Feroz Khaja Mohammad Shaikh v. The State of Maharashtra

4. (1992) 4 SCC 154 (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply - (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless - (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe - (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory

9. The provisions of the MPDA Act, relevant to the present case, are as under: Section 3. Power to make orders detaining certain persons - (1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. (2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order such District Magistrate or Commissioner of Police may also if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section: Provided 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, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding (six months) at any one time. (3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government. xxxxxxxxxxx Section 5A. Grounds of detention severable - Where a person has been detained in pursuance of an order of detention under section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly - (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are -

(i) vague,

(ii) non-existent,

(iii) not relevant,

(iv) not connected or not proximately connected with such person, or

(v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the State Government or an officer mentioned in sub-section (2) of section 3 making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds and made the order of detention; (b) the State Government or such officer making the order of detention shall be deemed to have made the order of detention under the said section 3 after being satisfied as provided in that section with reference to the remaining ground or grounds. xxxxxxxxxxx

8. Grounds of order of detention to be disclosed to persons affected by the order - (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government. (2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.

9. Constitution of Advisory Boards - (1) The State Government shall, whenever necessary, constitute one or more Advisory Boards for the purposes of this Act. (2) Every such Board shall consist of a Chairman and two other members, who are, or have been, judges of any High Court or who are qualified under the Constitution of India to be appointed as judges of a High Court.

10. Reference to Advisory Boards - In every case where a detention order has been made under this Act, the State Government shall within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9 the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in the case where the order has made by an officer, also the report by such officer under sub-section (3) of section 3.

11. Procedure of Advisory Boards - (1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the State Government or from any person called for the purpose through the State Government or from the person concerned, and if, in any particular case, the Advisory Board considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the State Government, within seven weeks from the date of detention of the person concerned. (2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned. (3) When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board. (4) The proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential. (5) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board.

12. Action upon report of Advisory Board - (1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the State Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period prescribed by section 13, as it thinks fit. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the State Government shall revoke the detention order and cause the person to be released forthwith.

13. Maximum period of detention - The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed under section 12, shall be (twelve months) from the date of detention.

14. Revocation of detention orders - (1) Without prejudice to the provisions of section 21 of the Maharashtra General Clauses Act, a detention order may, at any time, be revoked or modified by the State Government, notwithstanding that the order has been made by an officer mentioned in sub-section (2) of section 3. (2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order under section 3 against the same person, in any case, where fresh facts have arisen after the date of revocation or expiry, on which the State Government or an officer, as the case may be, is satisfied that such an order should be made.

10. The ready reference chart of dates and events provided by the learned Addl. PP, and which are not disputed, is scanned and reproduced hereunder:

11. Considering the grounds for challenge set out by the Petitioner below paragraph 5 (i) to (vii), we need to deal with the contention of the Petitioner that his representation is pending before the State Government. In an argument, over almost two hours, the learned Advocate for the Petitioner advanced this submission as her last and final ground, contending that the Petitioner's representation dated 25th February, 2025, made against the detention order, is still pending. However, neither was any request made to direct the State Government to decide the said representation, nor was any such prayer included in the present Petition. For clarity, we are reproducing both the prayers put forth by the Petitioner below paragraph 8, as under: PRAYERS IN THE PETITION (a) That this Honourable Court be pleased to issued a Writ of Habeas Corpus or any other appropriate writ, order or direction quashing and setting aside the said order of detention No. bering No.DO/2025/MPDA/DET- 01/CB-31, dated 03.02.2025, and be pleased to direct that the detenu HUSSAIN FEROZ SHAIKH be set at liberty; (b) For such further and other orders as the case may require. Nevertheless, we would deal with the aforesaid contention in the light of the provisions of the MPDA Act at a later stage in this judgment.

12. The scheme for issuing the detention order and the remedies available to the detainee, are well prescribed under the MPDA Act. In the present case, sub-sections (2) and (3) of Section 3 are referable since the Commissioner of Police, Nashik, dealt with this case invoking sub-section (2) and passed an order under sub-section (3), on 3rd February, 2025.

13. The sequence of dates and events would clearly indicate that an FIR bearing no.406 of 2024 was registered on 4th September, 2024 with the Nashik Road Police Station, Nashik. Keeping in view the reputation of the Petitioner of indulging in crimes, which is well described in paragraph nos.[1] to 3, 3(A), 3(B), 4(A) and subsequent narration in the impugned order, no victim was willing to come forward and record a statement. However, two victims came forward and recorded their statements “incamera” on 14th January, 2025. The verification of their statements took place on 15th January, 2025. The proposal for detention of the Petitioner was sent by the Nashik Road Police Station on 16th January, 2025. The Commissioner of Police, Nashik considered the entire material placed before him and after a detailed assessment and appreciation of the records, passed a detailed and reasoned order dated 03/02/2025, running into 19 pages.

14. In the light of the above, the contention of the Petitioner that, after the offence was registered on 4th September, 2024, a huge delay was caused by the Police Authorities in passing the detention order, would not be a sustainable contention. It cannot be overlooked that after the victims mustered courage to record their statements, in relation to the events that occurred in the first and second week of December, 2024, we do not find that there has been such delay in recording the statements of the two witnesses on 14th January, 2025 in relation to the incidents that took place at Subhash Road in the first week of December, 2024 and near Vihitgaon Bridge in the second week of December, 2024.

15. The next ground taken by the Petitioner is that though the FIR contains an averment that the detainee gave a blow on the forehead of the Complainant with a koyta causing a profusely bleeding injury requiring five stitches, a CT brain scan was not done. We find that this contention does not deserve consideration at this stage since this aspect would be looked into by the Trial Court when the trial commences with reference to the FIR no.406 of 2024.

16. The third ground raised by the Petitioner is that the in-camera statements are false and fabricated. We do not find any merit in this submission, keeping in view that two witnesses have recorded their in-camera statements and have not come forward to retract such a statement or contend that their statements were wrongly recorded or that they have never made such a statement. The entire material available before the Detaining Authority was to the subjective satisfaction of the said Authority which has analysed the material threadbare and has passed a 19 pages well reasoned and detailed order.

17. The fourth ground raised by the Petitioner is that the Detaining Authority should have considered the circumstances and should have taken a call as to whether the preventive detention was necessary or required. In our view, since detention amounts to restricting the freedom and personal liberty of an individual, it is imperative that the Detaining Authority should pass the order of detention, as a last resort.

18. In this aspect, we find that the Detaining Authority has noticed that the Petitioner has been consistently indulging in various acts/serious offences such as voluntarily causing grievous hurt by dangerous weapons, voluntarily causing hurt, wrongful restraint, intentional insult with the intent to provoke breach of peace, attempt to murder, possession of arms without a license, violation of prohibitory order, assault with criminal force upon a woman with the intent to outrage her modesty, disobedience to an order duly promulgated by a public servant, criminal intimidation, extortion, robbery, dacoity, criminal conspiracy, committing an offence under Section 3(1)(ii), 3(2) and 3(4), being member of unlawful assembly, rioting, armed with deadly weapon, committing an offence under Section 118 (1) and 118 (2) of the BNS Act and with a common intention under Section 3(5) of the said Act. Several other grave and serious instances of crimes and dangerous activities, have been discussed by the concerned Authority, in the impugned order.

19. It was also noted that the Petitioner has committed offences under Section 307 (two cases), 323, 326, Section 34 of the IPC, read with Section 4 and 25 of the Arms Act, read with Section 135 of the MPDA Act. Several cases were registered under the provisions of MCOCA Act. Few cases of committing offence against women, have also been registered with the Police Station. In these circumstances, we do not find that the fourth ground deserves any consideration.

20. The fifth ground has been strenuously canvassed by the Petitioner by contending that once an order was made under Section 3(3) of the MPDA Act, the said aspect must be reported to the State Government immediately and unless the said order is approved by the State Government, such order would not continue beyond 12 days from the date of its passing.

21. The undisputed sequence of events are that the detention order was passed on 3rd February, 2025. The same was forwarded by email on the same day, i.e., 3rd February, 2025. A physical copy was served on the Government by the Detaining Authority under Section 3(3) on 7th February, 2025, i.e., on the fourth day after the order of detention was passed. The Petitioner was detained on 8th February, 2025. The Government approved the order on 12th February, 2025. In view of the above, we do not find that the fifth ground could be entertained in the light of undisputed factors.

22. In the sixth ground, the Petitioner contended that the offences allegedly committed by him and which have been considered by the Detaining Authority while passing the impugned order of detention, should have been verified by the Authority concerned. Whether five stitches were applied by the Doctor on the forehead of the victim? Moreover, such an incident may amount to a breach of law, but would not amount to a breach of public order.

23. We are not impressed by ground no.6 for the reason that a detailed and reasoned order passed by the Competent Authority on the basis of the record available before it, can not be doubted. Merely because the Petitioner feels that a different view is possible, would not mean that the view taken by the Competent Authority on the basis of a well reasoned order, could be branded as being perverse (Syed Yakoob v/s. K.S. Radhakrishnan[5] and Surya Dev Rai v/s. Ram Chander Rai[6] ).

5. AIR 1964 SC 477

6. AIR 2003 SC 3044: 2003 (6) SCC 682

24. The learned Advocate for the Petitioner has contended in the open Court that the seventh ground raised by the Petitioner is the best ground. She submits in the light of the view taken in Vimalchand Jain (Supra) and Jaseela Shaji (Supra), that his representation was not considered by the State Government.

25. In Vimalchand Jain (Supra), the rules provided two distinct safeguards to a detainee. One is that his case must be referred to an Advisory Board for its opinion, if it is sought to detain him for a period longer than three months. The second safeguard was that he should be accorded the earliest opportunity of making a representation. The Hon’ble Supreme Court concluded that there was no material available to show that the State had considered the representation of the Petitioner before making the confirmation order, under the relevant rules.

26. In Jaseela Shaji (Supra), it was concluded that though all documents need not be furnished to the detainee, the documents relied upon by the Detaining Authority should be tendered to the detainee to make an effective representation. Failure or even delay in furnishing those documents would amount to denial of the right to make an effective representation. By referring to the provisions of the COFEPOSA, the Hon’ble Supreme Court held that when the representations were received on 15th May, 2024 and 22nd May, 2024, there was a delay of 27 days in deciding the representation by the Central Government and 20 days by the Detaining Authority. No explanation as to what caused such a delay, is offered in the counter affidavit. It was, therefore, held in the light of Vijaykumar v/s. State of Jammu and Kashmir[7], that the State Government must ensure that the representation is transmitted quickly to the Central Government and should be decided expeditiously. Such representations can be forwarded to the appropriate Authority, either by email or at least a physical copy by speed post/A.D.

27. In the case in hands, which is covered by the provisions of the MPDA Act, sub-section (3) of Section 3 mandates that when any order is made under this Section by an Officer, he shall forthwith report the fact to the State Government together with the grounds on which the order has been made. Such order would not remain in force for more than 12 days after its making, unless the State Government approves it. Under Section 8, when a person is detained in pursuance of a detention order, the Authority

7. (1982) 2 SCC 43 making the order shall, as soon as possible and not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall offer him the earliest opportunity to make a representation against the order to the State Government.

28. It is undisputed that the impugned order, after being passed on 3rd February, 2025, and transmitted via email to the appropriate Government on the same day, resulted in the detention of the Petitioner on 8th February, 2025. There is no averment by the Petitioner that he was not communicated the grounds of detention. The Jail Superintendent has filed an affidavit in reply dated 16th April, 2025. The detention order and the committal order was received by the Jail from the Nashik Road Police Station on 7th February, 2025 and the detainee was confined in the said prison with effect from 8th February, 2025. The Petitioner tendered his common representation to the Chairman, Advisory Committee, through Section Officer, Section – 10, Home Department (Special), Mantralaya and a copy to the Additional Chief Secretary, Government of Maharashtra. In the said common representation, the Petitioner has put forth the following three prayers: (a) That this Hon'ble Advisory Board be please to considered my representation of the petitioner under section 11 of the MPDA Act, and be please to give a report in favour of the petitioner and the State Government be please to release the petitioner u/s. 12 of MPDAAct; (b) The State Government of Maharashtra be pleased to consider the Petitioner's representation under Section 14 of the M.P.D.A. Act and be please to revoke the impugned detention order passed against the Petitioner dated 03/02/2025 by the Commissioner of Police Nashik City, Nashik.

(c) That Advocate Aisha Zubair Ansari be please to allow to appear on behalf of the petitioner.

29. Under Section 9, the State Government has to constitute Advisory Boards and each such Board has to consist of a Chairman and two such Members, who are, or have been, Judges of the High Court or are qualified under the Constitution of India to be appointed as Judges of the High Court.

30. The report of the Advisory Committee, comprising of Justice A.S. Chandurkar (as His Lordship then was), as Chairman, Justice P.V. Hardas (Retd.), and Justice R.M. Savant (Retd.), was submitted to the State Government.

31. Section 10 of the MPDA Act specifically empowers the State Government to place before the Advisory Board, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, as well as the report of the Officer who made the order under Section 3(3). It is noteworthy that Section 10 mandates the State Government to place before the Advisory Board, the grounds on which the order has been made and his representation, if any, within three weeks from the date of the detention of the person under the said order.

32. The Petitioner was detained on 8th February, 2025. The Petitioner submitted a representation on 25th February, 2025. The same was promptly placed before the Committee in compliance of Section 10 along with the report of the Officer who made the order and the grounds on which the order was passed. The three Members Advisory Board, conducted a hearing on 26th February, 2025. The Petitioner as well as his Advocate Ms. Ansari, were permitted to address the Advisory Board through the video conferencing mode. In paragraph 5, it is specifically stated that his representation (identically made to the State Government and the Advisory Board) was also considered. The submissions of Ms. Ansari, which are identical to the submissions made before our Court, were also recorded in paragraph 5. The Advisory Board perused the in-camera statements recorded on 14th January, 2025 and which were verified on 15th January, 2025. The proposal for detaining the Petitioner submitted to the Authority on 16th January, 2025, before passing the detention order on 3rd February, 2025, was also considered. The three Members Advisory Board did not find any delay in the matter.

33. Under Section 11 of the MPDA Act, the Advisory Board adhered to the prescribed procedure and has tendered its report. Under Section 12 of the MPDA Act, after the Advisory Board submits its opinion, showing sufficient cause for the detention of a person, the State Government may confirm the detention order and continue the detention of the person for a period not exceeding 12 months, as is prescribed under Section 13. The Deputy Secretary, Government of Maharashtra has tendered an affidavit in reply dated 11th June, 2025 stating therein that the identical representation dated 25th February, 2025 tendered by the Petitioner to the Advisory Board, was placed before the Board on 26th February, 2025 by the Government. After the Committee submitted its confidential report dated 28th February, 2025 to the Government, which was considered by the Government of Maharashtra, a confirmation order was passed on 6th March, 2025 recording a finding that the detention should continue for 12 months from the date of the detention of the Petitioner with effect from 8th February, 2025. The Additional Chief Secretary had considered the report of the Advisory Board and proceedings which included the representation of the Petitioner dated 25th February, 2025 and passed the confirmation order on 6th March, 2025.

34. In so far as Section 14 is concerned, the Petitioner has neither pleaded nor put forth any prayer for seeking any direction to the State Government to Revoke the detention order. So also, no application has been made by the Petitioner for seeking orders under Section 14. While concluding her submissions, the learned Advocate for the Petitioner, tried to develop an argument that the Petitioner’s representation be considered under Section 14. We are afraid, this cannot be done. The representation of the Petitioner dated 25th February, 2025 was tendered by him, upon receiving the notice of hearing dated 20th February, 2025, from the Advisory Board. He was advised to file his representation. He filed an identical representation, which aspect is elaborately discussed herein above. There is no representation of the Petitioner pending with the State.

35. In view of the above, we do not find any merit in this Petition. This Writ Petition is, therefore, dismissed. Rule is discharged.

36. In the event the Petitioner desires to file a representation under Section 14, the same may be considered by the Competent Authority, if permissible in law, on it’s own merits. All contentions of the stake holders are kept open, including the aspect of the maintainability of such a representation. (GAUTAM A. ANKHAD, J.) (RAVINDRA V. GHUGE, J.)