Bombay High Court
AKSHAY ALIAS BHAIYA RAMESH WAHULversusTHE COMMISSIONER OF POLICE AND OTHERS
- Disposal
- RULE ABSOLUTE
Holding
The detention order and its confirmation under the MPDA are unsustainable and are quashed and set aside.
Summary
The petitioner, Akshay @ Bhaiya, challenged a 12‑month preventive detention order issued under the Maharashtra Prevention of Dangerous Activities Act, 1981, on the ground that he had been released on bail for the two recent offences relied upon and that the detaining authority had not properly considered the bail conditions, the vague in‑camera statements of confidential witnesses, earlier judgments quashing his prior detentions, and had relied on extraneous past criminal history. The High Court examined the statutory framework for preventive detention, emphasizing that such power is extraordinary and must be exercised with a clear, specific factual basis and only when ordinary criminal law is inadequate. It held that the authority failed to assess the bail orders, the statements were insufficiently detailed to show a threat to public order, the court ignored its own earlier rulings, and the reliance on a bulky compilation of stale offences vitiated the subjective satisfaction required under the Act. Consequently, the Court found the material relied upon insufficient to label the petitioner a “dangerous person” within the meaning of the MPDA. The detention and confirmation orders were therefore quashed and the petitioner ordered to be released immediately.
Issues considered
- Whether the detaining authority properly considered the bail orders and conditions imposed on the petitioner.
- Whether the in‑camera statements of confidential witnesses satisfy the requirement of specificity to justify preventive detention on public‑order grounds.
- Whether the authority duly accounted for the Court’s earlier judgments quashing prior detention orders against the petitioner.
- Whether reliance on past and extraneous criminal history constitutes impermissible material that vitiates the subjective satisfaction of the detaining authority.
- Whether preventive detention under the MPDA is justified when ordinary criminal proceedings and bail provisions are available.
Legislation cited
- Arms Act, 1959 — s. 27(1), 27(2), 4/25, 7
- Bharatiya Nyaya Sanhita, 2023 — s. 140(2), 27(1), 27(2), 309(6), 3(5), 4/25, 7
- Code of Criminal Procedure, 1973 — s. 107
- Maharashtra Police Act, 1951 — s. 135
- Maharashtra Prevention of Dangerous Activities, 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 — s. 12(1), 2(b-1), 3(1)
Subjects
- preventive detention
- bail
- dangerous person
- public order
- extraneous material
- non‑application of mind
- MPDA Act
- quash
- detention order
Judgment
2026:BHC-AUG:37891-DB
442.26WP.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.442 OF 2026
Akshay @ Bhaiya s/o. Ramesh Wahul,
Age : 26 years,
R/o. House No.52, Ekta Colony,
Chhatrapati Sambhajinagar
... PETITIONER
VERSUS
1] Commissioner of Police,
Chhatrapati Sambhajinagar
2] The State of Maharashtra
(Through the Secretary Home
Department (Spl)
Mantralaya, Mumbai
3] The Superintendent
District Prison, Chandrapur.
... RESPONDENTS
...
Mr.Rupesh A. Jaiswal, Advocate for the petitioner
Mr.A.S.Shinde, APP for Respondent nos.1 to 3.
…
CORAM : SANDIPKUMAR C. MORE &
VAISHALI PATIL-JADHAV, JJ.
RESERVED ON : 10.08.2026
PRONOUNCED ON : 21.08.2026
JUDGMENT [Per Vaishali Patil-Jadhav, J.] :
. Rule. Rule made returnable forthwith. Heard
finally at the admission stage with the consent of learned
advocates for the parties.
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2. By this petition, the petitioner challenges the
detention order dated 26.02.2026 bearing No.
2026/CB/MPDA/DET-04/CR-18, passed by Respondent
No. 1- Commissioner of Police, Chhatrapati Sambhajinagar
in exercise of the 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”) as well as the approval
order of the State Government dated 09.03.2026 and the
confirmation order dated 14.05.2026 bearing No. MPDA-
0226/CR No. 139/Spl-3B, passed in exercise of the powers
under Section 12(1) of the MPDA. By the impugned
detention order, the petitioner is detained for a period of 12
months on the ground that the petitioner is a “dangerous
person” within the meaning of Section 2(b-1) of the MPDA.
3. The record reflects registration of ten (10) past
criminal cases and four (04) recent crimes, one externment
proceeding, one preventive action and three preventive
detention proceedings taken against the petitioner. The
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reference chart showing criminal record of the petitioner, is
reproduced hereunder :-
Sr. Police Station C.R. No.& under Section Date of Present status
No. registration
1. Mukundwadi 213/2020 u/s. 392 IPC. 02.06.2020 Pending Trial
2. Jawaharnagar 32/2021 u/s. 380, 461 IPC. 11.02.2021 Pending Trial
3. Satara 203/2021 u/s.324, 323, 504, 34 IPC. 10.05.2021 Pending Trial
4. Pundaliknagar 123/2022 u/s.379 IPC. 08.04.2022 Pending Trial
5. Satara 356/2022 u/s.452, 427, 323, 504, 507 IPC 13.10.2022 Pending Trial.
6. Satara 38/2023 u/s.307, 323, 504, 34 IPC. 01.02.2023 Pending Trial.
7. Pundaliknagar 453/2023 u/s.392, 34 IPC. 02.12.2023 Pending Trial.
8. Satara 407/2023 u/s.392 IPC. 05.12.2023 Pending Trial
9. Satara 553/2024 u/s. 352, 351 (2), 351 (3), 238 28.11.2024 Pending Trial
Bharatiya Nyaya Sanhita, 2023 u/s. 4/25
Arms Act, 1959
10. Satara 559/2024 u/s. 109(1), 118(1), 121(1), 352, 28.11.2024 Pending Trial.
351(2)(3), 238 Bharatiya Nyaya Sanhita,
2023 u/s.4/25 Arms Act, 1959
. Externment Proceeding :-
Sr. Police Station Externment order No. Under Section & Disposal
No.
1. Satara Order No. DCP/Zone-II/ 56(1)(a)(b) of Maharashtra Police
Externment/13/2017 – Act, 1951. Externed from
3740, Office of the Dy. Aurangabad City and District for
Commissioner of Police, one year.
Zone-II, Aurangabad.
Dt.07.09.2017.
. Preventive Action :
Sr. Police Station Chapter Case No. & u/s. Disposal
No.
1. Satara 73/2021 u/s 107 Cr.P.C. Final bond of Rs.50,000/- was
taken.
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. Detention Proceedings :
Sr. Police Detention order no. Disposal
No. Station
1. Satara 2023/MPDA/DET-17/CB – 187 Office Writ Petition allowed.
of the Commissioner of Police,
Chhatrapati Sambhajinagar.
Date 19.12.2023
2. Satara 2024/MPDA/DET-05/CB–28 Office of Writ Petition allowed.
the Commissioner of Police,
Chhatrapati Sambhajinagar.
Date 17.04.2024.
3. Satara 2025/MPDA/DET-01/CB – 28 Office of Writ Petition allowed.
the Commissioner of Police,
Chhatrapati Sambhajinagar.
Date 09.04.2025
. Recent crimes committed by the petitioner :
Sr. Police C.R.No. & Under Section Date of Present status
No. Station Registration
1 MIDC Cidco 366/2025 u/s.140(2), 309(6), 19.06.2025 Pending Trial
352, 351 (3), 3(5) Bharatiya
Nyaya Sanhita, 2023, u/s. 3/25
Arms Act, 1959
2 MIDC Cidco 367/2025 u/s.310 (2) Bharatiya 19.06.2025 Pending Trial
Nyaya Sanhita, 2023
3 Satara 446/2025 u/s.309 (6), 3(5) 19.10.2025 Police
Bharatiya Nyaya Sanhita, 2023 Investigation.
4. Satara 503/2025 u/s.4/25, 7, 27 (1), 24.11.2025 Pending Trial
27 (2) Arms Act, 1959, u/s.135
of Maharashtra Police Act, 1951
4. Learned advocate for the petitioner submits that
although fourteen offences are registered against the
petitioner, the detaining authority while passing the
impugned detention order has mainly relied upon two
offences only, i.e. C.R. No.446/2025 registered on
19.10.2025 under Sections 309(6) and 3(5) of the Bharatiya
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Nyaya Sanhita, 2023 (for short ‘BNS, 2023’) and C.R. No.
503/2025 registered on 24.11.2025 under Sections 4/25,
7, 27(1),(2) of the Arms Act, 1959 and Section 135 of the
Maharashtra Police Act, 1951, both registered with Satara
Police Station, Chhatrapati Sambhajinagar, along with two
in-camera statements of confidential witnesses 'A' and 'B',
to declare the petitioner as a “Dangerous Person”.
5. Learned advocate for the petitioner challenged
the impugned order mainly on the following grounds:
a) That the petitioner was enlarged on bail in all
offences, including the two relied upon i.e. C.R.
No.446/2025 and C.R. No. 503/2025. The bail
orders were not considered by the detaining
authority, and there is no discussion as to why the
conditions imposed were insufficient.
b) That the in-camera statements of witnesses
'A' and 'B' are vague, general and stereotyped,
failing to disclose specific dates or places. The
incidents described only disclose law and order
issues and not those affecting public order.
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c) That the detaining authority failed to
consider the fact that previous detention orders
passed against the petitioner under the MPDA in
the years 2023, 2024 and 2025 were quashed and
set aside by this Court, and the observations made
in those judgments were suppressed.
d) That the detaining authority has taken into
consideration extraneous material by placing a
bulky compilation of old and stale cases before the
authority, which has influenced the mind of the
detaining authority while passing the detention
order.
Lastly, learned advocate submitted that there is
lack of application of mind on the part of the detaining
authority while passing the impugned order and therefore,
the same deserves to be quashed and set aside.
6. Per contra, learned APP supported the
impugned order and submitted that:
a) The petitioner is repeatedly involved in
serious offences, and his continuous criminal
activities have created constant fear and terror
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among the residents within the jurisdiction of
Satara Police Station and adjoining areas, thereby
adversely affecting public order.
b) The grant of bail does not preclude or
invalidate the exercise of powers under the MPDA.
The detaining authority was aware of the bail
orders but found them insufficient to prevent the
petitioner from acting in a prejudicial manner.
c) After considering the gravity of the
petitioner's criminal activities, the in-camera
statements of confidential witnesses were recorded
and duly verified. The incidents occurred at public
places, involved threats and violence, and directly
disturbed public order.
d) This is the fourth instance of the petitioner
being detained, which shows the ascending trend
of his criminal activities and the failure of ordinary
law to curb his actions.
Learned APP lastly prayed that the petition be
dismissed.
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7. Heard learned advocate Mr. Rupesh A. Jaiswal
for the petitioner and learned APP Mr. A.S. Shinde for the
respondents. With the assistance of the learned advocates,
we have perused the petition, affidavit-in-reply, citations
and the record.
8. The law on preventive detention is well-settled. It
is a precautionary measure and not a punitive one. The
power to detain is based on the subjective satisfaction of
the detaining authority, that it is necessary to prevent a
person from acting in any manner prejudicial to the public
order. However, this power is extraordinary and must be
exercised with great caution as it involves the question of
personal liberty of an individual.
9. The first issue that arises for our consideration
is whether the detaining authority has properly considered
the bail orders and the conditions imposed therein. The
Hon'ble Supreme Court, in the case of Ameena Begum Vs.
The State of Telangana & Ors. reported in 2023 INSC
788, has observed as under:
“…… It is pertinent to note that in the three criminal
proceedings where the Detenu had been released on bail, no
applications for cancellation of bail had been moved by the
State. In the light of the same, the provisions of the Act, which
is an extraordinary statute, should not have been resorted to
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when ordinary criminal law provided sufficient means to
address the apprehensions leading to the impugned Detention
Order. There may have existed sufficient grounds to appeal
against the bail orders, but the circumstances did not warrant
the circumvention of ordinary criminal procedure to resort to
an extraordinary measure of the law of preventive detention.
52. In Vijay Narain Singh vs. State of Bihar, Hon’ble E.S.
Venkataramiah, J. (as the Chief Justice then was) observed:
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 the four corners of the
relevant law. The law of preventive detention
should 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
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.”
(emphasis supplied)
10. It would also be appropriate 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, wherein it is observed that if the detenu
is a menace to society, the prosecution should seek
cancellation of his bail and/or move an appeal to the
Higher Court, rather than seeking shelter under the
preventive detention law.
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11. In the present case, the petitioner was granted
bail in C.R. No. 446 of 2025 by the Court of Judicial
Magistrate First Class, Aurangabad on 01.01.2026 and in
C. R. No. 503 of 2025 by the Additional Sessions Judge,
Nanded on 03.01.2026, with conditions of a general nature.
The detaining authority while passing the detention order
has merely noted the fact of the petitioner's release on bail
but failed to consider the bail order itself. The detention
order implies that the authority did not apply its mind to
the nature of the conditions imposed. It is absolutely not
mentioned as to how the conditions which have been
imposed while releasing him on bail would not curtail his
future criminal activities, and, inspite of the bail order, the
detention is necessary. Nothing is brought on record to
show that the petitioner has not complied with or violated
any bail conditions. Further, there is nothing on record to
show that the State has filed any application for
cancellation of bail, which indicates that the remedies
under ordinary criminal law were not exhausted.
12. The second issue is regarding the vagueness of
in-camera statements. The statements of witnesses 'A' and
'B' are general and do not provide specific details about the
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incidents. The incidents described, even if accepted at face
value, appear to be incidents affecting law and order, but
not public order.
The Hon'ble Supreme Court in Ameena Begum
(supra) while referring to the Constitution Bench decision
in Ram Manohar Lohia Vs. State of Bihar reported in
1965 SCC OnLine 9 has discussed the distinction between
"law and order" and "public order" stating that the
difference between the two is of degree and impact. An act
may affect law and order but not public order. It is only
when the act affects the community at large or the tempo of
life of the people that it becomes a public order issue.
The statements of confidential witnesses in the
present case do not establish that the petitioner's activities
had caused impact on the society at large or disturbed the
even tempo of life.
13. The third issue is regarding the failure of the
detaining authority to consider the earlier orders of this
Court. This is the fourth detention order passed against the
petitioner, with the previous three being quashed by this
Court. The detaining authority was bound to take note of
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the earlier orders and the observations made therein. As
has been observed by this Court in the earlier petitions
filed by the same petitioner, the material before the
detaining authority was insufficient to categorize the
petitioner as a dangerous person. The failure to consider
these vital observations shows a clear non-application of
mind.
14. The fourth issue is regarding the reliance on
extraneous material. In the case of Ameena Begum
(supra), this Court while considering whether there was
proper application of mind to all the relevant circumstances
or whether consideration of extraneous factors had vitiated
the order of detention, had observed thus:
“43. Considering past criminal history, which is proximate, by
itself would not render an order illegal. The Commissioner in
the Detention Order made pointed reference to the Detenu
being a habitual offender by listing 10 (ten) criminal
proceedings in which the Detenu was involved during the
years 2019-20, consequent to which the Detenu was
preventively detained under the Act vide order of detention
dated 4th March, 2021, since quashed by the High Court by
its order dated 16th August, 2021. It is then stated therein that
the Detenu had committed 9 (nine) offences in the years 2022-
23, and these offences are again listed out in detail. However,
the Commissioner states that the present order of detention is
based only on 5 (five) out of these 9 (nine) crimes, which are
alleged to show that the Detenu’s activities are “prejudicial to
the maintenance of public order, apart from disturbing peace
and tranquillity in the area.”
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44. Interestingly, even in paragraph 9 E of his Counter
Affidavit, the Commissioner has extracted a portion of the
Detention Order which we have set out in paragraph 3
(supra). The reiteration of considering past criminal history of
the Detenu is not without its effect, as we shall presently
discuss.
45. In Khudiram Das (supra), while examining the ‘history
sheet’ of the detenu, this Court had, in express terms,
clarified that a generalisation could not be made that the
detenu was in the habit of committing those offences. Merely
because the detenu was charged for multiple offences, it could
not be said that he was in the habit of committing such
offences. Further, habituality of committing offences cannot, in
isolation, be taken as a basis of any detention order; rather it
has to be tested on the metrics of ‘public order’, as discussed
above. Therefore, cases where such habituality has created
any ‘public disorder’ could qualify as a ground to order
detention.
46. Although the Commissioner sought to project that he
ordered detention based on the said 5 (five) FIRs, indication
of the past offences allegedly committed by the Detenu in the
Detention Order having influenced his thought process is
clear. With the quashing of the order of detention dated 4th
March, 2021 by the High Court and such direction having
attained finality, it defies logic why the Commissioner
embarked on an elaborate narration of past offences, which
are not relevant to the grounds of the present order of
detention. This is exactly what this Court in Khaja Bilal
Ahmed (supra) deprecated. Also, as noted above, this Court in
Shibban Lal Saksena (supra) held that such an order would
be a bad order, the reason being that it could not be said in
what manner and to what extent the valid and invalid
grounds operated on the mind of the authority concerned and
contributed to his subjective satisfaction forming the basis of
the order.”
15. Applying the above principles to the facts of the
present case, it is evident that the detaining authority has
placed reliance on a bulky compilation of old and stale
offences committed by the petitioner between the years
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2020 to 2024, which were not even the basis for the present
detention order. The grounds of detention contain narration
of the petitioner's past criminal history. Though the
detaining authority has passed the present order only on
the consideration of two recent offences committed by the
petitioner in the year 2025, and statements of confidential
witnesses, the reference to the past offences indicates that
they have influenced the thought process of the detaining
authority. Such reliance on extraneous and remote
material, which ought not to have been considered and
placed before the detaining authority, has clearly vitiated
the subjective satisfaction of the detaining authority.
16. The Hon'ble Supreme Court, in Rekha Vs.
State of Tamil Nadu reported in (2011) 5 SCC 244, has
held that preventive detention is a serious encroachment on
personal liberty, and the subjective satisfaction of the
detaining authority must be based on cogent and relevant
material. The Court further observed that if the ordinary
criminal law is sufficient to deal with the situation, the
detention order is liable to be quashed.
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17. In the instant case, the detaining authority has
failed to record any valid reason as to why the ordinary
penal provisions under the BNS, 2023 were inadequate to
prevent the petitioner's alleged activities. The non-
consideration of bail conditions, the vague nature of the in-
camera statements, the failure to consider the earlier
orders of this Court, and the reliance on extraneous
material, indicate that the authority mechanically applied
its mind without examining the actual impact of the
incidents. This failure shows the non-application of mind
while arriving at the subjective satisfaction by the detaining
authority. The material relied upon is insufficient to
categorize the petitioner as a "Dangerous Person" within
the meaning of the MPDA Act.
18. We are, therefore, of the considered view that
the detention order and the subsequent confirmation order
is unsustainable and are liable to be quashed and set
aside. Accordingly, we pass the following order:
ORDER
(i) The Writ Petition stands allowed.
(ii) The detention order dated 26.02.2026 bearing No.
2026/CB/MPDA/DET-04/CR-18, passed by Respondent
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No. 1- Commissioner of Police, Chhatrapati Sambhajinagar,
approval order dated 09.03.2026 and confirmation order
dated 14.05.2026 bearing No. MPDA-0226/CR No.
139/Spl-3B, passed by Respondent No. 2- State
Government are hereby quashed and set aside.
(iii) The Petitioner- Akshay @ Bhaiya S/o Ramesh Wahul
shall be released forthwith, if not required in any other
offence.
(iv) Rule is made absolute in the above terms.
[VAISHALI PATIL-JADHAV] [SANDIPKUMAR C. MORE]
JUDGE JUDGE
DDC
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