Suresh @ Khiladi Yellappa ... vs Commissioner Of Police And Ors
2017 Latest Caselaw 2856 Bom

                                                                                 15. cri wp 4274-16.doc


RMA      
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                          CRIMINAL WRIT PETITION NO. 4274 OF 2016


            Suresh @ Khiladi Yellappa Shivpure
            Age - 37 Years, Occ. - Business,
            R/o. Desai Nagar, Rajiv Gandhi Nagar,
            Naee Zindagi, Solapur.

            At present lodged in Yerwada Central
            Prison, Pune.                                                .. Petitioner
                                                                              (Org. Detenu)

                                 Versus
            1. Commissioner of Police,
               Solapur.

            2. State of Maharashtra
               Through Add. Chief Secretary,
               Home Department, Ministry of Home,
               Mantralaya, Mumbai - 400 032.

            3. Superintendent,
               Yerwada Central Prison, Pune.                             .. Respondents

                                                  ...................
            Appearances
            Mr. Udaynath Tripathi i/by
            Mr. Viresh V. Purwant      Advocate for the Petitioner
            Mrs. M.H. Mhatre           APP for the State
                                                  ...................



                              CORAM       : SMT. V.K. TAHILRAMANI &
                                              SANDEEP K. SHINDE, JJ.

                              DATE        :   JUNE 7, 2017.




            jfoanz vkacsjdj                                                                    1 of 9





                                                                         15. cri wp 4274-16.doc

ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :

1. Heard both sides.

2. Through this petition under Article 227 of the

Constitution of India, the petitioner - detenu has impugned

the order of detention dated 21.6.2016 passed by

respondent No. 1 - Commissioner of Police, Solapur. By the

said order, the detenu came to be detained under sub-

Section 1 of Section 3 of the Maharashtra Prevention of

Dangerous Activities of Slumlords, Bootleggers, Drug

Offenders, Dangerous Persons, Video Pirates, Sand

Smugglers and persons engaged in Black-marketing of

Essential Commodities Act, 1981 (No. LV of 1981)

(Amendment-1996 & 2009). The detention order along with

grounds of detention dated 21.6.2016 was served on the

detenu on the same day. The detention order is based on

one C.R. and two in-camera statements. The order of

detention was issued when the detenu was in custody in

relation to R.C.C. No. 460/2005 and R.C.C. No. 169/2007 of

Sadar Bazar Police Station, Solapur city.

jfoanz vkacsjdj                                                                      2 of 9





                                                                 15. cri wp 4274-16.doc

3. Though a number of grounds have been raised in the

petition, Mr. Tripathi, the learned counsel for the petitioner

has pressed only one ground before us i.e ground No. 8(v)

which reads as under:

" The petitioner says and submits that in case of a person is in custody, if detention is to be clamped against him, there are three guidelines laid down by the Hon'ble Supreme Court and in this case one of the important guidelines is missing. The petitioner submits that no satisfaction is recorded in the grounds of detention to the effect that there is imminent and real possibility of grant of bail to the detenu. On the contrary, what is stated that "as per your bail application, if you get bail, you will be a free person" which is not the requirement of law. The order of detention is illegal for non-recording the above said satisfaction. The order of detention is illegal and bad in law, liable to be quashed and set aside."

4. Thus, the sole contention raised by Mr. Tripathi is that

no subjective satisfaction was recorded by the detaining

authority in the grounds of detention that the detaining

authority had reason to believe that there was imminent

possibility or probability or real possibility or likelihood of bail

being granted to the detenu. Mr. Tripathi relied on the

jfoanz vkacsjdj 3 of 9

15. cri wp 4274-16.doc

decision of the Supreme Court in the case of Champion R.

Sangma Vs State of Meghalaya & Anr. 1. The Supreme

Court in paragraph 9 of the said decision observed as under:-

9. Coming to the ground on which we intend to allow this appeal, we may point out that even if the appellant is in jail in connection with some criminal case(s), there is no prohibition in law to pass the detention order. Law on this aspect is well settled and stands crystalized by plethora of judgments of this 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 Kamarunnissa Vs. Union of India & Anr.2 "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...................."

[ Emphasis supplied. ] 1 2015 ALL MR (Cri) 3673 (S.C.)

2. 1991(1) SCC 128 (pa. 13)

jfoanz vkacsjdj 4 of 9

15. cri wp 4274-16.doc

Mr. Tripathi pointed out that the second requirement is

not complied with. He pointed out that there is no subjective

satisfaction recorded in the grounds of detention that there

is real possibility or likelihood or imminent possibility or

probability of detenu being released on bail.

5. On perusal of the grounds of detention, we find that no

such satisfaction has been recorded by the detaining

authority anywhere in the grounds of detention. However,

the learned APP placed reliance on a recent decision of the

Supreme Court in the case of G. Reddeiah Vs.

Government of Andhra Pradesh & Anr.3 . She placed

reliance on paragraph 22 of the said decision wherein it is

observed as under:-

22. In a matter of detention, the law is clear that as far as subjective satisfaction is concerned, it should either be reflected in the detention order or in the affidavit justifying the detention order...........

3 (2012) 2 SCC 389

jfoanz vkacsjdj 5 of 9

15. cri wp 4274-16.doc

6. Mr. Tripathi, on the other hand, placed reliance on the

decision of the Supreme Court in the case of Dharmendra

Suganchand Chelawat & Anr. Vs. Union of India 4. He

placed reliance on paragraph 19 of the said decision wherein

it is stated as under:-

" 19. ..........an 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 "

(i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and..........

[ Emphasis supplied. ]

As far as this decision is concerned, the issue did not

come up before the Supreme Court in the case of

Dharmendra Chelawat whether in absence of satisfaction

being expressed in the grounds of detention, the subjective

satisfaction expressed in the affidavit would be enough, 4 AIR 1990 SC 1196

jfoanz vkacsjdj 6 of 9

15. cri wp 4274-16.doc

hence, the Supreme Court was not called upon to consider

this aspect of the matter and hence, there is reference only

to the satisfaction being expressed in the grounds of

detention. Further as stated earlier, in the recent decision of

the Supreme Court in the case of G. Reddeiah, it has been

specifically held that the satisfaction can be expressed in the

grounds of detention or in the affidavit. Thus, even if the

subjective satisfaction is expressed in the affidavit, that

would be sufficient.

7. The learned APP placed reliance on the affidavit of the

detaining authority, more specifically paragraph 10 thereof,

wherein it is stated as under :

10. ...... I further say that I was aware that the petitioner was in custody in view of warrant issued in R.C.C. No. 460/2005 and R.C.C. No. 169/2007 of the learned C.J.M.

Court, Solapur. On 17.6.2017, the petitioner applied for bail in above cases which was pending. The copy of jail authority informing about his custody in R.C.C. cases and bail application has been placed before me and after looking to the involvement of the petitioner, I was subjectively satisfied that the petitioner would be released on bail and on being free person, the detenu is likely to

jfoanz vkacsjdj 7 of 9

15. cri wp 4274-16.doc

revert to similar activities in future, hence, it is necessary to detain him under the M.P.D.A. Act, 1981..........

8. No doubt, subjective satisfaction is expressed in the

affidavit, however, the matter does not rest there. In the

grounds of detention, the detaining authority has specifically

stated that the detenu was in custody in R.C.C. Nos.

460/2005 and 169/2007. The learned APP stated that R.C.C.

No. 460 of 2005 pertains to C.R. No. 144/2005 and R.C.C. No.

169/2007 pertains to C.R. No. 60/2006. The compilation of

documents show that the bail application was preferred by

the detenu only in R.C.C. No. 460/2005. No bail application

had been preferred in relation to R.C.C. No. 169/2007.

Hence, when the detaining authority stated in the affidavit

that the bail application was placed before him, this means

only the bail application in C.R. No. 144/2005 which pertains

to R.C.C. No. 460/2005. As far as R.C.C. No. 169/2007 is

concerned, the bail application in the said case was not

placed before the detaining authority. Thus, there was no

material before the detaining authority to be subjectively

satisfied that the detenu is likely to be released on bail in the

jfoanz vkacsjdj 8 of 9

15. cri wp 4274-16.doc

said case i.e R.C.C. No. 169/2007 and on being a free person,

he will revert to similar activities.

9. The detaining authority in his affidavit has made

specific reference to one bail application. From the

compilation of documents, it is seen that it is in relation to

R.C.C. No. 460/2005 only. Even in the grounds of detention,

there is reference to only one bail application. Thus, as far

as the second case is concerned, there was no material

before the detaining authority to reach his subjective

satisfaction that the detenu is likely to be released on bail.

10. In view of the above, we have no option but to set

aside the order of detention, hence, the detention order is

quashed.

11. The detenu be released forthwith if not required in any

other case.

12. Rule is made absolute in the above terms.

[ SANDEEP K. SHINDE, J. ]              [ SMT. V.K. TAHILRAMANI, J. ]



jfoanz vkacsjdj                                                        9 of 9