Bombay High Court: In the present petition, the petitioner, who was the original detenue, challenged the detention order passed by the District Magistrate, alleging it was deliberately withheld and served only after his release on bail, nearly 11 months later, despite being in judicial custody at the time of issuance. The Division Bench of Vibha Kankanwadi and Hiten S. Venegavkar*, JJ., while allowing the petition held that the criminal proceedings, which formed the basis of the impugned detention action, resulted in the petitioner being kept in illegal detention for over a year, thus affecting his fundamental rights to life and personal liberty. The Court emphasised that the authorities abused the preventive detention law, an extraordinary measure meant to be used sparingly against genuine threats to public order.
Background:
The case arose from a detention order passed while the petitioner was already in judicial custody in connection with a criminal case. He remained in custody for many months. Although the detention order was passed on 18-07-2024, it was not served immediately. It was served only after the petitioner was released on bail on 23-05-2025, nearly 11 months later. The petitioner raised a grievance that the authorities, despite knowing he was in jail, failed to serve the order during custody and instead held it back until his release, so they could detain him again under preventive detention.
The petitioner filed the petition challenging the validity of the detention order, which relied on two criminal cases, two in-camera statements, and earlier instances. It was contended that the petitioner was not connected with one of the cases mentioned, which the authorities later described as a typographical error. The petitioner argued that such an error could not be ignored, as the order itself relied on that case. He also contended that the in-camera statements were vague and referred only to isolated incidents that did not disturb public order.
Further, several important documents were supplied in English, though the petitioner was a Marathi medium student and understood only Marathi. He claimed that not providing translations violated his constitutional right to make an effective representation under Article 22(5) of the Constitution. He also argued that the delay in executing the order defeated the purpose of preventive detention and showed non-application of mind and reliance on irrelevant material. He prayed for release, stating the detention was illegal.
The State opposed the petition, arguing that preventive detention could be ordered even for someone already in custody, provided the authority was aware of the custody and believed the person would engage in prejudicial activities upon release. It referred to Section 13 of the Maharashtra Prevention of Dangerous Activities Act, 1981 (‘MPDA Act’), stating that detention begins from the date of actual custody and not from the date of the order. The State maintained that the reference to the unrelated case was a typographical error and did not affect the authority’s satisfaction. It further argued that there was sufficient material to show that the petitioner was a dangerous person likely to engage in prejudicial activities.
Analysis and Decision:
The Court emphasised that the preventive detention is an exceptional measure affecting personal liberty and must strictly conform to constitutional and statutory requirements. The Court further noted that Article 22(4) of the Constitution and Section 13 of the MPDA Act provides that the maximum permissible period of detention iss to be recognised from the date of detention.
The Court referred to Haradhan Saha v. State of W.B., (1975) 3 SCC 198 wherein it was held that the making of the detention order and actual detention were distinct concepts. The Court emphasised that detention commenced only when the order was executed and the person was physically taken into custody. The Court also noted that the MPDA Act followed the same principle and clarified that the decisive date for computing detention was the date of execution, not the date of signing.
The Court reiterated that Section 13 of the MPDA Act stated the maximum period of detention shall be six months from the date of detention. However, the conduct of authorities in keeping the order in cold storage and serving it only on 27-05-2025 after the petitioner was released on bail was without any plausible explanation for the delay. The Court further observed that the unexplained delay broke the live link between prejudicial activities and the necessity of detention, rendering it illegal. Moreover, the live and reasonable nexus between the alleged activities and the purpose of detention was irretrievably lost due to the unexplained delay of nearly over a year.
The Court found another infirmity, where the affidavit in reply confirmed the petitioner was not connected with the case mentioned. The Court observed that the plea of typographical error or inadvertent mistake could not justify the absence of subjective satisfaction or proper application of mind. The Court further noted that the two in-camera statements, even if accepted, referred only to isolated incidents constituting a breach of law and order, and hence a breach of law and order did not, by itself, amount to a disturbance of public order.
The Court found another violation where the petitioner pleaded that crucial documents like judicial remand orders and other relied-upon papers were supplied only in English, though he had studied in Marathi and understood only Marathi. The Court held that the requirement of Article 22(5) of the Constitution was that grounds of detention and relied-upon documents must be effectively communicated in a language the detenue understands to enable a purposeful and effective representation.
The Court, upon perusal of the entire material on record and the detention order, found it to be a fit case for exercising jurisdiction under Article 226 of the Constitution to impose exemplary costs on the detaining authority and the State Government. The Court observed that the criminal proceedings, which formed the basis of the detention action, resulted in the petitioner being kept in illegal detention for over a year, affecting his fundamental rights to life and personal liberty.
The Court concluded that the authorities abused the preventive detention law, an extraordinary measure meant to be used sparingly against genuine threats to public order and keeping the detention order pending for months and serving it at the moment of release amounted to a colourable exercise of power.
The Court, therefore allowed the petition, quashed the detention and related orders, and directed the petitioner’s immediate release if not required in any other offence. The Court further ordered the State to pay Rs 2,00,000 as compensation and recover the amount from the detaining authority’s salary for passing the illegal order.
[Dikshant v. State of Maharashtra, Criminal Writ Petition No.1100 of 2025, decided on 01-10-2025]
*Judgment authored by: Justice Hiten S. Venegavkar
Advocates who appeared in this case:
For the Petitioner: Harshal P. Randhir, Advocate
For the Respondent: P. R. Bharaswadkar, APP
Buy Constitution of India HERE
It is not enough to pay compensation to the victim but it should be recovered from the officers who sre responsible for it, especially the IPS officers. Then only the police will realise. Otherwise when the amount is pdidvfrom government coffers. Nobody will be bothrred