Bombay High Court
MOHAMMED HUJER ALIAS AFRIDI ALIAS BUDHA HUSSAIN SHAIKHversusTHE STATE OF MAHARASHTRA AND ORS
- Decided
- Disposal
- Disposed Off
Holding
The Detention Confirmation Order extending the detention to 12 months was set aside as it was unlawful and contrary to the statutory scheme.
Summary
The petitioner challenged a detention order issued under the Maharashtra (Prevention of Dangerous Activities) Act, 1981, which initially limited his detention to 90 days. After an Advisory Board report, the State Government issued a Detention Confirmation Order extending the detention to a total of 12 months. The petitioner argued that the extension was arbitrary and beyond the statutory limit initially set. The court examined the provisions of Sections 2, 3, 10, 12 and 13 of the Act, noting that while the maximum period of detention can be 12 months, the State Government cannot alter the period fixed in the original order without proper consideration of the detainee’s representation. It found the State Government’s order lacked specific reference to any representation and therefore showed a non‑application of mind. Consequently, the court set aside the Detention Confirmation Order, held that the 90‑day period had expired, and ordered the petitioner’s immediate release.
Issues considered
- Whether the State Government can extend a preventive detention beyond the initially fixed period of 90 days to 12 months under the Maharashtra (Prevention of Dangerous Activities) Act, 1981.
- Whether the Detention Confirmation Order complied with the statutory requirements of Sections 3, 10, 12 and 13 of the Act and the principles of natural justice.
Legislation cited
- Maharashtra (Prevention of Dangerous Activities) Act, 1981 — s. 10, 12, 13, 2, 3
Subjects
- preventive detention
- Maharashtra Prevention of Dangerous Activities Act
- advisory board
- extension of detention
- Article 22
- natural justice
- detention order
Judgment
1 / 13 301-WP-4340-26.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.4340 OF 2026
Mohammed Hujer@ Afridi @
Budha Hussain Shaikh .... Petitioner
versus
The State of Maharashtra & Ors. .... Respondents
…....
• Mr. Abhishek Avachat a/w Mr. Siddhant Deshpande a/w Mr.
Sushant Jadhav, Advocate for Petitioner.
• Ms. M. H. Mhatre, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL &
RANJITSINHA RAJA BHONSALE, JJ.
DATE : 24th SEPTEMBER, 2026
JUDGMENT : (PER : SARANG V. KOTWAL, J.)
1. The Petitioner has challenged the detention order
dated 16/06/2026 passed by the Commissioner of Police, Pune
City/Respondent No.2. By a separate Committal Order dated
16/06/2026, he was directed to be detained in Washim District
Prison. The Petitioner was served with grounds of detention
MANUSHREE dated 16/06/2026. The Petitioner was detained from
NESARIKAR
Digitally signed
by MANUSHREE
17/06/2026.
NESARIKAR
Date: 2026.09.30
11:17:52 +0530
Nesarikar
2 / 13 301-WP-4340-26.odt
2. Heard Mr. Abhishek Avachat, learned Counsel for the
Petitioner and Ms. M. H. Mhatre, learned APP for the State.
3. Learned counsel has restricted his objections only to
the main ground that the State Government had restricted the
period of detention for 90 days at the first instance and suddenly
after the receipt of Advisory Board’s report, the period was
extended to one year. According to the learned counsel for the
Petitioner this action is arbitrary and without basis.
4. Learned APP relied on the affidavit-in-reply submitted
by the Respondent No.2 as well as the Superintendent of
Washim District Prison. She submitted that the scheme of the
Act and also on the basis of Article 22 of the Constitution of
India, the action taken by the State Government is within the
legal framework and there is no fault in passing of the order.
5. We have considered these submissions in the
background of the relevant provisions of the Act. Before
referring to those provisions, very briefly, the grounds of
detention are referred to as follows :
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The grounds of detention run into 15 paragraphs. The
paragraph No.3.1 refers to history of the registered offences.
They were registered at Khadak Police Station and Bibwewadi
Police Station between 2021 to 2025. Paragraph No.3.2 refers to
three preventive actions taken against him. There is a special
reference to two registered offences at Khadak Police Station in
paragraph No.5, which are C.R.No.649 of 2025 and C.R.No.64
of 2026. They were registered on 24/12/2025 and 09/02/2026
respectively. Besides two registered offences, the Respondent
No.2 relied on two ‘In-Camera’ statements of the witnesses ‘A’
and ‘B’ in respect of the instances dated 18/05/2026 and
22/05/2026. Based on these materials, the detention order was
passed.
6. The detention order originally passed by the
Respondent No.2, was approved by the Government of
Maharashtra on 26/06/2026. Importantly, while approving the
original detention order, the State Government specifically
directed that the detenue shall be detained for the period of 90
days from the date of his actual detention. After that, the
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Advisory Board's report was available. The report was made on
27/07/2026, and it was opined that there were sufficient
grounds for further detention of the detenue.
7. After receiving the Advisory Board's report, the State
Government passed an order dated 04/09/2026. It was titled as
Detention Confirmation Order. In that order, it was directed that
the detention of the detenue shall be continued for a total
period of 12 months from the date on which he was actually
detained in pursuance of the said detention order.
8. Learned counsel for the Petitioner objected to such
extension of the period of detention to 12 months when at the
first instance it was restricted only to 90 days.
9. In this background, it is necessary to refer to the
relevant provisions of The Maharashtra (Prevention of
Dangerous Activities) Act, 1981 (for short ‘the Act’). Section 2
defines a ‘dangerous person’ and what is meant by the activities
affecting maintenance of a public order in case of a ‘dangerous
person’. In the present case, the detention order is passed by
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treating the Petitioner as a ‘dangerous person’ within the
meaning of the Act.
10. Section 3 of the Act refers to power to make orders
detaining certain persons, which reads thus:
“Section 3 - Power to make orders detaining certain
persons.
(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
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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 do, amend such order to extend such
period from time to time by any period not exceeding
six 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.”
11. As can be seen, u/s 3 (3) of the Act, there is an outer
limit of 12 days from the date of passing of the detention order
by the Respondent No.2, before which the State Government
had to approve the said order. The original order passed by the
Respondent No.2 could not have remained in force beyond the
period of 12 days if it was not approved by the State
Government.
7 / 13 301-WP-4340-26.odt
12. In compliance with the requirement of Section 3(3),
the State Government approved the detention order passed by
the Respondent No.2 vide the order dated 26/06/2026. The
entire material referred to in the grounds of detention was
referred to in the order dated 26/06/2026 passed by the State
Government. It was observed that the material before the
Detaining Authority indicated a real and proximate risk of the
detenue acting in a manner prejudicial to public order based on
relevant and contemporaneous evidence. The Government of
Maharashtra, after considering the recommendation of the
Commissioner of Police, Pune, approved the detention order and
further observed that, the State Government was confirming the
detention order dated 16/06/2026 issued by the Detaining
Authority. It was specifically further directed that the Petitioner
shall be detained for the period of 90 days from the date of his
actual detention by the Detaining Authority with a view to
preventing him from acting in any manner prejudicial to the
maintenance of public order. The next clause of the order
mentions that the detenue had the right to make a
representation before various authorities, including the Advisory
8 / 13 301-WP-4340-26.odt
Board, and that his case would be referred to Advisory Board
constituted u/s 9 of the Act. The continuation of detention was
subject to confirmation and review by the State Government
upon the receipt of the opinion or report of the Advisory Board
u/s 11 and 12 of the MPDA Act and recommendation of the
Detaining Authority.
13. In this context, Section 10 of the Act provides for
reference to Advisory Boards, which reads as under.
“Section 10 - Reference to Advisory Boards.
In every case where a detention order has been made under
this Act, the State Government shall, within three weeks
from the date of detention of a person under the order, place
before the Advisory Board constituted by it under section 9
the grounds on which the order has been made and the
representation, if any, made by the person affected by the
order, and in the case where the order has been made by an
officer, also the report by such officer under sub-section (3)
of section 3.”
14. Section 12 provides the action which is to be taken
upon the report of the Advisory Board, which reads thus :
9 / 13 301-WP-4340-26.odt
“Section 12 - Action upon report of Advisory Board
(1) In any case where the Advisory Board has reported that
there is, in its opinion, sufficient cause for the detention
of a person, the State Government may confirm the
detention order and continue the detention of the person
concerned for such period, not exceeding the maximum
period prescribed by section 13, as it thinks fit.
(2) In any case where the Advisory Board has reported that
there is, in its opinion, no sufficient cause for the
detention of the person concerned, the State
Government shall revoke the detention order and cause
the person to be released forthwith.”
15. Section 13 provides for maximum period of detention
as follows :
“Section 13 - Maximum period of detention.
The maximum period for which any person may be
detained, in pursuance of any detention order made under
this Act which has been confirmed under section 12, shall
be twelve months from the date of detention.”
10 / 13 301-WP-4340-26.odt
16. Thus, the scheme of the Act shows that a person can be
detained under this Act for a maximum period of 12 months.
The State Government has power to restrict the period of
detention below 12 months. Accordingly, the State Government
has restricted the period of detention to 90 days, as is
specifically mentioned in their order dated 26/06/2026. At that
point of time, the State Government had considered the grounds
of detention, based on which the detention order was passed.
Taking into consideration everything, the period of detention
was restricted to 90 days.
17. After that, the Advisory Board’s report was received on
27/07/2026, advising further detention of the detenue. After the
said report, the State Government confirmed the original
detention order vide the order dated 04/09/2026, titled as
Detention Confirmation Order. There is a reference in that order
that after considering the report of the Commissioner of Police,
Pune City, the grounds of detention and the material
accompanying the said report, the State Government had
approved the detention order vide the order dated 26/06/2026
11 / 13 301-WP-4340-26.odt
u/s 3(3) of the Act. Then there is a reference to the Advisory
Board's report. It is further mentioned that the State
Government independently and carefully considered the
detention order, the grounds of detention, the material relied
upon by the Detaining Authority, the representation “if any”
(emphasis supplied) made by or on behalf of the detenue and
the opinion of the Advisory Board.
18. Having observed this, it was further mentioned that the
State Government confirmed the detention order and directed
that the detention shall be continued for a period of 12 months
from the date from which he was actually detained.
19. The said Detention Confirmation Order, first of all,
shows non-application of mind because there is no reference to
any specific representation by the detenue. It is mentioned that
the State Goverment has considered the representation “if any”.
The State Government was required to be specific whether there
was any representation and whether such representation was
considered by them. This clearly shows non-application of mind
12 / 13 301-WP-4340-26.odt
on their part. Apart from that, the order dated 04/09/2026 was
confirmation of the original detention order. There was no
question of modifying the original detention order. Therefore,
the State Government could not have modified the period which
they had restricted to 90 days by the order dated 26/06/2026.
Even otherwise, from the record, there was no material
available, except the Advisory Board’s report which does not
refer to any specific period, for the State Government to change
the period from 90 days to 12 months. The entire act is thus
arbitrary and is not sustainable. The period of 90 days from the
date of detention is already over. Therefore, continuous
detention of the Petitioner after that period does not have basis
of law. On this ground, the continued detention of the Petitioner
will have to be set aside.
20. Hence, the following order :
ORDER
(i) The Detention Confirmation Order dated
04/09/2026 passed by the State Government
directing detention of the Petitioner for a total
13 / 13 301-WP-4340-26.odt
period of 12 months from the date of his actual
detention, is set aside.
(ii) The period of 90 days referred to in the order
dated 26/06/2026 is already over. The
Petitioner, therefore, cannot be detained further
in respect of the original detention order dated
16/06/2026, which is the subject matter of this
Petition.
(iii) The Petitioner be released forthwith, if not
required in any other case.
(iv) The Rule is made absolute in the aforesaid
terms.
(v) The Petition is disposed of.
(RANJITSINHA RAJA BHONSALE, J.) (SARANG V. KOTWAL, J.)
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