Oral Judgment:

Urmila Joshi Phalke, J.

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally by the consent of learned Counsel appearing for the respective parties.

3. By this Petition, the Petitioner is seeking quashing and setting aside the order of detention dated 08.11.2025 bearing No. 463/2025 passed by the Respondent No.2 Authority against the Petitioner.

4. As per the contention of the Petitioner that, Crime No. 527/2023 was registered against him on 12.12.2023 under Sections 379 and 109 of the Indian Penal Code (for short “IPC”). On 10.01.2024, an interim bond of Rs. 50,000/- for good behaviour for one year obtained from the Petitioner in Case No. 04/2024 under Section 110(e)(g) of the Code of Criminal Procedure, 1973 (for short “CrPC”) before the Executive Magistrate, Nagpur Rural. On 26.02.2024, charge-sheet No. 30/2024 filed in Crime No. 527/2023. On 12.06.2024, Crime No. 390/2024 registered at Police Station Bhiwapur under Sections 379, 109 of IPC read with Sections 48(7), 48(8) of the Maharashtra Land revenue Code read with Sections 4, 21 of the Mines and Minerals Act read with Section 3 of the Prevention of Damage to Public Property Act. In Crime No. 390/2024 also the charge-sheet was filed on 13.08.2024, wherein also the Petitioner was granted bail. The another Crime No. 340/2025 is also registered against the Petitioner under Sections 303(2), 318(4) of the Bharatiya Nyaya Sanhita, 2023 (for short “BNS”) read with Sections 134, 177 of the Motor Vehicles Act, wherein also the Petitioner was released on bail by JMFC, Bhiwapur on execution of personal bond.

5. It is the contention of the Petitioner that, the District Magistrate Nagpur by exercising powers under Section 3(2) of the MPDA Act, 1981 passed the impugned order of detention against the Petitioner and thereafter the said order was affixed on the door of the present Petitioner.

6. The present Petitioner has challenged the said order of detention on the ground that the order of detention nowhere discloses the prevailing circumstances which shows that the provisions which are applied against the present Petitioner are inadequate and, therefore, the action of detention is required against him. The Petitioner has been recognised as a sand smuggler under the MPDA Act only on the basis of total 3 offences registered against him at the Police Station and two confidential in camera statements. It is contended that, the impugned detention order lacks the reasoning for said action and, therefore, it is erroneous and unsustainable. As the said order nowhere reflects that, the present Petitioner in any way caused threat to public order and, therefore, the said order deserves to be quashed and set aside.

7. Heard Mr. Barve, learned Counsel for the Petitioner, who reiterated the said contentions and invited our attention towards the detention order as well as the observation. He submitted that, para 12 of the order shows that, the Authority has considered the records, bail application, confidential statements and verification reports and only mentioned that he is satisfied that the Petitioner is a sand smuggler. On the contrary, the statement of witnesses nowhere disclose any threat to the witnesses and, therefore, there is nothing on record to show that the present Petitioner is a threat to the society.

8. He invited our attention towards the relevant provision of the MPDA Act, 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.”

9. Thus, sub-section (1) or Section 3 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.

10. Thus, he submitted that, all the circumstances are absent in the detention order and, therefore, the detention order deserves to be quashed and set aside.

11. In support of his contention he placed reliance on the decision of this Court in the case of Haridas Shankar Gaikwad Vs. Commissioner of Police & Ors., 2025 SCC OnLine Bom 4349 and Joyi Kitty Joseph Vs. Union of India & Ors., (2025) 4 SCC 476.

12. Per contra, learned APP supported the order passed by the Respondent No.2. He submitted that, in view of 3 crimes registered against the present Petitioner, his involvement was revealed in sand smuggling. Thereafter the confidential statements of the witnesses were recorded which disclose that there was a threat to society members at the hands of the present Petitioner and, therefore, the action taken by the Respondent No.2 against the present Petitioner is reasonable one and, therefore, the Petition being devoid of merits liable to be dismissed. He further invited our attention towards the fact that, after passing of the order, the present Petitioner is absconding and, therefore, proclamation is issued against him.

13. Heard both the sides. Perused the detention order, which is reproduced as under:

                  

14. Before entering into the merits of the case, the contention raised by the Petitioner that the requirement before passing an order of detention under Section 3 of the MPDA Act, 1981 requires to be fulfilled. In view of the provisions of Section 3(1) which 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.

15. 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.

16. 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 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 extension from time to time, but not exceeding three months at one time.

17. 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 a 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).

18. Similarly, 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.

19. Thus, Section 3 indicates that the prime responsibility of passing order of preventive detention lies with the State Government.

20. In the light of the above legal provisions the order passed by the District Magistrate requires to be examined. On perusal of the said order, admittedly no prevailing circumstances are mentioned in the said order showing that the provisions which are applied against the present Petitioner are inadequate to curb his activities. On perusal of the record it reveals that, Crime No. 527/2023 registered under Sections 379, 109 of IPC against the Petitioner, the second Crime No. 390/2024 registered against the present Petitioner under Sections 379, 109 of IPC read with Sections 48(7), 48(8) of the Maharashtra Land revenue Code read with Sections 4, 21 of the Mines and Minerals Act read with Section 3 of the Prevention of Damage to Public Property Act and third offence was registered vide Crime No. 340/2025 at Police Station Bhiwapur against the Petitioner under Sections 303(2), 318(4) of BNS read with Sections 134, 177 of the Motor Vehicles Act.

21. It is well settled law that, the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.

22. The learned Counsel for the Petitioner has rightly relied upon the decision of this Court in Haridas Shankar Gaikwad (supra), wherein by considering the entire law developed on this issue this Court observed that, “the criminal prosecution launched and the preventive detention ordered are on the very same allegations of organised smuggling activities, through a network set up, revealed on successive raids carried on at various locations, on specific information received, leading to recovery of huge cache of contraband. When bail was granted by the jurisdictional Court, that too on conditions, the detaining authority ought to have examined whether they were sufficient to curb the evil of further indulgence in identical activities; which is the very basis of the preventive detention ordered.”

23. It is further observed by this Court that, “the Detaining Authority has not considered the efficacy of the conditions imposed by the jurisdictional Court while enlarging the petitioner on bail and enter any satisfaction, however subjective it is, as to the conditions not being sufficient to restrain the detenu from indulging in such activities. In the light of law laid down by the Hon’ble Apex Court, it is to be borne in mind that when a person is enlarged on bail by Competent Criminal Court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court”.

24. The Hon’ble Apex Court in the case of Joyi Kitty Joseph (supra) relied upon by the learned Counsel for the Petitioner also addresses this issue and it is held by referring the catena of decisions that, “the formation of the opinion about detention rests with the Government or the officer authorised. Their satisfaction is all that the law speaks of and the courts are not constituted an Appellate Authority. Thus the sufficiency of the grounds cannot be agitated before the court. However, the detention of a person without a trial, merely on the subjective satisfaction of an authority however high, is a serious matter. It must require the closest scrutiny of the material on which the decision is formed, leaving no room for errors or at least avoidable errors. The very reason that the courts do not consider the reasonableness of the opinion formed or the sufficiency of the material on which it is based, indicates the need for the greatest circumspection on the part of those who wield this power over others”.

25. It is further held by the Hon’ble Apex Court that, “preventive detention laws an exceptional measure reserved for tackling emergent situations ought not to have been invoked in this case as a tool for enforcement of “law and order”, especially when the existing legal framework to maintain law and order is sufficient to address the offences under consideration”.

26. This Court in bunch of Petitions with leading Criminal Writ Petition No. 223/2025, Akshay Bhaskar Sahare Vs. State of Maharashtra & Anr., decided on 30.09.2025, considered this aspect in detail and also addressed the nature of the orders which are passed by the Authorities by observing in para No. 16 that, “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.”, and by reproducing the orders passed therein this Court refers the judgment of the Hon’ble Apex Court and also observes that, “the Hon’ble 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”.

27. This Court further observed that, “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”.

28. In the light of the observation by the Hon’ble Apex Court as well as by this Court there has to be an application of mind while making an order of detention made under sub-section (2) of Section 3.

29. As observed earlier, 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.

30. If the impugned order passed by the Respondent No. 2 is examined in the light of the above settled legal position then definitely it nowhere shows that there was any disturbance to public order due to the activities of the present Petitioner and the provisions which are applied against the present Petitioner were inadequate to curb his activities and, therefore, the law and order situation arose and, therefore, the detention was required. Thus, merely on the basis of multiple offences, the activities of the detenu cannot be termed as the act amounting to disturb the public order unless habitually has disturbed any public order. In the present case, three offences are considered by the Detaining Authority. The in camera statements of witnesses also not sufficient to speak regarding the crimes against the present Petitioner and also falls short to determine that the activities of the present Petitioner are prejudicial to the members of the society. In view of that, the order passed by the Respondent No.2 deserves to be quashed and set aside.

31. In view of above discussion, the Petition deserves to be allowed. Accordingly, we proceed to pass the following order.

                   ORDER

                   i. Criminal Writ Petition is allowed.

                   ii. The impugned order of detention dated 08.11.2025 bearing No. 463/2025 passed by the Respondent No.2 Authority, is hereby quashed and set aside.

                   iii. The proclamation issued against the present Petitioner, is also quashed and set aside.

32. Rule is made absolute in the above said terms.

33. Pending application/s, if any, shall stand disposed of accordingly.