Shri Cyril George Mathew K.A. ... vs The Commissioner Of Police And ...
2001 Latest Caselaw 653 Bom

JUDGMENT

Vishnu Sahai, J.

1. Through this criminal writ petition, preferred under Article 226 of the Constitution of India, the petitioner-detenu Cyril George Mathew K.A. @ Vishnu, has impugned the order, dated 30th November, 2000, passed by the first respondent, Shri M.N. Singh, Commissioner of Police, Brihan Mumbai, detaining him under Sub-section (1) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV) of 1981 (Amendment 1996).

The detention order along with the grounds of detention, which are also dated 30th November, 2000, was served on the petitioner-detenu on 3rd December, 2000 and their true copies are annexed as Exhibits 'A' and 'C' respectively to this petition.

2. A perusal of the grounds of detention (Exhibit 'C') would show that the impugned detention order is founded on two C.Rs., namely, C.R. No. 23/2000, under Sections 399 and 120(B) of the Indian Penal Code r/w Sections 3 and 25 of the Arms Act. r/w Section 37(a) of the Bombay Police Act, registered on the basis of a complaint, dated 18th February, 2000, lodged by P.S.I. Javed Bagwan at Dongri Police Station, and C.R. No. 4/2000 under Sections 395, 397, 307 and 34 of the Indian Penal Code r/w Sections 3, 5 and 25 of the Arms Act, registered on the basis of a complaint, dated 3rd January, 2000, lodged by one Shri Jagdishnarayan Pandey at Vile Parle Police Station.

3. We have heard learned Counsel for the parties. It is common ground between them that although the petitioner-detenu had been granted bail, in C.R. No. 4/2000, on 16th September, 2000, which bail he availed on 6th November, 2000, in paragraph 6 of the grounds of detention the Detaining Authority has mentioned that, the detenu had not been granted bail in C.R. No. 4/2000. Learned Counsel for the petitioner-detenu contended that since admittedly the petitioner detenu had been granted bail in C.R. No. 4/2000 and in paragraph 6 of the grounds of detention the Detaining Authority has stated that he had not been granted bail in the said C.R., the impugned detention order would be vitiated on the vice of non-application of mind.

4. Mr. I.S. Thakur, learned Counsel for the respondents contended that since the petitioner - detenu had not availed of the bail in the said C.R. in sum and substance he had not been granted bail. Hence he urged that the contention of the petitioner-detenu's counsel should not be accepted.

5. We have reflected over the rival submissions. We are constrained to observe that we do not find any merit in Mr. Thakur's contention. The expression "not availed bail", is not synonymous with the expression "not granted bail". It is distinct and different from it. It envisages of an order granting bail being passed but bail-bonds being not filed. On the converse, the expression "not granted bail" means that no order granting bail has been passed. Since in paragraph 6 of the grounds of detention the Detaining Authority has stated that the detenu has not been granted bail, in our judgment, the submission of the petitioner-detenu's counsel that the impugned detention order is vitiated by the vice of non-application of mind, cannot be faulted.

6. We may also mention that there is another reason as to why this writ petition should succeed. It is common ground between counsel for the parties that although the petitioner-detenu had been granted bail in C.R. No. 4/2000, but the bail order passed in the said C.R. had not been placed by the Sponsoring Authority before the Detaining Authority.

Learned Counsel for the petitioner-detenu urged that the bail order was a vital document and its non-placement has vitiated the subjective satisfaction of the Detaining Authority on the vice of non-application of mind. To substantiate his submission, he placed before us the decision of the Supreme Court in Anant v. State of Maharashtra, 'wherein the detention Order was founded on three cases wherein the detenu had moved bail applications and was granted bail but the Detaining Authority at the time of passing of the detention order was not made aware of the said facts. On the said ground, the Supreme Court quashed the impugned detention order on the vice of non-application of mind.

A perusal of paragraph 6 of the said decision shows that the Supreme Court took the view that one does not know how the Detaining Authority would have acted if he was made aware of the said details.

7. For the said reasons, we allow this petition; quash and set aside the impugned detention order; direct that the detenu Cyril George Mathew K.A. @ Vishnu be released forthwith unless wanted in some other case; and make the rule absolute.