Dismissed¶28

Mohammad Salim Mohammad Ismail v. State of Maharashtra

Bombay HC14 Nov 2025WP/638/2025

Case brief

AI extract

What is this about?

Bombay High Court Nagpur Bench; Criminal Writ Petition No. 638 of 2025 (Mohammad Salim Mohammad Ismail v. State of Maharashtra); decided 14/11/2025 by Anil L. Pansare and Raj D. Wakode, JJ.; pre-execution stage challenge to detention order; detenu evading service; Section 3(1) COFEPOSA context via cited precedents; Alka Subhash Gadia five grounds; Vidya Bagaria; Articles 226 and 32; limited scope/glaring illegality; Arun Mahajan (DB, Principal Seat) distinguished; petition dismissed.

What did the court decide?

Equitable jurisdiction under Articles 226 and 32 would not be exercised in a case where the proposed detenu successfully evades service of the detention order. ¶17

Mohammad Salim Mohammad Ismail Vs State of Maharashtra — Writ and Judicial Review | Bombay HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶28

Issue for consideration

Whether a detenu is entitled to challenge a detention order without being arrested and without submitting to or surrendering for the order (i.e., at the pre-execution stage).

¶11

Court's answer

Equitable jurisdiction under Articles 226 and 32 would not be exercised in a case where the proposed detenu successfully evades service of the detention order.

¶17

Ratio / Principle

Courts may interfere with a detention order at the pre-execution stage only when prima facie satisfied that the order suffers one of the enumerated defects: it is not passed under the Act it purports to be passed under; it is sought to be executed against a wrong person; it is passed for a wrong purpose; it is passed on vague, extraneous and irrelevant grounds; or the passing authority had no authority to pass it.

¶17

Key takeaways

There is extremely limited scope to interfere with a detention order at the pre-execution stage, viz., only where glaring illegality is found.ratio¶25
Merely because a Division Bench of this Court has held that a detention order could be questioned at the pre-execution stage is, by itself, not a ground to set aside the order of detention.ratio¶27
Where the petitioner/detenu is evading service of the detention order and the order does not fall within the recognised categories warranting pre-execution interference, the challenge to the detention order fails.

Detailed headnote1 paragraphs

Pre-execution challenge to a detention order — Criminal Writ Petition dismissed. The Court held that although a Division Bench ruling permits entertaining a detention challenge at the pre-execution stage, that by itself is not a ground to set aside a detention order. Following the Supreme Court line (Vidya Bagaria; Alka Subhash Gadia), equitable jurisdiction under Articles 226 and 32 is not exercised where the proposed detenu successfully evades service of the order, and pre-execution interference is confined to five narrow situations (order not under the Act invoked; wrong person; wrong purpose; vague/extraneous/irrelevant grounds; incompetent authority), i.e., only where glaring illegality is found. As the petitioner was evading service and his order did not fall within those categories, the petition lacked merit and was dismissed.

¶1

2025:BHC-NAG:12045-DB

¶2

¶3

931-WP-638-2025

¶4

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR .

¶5

CRIMINAL WRIT PETITION NO. 638 OF 2025

¶6

(Mohammad Salim Mohammad Ismail Vs. State of Maharashtra & Ors.)

¶7

Office Notes, Office Memoranda of Coram,__________________________________________________________________________ appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders.

¶8

Mr. Anshuman Deshmukh (through VC) with Mr. Abuzain Shaikh, Counsel for the petitioner. Mr. A.B. Badar, A.P.P. for the respondents/State.

¶9

CORAM : ANIL L. PANSARE AND RAJ D. WAKODE, JJ. ARGUMENTS WERE HEARD ON : 11/11/2025 ORDER IS PRONOUNCED ON : 14/11/2025

¶10

Heard.

¶11

2] The question that falls for our consideration is, whether detenu is entitled to challenge detention order without he being arrested or without he submitting or surrendering for it ?

¶12

3] The Counsel for the petitioner has relied upon a judgment of the Division Bench of this Court at Principal Seat in the case of Arun Mahajan Vs. State of Maharashtra [Criminal Writ Petition No. 1823/2024 decided on 14/12/2024], wherein, the Court held that the order of detention can be entertained at pre-execution stage. The Division Bench was dealing with the order passed by the Government of Maharashtra in exercise of its powers under Section 3(1) of The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short “COFEPOSA”).

¶13

4] The learned A.P.P. submits that the judgment of the Hon’ble Supreme Court in the case of Union of

¶14

¶15

931-WP-638-2025

¶16

India And Others Vs. Vidya Bagaria [(2004) 5 SCC 577] was not brought to the notice of the Division Bench. The Supreme Court also dealt with challenge to the order of detention, which was passed under Section 3(1) of the COFEPOSA. The Supreme Court referred to various judgments, which includes judgment in the case of i] Additional Secretary To The Government of India And Another Vs. Smt Alka Subhash Gadia And Another [1992 SCC (Cri) 301]; ii] Sayed Taher Bawamiya Vs. Joint Secretary To The Govt. Of India And Others [(2000) 8 SCC 630]; iii] Union of India And Others Vs. Parasmal Rampuria [(1998) 8 SCC 402]; and iv] Sunil Fulchand Shah Vs. Union of India And Others [(2000) 3 SCC 409].

¶17

5] The Supreme Court, in Alka Subhash Gadia’s case, held that equitable jurisdiction under Articles 226 and 32 of the Constitution of India, which are discretionary in nature, would not be exercised in a case, where the proposed detenu successfully evades service of the order. The Court, however, noted that the High Courts have the necessary power, in appropriate cases, to interfere with the detention order at the preexecution stage, but the scope of interference is very limited. It was held that the Courts will interfere at the pre-execution stage with the detention orders only after they are prima facie satisfied;

¶18

i] that the impugned order is not passed under the Act under which it is purported to have been passed;

¶19

ii] that it is sought to be executed against a wrong person;

¶20

¶21

931-WP-638-2025

¶22

iii] that it is passed for a wrong purpose;

¶23

iv] that it is passed on vague, extraneous and irrelevant grounds; or

¶24

v] that the authority, which passed it, had no authority to do so.

¶25

6] Thus, there is extremely limited scope to interfere with the detention order at pre-execution stage, viz., only where glaring illegality is found.

¶26

7] In the present case, the petitioner is evading service of order. The order of detention doesn’t fall in the category mentioned above.

¶27

8] That being so, merely because the Division Bench of this Court has held that the detention order could be questioned at pre-execution stage by itself will not be a ground to set aside the order of detention.

¶28

9] Thus, we do not find merit in the petition. The petition is accordingly dismissed.

¶29

(JUDGE)

¶30

(JUDGE)

¶31

Sumit

Mohammad Salim Mohammad Ismail v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

Mohammad Salim Mohammad Ismail v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Gopal S/O. Parasram Chavhan Vs State of Mah. Thr. Its Secretary, Ministry of Rural Deovt. Dept. Mantralaya MUMBAI-32 and Others

Sheikh Imran @ Golu Sheikh Mehemud Vs State of Mah. Thr. Pso Ps Yavatmal (City) Dist.Yavatmal

Equitas Small Finance Bank Ltd. Thr Its Authorized Officer of the Branch Bhimrao Ramrao Balkhande Vs the State of Maharashtra Thr Ministry of Law and Justice Mantralaya Mumbai

M/S. Oberoi Solar Solutions Thr. Proprietor, Sarabjeetsingh S. Oberoi Vs State of Maharashtra, Thr. Secretary, Department of Goods and Service Tax, Mumbai and Anr.

Jayant Umakant Mamidwar vs Union of India, Thr. the Secretary, Department of Revenue, Ministry of Finance, New Delhi and Other

M/S Miltech Industries Pvt. Ltd. Thr. Its Director, Mr. Pradeep Agrawal vs the Government of Maha. Dept. of Goods and Services Tax Mantralaya, Mumbai and Ors.