Full Judgment Text
2026:BHC-AUG:6269-DB
1 Cri. WP. 1394.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1394 OF 2025
Saisingh @ Sailala s/o Deepaksingh Geherwar,
Age-24 Years, Occu - Labour
R/o. Babanagar, Nanded,
Tq. & Dist. Nanded …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
…
Mr. S.S. Gangakhedkar, Advocate for the Petitioner.
Mr. P. S. Patil, A.P.P. for Respondent Nos. 1 to 3.
…
CORAM : SANDIPKUMAR C. MORE AND
ABASAHEB D. SHINDE, JJ.
Reserved on : 29.01.2025
Pronounced on : 11.02.2026
JUDGMENT (PER : ABASAHEB D. SHINDE, J.) :
1. Heard.
2. Rule. Rule is made returnable forthwith. With the consent of
the parties Writ Petition is taken up for final hearing at the stage of
admission.
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2 Cri. WP. 1394.odt
3. By this Writ Petition, the petitioner is taking an exception to
the detention order and committal order dated 14.08.2025 bearing
No. 2025/RB-1/Desk-2/T-4/MPDA/CR-50, passed by 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 (hereinafter referred to as “MPDA Act”)
as well as the confirmation order dated 29.09.2025, 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. The impugned detention order has been passed on the
proposal submitted by the Police Inspector of Police Station Nanded
Rural to the detaining authority on 12.04.2025. The proposal has
been routed through the Sub-Divisional Police Officer, Itwara and
Superintendent of Police, Nanded and eventually placed before
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Respondent No.2-District Magistrate who claims to have arrived at a
subjective satisfaction that the petitioner’s detention is necessary to
prevent him from acting in manner prejudicial to public order. It is
pertinent to note that, though the basis for submission of proposal
for detention of petitioner is registration of seven(7) past criminal
cases and one Chapter Case No. 09 of 2025 dated 17.01.2025 under
Section 126 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short
“BNSS”) against the petitioner, however the impugned order of
detention is based only on recent two(2) offences bearing Crime No.
192 of 2025 dated 27.02.2025 under Sections 109, 189, 189(4),
189(3), 191(1), 191(2), 191(3), 190, 115(2), 352, 351(2), 351(3)
of Bhartiya Nyaya Sanhita, 2023 (for short “BNS”) and Sections 4
and 25 of the Arms Act and Crime No. 199 of 2025 dated
28.02.2025 under Sections 118(2), 115(2), 352, 351(2), 351(3),
189(2), 191(2), 191(3), 190 of BNS and Sections 4 and 25 of the
Arms act, registered with the Police Station, Nanded Rural. In
addition to above crimes, two in-camera statements of witnesses ‘A’
and ‘B’ are also made basis for passing of the impugned detention
order.
5. Learned Counsel for the petitioner would submit that,
although the impugned detention order refers to release of
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4 Cri. WP. 1394.odt
petitioner on bail in pending cases, copies of bail application and
the bail orders were admittedly neither placed on record nor has
been considered by the Competent Authority, this lacks the basic
principle of subjective satisfaction. To buttress his submission he
relied on the judgment of the this Court in the case of Shaikh
Mahebub @ Gorya s/o Shaikh Babu in Criminal Writ Petition No.
2062 of 2024 decided on 08.05.2025 (Aurangabad Bench), wherein
it has been held 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.
6. With regard to in-camera statement of two witnesses, learned
counsel for the petitioner submits that those statements can not be
relied upon, more particularly when those statements were
recorded, the petitioner was on bail. He further contended that, the
impugned order of detention has been issued after an inordinate
delay due to which the live link if any has been snapped and
credible chain if any, is also broken. He has relied on the judgment
of this court in the case of Pranali Yogesh Karkhandis vs. State of
Maharashtra and others reported in AIR Online 2023 Bom 1699.
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5 Cri. WP. 1394.odt
7. The learned counsel for the petitioner further submits that the
proposal for preventive detention was forwarded on 12.04.2025 on
the basis of two offences registered on 27.02.2025 and 28.02.2025
respectively. However, the order of detention has been passed on
14.08.2025, after an unexplained and inordinate delay of nearly five
and half months from the date of last prejudical act of the petitioner.
Such delay clearly demonstrates that the requisite live link between
the alleged prejudicial activities and the necessity for preventive
detention had been severed, particularly when the in-camera
statements were purported to have been recorded on 12.04.2025.
The impugned action thus reflects a mechanical exercise of power
by the authorities, without due application of mind, without arriving
at the requisite subjective satisfaction, and without appreciating the
well-settled distinction between acts affecting “public order” and
those amounting merely to breaches of “law and order”.
8. It is further contended by the learned Counsel for the
petitioner that so far as two offences bearing Crime No.192 of 2025
dated 27.02.2025 and Crime No. 199 of 2025 dated 28.02.2025 are
concerned both these offences are arising out of the same incident
alleged to have taken place on 26.02.2025. These offences are
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individualistic in nature. He thus submit that, even taking the
allegations of both the crimes as it is, the same would not amount to
the act prejudicial to the public order but at the most it could be
said to be an act affecting the law and order. He, therefore, submit
that on the basis of these two crimes, the order of detention ought
not have been passed.
9. The learned counsel for the petitioner submits that the
offences under Sections 4 and 25 of the Arms Act were added at a
belated stage and were not part of the original proposal when it was
forwarded seeking preventive detention of the petitioner. He further
submits that, insofar as the in-camera statements of witnesses ‘A’ and
‘B’ are concerned, a perusal thereof would reveal that the same are
cyclostyled and lacks specific details such as dates, places, or
particulars of the alleged incidents. In short, the contention of the
learned counsel is that the in-camera statements are vague and,
therefore, could not have been made the basis for passing the
impugned order of detention. It is further submitted that the in-
camera statements were not properly verified and that the material
purportedly relied upon for such verification was also not furnished
to the petitioner
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10. The learned counsel further contends that several documents
which were part and parcel of the proposal for detention and which
were considered while passing the impugned order were not served
to the petitioner. Additionally, number of pages forming part of the
detention proposal are either illegible or not properly readable. This
has materially prejudiced the petitioner’s right to make an effective
representation before Respondent No. 2 as well as before the
Advisory Board, thereby depriving him of his constitutional right to
make an effective representation, as guaranteed under Article 22(5)
of the Constitution of India.
11. Per contra, the learned APP supports the impugned detention
order of detaining the petitioner for a period of 12 months.
According to the learned APP the petitioner is a habitual offender
who creates terror and the residents within the jurisdiction of
Nanded Rural Police Station and adjoining areas remain in constant
fear. He would further submit that Respondent No.2-District
Magistrate was subjectively satisfied that, if not prevented, the
petitioner is most likely to indulge in further dangerous activities
which are prejudicial to the maintenance of public order in the
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future. He would further submit that considering the statements of
the in-camera witnesses ‘A’ and ‘B’, it is evident that there was threat
and violence in both the incidents which would have directly
affected the public order.
12. Learned APP would therefore, submits that Respondent No.2-
District Magistrate has rightly considered the entire material placed
before it and has arrived at a subjective satisfaction that preventive
detention of the petitioner is very much warranted. He would
further submit that the authorities have scrupulously adhered to the
provisions as contemplated under the MPDA Act as after passing the
order of detention the same was forwarded to the Advisory Board.
The proposal was placed before the Advisory Board on 22.08.2025,
after hearing the petitioner on 18.09.2025 the same was forwarded
to the State Government on 22.09.2025 and after receipt of the
opinion from the Advisory Board, the impugned order of detention
has been confirmed by Respondent No.1-State Government by
Order dated 29.09.2025. In short, the contention of the learned APP
is that the entire procedure as contemplated under MPDA Act has
been scrupulously followed and he therefore urged that the Writ
Petition deserves to be dismissed.
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13. After having heard the learned counsel for the petitioner and
the learned APP for the state authorities, we find that, the impugned
order of detention is based on two crimes and two in-camera
statements, however it is pertinent to note that, there is delay of
almost five and half months in between passing the impugned order
of detention and the last prejudicial act of the petitioner. As it could
be seen that, last crime bearing No. 199/2025 has been registered
on 28.02.2025, the proposal for detention of petitioner appears to
have been submitted on 12.04.2025, whereas impugned order of
detention has been passed on 14.08.2025. Though Respondent No.
2 asserts that there is live link between passing of impugned order
of detention and last prejudicial act of petitioner, we however find
that, the Respondent No. 2 has utterly failed to explain the delay
between the last prejudicial act of the petitioner and passing of
impugned order of detention. We thus find that this delay has
snapped the live link between the last prejudicial act of the
petitioner and passing of impugned order of detention.
14. In that regard it would be profitable to rely on the judgement
of the Hon’ble Apex Court in the case of T.A. Abdul Rahman v. State
of Kerala reported in AIR 1990 SC 225 and more particularly para
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10 which reads thus :-
“10. The question whether the prejudicial activities of a person
necessitating to pass an order of detention is proximate to the time
when the order is made or the live-link between the prejudicial
activities and the purpose of detention is snapped depends on the
facts and circumstances of each. No hard and fast rule can be
precisely formulated that would be applicable under all
circumstances and no exhaustive guidelines can be laid down in that
behalf. It follows that the test of proximity is not a rigid or
mechanical test by merely counting number of months between the
offending acts and the order of detention. However, when there is
undue and long delay between the prejudicial activities and the
passing of detention order, the Court has to scrutinise whether the
detaining authority has satisfactorily examined such a delay and
afforded a tenable and reasonable explanation as to why such a
delay has occasioned, when called upon to answer and further the
Court has to investigate whether the causal connection has been
broken in the circumstances of each case.”
15. We also find that the impugned detention order depicts
observations made by Respondent No.2-District Magistrate that, the
petitioner has been released on bail, however, he is likely to revert
the similar activities prejudicial to the maintenance of public order
in future and therefore the detention of petitioner is necessary. In
short Respondent No.2-District Magistrate was aware that the
petitioner has already been released on bail in connection with two
crimes on the basis of which the impugned detention order has been
passed.
16. The Hon’ble Apex Court in the case of Joyi Kitty Joseph Versus
Union of India and Ors.; (2025) 4 SCC 476 has observed thus :-
"32. Likewise, in the present case, we are not concerned as to whether
the conditions imposed by the Magistrate would have taken care of the
apprehension expressed by the detaining authority; of the detenu
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11 Cri. WP. 1394.odt
indulging in further smuggling activities. We are more concerned with
the aspect that the detaining authority did not consider the efficacy of
the conditions and enter any satisfaction, however subjective it is, as to
the conditions not being sufficient to restrain the detenu from indulging
in such activities.
33. Ameena Begum vs. State of Telangana, (2023) 9 Supreme Court
Cases, 587, noticed with approval Vijay Narain Singh v. State of Bihar
(1984) 3 Supreme Court Cases 14 and extracted paragraph 32 from the
same (Vijay Narain Singh): (SCC pp.35-36).
"32....It is well settled that the law of preventive detention is a
hard law and therefore it should be strictly construed. Care
should be taken that the liberty of a person is not jeopardised
unless his case falls squarely within... not be used merely to clip
the wings of an accused who is involved in a criminal
prosecution. It is not intended for the purpose of keeping a man
under detention when under ordinary criminal law it may not be
possible to resist the issue of orders of bail, unless the material
available is such as would satisfy the requirements of the legal
provisions authorising such detention. When a person is enlarged
on bail by a competent criminal court. great caution should be
exercised in scrutinizing the validity of an order of preventive
detention which is based on the very same charge which is to be
tried by the criminal court."
(emphasis supplied)
34. The criminal prosecution launched and the preventive detention
ordered are on the very same allegations of organised smuggling
activities, through a network set up, revealed on successive raids
carried on at various locations, on specific information received,
leading to recovery of huge cache of contraband. 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.
35. 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 of
smuggling".
17. It would also be apt to refer to the decision of the Hon’ble
Apex Court in the case of Shaik Nazneen Vs. State of Telangana and
others reported in (2023) 9 SCC 633, more particularly paragraph
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19 which reads thus :-
“19. In any case, the State is not without a remedy, as in case the detenu
is much a menace to the society as is being alleged, then the
prosecution should seek for the cancellation of his bail and/or move an
appeal to the Higher Court. But definitely seeking shelter under the
preventive detention law is not the proper remedy under the facts and
circumstances of the case”
18. We thus find that impugned detention order depicts non-
application of mind at the hands of Respondent No.2-District
Magistrate while appreciating the material as, although the order
asserts that petitioner is on bail in both the pending cases, however,
the record does not contained a single copy of any bail application
or any bail order. As held by the Hon’ble Apex Court in the case of
Joyi Kitty Joseph (Supra), Shaik Nazneen (Supra), as well as the
judgment of this court in the case of Shaikh Mahebub @ Gorya s/o
Shaikh Babu (Supra), 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 offence, the conditions imposed
by a Competent Court while releasing the accused on bail and also
to ascertain as to whether there exists a real likelihood of detenue
committing similar kind of offence if released on bail. 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.
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19. So far as the reliance placed on the two in-camera statements
of witnesses ‘A’ and ‘B’ are concerned, as observed above, we find
that both the statements are cyclostyled as well as vague as it can be
seen that, the allegations made in the said statements are general in
nature. 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
cannot be made the basis of preventive detention.
20. So far as the contention of the learned APP that several crimes
has been registered against the petitioner. We, thus, find that the
registration of crimes against the petitioner cannot be said to be an
act prejudicial to the public order but at the most it could be said to
be an act affecting law and order.
21. It is settled position of law that, the preventive detention is
not mean to punish for past act but to prevent future conduct that
threatens public order. It is equally required to be considered, as to
whether, mere pendency of criminal cases without a live link to
eminent disturbances of public order justify preventive detention,
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whether it is only a concern about law and order or a public order,
in that regard the Hon’ble Apex Court in the case of Ram Manohar
Lohia v. State of Bihar reported in 1965 SCC OnLine SC 9, while
explaining the term ‘Law and Order’ and ‘Public Order’ observed
thus :
“54. … 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 it 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.…
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.”
22. 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. 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
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activities disturbing law and order may not necessarily disturb the
public order. We find that merely because of pendency of criminal
cases without a live link to eminent disturbances of public order
cannot justify preventive detention.
23. 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 two Crimes dated 27.02.2025 and 28.02.2025,
cannot be said to have such a live link. In the light of above, we are
of the considered view that the impugned detention order is
unsustainable in law so also find that, the confirmation order of the
State Government also does not sustain. Hence, we pass the
following order:-
:: ORDER ::
i. The Writ Petition stands allowed.
ii. The impugned order of detention bearing No.
2025/RB-1/Desk-2/T-4/MPDA/CR-50 dated 14.08.2025
passed by Respondent No.2-District Magistrate, Nanded and
the order of confirmation dated 29.09.2025 passed by
Respondent No.1-State Government, are hereby quashed and
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16 Cri. WP. 1394.odt
set aside.
iii. The Petitioner – Saisingh @ Sailala s/o Deepaksingh
Geherwar shall be released forthwith, if not required in any
other offences.
iv. Rule is made absolute in the above terms.
(ABASAHEB D. SHINDE, J.) (SANDIPKUMAR C. MORE , J.)
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1 Cri. WP. 1394.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1394 OF 2025
Saisingh @ Sailala s/o Deepaksingh Geherwar,
Age-24 Years, Occu - Labour
R/o. Babanagar, Nanded,
Tq. & Dist. Nanded …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
…
Mr. S.S. Gangakhedkar, Advocate for the Petitioner.
Mr. P. S. Patil, A.P.P. for Respondent Nos. 1 to 3.
…
CORAM : SANDIPKUMAR C. MORE AND
ABASAHEB D. SHINDE, JJ.
Reserved on : 29.01.2025
Pronounced on : 11.02.2026
JUDGMENT (PER : ABASAHEB D. SHINDE, J.) :
1. Heard.
2. Rule. Rule is made returnable forthwith. With the consent of
the parties Writ Petition is taken up for final hearing at the stage of
admission.
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2 Cri. WP. 1394.odt
3. By this Writ Petition, the petitioner is taking an exception to
the detention order and committal order dated 14.08.2025 bearing
No. 2025/RB-1/Desk-2/T-4/MPDA/CR-50, passed by 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 (hereinafter referred to as “MPDA Act”)
as well as the confirmation order dated 29.09.2025, 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. The impugned detention order has been passed on the
proposal submitted by the Police Inspector of Police Station Nanded
Rural to the detaining authority on 12.04.2025. The proposal has
been routed through the Sub-Divisional Police Officer, Itwara and
Superintendent of Police, Nanded and eventually placed before
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Respondent No.2-District Magistrate who claims to have arrived at a
subjective satisfaction that the petitioner’s detention is necessary to
prevent him from acting in manner prejudicial to public order. It is
pertinent to note that, though the basis for submission of proposal
for detention of petitioner is registration of seven(7) past criminal
cases and one Chapter Case No. 09 of 2025 dated 17.01.2025 under
Section 126 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short
“BNSS”) against the petitioner, however the impugned order of
detention is based only on recent two(2) offences bearing Crime No.
192 of 2025 dated 27.02.2025 under Sections 109, 189, 189(4),
189(3), 191(1), 191(2), 191(3), 190, 115(2), 352, 351(2), 351(3)
of Bhartiya Nyaya Sanhita, 2023 (for short “BNS”) and Sections 4
and 25 of the Arms Act and Crime No. 199 of 2025 dated
28.02.2025 under Sections 118(2), 115(2), 352, 351(2), 351(3),
189(2), 191(2), 191(3), 190 of BNS and Sections 4 and 25 of the
Arms act, registered with the Police Station, Nanded Rural. In
addition to above crimes, two in-camera statements of witnesses ‘A’
and ‘B’ are also made basis for passing of the impugned detention
order.
5. Learned Counsel for the petitioner would submit that,
although the impugned detention order refers to release of
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petitioner on bail in pending cases, copies of bail application and
the bail orders were admittedly neither placed on record nor has
been considered by the Competent Authority, this lacks the basic
principle of subjective satisfaction. To buttress his submission he
relied on the judgment of the this Court in the case of Shaikh
Mahebub @ Gorya s/o Shaikh Babu in Criminal Writ Petition No.
2062 of 2024 decided on 08.05.2025 (Aurangabad Bench), wherein
it has been held 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.
6. With regard to in-camera statement of two witnesses, learned
counsel for the petitioner submits that those statements can not be
relied upon, more particularly when those statements were
recorded, the petitioner was on bail. He further contended that, the
impugned order of detention has been issued after an inordinate
delay due to which the live link if any has been snapped and
credible chain if any, is also broken. He has relied on the judgment
of this court in the case of Pranali Yogesh Karkhandis vs. State of
Maharashtra and others reported in AIR Online 2023 Bom 1699.
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7. The learned counsel for the petitioner further submits that the
proposal for preventive detention was forwarded on 12.04.2025 on
the basis of two offences registered on 27.02.2025 and 28.02.2025
respectively. However, the order of detention has been passed on
14.08.2025, after an unexplained and inordinate delay of nearly five
and half months from the date of last prejudical act of the petitioner.
Such delay clearly demonstrates that the requisite live link between
the alleged prejudicial activities and the necessity for preventive
detention had been severed, particularly when the in-camera
statements were purported to have been recorded on 12.04.2025.
The impugned action thus reflects a mechanical exercise of power
by the authorities, without due application of mind, without arriving
at the requisite subjective satisfaction, and without appreciating the
well-settled distinction between acts affecting “public order” and
those amounting merely to breaches of “law and order”.
8. It is further contended by the learned Counsel for the
petitioner that so far as two offences bearing Crime No.192 of 2025
dated 27.02.2025 and Crime No. 199 of 2025 dated 28.02.2025 are
concerned both these offences are arising out of the same incident
alleged to have taken place on 26.02.2025. These offences are
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individualistic in nature. He thus submit that, even taking the
allegations of both the crimes as it is, the same would not amount to
the act prejudicial to the public order but at the most it could be
said to be an act affecting the law and order. He, therefore, submit
that on the basis of these two crimes, the order of detention ought
not have been passed.
9. The learned counsel for the petitioner submits that the
offences under Sections 4 and 25 of the Arms Act were added at a
belated stage and were not part of the original proposal when it was
forwarded seeking preventive detention of the petitioner. He further
submits that, insofar as the in-camera statements of witnesses ‘A’ and
‘B’ are concerned, a perusal thereof would reveal that the same are
cyclostyled and lacks specific details such as dates, places, or
particulars of the alleged incidents. In short, the contention of the
learned counsel is that the in-camera statements are vague and,
therefore, could not have been made the basis for passing the
impugned order of detention. It is further submitted that the in-
camera statements were not properly verified and that the material
purportedly relied upon for such verification was also not furnished
to the petitioner
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10. The learned counsel further contends that several documents
which were part and parcel of the proposal for detention and which
were considered while passing the impugned order were not served
to the petitioner. Additionally, number of pages forming part of the
detention proposal are either illegible or not properly readable. This
has materially prejudiced the petitioner’s right to make an effective
representation before Respondent No. 2 as well as before the
Advisory Board, thereby depriving him of his constitutional right to
make an effective representation, as guaranteed under Article 22(5)
of the Constitution of India.
11. Per contra, the learned APP supports the impugned detention
order of detaining the petitioner for a period of 12 months.
According to the learned APP the petitioner is a habitual offender
who creates terror and the residents within the jurisdiction of
Nanded Rural Police Station and adjoining areas remain in constant
fear. He would further submit that Respondent No.2-District
Magistrate was subjectively satisfied that, if not prevented, the
petitioner is most likely to indulge in further dangerous activities
which are prejudicial to the maintenance of public order in the
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future. He would further submit that considering the statements of
the in-camera witnesses ‘A’ and ‘B’, it is evident that there was threat
and violence in both the incidents which would have directly
affected the public order.
12. Learned APP would therefore, submits that Respondent No.2-
District Magistrate has rightly considered the entire material placed
before it and has arrived at a subjective satisfaction that preventive
detention of the petitioner is very much warranted. He would
further submit that the authorities have scrupulously adhered to the
provisions as contemplated under the MPDA Act as after passing the
order of detention the same was forwarded to the Advisory Board.
The proposal was placed before the Advisory Board on 22.08.2025,
after hearing the petitioner on 18.09.2025 the same was forwarded
to the State Government on 22.09.2025 and after receipt of the
opinion from the Advisory Board, the impugned order of detention
has been confirmed by Respondent No.1-State Government by
Order dated 29.09.2025. In short, the contention of the learned APP
is that the entire procedure as contemplated under MPDA Act has
been scrupulously followed and he therefore urged that the Writ
Petition deserves to be dismissed.
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13. After having heard the learned counsel for the petitioner and
the learned APP for the state authorities, we find that, the impugned
order of detention is based on two crimes and two in-camera
statements, however it is pertinent to note that, there is delay of
almost five and half months in between passing the impugned order
of detention and the last prejudicial act of the petitioner. As it could
be seen that, last crime bearing No. 199/2025 has been registered
on 28.02.2025, the proposal for detention of petitioner appears to
have been submitted on 12.04.2025, whereas impugned order of
detention has been passed on 14.08.2025. Though Respondent No.
2 asserts that there is live link between passing of impugned order
of detention and last prejudicial act of petitioner, we however find
that, the Respondent No. 2 has utterly failed to explain the delay
between the last prejudicial act of the petitioner and passing of
impugned order of detention. We thus find that this delay has
snapped the live link between the last prejudicial act of the
petitioner and passing of impugned order of detention.
14. In that regard it would be profitable to rely on the judgement
of the Hon’ble Apex Court in the case of T.A. Abdul Rahman v. State
of Kerala reported in AIR 1990 SC 225 and more particularly para
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10 which reads thus :-
“10. The question whether the prejudicial activities of a person
necessitating to pass an order of detention is proximate to the time
when the order is made or the live-link between the prejudicial
activities and the purpose of detention is snapped depends on the
facts and circumstances of each. No hard and fast rule can be
precisely formulated that would be applicable under all
circumstances and no exhaustive guidelines can be laid down in that
behalf. It follows that the test of proximity is not a rigid or
mechanical test by merely counting number of months between the
offending acts and the order of detention. However, when there is
undue and long delay between the prejudicial activities and the
passing of detention order, the Court has to scrutinise whether the
detaining authority has satisfactorily examined such a delay and
afforded a tenable and reasonable explanation as to why such a
delay has occasioned, when called upon to answer and further the
Court has to investigate whether the causal connection has been
broken in the circumstances of each case.”
15. We also find that the impugned detention order depicts
observations made by Respondent No.2-District Magistrate that, the
petitioner has been released on bail, however, he is likely to revert
the similar activities prejudicial to the maintenance of public order
in future and therefore the detention of petitioner is necessary. In
short Respondent No.2-District Magistrate was aware that the
petitioner has already been released on bail in connection with two
crimes on the basis of which the impugned detention order has been
passed.
16. The Hon’ble Apex Court in the case of Joyi Kitty Joseph Versus
Union of India and Ors.; (2025) 4 SCC 476 has observed thus :-
"32. Likewise, in the present case, we are not concerned as to whether
the conditions imposed by the Magistrate would have taken care of the
apprehension expressed by the detaining authority; of the detenu
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indulging in further smuggling activities. We are more concerned with
the aspect that the detaining authority did not consider the efficacy of
the conditions and enter any satisfaction, however subjective it is, as to
the conditions not being sufficient to restrain the detenu from indulging
in such activities.
33. Ameena Begum vs. State of Telangana, (2023) 9 Supreme Court
Cases, 587, noticed with approval Vijay Narain Singh v. State of Bihar
(1984) 3 Supreme Court Cases 14 and extracted paragraph 32 from the
same (Vijay Narain Singh): (SCC pp.35-36).
"32....It is well settled that the law of preventive detention is a
hard law and therefore it should be strictly construed. Care
should be taken that the liberty of a person is not jeopardised
unless his case falls squarely within... not be used merely to clip
the wings of an accused who is involved in a criminal
prosecution. It is not intended for the purpose of keeping a man
under detention when under ordinary criminal law it may not be
possible to resist the issue of orders of bail, unless the material
available is such as would satisfy the requirements of the legal
provisions authorising such detention. When a person is enlarged
on bail by a competent criminal court. great caution should be
exercised in scrutinizing the validity of an order of preventive
detention which is based on the very same charge which is to be
tried by the criminal court."
(emphasis supplied)
34. The criminal prosecution launched and the preventive detention
ordered are on the very same allegations of organised smuggling
activities, through a network set up, revealed on successive raids
carried on at various locations, on specific information received,
leading to recovery of huge cache of contraband. 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.
35. 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 of
smuggling".
17. It would also be apt to refer to the decision of the Hon’ble
Apex Court in the case of Shaik Nazneen Vs. State of Telangana and
others reported in (2023) 9 SCC 633, more particularly paragraph
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19 which reads thus :-
“19. In any case, the State is not without a remedy, as in case the detenu
is much a menace to the society as is being alleged, then the
prosecution should seek for the cancellation of his bail and/or move an
appeal to the Higher Court. But definitely seeking shelter under the
preventive detention law is not the proper remedy under the facts and
circumstances of the case”
18. We thus find that impugned detention order depicts non-
application of mind at the hands of Respondent No.2-District
Magistrate while appreciating the material as, although the order
asserts that petitioner is on bail in both the pending cases, however,
the record does not contained a single copy of any bail application
or any bail order. As held by the Hon’ble Apex Court in the case of
Joyi Kitty Joseph (Supra), Shaik Nazneen (Supra), as well as the
judgment of this court in the case of Shaikh Mahebub @ Gorya s/o
Shaikh Babu (Supra), 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 offence, the conditions imposed
by a Competent Court while releasing the accused on bail and also
to ascertain as to whether there exists a real likelihood of detenue
committing similar kind of offence if released on bail. 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.
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19. So far as the reliance placed on the two in-camera statements
of witnesses ‘A’ and ‘B’ are concerned, as observed above, we find
that both the statements are cyclostyled as well as vague as it can be
seen that, the allegations made in the said statements are general in
nature. 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
cannot be made the basis of preventive detention.
20. So far as the contention of the learned APP that several crimes
has been registered against the petitioner. We, thus, find that the
registration of crimes against the petitioner cannot be said to be an
act prejudicial to the public order but at the most it could be said to
be an act affecting law and order.
21. It is settled position of law that, the preventive detention is
not mean to punish for past act but to prevent future conduct that
threatens public order. It is equally required to be considered, as to
whether, mere pendency of criminal cases without a live link to
eminent disturbances of public order justify preventive detention,
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whether it is only a concern about law and order or a public order,
in that regard the Hon’ble Apex Court in the case of Ram Manohar
Lohia v. State of Bihar reported in 1965 SCC OnLine SC 9, while
explaining the term ‘Law and Order’ and ‘Public Order’ observed
thus :
“54. … 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 it 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.…
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.”
22. 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. 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
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activities disturbing law and order may not necessarily disturb the
public order. We find that merely because of pendency of criminal
cases without a live link to eminent disturbances of public order
cannot justify preventive detention.
23. 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 two Crimes dated 27.02.2025 and 28.02.2025,
cannot be said to have such a live link. In the light of above, we are
of the considered view that the impugned detention order is
unsustainable in law so also find that, the confirmation order of the
State Government also does not sustain. Hence, we pass the
following order:-
:: ORDER ::
i. The Writ Petition stands allowed.
ii. The impugned order of detention bearing No.
2025/RB-1/Desk-2/T-4/MPDA/CR-50 dated 14.08.2025
passed by Respondent No.2-District Magistrate, Nanded and
the order of confirmation dated 29.09.2025 passed by
Respondent No.1-State Government, are hereby quashed and
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set aside.
iii. The Petitioner – Saisingh @ Sailala s/o Deepaksingh
Geherwar shall be released forthwith, if not required in any
other offences.
iv. Rule is made absolute in the above terms.
(ABASAHEB D. SHINDE, J.) (SANDIPKUMAR C. MORE , J.)
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