Shamshuddin Mohammad Shaikh vs The State Of Maharashtra And Ors

CNR No : HCBM010212962026

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2319 OF 2026
Shamshuddin Mohammad Shaikh .... Petitioner
versus
The State of Maharashtra & Ors. .... Respondents
…....
•
Ms. Aisha Ansari, Advocate for Petitioner.
•
Ms. M. M. Deshmukh, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL &
RANJITSINHA RAJA BHONSALE, JJ.
rd th
DATE : 23 & 26 OCTOBER, 2026
JUDGMENT : (PER : SARANG V. KOTWAL, J.)
1. The Petitioner has challenged the detention order dated
22/01/2026 passed by the Detaining Authority and Principal
Secretary (Special), Home Department, Government of
Maharashtra. The learned counsel for the Petitioner submitted
that a prayer has also been made for the release of the Petitioner.
2. Heard Ms. Aisha Ansari, learned Counsel for the
Petitioner and Ms. M. M. Deshmukh, learned APP for the State.
MANUSHREE
NESARIKAR
3. At the outset, the learned counsel for the Petitioner
Digitally signed by
MANUSHREE
NESARIKAR
Date: 2026.10.29
11:16:26 +0530
very specifically stated before us that she is only challenging the
Nesarikar
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continued detention of the Petitioner and she is not praying for
setting aside of the detention order.
4. The Petitioner was served with the grounds of detention.
The grounds of detention refer to the past four offences registered
against him. However, paragraph No.8 specifically refers to C.R.
No.69 of 2025 registered with the Anti-Narcotics Cell, Kandivali
Unit, Mumbai, under Section 8(c) r/w Section 22(b) of the NDPS
Act. The offence was registered on 01/09/2025.
5. In that case, on 01/09/2025, at about 2:00 p.m., the
officer of the Anti-Narcotics Cell received secret information that
the Petitioner, who was a drug peddler, was to arrive at a
particular spot in Kandivali (East). The officers arranged for two
independent Pancha witnesses and apprehended the Petitioner
at about 6:20 p.m. The Petitioner was found with 19 grams of a
white crystalline suspicious substance. The chemical analysis
report showed that it was ‘Mephedrone’ (M.D), which was a
banned substance under the NDPS Act. The investigation was
carried out, and the charge-sheet was filed on 17/10/2025. The
Petitioner had filed a Bail Application before the Special Judge
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under the NDPS Act at the Sessions Court, Mumbai, on
30/09/2025, but his application was rejected on 12/11/2025.
On 08/01/2026, he again filed another bail application before
the same Court. The said application was pending till the
present detention order was passed on 22/01/2026. The
Detaining Authority expressed his opinion that there was a
likelihood of the Petitioner being granted bail sooner or later.
Based on his subjective satisfaction, the detention order was
passed.
6. The learned counsel for the Petitioner submitted that
he had made representations before the State Government as
well as the Central Government. His representation dated
16/02/2026 was not processed by the Central Government for
an inordinately long time, causing serious prejudice to this
valuable right under Article 22 of the Constitution of India. The
learned counsel specifically relied on ground vii(a) of the
Petition, which reads as follows:
“vii(a) That on 16/02/2026 the Petitioner has supplied
12 copies of representation to Respondent No. 4.
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Annexure 'E'
Hereto annexed and marked is the copy
of the acknowledgement of Respondent No. 4. The said
representations are addressed to the authorities
mentioned therein. The Respondent No. 4 is duty bound
to
•
Forward the same to the concerned authorities on
urgent basis.
•
Communicate to the Petitioner about the reply if
any received from the four authorities immediately.
That the Respondent No. 1, 2 & 3 on receipt of the
representation are dutybound to
•
Call for para wise comment from the Sponsoring
Authority.
•
Consider the representation on an expeditious basis
after the receipt of the para wise comment and
formulate their reply.
•
Forward the reply to the Petitioner through
Respondent No. 4 on an expeditious basis.
The Petitioner states that any delay whilst forwarding
the representation, consideration by every authority or
communicating the reply will vitiate the continuation of
the Detention Order.
The Petitioner states that he has not received any reply
from the Respondent No. 1, 2 & 3 in writing. Hence the
detention order is required to be quashed on this count
alone.”
7. The learned counsel submitted that, though she had
taken various other grounds in this Petition, she was not
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pressing those grounds and was relying only on ground vii(a) to
challenge the Petitioner's continued detention.
8. The learned APP submitted that the representation
made to the State Government was considered expeditiously.
The Detaining Authority received the Petitioner's representation
on 14/05/2026, and it was rejected on 21/05/2026.
9. However, the main prejudice was caused to the
Petitioner because the Central Government had not considered
the Petitioner's representation at the earliest. In response to this
specific ground raised by the Petitioner, the Union of India,
through the Under Secretary, PITNDPS Division of the
Department of Revenue, Ministry of Finance, Government of
India, filed an affidavit-in-reply. Paragraphs 12, 13 and 14
mention the relevant dates regarding consideration of the said
representation.
10. It is stated in the affidavit-in-reply of the Central
Government that the detention order was passed on
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22/01/2026. The report forwarded by the State Government
under Section 3(2) of the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988 (hereinafter
referred to as "the said Act") was received by the Central
Government on 16/02/2026. The representation dated
16/02/2026, submitted by the Petitioner from the Central
Prison, Amravati, was received in the PITNDPS Division on
17/03/2026. On that day itself, the representation was
forwarded to the State Government for obtaining para-wise
comments. Those comments were received from the State
Government on 02/06/2026.
11. The other record consisting of the Advisory Board's
report, the Confirmation Order and the other relevant record,
were also received and placed before the competent authority
for consideration. Upon receipt of the complete record, the
representation was placed before the Secretary, Department of
Revenue, Government of India, who independently examined
the representation, the comments of the State Government and
all the material available on record. The representation was
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rejected, and the rejection memorandum was issued on
03/07/2026.
12. These dates show that there are various stages where
the delay in considering the representation has remained
unexplained. The representation was submitted on 16/02/2026.
It was received in the PITNDPS Division of the Central
Government on 17/03/2026. No explanation has been offered
as to why it took about one month for the representation to
reach the Central Government.
13. Thereafter, para-wise comments were sought from the
State Government. They were received on 02/06/2026,
approximately three months from 17/03/2026. This period is
also unexplained. There is no explanation as to why the para-
wise comments were not sent and received expeditiously.
14. After that, a further period of one month was taken for
consideration of the representation, and it was finally rejected
on 03/07/2026. This period is also not satisfactorily explained.
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15. The Petitioner has a valuable right to make an earliest
and effective representation against his detention. This right is
provided under Article 22 of the Constitution of India.
16. The relevant provisions of the PITNDPS Act are also
important. Section 3(2) of the said Act requires the State
Government to forward a report to the Central Government
within 10 days of the passing of the order, if the order is made
by the State Government or by an officer empowered by the
State Government.
Section 12 is important, and it reads as follows:
"12. Revocation of detention orders.—
(1) Without prejudice to the provisions of section 21 of
the General Clauses Act, 1897 (10 of 1897), a
detention order may, at any time, be revoked or
modified—
(a) notwithstanding that the order has been made by
an officer of a State Government, by that State
Government or by the Central Government;
(b) notwithstanding that the order has been made by
an officer of the Central Government or by a
State Government, by the Central Government.
(2) The revocation of a detention order shall not bar the
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making of another detention order under section 3
against the same person.”
17. Section 12(1)(a) empowers the Central Government to
revoke a detention order, notwithstanding the fact that the order
is passed by an officer of the State Government or by the State
Government itself. The grounds of detention in paragraph No.14
specifically referred to this particular responsibility of the
Government and the right of the Petitioner, as follows:
“14. I further inform you that you also have a right to
make representation to the Central Government
against the order of detention and If you wish to
make such a representation you should address it to
the Secretary Ministry of Finance, Department of
th
Revenue "B" Wing, 6 Floor, Janpath Bhavan,
Janpath Marg, New Delhi-110001 through the
Superintendent of Jail, where you are detained."
18. Thus, the Petitioner had a valuable right to make an
effective representation at the earliest, which the Central
Government was duty-bound to consider and decide
expeditiously. In the present case, as discussed above, there has
been an inordinate delay at every stage in processing the
representation sent by the Petitioner. On this ground, the
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continued detention of the Petitioner cannot be permitted. He
has to be released forthwith, if not required in any other case.
19. Hence, the following order :
O R D E R
(i) The continued detention of the Petitioner
pursuant to the detention order passed by the
Respondent No.1 is declared as illegal.
(ii) The Petitioner be released forthwith, if not
required in any other case.
(iii) The Petition is disposed of.
(RANJITSINHA RAJA BHONSALE, J.) (SARANG V. KOTWAL, J.)
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