The Bombay High Court held that preventive detention under the Maharashtra Prevention of Dangerous Activities Act, 1981 (MPDA Act) cannot be invoked when the detenu is already on bail in the very same offence forming the basis of the detention, without the detaining authority considering whether the bail conditions are sufficient to prevent alleged prejudicial activities. The Court observed that when a person is enlarged on bail by a Competent Criminal Court, great caution should be exercised in scrutinising the validity of an order of preventive detention.
A division bench of Justices M.S. Karnik and Ajit B. Kadethankar was hearing a petition filed challenging the detention order dated 14 April 2025 issued by the Commissioner of Police. The petitioner contended that the detaining authority ought to have examined whether the said conditions granting bail were sufficient or not to curb further indulgence of the petitioner in his prejudicial activities, and the order of detention is completely silent on this aspect.
The Court noted that respondent No.1 had relied upon in-camera statements of the witnesses from which he formed an opinion that petitioner’s activities in relation to those incidents are prejudicial to the maintenance of supplies of the commodities essential to the community (i.e. supply of domestic L.P.G cylinder), which adversely affects the maintenance of public order.
The Court observed that the detaining authority had failed to consider the bail order or examine whether the bail conditions were adequate to curb any alleged future misconduct. It observed:
“… when a person is enlarged on bail by 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… There is nothing on record to indicate that after enlargement on bail, the petitioner has indulged in any criminal activities or for that matter, the prosecution has moved any application for cancellation of bail.”
The Court highlighted that the state is not without a remedy, and if the detenue is such a menace to society as alleged, the prosecution should have sought cancellation of the bail.
“The State is not without a remedy. In case the detenu is such a menace to the society as alleged then prosecution should seek cancellation of bail and/or move 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 present case,” the Court observed.
Accordingly, the High Court quashed the detention order and directed that the petitioner be released forthwith. The writ petition was disposed of.
Case Title: Haridas Shankar Gaikwad v. Commissioner of Police, Solapur & Ors. [WRIT PETITION NO.3071 OF 2025]
