Nasibullah Khan vs M.N. Singh And Ors.
2001 Latest Caselaw 853 Bom

JUDGMENT

S.S. Parkar, J.

1. 1. By this writ petition the petitioner has challenged the detention of his son by name Mohammed Husein Nasibullah Khan under the provisions of MPDA Act.

2. The respondent No. 1, the Commissioner of Police, Brihan Mumbai, by order dated 16th March 2001 issued order of detention under Section 3(1) of the MPDA Act. Along with the order of detention the detenu was served with the grounds of detention of the same date. A copy of the order of detention is annexed at Exh. "A" to this petition while the copy of the

grounds of detention has been annexed at Exh. "C" to this petition. The detenu along with two co-accused was arrested on 25th June, 2000 under C. R. No. 125 of 2000 for offences under Sections 170, 365, 376(g), 392 read with Section 34 of Indian Penal Code. His bail application made to the Sessions Court was rejected on 17-10-2000 in the said C. R. Thereafter there was no application made by him for his release on bail and the detenu continued to be in custody. While the detenu was in custody in the above C. R., the respondent No. 1 the Commissioner of Police, Brihan Mumbai, issued the impugned order of detention on 16th March 2001, against the detenu, Similar orders were issued against his two co-accused in the aforesaid crime. As per the grounds of detention three instances have been relied on for issuing the order of detention. Firstly, the crime registered under the above C. R. for the aforesaid offences and secondly reliance is placed on two in-camera statements of two witnesses with regard to the alleged acts of extortion of money by the detenu along with the co-accused from the shopkeepers in the 3rd and 4th week of June 2000. The petitioner, who is the father of the detenu, has filed the present petition challenging the detention order as well as the continued detention of the detenu under the aforesaid Act.

3. It is not in dispute that the detention orders of the co-accused were challenged in this Court by filing Criminal Writ Petitions, one being Criminal Writ Petition No. 973 of 2001 and another being Criminal Writ Petition No. 975 of 2001. Both those petitions were allowed by the judgment and order of this Court delivered separately on 5th September, 2001 whereby the detention orders of the co-detenus identically placed were quashed and set aside. Their detention orders were quashed on two grounds. Firstly, that there were no compelling reasons justifying detention when the detenus were already in custody and secondly the detaining authority had not shown its awareness that the detenus were in custody in C. R. No. 125 of 2000.

4. Though in this petition number of grounds have been raised challenging the order of detention of the detenu, Mr. Tripathi the learned counsel appearing on behalf of the petitioner has pressed the ground that there were no compelling reasons justifying the detention of the detenu when the detenu was already in custody under C. R. No. 125 of 2000. This ground has been explicitly taken in para 6(Z) of the petition. In support of his contention the learned counsel cited the decision of the Division Bench of this Court delivered in criminal writ petition No. 973 of 2001 challenging the order of detention of co-detenu. From the perusal of the said judgment, it is clear that this court relying on the judgment of the Apex Court in the case of Dharmendra Suganchand Chelawat and Anr. v. Union of India, held that though a detention order can be clamped against a person in custody, no cogent material has been shown by the detaining authority to conclude that there was imminent likelihood of the detenu being released on bail in C. R. No. 125 of 2000. The learned counsel

also referred us to the decision of the Apex Court in Chelawat's case (supra) and some other decisions of the Apex Court.

5. On the other hand Ms. Kamat, the learned APP took us through the grounds of detention and also the reply affidavit filed by respondent No. 1 and submitted that the detaining authority has relied not only on the crime registered under C. R. No. 125 of 2000 against the detenu but also on two in-camera statements disclosing the extortion activities carried on by the detenu and in case he comes out there is every possibility of his continuing the activities of extortion. She tried to distinguish the judgment of the Division Bench of this Court quashing the order of detention passed against the co-detenu and also relied on other judgments of this Court contending that merely because a person is in custody it is not a ground to quash the detention order. As regards the decision quashing the order of detention of the co-detenu is concerned, the learned APP contended that the Bench did not consider two in-camera statements on which reliance was placed by the detaining authority even in respect of the co-detenu but had considered only crime registered under C. R. No. 125 of 2000. We cannot agree with the said submission. The Bench was not only aware but has clearly, in para 2 of the judgment, observed that the perusal of the grounds of detention show that the impugned order was founded on one C. R. i.e. C. R. No. 125 of 2000 and in-camera statements of two witnesses.

6. Secondly, neither the grounds of detention nor the reply affidavit show any material to conclude that there was imminent likelihood of the detenu being released on bail. As we see the grounds of detention, it is only mentioned in para 6 of the grounds that detaining authority had reason to believe that the detenu may get bail under normal law of the land in due course and in the event of his release on bail he was likely to revert to the similar activities, prejudicial to the maintenance of public order in future. The grounds of detention do not point out any material on the basis of which the belief is entertained that detenu may get bail under normal law of the land. The detenu had been arrested, inter alia, for offence of gang rape coupled with robbery. Not only the application made by the detenu for his release on bail was rejected as far back as on 17-10-2000 by the Sessions Court but till the order of detention was issued in March 2001, the detenu had not made any further attempt for securing bail in the said crime.

7. The detention order issued against the detenu was served on him while he was in custody. Ms. Kamat, the learned APP, again tried to lay emphasis on the point that merely because the detenu is in custody there is no bar for issuing the detention order. That is not the point in issue, nor the detention of the co-accused was quashed on that ground alone. The Apex Court in Chelawat's case (supra) has clearly mentioned in para 19 of the judgment that the order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (1) the detaining authority was aware of the fact that the detenu is

already in detention; and (2) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The compelling reasons have been further elaborated to mean, in the contest of making an order for detention of a person already in custody, that there must be cogent material before the detaining authority on the basis of which it may be said that (a) the detenu was likely to be released from custody in near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities. The material, under clause (a) above, has not been shown either in the grounds of detention nor in the reply affidavit. The judgment of this Court relied on by Ms. Kamat in the case of Yogita Colin Gudinho v. The Commissioner of Police and Anr. reported in 1998 ALL MR (Cri) 1 lays emphasis in para 28 of the judgment, extracting paragraph 6 of the judgment of the Supreme Court in Veermani's case, 1995 Cri.LJ. 2644, on the detaining authority having reason to believe on the basis of the reliable material that there is possibility of his being released on bail ...... In this case there is no such material on record.

8. The next submission of Ms. Kamat is that after all it is subjective satisfaction of the detaining authority and, therefore, this court should not interfere in the order of detention passed by the detaining authority. In support of this contention she read out the affidavit in reply filed by the detaining authority on 9th October, 2001. It is true that the exercise of powers of detention depends on the subjective satisfaction of the detaining authority, but that does not mean that judicial scrutiny of such subjective satisfaction is shut-out. Such contention has been turned down in para 13 of the Judgment of the Apex Court in the case of Khudiram Das v. The State of West Bengal and Ors. . In the absence of any material pointed out by the detaining authority either in the grounds of detention or in the reply affidavit to conclude that the detenu is likely to be released from custody in the near future, it cannot be said that the conditions laid down by the Supreme Court in Chelawat's case for issuing detention order in case of a person in custody are satisfied. This is a case where the basis for subjective satisfaction is itself absent and, therefore, there cannot be question of the detaining authority arriving at any subjective satisfaction, simply because the detaining authority says so.

9. The said principle has been applied by the Supreme Court in the subsequent judgment in the case of Rivadeneyta Ricardo Agustin v. Government of the National Capital Territory of Delhi and Ors. reported in 1994 Supp (1) SCC 597. That was a case where the detenu was already in jail. He was arrested in connection widi an alleged offence under Customs Act. Bail application filed by him was dismissed on 9th June 1992 and no further application was made thereafter. The detention order passed within two months on 11th August, 1992 was quashed by the Apex Court on the ground that there was no material before the detaining authority indicating that the

detenu was likely to be released or that his release was imminent or that the authority was satisfied about the said aspect. In the instant case the detenu was arrested for offence of gang rape coupled with the offence of robbery in the same incident and it is common knowledge that in such cases chances of accused not being released on bail are greater or more imminent.

10. In the aforesaid circumstances, in our opinion, there was no material for the detaining authority to arrive at the satisfaction for passing the impugned order under Section 3(1) of the MPDA Act. We are, therefore, of the view that the impugned order has been passed against the law laid down by the Apex Court in Chelawat's case (supra) and, therefore, cannot be sustained.

11. In the result this petition is allowed and the rule is made absolute in terms of prayer clause (a) of the petition. The detenu by name Mohammed Husein Nasibullah Khan is directed to be released from detention and set at liberty forthwith unless required in any other case.

12. Writ petition allowed.