Bombay High Court
Mohammed Asif @ Mental Abdul ... vs The Commissioner Of Police And Ors on 12 July, 2016
Bench: V.K. Tahilramani
RMA 1 cri.wp. 1099-16 (j).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1099 OF 2016
Mohammed Asif @ Mental Abdul ]
Sattar Shaikh @ Mohd. Asif @ Mental ]
Abdul Sattar Khan ]
Age - 32 Years, Residing at Plot No. ]
13/K/7, Road No. 3, Shivaji Nagar, ]
Govandi, Mumbai - 400 043. ].. Petitioner
Vs.
1. The Commissioner of Police, ]
Mumbai. ]
]
2. The State of Maharashtra ]
(Through Addl. Chief Secretary ]
to Government of Maharashtra ]
Home Department, Mantralaya ]
Mumbai ]
]
3. The Superintendent ]
Nashik Road Central Prison, ]
Nashik. ]..Respondents
....
Mr. Udaynath Tripathi Advocate for Petitioner
Mrs. M.H. Mhatre, APP for the State
....
CORAM : SMT.V.K.TAHILRAMANI AND
MRS. MRIDULA BHATKAR, JJ.
RESERVED ON : JUNE 24, 2016
PRONOUNCED ON : JULY 12, 2016
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JUDGMENT [PER SMT. V.K.TAHILRAMANI, J. ] :
1 The petitioner / detenu - Mohammed Asif @ Mental
Abdul Sattar Shaikh @ Mohd. Asif @ Mental Abdul Sattar Khan
has preferred this petition questioning the preventive detention
order passed against him on 15.10.2015 by respondent no.1
i.e. Commissioner of Police, Mumbai. The said detention order
has been passed in exercise of powers under Section 3(1) of
the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug Offenders, Dangerous Persons
and Video Pirates Act, 1981 (No. LV of 1981) (Amendment-
1996 and 2009) (hereinafter referred to as the "MPDA Act").
The said detention order is based on two C.Rs. i.e. C.R. No.
152 of 2015 of Shivaji Nagar Police Station, C.R. No. 373 of
2015 of Shivaji Nagar Police Station and two incamera
statements. C.R. No. 152/2015 is under Sections 392, 384,
323 and 506 II of IPC r/w Section 37(1)(a) and 135 of
Maharashtra Police Act. In the said case, the detenu is on bail.
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C.R. No. 373 of 2015 is under Sections 394, 323, 504 and 506 II
of IPC. The detention order was passed whilst the detenu was
already lodged in Jail in connection with C.R.No. 373 of 2015.
After passing of the detention order, the said detention order
along with grounds of detention was served to the detenu in
Jail.
2 The petitioner has raised only one ground i.e. ground
(a) in the petition. In the said ground (a), it is stated as under:
"(a) The petitioner says and submits that there is a
reference to C.R. No. 373 of 2015 under Section 394, 323,
504, 506(2) of IPC in the grounds of detention. The Bail
application preferred by the petitioner in this case was
rejected on 25.8.2015 by the Ld. Metropolitan Magistrate's
57th Court, Kurla. The petitioner submits that thereafter, he
has not preferred any Bail Application in any other Courts in
the said case. The order of detention came to be passed
on 15.10.2015, it is therefore, clear that on the date of
detention, the petitioner was in judicial custody without
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availing bail in the said case. There was no material before
the detaining authority and moreover, the imminent
possibility and / or real possibility of release on bail is not
disclosed with reliable material by the detaining authority in
the grounds of detention. This is in clear violation of the
condition laid down by the Hon'ble Supreme Court. This
shows total non-application of mind of the detaining
authority. There is no necessity to pass order of detention
against a person who is already in custody. The order of
detention is illegal and bad in law, liable to be quashed and
set aside."
3. The sole contention raised before us, is that, the
detenu was already in jail as his bail application in C.R. No.
375/2015 was rejected on 25.8.2015 by the Learned
Magistrate. Thereafter, the detenu had not preferred any
application for bail before any Court, hence, there was no
material before the detaining authority that the detenu would
be released on bail and moreover, the imminent possibility and
/ or real possibility of release on bail is not disclosed with
reliable material by the detaining authority in the grounds of
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detention, hence, the detention order is not sustainable. The
subjective satisfaction recorded by the detaining authority for
issuing the impugned detention order is vitiated. The
subjective satisfaction of the detaining authority is not
supported by any circumstance or material indicative of real
possibility of release of the detenu on bail, who was already in
custody. The learned counsel for the petitioner has stretched
his argument to the extreme by contending that on the date of
passing of the detention order, if no bail application has been
moved by the detenu or was pending, then it necessarily
follows that there was no likelihood of the person in custody
being released on bail, hence, in such cases, the detention
order would be nothing, but illegal.
4 To buttress this argument, reliance is placed on the
decision of the three-Judge bench of the Apex Court in the case
of Rekha vs. State of Tamil Nadu & anr., (2011) 4 SCC 260.
Reliance was placed on paragraph 27 of the judgment wherein
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it is stated that "there is a real possibility of release of a person
on bail who is already in custody provided he has moved a bail
application which is pending. It follows logically that if no bail
application is pending, then there is no likelihood of the person
in custody being released on bail, and hence, the detention
order will be illegal."
5 The learned A.P.P. on the other hand placed reliance on
a subsequent decision of the Supreme Court in the case of G.
Reddeiah Vs. Government of Andhra Pradesh and
another, reported in (2012) 2 S.C.C. 389. The Supreme
Court in paragraph 23 of the said decision observed as under:
"23. Though an attempt was made to nullify the order of
detention by drawing our attention to the decision of Apex
Court in Rekha Vs. State of T.N.(2011) 5 SCC 244 : (2011) 2
SCC (Cri.) 596, on going through the factual position and
orders therein and in view of the enormous activities of the
detenu violating various provisions of IPC, the A.P. Act and the
Rules, continuous and habituality in pursuing the same type of
offences, and taking note of the abundant factual details as
available in the grounds of detention and also of the fact that
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all the procedures and statutory safeguards have been fully
complied with by the detaining authority, we are of the view
that the said decision is not applicable to the case on hand.
On the other hand, we fully agree with the reasoning of the
detaining authority as approved by the Government and
upheld by the High Court".
We would like to refer to another decision of the
Supreme Court in the case of D.M.Nagaraja Vs.
Government of Karnataka and others, reported in (2011)
10 S.C.C. 215. In this case as well as the case of Reddeiah
(supra), the Supreme Court considered the earlier decision in
the case of Rekha (supra) & distinguished it. In the case of
Nagaraja, it is observed as under:
"18. The learned counsel for the appellant very much
relied on a decision of Apex Court in Rekha. In the above
case, against the detention order dated 8.4.2010 imposed on
Ramkrishnan under the Tamil Nadu Prevention of Dangerous
Activities of Bootleggers, Drug Offenders, Forest Offenders,
Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-
Grabbers and Video Pirates Act, 1982 on the allegation that he
was selling expired drugs after tampering with labels and
printing fresh labels showing them as non-expired drugs, his
wife filed a habeas corpus petition before the Madras High
Court. The said writ petition came to be dismissed. Hence, the
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wife of the detenu therein, approached the Apex Court by way
of special leave to appeal.
19. In the judgment in Rekha, Apex Court has
extracted the detention order and the grounds for detaining him
under the Tamil Nadu Act, 1982. The grounds show that there
is reference to one incident relating to selling expired drugs and
the detaining authority by pointing out that necessary steps are
being taken by his relatives to take him out on bail and since in
similar case, bails were granted by the courts after lapse of
some time and if he comes out on bail, he will indulge in further
activities which will be prejudicial to the maintenance of public
health and order and recourse to normal criminal law would not
have the desired effect of effectively preventing him from
indulging in such activities, on the materials placed and after
fully satisfying, the detaining authority has passed an order
under the Tamil Nadu Act, 1982. In para 7, the Bench has
pointed out that in the grounds of detention, no details have
been given about the alleged similar cases in which bail was
allegedly granted by the court concerned. The grounds
retracted therein also are bereft of any further details. In those
circumstances, this Court taking note of various earlier
decisions came to the conclusion that normal recourse to
ordinary law would be sufficient and there is no need for
invocation of the special Act.
20. In the case on hand, we have already extracted
criminality, criminal activities starting from the age 30 and
details relating to eleven cases mentioned in the grounds of
detention......
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21. In view of enormous materials which are available
in the grounds of detention, such habituality has not been cited
in the above referred Rekha, we are satisfied that the said
decision is "distinguishable" on facts with reference to the case
on hand and the contention based on the same is liable to be
rejected."
Thus, from the decision in the case of Nagaraja and
Reddeiah (supra), it is clear that each case will have to be
decided on the peculiar facts of that case.
6 Thus, in view of the decisions in Reddeiah (supra) and
Nagaraja (supra), in our opinion, it cannot be said that the
decision in Rekha's case (supra), is an authority on the extreme
proposition canvassed before us that in cases where no bail
application is pending on the date of passing of the detention
order, detention order cannot be passed "at all" against the
accused, who is already in jail. The judicial review of the
subjective satisfaction reached by the detaining authority,
therefore, will have to be tested on case to case basis; and if
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tangible justification is spelt out in the grounds of detention
that even though the accused is already in jail, yet, it is
imminent to issue order of preventive detention qua him, that
would be permissible and legitimate.
7 From the decisions in the case of Nagaraja and
Reddeiah, it is clear that each case will have to be decided on
its own facts. The facts in the present case as seen from the
preamble which is reflected in paragraph 4(A) of the grounds
of detention show that in the last five years, the petitioner is
involved in seven other cases. To issue the order of detention,
the detaining authority has relied on C.R. No. 152 of 2015 and
C.R. No. 373 of 2015 of Shivaji Nagar Police Station. C.R. No.
152 of 2015 is under Section 392, 384, 323 and 506 II of IPC.
C.R. No. 373 of 2015 is under Sections 394, 323, 504 & 506 II
of IPC. In addition to C.R. No. 152 of 2015 and C.R. No. 373 of
2015, the detaining authority has relied on statements of two
incamera witnesses i.e. Witness "A" and Witness "B".
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8. The facts pertaining to C.R. No. 152/2015 are that the
complainant knew the detenu. According to the complainant,
the detenu was of criminal nature and he used to extort money
from the shopkeepers, hawkers and scrap dealers in the
locality at the point of deadly weapon. Thus, the detenu had
unleashed a reign of terror in the said area. On 19.3.2015 at
about 12 noon, the complainant opened his mobile repairing
shop. At about 5.00 p.m., there were five to six customers in
the shop. At that time, the detenu came there. He abused the
complainant and threatened him. The detenu told the
complainant that if he wanted to run the shop, he would have
to give money to the detenu. Saying so, the detenu slapped
the complainant. Due to the violent act of the detenu, the
customers in the shop got scared and ran away. The
complainant loudly shouted for help whereupon the nearby
shopkeepers rushed to the spot. On seeing them, the detenu
took out a razor and rushed at those persons and shouted
loudly saying if anyone come forward, he would kill them one
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by one. On account of this, the persons who had come to the
spot got scared and ran helter-skelter. Shopkeepers in the
area got scared and downed their shutters. The detenu then
forcibly opened the drawer of the table in the shop of the
complainant and took away Rs. 2000/- and four memory cards
of 8 GB.
9. The facts relating to C.R. No. 373/2015 are that on
21.7.2015, the complainant was not feeling well. After
purchasing medicines, he was returning home at about 4.00
p.m. At that time, he saw the detenu. The complainant got
scared and started walking away, however, the detenu rushed
towards the complainant and caught hold of his shirt collar. He
raised a barber's razor and abused and threatened the
complainant. The detenu told the complainant to take out all
the money in his pocket. He then slapped the complainant.
The detenu searched the pockets of the complainant and
removed Rs. 1500/- and cellphone from the pocket of the
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complainant. The complainant shouted for help, thereupon,
people rushed to the spot to help the complainant. On seeing
those persons, the detenu showed those people the barber's
razor and shouted if anyone came forward, he would finish him
at the spot. On account of the threats, people got scared and
ran helter-skelter. Nearby shopkeepers closed their shops and
residents closed the doors of their houses. From the facts
relating to C.R. No. 152/2015 and 373/2015, it is seen that the
incidents are similar in nature. The facts relating to incamera
witnesses A and B are similar to those in C.R. No. 152/2015 and
373/2015.
10. In addition to C.R. No. 152 of 2015 and C.R. No. 373
of 2015, the grounds of detention clearly advert to the fact that
confidential enquiries were made about the criminal activities
of the detenu in the localities of Shivaji Nagar Police Station,
Govandi and adjoining areas wherein it was noticed that a
large number of people were victimized by the detenu in the
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recent past. It is also noted that the detenu was found to be a
dangerous person and nobody was ready to complain and
make statement openly against the detenu, due to fear of
retaliation. The witnesses, only on being assured that their
names and identifying particulars will be kept secret and they
would not be called upon to give evidence against the detenu
in any Court of Law or any other open forum, have expressed
willingness to give their statements about the criminal
activities of the detenu. The grounds of detention then
reproduce the contents of the in-camera statements of the two
witnesses "A" and "B" disclosing the involvement of the detenu
in the criminal activities within the area of Shivaji Nagar Police
Station and nearby areas, indicating that the detenu unleashed
a reign of terror having become a perpetual danger to the
society at large in the area falling within Shivaji Nagar Police
Station and surrounding area. The grounds further state that
the people in the said areas are terror stricken and their
normal life is affected. Thus, the activities of the detenu are
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prejudicial to the maintenance of public order in the said areas.
11 After having adverted to these matters, the detaining
authority in paragraph 7 proceeded to record its subjective
satisfaction in the following words:
" 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. I am aware that
you are granted bail in connection with Shivaji Nagar Police
Station in C.R. No. 152/2015 and that you have availed of the
said Bail facility. However, in Shivaji Nagar Police Station in
C.R. No. 373/2015 you are not yet granted bail. Since the
offence is not punishable with death penalty or life
imprisonment, you are likely to be released on bail in the
aforesaid case also and you may avail of the bail facility and
will be a free person. In view of your tendencies and
inclinations reflected in the offences committed by you as
stated above, I am further satisfied that after your being
granted bail, and after release on bail and your becoming a
free person, and in the event of your being at large, you being
a criminal, are likely to indulge in activities prejudicial to the
maintenance of Public Order in future and that with a view to
prevent you from acting in such a prejudicial manner in future,
it is necessary to detain you under the Maharashtra Prevention
of Dangerous Activities of Slumlords, Bootleggers, Drug
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Offenders, Dangerous Persons and Video Pirates Act, 1981
(Maharashtra Act No. LV of 1981) (Amendment 1996)
(Amendment 2009).
12 The above-mentioned portion leaves no manner of
doubt that the detaining authority was fully aware of the fact
that the detenu was in custody in the pending criminal case i.e.
C.R. No. 373/15 which was mainly under Section 394 r.w. 34
IPC. Moreover, the detaining Authority has expressed its
subjective satisfaction that the detenu is likely to be released
on bail and after his release on bail, he will again indulge in
activities which are prejudicial to the maintenance of public
order. From the grounds of detention, it is clear that the
detaining authority was aware that the charge sheet in the
said criminal case was filed on 19.9.2015. It is well known that
in cases which do not attract the death penalty or life
imprisonment and attract lesser punishment, after the charge
sheet is filed, bail is normally granted.
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13. Mr. Tripathi submitted that the order of the learned
Magistrate rejecting the application of the petitioner for bail in
C.R. No. 373/15 shows that the detenu was involved in 25
cases. He submitted that in such case, it was impossible for
the detenu to get bail in C.R. No. 373/15. As far as this aspect
is concerned, it is seen that the detenu has been involved in
number of cases but they are of petty nature and the detenu is
released on bail in all these cases except C.R. No. 373/15. The
facts relating to C.R. No. 152/15 are similar to the facts in C.R.
No. 373/15, yet bail was granted in that case. At that time, the
detenu was involved in 24 cases, yet he was granted bail in
C.R. No. 152/2015. Moreover, the order rejecting the bail
application in C.R. No. 373/15 is passed by a Magistrate. The
said order can easily be challenged before the Sessions Court
and thereafter the High Court. Moreover, the facts of C.R. No.
373/15 are such that they do not attract the death penalty or
life imprisonment and the maximum punishment is upto 10
years. Moreover, it is seen that the said case is triable by the
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Magistrate in which case sentence of imprisonment of 10 years
would not be imposed on the detenu. If all these facts are
considered, there is every likelihood of the detenu being
released on bail once the charge sheet is filed. Thus, it cannot
be said that there was no cogent material before the detaining
authority to come to the conclusion that there was an
imminent possibility of the detenu being released on bail in CR
No. 373/15 as contended in the ground raised by the petitioner.
14. It is also to be borne in mind that before the detaining
authority, the facts of C.R. No. 373/15 were placed. The
detaining authority was aware it was mainly a case under
Section 394 of IPC. While considering the possibility whether
bail can be granted, the nature of offence has also to be seen
i.e. type of crime. The detenu was in custody in a case which
was mainly under Section 394 of IPC. The maximum
punishment for the said offence is ten years. The offence is
not punishable with death or life imprisonment and hence, the
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apprehension of the detaining authority that there was
imminent possibility of petitioner being released on bail cannot
be faulted. Thus, it cannot be said that there was no cogent
and tangible material before the detaining authority to arrive at
subjective satisfaction that there was imminent possibility of
the detenu being released on bail considering the fact that the
detenu was not involved in an offence punishable with death or
life imprisonment. Further as stated earlier, granting bail in
such cases after filing of the charge-sheet, is a normal practice
of most Courts. A priori, it cannot be argued that this is a case
of mere ipse dixit of the detaining authority regarding the
likelihood of the detenu coming out on bail. Looking to the
history of the detenu, it cannot be said that there was no
material before the detaining authority to reach the subjective
satisfaction that if released on bail, the detenu would again
indulge in similar prejudicial activities. Keeping that in mind,
the detaining authority arrived at the subjective satisfaction
that the detenu may be granted bail and hence, it was
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necessary to issue an order of detention to prevent the detenu
from again indulging in similar activities which are prejudicial
to the maintenance of public order.
15. Before this Court in the case of Pramod Ashok Pujari
Vs. The State of Maharashtra and Anr.1; reliance was placed
on the decision in the case of Rekha (supra) to contend that if
no bail application is pending, no detention order can be
passed. This Court observed as under:
" The decision in Rekha case (2011) 4 SCC 260 is not an
authority on the extreme proposition canvassed before this
Court that in cases where no bail application is pending on the
date of passing of the detention order, detention order cannot
be passed "at all" against the accused, who is already in jail.
The judicial review of the subjective satisfaction reached by the
detaining authority, therefore, will have to be tested on case to
case basis; and if tangible justification is spelt out in the
grounds of detention that even though the accused is already
in jail, yet, it is imminent to issue order of preventive detention
qua him, that would be permissible and legitimate".
In the case of Rekha (supra), the detenu was involved
1 2012 SCC OnLine Bom 1136 : (2012) 5 AIR Bom R 638
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in only one offence whereas the present detention order has
been passed on basis of four incidents i.e. two CR and two
incamera witnesses. Looking to the facts of the present case
therefore, the exposition in Rekha (supra), pressed into service
by the learned counsel for the petitioner, will be of no avail.
Moreover, the grounds of detention in the present case show
that there was reliable material before the detaining authority
on the basis of which, the detaining authority would have
reason to believe that there was real possibility of his release
on bail. One of the materials as stated earlier being the nature
of the offence which was mainly under Section 394 read with
Section 34 IPC for which the maximum sentence of
imprisonment is ten years. This offence is not punishable with
life or death. Thus, we can say that the main material before
the detaining authority to reach his subjective satisfaction
that there was real possibility of the detenu being released on
bail is the nature of the offence.
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16 Useful reliance can be placed on the decision of the
Apex Court in the case of Noor Salman Makhani vs. Union of
India2. In that case, the grievance of the detenu was that the
detention order as passed, suffered from non-application of
mind because of the bald statement made by the detaining
authority about the possibility of detenu being likely to be
released on bail. The Apex Court rejected that plea in the facts
of that case by observing that nothing more could have been
said in the grounds of detention by the detaining authority in
the context of its subjective satisfaction about the possibility
that the detenu was likely to be released on bail.
17 In a decision of the Division Bench of this Court in the
case of Omprakash Parshuram Rihal vs. C.D. Singh3, the
challenge was on similar lines, as in the present case. In that
case, the detenu had moved a bail application which was
rejected on 10.10.1994. Inspite of that, detention order was
2 1994 Cr.L.J. 602
3 1995(1) ALL. M.R. 491
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passed on 24.11.1994 under the provisions of Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,
1988. The argument was that the subjective satisfaction of the
detaining authority lacked awareness of any compelling
necessity. The Court negatived the said plea and while doing
so, relied on the observation of the Apex Court in the case of
Biru Mahato vs. District Magistrate, Dhanbad 4, Merugu
Satyanarayana vs. State of Andhra Pradesh & ors. 5, Devi
Lal Mahto vs. State of Bihar & anr. 6, and Vijay Kumar vs.
Union of India7. The Apex Court in these decisions has
observed that the awareness must be of the fact that the
person, against whom the detention order is being made, is
already under detention or in jail in respect of some offence.
This awareness must find its place either in the grounds of
detention or in the affidavit justifying the detention order when
challenged.
4 AIR 1982 SC 1539
5 AIR 1982 SC 1543
6 AIR 1982 SC 1548
7 (1988) 2 SCC 57
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18 The Supreme Court in the case of Ahamed Nassar
Vs. State of Tamil Nadu and others 8 has observed that
"Thus inspite of rejection of the bail application by a court, it is
open to the detaining authority to come to his own satisfaction
based on the contents of the bail application keeping in mind
the circumstances that there is likelihood of the detenu being
released on bail. Merely because no bail application was then
pending, is no premise to hold that there was no likelihood of
his being released on bail".
19. Thereafter, Mr. Tripathi placed reliance on a decision
of the Supreme Court in the case of Kamarunnissa Vs Union
of India9. He placed reliance on paragraph 13 thereof. Mr.
Tripathi submitted that in the said paragraph, the Supreme
Court has set out the criteria when a detention order would be
held to be valid even if it first passed when the detenu was in
custody. The Supreme Court in paragraph 13 has observed as
8 (1999) 8 SCC 473
9 (1991) 1 SCC 128
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under:-
" 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."
In the present case, all the criteria as set out in
paragraph 13 of Kamrunissa are clearly met. On reading the
grounds of detention in the present case, it is seen that the
detaining authority has shown its awareness of the fact that
the detenu is in custody. Thereafter, the detaining authority
on the basis of the material which was placed before him
specially the facts relating to C.R. No. 373/15 showed that he
had reason to believe that the detenu is likely to be granted
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bail in the said case. The detaining authority, in view of the
facts mentioned in the grounds of detention, has expressed its
subjective satisfaction that if the detenu is released on bail, he
would again indulge in prejudicial activity, hence, it was
necessary to detain him. Thus, the criteria as set out by the
Supreme Court in the case of Kamarunnissa (supra) is met with
in the present case. Thus, this decision would be of no help to
the petitioner.
20. Lastly, reliance was placed by Mr. Tripahi on the
decision of the Supreme Court in the case of Rivadeneyta
Ricardo Agustin Vs Government of the National Capital
Territory of Delhi & Ors.10. Reliance was placed on
paragraphs 8 and 10. In paragraph 8, it is reflected that the
ground of detention do not show that such release was "likely
or that it was imminent." In the present case, in the grounds of
detention, the detaining authority has clearly stated that
10 1994 Supp (1) Supreme Court Cases 597
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looking to the facts of C.R. No. 373/15, it is "likely" that the
detenu will be released on bail. Thereafter, Mr. Tripathi
pointed out that in paragraph 10 of Agustin (supra), the
Supreme Court observed that the counsel for the respondent
could not bring to the notice of the Supreme Court any material
indicating that the release of the petitioner (detenu) was likely
or that there was a real possibility of his being released and / or
that the authority was satisfied about the said aspect. In the
present case, the detaining authority has clearly shown his
awareness that the detenu is in custody in C.R. No. 373/15.
The detaining authority has further shown his awareness that
the offence is not punishable with death or life imprisonment
and hence, it is likely that the detenu is released on bail. The
nature of the offence in C.R. No. 373/2015, the quantum of
punishment and the fact that charge sheet was filed in that
case was the material before the detaining authority. Based
on this material, the detaining authority was satisfied that the
detenu is likely to be released on bail. This subjective
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RMA 28 cri.wp. 1099-16 (j).doc
satisfaction has been clearly expressed in the grounds of
detention. Thus, this decision also would not come to the aid
of the petitioner.
21 In the present case, the grounds of detention, in no
uncertain terms, mention about the likelihood of petitioner
being released if he moved an application for bail and on
becoming a free person
ig there was likelihood of him again
indulging in similar activities which are prejudicial to the
maintenance of public order. Looking to the nature of the
offence, it cannot be said that there was no material before the
detaining authority to reach his subjective satisfaction that
there was an imminent possibility of the detenu being released
on bail and looking to the past history of the detenu, it cannot
be said that there was no material before the detaining
authority to reach his subjective satisfaction that if the detenu
is released on bail, he will again indulge in similar activities
which are prejudicial to the maintenance of public order.
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RMA 29 cri.wp. 1099-16 (j).doc
22 Moreover, the subjective satisfaction has been
reached in the present case, keeping in mind that the
petitioner was a habitual offender and continued to indulge in
criminal activities prejudicial to public order, unabatedly. In
substance, the subjective satisfaction is not founded on one
factor but, combination thereof and totality of all the
circumstances indicative of the fact that there was imminent
possibility of the detenu being released on bail and if released,
he would again indulge in similar activities which were
prejudicial to the maintenance of public order. Accordingly,
there is no substance in the argument under consideration.
23 In view of the above, in our opinion, the ground raised
by the learned counsel for the petitioner to espouse the case of
the detenu, is of no avail. Accordingly, the petition is
dismissed. Rule is discharged.
[ MRS. MRIDULA BHATKAR, J.] [ SMT. V.K.TAHILRAMANI,J. ]
Amberkar
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