Bombay High Court: The present petition was filed under Article 226 of the Constitution challenging the order of preventive detention dated 05-02-2024 passed by the District Magistrate, Beed under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers Drug-Offenders and Dangerous Persons Act, 1981 (‘the 1981 Act’) and the subsequent order dated 07-11-2024 passed by Respondent 1 confirming the said order dated 05-02-2024. The Division Bench of Vibha Kankanwadi and Rohit W. Joshi*, JJ., opined that there could absolutely be no justification for curtailing liberty of an individual merely on the ground of participation in a political rally, although the same might have taken an ugly violent turn. Thus, the Court quashed and set aside the preventive detention order dated 05-02-2024 and confirmation order dated 07-11-2024.
Background
Assistant Police Inspector (Respondent 4) submitted a proposal for passing preventive detention order against petitioner and thereafter, Respondent 2 passed the order against petitioner on 05-02-2024 after the Superintendent of Police had verified in-camera confidential statements. The order was served on petitioner on 15-09-2024 i.e., after a period of 7 months and 10 days. Based on the Advisory Board’s opinion that the preventive detention should be continued, Respondent 1 passed an order dated 07-11-2024 confirming the said order. Petitioner being aggrieved by the said order, challenged the same in the present petition invoking extra ordinary jurisdiction under Article 226 of the Constitution.
Counsel for petitioner stated that two FIRs were registered during agitation for Maratha Reservation, and it was completely unjust and illegal to place a person under preventive detention for participating in a political protest. It was also contented that petitioner was singled out while placing him under preventive detention, as such action was not taken against other people who had participated in the protest. It was stated that the live link between the incident and order of preventive detention is completely broken by enormous delay in serving the order and implementing the same.
Respondents submitted that petitioner was a habitual offender and had become a nuisance to the general safety and security of the public at large, necessitating the action of preventive detention against him. Further, CCTV footage was submitted before this Court which showed that petitioner indulged in stone pelting during agitation and his aggressive posturing holding saffron flag. It was stated that as petitioner was absconding, he could not be served with the preventive detention order.
Analysis, Law, and Decision
The Court noted that based on two FIRs dated 31-10-2023 registered against petitioner, Respondent 2 felt the need to place him under preventive detention. The said FIRs were registered in relation to protest in support of demand for Maratha Reservation and it appeared that petitioner was part of a political rally which took an ugly violent turn.
The Court noted that the two FIRs demonstrated that around 600 to 700 people were a part of the political rally and around 50 people could be identified, which were actually named in the FIRs. The Court opined that based on the said FIRs, Respondent 2 arrived at subjective satisfaction to take drastic action against petitioner to place him under preventive detention. The Court further opined that there could be absolutely no justification for curtailing liberty of an individual merely on the ground of participation in a political rally, although the same might have taken an ugly violent turn.
The Court stated that though CCTV footage record showed that petitioner was seen pelting stone on a shop during violence, the panchnama showed that such acts were committed by other people as well. It was quite possible that some wrong was committed by petitioner at the heat of moment, however, that itself, could not be a ground to curtail his liberty by placing him under preventive detention.
The Court stated that the material is irrelevant and extraneous for the purpose of arriving at subjective satisfaction. The Court agreed with petitioner’s submission that he could not have been singled out as similar action was not taken against other people, who were found to be indulging in similar activities during the protest.
The Court also stated that respondents had not taken recourse to the procedure contemplated by Section 7 of the 1981 Act, which provided for procedure to be adopted in case where the detenue was absconding. The Court noted that from the date of first step of initiation of the proposal till the date of passing of order, a period of over one month had lapsed and there was no plausible explanation for this delay. Thus, this itself was enough to demonstrate that there was no immediate pressing need for placing petitioner under preventive detention.
The Court held that the action of preventive detention resulted in violation of the fundamental right vested with petitioner under Article 21 of the Constitution, as he had been deprived of right to life and personal liberty without following due process of law and further the action was also not strictly in accordance with procedure established by law. Thus, the Court quashed and set aside the order of preventive detention dated 05-02-2024 and also confirmation order dated 07-11-2024.
[Nikhil v. State of Maharashtra, 2025 SCC OnLine Bom 176, decided on 14-01-2024]
*Judgment authored by: Justice Rohit W. Joshi
Advocates who appeared in this case :
For the Petitioner: A.R. Hange, R.G. Hange, Advocates
For the Respondents: A.D. Wange, APP
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