The Bombay High Court (Aurangabad Bench) has clarified that a preventive detention order is legally unsustainable if the detaining authority, while aware that the detenu is on bail for the predicate offences, fails to place on record and consider the bail orders to subjectively assess the sufficiency of bail conditions in preventing future prejudicial activities. This failure constitutes non-application of mind and violates the constitutional right to effective representation. Accordingly, the Court quashed the detention order and directed that the petitioner (detenue) be released forthwith if not required in any other offence.
The Court also invalidated the detention if it is based on alleged offences under Section 4 of the Arms Act, but there is no evidence of a Central Government notification prohibiting the possession of the specific arms in the relevant area, as such a notification is a prerequisite for constituting the offence. The Court also negated the grounds for detention which was passed relying on in-camera statements that are vague, cyclostyled, and lack proper verification, as such statements cannot form a credible basis for subjective satisfaction.
The Division Bench comprising Justice Sandipkumar C. More and Justice Abasaheb D. Shinde observed that preventive detention is an exceptional measure that curtails fundamental rights and must strictly adhere to legal procedures and constitutional safeguards. The Bench noted that while the detaining authority was aware that the petitioner had been released on bail in the two predicate offences, the record did not contain the bail applications or the bail orders.
The Bench emphasised that the detaining authority must examine bail orders to assess if the imposed conditions are sufficient to prevent future prejudicial acts; the absence of such an examination demonstrates non-application of mind and denies the detenu the right to an effective representation under Article 22(5) of the Constitution.
Further, the Bench found the in-camera statements of witnesses to be ‘cyclostyled as well as vague’, general in nature, and not properly verified, rendering them an invalid basis for detention. The Bench also observed that for an offence under Section 4 of the Arms Act, a Central Government notification prohibiting the possession of such arms in the specified area is mandatory. Since no such notification was on record, the reliance on the two FIRs under the Arms Act was a serious legal infirmity that vitiated the subjective satisfaction of the detaining authority.
Lastly, the Bench distinguished between ‘law and order’ and ‘public order’, stating that an act must affect the community at large to be considered a disturbance of public order, and found no live link between the alleged incidents and an imminent threat to public order.
Briefly, the petitioner challenged a detention order which mandated his detention for 12 months under the Maharashtra Prevention of Dangerous Activities (MPDA) Act. The detention was ordered by the District Magistrate of Nanded on the grounds that the petitioner was a ‘dangerous person’ whose activities were prejudicial to the maintenance of public order. Although the initial proposal for detention was based on nine past criminal cases, the final detention order was based on two recent crimes, both under Sections 4 and 25 of the Arms Act and the in-camera statements of two witnesses.
The petitioner contended that the detaining authority failed to consider his bail applications and orders, the Arms Act cases were invalid grounds without a government notification, and the in-camera statements were vague and unverified. Opposing the same, the State argued that the petitioner was a habitual offender, the District Magistrate had arrived at a subjective satisfaction for the detention, and the in-camera statements revealed a threat to public order.
Appearances:
Advocate Abhaysinh K. Bhosle, for the Petitioner
APP S. P. Sonpawale, for the Respondent
