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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

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 :
                                 3 / 13                  301-WP-4340-26.odt



               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
                                   4 / 13                 301-WP-4340-26.odt

     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
                              5 / 13                     301-WP-4340-26.odt

  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
                             6 / 13                    301-WP-4340-26.odt

                 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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