Bombay High Court
Shaikh Mehboob Alias Goru Shaikh Babu vs The State Of Maharashtra And Others on 10 March, 2026
2026:BHC-AUG:10485
1 29.Cri.WP.1516.2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1516 OF 2025
Shaikh Mehboob @ Goru S/o
Shaikh Babu ... PETITIONER
VERSUS
1. The State of Maharashtra
Through its Secretary,
Home Department, Mantralaya, Mumbai
2. The District Magistrate,
Nanded, Tq. & Dist. Nanded
3. The Superintendent of Jail,
Central Jail, Harsool, Aurangabad
Dist. Aurangabad ... RESPONDENTS
...
Advocate for the Petitioner : Mr. Dhananjay S. Patil
APP for Respondent Nos. 1 to 3 : Mr. M. A. Aher
...
CORAM : SANDIPKUMAR C. MORE &
ABASAHEB D. SHINDE, JJ.
Date of reserved 04.03.2026
Date of pronouncement : 10.03.2026
JUDGMENT ( ABASAHEB D. SHINDE, J.) :
1. Heard.
2. Rule. Rule is made returnable forthwith. With the consent of
the parties the petition is taken up for final hearing at the stage of
admission.
2 29.Cri.WP.1516.2025.odt
3. By this writ petition the petitioner is taking exception to the
detention order dated 28.08.2025 bearing No.2025/RB-1/Desk-2/T-
4/MPDA/CR-52, passed by the respondent No.2 – District
Magistrate, Nanded 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 (for short the MPDA Act), as well as approval
order dated 05.09.2025 and confirmation order dated 17.10.2025
bearing No. MPDA-0925/CR-496/Spl-3B passed by respondent
No.1- State Government, in exercise of powers under Section 12(1)
of the MPDA Act, by the impugned detention order, the petitioner
has been directed to be 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 Act, holding his activities
prejudicial to the maintenance of public order.
4. The impugned detention order has been passed on a proposal
submitted by Police Inspector, Police Station Nanded Rural, Nanded.
The proposal has been routed through Sub-Divisional Police Officer,
Sub-Division Itwara, Nanded and Superintendent of Police, District
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Nanded and eventually placed before the respondent No.2 – District
Magistrate, Nanded who claims to have arrived at a subjective
satisfaction that the petitioner’s detention is necessary to prevent
him from acting in a manner prejudicial to public order. The record
reflects registration of eight (8) past criminal cases with one
preventive action and also one preventive detention order passed
under the MPDA Act against the petitioner which is later on quashed
and set-aside by this Court. The ready reference chart showing
criminal record of the petitioner, is reproduced hereunder :
Sr. Police C.R.No Under Section Date Arrest Bail Court Prasent
No. Station of Date Date Case No. Status.
filing
of the
case
1. Nanded 785/2021 452,354,34 IPC 02/11/ 02/11/ 03/11/ RCC No. Court
Rural 2021 2021 2021 150/2022 Pending
2. Nanded 267/2022 307 IPC 04/05/ 04/05/ 05/11/ SC No. Court
Rural 2022 2022 2022 155/2022 Pending
3. Nanded 195/2023 307, 506 IPC 22/03/ 22/03/ 13/09/ SC No. Court
Rural 2022 2022 2023 97/2023 Pending
4. Nanded 17/2024 326, 324, 504, 506, 34 06/01/ 29/01/ 29/01/ RCC No. Court
Rural IPC., 4/25 Arms Act 2024 2024 2024 1393/2025 Pending
5. Nanded 148/2024 394, 34 IPC 24/02/ 18/03/ 22/03/ RCC Court
Rural 2024 2024 2024 No.497/20 Pending
24
6. Nanded 164/2024 397, 34 IPC 04/03/ 10/03/ 24/04/ RCC No. Court
Rural 2024 2024 2024 982/2024 Pending
7. Nanded 491/2024 3/25, 7/25 Arms Act 17/06/ 17/06/ 20/08/ RCC No. Court
Rural 2024 2024 2024 1125/2024 Pending
8. Nanded 659/2025 3/25, 7/25 Arms Act 12/07/ 12/07/ 22/08/ On On
Rural 2025 2025 2025 investigati investigati
on onPreventive Action :-
Sr. No Police Station Chapter Case No Section Date Present Status
1 Nanded Rural 400/2023 107 Cr.P.C. 25/09/2023 Closed
2 Nanded Rural MPDA Proposal No 04/2024 MPDA 26/08/2024 Closed
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5. Learned counsel for the petitioner has contended that the
impugned order of detention vitiates for more than one reason.
According to learned counsel for the petitioner although the
impugned detention order refers to release of petitioner on bail in
pending cases, copies of bail applications and the bail orders were
admittedly neither placed on record nor has been considered by the
competent authority. According to the learned counsel for the
petitioner this lacks the basic principle of subjective satisfaction. To
buttress his submission he relied on the judgment of this Court in
the case of Santosh @Chingya Sainath Tarte Vs. The District
Magistrate and Ors. in Criminal Writ Petition No. 1490 of 2025
dated 04.02.2026 (Aurangabad Bench).and more particularly para.
Nos. 12 and 13 which reads thus :
“12. 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 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.35-36).
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“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 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”.
“13. 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”
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6. It is further contended by the learned counsel for the
petitioner that so far as solitary offence which has been considered
while passing the impugned detention order bearing Crime
No.659/2025 is concerned, it has been registered under Sections 3,
7 and 25 of the Arms Act. He would also submit that previously also
Crime bearing No.491/2024 was registered against the petitioner
for the same charges and the same was made basis for passsing
previous detention order dated 26.08.2024 under MPDA Act and the
same was quashed and set aside by this Court vide its judgment
dated 08.05.2025 in Criminal Writ Petition No. 2062 of 2024
(Aurangabad Bench). He relied upon para. 8 of the said judgment
which reads thus :
” 8. Perusal of the second offence i.e. Crime No.491 of 2024
would show that the petitioner was found possessing a pistol. That
fact was revealed when secret information was received at the police
station and the informant along with the other police officers went for
patrolling and arrested the petitioner around 13:45 hours on
17.06.2024. It is stated that in his personal search, a country made
pistol was found to his waist and two cartridges were found in the
pocket of his pant. The FIR, the panchanama and the statements of
witnesses which were the part of the record do not show that the
place of keeping pistol was visible to the public at large. If it would
have been seen by the people, then only there was question of terror
in the mind of people. Here, we are not considering the other merits
of the case, but only the angle of the allegation that the activity of the
petitioner was dangerous to the public. If the said pistol was in a
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sealed state attached to his waist, then people would not have
gathered about it and, therefore, from the facts of the said case, there
could not have been a subjective satisfaction for the District
Magistrate to arrive at the conclusion. Further, the petitioner has been
released on bail in respect of that offence on 21.08.2024, however,
the bail order has not been considered by the detaining authority. We
would like to rely on the decision in Joyi Kitty Joseph Vs. Union of
India and Ors., [Criminal Appeal No.___ of 2025 (arising out of
Special Leave Petition (Crl.) No.16893 of 2024) decided by the
Hon’ble Supreme Court on 06.03.2025], wherein reliance has been
placed on the decision in Ameena Begum v. State of Telangana and
others, [(2023) 9 SCC 587] and it has been observed that preventive
detention is impermissible when the ordinary law of the land is
sufficient to deal with the situation was per incuriam to the
Constitution Bench decision in Haradhan Saha vs. State of W.B.
[(1975) 3 SCC 198], in the limited judicial review available to
constitutional courts in preventive detention matters. However, in
Ameena Begum (Supra), the Hon’ble Supreme Court explained the
true distinction between a threat to “law and order” and acts
“prejudicial to public order” and it is stated that it cannot be
determined merely by the nature or quality of the act complained of,
but in the proper degree and extent of its impact on the society.
……………………….”
7. While assailing the two in-camera statements, the learned
counsel for the petitioner would urge that these statements are
absolutely vague lacking the specific dates, places and particulars
and do not disclose any material so as to warrant preventive
detention. He would further urge that the in-camera statements
were not verified properly as can be seen that the authorities are
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claiming to have verified the in-camera statements on the same day
on which those were recorded.
8. Per contra, the learned APP while supporting the impugned
detention order would submit that the affidavit-in-reply filed by
respondent No.2 – District Magistrate justifies his decision of
detaining the petitioner for a period of 12 months. According to
learned APP the petitioner is a habitual offender famous with the
title “Slumlord “, who creates terror and the residents within the
jurisdiction of Nanded Rural Police Station and the adjoining areas
remain in constant fear. He would further submit that the petitioner
is involved in criminal activities with his accomplices and committed
crimes like home invasion and indecent assault, attempted murder,
grievous bodily harm, robbery with assault, robbery, illegal
possession of a weapon, its use and possession of a firearm, etc,
resultantly, the people are not ready to come forward to lodge
complaints. He would further submit that the confidential inquiry
was conducted and it is only after giving assurance of secrecy the
two witnesses came forward to depose against the petitioner’s
criminal activities. It is further submitted that respondent No.2 –
District Magistrate has carefully examined entire material and has
arrived at a subjective satisfaction that the preventive detention of
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the petitioner is very much warranted.
9. Having heard learned counsel for the petitioner and the
learned APP for the State, we are of the considered view that
impugned detention order depicts non-application of mind at the
hands of respondent No.2 – District Magistrate while appreciating
the material. Though the order asserts that the petitioner is on bail
in all the pending cases, however, the record does not contain a
single copy of any bail application or any bail order. As held by the
Hon’ble Apex Court in the case of Ameena Begum Vs. The State of
Telangana and Ors.; (2023) 9 SCC 587, Nenavath Bujji and Ors. Vs.
The State of Telangana and Ors.; (2024) 17 SCC 294 as well as in
the case of Saksham s/o Gautam Tate Vs. The State of Maharashtra
and Ors.; (Criminal Writ Petition No.1079/2025) decided by this
Court on 08.09.2025 (Aurangabad Bench), 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
offences, the conditions imposed by competent Courts while
releasing the accused on bail and also to ascertain as to whether
there exits a real likelihood of detenue committing similar kind of
offence if released on bail. We thus find that non-consideration of all
these vital aspects vitiates the subjective satisfaction as required
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under the provisions of the MPDA Act. 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.
10. So far as the reliance placed on the in-camera statements of
witnesses ‘A’ and ‘B’ are concerned, as observed above we find that
those statements are vague as it can be seen that, those are general
in nature without specifying the dates, time or places of alleged
incidences as required by law. 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.
11. We find that, the basis for passing the impugned detention
order is Crime No.659/2025 registered under Sections 3, 7, and 25
of the Arms Act. Perusal of the allegations of the said offence would
show that the petitioner was found standing on the side of the road
under the bridge possessing a pistol . That fact was revealed when
secret information was received at the police station and the
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informant along with the other police officers went for patrolling
and arrested the petitioner around 15:10 hours on 12.07.2025. It is
stated that in his personal search, a village pistol was found with a
live cartridge on his waist. The FIR, the panchanama and the
statements of witnesses which were the part of the record does not
show that the place of keeping pistol was visible to the public at
large. If it would have been seen by the people, then only the
question of terror in the mind of people would arise. Here, we are
not considering the other merits of the case, but only from the point
of view of allegation whether the activity of the petitioner was
dangerous to public. It is trite law in view of judgment of the
Hon’ble Apex Court in the case of Ram Manohar Lohia Vs. State of
Bihar and Ors. reported in (1966) 1 SCR 709, while explaining the
term ‘Law and Order’ and ‘Public Order’ the Hon’ble Apex Court
observe thus :
“54. We have here a case of detention under R. 30 of the Defence
of India Rules which permits apprehension and detention of a
person likely to act in a manner prejudicial to the maintenance of
public order. It follows that if such a person is not detained public
disorder is the apprehended result. Disorder is doubt prevented by
the maintenance of law and order also but disorder is a broad
spectrum which includes at one end small disturbances and at the
other the most serious and cataclysmic happenings. Does the
expression “public order” take in every kind of disorders or only
12 29.Cri.WP.1516.2025.odt
some of them ? The answer to this serves to distinguish “public
order” from “law and order” because the latter undoubtedly takes
in all of them. 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 if 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. A District Magistrate is entitled to
take action under R.30(1)(b) to prevent subversion of public order
but not in aid of maintenance of law and order under ordinary
circumstances.
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 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. By using the expression
“maintenance of law and order” the District Magistrate was
widening his own field of action and was adding a clause to the
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Defence of India Rules.”
12. 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. In other words the activities must not be minor which is
peace of purely local significance, which primarily in the specific
individual and only in secondary sense public interest. 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 on the allegation that the petitioner was alleged to have
been found having pistol attached to his waist that too without the
same being visible to the public at large certainly do not have a live-
link to eminent disturbances to public order and can not justify the
preventive detention.
13. 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
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that the alleged incident dated 12.07.2025 having been found
unsustainable, it cannot be said to have such a live link. We find that
even on this ocassion the petitioner was found carrying pistol
attached to his waist which is not sufficient to hold that this act of
petitioner is prejudicial to the public order. Thus the case of
petitioner is squarely covered by the observations of this Court in
paragraph no. 8 of the judgment and order dated 08.05.2025 in
Criminal Writ Petition No. 2062 of 2024 (Supra).
14. In the light of above observations, we are of the considered
view that the impugned detention order is unsustainable in law so
also find that the approval order as well as the confirmation order of
the State Government also do not sustain. Hence, we pass the
following order :
ORDER
I. The Writ Petition stands allowed.
II. The impugned detention order No. 2025/RB-1/Desk-2/T-
4/MPDA/CR-52 dated 28.08.2025 passed by respondent
No.2 as well as the approval order dated 05.09.2025 and
the confirmation order No. MPDA-0925/CR-496/Spl-3B
15 29.Cri.WP.1516.2025.odt
dated 17.10.2025, passed by respondent No.1, are hereby
quashed and set aside.
III. Petitioner – Shaikh Mehboob @Gorya S/o Shaikh Babu
shall be released forthwith, if not required in any other
offence.
IV. Rule is made absolute in the above terms. (ABASAHEB D. SHINDE, J.) (SANDIPKUMAR C. MORE, J.) habeeb/