Nitesh Uttamrao Dambhare vs The State Of Maharashtra & Anr.

JUDGMENT : (Per : Urmila Joshi-Phalke)

Heard learned counsel Shri R.M.Patwardhan for the petitioner and learned Additional Public Prosecutor Shri V.A.Thakare for respondents/State. Rule. Rule made returnable forthwith. Heard finally by consent.

By this petition, the petitioner challenges order impugned dated 30.1.2026 passed by respondent No.2 - The District Magistrate at Wardha and order of confirmation dated 10.3.2026 passed by respondent No.1 - The State of Maharashtra, through its Secretary, Home Department (Special), Mantralaya, Mumbai and prays for releasing him forthwith from jail.

As per contentions of the petitioner, Crime No.907/2025 was registered against him under Sections 65(e) and 77(a) of the Maharashtra Prohibition Act, 1949 and, thereafter, action was taken against him by proposing his detention by the Assistant Police Inspector, Samudrapur dated 2.12.2025 assigning reasons that he is continuously involved in various illegal activities and for curbing his activities, who is causing disturbances to peace and tranquility within the area of Wardha district, preventive detention action is required against him. Respondent No.2 by invoking powers under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous Persons and Video Pirates Act, 1981 (for short “the Act of 1981”) passed order dated 30.1.2026 directing detention of the petitioner on allegation that the activities of the petitioner are that of bootleggers and as such prejudicial to maintain public order and, therefore the petitioner be detained in the Amravati District Prison.

Respondent No.2 further directed the detention of the petitioner in Amravati Prison during compliance of requirements of law and served the petitioner with grounds of detention and made the petitioner aware of the fact that he can make representation before respondent No,.2 till the order passed is approved by respondent No.1.

Thereafter, the petitioner was taken to the Amravati Prison and the matter was referred by respondent No.2 to respondent No.1.

As per provisions, detenu is required to be referred to Advisory Board for the purpose of considering case of Detaining Authority and accordingly it was referred.

It is contended by learned counsel for the petitioner that all Authorities have not considered prevailing circumstances and have not given any reasoning regarding prevailing circumstances and without assigning any reasons passed the detention order as well as confirmation order and the Advisory Board has also not considered whether there was reference of the prevailing order, prevailing circumstances or likely prevailing circumstances and, thereby approved the order as well as confirmed the order. He submitted that his act of respondent No.1 and 2 is against principles laid down by this court in Criminal Writ Petition No.223/2025 (Akshay Bhaskar Sahare vs. State of Maharashtra and anr), decided on 30.9.2025 which was subject matter before the Hon’ble Apex Court also and the the Hon’ble Apex Court has confirmed the said order. Thus, he submitted that considering the law laid down by this court, the orders passed by the Authorities are not within the parameters of said guidelines issued by this court and, therefore, the entire action of respondent Nos.1 and 2 deserves to be quashed and set aside.

Per contra, learned APP for respondents/State strongly opposed the said contentions and submitted that a proposal was submitted with detailed reasons by the Authorities. It was considered by respondent No.2 and subsequently it was forwarded to respondent No.1 for approval. The confirmation order specifically states about reasoning and also considered circumstances why the detention of the present petitioner is required. He submitted that there was continuous illegal activities on the part of the petitioner and, therefore, the said action was taken. The Advisory Board was constituted under Section 9 and the Advisory Board has considered all these aspects in detail and passed the order and, therefore, no illegality is committed by respondent Nos.1 and 2 and, therefore, the writ petition being devoid of merits is liable to be dismissed.

The petitioner has challenged the order of detention passed under Section 3 and so also confirmation order passed under Section 12 of the Act of 1981 and order of the Advisory Board under Section 9 of The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous Persons and Video Pirates Act, 1981. The petitioner contended that in one of cases, respondents have justified that circumstances prevailing were such that the petitioner could be said to have acted or is like to act in a manner prejudicial to maintenance of public order.

In the background of rival submissions, it is necessary to examine whether the acts of the petitioner were such that it would require preventive detention.

This court in the case of Akshay Bhaskar Sahare (supra) has considered this aspect in detail and held that the Advisory Board as well as confirmation Authority shall consider prevailing circumstances or circumstances which are likely to prevail while passing such order. Section 3 of the Act of 1981 deals with order of preventive detention, which reads as under:

Thus, sub-section (1) stipulates that the State Government is authorized to issue an order of detention against an individual, provided it is satisfied that such detention is imperative to prevent the individual from engaging in conduct prejudicial to the maintenance of public order.

Whereas, sub-section (2) provides that the State may empower District Magistrate or Commissioner of Police to exercise powers conferred by sub-section (1). The State Government is, however, required to record a satisfaction that the circumstances prevailing or likely to prevail in any area are such, that would require conferment of powers of the State Government upon the jurisdictional District Magistrate or Commissioner of Police in order to prevent any person from acting in a manner prejudicial to the maintenance of public order.

Proviso to sub-section (2) stipulates that the period specified in the order made by the State Government under this sub-section shall not, in the first instance, exceed six months, but the State Government may amend such order to extend such period from time to time not exceeding three months at any one time. In other words, the State Government, by such order, may confer its powers under sub-section (1) of Section 3 upon District Magistrate or Commissioner of Police for a period, not exceeding six months with a rider of permissible extension from time to time, but not exceeding three months at one time.

Thus, the State Government will have to record a satisfaction that in a particular area, within the local limits of jurisdiction of District Magistrate or Commissioner of Police, the circumstances prevailing or likely to prevail are such that would require preventive detention of a person, if contingency so arises. The order of detention must, therefore, explicitly disclose the existence of such circumstances or the reasonable likelihood thereof, wherein the possibility of an individual or individuals acting in a manner detrimental to the maintenance of public order is manifest. In such situations, where the contingency materializes, the officers empowered under sub-section (2) of Section 3 shall be vested with the necessary authority and powers conferred by the State Government to prevent the individual(s) from engaging in conduct as described in sub-section (1).

Similarly, sub-section (3) of Section 3 provides that when an order is passed under sub-section (2), the officer concerned shall forthwith report the said fact to the State Government, together with the grounds on which the order has been made, as also, such other particulars that would have bearing on the matter. Sub-section (3) further provides that no such order shall remain in force for more than twelve days unless, in the meantime, it has been approved by the State Government.

Thus, overall reading of Section 3 indicates that the prime responsibility of passing order of preventive detention lies with the State Government.

In the light of the above said facts if the detention order passed in the present case is perused, it nowhere discloses the contingency arising before the Authority to pass the detention order. The said detention order for reference is reproduced as under:

Our attention was also invited by learned counsel for the petitioner towards the order passed by the State Government conferring its powers upon the District Magistrate or Commissioner of Police of the concerned area, as also, the order of approval to contend that both the orders are passed mechanically. One of the reasons attributed in support of argument is that these two orders, which the State Government has passed, are identical. The approval order passed by respondent No.1 dated 10.2.2026 which is reproduced as under:

We have gone through both the orders to find that what is argued whether is correct and perusal of the detention order as well as the approval order reveals that the State Government has picked up a sentence from sub-section (2) saying that the Government of Maharashtra is satisfied that having regard to the circumstances prevailing or are likely to prevail in it and thereby approved the detention order.

This aspect in detail is considered by this court in the case of Akshay Bhaskar Sahare (supra) by referring the decision of the Hon’ble Apex Court in the case Abhay Shridhar Ambulkar vs. S.V. Bhave, Commissioner of Police and ors, reported in (1991)1 SCC 500 wherein in paragraph Nos.7,8, and 9 it is observed as follows:

(Emphasis now).

By referring the decision of the Hon’ble Apex Court, this court has held that there are two set of circumstances; one is, prevailing, and other is, likely to prevail. The State Government, therefore, will have to specify in the order or otherwise as to what are the circumstances that are prevailing that would require District Magistrate or Commissioner of Police to exercise powers of the State Government. Depending on such circumstances, the State Government will have to then determine the period for which powers should be conferred upon the officers mentioned in sub-section (2).

Another set of circumstances will cover the circumstances that are likely to prevail in future. In such an eventuality, the State Government must specify in the order or otherwise the future date/period where such circumstances are likely to prevail, that would require the officers mentioned in sub-section (2) to exercise powers of the State Government. The duration of such exercise shall be contingent upon the nature and anticipated persistence of the circumstances likely to prevail in future.

Thus, considering observations of this court and whatever held by the Hon’ble Apex Court that power to make an order of detention primarily rests with the Central Government or the State Government. The Court then mentioned about the circumstances under which the State Government could confer powers upon District Magistrate or Commissioner of Police. The Court highlighted necessary ingredients of sub-section (2) to confer powers. The Court held that if the Government wants that District Magistrate or Commissioner of Police should exercise powers during present or future period, it must be satisfied with the circumstances that are prevailing or likely to prevail during that period.

In that context, if these orders are examined, admittedly, neither the detention order nor the approval order nor the order of the Advisory Board discussed about the prevailing circumstances or the circumstances likely to prevail. On the contrary, we noticed that the similar orders are passed mechanically not only by the Detaining Authority but by the Approval Authority as well as by the Advisory Board and this is done despite the detailed order was passed by this court in the case of Akshay Bhaskar Sahare (supra) which was questioned before the Hon’ble Apex Court and the Hon’ble apex Court has declined to interfere with the observations of this court.

The State Government had challenged the judgment of this Court before the Hon'ble Apex Court in the case of State of Maharashtra vs. Akshay Bhaskar Sahare in SLP (Cri) No.18690/2025. The Supreme Court, vide order dated 21.11.2025, thought it proper to not interfere with the judgment. Thus, the judgment of this Court attained finality on 21.11.2025. Despite such status, on 13.03.2026, again similar type of the order was passed by the authorities.

In that circumstances, we do not find any substance in the argument of learned APP for the respondents/State and, therefore, the petitioner has made out a case to show that mechanical orders are passed by the Detaining Authority. NO specific instances are recorded as far as illegal activities of the petitioner are concerned. There is no adherence to the observations made by this court in the case of Akshay Bhaskar Sahare (supra) and the similar types of orders are passed without explaining any existing circumstances as well as the circumstances likely to prevail and on these grounds, the petition deserves to be allowed. Accordingly, we proceed to pass following order:

The writ petition is allowed.

The order passed by respondent No.2 - The District Magistrate at Wardha Dated 30.1.2026 approved on 10.2.2026 and confirmed by the Advisory Board on 10.3.2026 are hereby quashed and set aside.

The petitioner be set at liberty forthwith.