Judgment wp479.26.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR CRIMINAL WRIT PETITION NO.479 OF 2026 Shrinath @ Tikya Ashok Shelar, aged about 28 years, r/o 461 Zagdewadi, Ghorpade Peth, Pune. ….. Petitioner. :: V E R S U S :: 1. State of Maharashtra, through its Secretary, Home Department (Special) Mantralaya, Mumbai. 2. Commissioner of Police, Pune City. 3. The Superintendent, Nagpur Central Prison, District Nagpur. ….. Respondents. ====================================== Shri M.N.Ali, Counsel for the Petitioner. Shri A.R.Chutkey, Additional Public Prosecutor for Respondents/State. ====================================== CORAM : BHARATI DANGRE & URMILA JOSHI-PHALKE, JJ. DATE : 17/09/2026 ORAL JUDGMENT : (Per : URMILA JOSHI-PHALKE) 1. Heard learned counsel Shri M.N.Ali for the petitioner and learned Additional Public Prosecutor Shri A.R.Chutkey for .....1/- 2026:BHC-NAG:12476-DB Judgment wp479.26.odt 2 respondents/State. Rule. Rule made returnable forthwith. Heard finally by consent. 2. By this petition, the petitioner challenges order of detention dated 20.1.2026 passed by respondent No.2. 3. Respondent No.2 passed the detention order detaining the petitioner under 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, Illegal Gambling, Illegal Lottery and Human Trafficker Act, 1981 (the MPD Act). 4. As per contentions of the petitioner, relying upon two in- camera statements, which do not bear signature of alleged witnesses, respondent No.2, without having a sufficient material on record and without subjective satisfaction, passed the detention order, which is arbitrary and illegal and, therefore, it is liable to be quashed and set aside. .....2/- Judgment wp479.26.odt 3 5. Learned counsel for the petitioner submitted that order of preventive detention can be passed only when Detaining Authority is satisfied that the said detention is imperative and necessary to prevent detenu from acting in a manner prejudicial to maintenance of ‘public order’ as contemplated under Section 3 of the MPD Act. The Competent Authority, while conferring the said order, requires to look into prevailing or likely to prevail circumstances while exercising such extraordinary powers. The order of detention impugned neither discloses existence of any prevailing circumstances justifying exercise of powers under Section 3 of the MPD Act nor refers to any material demonstrating a reasonable likelihood of the petitioner acting in a manner prejudicial to the maintenance of ‘public order.’ He submitted that Crime No.510/2025 has been relied upon by the Detaining Authority wherein the detenu was enlarged on bail by the Competent Court. In the said crime, allegations against the detenu were not considered to be of such gravity or seriousness as to warrant continued custodial detention under the .....3/- Judgment wp479.26.odt 4 ordinary criminal law. There was no subjective satisfaction by respondent No.2 while passing the detention order impugned. Thus, the Detaining Authority has not considered that there is no substantial material to pass the said order. The detention order impugned is vitiated on account of subjective satisfaction and it nowhere reflects that activities of the petitioner are prejudicial to maintain the ‘public order.’ Thus, he submitted that perusal of the detention order reveals that only one Crime No.510/2025 was considered by the Detaining Authority which does not disclose any activities affecting the ‘public order.’ The said offence was registered under Sections 118(1) and 3(5) of the BNS. He further submitted that though the Detaining Authority has relied upon various crimes registered against the petitioner wherein trials are pending against him, mere existence or pendency of multiple criminal cases cannot by itself constitute .....4/- Judgment wp479.26.odt 5 valid or sufficient ground for invoking drastic provisions of preventive detention. Thus, for all above these grounds, the detention order deserves to be quashed and set aside. 6. Per contra, learned Additional Public Prosecutor for the State has strongly opposed the said contentions and submitted that various crimes registered against the petitioner show that he was continuously involved in the illegal activities. While considering the proposal of detention, the Detaining Authority is satisfied that the petitioner is a dangerous person within the meaning of Section 2(b-1) of the MPD Act. The Detaining Authority is further satisfied itself that the petitioner was acting in a manner prejudicial to maintenance of ‘public order’ and it was necessary to detain him under the MPD Act with a view to prevent him from acting in the similar manner in future. The Detaining Authority further considered that ten previous offences are registered against the petitioner and in order to curb criminal activities of the petitioner, .....5/- Judgment wp479.26.odt 6 preventive actions under Section 110(e)(g) of the CrPC and under Section 56(1)(a) and (b) of the Maharashtra Police Act was taken against him. Despite the said actions taken against him, the activities of the petitioner could not be curbed and, therefore, the detention order was passed and, therefore, no interference is called for. 7. Before entering into merits of the case, contentions raised by the petitioner that the requirement before passing an order of detention under Section 3 of the MPD Act requires to be fulfilled. In view of provisions of Section 3(1) 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 individual from engaging in conduct prejudicial to maintenance of ‘public order.’ 8. 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 .....6/- Judgment wp479.26.odt 7 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. 9. 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. .....7/- Judgment wp479.26.odt 8 10. 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). 11. 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 .....8/- Judgment wp479.26.odt 9 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. 12. Thus, Section 3 indicates that the prime responsibility of passing order of preventive detention lies with the State Government. 13. In the light of the above legal provisions, the order impugned passed by the Detaining Authority requires to be examined. 14. Perusal of the order impugned, admittedly, shows that no prevailing circumstances are mentioned in the said order showing that provisions applied against the present Petitioner are inadequate to curb his activities. Perusal of the record reveals that .....9/- Judgment wp479.26.odt 10 in all ten offences are registered against the petitioner during the period 2016 to 2025, which are reproduced as under: Sr. No. Police Station Cr.No Sections of law Date of Registra tion Date of arrest Status 1 Khadak 354/2016 u/s 365, 342, 324, 323, 504, 506, 34 of IPC & u/s 37(1)(3)/ 135 of MPA 20.12.16 22.12.16Court pending 2 Khadak 318/2017 u/s 324, 323, 504, 506(1) of IPC 25.5.17 25.5.17 Court pending 3 Khadak 403/2017 u/s 452, 427, 504, 506, 352, 34 of IPC 1.10.17 11.10.17Court pending 4 Swargate 382/2017 u/s 394, 386, 504, 34 of IPC 29.11.17 30.11.17Court pending 5 Swargate 395/2017 u/s 324, 323, 504, 143, 147, 148, 149 of IPC 8.12.17 11.12.17Court pending 6 Khadak 172/2018 u/s 354A, 341, 506 of IPC & u/s 8, 12 of POCSO Act 14.5.18 19.5.18 Court pending 7 Khadak 424/2018 u/s 307, 143, 144, 147, 148, 149, 341, 323, 504, 506 of IPC & u/s 4(25) of Arm Act & u/s 37(1)(3)/135, 142 of MPA & u/s 3(1) (ii), 3(2), 3(4) of MCOC Act 29.11.18 29.11.18Court pending 8 Khadak 164/2022 u/s 397, 384, 307, 323, 504, 506, 34 of IPC & u/s 4(25) of Arms Act & u/s 37(1)(3)/135 of MPA & u/s 3(1)(ii), 7.6.22 9.6.22 Court pending .....10/- Judgment wp479.26.odt 11 3(2), 3(4) of MCOC Act 9 Khadak 99/2025 u/s 109, 118(2), 351(2), 352, 3(5) of BNS & u/s 4(25) of Arm Act & u/s 37(1)(3)/135 of MPA & u/s 7 of Criminal Law Amendment Act 14.2.25 30.3.25 Court pending 10 Kalepadal101/2025 u/s 117(2), 118(1), 351(2), 35(3), 352, 115(2), 3(5) of BNS 3.4.25 29.10.25Court pending The detention order further reveals that respondent No.2 has also considered preventive actions initiated against the petitioner showing details as follows: Sr. No. Police Station Chapter Case No. Sections of law Status 1 Khadak 5/2018 7.2.18 u/s 56(1)(a)(b) of MPA On 7.2.2018, you were externed from Pune City Police Commissionerate and Pune District for the period of one year, by Deputy Commissioner of Police, Zone I, Pune City. 2 Khadak 63/2021 27.11.21 u/s 110(a)(e)(g) of CrPC On 10.12.2021, you had been executed bond of Rs.15,000/- with ne surety for period of one year by Special Executive Magistrate, Faraskhana Division, Pune City. .....11/- Judgment wp479.26.odt 12 Thereafter, respondent No.2 has considered Crime No.510/2025 under Sections 118(1) and 3(5) of the BNS registered on 5.10.2025 in which the petitioner was arrested on 27.10.2025, which is under investigation. The said crime came to be registered on the basis of report lodged by Swapnil Sunil Harade wherein it was alleged that on 4.10.2025, at about 9:30 pm, the complainant met his friend Siddhesh Pawar at Sinhagadh Road. On the request of the friend, the complainant went to Timber Market to take vehicle and obtained the vehicle and gave the same to his father. Thereafter, they went at Zagadewadi, Pune, Public Road in front of a shop at about 10:30 pm. At that time, there was hot exchange of words between said Siddhesh Pawar and the present petitioner. the complainant intervened to resolve the dispute. However, the petitioner and other 3-4 persons assaulted the complainant on the head and face with a stone injuring him. Thereafter, the complainant approached the Khadak Police Station, Pune City, Pune and lodged the report. .....12/- Judgment wp479.26.odt 13 15. 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 liberty of a person is not jeopardized unless his case falls squarely within. The provisions shall 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 unless the material available is such as would satisfy the requirements of the legal provisions authorizing 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. 16. In Haridas Shankar Gaikwad vs. Commissioner of Police & Ors., reported in 2025 SCC OnLine Bom 4349, this court, by considering the entire law developed on this issue, observed that, “the criminal prosecution launched and the preventive detention ordered are on the very same allegations of organised smuggling .....13/- Judgment wp479.26.odt 14 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.” 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 .....14/- Judgment wp479.26.odt 15 on the very same charge which is to be tried by the criminal court.” 17. In another decision, in the case of Joyi Kitty Joseph vs. Union of India and ors, reported in (2025)4 SCC 476, the Hon’ble Apex Court, by referring catena of decisions, observed that, “the formation of the opinion about detention rests with the Government or the officer authorized. 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”. .....15/- Judgment wp479.26.odt 16 18. Thus, the law as to the preventive detention is settled, which states that, “preventive detention laws or 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.” 19. Perusal of the detention order reveals that the Authority mainly relied upon two statements of secret witnesses, i.e. witnesses-A & B. Admittedly, the said statements of the secret witnesses are not signed by them. 20. Thus, there is a substance in the contentions of learned counsel for the petitioner that respondent No.2 relied upon statements which were not signed by respective witnesses. On the basis of the said statements of two secret witnesses, respondent No.2 has recorded that he is subjectively satisfied .....16/- Judgment wp479.26.odt 17 that the petitioner is a dangerous person as defined under Section 2(b-1) of the MPD Act. 21. The issue with the detention order which we need to address is, whether the alleged act of commission for which the detenu is kept under detention is prejudicial to ‘public order’; and secondly, whether all relevant circumstances were considered and whether there were existence of extraneous factors. 22. Before addressing these questions, it is necessary to understand how the Hon’ble Apex Court has distinguished between disturbances relatable to ‘law and order’ and disturbances caused to ‘public order.’ Mere breach of law in all cases does not lead to ‘public disorder.’ The difference between ‘law and order’ and ‘public order’ was expressed by the Constitution Bench of the Hon’ble Apex Court in the case of Dr.Ram Manohar Lohia vs. State of Bihar, reported in 1966 AIR 740 wherein it is observed thus: .....17/- Judgment wp479.26.odt 18 “Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. ….. 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 .....18/- Judgment wp479.26.odt 19 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.” 23. Thus, to determine an act to qualify as a disturbance to ‘public order’, the specific activity must have an impact on the broader community or the general public, evoking feelings of fear, panic, or insecurity. Not every case of a general disturbance to public tranquility affects the ‘public order.’ 24. In another decision, in the case of Kuso Sah vs. State of Bihar, reported in (1974)1 SCC 195, the Hon’ble Apex Court held that, “the two concepts have well defined contours, it being well Established that stray and unorganized crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. …..” .....19/- Judgment wp479.26.odt 20 It has further been held that, “the power to detain a person without the safeguard of a court trial is too drastic to permit a lenient construction and therefore courts must be astute to ensure that the detaining authority does not transgress the limitations subject to which alone the power can be exercised.” 25. In view of the above observations and turning to Section 3(1) of the MPD Act, admittedly, the Government has to arrive at a subjective satisfaction that the petitioner has to be detained in order to prevent him from acting in a manner prejudicial to maintenance of ‘public order.’ 26. As observed earlier, the term ‘public order’ is defined in explanation to Section 2(a) of the MPD Act as encompassing situations that cause “harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave wide-spread danger to life or public health. 27. The detention order in the present matter fails to differentiate between offences which create a “law and order” .....20/- Judgment wp479.26.odt 21 situation and which prejudicially affect or tend to prejudicially affect “public order”. The offences referred to detention order alleged to have been committed by the detenu between the two individuals. It was the dispute between two individuals and during exchange of words, the assault was allegedly made by the petitioner. 28. On an overall consideration of circumstances, it does appear to us that the existing legal framework for maintaining ‘law and order’ is sufficient to address like offences which were under consideration, which the Commissioner anticipates could be repeated by the Detenu if not detained. The preventive detention laws, an exceptional measure reserved for tackling emergent situations, ought not to have been invoked as a tool for enforcement of “law and order”. 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 .....21/- Judgment wp479.26.odt 22 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 respondent No. 2 is examined, in the light of the above settled legal position, definitely, it nowhere shows that there was any disturbance to ‘public order’ due to activities of the petitioner and provisions applied against the 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.’ .....22/- Judgment wp479.26.odt 23 31. In the present case, ten offences were mentioned in the detention order and one offence i.e. Crime No.510/2025 was considered by the Detaining Authority. The in-camera statements of witnesses are also not sufficient to speak regarding crimes against the petitioner and it also falls short to determine that activities of the petitioner are prejudicial to members of the society. Crime No.510/2025 which was considered by the Detaining Authority registered under Sections 118(1) and 3(5) of the BNS. The allegations show that complainant therein Swapnil Sunil Harade was assaulted by the petitioner during hot exchange of words between the friend of the complainant and the petitioner. 32. Thus, it nowhere reveals that due to the said act of the petitioner, the members of the society were prejudiced. 33. Thus, we find force in the submissions of learned counsel for the petitioner that allegations made in the offence, which are the basis of passing the detention order impugned, does not amount to an act which is prejudicial to the ‘public order.’ .....23/- Judgment wp479.26.odt 24 However, at the most, it would be said to be an act of disturbing the ‘law and order.’ 34. We, thus, find that the detention order impugned is unsustainable in law. We are, therefore, inclined to allow this writ petition. Hence, we proceed to pass following order: ORDER (1) The Criminal Writ Petition is allowed. (2) The impugned order of detention dated 20.1.2026 passed by respondent No.2 is hereby quashed and set aside. (3) The petitioner shall be released forthwith, if not required in any other offence. Rule is made absolute in the aforesaid terms. [URMILA JOSHI-PHALKE] [BHARATI DANGRE] !! BrWankhede !! .....24/- Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge Date: 22/09/2026 18:07:38