Bombay High Court
Madhav Ramdas Gaikwad vs The District Magistrate And Others on 9 June, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:14438-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.2063 OF 2024
Madhav Ramdas Gaikwad
Age: 34 years, Occu.: Labour,
R/o. Dikshanagar, Sunilnagar,
Balirampur, Nanded. .. Petitioner
Versus
1. The District Magistrate,
Nanded.
2. Superintendent of Police,
Nanded.
3. The State of Maharashtra
Through the Secretary Home
Department (Spl.) Mantralaya,
Mumbai.
4. The Superintendent,
Aurangabad Central Prison,
Aurangabad. .. Respondents
...
Mr. A. K. Bhosale, Advocate for the petitioner.
Mr. V. K. Kotecha, APP for respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
DATE : 09 JUNE 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. A. K. Bhosale for the petitioner and
learned APP Mr. V. K. Kotecha 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 01.10.2024
bearing No.2024/RB-1/Desk-2/T-4/MPDA/CR-49 passed by respondent
No.1 as well as the approval order dated 11.10.2024 and the
confirmation order dated 04.12.2024 passed by respondent No.3, 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.150 of 2024 registered with Nanded Rural
Police Station, District Nanded for the offences punishable under
Sections 307, 353, 143, 147, 148, 149 of Indian Penal Code, under
Section 3, 4 punishable under Section 25 of the Arms Act and under
Section 135 of the Maharashtra Police Act. Learned Advocate for the
petitioner submits that the last offence i.e. Crime No.150 of 2024 and
two in-camera statements of witnesses have been considered for
passing the detention order, however, the detaining authority has not
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considered the fact that the petitioner was released on bail on
24.05.2024 by the competent Court. Conditions were imposed while
granting the bail. The offence in that case appears to have been
committed on 24.02.2024 and the FIR was lodged on 25.02.2024. It is
stated that one Khanjar has been recovered from the present petitioner,
however, the story in the FIR is unbelievable. Further, the statements of
in-camera witnesses were recorded on 17.07.2024 and the impugned
detention order has been passed on 01.10.2024. There is considerable
delay in passing the detention order. Therefore, the impugned order is
illegal and cannot be allowed to sustain.
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. Abhijit
Raut, District Magistrate, Nanded/detaining authority. He demonstrates
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as to what was the material before him for consideration while passing
the detention order. While considering the offence that was registered
against the petitioner, the seriousness of the offence has been
considered. The police officers on patrolling duty had found five persons
with weapons and upon inquiry, it was told by them that they wanted to
kill one Siddharth Salve of Dhanegaon, who is brother of Balu @ Ukaji
Guna Salve, as a part of revenge for the murder of son of one Kesarbai
Sarpe. It appears that the petitioner along with the other persons shared
the common intention to kill. Further, the statements of two witnesses
would show that the incident as against them had taken place in July
2024 and due to the fear or terror created by the petitioner, they were not
willing to disclose their names and had not come to police to lodge the
FIR. All these activities would show that the petitioner is a dangerous
person and, therefore, there is no illegality or error committed in passing
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
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wp-2063-2024-J.odtManohar 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
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. At the outset, it is to be noted that the
confidential statements of witnesses ‘A’ and ‘B’ were recorded on
17.07.2024. Then the sponsoring authority made the proposal on
20.07.2024 and forwarded it to Assistant Police Inspector. On the said
day, the Assistant Police Inspector forwarded it to Superintendent of
Police, Nanded. In the meantime, those confidential statements got
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verified on 26.07.2024. Superintendent of Police, Nanded had then
forwarded the said proposal to the learned District Magistrate on
30.07.2024 and the detention order has been passed on 01.10.2024.
Thus, certainly, after the proposal was forwarded by Superintendent of
Police, Nanded, there is a considerable delay in passing the detention
order, which has not been explained by the District Magistrate. The
second point that is required to be considered is that in paragraph No.3,
the list of the offences in which the petitioner is involved has been given
and it has a column, on which date the bail was granted. In respect of
the offence vide Crime No.150 of 2024, the date of granting bail has
been stated as 24.05.2024, however, in the part containing the brief facts
for the reasons of passing the order, there is absolutely no reference to
the said bail order and, there is no discussion as to why the conditions
those were imposed while granting bail to the petitioner are not sufficient
to take care of and curtail the criminal activities of the petitioner. 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
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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
enter a satisfaction as to whether those conditions are sufficient or not to
restrain the detenu from indulging in further like activities.”
8. In order to come to a conclusion that a person is dangerous
person within the meaning of Section 2(b-1) of M.P.D.A. Act, 1981, the
detaining authority should consider the material that is placed before
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him/her and come to the conclusion that the ordinary criminal laws would
not be sufficient to curtail the criminal activities of such person. Only
upon this conclusion, the detention order can be passed and not merely
to please the sponsoring authority or temporarily solve the problem of
the police by curtailing the activities and putting him in detention.
Subjective satisfaction is a mental process and application of mind is
one of its element. We are unable to see the said process in the
impugned order. When normal legal recourse is available, then the
competent authority should not take recourse to the detention laws
which are even as per the observations of the Hon’ble Supreme Court as
a draconian provision and affects the fundamental rights of a person.
Therefore, we hold that there was no subjective satisfaction arrived at by
the competent authority before passing the impugned order.
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.
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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 01.10.2024 bearing No.2024/RB-
1/Desk-2/T-4/MPDA/CR-49 passed by respondent No.1 as well as
the approval order dated 11.10.2024 and the confirmation order
dated 04.12.2024 passed by respondent No.3, are hereby quashed
and set aside.
III) Petitioner – Madhav Ramdas Gaikwad 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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