Bombay High Court
Chintya @ Mahesh Vilas Gaikwad vs The Commissioner Of Police And Ors on 26 April, 2016
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 168 OF 2016
Chintya @ Mahesh Vilas Gaikwad ]
Age 23 years, residing at ]
Near Bhimnagar Kaman, Mundhra ]
Pune. (At present in Yerawada ]
Central Prison, Pune) ]..Petitioner
[Detenu]
Vs.
1. The Commissioner of Police ]
Pune City ]
]
2. The State of Maharashtra ig ]
(Through Addl. Chief Secretary ]
to Government of Maharashtra ]
Mantralaya, Home Department ]
Mantralaya, Mumbai) ]
]
3. The Superintendent, ]
Yerawada Central Prison, Pune. ]..Respondents
....
Mr. Udaynath Tripathi Advocate for the Petitioner
Mrs. M.H.Mhatre A.P.P. for the State
....
CORAM : SMT.V.K.TAHILRAMANI AND
SMT. ANUJA PRABHUDESSAI, JJ.
DATED : APRIL 26, 2016
ORAL JUDGMENT: [PER SMT. V.K.TAHILRAMANI, J. ]:
1 By this petition, the petitioner who is the detenu, has
taken exception to the order of detention dated 23.6.2015
passed by Respondent no.1 in exercise of the power conferred
by Sub-Section (2) of Section 3 of the Maharashtra Prevention
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of Dangerous Activities of Slumlords, Bootleggers, Drug
Offenders, Dangerous Persons and Video Pirates Act, 1981
(Mah. Act No. LV of 1981) (Amendment-1996) (Amendment-
2009) (hereinafter referred to as the "MPDA Act"). By the
impugned order, the petitioner has been ordered to be
detained as he is a dangerous person.
2 Though large number of grounds have been raised in
this petition, the learned counsel appearing for the petitioner
has only urged one ground before us i.e. ground 6(b). Ground
6(b) reads as under:
"6(b) The petitioner says and submits that the
detaining authority while recording his satisfaction in
paragraph 7 of the grounds of detention has not
disclosed his awareness about bail position of the
petitioner on the day of detention i.e. on 23.6.2015.
Whether the petitioner was in custody or a free
person. The petitioner further submits that the
detaining authority has not disclosed imminent
possibility and/or real possibility of detenu's release
on bail in the grounds of detention based on reliable
material. This shows total non-application of mind of
the detaining authority. Moreover, there are no
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cogent materials before the detaining authority to
come to such conclusion. The order of detention is
illegal and bad in law, liable to be quashed and set
aside."
3 Mr. Tripathi pointed out that the detaining authority in
paragraph 7 of the grounds of detention has stated as under:
"7. I have carefully gone through the material
placed before me and I am subjectively satisfied that
you are acting in a manner prejudicial to the
maintenance of public order. However, out of three
offences registered against you, the Hon'ble Court
has released you on bail in one offence with condition
and in another offence you applied for bail but it was
rejected. In view of your tendencies and inclinations
reflected in the offences committed by you as stated
above, I am further satisfied that after availing bail
facility and becoming a free person, you are likely to
revert to the similar criminal activities prejudicial to
the maintenance of public order in future and that it
is necessary to detain you under the said Act to
prevent you from acting in such prejudicial manner in
future".
4 Mr. Tripathi stated that as far as the third offence is
concerned, the detaining authority has not made it clear
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whether the detenu was granted bail or was in custody in the
said case. In addition, Mr. Tripathi pointed out that though the
detaining authority in the grounds of detention has stated that
application for bail was rejected in the case relating to CR No.
69 of 2015, however nowhere in the grounds of detention, the
detaining authority has stated about his subjective satisfaction
that there was an imminent possibility of the detenu being
released on bail in the said case. Mr. Tripathi submitted that
on this count the order of detention is vitiated.
5 We are inclined to allow this petition on the above
ground. We may point out that even if a person is in jail in
connection with some criminal cases(s) there is no prohibition
in law to pass the detention order. Law on this aspect is well
settled and stands crystallized by plethora of judgments of the
Supreme Court. However, a reading of those very judgments
also clarifies that there are certain aspects which have to be
borne in mind by the detaining authority and satisfaction on
those aspects is to be arrived at while passing the detention
order. There are three such factors which were re-stated in
Kamrunnissa Vs. Union of India and Anr. reported in 1991(1)
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SCC 128 (pa.13):
"13. From the catena of decisions referred to
above it seems clear to us that even in the case of a
person in custody a detention order can validly be
passed (1) if the authority passing the order is aware
of the fact that he is actually in custody; (2) if he has
reason to believe on the basis of reliable material
placed before him (a) that there is a real possibility of
his being released on bail, and (b) that on being so
released he would in all probability indulge in
prejudicial activity and (3) if it is felt essential to
detain him to prevent him from so doing. If the
authority passes an order after recording his
satisfaction in this behalf, such an order cannot be
struck down on the ground that the proper course for
the authority was to oppose the bail and if bail is
granted notwithstanding such opposition, to question
it before a higher court."
Thus from the above decision, it is clear that the
detaining authority has to first show his awareness whether the
proposed detenu is in custody or is on bail. Further if the said
person is in custody the detaining authority has to record his
subjective satisfaction that there is a possibility of him being
released on bail. This is one of the most important criteria
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required when an order of detention is passed against a person
who is in custody.
6 Similar view was taken by the Supreme Court in the
case of Champion R. Sangma Vs. State of Meghalaya and Anr .
reported in 2015 ALL MR (Cri) 3673 (S.C.).
7 Mr. Tripathi submitted that the detaining authority
has not made it clear whether the detenu was in custody or not
in the third offence. He submitted that moreover the second
requirement as laid down in the case of Kamrunnissa (supra)
which has been followed in Champion Sangma (supra) is not
met with in the present case. The second requirement is that
when a person is in custody in any case, the detaining
authority has to record his subjective satisfaction that he has
reason to believe that there is real possibility or imminent
possibility or every possibility of the detenu being released on
bail. Mr. Tripathi pointed out that no such subjective
satisfaction is to be found in the grounds of detention in the
present case.
8 On going through the grounds of detention, it is
noticed that the detaining authority has not clearly stated
about the status of the third case. In answer, the learned
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A.P.P. submitted that the third case is bailable, which is clear
from the averments in the grounds of detention, hence, there
was no question of the detenu being in custody in that case.
Even if it is accepted that the detenu was on bail in the third
case as the offences therein were bailable, the grounds of
detention clearly show that the detenu was in custody in one
case that is CR No. 69 of 2015. We find that the detaining
authority in the grounds of detention has nowhere stated that
there was a real possibility or imminent possibility or every
possibility of the detenu being released on bail in CR No. 69 of
2015. If the detenu is in custody, the detaining authority in the
grounds of detention has to record his subjective satisfaction in
the grounds of detention that the detenu was likely to be
released on bail. However, the grounds of detention in the
present case are totally silent on this aspect. Only on this
ground, the impugned order of detention is vitiated. Hence,
Rule is made absolute in terms of prayer clause 10(b) of the
petition.
[ SMT. ANUJA PRABHUDESSAI, J.] [ SMT. V.K.TAHILRAMANI,J. ]
kandarkar
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