Suyog Allias Sushil Madhukar Solunke v. The District Magistrate And Others
2026:BHC-AUG:6089-DB 1 941.Cri.WP.1447.2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 1447 OF 2025 Suyog @ Sushil Madhukar Solunke, Age : 36 Years, Occu.: Agriculture, R/o. Gondi, Tq. Ambad, Dist. Jalna.
...Petitioner
VERSUS
1.
The District Magistrate, Jalna.
2.
Superintendent of Police Jalna.
3.
The State of Maharashtra (Through the Secretary Home Department (Spl) Mantralaya, Mumbai.
4.
The Superintendent Aurangabad Central Prison, Aurangabad.
...Respondents
...
Mr. Abhaysinh K. Bhosle, Advocate for the Petitioner. Mr. P. S. Patil, A.P.P. for Respondent Nos. 1 to 4. ...
CORAM
: SANDIPKUMAR C. MORE AND ABASAHEB D. SHINDE, JJ.
Reserved on : 03.02.2026 Pronounced on : 11.02.2026 JUDGMENT (PER : ABASAHEB D. SHINDE, J.) :
1.
Heard.
2.
Rule. Rule is made returnable forthwith. With the consent of the parties Writ Petition is taken up for final hearing at the stage of admission.
2 941.Cri.WP.1447.2025.odt 3.
By this Writ Petition, the petitioner is taking an exception to the detention order and committal order dated 15.07.2025 bearing No.2025/RB-Desk-1/Pol-1/Kavi-155, passed by Respondent No.1District Magistrate, Jalna in exercise of powers under Section 3 (1) 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"). 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, holding his activities prejudicial to the maintenance of public order. 4.
It seems that the Assistant Police Inspector, Police Station Gondi, Jalna submitted a proposal seeking detention of the petitioner. The said proposal appears to have been routed through the Sub-Divisional Police Officer, Sub-Division Ambad, Jalna and Superintendent of Police, Jalna and eventually placed before Respondent No.1-District Magistrate, Jalna 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,
3 941.Cri.WP.1447.2025.odt though the basis for submission of proposal for detention of petitioner is registration of five (5) past criminal cases, one Chapter Case No. 03 of 2024 under Section 110 (e),(g) of the Code of Criminal Procedure, 1973 and one Externment Order No.2025/KaVi/MG/SDMAm/123 dated 06.02.2025 registered against the petitioner at Gondi Police Station , however, the impugned detention order is based only on recent four (4) offences bearing Crime No. 205 of 2025 under Sections 118(1), 115(2), 352, 351(2), 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short "BNS"), dated 05.06.2025, Crime No. 217 of 2025 under Sections 303 (2), 3(5) of BNS read with Sections 3 and 4 of the Mines And Minerals (Development And Regulation) Act, 1957 (for short "MMDR Act") dated 12.06.2025, Crime No.
218 of 2025 under Sections 303 (2), 3(5) of BNS, read with Sections 3 and 4 of the MMDR Act dated 12.06.2025 and Crime No. 230 of 2025 under Sections 303 (2), 3(5) of BNS, read with Sections 3 and 4 of the MMDR Act dated 20.06.2025. In addition to above crimes, two incamera statements of witnesses 'A' and 'B' are also considered while passing the impugned detention order.
5.
Learned Counsel for the petitioner would submit that, although the impugned detention order refers to release of
4 941.Cri.WP.1447.2025.odt petitioner on bail in pending cases, copies of bail application and the bail orders were admittedly neither placed on record nor has been considered by the Competent Authority, this lacks the basic principle of subjective satisfaction. In support of his submission he placed reliance on the judgment of the Hon'ble Apex Court in the case of Banka Sneha Sheela Vs. State of Telangana & Ors. reported in AIR 2021 SC 3656, wherein it has been held that, when a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising 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.
6.
It is further submitted by the learned Counsel for the petitioner that out of four (4) offences bearing Crime No. 205 of 2025 dated 05.06.2025, Crime No. 217 of 2025 dated 12.06.2025, Crime No. 218 of 2025 dated 12.06.2025 and Crime No. 230 of 2025 dated 20.06.2025, three (3) offences registered in recent past are under Sections 303 (2), 3(5) of BNS, read with Sections 3 and 4 of the MMDR Act. He would submit that the allegations in the said complaint pertains to alleged illegal excavation and transportation of sand. So far as Crime bearing No. 205 of 2025 registered on 05.06.2025 is concerned, it is registered under Sections 118(1), 115(2), 352, 351(2), 3(5) of BNS.
5 941.Cri.WP.1447.2025.odt 7.
Learned Counsel for the petitioner also submits that Crime No. 217 of 2025 and Crime No. 218 of 2025 have been registered on one and the same day. He also submits that when these offences were registered against the petitioner, he was in Magistrate custody in connection with Crime No. 205 of 2025. He thus submits that merely because the petitioner was arrested in connection with Crime No. 205 of 2025, his name has been inserted in Crime No. 217 of 2025 and Crime No. 218 of 2025. He therefore submits that the said two crimes have been falsely registered against the petitioner.
8.
He however submits that, even taking the allegations of all the four crimes as it is, the same would not amount to the act prejudicial to the public order but at the most it could be said to be an act disturbing the law and order. In that regard he relied on the judgment of the Hon'ble Apex Court in the case of Hasan Khan Ibne Haider Khan Vs. R. H. Mendonca and Ors. reported in (2000) 3 SCC 511, and more particularly paragraph 7 which reads thus :
7. This Court in Amanulla Khan Kudeatalla Khan Pathan v. State of Gujarat [(1999) 5 SCC 613 : 1999 SCC (Cri) 1014] considered the expression "acting in any manner prejudicial to the maintenance of public order" and referring to an earlier decision of this Court in Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta, Commr. of Police [(1995) 3 SCC 237 : 1995 SCC (Cri) 454] held that the fallout and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to
6 941.Cri.WP.1447.2025.odt deal with him or to prevent his subversive activities affecting the community at large or a large section of society and it is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a breach of "law and order" or it amounts to a breach of "public order".
9.
Learned Counsel for the petitioner would further urge that so far as in-camera statements of witnesses 'A' and 'B' are concerned, perusal of these statements would show that those are cyclostyled lacking details about dates, places and particulars about the alleged incidents, even otherwise those have been recorded within a span of few days. In short, the contention of the learned Counsel for the petitioner is that the in-camera statements are vague and concocted. It could not have been made basis for passing the impugned order of detention. In support of his submission he relied on the judgment of this court in the case of Sourabh s/o Sahebrao Rathod Vs. State of Maharashtra & Ors. reported in 2022 ALL MR (Cri) 2348 . He would further submit that, the in-camera statements are neither verified properly nor the material required for 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, in that regard he relied on the judgment of the Hon'ble Apex Court in the case of Rashid Kapadia Vs. Medha Gadgil reported in (2012) 11 SCC 745.
7 941.Cri.WP.1447.2025.odt 10.
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 petitioner is a habitual offender who creates terror and the residents within the jurisdiction of Gondi Police Station and adjoining areas remain in constant fear. He would further submit that Respondent No.1-District Magistrate was subjectively satisfied that, if not prevented, the petitioner is most likely to indulge in further dangerous activities which are prejudicial to the maintenance of public order in the future. He would further submit that Respondent No.1-District Magistrate has adhered to all the mandatory provisions contained in MPDA Act before passing the impugned order of detention. He would further submit that considering the statements of the in-camera witnesses 'A' and 'B', it is evident that there was threat and violence in both the incidents which would have directly affected the public order. 11.
Learned AGP would further submit that the allegations made in the offences registered against the petitioner coupled with the incamera statements of witnesses 'A' and 'B' shows that the petitioner used to excavate and transport the sand illegally and even there was a threat not only to the peace living citizen but even to the police personnel as well as the officers from Revenue Department as the
8 941.Cri.WP.1447.2025.odt petitioner even abused, threatened and assaulted these officers. He, therefore, submits that Respondent No.1-District Magistrate has rightly considered the entire material placed before him and has arrived at a subjective satisfaction, that the preventive detention of the petitioner is very much warranted.
12.
Bare perusal of impugned detention order depicts observations made by Respondent No.1-District Magistrate that, the petitioner has been released on bail in Crime bearing No. 205 of 2025, and is absconding in other three crimes and thus he is likely to revert the similar activities prejudicial to the maintenance of public order in future and therefore, the detention of petitioner is necessary. In short, Respondent No.1-District Magistrate was aware that the petitioner has already been released on bail in connection with one of the crime, which was also the basis for passing the impugned detention order.
13.
The Hon'ble Apex Court in the case of Joyi Kitty Joseph Versus Union of India and Ors.; (2025) 4 SCC 476 has observed thus :- "32. Likewise, in the present case, we are not concerned as to whether the conditions imposed by the Magistrate would have taken care of the apprehension expressed by the detaining
9 941.Cri.WP.1447.2025.odt authority; of the detenu indulging in further smuggling activities. We are more concerned with the aspect that the detaining authority did not consider the efficacy of the conditions and enter any satisfaction, however subjective it is, as to the conditions not being sufficient to restrain the detenu from indulging in such activities.
33. Ameena Begum vs. State of Telangana, (2023) 9 Supreme Court Cases, 587, noticed with approval Vijay Narain Singh v. State of Bihar (1984) 3 Supreme Court Cases 14 and extracted paragraph 32 from the same (Vijay Narain Singh): (SCC pp.3536). "32....It is well settled 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."
(emphasis supplied)
34. The criminal prosecution launched and the preventive detention ordered are on the very same allegations of organised
10 941.Cri.WP.1447.2025.odt 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.
35. The detention order being silent on that aspect, we interfere with the detention order only on the ground of the detaining authority having not looked into the conditions imposed by the Magistrate while granting bail for the very same offence; the allegations in which also have led to the preventive detention, assailed herein, to enter a satisfaction as to whether those conditions are sufficient or not to restrain the detenu from indulging in further like activities of smuggling". 14.
It would also be apt to refer to the decision of the Hon'ble Apex Court in the case of Shaik Nazneen Vs. State of Telangana and others reported in (2023) 9 SCC 633, more particularly paragraph 19 which reads thus :- "19. In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case"
11 941.Cri.WP.1447.2025.odt 15.
We thus find that impugned detention order depicts nonapplication of mind at the hands of Respondent No.1-District Magistrate while appreciating the material as, although the order asserts that petitioner is on bail in one of the pending case, however, the record do not contained a copy of bail application or bail order. As held by the Hon'ble Apex Court in the case of Joyi Kitty Joseph (Supra), Shaik Nazneen (Supra), as well as the Banka Sneha Sheela (Supra), wherein it has been held that, when a detaining authority takes into account the fact that the detenue is on bail, it must examine the bail orders themselves to assess the nature of offence, the conditions imposed by a Competent Court while releasing the accused on bail and also to ascertain as to whether there exists a real likelihood of detenue committing similar kind of offence if released on bail. In short, absence of these documents shows that the petitioner was denied an opportunity to make an effective representation which is mandatory under Article 22(5) of the Constitution of India.
16.
So far as the reliance placed on the two in-camera statements of witnesses 'A' and 'B' are concerned, as observed above, we find that both the statements are cyclostyled as well as vague as it can be
12 941.Cri.WP.1447.2025.odt seen that, the allegations made in the said statements are general in nature. The record also depicts that there is no proper verification of these statements nor the detaining authority appears to have applied its mind to its credibility. It is settled position of law that such vague statements that too without any proper verification cannot be made the basis of preventive detention. 17.
Before parting we find that neither the impugned order of detention nor the committal order stipulate the period of detention of the petitioner, as admittedly the confirmation order is not placed on record so as to ascertain the stipulated period of detention. The learned APP is not in a position to point out nor he is able to place on record the confirmation order so as to substantiate this aspect. Perusal of impugned detention order and the record available shows that, this vital aspect is missing which is also one of the facet which vitiates the impugned detention order. Even otherwise as has been held above the impugned order of detention and as well as committal order do not satisfy the test of subjective satisfaction. 18.
It is settled position of law that, the preventive detention is not mean to punish for past act but to prevent future conduct that threatens public order. It is equally required to be considered, as to
13 941.Cri.WP.1447.2025.odt whether, mere pendency of criminal cases without a live link to eminent disturbances of public order justify preventive detention, whether it is only concern about law and order or a public order, in that regard the Hon'ble Apex Court in the case of Ram Manohar Lohia v. State of Bihar reported in 1965 SCC OnLine SC 9, while explaining the term 'Law and Order' and 'Public Order' observed thus :
"54. ... 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....
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
14 941.Cri.WP.1447.2025.odt 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." 19.
Thus, 'Public Order' refers to disturbances affecting community at large whereas, 'Law and Order' can encompass a broader range of disturbances, including those of local and minor nature. Thus the underline principle is that the activity of a person should be such that it will affect the public order. The three circles referred to by the Hon'ble Apex Court had explained that the activities disturbing law and order may not necessarily disturb the public order. We find that merely because of pendency of criminal cases without a live link to eminent disturbances of public order cannot justify preventive detention.
20.
We 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. As can be seen that the alleged incidents dated 05.06.2025, 12.06.2025, and 20.06.2025, cannot be said to have such a live link. In the light of above, we are of the considered view that the impugned detention order is unsustainable in law so also find that, the confirmation order
15 941.Cri.WP.1447.2025.odt of the State Government also does not sustain. Hence, we pass the following order:- :: ORDER ::
i.
The Criminal Writ Petition stands allowed.
ii.
The impugned order of detention bearing No.2025/RBDesk-1/Pol-1/Kavi-155 dated 15.07.2025 passed by Respondent No.1-District Magistrate, Jalna as well as confirmation order dated 23.07.2025 passed by Respondent No.- 3 State Government are hereby quashed and set aside. iii.
The Petitioner - Suyog @Sushil Madhukar Solunke 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/