Full Judgment Text
2025:BHC-NAG:10136-DB
914-WP-223-2025
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 223/2025
(Akshay Bhaskar Sahare Vs. State of Maharashtra & Anr.)
WITH CRIMINAL WRIT PETITION NOS. 227/2025, 272/2025,
309/2025, 324/2025, 348/2025, 388/2025, 408/2025, 435/2025,
440/2025, 449/2025, 454/2025, 480/2025, 503/2025, 508/2025,
510/2025, 520/2025, 521/2025, 522/2025, 525/2025, 555/2025,
560/2025, 575/2025, 579/2025, 593/2025, 598/2025, 612/2025,
639/2025, 687/2025, 734/2025
__________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
WRIT PETITION NO. 223/2025
Mr. M.N. Ali, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. S.S. Doifode, A.P.P. for the State.
WRIT PETITION NO. 227/2025
Mr. S.K. Lambat, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. S.S. Doifode, A.P.P. for the State.
WRIT PETITION NO. 272/2025
Mr. Shahrukh Shafik Sheikh, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. S.S. Doifode, A.P.P. for the State.
WRIT PETITION NO. 309/2025
Mr. A.A. Krishnan, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. S.A. Ashirgade, A.P.P. for the State.
WRIT PETITION NO. 324/2025
Mr. M.N. Ali, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. S.S. Doifode, A.P.P. for the State.
WRIT PETITION NO. 348/2025
Mr. M.N. Ali, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. A.B. Badar, A.P.P. for the State.
WRIT PETITION NO. 388/2025
Mr. M.N. Ali, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. K.R. Lule, A.P.P. for the State.
WRIT PETITION NO. 408/2025
Mr. Prateek Sharma with Mr. Pradyumna Sharma, Counsel for
the petitioner/s.
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Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. I.J. Damle, A.P.P. for the State.
WRIT PETITION NO. 435/2025
Mr. G.B. Mate, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. S.S. Doifode, A.P.P. for the State.
WRIT PETITION NO. 440/2025
Mr. M.N. Ali, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. S.A. Ashirgade, A.P.P. for the State.
WRIT PETITION NO. 449/2025
Mr. A.M. Gopale, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. S.A. Ashirgade, A.P.P. for the State.
WRIT PETITION NO. 454/2025
Mr. M.N. Ali, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. A.B. Badar, A.P.P. for the State.
WRIT PETITION NO. 480/2025
Mr. S.N. Singh, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Ms R.V. Sharma, A.P.P. for the State.
WRIT PETITION NO. 503/2025
Mr. P.J. Mehta, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. A.R. Chutke, A.P.P. for the State.
WRIT PETITION NO. 508/2025
Mr. P.R. Agrawal, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. S.A. Ashirgade, A.P.P. for the State.
WRIT PETITION NO. 510/2025
Mr. K.S. Motwani, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. A.R. Chutke, A.P.P. for the State.
WRIT PETITION NO. 520/2025
Mr. S.H. Mansuri, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. A.B. Badar, A.P.P. for the State.
WRIT PETITION NO. 521/2025
Mr. N.S. Padia, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. I.J. Damle, A.P.P. for the State.
WRIT PETITION NO. 522/2025
Mr. N.S. Padia, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. A.R. Chutke, A.P.P. for the State.
WRIT PETITION NO. 525/2025
Mr. M.N. Ali, Counsel for the petitioner/s.
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Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. S.S. Doifode, A.P.P. for the State.
WRIT PETITION NO. 555/2025
Mr. Sarnath Sahoo, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. S.A. Ashirgade, A.P.P. for the State.
WRIT PETITION NO. 560/2025
Mr. M.N. Ali, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Ms R.V. Sharma, A.P.P. for the State.
WRIT PETITION NO. 575/2025
Mr. Joseph Bastian, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Ms R.V. Sharma, A.P.P. for the State.
WRIT PETITION NO. 579/2025
Ms M.M. Agrawal, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. S.S. Doifode, A.P.P. for the State.
WRIT PETITION NO. 593/2025
Mr. M.N. Ali, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. K.R. Lule, A.P.P. for the State.
WRIT PETITION NO. 598/2025
Mr. M.N. Ali, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. I.J. Damle, A.P.P. for the State.
WRIT PETITION NO. 612/2025
Mr. M.N. Ali, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. A.B. Badar, A.P.P. for the State.
WRIT PETITION NO. 639/2025
Mr. Anshuman Deshmukh, Counsel for the petitioner/s
(through V.C.).
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. I.J. Damle, A.P.P. for the State.
WRIT PETITION NO. 687/2025
Mr. M.N. Ali, Counsel for the petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. A.R. Chutke, A.P.P. for the State.
WRIT PETITION NO. 734/2025
Ms F.N. Haidari h/f Mr. R.M. Daga, Counsel for the
petitioner/s.
Mr. D.V. Chauhan, Senior Counsel/Government Pleader with
Mr. A.B. Badar, A.P.P. for the State.
..…
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CORAM : ANIL L. PANSARE AND
SIDDHESHWAR S. THOMBRE, JJ.
ARGUMENTS WERE HEARD ON : SEPTEMBER 11, 2025
ORDER IS PRONOUNCED ON : SEPTEMBER 30, 2025
These petitions originate from orders issued
pursuant to the provisions of the Maharashtra Prevention
of Dangerous Activities Act, 1981 (for short “Act of
1981”). The petitions herein raise substantial questions
regarding the manner in which the fundamental right
guaranteed under Article 21 of the Constitution of India,
namely the right to personal liberty, is being restricted/
infringed.
2] As such, it is well settled that personal
liberty can be curtailed and can only be curtailed in
accordance with the procedure established by law,
however it requires strong legal justification for any
restriction, balanced with other societal interests.
3] Thus, deprivation of personal liberty must
follow a legally prescribed procedure. The petitioners,
however, have approached this Court with a grievance
that the orders of preventive detention, approval thereof
and confirmation orders are passed in a mechanical
manner.
4] Rule. Rule made returnable forthwith.
Heard by consent of the parties. We have, accordingly,
heard learned Counsels for the petitioner/s, and Mr. D.V.
Chauhan, learned Senior Counsel/Government Pleader
assisted by A.P.P.s for the State.
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5] For the sake of convenience, we will refer to
the facts of Writ Petition No.223/2025. We must note
here that both the learned Senior Counsel/Government
Pleader and the learned Additional Public Prosecutors
have acknowledged that in all cases, the order of
conferment under sub-section (2) of Section 3, the order
of approval under sub-section (3) of Section 3, and the
order of confirmation under Section 12 are identical in
form and substance in all the cases. Therefore, a reference
to one such order or note shall be deemed to encompass
all similar orders or notes issued in the respective cases.
6] The petitioners have challenged the orders
of detention passed under Section 3, as also, the
confirmation orders passed under Section 12 of the Act of
1981. The orders are said to be passed for preventing the
petitioners from acting in any manner prejudicial to the
maintenance of public order. The petitioners, however,
contended that in none of the cases, the respondents have
justified that the circumstances prevailing were such that
the petitioners could be said to have acted or are likely to
act in a manner prejudicial to the maintenance of public
order.
7] We will, accordingly, examine whether the
acts of the petitioners were such that would require
preventive detention. Prior thereto, we would like to go
through the relevant provisions and scheme of the Act of
1981. The orders of preventive detention are passed
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under Section 3 of the Act of 1981, which reads as
under :
“3. (1) The State Government may, if
satisfied with respect to any person that
with a view to preventing him from acting
in any manner prejudicial to the
maintenance of public order, it is necessary
so to do, make an order directing that such
person be detained.
(2) If, having regard to the circumstances
prevailing or likely to prevail in any area
within the local limits of the jurisdiction of
a District Magistrate or a Commissioner of
Police, the State Government is satisfied
that it is necessary so to do, it may by order
in writing, direct, that during such period as
may be specified in the order such District
Magistrate or Commissioner of Police may
also, if satisfied as provided in sub-section
(1), exercise the powers conferred by the
said sub-section :
Provided that the period specified in the
order made by the State Government under
this sub-section shall not, in the first
instance, exceed six months, but the State
Government may, if satisfied as aforesaid
that it is necessary so to amend such order
to extend such period from time to time by
any period not exceeding three months at
any one time.
(3) When any order is made under this
section by an officer mentioned in sub-
section (2), he shall forthwith report the
fact to the State Government, together with
the grounds on which the order has been
made and such other particulars as, in his
opinion, have a bearing on the matter, and
no such order shall remain in force for more
than twelve days after the making thereof,
unless, in the meantime, it has been
approved by the State Government.”
914-WP-223-2025
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8] Thus, sub-section (1) stipulates that the
State Government is authorized to issue an order of
detention against an individual, provided it is satisfied
that such detention is imperative to prevent the individual
from engaging in conduct prejudicial to the maintenance
of public order.
9] Sub-section (2) provides that the State
Government may empower District Magistrate or
Commissioner of Police to exercise powers conferred by
sub-section (1). The State Government is, however,
required to record a satisfaction that the circumstances
prevailing or likely to prevail in any area are such, that
would require conferment of powers of the State
Government upon the jurisdictional District Magistrate or
Commissioner of Police in order to prevent any person
from acting in a manner prejudicial to the maintenance of
public order.
10] Proviso to sub-section (2) stipulates that the
period specified in the order made by the State
Government under this sub-section shall not, in the first
instance, exceed six months, but the State Government
may amend such order to extend such period from time
to time not exceeding three months at any one time. In
other words, the State Government, by such order, may
confer its powers under sub-section (1) of Section 3 upon
District Magistrate or Commissioner of Police for a period,
not exceeding six months with a rider of permissible
914-WP-223-2025
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extension from time to time, but not exceeding three
months at one time.
11] Thus, the State Government will have to
record a satisfaction that in a particular area, within the
local limits of jurisdiction of District Magistrate or
Commissioner of Police, the circumstances prevailing or
likely to prevail are such that would require preventive
detention of a person, if contingency so arises. The order
of detention must, therefore, explicitly disclose the
existence of such circumstances or the reasonable
likelihood thereof, wherein the possibility of an individual
or individuals acting in a manner detrimental to the
maintenance of public order is manifest. In such
situations, where the contingency materializes, the
officers empowered under sub-section (2) of Section 3
shall be vested with the necessary authority and powers
conferred by the State Government to prevent the
individual(s) from engaging in conduct as described in
sub-section (1).
12] Sub-section (3) of Section 3 provides that
when an order is passed under sub-section (2), the officer
concerned shall forthwith report the said fact to the State
Government, together with the grounds on which the
order has been made, as also, such other particulars that
would have bearing on the matter. Sub-section (3) further
provides that no such order shall remain in force for more
than twelve days unless, in the meantime, it has been
approved by the State Government.
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13] Thus, overall reading of Section 3 indicates
that the prime responsibility of passing order of
preventive detention lies with the State Government. A
stop gap arrangement, however, has been made in terms
of sub-section (2), where certain officers are empowered
to pass such an order of preventive detention, which is
valid only for twelve days, within which time, the State
Government is under an obligation to approve the order
so passed under sub-section (2).
14] Thus, it is incumbent upon the State
Government to exercise its discretion in matters of
preventive detention. In this regard, the order of approval
must encompass considerations analogous to those
mandated under sub-section (1), such that the approval
process reflects the same evaluative criteria as would be
required for issuing an order under sub-section (1). The
approval order, therefore, should be predicated on the
same substantive and procedural considerations as are
requisite for the issuance of an order under sub-section
(1), ensuring compliance with the principles of law and
due process inherent in the exercise of such powers.
15] In context with above, our attention has
been invited by the petitioner’s Counsel to the order
passed by the State Government conferring its powers
upon the District Magistrate or Commissioner of Police of
the concerned area, as also, the order of approval to
contend that both the orders are passed mechanically.
One of the reasons attributed in support of argument is
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that these two orders, which the State Government has
passed, are identical in all the matters/petitions.
16] We have gone through both the orders to
find that what is argued is correct. It will be, therefore,
appropriate to reproduce both the orders, which will
speak for themselves. The order of the State Government,
conferring its powers under sub-section (1) upon District
Magistrate, reads as under :
th
“Date- 26 June, 2024.
ORDER
No. MPDA - 0624/CR - 409/Spl - 3B:
Whereas the Government of Maharashtra is
satisfied that having regard to the
circumstances prevailing and which are
likely to prevail in the Districts of Thane,
Palghar, Raigad, Ratnagiri, Sindhudurg,
Pune, Solapur, Kolhapur, Sangli, Satara,
Nashik, Ahmednagar, Dhule, Nandurbar,
Jalgaon, Chhatrapati Sambhajinagar, Jalna,
Parbhani, Nanded, Hingoli, Beed,
Dharashiv, Latur, Akola, Washim, Wardha,
Yavatmal, Buldhana, Amravati, Nagpur,
Bhandara, Gondia, Chandrapur and
Gadchiroli it is necessary that during the
st
period commencing from 01 July, 2024
st
and ending on the 31 December, 2024, the
District Magistrates of the said Districts may
also, if satisfied as provided exercise the
powers in sub-section (1) of Section 3 of
the Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers, Drug
Offenders, Dangerous Persons, Video
Pirates, Sand Smugglers and Persons
engaged in Black-marketing of Essential
Commodities Act, 1981 (Mah. No.LV of
1981) (hereinafter referred to as "the said
Act");
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Now, therefore, in exercise of the
powers conferred by sub-section (2) of
Section 3 of the said Act, the Government of
Maharashtra hereby directs that for the
st
period commencing from 01 July, 2024
st
and ending on the 31 December, 2024, the
District Magistrates Thane, Palghar, Raigad,
Ratnagiri, Sindhudurg, Pune, Solapur,
Kolhapur, Sangli, Satara, Nashik,
Ahmednagar, Dhule, Nandurbar, Jalgaon,
Chhatrapati Sambhajinagar, Jalna,
Parbhani, Nanded, Hingoli, Beed,
Dharashiv, Latur, Akola, Washim, Wardha,
Yavatmal, Buldhana, Amravati, Nagpur,
Bhandara, Gondia, Chandrapur and
Gadchiroli may also, if satisfied as provided
in sub-section (1) of Section 3 of the said
Act, exercise the powers conferred on the
State Government by sub-section (1) of
Section 3 of the said Act.
By order and in the name of the Governor
of Maharashtra,
(Venkatesh Madhav Bhat)
Joint Secretary to the Government of
Maharashtra, Home Department (Special). ”
17] Thus, the State Government has picked up a
sentence from sub-section (2) saying that the Government
of Maharashtra is satisfied that having regard to the
circumstances prevailing or are likely to prevail in as
many as thirty-four Districts, i.e., all the Districts in
Maharashtra for the period commencing on 1/7/2024
and ending with 31/12/2024 are such, which would
require conferment of powers of the State Government
upon the concerned District Magistrates.
18] The order, if accepted, would mean that
during the period from 1/7/2024 till 31/12/2024, the
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circumstances that are prevailing or are likely to prevail in
the entire State of Maharashtra are such, where persons
(not known to anybody) are likely to act in a manner
deterrent to maintenance of public order or will act so in
future and, therefore, powers of the State Government
could be exercised by respective District Magistrate,
depending on a contingency that may arise. Such an
order, in our view, is a classic example of what can be
termed as a mechanical way to assess the situation. What
is provided under sub-section (2) is that the State
Government will have regard to the circumstances
prevailing or likely to prevail in any area within the local
limits of jurisdiction of District Magistrate. Thus, the
situation is fact based in a particular area. The order of
conferment, therefore, should describe the circumstances
that are prevailing in an area or likely to prevail in that
area, where there is likelihood that a person/s will act in
a manner prejudicial to the maintenance of public order,
instead, the State Government has picked up first
sentence of sub-section (2), and conferred its powers to
all District Magistrates in Maharashtra. Such conferment
of powers in itself is a reason to hold that the order of
conferment is passed mechanically.
19] On this point, a profitable reference can be
made to the judgment of the Hon’ble Supreme Court in
the case of Abhay Shridhar Ambulkar Vs. S.V. Bhave,
Commissioner of Police And Others [(1991) 1 SCC 500].
The petitioner therein was detained under the provisions
of the National Security Act, 1980, which are pari materia
the provisions of the Act of 1981. The order of detention
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was issued by Commissioner of Police, Greater Bombay.
The order was issued under Section 3(2) of the Act of
1980 with a view to prevent the petitioner therein from
acting in any manner prejudicial to the maintenance of
public order. One of the challenge was to the validity of
the Government order conferring powers upon
Commissioner of Police to exercise powers of the State
Government. The Supreme Court reproduced Section 3 of
the Act of 1980, and held as under :
“ 7. The power to make an order of
detention primarily rests with the Central
Government or the State Government. The
State Government however, being satisfied
with certain circumstances may order that
the District Magistrate or the Commissioner
of Police may also make an order of
detention in respect of matters relating to
the security of the State or public order or
maintenance of supplies and services
essential to the community against any
person within their respective areas. The
State Government can make such an order
which shall not in the first instance exceed
three months but it may extend such period
from time to time making fresh order for a
further period again not exceeding three
months at one time. It may be noted that
the conferment of this power on the District
Magistrate or the Commissioner of Police is
not to the exclusion of but in addition to the
powers of the government to exercise its
own power.
8. The first paragraph of the order dated
January 6, 1990 states that government was
satisfied that having regard to the
circumstances prevailing or likely to prevail
in Greater Bombay Police Commissionerate
it is necessary that during the period
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commencing on January 30, 1990 to April
29, 1990 the Commissioner should also
exercise the powers conferred under sub-
section (2) of Section 3 of the Act. This is
indeed no more than a reproduction of the
terms of sub-section (3) of Section 3. But
sub-section (3) refers to two independent
circumstances namely: (1) the prevailing
circumstances, (ii) the circumstances that
are likely to prevail. The former evidently
means circumstances in praesenti that is
prevalent on the date of the order and the
latter means the anticipated circumstances
in futuro. If the government wants that the
District Magistrate or the Commissioner of
Police should also exercise the powers for
the current period, it has to satisfy itself
with the prevailing circumstances. If the
government wants that the District
Magistrate or the Commissioner of Police
should also exercise the powers during the
future period, it must be satisfied with the
circumstances that are likely to prevail
during that period. This seems to be the
mandate of sub-section (3).
9. The subjective satisfaction for the
exercise of power under sub-section (3) of
Section 3 must be based on circumstances
prevailing at the date of the order or likely
to prevail at a future date. The period
during which the District Magistrate or the
Commissioner of Police, as the case may be,
is to exercise the power provided by sub-
section (2) of Section 3 is to be specified in
the order which would depend on the
existence of circumstances in praesenti or at
a future date. If the subjective satisfaction is
based on circumstances prevailing at the
date of the order, the choice of period,
which must not exceed three months, would
have to be determined from the date of the
order. If the conferment of power is
considered necessary because of
circumstances likely to prevail during the
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15
future period, the duration for the exercise
of power must be relatable to the
apprehended circumstances. Therefore, the
specification of the period during which the
District Magistrate or Commissioner of
Police is to exercise power under sub-
section (2) of Section 3 would depend on
the subjective satisfaction as to the
existence of the circumstances in praesenti
or futuro. Since very drastic powers of
detention without trial are to be conferred
on subordinate officers, the State
Government is expected to apply its mind
and make a careful choice regarding the
period during which such power shall be
exercised by the subordinate officers, which
would solely depend on the circumstances
prevailing or likely to prevail. The
subjective satisfaction cannot be lightly
recorded by reproducing both the
alternative clauses of the statute. The
subjective satisfaction on the prevailing
circumstances, or circumstances that are
likely to prevail at a future date is the sine
qua non for the exercise of power. The use
of the word 'or' signifies either of the two
situations for different periods. That,
however, is not to say that the power cannot
be exercised for a future period by taking
into consideration circumstances prevailing
on the date of the order as well as
circumstances likely to prevail in future.
The latter may stem from the former. For
example, there may be disturbances on the
date of the order and the same situation
may be visualised at a future date also in
which case the power may be conferred on
the subordinate officers keeping both the
factors in mind; but in that case the two
circumstances would have to be joined by
the conjunctive word 'and' not the
disjunctive word 'or'. The use of the
disjunctive word 'or' in the impugned
government order only indicates non-
914-WP-223-2025
16
application of mind and obscurity in
thought. The obscurity in thought
inexorably leads to obscurity in language.
Apparently, the government seems to be
uncertain as to the relevant circumstances
to be taken into consideration, and that
appears to be the reason why they have
used the disjunctive word “or” in the
impugned order.”
(Emphasis now)
20] Thus, the Supreme Court held that power to
make an order of detention primarily rests with the
Central Government or the State Government. The Court
then mentioned about the circumstances under which the
State Government could confer powers upon District
Magistrate or Commissioner of Police. The Court
highlighted necessary ingredients of sub-section (2) to
confer powers. The Court held that if the Government
wants that District Magistrate or Commissioner of Police
should exercise powers during present or future period, it
must be satisfied with the circumstances that are
prevailing or likely to prevail during that period.
21] Thus, there are two set of circumstances;
one is, prevailing, and other is, likely to prevail. The State
Government, therefore, will have to specify in the order
or otherwise as to what are the circumstances that are
prevailing that would require District Magistrate or
Commissioner of Police to exercise powers of the State
Government. Depending on such circumstances, the State
Government will have to then determine the period for
which powers should be conferred upon the officers
mentioned in sub-section (2).
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22] Another set of circumstances will cover the
circumstances that are likely to prevail in future. In such
an eventuality, the State Government must specify in the
order or otherwise the future date/period where such
circumstances are likely to prevail, that would require the
officers mentioned in sub-section (2) to exercise powers
of the State Government. The duration of such exercise
shall be contingent upon the nature and anticipated
persistence of the circumstances likely to prevail in future.
23] Therefore, the period is relatable to the
circumstances, which are prevailing or are likely to
prevail. The order conferring such powers must,
therefore, explicitly describe the nature of the
circumstances that are prevailing or are likely to prevail
within the particular area concerned.
24] It is in this context, the Supreme Court held
that specification of period during which District
Magistrate or Commissioner of Police is to exercise
powers under sub-section (2) would depend on the
subjective satisfaction as to the existence of the
circumstances in praesenti or futuro. Most importantly,
the Supreme Court held that since very drastic powers of
detention, without trial, are to be conferred on
subordinate officers, the State Government is expected to
apply its mind and make a careful choice regarding
period during which such powers shall be exercised by
the subordinate officers, which would solely depend on
the circumstances prevailing or likely to prevail. The
Court then cautioned that subjective satisfaction cannot
914-WP-223-2025
18
be lightly recorded by reproducing both the alternative
clauses of the statute. Such a finding, as regards
alternative clauses, is recorded by the Supreme Court
because in the order of conferment before it, the State
Government picked up first sentence of sub-section (2) as
it is, where the word ‘or’ is used between the words
‘circumstances prevailing’ and ‘likely to prevail’. The
Court then held that subjective satisfaction on the
prevailing circumstances or the circumstances that are
likely to prevail at a future date, is sine qua non for
exercising of powers. The Court also noted that in a given
case, the situation/circumstances may be such that later
circumstances may stem from the former circumstances.
Accordingly, the Court held that in such a situation, two
circumstances would have to be joined by the conjunctive
word ‘and’, not the disjunctive word, ‘or. In the matter
before the Supreme Court, the Government’s use of the
term, ‘or’ to connect the circumstances was construed as
indicative of a failure to exercise due diligence or a lack
of application of mind.
25] It appears to us that taking note of the
aforesaid judgment, the State Government has made only
one modification in the order of conferment, viz., the
word ‘or’ is now replaced by ‘and’. Such modification,
without describing either prevailing circumstances or the
circumstances, which are likely to prevail, will not be
sufficient to contend that the order of conferment is
passed by considering all relevant aspects. In fact, the
order indicates that the prevailing circumstances and the
circumstances, that are likely to prevail, are identical in
914-WP-223-2025
19
all the Districts. Such an order of conferment is contrary
to the spirit of Section 3(2) of the Act of 1981 and has
potential of arbitrary use to detain any person under the
garb of preventive detention. The order of conferment is
thus unsustainable.
26] Taking clue from the judgment of the
Supreme Court in Abhay Shridhar Ambulkar’s case
(supra), the Co-ordinate Bench of this Court in the case of
Lawrence Kaitan Koli Vs. S.V. Bhave, Commissioner of
Police and another [1991 SCC OnLine Bom 104], while
dealing with Section 3 of the Act of 1981, held as under :
“ 11. Since the Supreme Court has
interpreted section 3 of the National
Security Act and found from the scheme the
correct interpretation which is succinctly
laid down in the said ruling and in view of
the fact that section 3 of the M.P.D.A. Act,
1981, is pari materia similar to section 3 of
the National Security Act, 1980, we have no
hesitation to hold that at the time of
conferment of power upon a District
Magistrate or a Commissioner of Police, the
Government must be satisfied on one or the
other of the alternate circumstances,
namely, the circumstances prevailing at the
time of the order of the circumstances
which, according to the Government, are
likely to prevail in future. The use of the
disjunctive word 'or' clearly indicates a
wavering mind on the part of the State
Government which would vitiate the order
of conferment.
12. In the present case, the Order No. DDS.
1390/1/SPL. 3(B) dated 9th July 1990
issued by the Home Department (Special
and published in the Maharashtra
Government Gazette, Part IV-B, dated 19th
914-WP-223-2025
20
July 1990, is therefore, vitiated for non-
application of mind.
13. It, therefore, follows that since there
was no valid conferment of power on the
1st respondent, then the order of detention
issued on 12th July 1990, Annexure 'A' to
the petition, in pursuance of the order of
conferment dated 9th July 1990, is void ab
initio.
14. The contention of the learned Public
Prosecutor that the State Government had
approved the said order under sub-section
(3) of section 3 of the M.P.D.A. Act does not
hold any water. If the order itself is void ab
initio, no amount of approval by the
Government will make it valid. The power
of approval as provided under sub-section
(3) of section 3 of the M.P.D.A. Act is in the
nature of superintendence or revisional
power of the State Government in order to
have a check on the authorities to whom a
drastic and wide power of the State
Government has been delegated. However,
mere approval by the State Government
would not validate an order which is void
ab initio. ”
27] Thus, the Co-ordinate Bench held that non-
application of mind, while making order of conferment,
would vitiate such order. Secondly, the order of detention,
made under sub-section (2) in pursuance of such order of
conferment, will be void ab initio. The Co-ordinate Bench
has then declined to accept the argument of the State
Government that since it has approved the order of
detention in terms of sub-section (3), the order of
detention may not be set aside. The Co-ordinate Bench
held that if the order itself is void ab initio, no amount of
914-WP-223-2025
21
approval by the Government will make it valid. Similar is
the case here.
28] As such, the petitions should be allowed on
this count itself, however, we have noticed similar
mechanical approach resorted to by the State
Government, while granting approval under sub-section
(3), as also, while confirming order of detention under
Section 12. Accordingly, we proceed to examine the said
issue.
29] Sub-section (3) of Section 3 provides that
the order passed under sub-section (2) thereof, shall
remain in force for not more than twelve days, unless, in
the meantime, it has been approved by the State
Government.
30] As noted above, power to make an order of
detention primarily rests with the State Government. By
way of sub-section (2), power of the State Government is
conferred upon District Magistrate or Commissioner of
Police to deal with the emergent situation that may arise
to detain a person with a view to prevent him from acting
in any manner prejudicial to the maintenance of public
order. Such an exercise of powers of the State
Government, by its officers, is, therefore, subject to
approval by the State Government, that too, within twelve
days of making order by the officers.
31] The approval order is thus as important as
the detention order, and it must correctly show the facts
and reasons considered under the law. Before approving a
detention order, the Government must carefully check the
914-WP-223-2025
22
grounds for detention prepared by its officer and record
its own satisfaction. This satisfaction is a subjective
decision of the Government, and it does not need to be
explained in great detail. However, this does not mean
that the Government can approve the order casually
without any reasoning. Some form of reasoning must be
shown either in the approval order itself or must exist in
official records.
32] In the cases before us, the order of approval
is such that bare reading of order reflects non application
of mind. One such order reads as under :
“Date :- 30.10.2024.
ORDER
No. MPDA – 1024/CR – 713/Spl –
3B :- In exercise of the powers conferred by
sub-section (3) of Section 3 of the
Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers, Drug
Offenders, Dangerous Persons, Video
Pirates, Sand Smugglers and Persons
Engaged in Black Marketing of Essential
Commodities Act, 1981 (Mah. No. LV of
1981) the Government of Maharashtra
hereby approves the order of District
Magistrate, Yavatmal, D.O.No.Home/
Pol/Dest-12/ws/2322/2024, Office of
rd
District Magistrate, Yavatmal, dated 23
October, 2024 made in respect of Akshay
Bhaskar Sahare, R/o Javai Nagar, Talav Fail,
Yavatmal to be detained under the said Act.
By order and in the name of the Governor
of Maharashtra,
Section Officer to the Government of Maharashtra, Home
Department (Special).”
914-WP-223-2025
23
33] As could be seen, the State Government has
assigned no reason why the order passed by the District
Magistrate, Yavatmal, has been approved. The
requirement under sub-section (3) is that the officer
mentioned in sub-section (2) is duty bound to report the
order of preventive detention to the State Government,
together with the grounds on which the order has been
made and such other particulars, which have bearing on
the matter. These details are furnished to the State
Government to facilitate it to examine the correctness of
the order passed under sub-section (2) so that approval
could be granted. The order of approval must, therefore,
reflect consideration to such material. Further, the
approval order should be passed by the officer, who
represents State Government, naturally a responsible
officer of the rank above the District Magistrate, who has
passed detention order. Here, the order of approval, as
also, the order of conferment, is passed by Section Officer.
We are saying so because the respondents have not placed
before us any other order of approval or material showing
that the order has been passed by someone else other
than the Section Officer, who is, as such, below the rank
of District Magistrate.
34] The learned A.P.P. argued that the approval
order was passed by the Additional Chief Secretary, not
by a Section Officer. However, no proof has been provided
to support this claim. The alleged order of the Additional
Chief Secretary has been not produced nor was it served
914-WP-223-2025
24
to the petitioners. It is unclear why this approval order
was not communicated to the petitioners, as this prevents
them from knowing whether proper procedure was
followed before their detention, especially since there was
no trial. The approval order dated 30/10/2024 was thus
passed without proper consideration and is indefensible.
This is another reason why the petitions should be
allowed.
35] Next comes, the order of confirmation,
which the State Government is required to pass under
Section 12, which reads as under :
“12. (1) In any case where the Advisory
Board has reported that there is, in its
opinion, sufficient cause for the detention of
a person, the State Government may
confirm the detention order and continue
the detention of the person concerned for
such period, not exceeding the maximum
period prescribed by section 13, as it thinks
fit.
(2) In any case where the Advisory Board
has reported that there is, in its opinion, no
sufficient cause for the detention of the
person concerned, the State Government
shall revoke the detention order and cause
the person to be released forthwith.”
36] On reading the provisions, what transpires
is that under sub-section (1), the State Government has
discretion to either confirm or revoke the detention order.
If the detention order is to be confirmed, the State
Government will have to determine the period for which
the detention should be continued, which will not exceed
the period prescribed by Section 13 (which is twelve
914-WP-223-2025
25
months from the date of detention). As regards sub-
section (2), the State Government has no option but to
revoke the detention order, if, in the opinion of Advisory
Board, there is no sufficient cause for detention of person
concerned.
37] Thus, under sub-section (1), despite there
being opinion of the Advisory Board that there is
sufficient cause for detention of a person, the State
Government has discretion to either confirm the detention
order or to revoke the same, whereas, if the opinion of
the Advisory Board is otherwise, the State Government
has no option but to revoke the detention order. Thus, the
provision under Section 12 recognizes the importance of
liberty of a person, as guaranteed under Article 21 of the
Constitution of India. Accordingly, a discretion is given to
the State Government to revoke the order of detention,
even if the Advisory Board’s opinion is in favour of
detention.
38] It is thus clear that the discretion to confirm
a detention order must be used carefully and with proper
reasoning. The confirmation order should clearly state
why continuing the detention is necessary, based on the
situation at the time the order is passed. The State
Government must consider both the circumstances that
existed when the detention order was first made under
Section 3, and those that exist at the time of confirmation
under Section 12. If the main purpose of detention has
already been achieved, the Government should release
the person. But if detention is to continue, the
914-WP-223-2025
26
Government must explain why it is still necessary,
showing its satisfaction based on the circumstances
expected to continue. The Government must also estimate
how long those circumstances will prevail and
accordingly, the period of continued detention prescribed.
39] Unfortunately, the orders of confirmation
are passed as mechanically as orders of conferment of
powers as also orders of approval of detention under
Sections 3(2) and 3(3) of the Act of 1981.
40] As such, Mr. D.V. Chauhan, learned Senior
Counsel/Government Pleader, argued that where the
Advisory Board has opined that there is sufficient cause
for detention of a person, the State Government, if is
inclined to accept the opinion, need not assign additional
reasons to confirm the order. We are, however, not
impressed with the argument for two reasons; firstly, the
discretion is given to the State Government with a view to
assess the situation at the time of passing confirmation
order as to whether the circumstances are such that
would require continuation of detention. If the
circumstances are not such as were prevailing at the time
of passing detention order, then the State Government
may revoke the detention order, despite there being
opinion in favour of detention. Another reason is that the
situation/circumstances may be such that continuation of
detention may be required for a period shorter than 12
months. It is for this reason that there is provision under
Sub Section (1) where, while confirming the order of
detention, the State Government has to determine the
914-WP-223-2025
27
period for which detention of a person should be
continued. Needless to say that determination of period
will require application of mind, which should be
reflected in the order. Unfortunately, the order of
confirmation is passed in routine manner that too by way
of remark on a note sheet maintained by the department.
One such note/order is placed before us. The note/order
reads as follows :
“After considering all the facts of the case,
police report and opinion of the Advisory
Board dated 2/5/2025, the detention order
is confirmed and the detention of detenu be
continued for a period of twelve months
from the date of detention.”
41] As observed, the order of confirmation does
not specify any reasons justifying the decision nor does it
provide reasons to continue detention for full twelve
months. Such remarks or orders have been issued
uniformly across all petitions. We shall revisit this order
shortly; however, prior to that, it is pertinent to examine
the procedural framework adopted by the Government.
42] One such note sheet is placed before us. The
Desk has prepared a note referring to the opinion of
Advisory Board. The note indicates that one Mrunal
Mayur Gajbhiye (petitioner in Writ Petition No.
435/2025) has been detained in terms of order dated
29/8/2025 (correct date is 29/8/2024). The order of
approval was made on 9/9/2024, i.e., within twelve days
of making order of detention. The petitioner was detained
on 1/4/2025, i.e., after about seven months. The report
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28
of Advisory Board dated 2/5/2025 was received by the
State Government on 2/5/2025. The note then records
that the Advisory Board has given its opinion that there is
sufficient cause for detention of detenu. The note,
however, does not mention that the papers relating to the
detention order, approval order and the Advisory Board’s
report, are being placed for perusal.
43] The note further indicates that the file was
to reach the confirming authority through Desk Officer
Mr. Padole, thereafter Under Secretary Ms Swapna
Deshpande and then Deputy Secretary Shri Rajendra
Bhalwane. The note, however, has been placed before the
Section Officer, and thereafter, directly before the
Additional Chief Secretary, the confirming authority. The
Section Officer has made following remarks.
“After considering all the facts of the case,
police report and opinion of the Advisory
Board dated 2/5/2025, the detention order
is confirmed and the detention of detenu be
continued for a period of twelve months
from the date of detention.”
44] As seen, the order of confirmation has been
passed by the Section Officer and, if not, he has at least
proposed the order that the Additional Chief Secretary
may pass. In turn, the Additional Chief Secretary, in the
form of making remark, has reiterated what has been
proposed by the Section Officer. The remark does not
indicate independent application of mind by the
Additional Chief Secretary. On the top of it, this
remark/order is never conveyed to the detenu. In fact,
914-WP-223-2025
29
upon query made by us to the learned A.P.P. Mr. Doifode,
he appeared clueless whether to term the aforesaid
remark as an order under Section 12 or a remark on the
note-sheet.
45] Further, this remark/order is made on
13/5/2025, which is after a lapse of more than eight
months of passing detention order. The Additional Chief
Secretary has not mentioned as to why in the case, where
order of detention was passed on 29/8/2024, the
detention should be continued for twelve months from
13/5/2025. There is nothing in the order to indicate that
the circumstances prevailing on 29/8/2025 were still
prevailing or likely to prevail for another twelve months.
The officer has not considered the facts of the case, which
disclose that detention order was passed on 29/8/2024
but the petitioner was arrested on 1/4/2025, i.e., after
seven months. The officer ought to have enquired as to
why did it require seven months to detain the petitioner
and what steps were taken in the meantime, and most
importantly, whether the circumstances then prevailing
were the same on the date of passing confirmation order.
The note, which we have referred to, is now marked
Article ‘X’ for identification, and is kept with the record in
Writ Petition No. 223/2025.)
46] Thus, in the matter of curtailing personal
liberty of a person, the State Government applied the
process of a routine administrative matters, where the
method of arriving at a decision is based on formulation
of note by a junior officer, which moves upward to the
914-WP-223-2025
30
authorized officer through several officers. We wonder
how, in the matter of personal liberty, the State
Government can act in such an arbitrary manner. Such a
course is unacceptable.
47] The confirming authority, in matters of
preventive detention, should apply his mind
independently to the material placed before him, while
taking decision under Section 12. Needless to say that the
officer can always take assistance of the concerned
officials, if so required.
48] On the point of importance of period for
continuation of detention, the Supreme Court, in the case
of Ameena Begum Vs. State of Telangana And Others
[(2023) 9 SCC 587], noted that seldom, it was found that
order of detention continued for less than maximum
period permissible under the relevant law. The Court then
referred to couple of judgments, and having observed
uncanny consistency of authorities continuing detention
orders under preventive detention laws for maximum
permissible span of twelve months from the date of
detention as a routine procedure, without slightest
application of mind, expressed its view to dissuade
continuation of detention order till the maximum
permissible duration, unless some indication is provided
therefor by the Government concerned in the
confirmation order. The Court observed that the term
‘maximum period’ in Section 13 vests the Government
with discretion, allowing it to be exercised, while
considering whether the detention is to be continued for
914-WP-223-2025
31
the maximum period of twelve months or any lesser
period. The Court then highlighted the importance of
assigning reason for continuation of detention for a
certain period. The following are the relevant findings.
“73. Discretion, it has been held by this
Court in Bangalore Medical Trust v. B.S.
Muddappa [(1991) 4 SCC 54], is an
effective tool in administration providing an
option to the authority concerned to adopt
one or the other alternative. When a statute
provides guidance, or rule or regulation is
framed, for exercise of discretion, then the
action should be in accordance with it.
Where, however, statutes are silent and only
power is conferred to act in one or the other
manner, the authority cannot act
whimsically or arbitrarily; it should be
guided by reasonableness and fairness. A
legislature does not intend abuse of the law
or its unfair use.
74. …
75. True it is, Deepak v. State of
Maharashtra [(2023) 14 SCC 707] was not
a case arising our ot preventive detention
laws. However, in situations where
discretion is available with authorities to
decide the period of detention, as
articulated by Lord Halsbury in Susannah
Sharp vs. Wakefield, 1891 AC 173 at p. 179
(HL), this discretion should be exercised in
accordance with “the rules of reason and
justice, not according to private opinion;
according to law, and not humour; it is to
be, not arbitrary, vague, and fanciful, but
legal and regular”.
76. ….
77. Having held thus, we are not unmindful
of the decision in Vijay Kumar v. Union of
India [(1988) 2 SCC 57] where this Court
914-WP-223-2025
32
rejected the contention that the
Government had not applied its mind while
confirming the detention of the appellant
for the maximum period of 1 (one) year
from the date of detention as prescribed in
Section 10 of the Conservation of Foreign
Exchange and Prevention of Smuggling
Activities Act, 1974. Dealing with the
contention that some reason should have
been given why the maximum period of
detention was imposed and while holding it
to be without merit, the main judgment of
the Presiding Judge of the Bench reasoned
that Section 10 does not provide that any
reason has to be given in imposing the
maximum period of detention and that in
confirming the order of detention it may be
reasonably presumed that the Government
has applied its mind to all relevant facts;
thus, if the maximum period of detention
has been imposed, it cannot be said that the
Government did not apply its mind to the
period of detention. It was also held that in
any event Section 11 enables revocation
and/or modification of the order by the
Government at any time and in the
circumstances, the appellant was in the
least prejudiced. The concurring judgment
also took the same view that the authority is
not required to give any special reason
either for fixing a shorter period or for
fixing the maximum period prescribed
under Section 10.
78. Much water has flown under the bridge
since then. It is no longer the law that an
administrative authority is under an
obligation to give a reasoned decision only
if the statute under which it is acting
requires it to assign reasons. On the
contrary, it is only in cases where the
requirement has been dispensed with
expressly or by necessary implication that
an administrative authority is relieved of
the obligation to record reasons. Further,
914-WP-223-2025
33
the presumption of official acts having been
validly performed cannot be pressed into
service for upholding the period for which
the detention would continue if the order of
detention itself suffers from an illegality
rendering it unsustainable. That apart, the
reasoning of no prejudice being suffered by
the detenu because a power of revocation/
modification is available to the Government
would not be of any consolation if such
power were not exercised at all. In such a
case, the prejudice would be writ large. The
decision in Vijay Kumar is, therefore,
distinguishable.
79. Viewed reasonably, the period of
detention ought to necessarily vary
depending upon the facts and
circumstances of each case and cannot be
uniform in all cases. The objective sought to
be fulfilled in each case, whether is
subserved by continuing detention for the
maximum period, ought to bear some
reflection in the order of detention; or else,
the Government could be accused of
unreasonableness and unfairness. Detention
being a restriction on the invaluable right to
personal liberty of an individual and if the
same were to be continued for the
maximum period, it would be eminently
just and desirable that such restriction on
personal liberty, in the least, reflects an
approach that meets the test of Article 14.
We, however, refrain from pronouncing here
that an order of detention, otherwise held
legal and valid, could be invalidated only
on the ground of absence of any indication
therein as to why the detention has been
continued for the maximum period. That
situation does not arise here and is left for a
decision in an appropriate case.
80 to 82 ....
83. However, according to Mr. Dave, the
decision in Pesala Nookaraju [(2023) 14
914-WP-223-2025
34
SCC 641] answered the issue under
consideration. Reference was made to a
sentence in para 47 where this Court held
that:
“47. ... The Act does not contemplate a
review of the detention order once the
Advisory Board has opined that there
is sufficient cause for detention of the
person concerned and on that basis, a
confirmatory order is passed by the
State Government to detain a person
for the maximum period of twelve
months from the date of detention.”
84 and 85 ….
86. On the merits of the matter, we find the
Court in Pesala Nookaraju to have found the
impugned order of detention to be perfectly
valid. This is borne out by paras 68 and 64,
which we quote hereunder:
“68. .... if the detention is on the ground
that the detenu is indulging in manufacture
or transport or sale of liquor then that by
itself would not become an activity
prejudicial to the maintenance of public
order because the same can be effectively
dealt with under the provisions of the
Prohibition Act but if the liquor sold by the
detenu is dangerous to public health then
under the 1986 Act, it becomes an activity
prejudicial to the maintenance of public
order, therefore, it becomes necessary for
the detaining authority to be satisfied on
the material available to it that the liquor
dealt with by the detenu is liquor which is
dangerous to public health to attract the
provisions of the 1986 Act and if the
detaining authority is satisfied that such
material exists either in the form of report
of the chemical examiner or otherwise, copy
of such material should also be given to the
detenu to afford him an opportunity to
make an effective representation.
914-WP-223-2025
35
74. In the case on hand, the detaining
authority has specifically stated in the
grounds of detention that selling liquor by
the appellant detenu and the consumption
by the people of that locality was harmful to
their health. Such statement is an
expression of his subjective satisfaction that
the activities of the detenu appellant is
prejudicial to the maintenance of public
order. Not only that, the detaining authority
has also recorded his satisfaction that it is
necessary to prevent the detenu appellant
from indulging further in such activities and
this satisfaction has been drawn on the
basis of the credible material on record.”
87. ....
88. Having read the decision in Pesala
Nookaraju, it seems to us that the Court
may not have considered it necessary to
deal with the contention having formed a
firm opinion on the materials on record that
the appellant was indulging in activities of
selling liquor to consumers which is harmful
for health and, thus, prejudicial to
maintenance of public order. It is on such
basis that satisfaction of the detaining
authority for ordering detention
commended acceptance of the Court.
89. On the contrary, we have come to the
conclusion on facts that the activities
attributed to the appellant’s husband as
such cannot be branded as prejudicial to
maintenance of public order. The decision
in Pesala Nookaraju, therefore, is
distinguishable and does not assist Mr.
Dave. We have, thus, no hesitation to reject
the contentions of Mr. Dave. ”
(Emphasis now)
914-WP-223-2025
36
49] Thus, the Court took note of the decision in
Vijay Kumar’s case, wherein the Supreme Court took a
view that the confirming authority is not required to give
any special reason for fixing time of detention, to render a
finding that with passage of time, the importance of
speaking order in administrative decision is well
recognized. The Supreme Court held that it is no longer a
law that an administrative authority is under an
obligation to give a reasoned decision only if the statute
under which it is acting requires it to assign reason. On
the contrary, it is held that only in cases, where the
requirement has been dispensed with expressly or by
necessary implications that an administrative authority is
relieved of obligation to record reasons. The Court then
held that by applying the test of reasonability, the period
of detention ought to necessarily vary, depending upon
the facts and circumstances of each case, and cannot be
uniform in all cases. The Court further observed that
detention, being a restriction upon the fundamental and
inviolable right to personal liberty guaranteed under the
Constitution, must, when extended to its maximum
permissible duration, be justified by a rationale that
aligns with the principles of equality before the law and
non-arbitrariness as mandated by Article 14. It was
emphasized that such restrictions should, at a minimum,
reflect an approach that satisfies the requirements of
substantive equality and non-discrimination. However,
the Court refrained from holding that an order of
detention, which is otherwise deemed legal and valid,
914-WP-223-2025
37
could be invalidated solely on the ground of the absence
of explicit reasoning within the detention order
explaining why the detention has been extended to the
maximum permissible period. This is because the factual
circumstances necessary for such a determination did not
present themselves in the case before it, and therefore,
the question was left open for consideration in an
appropriate case where such issues may arise.
50] We are of the considered view that it is
incumbent upon this Court to determine the
consequences arising from the issuance of orders found to
be unsustainable under Sections 3(2) and 12 of the Act of
1981. In light of the foregoing discussion, the
consequence of such unsustainable orders would be that
the order of detention cannot be upheld and,
consequently, the second course of action prescribed
under Section 12(1) shall automatically be invoked,
namely, the revocation of the detention order. The
rationale behind this is clear; once the order of
confirmation is rendered illegal or invalid, the continued
detention of the individual ceases to have any legal
justification. Therefore, the detenu must be released
forthwith, unless required in any other case.
51] At the cost of repetition, we mention here
that the circumstances prescribed under sub-sections (2)
and (3) of Section 3 are most crucial. The State
Government, on the basis of circumstances prevailing or
likely to prevail, should confer upon its officers, the
powers of the State Government for a particular period.
914-WP-223-2025
38
Usually, with passage of time, the circumstances would
change and, therefore, while confirming the order of
detention, the confirming authority will have to ascertain
the situation on the date of confirming the order of
detention, and accordingly, take a decision whether to
continue detention, and if yes, for how long. In a given
case, the State Government may find that the
circumstances are likely to prevail for few or more months
and accordingly, the order continuing detention should be
justified, however, in the present case, the State
Government has applied uniform criteria, in all the
districts, to continue the order of detention for twelve
months, which itself is sufficient reason to hold that the
order of confirmation is passed mechanically i.e. without
application of mind. The order of confirmation, therefore,
is unsustainable in law.
52] The aforesaid finding can be also
substantiated in terms of the Supreme Court judgment in
case of Sunil Batra vs Delhi Administration and ors.
[(1978) 4 SCC 494] wherein it was held that
administrative authorities must provide reasons for
decisions affecting fundamental rights, reinforcing the
need for transparency and accountability.
53] The situation could be viewed from another
angle as well. As stated, the remark/order made by the
Additional Chief Secretary is never served upon the
detenu, instead, the order, as passed/proposed by the
Section Officer, is conveyed to the detenu. One such
order is reproduced hereunder :
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39
“Date:- 17.12.2024
ORDER
No. MPDA - 1024/CR - 712/Spl -
3B:- Whereas the District Magistrate,
Yavatmal in exercise of powers conferred by
Section 3 of the Maharashtra Prevention of
Dangerous Activities of Slumlords,
Bootleggers, Drug Offenders, Dangerous
Persons, Video Pirates, Sand Smugglers and
Persons engaged in Black-marketing of
Essential Commodities Act, 1981
(hereinafter referred to as the ‘said Act’),
rd
issued an order on 23 October, 2024
directing Akshay Bhaskar Sahare, R/o. Javai
Nagar, Talav Fail, Yavatmal, be detained
under the said Act;
And whereas, the Advisory Board
appointed under the said Act, has opined
that there is sufficient cause for the
continued detention of the said detenu;
And whereas, the Government of
Maharashtra after considering the
opinion/report of the Advisory Board, has
decided that it is necessary to confirm the
detention of the said detenu;
Now, therefore, in exercise of powers
conferred by sub-section (1) of Section 12
of the said Act, the Government of
Maharashtra hereby confirms the detention
order issued by the District Magistrate,
Yavatmal and directs that the detention of
Akshay Bhaskar Sahare, be continued for a
period of Twelve months from the date of
detention.
By order and in the name of the
Governor of Maharashtra,
Section Officer to the Government of Maharashtra, Home
Department (Special).”
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40
54] Thus, the heading of the document is
‘ORDER’. The Section Officer has referred to the detention
order passed under Section 3, thereafter, the opinion of
Advisory Board, and lastly, the decision of the State
Government to confirm the detention. After doing so, it is
the Section Officer, who has passed the order under
Section 12(1) by which he has not only confirmed the
order of detention, but continued the same for a period of
twelve months.
55] As such, the argument of Mr. D.V. Chauhan,
learned Senior Counsel/Government Pleader and the
learned A.P.P.s is that the Section Officer has, by way of
aforesaid communication, conveyed the decision taken by
the State Government. However, and from the perspective
of detenu, what is conveyed to him is an order passed by
the Section Officer. It is nobody’s case that the
remark/decision taken by the State Government, and the
reasons thereof has been conveyed to the detenu. He is,
therefore, unaware of the grounds on which confirmation
order was passed, as also, the reasons why his detention
is continued for a period of twelve months.
56] We may note here that since none of the
petitioners was made aware of the decision taken by the
State Government, they have all challenged the order/
communication made by the Section Officer. Further the
detenu is not made aware of the grounds on which the
State Government has taken a decision to confirm the
order of detention, as also, the grounds on which his
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41
detention is continued for twelve months. The petitioners,
therefore, have been deprived of their valuable right to
know the reasons for curtailing their personal right, that
too, without trial. Such a communication is hit by Article
21 read with Article 14 of the Constitution of India and is
thus unsustainable in law.
57] Learned Government Pleader/Senior
Counsel invited our attention to judgment of the
Constitution Bench in the case of Hardhan Saha .Vs. State
of West Bengal; [1975 (3) SCC 198], to contend that the
principles of natural justice have been followed in the
instant case while passing various orders because
procedure led down under the provisions of the Act of
1981 have been followed.
58] The Constitution Bench in context with the
challenge to the validity of the Act of 1971, the provisions
of which are pari materia the provisions of the Act of
1981. observed that an opportunity of making a
representation cannot be equated with an opportunity of
oral hearing or hearing before the Court and the
procedure of judicial trial. The Court further held that
duty to consider the representation made by detenu does
not mean a personal hearing or the disclosure of the
reasons and that the procedural reasonableness, which
the petitioners therein invoked while challenging the vires
of the Act 1981 cannot have any abstract standard or
general pattern of reasonableness. The Court also held
that elaborate rules of natural justice are excluded either
expressly or by necessary implication where the
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42
procedural provisions are made in the statute or where
the disclosure of relevant information to an interested
party would be contrary to the public interest.
59] The reliance on the above judgment is
misplaced. The observations made by the Supreme Court
were in context with the challenge to the validity of the
Act of 1971. The grounds of challenge, amongst others,
were reasonableness and adherence to the rights
guaranteed under Articles 14, 19, 21 and 22 (5) of the
Constitution of India. The Constitution Bench, while
declining to grant relief, made aforesaid observations
wherein the Court noted that opportunity of making
representation in context with the provisions of the Act
were reasonable and that elaborate rules of natural justice
are excluded where the procedural provisions are made in
this regard. Thus, criteria of reasonableness and
adherence to the provisions of the Constitution were
considered in the light of the challenge to vires of the Act
of 1981.
60] In the present case, we are dealing with the
encroachment of rights of an individual in the
background of their alleged activities having potential to
disturb public order. We have noted procedural lapses at
each level resulting into deprivation of fundamental rights
of each petitioner. In fact, the question is not whether
reasonable opportunity of hearing was given to the
detenu. The issue pertains to strict compliance of the
provisions of the Act of 1981, which according to us, has
been mechanically complied.
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43
61] Another facet of the process is the role of
Advisory Board, which is equally important. The Supreme
Court in the case of Nenavath Bujji etc. Vs. State of
Telangana and Others [2024 SCC OnLine SC 367] has, at
length, dealt with the role of the Advisory Board. The
Court, taking aid of Article 22(4), observed that the
Advisory Board (s), under preventive detention
legislation, are not a superficial creation but one of the
primary constitutional safeguards available to the detenu
against the order of detention. They are tasked with
independently reviewing detention orders to ensure that
such orders are not passed in a routine or mechanical
manner. The Supreme Court observed that the Advisory
Board must play an active role in ascertaining the legality
of the detention and can opine that the order is
unsustainable, if it is against the law or Courts'
precedents. The Court expected Board's scrutiny to be
robust, ensuring that detention orders are justified by law
and not merely based on the detaining authorities’
subjective satisfaction.
62] Accordingly, we have gone through the
Board’s opinion. It consists of two parts. The first part
refers to the order of detention, grounds of detention,
recent activities of detenu, in-camera statements of two
witnesses and a fact that the detenu and the concerned
police officer were heard and that the Board has carefully
perused the material placed before it to render a one line
finding that there are sufficient grounds for further
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44
detention of the detenu. Part two consists of opinion,
which reads as under :
“The Advisory Board is of the opinion that
there is sufficient cause for continuing
detention of the above named detenu under
Section 3 of the Act of 1981.”
63] In all cases before us, the opinion is formed
in the manner as stated above. The Board’s role,
however, is to independently review detention order to
ensure that such orders are not passed in a routine or
mechanical manner. In the instant case, the orders under
Section (3) viz. order of conferment of powers and order
of detention, are passed in routine and mechanical
manner. There is, thus, scope for the Board to play a
pro-active role in terms of Article 22(4) of the
Constitution of India. Nonetheless, considering the stature
of the Members of the Board, we have no doubt that
henceforth, the order of detention will be reviewed in
terms of Nenavath Bujji’s case.
64] We are, however, more concerned about the
role played by the officers of the State Government.
Considering the scheme of the Act of 1981, we are of the
view that at each level, the officer/authority concerned is
under an obligation to consider material for the purpose
of passing orders at each level. At the first instance, the
State Government, while conferring powers upon the
officers mentioned in sub-section (2) of Section 3 will
have to specify that in a particular area, the circumstances
prevailing are such or are likely to prevail, where there is
possibility of a person/s acting in any manner prejudicial
914-WP-223-2025
45
to the maintenance of public order, and the contingency
may arise, where the officers mentioned in sub-section
(2) will be required to be equipped with the powers,
which otherwise are exercised by the State Government.
The District Magistrate or the Commissioner of Police will
have to then consider the material to form an opinion
whether the circumstances are prevailing or whether they
are likely to prevail, where a person/s is likely to act in a
manner prejudicial to the maintenance of public order,
and if so, whether there is any other alternative but to
detain him.
65] Thus, the order of conferment of powers
must describe the circumstances, which are likely to
prevail in a particular area for exercising powers of the
State Government by the officers mentioned in sub-
section (2). It is so because the provisions under the Code
of Criminal Procedure, 1973 (for short “the
Code”)/Bharatiya Nagarik Suraksha Sanhita, 2023 (for
short “B.N.S.S.”), are otherwise sufficient to take
appropriate measures to prevent the crime.
66] Section 149 of the Code (Section 168 of the
B.N.S.S.) provides that every police officer is empowered
to interpose and make his best efforts in preventing a
cognizable offence. Section 150 of the Code (Section 169
of the B.N.S.S.) provides that every police officer, on
receiving information of a potential design to commit any
cognizable office, shall communicate such information to
the officer to whom he is subordinate to, and to any other
such officer, who has the authority to deal with the
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46
prevention of crime of such cognizable offence. Section
151(1) (Section 170(1) of the B.N.S.S.) provides that a
police officer by knowing or receiving a design that has a
potential to commit any cognizable offence, may arrest
such person so designing, without warrant or orders from
a Magistrate, provided it appears to the police officer that
commission of offence cannot be prevented by any other
way. Section 152 of the Code (Section 171 of the
B.N.S.S.) deals with prevention of injury to public
property, public landmarks or other marks used for
navigation.
67] Thus, there are sufficient measures in the
Code to prevent the crime. The order of conferring
powers must, therefore, describe the circumstances
prevailing or likely to prevail, which otherwise cannot be
dealt with in terms of the provisions of the Code/B.N.S.S.
The scheme of the Act of 1981 is to prevent a person from
disturbing public order, which is altogether different from
activities which can be prevented by invoking the
provisions of the Code/B.N.S.S. The anticipated act must
be relatable to the circumstances prevailing in a particular
area or are likely to prevail in future.
68] The Act of 1981 was brought into force on
the premise that circumstances existing in the state of
Maharashtra would require provisions of law for
prevention of communal, antisocial and other dangerous
activities and for matters connected therewith. Section
2(a) defines the expression, “acting in any manner
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47
prejudicial to the maintenance of public order”, which
reads as under:
“2. In this Act, unless the context
otherwise requires,
(a) “acting in any manner prejudicial to
the maintenance of public order” means
(i) propagating, promoting, or
attempting to create, or otherwise
functioning in such a manner as to
create, feelings of enmity or hatred or
disharmony on grounds of religion, race,
caste, community or language of any
persons or class of persons;
(ii) making preparations for using, or
attempting to use, or using, or
instigating, inciting or otherwise
abetting the use of any lethal weapons
(including firearms and explosives,
inflammable or corrosive substances),
where such preparations, using,
attempting, instigating, inciting or
abetting, disturbs, or is likely to disturb,
public order;
(iii) attempting to commit, or
committing, or instigating, inciting or
otherwise abetting the commission of,
mischief within the meaning of section
425 of the Indian Penal Code (XLV of
1860) in respect of public property or
means of public transportation, where
the commission of such mischief
disturbs, or is likely to disturb, public
order;
(iv) committing offences punishable with
death or imprisonment for life or
imprisonment for a term extending to
seven years or more, where the
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48
commission of such offences disturbs, or
is likely to disturb, public order.”
69] Thus the Act targets individuals like
slumlords, bootleggers, drug offenders, video pirates and
other dangerous persons. The petitioners herein are
treated as dangerous persons, meaning thereby that they
pose a general risk of harm, danger, or alarm to the public
at large. Thus, they will fall in the category as defined
under Section 2(a), (iv) of the Act of 1981.
70] In the aforesaid background, as also various
pronouncements mentioned earlier, we will now examine
the detention order. The detaining authority has
considered three crimes registered against the petitioners-
detenu, viz. crime no. 257/2024 under Sections 454, 457
and 380 of the Indian Penal Code, 1860 (for short
“I.P.C.”), crime no. 258/2024 under Sections 457 and 380
of the I.P.C., and crime no. 572/2024 under Sections 454
and 380 of the I.P.C. All these offences were registered
against unknown persons. The Investigating Officer has
taken into confidence the petitioner, who confessed that
he has committed offence. The detaining authority, based
only on such a theory of confessional statement of
accused, which otherwise is an inadmissible evidence, has
held that he is a person constantly indulging in criminal
acts.
71] The detaining authority has then referred to
in-camera statements of two witnesses. The first witness
has seen the petitioner removing battery of truck. The
witness enquired as to why is he removing the battery,
914-WP-223-2025
49
upon which the petitioner threatened him by saying that
if he tells it to the truck owner, he (petitioner) will kill
him (witness). Because of such threat, the witness is said
to be not ready to disclose his name and/or to report the
matter to police. The second witness has seen the
petitioner stealing old gram kept on the cart of a
merchandise. The witness told him to not take chana
sticks, upon which the petitioner took out a knife and
swung it at the witness and threatened to kill his family. It
is for this reason the witness got scared and did not report
the matter to police nor is he willing to disclose his name.
72] Based on the above set of facts, the
detaining authority has recorded its satisfaction that the
aforesaid criminal activities are disturbing the
maintenance of public order on a large scale. The
petitioner is then branded as a dangerous person by
saying that such activities have created a sense of fear in
the minds of people in Yavatmal city. The detaining
authority has then held that such criminal attitude and
actions show that the petitioner is likely to commit such
act of disturbing the public order in future as well.
Accordingly, the order of detention under Section 3(2) is
passed.
73] The argument of the petitioner is that the
activities referred to by the detaining authority even if
accepted to have undertaken by the petitioner, the same
will not fall in the category of disturbing public order as
defined under Section 2(a) of the Act of 1981. According
to the petitioner’s Counsel, these activities are individual
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50
based and has no effect on the community or the public at
large and thus can be dealt with under the provisions of
ordinary law.
74] We find substance in the argument, but
before we comment further, we deem it appropriate to
refer to the judgment of the Supreme Court in the case
Ram Manohar Lohia Vs. The State of Bihar and another
[AIR 1966 SC 740], wherein the Supreme Court, while
explaining the terms ‘public order’ and ‘law and order’,
observed thus :
“54. We have here a case of detention under
R. 30 of the Defence of India Rules which
permits apprehension and detention of a
person likely to act in a manner prejudicial
to the maintenance of public order. It
follows that if such a person is not detained
public disorder is the apprehended result.
Disorder is doubt prevented by the
maintenance of law and order also but
disorder is a broad spectrum which includes
at one end small disturbances and at the
other the most serious and cataclysmic
happenings. Does the expression "public
order" take in every kind of disorders or
only some of them? The answer to this
serves to distinguish “public order" from
"law and order” because the latter
undoubtedly takes in all of them. 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
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51
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 if 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. A District
Magistrate is entitled to take action under
R.30(1)(b) to prevent subversion of public
order but not in aid of maintenance of law
and order under ordinary circumstances.
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. By using the
expression "maintenance of law and order”
the District Magistrate was widening his
own field of action and was adding a clause
to the Defence of India Rules.”
75] 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. In other words, the
activities must not be minor breaches of peace of a purely
local significance, which primarily injure specific
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52
individual and only in a secondary sense public interest.
Thus, the underlined principle is that the activity of a
person should be such that will affect the public order.
The three circles referred to by the Supreme Court would
explain that the activities disturbing law and order may
not necessarily disturb the public order. Thus, when we
speak of disturbance of public order, we speak of a
behaviour that disturbs peace, safety and security of
general public, creating a widespread sense of insecurity.
76] Further, in the case of Khudiram Das Vs.
The State of West Bengal And Others [(1975) 2 SCC 81],
the Supreme Court, while examining history-sheet of the
detenu, clarified that generalization could not be made
that the detenu was in the habit of committing those
offences. The Court further held that merely because the
detenu was charged with multiple offences, it could not
be said that he was in the habit of committing such
offences and that habituality of committing offences
cannot, in isolation, be taken as basis of any detention
order. The Court held that cases in which such habituality
has disturbed public order, could only qualify as a ground
to order detention.
77] Thus, merely on the basis of multiple
offences, the activities of detenu cannot be termed as the
act amounting to disturbing public order unless such
habituality has disturbed any public order. In the present
case, the history of offences considered by the detaining
authority is based on confession of petitioner – accused
that he has committed theft. Such an inadmissible
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53
evidence cannot be taken aid of to infer that he is
constantly engaged in criminal acts. The in-camera
statement also refers to offence of theft, where a
particular witness got scared of petitioner’s acts. There is
thus nothing to show that such acts of petitioners caused
widespread sense of insecurity. The detaining authority
in each case, has after referring to in-camera statements
of the witnesses, which speak of crime against an
individual, labelled such acts to be amounting to
disturbing public order. The detaining authority has not
justified in its order as to how these acts of detenu can
create or has created a widespread sense of insecurity in a
particular area. The acts attributed to the petitioners-
detenus, therefore, do not constitute conduct capable of
disturbing public order. The detention order will thus not
stand scrutiny of law.
78] Here, we may again refer to Nenavath
Bujji’s case, where the Supreme Court held that in such
cases, instead of proceeding to pass an order of detention,
the authority should have approached the Court
concerned for cancellation of bail on the ground that the
detenu had continued to indulge in nefarious activities
and many more FIRs have been registered against him.
The Supreme Court observed that whenever any accused
is released on bail by any criminal Court in connection
with any offence, whether it is specifically said so in the
order of bail, while imposing conditions or not, it is
implied that bail is granted on the condition that the
accused shall not indulge in any such offence or illegal
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54
activity in future. Thus, appropriate remedy, in such
cases, is to approach Court for cancellation of bail.
79] In the present case also, similar such course
could have been adopted by the State Government. No
reason is, however, forthcoming as to why such measure
was not adopted.
80] The argument of the respondents is that
since the witnesses have not come forward to lodge report
against the petitioner out of fear, seeking cancellation of
bail was quite challenging.
81] We do not find substance in the argument,
inasmuch as, if the witnesses were not willing to come
forward to disclose their identity, the police officials, who
acquired knowledge through such witnesses, may also
lodge report under Section 154 of the Code (Section 173
of the B.N.S.S.). Once the information about cognizable
offence is received by police, it is obligatory to record the
information without any delay. It is not always necessary
that one, who has witnessed the crime, must lodge the
F.I.R. Further, the Investigating Officer, in such cases, may
take recourse to the provisions of the Maharashtra
Witness Protection And Security Act, 2017 (for short “Act
of 2017”), to conceal the identity of witness or to provide
necessary security to him, and accordingly, encourage him
to support the case of prosecution. By adopting such a
course, the apprehension of witness is taken care of
because his identity will be concealed in terms of the Act
of 2017.
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55
82] Section 6 of the Act of 2017, provides for
protection of witnesses. Section 7 deals with procedure
for providing such protection. Section 8 provides for
protection during investigation and Section 9 for such
protection during trial. Section 11 provides for non
disclosure of names of witnesses during investigation.
Section 12 provides for measures that may be taken by
the Court, which includes recording evidence of protected
witnesses via video link or by any other mode. It further
provides that mentioning the names and addresses of
witnesses should be avoided, in orders and judgments or
any other record of a case, accessible to the public.
83] Thus, adequate provisions are made to
protect the witnesses, who have potential threat. The
concealment of identity of the witnesses in terms of
Sections 11 and 12 of the Act of 2017 appears to us to be
the adequate solution, where the witness is not willing to
come forward to give evidence in public. As such, the
provisions of this Act are applicable for the offence
punishable for more than seven years, Section 2(a) (iv) of
the Act of 1981 also refers to offences punishable for
more than seven years with a rider that commission of
such offences has disturbed or is likely to disturb public
order. In any event and as a special case, the
Investigating Officer may approach the jurisdictional
Magistrate for orders to protect the witness by concealing
his name or otherwise.
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56
84] Further, the detaining authority has referred
to two instances recorded through in-camera witnesses;
one refers to theft of truck battery and other of chana
stick. The petitioner has given threat to both the witnesses
and, therefore, can well ascertain as to who these
witnesses must be. Thus, the plea of concealing identity is
devoid of merit. Also, the police has assigned no reason
why was further enquiry not made to ensure compliance
under Section 154 of the Code. In the first case, the police
could have approached the truck owner, whose battery
was stolen, firstly to verify the statement of the witness,
and secondly, to encourage the truck owner to lodge F.I.R.
against the petitioner. Once F.I.R. is registered, whether
by police or otherwise, the Investigating Officer may then
approach the Court concerned, for cancellation of bail.
Such a course shows transparency in handling the cases
and ensures detention of persons, for more than twelve
months, if offence is proved.
85] Put all together, before us is an order of
conferment of powers of the State Government to its
officers under Section 3 (2) of the Act of 1981 depicting a
picture that in the entire State of Maharashtra, the
circumstances that are prevailing and likely to prevail are
identical. Thus the State Government has projected a
sorry state of law and order situation in entire State. Such
set of circumstances is not envisaged under Section 3 (2)
of the Act of 1981. What is provided is a circumstance
prevailing or likely to prevail in any area within the local
jurisdiction of the District Magistrate or Commissioner of
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57
Police. Thus, the circumstances of a particular area within
a district should be considered to confer powers of the
State Government upon its officers. The State
Government is therefore required to describe the
circumstance prevailing in a particular area of a district,
having potential of persons acting in a manner prejudicial
to public order. A specific feature of the prevailing
circumstance must be, therefore, prescribed in the order
conferring powers. As against, a situation is projected
where identical circumstances are prevailing or likely to
prevail across the entire State. Such an order, which does
not satisfy the statutory requirements, would vitiate the
order. Consequently, detention orders passed under Sub
Section (2) in pursuance of such an order would be void
ab initio. Even otherwise, the order of detention in each
case does not take into consideration the aspect of public
disorder as defined under Section 2(c) of the Act of 1981.
The acts referred to in each detention order is of a minor
breach of peace of a local significance, having no impact
on community at large. As regards order of approval, it is
often passed routinely and mechanically by a Section
Officer. Similar issues arise with orders under Section 12,
which are also passed by Section Officers, an approach
not permissible in law. The order does not specify
whether the prevailing circumstances at both stages were
the same or expected to remain so. The detention has
been extended for 12 months in all cases without regard
to the circumstances at the time of confirmation vis-a-vis
the circumstances at the time of detention. The
confirming authority’s order is not communicated to the
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58
detenu. Such decisions are taken as routine
administrative acts, recorded in note-sheets, without
indicating application of mind.
86] The orders of conferment of powers,
detention, appeal and confirmation of detention,
therefore, do not withstand legal scrutiny and are liable
to be quashed and set aside.
87] The petitions are accordingly allowed. The
orders of detention as also the orders of confirmation in
respective petitions stand quashed and set aside.
88] The petitioners shall be released forthwith,
if not required in any other case.
89] All the petitions are accordingly disposed of.
Rule accordingly.
(JUDGE) (JUDGE)
Sumit