Bombay High Court
Atik Ghulam Hussain Qureshi vs The District Magistrate Ahilyanagar … on 20 June, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:17322-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.552 OF 2025
Atik Ghulam Hussain Qureshi,
Age: 34 years, Occu.: Business,
R/o. Khatik Galli, Shrigonda,
Tq. Shrigonda, Dist. Ahilyanagar. .. Petitioner
Versus
1. District Magistrate, Ahilyanagar,
District Ahilyanagar.
2. The State of Maharashtra
Through the Additional Chief Secretary,
Govt. of Maharashtra, Home Department,
Mantralaya, Mumbai-32.
3. The Jail Superintendent,
Nasik Central Prison, Nasik.
4. The Police Inspector Srigonda,
Police Station, Ahilyanagar. .. Respondents
...
Mr. Rohit Patwardhan h/f Mr. Satej S. Jadhav, Advocate for the petitioner.
Mr. G. A. Kulkarni, APP for respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 20 JUNE 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. Rohit Patwardhan holding for learned
Advocate Mr. Satej S. Jadhav for the petitioner and learned APP Mr. G.
A. Kulkarni for 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 28.03.2025
bearing No.DC/Desk-9C1/341/2025 passed by respondent No.1 as well as
the approval order dated 07.04.2025 and the confirmation order dated
14.05.2025 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, only one offence was
considered i.e. Crime No.976 of 2024 registered with Shrigonda Police
Station, District Ahmednagar for the offences punishable under Sections
103, 194(2), 125, 125(a)(b), 189(2), 191(2) of Bhartiya Nyaya Sanhita,
2023, under Section 3(2)(v), 3(2)(va), 3(1)(r), 3(1)(s) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(hereinafter referred to as the “Atrocities Act”), under Section 37(1)(3),
135 of the Maharashtra Police Act. Learned Advocate for the petitioner
submits that though the petitioner is stated to be involved in fifteen
offences, for passing the detention order only one offence i.e. Crime
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No.976 of 2024 was considered. It is still under investigation. If the
contents of the FIR are considered, then it can be seen that it would
have raised only law and order situation at the most and not the public
order. The learned detaining authority had not considered the bail order
which was passed by the learned Additional Sessions Judge, Shrigonda
on 01.03.2025, when in fact the detention order came to be passed on
28.03.2025. In the bail order, the concerned Additional Sessions Judge
had taken note of the fact that charge-sheet has been filed. In fact,
initially, the FIR was registered for the offences punishable under Section
194(2) of the Bhartiya Nyaya Sanhita, under Section 135 and 37(1)(3) of
the Maharashtra Police Act, however, when Ram Shankar Sasane
expired, then Sections 103, 125, 125(a)(b), 89(2), 191(2) of Bhartiya
Nyaya Sanhita and Section 3(2)(v), 3(2)(va), 3(1)(r), 3(1)(s) of the
Atrocities Act came to be added in view of the order passed by learned
Judicial Magistrate First Class on 30.12.2024. It was noted by the
learned Additional Sessions Judge that once the charge-sheet is filed
and if the investigating officer wants to make further investigation in
respect of the same case, then permission of the concerned Magistrate
ought to have been obtained as per Section 193(9) of the Bhartiya
Nagrik Suraksha Sanhita, 2023. No such permission has been taken and
in fact, the learned Magistrate has passed the order of “seen” only. Note
was also taken that victim is the wife of the deceased and the son of the
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deceased had given no objection for grant of bail to the petitioner. The
investigation of the crime has been carried out by number of police
officers by their whims and fancies. Two spot panchanamas have been
prepared of different dates and with all such reasons, it was opined that
the petitioner appears to have been involved in the matter. Doubt has
been raised in respect of the entire investigation itself. When these facts
have not been considered at all, it cannot be said that the material
before the learned detaining authority was sufficient for him to apply his
mind. Even in respect of the statements of confidential witnesses ‘A’ and
‘B’, it can be seen that at the most law and order situation would have
been created.
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
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 relied on the affidavit-in-reply of Mr. Pankaj
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Ashiya, the District Magistrate, Ahilyanagar/detaining authority. He
supports the detention order passed by him and tries to demonstrate as
to how he had arrived at the subjective satisfaction. He further states
that his order has been approved by the State Government and also by
the Advisory Board. Learned APP submits that in spite of involvement of
the petitioner in so many cases, his criminal activities have not been
curtailed. The criminal antecedents can be taken into consideration for
passing the detention order. There is no illegality or error committed by
the learned District Magistrate in holding the petitioner as a dangerous
person. 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];
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(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. The first and the foremost fact to be noted
is that only one offence has been considered by the detaining authority
i.e. Crime No.976 of 2024. It is stated that the said crime is still under
investigation, when in fact from the copy of the bail order it can be seen
that charge-sheet was already filed before the learned Judicial
Magistrate First Class, Shrigonda i.e. S.C.C. No.1414 of 2024. Later on
when victim appears to have expired, namely, Ram Shankar Sasane,
thereafter, by simple communication, which has been sent by the
Magistrate, it appears that the further investigation has been carried out.
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
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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
Magistrate while granting bail for the very same offence; the allegations
in which also have led to the preventive detention, assailed herein, to
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enter a satisfaction as to whether those conditions are sufficient or not to
restrain the detenu from indulging in further like activities.”
8. Further, reliance can be placed on the decision in Dhanyam Vs.
State of Kerala and Ors., [Criminal Appeal No.2897 of 2025 (Arising
out of SLP (Crl.) No.14740 of 2024) decided on 06.06.2025], wherein
it has been observed that :-
“17. From perusal of Section 2(j), it is evident that a
person who indulges in activities “harmful to maintenance
of public order” is sought to be covered by the Act. This
Court in Sk. Nazneen Vs. State of Telangana, [(2023) 9
SCC 633] had emphasized on the distinction between
public order as also law and order situations :
“18. In two recent decisions [Banka
Sneha Sheela v. State of Telangana, (2021) 9
SCC 415 : (2021) 3 SCC (Cri.) 446; Mallada K.
Sri Ram v. State of Telangana, (2023) 13 SCC
537: 2022 SCC OnLine SC 424], this Court had
set aside the detention orders which were
passed, under the same Act i.e. the present
Telangana Act, primarily relying upon the
decision in Ram Manohar Lohia [Ram Manohar
Lohia v. State of Bihar, 1965 SCC OnLine SC9]
and holding that the detention orders were not
justified as it was dealing with a law and order
situation and not a public order situation.”
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19. ……The observations made in the detention order do
not ascribe any reason as to how the actions of the
detenu are against the public order of the State. As
discussed above, given the extraordinary nature of the
power of preventive detention, no reasons are assigned
by the detaining authority, as to why and how the actions
of the detenu warrant the exercise of such an exceptional
power.
20. Moreover, it has been stated therein by the
authority that the detenu is violating the conditions of bail
imposed upon him in the cases that have been
considered for passing the order of detention. However,
pertinently, no application has been filed by the
respondent-State in any of the four cases, alleging
violation of such conditions, if any, and moreover, have
not even been spelt out here.”
9. The District Magistrate ought to have taken note of the bail order
and the reasons stated therein. The entire record, which is made
available to us which was before the District Magistrate, would show that
the bail order was never placed before the Magistrate. The chronology
goes in a way that the confidential statements of witnesses ‘A’ and ‘B’
were recorded on 28.02.2025 and 01.03.2025 respectively. Proposal
was then submitted by sponsoring authority on 02.03.2025 and it was
forwarded to Deputy Superintendent of Police. Deputy Superintendent
of Police had then forwarded it to Superintendent of Police on
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04.03.2025 after verification of the statements on 03.03.2025.
Superintendent of Police had then forwarded it to District Magistrate on
04.03.2025 itself i.e. without losing a single day and the detention order
has been passed on 28.03.2025. Neither Deputy Superintendent of
Police, nor Superintendent of Police, who normally should know as to
when the bail is granted to the accused persons, forwarded the bail
order to the District Magistrate. The District Magistrate without getting
information, which he himself can also call regarding whether the
petitioner has been released on bail in between the sponsoring date and
reaching of the proposal to him as well as on the date of passing of the
order, appears to have passed the order and, therefore, it will have to be
stated that the impugned order is without application of mind. If he would
have considered the bail order passed by the learned Additional
Sessions Judge, Shrigonda on 01.03.2025, certainly, he would not have
taken the step of passing the detention order. One more fact that is
required to be considered is that the said bail order was not even placed
before the Advisory Board and we could get that from the original record.
That was brought to the notice of the Board by the learned Advocate
appearing for the petitioner before the Board and in the opinion, the
Board has stated that perusal of the bail order produced by the detenu
would show that he was granted bail on 01.03.2025 and the order was
digitally signed on 02.03.2025 in the evening. The proposal was
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submitted on 02.03.2025 and, therefore, the copy of the bail order was
not made available before the detaining authority. We do not agree to
those reasons. Even the District Magistrate, instead of saying as to why
he had not called for the latest information regarding the bail of the
detentu, states that the order of bail has no bar for issuing detention
order. In fact, the District Magistrate is saying something against the
ratio laid down in Joyi Kitty Joseph (Supra), which we cannot accept.
In fact, this would have been the case of granting compensation to the
detenu, whose bail order, especially the reasons in the bail order, were
not at all considered and his constitutional rights were then jeopardized.
However, we would be taking that step if at all the gross violation is
noticed. The District Magistrate while passing an order is not required to
oblige the sponsoring authority/police authority. He has to apply his mind
and, therefore, he should also take note of the constitutional rights of the
person detained. Therefore, the District Magistrates are required to be
trained when such proposals for detention are sent. We hope that the
State Government would take the training of the District Magistrates on
this point seriously. In Shashikant Sakharam Badgal v. District
Magistrate, Nanded and Ors. [Criminal Writ Petition No.2028 of 2024
decided by this Court on 13.01.2025], we had already observed that
the State Government would take care henceforth and would conduct
the training of the District Magistrates or in any other manner convey it to
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the District Magistrates or the authority empowered to pass order under
M.P.D.A. that they should consider various decisions of the Hon’ble
Supreme Court and this Court in and before passing any such order
under M.P.D.A.
10. Here, the act of District Magistrate has been protected by the
observations in the opinion of the Advisory Board. As regards the role of
Advisory Board is concerned, we would like to rely on the decision in
Nenavath Bujji (Supra), wherein the role of the Advisory Board has
been explained and the observations in respect of the same in
paragraph Nos.55 to 58 are important :-
“55. What can be discerned from a bare perusal of the
above-mentioned provisions is that the Advisory Board
performs the most vital duty of independently reviewing the
detention order, after considering all the materials placed
before it, or any other material which it deems necessary.
When reviewing the detention order along with the relevant
materials, the Advisory Board must form an opinion as to
the sufficiency of the cause for warranting detention. An
order of detention passed under the Act, 1986 can only be
confirmed if the Advisory Board is of the opinion that there
exists sufficient cause for the detention of the detenu.
56. The framers of the Constitution being in seisin of
the draconian nature of an order of preventive detention and
its adverse impact on individual liberty, have specifically put
in place safeguards within Article 22 through the creation of
an Advisory Board, to ensure that any order of preventive[12]
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of an independent authority which determines and finds that
such an order for detention is necessary.
57. The legislature in its wisdom has thought it fit, to
entrust the Advisory Board and no one else, not even the
Government, with the performance of this crucial and critical
function which ultimately culminates into either the
confirmation or revocation of a detention order. The
Advisory Board setup under any preventive detention law in
order to form its opinion is required to; (i) consider the
material placed before it; (ii) to call for further information, if
deemed necessary; (iii) to hear the detenu, if he desires to
be heard and; (iv) to submit a report in writing as to whether
there is sufficient cause for “such detention” or whether the
detention is justified.
58. An Advisory Board is not a mere rubber-stamping
authority for an order of preventive detention. Whenever any
order of detention is placed before it for review, it must play
an active role in ascertaining whether the detention is
justified under the law or not. Where it finds that such order
of detention is against the spirit of the Act or in
contravention of the law as laid down by the courts, it can
definitely opine that the order of detention is not sustainable
and should not shy away from expressing the same in its
report.”
11. As regards statements of witnesses ‘A’ and ‘B’ are concerned, the
incident in both the cases would show that general public was not
involved. At the most law and order situation would have been created
and not the public order.
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12. 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.
13. For the aforesaid reasons, the petition deserves to be allowed.
Hence, following order is passed :-
ORDER
I) The Writ Petition stands allowed.
II) The detention order dated 28.03.2025 bearing No.DC/Desk-
9C1/341/2025 passed by respondent No.1 as well as the approval
order dated 07.04.2025 and the confirmation order dated
14.05.2025 passed by respondent No.2, are hereby quashed and
set aside.
III) Petitioner – Atik Ghulam Hussain Qureshi shall be released
forthwith, if not required in any other offence.
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IV) Learned APP is directed to bring paragraph No.09 of this
order to the notice of the State and place it before the concerned
Authority for scheduling the training programme.
V) Rule is made absolute in the above terms.
[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
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