Shri Mohd. Ayub Alimuddin Shaikh @ ... vs Shri M.N. Singh And Ors.
2004 Latest Caselaw 5 Bom

JUDGMENT

S.S. Parkar, J.

1. By this petition the petitioner challenges the order of detention issued under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981.

2. The impugned order of detention was issued on 8th June 2001 and the same came to be served on 7/2/2003 i.e. after more than one year and seven months. The said order of detention was issued on the basis of one C.R. bearing No. 76 of 2001 registered against the petitioner for offences under Sections 399 and 402 of IPC and under the provisions of the Arms Act and on the basis of two in-camera statements. The petitioner was arrested in the said offence and thereafter was released on bail. When the impugned order of detention was issued on 8th June, 2001 the petitioner was on bail since 9/5/2001. However, when the order of detention was executed on the petitioner on 7/2/2003 he was already in custody and the order had to be served on him in prison. In the aforesaid circumstances the petition has been filed challenging the order of detention of the petitioners.

3. Though the petition has raised several contentions, this petition can be allowed on the basis of the ground raised in paragraph 9(B) of the petition. It is contended in the said ground that the detaining authority had not considered the fact that there was no necessity of executing the order of detention issued on 8th June 2001 as late as 7/2/2003 when the petitioner was already in custody. It is submitted that while the petitioner was already in custody there was no real necessity of detaining the detenu under the provisions of the MPDA Act. In reply, the detaining authority in paragraph 4 of the affidavit dated 5th July 2003 has pointed that after the issue of the detention order on 8th June 2001 and before its execution on 7th February 2003 the detenu was involved in several offences registered by various police stations. In the said paragraph list of 13 CRs has been given in which the detenu was involved in criminal cases during the interregnum between the issue of the order of detention and its execution. The offences in which he was involved were mostly the robbery cases punishable under the provisions of Sections 392, 394, 395 and 397 of IPC where the punishment is for a period of minimum seven years and sentences prescribed are upto ten years, 14 years and life imprisonment. In the said paragraph the detaining authority has stated that the cases in which the detenu was involved after the issuance of the order of detention he would be granted bail under the normal law of the land if he would have preferred an application for bail and, therefore, it was necessary to execute the order of detention. In our view the reply given in the affidavit seems to be an after thought. There is nothing in the reply affidavit to indicate that it was brought to the notice of the detaining authority that subsequent to issue of order and before its execution the petitioner was involved in several cases and he considered the possibility of his release on bail in those cases and the necessity of executing the order of detention. There is no contemporaneous documentary evidence relied on by the detaining authority to show that the detaining authority had considered this aspect before the order of detention was executed on the petitioner. Looking to the number and type of crimes in which the petitioner was involved and the punishment prescribed for these crimes it cannot be said that the petitioner would be granted bail under the normal law of the land. No doubt when the order of detention was issued by the detaining authority, the petitioner was already on bail and, therefore, one cannot doubt the necessity of issuing the order of detention to prevent the petitioner from indulging in similar offences. However, the law requires that the detaining authority should consider the subsequent developments before the execution of the order particularly so when there was lapse of a period of one year and seven months between the issue of the order of detention and its execution on the detenu in this case.

4. Reference can be made to the decision of the Supreme Court in the case of Binod Singh v. District Magistrate . That was a case where the order of detention was passed when the detenu was on bail but at the time of execution of the order of detention the detenu was already in custody in a criminal case. In that context the Supreme Court had set aside the order of detention on the ground that the imminent release of the detenu was not considered by the detaining authority. In similar circumstances the Division Bench of this Court in the case of Riyaz Ahmed Kashmiri v. Union of India reported in 2001 ALL MR (Cri) 203, to which one of us (Parkar, J.) was party, set aside the detention authority did not consider the fresh development at all though he was bound to consider the same before the execution of the impugned order of detention. Reliance is also placed on the recent decision of the Division Bench of this Court (Coram: S.B. Mhase & S.K. Shah, JJ.) dated 3rd June 2003 in Criminal Writ Petition No. 1208 of 2002 in the case of Sidique Ahmed Dalvi v. M.N. Singh and Ors. That was a case where the detenu was on bail when the order was issued but was in custody when the order was executed on the detenu. The order of detention was set aside on the ground that the obligation to consider the subsequent development before the execution of the order was not discharged.

5. In this case there is no material relied on to show that the detaining authority had actually considered the fact that the detenu was in custody at the time of its execution and there was prospect of the detenu being released on bail and, therefore, there was real necessity for executing the order of detention. We cannot go by the ipse dixit of the detaining authority in the reply affidavit when he says that the cases in which the detenu was involved after the issuance of the order of detention he would be granted bail under the normal law of the land if he had preferred an application for bail. As observed by the Supreme Court in paragraph 5 of the judgment in Binod Singh's case (Supra) what is required is to indicate on what consideration the opinion was expressed that the petitioner was in jail and was likely to be enlarged on bail especially in view of the fact that the detenu was detained for offences which are punishable with life imprisonment. If an application had been made for bail by the petitioner it could have been opposed on the ground that the petitioner was involved in 13 cases during the period subsequent to the issue of the order of detention and its execution. Normally such accused who was involved in serious offences of robbery punishable with life imprisonment would not be released on bail under the normal law of the land. Thus though the order of preventive detention when it was passed was not invalid the service of the order was not on proper consideration and, therefore, the order of detention is liable to be set aside.

6. In the result, the petition is allowed and the impugned order of detention is set aside. The rule is made absolute in terms of prayer Clause (C) of the petition and the detenu is directed to be released forthwith from his detention unless required in any other case.