
with the consent of the learned Advocates for the parties.
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3. The petitioner challenges the detention order dated 09.04.2025
bearing No.2025/CB/MPDA/DET-01/CR-28 passed by respondent No.1
as well as the approval order dated 16.04.2025 and the confirmation
order dated 22.05.2025 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, two offences were
considered i.e. Crime No.553 of 2024 registered with Satara Police
Station, District Chhatrapati Sambhajinagar for the offences punishable
under Sections 352, 351(2), 351(3), 238 of Bhariya Nyaya Sanhita,
2023, under Section 4 punishable under Section 25 of the Arms Act,
1959 and Crime No.559 of 2024 registered with Satara Police Station,
District Chhatrapati Sambhajinagar for the offences punishable under
Sections 109(1), 118(1), 121(1), 352, 351(2)(3), 238 of Bhartiya Nyaya
Sanhita, 2023, under Section 4 punishable under Section 25 of the Arms
Act. Learned Advocate for the petitioner submits that two offences i.e.
Crime No.553 of 2024 and Crime No.559 of 2024 registered with Satara
Police Station, District Chhatrapati Sambhajinagar and two in-camera
statements have been considered for passing the detention order.
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Perusal of those FIRs would show that those were under the respective
provisions of Bhartiya Nyaya Sanhita and Arms Act. In both the matters,
the petitioner has been released on bail. In Crime No.559 of 2024, he
was released on 19.03.2025 by the learned Additional Sessions Judge,
Court No.7, Aurangabad. The conditions have been imposed and,
therefore, it ought to have been seen by the detaining authority that the
ordinary law would have been suffice to curtail the alleged criminal
activities of the petitioner. The detaining authority has considered that
the two writ petitions which were filed by the present petitioner came to
be allowed and the earlier detention orders passed by the then detaining
authorities have been quashed and set aside, yet the impugned order
has been passed which appears to be to please the sponsoring
authority. Perusal of the in-camera statements of witnesses ‘A’ and ‘B’
would show that the facts mentioned therein would have at the most
created law and order situation and not the public order.
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
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
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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 filed by
Mr. Pravin Pawar, Commissioner of Police, Chhatrapati Sambhajinagar /
detaining authority, who in his affidavit, has stated as to what was the
material before him to arrive at the subjective satisfaction and as to how
within the time, actions have been taken. It also says that the Advisory
Board has approved the action and then the State Government has
approved the detention order. Learned APP further submits that though
this Court in earlier two petitions filed by the petitioner quashed and set
aside the detention order and protected the petitioner, yet he had not
curtailed his activities. Both the incidents in Crime No.553 of 2024 and
Crime No.559 of 2024 had taken place against one person only i.e. the
informant therein, but one incident had taken place on 27.11.2024,
whereas the other incident had taken place on 02.12.2024. In respect of
the second incident, even the police officer had sustained injury when
the petitioner had tried to kill the informant with knife. After the petitioner
managed to flee away, he had given a phone call on the mobile phone of
the servant of the informant and he made it very clear that he had come
to commit murder and had also given threat to commit murder as the
police was involved. That means, his dangerous activities are not going
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to curtail by the ordinary law and, therefore, the detaining authority had
no choice, but to invoke the detention law. Therefore, no fault can be
found in the impugned order.
6. Before considering the case, we would like to take note of the
legal position as is emerging in the following decisions :-
(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
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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. In the beginning, we would like to take
note of the Criminal Writ Petition No.893 of 2023 filed by the present
petitioner to challenge the detention order that was passed against him
on 08.04.2023. By judgment and order dated 11.08.2023, that petition
was allowed. It appears that once again the petitioner faced the
detention order dated 17.04.2024 and he challenged the same in
Criminal Writ Petition No.1063 of 2024. By judgment and order dated
20.08.2024, this Court had allowed the said petition and had set aside
that detention order also. Now, in the present order, as stated above, two
offences have been considered i.e. Crime No.553 of 2024 and 559 of
2024. Surprisingly, the informant in both the FIRs is same. In Crime
No.553 of 2024, the offences under Bhartiya Nyaya Sanhita are non
cognizable and only cognizable offence was under the Arms Act i.e.
offence under Section 4 punishable under Section 25 of the said Act. It
was then stated in the FIR that the petitioner had used sword while
committing the offence. Sword can be said to be an ‘arm’ as per the
Indian Arms Act. However, in order to invoke Section 4 of the Arms Act,
there has to be a notification by the Central Government or by the State
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Government. In the impugned detention order passed by respondent
No.2, there is absolutely no mention about the notification, date or the
fact that he had gone into the fact that there is such notification that is in
existence. Subjective satisfaction cannot be only on the basis of the
Sections those have been invoked by the police. Secondly, as regards
the offence vide Crime No.559 of 2024 is concerned, it is to be noted
that by order dated 19.03.2025, the learned Additional Sessions Judge,
Court No.7, Aurangabad had released the applicant on regular bail.
Conditions were imposed and the detaining authority has only taken note
of the date of the bail order. It is absolutely not mentioned that how the
conditions or terms those have been imposed while releasing him on bail
would not curtail the alleged criminal activity and in spite of the said bail
order, the detention is necessary. 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 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
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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. Another fact that is required to be noted is that the bail order has
been passed on 19.03.2025 and the statement of in-camera witness ‘A’
has been recorded on 31.03.2025. That means, the sponsoring authority
appears to have been working only to detain or see the opportunity to
detain the petitioner. Within 12 days the preparation for the next
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detention order has been started. The statement of in-camera witness
‘B’ has been recorded on 01.04.2025. Proposal has been submitted on
03.04.2025. Those statements of in-camera witnesses have been
verified on 07.04.2025 and the detention order has been passed on
09.04.2025. The activities have thus been completed in a lightening
speed. Perusal of in-camera witnesses ‘A’ and ‘B’ would show that both
the incidents, they had told, have taken place in the last week of March
2025 and within 3 to 4 days it appears that their statements have been
recorded and yet police had not given protection to them or courage to
them so that they can lodge the FIR. As usual, it is stated that due to
fear the witness has not reported the incident to police and he has
revealed that incident to police with a request to keep his name
anonymous. From one angle, this can be taken as a failure of the police
machinery, who is unable to give courage to the people to come forward
and lodge the report. In any way, if the story given by those witnesses is
considered, then at the most law and order situation would have been
created and not the public order. On the last occasion also, this Court in
Criminal Writ Petition No.1063 of 2024 has observed that mere
meticulous compliance of the time schedule in such detention matters
will not make the impugned order legal and, therefore, though the further
schedule has been adhered to as well as the fact that the Advisory
Board has approved the impugned order, yet we come to the conclusion
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that the material before the detaining authority was not sufficient to arrive
at the subjective satisfaction. Such order deserves to be set aside.
9. 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.
10. 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 09.04.2025 bearing
No.2025/CB/MPDA/DET-01/CR-28 passed by respondent No.1 as
well as the approval order dated 16.04.2025 and the confirmation
order dated 22.05.2025 passed by respondent No.2, are hereby
quashed and set aside.
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III) Petitioner – Akshay @ Bhaiya s/o Ramesh Wahul 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
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