Shubham Balasaheb Kardule vs The State Of Maharashtra And Others

2026:BHC-AUG:21010-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 135 OF 2026
Shubham Balasaheb Kardule,
Age : 25 years, Occ.: Labour,
R/o. At Post Shiral,
Tq. Ashti, Dist. Beed-414208. …Petitioner
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Home Department,
Mantralaya, Mumbai-32.
2. The District Magistrate Beed,
Dist. Beed.
3. The District Superintendent of Police
Beed, Dist. Beed.
4. Jail Superintendent
Central Prison Harsul,
Chhatrapati Sambhajinagar. ...Respondents
…
Mr. Z. H. Farooqui, Advocate for the Petitioner.
Mr. G. A. Kulkarni, A.P.P. for Respondent Nos. 1 to 4.
…
CORAM : SANDIPKUMAR C. MORE AND
ABASAHEB D. SHINDE, JJ.
Reserved on : 07.04.2026
Pronounced on : 07.05.2026
JUDGMENT (PER : ABASAHEB D. SHINDE, J.) :
1. Rule. Rule made returnable forthwith. Heard finally at the
admission stage with consent of counsel for the parties.

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2. By this Writ Petition filed under Article 226 of the Constitution
of India read with Section 528 of the Bharatiya Nagarik Suraksha
Sanhita, 2023, the petitioner seeks to challenge the detention order
and committal order dated 24.11.2025 bearing No.2025/RB-Desk-
1/Pol-1/MPDA-23, passed by Respondent No.2-District Magistrate,
Beed in exercise of powers under Section 3 (2) 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 approval
order dated 02.12.2025 and confirmation order dated 01.01.2026
passed by Respondent No.1-State Government in exercise of powers
under Sections 3(3) and 12(1) of the MPDA Act, respectively. By the
impugned detention order, the petitioner has been directed to be
detained on the ground that the petitioner is a “sand smuggler”
within the meaning of Section 2 (e-2) of the MPDA Act, as according
to the detaining authority the activities of the petitioner are
prejudicial to the maintenance of public order.
3. It seems that the Police Inspector, Police Station Ashti, Beed
submitted a proposal seeking detention of the petitioner. The said

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proposal appears to have been routed through the Sub-Divisional
Police Officer, Sub-Division Ashti and Superintendent of Police, Beed
and eventually placed before Respondent No.2-District Magistrate,
Beed who in turn found that the petitioner’s detention is necessary
to prevent him from acting in any manner prejudicial to public
order. It is pertinent to note that, the basis for submission of the said
proposal is registration of two (2) past criminal cases against the
petitioner, which are summarised as follows :

However the impugned detention order is based on a
solitary Crime bearing No.520/2025, dated 13.11.2025 registered
with Ashti Police Station. In addition to this crime, two in-camera
statements of witnesses ‘A’ and ‘B’ are also considered while passing
the impugned order of detention.
4. Though learned counsel for the petitioner has assailed
the impugned order of detention on several grounds, however, the

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main thrust of his argument is that, the petitioner cannot be termed
as ‘sand smuggler’, as the detaining authority while arriving at a
conclusion that the petitioner is engaged in activities of sand
smuggling has relied on the aforesaid solitary offence bearing Crime
No.520/2025, registered with Ashti Police Station, he however,
submits that bare perusal of the contents of the FIR would reveal
that neither there are allegations that the petitioner in any manner
is found excavating, storing or transporting the sand nor he has
been shown as an owner of any of the vehicle alleged to have been
involved in the sand excavation. He would submit that the only role
ascribed to the petitioner is of taking away the Tractor Head of
Swaraj Company from the custody of the Police Authorities which is
allegedly involved in the sand excavation. In support of his
submission he relied on the judgment of this court in the case of
Tukaram Birappa Pujari V. Commissioner of Police and Ors. reported
in (2024) 3 AIR Bom. R. (Cri.) 864.
5. So far as the in-camera statements of witnesses ‘A’ and ‘B’
are concerned, learned counsel for the petitioner submits that both
these statements are more or less cyclostyled as well as vague, as it
can be seen that, the allegations made in the said statements are
general in nature. He further submits that these in-camera

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statements are neither verified properly nor the material regarding
such verification was served on the petitioner which amounts to
depriving the petitioner of making an effective representation as
guaranteed under Article 22 (5) of the Constitution of India. He
placed reliance on the judgment of this Court in the case of Shaikh
Husain @Shahrukh Shaikh Fatru V. State of Maharashtra & Anr.
[Criminal Writ Petition No. 873 of 2022 at Nagpur Bench].
6. He would further submit that, even taking the
allegations of the said FIR as it is, the same would not amount to an
act prejudicial to the public order but at the most it could be said to
be an act of affecting the law and order. To buttress his submissions
he relied on the judgment of the Hon’ble Apex Court in the case of
Rashidmiya @Chhava Ahmedmiya Shaik V. Police Commissioner,
Ahmedabad and Anr. reported in (1989) 3 SCC 321, as well as the
judgment of this Court in the case of Dattatray Baswant Jagtap V.
Commissioner of Police, Solapur and Others reported in 2019 SCC
Online Bom 4275.
7. Per contra, the learned APP supports the impugned
order of detention of the petitioner as well as the order of
confirmation. According to the learned APP, the respondent No.2 –

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District Magistrate was subjectively satisfied that considering the
illegal activities of the petitioner about involvement in sand
excavation, if not prevented, the petitioner is likely to indulge in
further dangerous activities which would be prejudicial to
maintenance of public order in the future. He further submits that
while passing the impugned order of detention, Respondent No.2-
District Magistrate has scrupulously followed the mandatory
provisions prescribed under MPDA Act. He would further submit
that, the offence registered against the petitioner coupled with the
in-camera statements of witnesses ‘A’ and ‘B’ demonstrate that the
petitioner used to excavate and transport the sand illegally. He thus
submits that Respondent No.2-District Magistrate was justified in
passing the impugned detention order of petitioner, so also the
order of confirmation passed by the State Government, is legal and
proper.
8. Heard learned counsel for the petitioner, learned APP for
the State, and perused the entire record. At the out set, it would be
apt to reproduce Section 2 (e-2) of the MPDA Act which defines the
term “sand smuggler” , as under,
2(e-2) “sand smuggler” means a person who individually or as
at part of a group of persons is engaged in or is preparing to

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engage in or associated with or abets unauthorized extraction,
removal, collection, replacement, picking up or disposal of
sand and its transportation, storing and selling or who
commits or attempts to commit or abets the commission of
offences in respect of sand which are punishable under the
Mines and Minerals (Development and Regulation) Act, 1957
or under the Maharashtra Minor Mineral Extraction
(Development and Regulation) Rules, 2013;”
9. In short unless the ingredients of definition of ‘sand
smuggler’ are satisfied, the same would not justify the order of
preventive detention of a person. This Court in the case of Tukaram
Birappa Pujari (supra) while dealing with the similar issue, observed
in paragraph No.3 which reads thus :
“ 3. 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 (MPDA Act), is
an act to provide for preventive detention of various categories
of persons, one of the category being of “Sand Smugglers”, for
preventing their dangerous activities prejudicial to the
maintenance of public order.
Each of the category is specifically assigned a distinct
meaning in the Act, by providing a definition and as far as
Sand Smuggler is concerned, Section 2(e-2) of the MPDA Act,
define the term as below:
2(e-2) “sand smuggler” means a person who individually
or as at part of a group of persons is engaged in or is
preparing to engage in or associated with or abets
unauthorized extraction, removal, collection, replacement,
picking up or disposal of sand and its transportation, storing
and selling or who commits or attempts to commit or abets

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the commission of offences in respect of sand which are
punishable under the Mines and Minerals (Development and
Regulation) Act, 1957 or under the Maharashtra Minor
Mineral Extraction (Development and Regulation) Rules,
2013;”
An activity of a Sand Smuggler, according to the MPDA
Act would be prejudicial to the maintenance of public order, as
defined in Section 2(a), in case sand smuggler, is engaged, or
is making preparations for engaging, in any of his activities as
a sand smuggler which affect adversely, or is likely to affect
adversely, the maintenance of public order.
The necessary ingredient for a person to be classified as
a sand smuggler is his engagement in or preparations to be
engaged in or his association or his act of abetting
unauthorized extraction, removal, collection, replacement,
picking up or disposal of sand and its transportation, storing
or selling, or to commit or abet to commit, or abet the
commission of offences in respect of sand which are
punishable under the Mines and Minerals (Development and
Regulation) Act, 1957 or under the Maharashtra Minor
Mineral Extraction (Development and Regulation) Rules,
2013.”
10. In the instant case, bare perusal of the allegations of FIR
bearing Crime No.520/2025 depicts that there are no allegations
against the petitioner either of excavating, storing and transporting
the sand or that the vehicle which were seized while excavating the
sand are either owned or possessed by the petition-er. The only role
attributed to the petitioner is of taking away the Tractor Head of
swaraj company from the custody of the Police Authorities while the
same along with other vehicles was being taken to the police station

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after those were seized by the Police Authorities. Applying the ratio
laid down by this Court in the case of Tukaram Birappa Pujari
(supra), we find that the Detaining Authority, before arriving at a
conclusion that the petitioner is a sand smuggler ought to have
ascertained as to whether the necessary ingredient about his
engagement in or preparations to be engaged in or his association or
his act of abetment of unauthorized extraction, removal, collection,
replacement, picking up or disposal of sand and its transportation,
storing or selling or to commit or abet to commit, or abet to
commission of offences in respect of sand which are punishable
under the Mines and Minerals (Development and Regulation) Act,
1957 or under the Maharashtra Minor Mineral Extraction
(Development and Regulation)Rules, 2013 are satisfied. In the light
of above we are of the considered view that, in absence of these
ingredients classifying the petitioner as a sand smuggler lacks the
subjective satisfaction and thus vitiates the impugned detention
order.
11. So far as the reliance placed on the two in-camera
statements of witnesses ‘A’ and ‘B’ are concerned, we find that bare
perusal of these statements would show that those have been
recorded within a span of few days so also are vague since those

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lacks the particulars of date, time and place of the alleged incidents.
As regards verification of the said in-camera statements, the record
shows that there is no proper verification of these statements nor
the detaining authority appears to have applied its mind to its
credibility. This Court in the case of Shaikh Husain @ Shahrukh
Shaikh Fatru (supra), while considering the necessity of proper
verification of the in-camera statements observed in paragraph Nos.
18 and 19 of the said judgment which reads thus :
“(18) First of all, it is observed that the grounds of
detention nowhere discloses that the detaining authority
interacted with the witnesses A and B so as to satisfy itself that
the statements of these witnesses and genuine to be true and
or instances which they disclosed were correct. There is no
interaction by the detaining authority with the Assistant
Superintendent of Police, who verified such statements. The
copies of statements of witnesses A and B attached to the
petition and provided to the detenue, nowhere show any
endorsement of the detaining authority so as to confirm that
such statements were perused by the detaining authority and
said authority considered that the witnesses were depicting
true events. There is absolutely no whisper in the grounds of
detention as to on what count the detaining authority found
itself satisfied about the truthfulness or genuineness of such
statements made by the witnesses.
(19) This Court in the case of Shahjahan w/o Kalimkhan
Samshadkhan Pathan Vs. State of Maharashtra & Anr. 2016
ALL MR (cri)4233 (supra), observed in para 5 that, in the
absence of any record of the statements being seen by the
Commissioner of the Police thereby affecting his subjective
satisfaction, the petitioner is entitled to succeed in the

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petition. These observations are clearly attracted to the matter
in hand. There is no contemporaneous material placed before
us to show that the detaining authority had in fact verified the
statements and had any interaction with the Assistant
Superintendent of Police, who recorded his report. Similarly,
by reproducing the contents of statements of witness A and B
in the grounds of detention without the material to show that
the detaining authority had in fact interacted either with the
witnesses or discussed it with the authority, who verified such
statements, the order of detention stands vitiated.”
12. It is settled position of law that, though the preventive
detention of a person is permitted as an exceptional measure which
curtail the fundamental right of life and liberty without the
safeguard of a Court trial, however, while doing so the procedure
established by law and safeguards enshrined under Article 22 of the
Constitution of India needs to be followed scrupulously. Therefore,
such vague statements that too without any proper verification
cannot be made the basis of preventive detention.
13. It is trite law that, the preventive detention is not mean
to punish for past act but to prevent future conduct that threatens
public order. Thus, mere pendency of a solitary criminal case
without a live link to eminent disturbances of public order certainly
does not justify preventive detention. The distinction between the
law and order and public order has been explained by the Hon’ble

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Apex Court in the case of Ram Manohar Lohia v. State of Bihar
reported in 1965 SCC OnLine SC 9, wherein the Hon’ble Apex Court
observed thus :
“54. We have here a case of detention under Rule 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 no 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 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 Rule 30(1)(b) to prevent subversion of public
order but not in aid of maintenance of law and order under
ordinary circumstances.

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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.”
14. We thus 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. The solitary
incident dated 13.11.2025 cannot be said to have any live link. We
are, therefore, of the considered view that every activity disturbing
law and order may not necessarily disturb the public order.
15. In that view of the matter, the impugned detention order
is unsustainable in law so also find that the confirmation order
passed by the State Government also does not sustain. Hence, we
pass the following order:-

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:: ORDER ::
i. The Criminal Writ Petition stands allowed.
ii. The impugned order of detention bearing No.2025/RB-
Desk-1/Pol-1/MPDA-23 dated 24.11.2025 passed by
Respondent No.2 - District Magistrate, Beed as well as
approval order dated 02.12.2025 and confirmation order
bearing No.MPDA-1125/CR.667/Spl-3b dated 01.01.2026
passed by Respondent No. 1 State Government are
hereby quashed and set aside.
iii. The Petitioner – Shubham Balasaheb Kardule shall be
released forthwith, if not required in any other
offence/offences.
iv. Rule is made absolute in the above terms.
(ABASAHEB D. SHINDE, J.) (SANDIPKUMAR C. MORE , J.)
habeeb/