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Bombay High Court
Sheikh Ahmed Sheikh Mohammed vs The State Of Maharashtra And Others on 21 April, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:11367-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.158 OF 2025
Shaikh Ahemad Shaikh Mohammed
Age: 45 years, Occu.: Business,
R/o. Umapur, Tq. Georai,
District Beed. .. Petitioner
Versus
1. The State of Maharashtra
Through Additional Chief Secretary,
Home Department, Mantralaya,
Mumbai - 400032.
2. District Magistrate, Beed,
Collector Office,
Nagar Road, Beed.
3. The Superintendent
Central Prison, Harsul,
Chhatrapati Sambhajinagar. .. Respondents
...
Mr. H. B. Suryavanshi a/w Mr. Aniket Singh, Advocate for the petitioner.
Mr. A. R. Kale, APP for the respondents/State.
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
RESERVED ON : 02 APRIL 2025
PRONOUNCED ON : 21 APRIL 2025
JUDGMENT (Per Smt. Vibha Kankanwadi, J.)
. Heard learned Advocate Mr. H. B. Suryavanshi for the petitioner
and learned APP Mr. A. R. Kale for the 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 14.11.2024
bearing No.2024/RB-Desk-1/Pol-1/MPDA-20 passed by respondent
No.2 as well as the approval order dated 25.11.2024 and the
confirmation order dated 17.01.2025 passed by respondent No.1, 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.147 of 2024 registered with Chaklamba Police
Station, District Beed for the offences punishable under Sections 307,
353, 379 read with Section 34 of Indian Penal Code and Crime No.287
of 2024 registered with Chaklamba Police Station, District Beed for the
offences punishable under Sections 303(2), 3(5) of Bhartiya Nyaya
Sanhita and under Section 184 of the Motor Vehicles Act. Perusal of the
record in respect of Crime No.147 of 2024 would show that the FIR is
lodged by Police Head Constable attached to SDPO office, Majalgaon,
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District Beed. On a secret information received by Assistant
Superintendent of Police, Sub Division, Majalgaon, they had laid the trap
for a vehicle which was to bring sand by illegal means. Around 3:30
hours of 22.02.2024, a yellow colour Bharat Benz Hyva having no
passing number was tried to be stopped and was tried to be intercepted
by the police party. The vehicle did not stop, however, by taking reverse,
it tried to go, however, the police party managed to overpower the driver.
The driver informed that the Hyva belongs to the petitioner, thereby the
present petitioner is involved in the matter. In the second case also i.e.
Crime No.287 of 2024, it is almost the same story, however, then in the
second story, it is tried to be stated that the petitioner came after the
driver informed him and the petitioner had offered amount to the police
officer, but when the police officer refused and asked the driver to take
the vehicle to the police station, then the present petitioner instigated the
driver to take away the Hyva at a different place. The detaining authority
has not considered the bail orders passed in both the matters. Both the
matters are under investigation and in fact, the detaining authority has
stated on the basis of the documents before him that the present
petitioner was absconding. The entire order does not show as to when
the petitioner came to be arrested. The statements of in-camera
witnesses ‘A’ and ‘B’ were taken on 25.09.2024 and 27.09.2024,
whereas the detention order came to be passed on 14.11.2024 thereby
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there was a delay of two months at least. Under these circumstances,
the detention order is unsustainable.
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 relies on the affidavit-in-reply of Mr. Avinash
Pathak, District Magistrate, Beed to demonstrate as to what was the
material before him to arrive at the subjective satisfaction. The present
petitioner is involved in excavating sand illegally and upon obstruction in
his illegal activities, he is going to the extent of giving threats to kill. The
said illegal excavation is causing damage to the environment. Even the
in-camera witness ‘B’ states that the petitioner had shown him pistol
while giving threats to him. The petitioner does not carry any legal
licence for a firearm and, therefore, it appears that he is involved in the
illegal activities. The action for preventive detention taken against the
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petitioner has not yielded proper result and, therefore, the detention
order is legal. The Advisory Board has confirmed the said order and,
therefore, the State Government has approved and confirmed the said
order in due course within the time span available under law.
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
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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. As aforesaid, two offences i.e. Crime
No.147 of 2024 and Crime No.287 of 2024 were considered by the
learned District Magistrate, Beed for passing the detention order. Both
the cases were still under investigation when the detention order was
passed. Important point to be noted is that after the offence vide Crime
No.147 of 2024 was registered on 22.05.2024, which was considered for
passing the detention order, it appears that the preventive action under
Section 129 of the Bharatiya Nagarik Suraksha Sanhita was initiated
against the petitioner on 16.08.2024 i.e. Chapter Case No.23 of 2024
and final bond was also taken from the petitioner. Then the next offence
vide Crime No.287 of 2024 came to be registered on 24.09.2024. The
question is then what has been done with the final bond that was taken
under Section 129 of Bharatiya Nagarik Suraksha Sanhita. Merely
passing the order under Chapter Case and taking bond is not expected.
If there is breach of the said bond, then the appropriate authority should
take the appropriate action for the said breach. Instead of taking that
action, if drastic action of detention has been taken up, then such action
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cannot be said to be legal. Another fact to be noted is that while referring
both the matters, the detaining authority has not considered as to
whether on the date of passing the detention order, the petitioner has
been released on bail or not. When he was arrested when the order was
passed, if he was still in jail, then it ought to have also been seen by the
detaining authority as to whether really the action of preventive detention
is then necessary when the petitioner is in jail. Mere anticipation that he
would be released on bail in future cannot be the reason for passing
detention order and therefore, when the bail orders have not been
considered at all, such order of detention cannot be said to be based on
sound principles.
8. The in-camera statements of witnesses ‘A’ and ‘B’ were recorded
on 25.09.2024 and 27.09.2024 respectively. No doubt, it appears that
Senior Police Inspector, LCB has forwarded the proposal on 03.11.2024
and the detention order came to be passed on 14.11.2024 may not show
that there is delay, but if we go by chronology, then the delay emerges.
As aforesaid, the in-camera statements of witnesses were recorded on
25.09.2024 and 27.09.2024 respectively. The sponsoring authority had
then put the proposal on 24.10.2024. The verification was done on
29.10.2024 and then Senior Police Inspector, LCB forwarded the
proposal on 03.11.2024. The District Magistrate/Detaining Authority
verified those in-camera statements on 14.11.2024 and passed the
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detention order on the same day. The question therefore would be why
the sponsoring authority was sitting over the file for about more than a
year, if the petitioner was to be branded as dangerous person. Another
aspect to be noted is that though the detention order has been passed
on 14.11.2024, it is stated that it was served on the petitioner on
26.11.2024 and then the grounds of detention were served on
28.11.2024. No record is produced to show that between 14.11.2024 to
26.11.2024, the detaining authority with the help of police had taken the
procedure under Section 7 of M.P.D.A. i.e. for the absconding accused.
Further, the facts show that prior to the serving of grounds of detention
on 28.11.2024, the report was already submitted to the State
Government under Section 3(3) of MPDA on 18.11.2024 itself. That
means, the grounds of detention were not ready with the detaining
authority on 18.11.2024. It appears that the detaining authority has acted
as per the requirement of the sponsoring authority without application of
mind.
9. If we consider the facts of the offence, in one matter the petitioner
was not present at all at the spot and in another matter, it is stated that
he was called by the driver of the Hyva. At the most law and order
situation had arisen not only as per the contents of both the FIRs, but
also from the in-camera statements of witnesses ‘A’ and ‘B’. We would
like to rely on the decision in Joyi Kitty Joseph Vs. Union of India and
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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
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
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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.”
10. 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.
11. 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 14.11.2024 bearing No.2024/RB-
Desk-1/Pol-1/MPDA-20 passed by respondent No.2 as well as the
approval order dated 25.11.2024 and the confirmation order dated
17.01.2025 passed by respondent No.1, are hereby quashed and
set aside.
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III) Petitioner – Shaikh Ahemad Shaikh Mohammed 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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