Hrishi @ Sarjerao Baban Takele vs The District Magistrate And Ors
2017 Latest Caselaw 3155 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                   CRIMINAL APPELLATE JURISDICTION

             CRIMINAL WRIT PETITION NO.388 OF 2017


Hrishi @ Sarjerao Baban Takele                  ......Petitioner
V/s.
The District Magistrate, Sangli
& Ors.                                          .......Respondents


Mr. Udaynath Tripathi, Advocate for Petitioner.
Ms. M.H.Mhatre , APP for Respondent-State.


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

DATE : 14th June, 2017.

ORAL JUDGMENT (Per Smt. V.K.Tahilramani, J.) :

Heard both sides.

2 The Petitioner/Detenu Hrishi @ Sarjerao Baban

Takele has preferred this Petition questioning the

preventive detention order passed against him on

27.12.2016 by the Respondent No.1-District Magistrate,

Sangli. The said detention order has been passed under the

the Maharashtra Prevention of Dangerous Activities of

Slumlords, Bootleggers, Drugoffenders, Dangerous persons Shivgan

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and Video Pirates act, 1981. (hereinafter referred to as

'MPDA Act'). The said detention order has been issued as

the Detenu is a Dangerous person whose activities are

prejudicial to the maintenance of public order. The

detention order is based on one C.R i.e. C.R.No.36 of 2016

of Bhilwadi Police Station, Sangli and two in-camera

statements of Witnesses 'A' and 'B'.

3 Though a number of grounds have been raised

in the present petition whereby the detention order has

been assailed, however, the learned counsel appearing for

the Petitioner/Detenu has pressed only two grounds before

us, i.e. ground nos.5(d) and 5(i). In ground 5(d), it is stated

that in C.R.No.36 of 2016, the Detenu was granted bail by

the Court and he was free person, however, the bail

application and the bail order, which are vital documents

were not placed before the Detaining Authority nor copies

thereof were furnished to the Detenu. In such a case,

subjective satisfaction of the Detaining Authority is vitiated

and the detenu is deprived of making an effective

representation against the order of detention. Hence, the

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detention order is liable to be quashed and set aside.

4 Ground 5(d) has been replied to by the

Detaining Authority in paragraph 11 of his reply. On perusal

thereof, it is seen that the Detaining Authority has not

denied that the bail application was placed before him. The

Detaining Authority has stated that copy of the order

whereby application of the Detenu for anticipatory bail

came to be granted was placed before him which is at Page

58 of the compilation furnished to the Detenu. On the basis

thereof, he was aware that the Detenu was on bail.

5 Mr. Tripathi pointed out that Page 58 is only

operative part of the order of the Sessions Court granting

anticipatory bail to the Detenu. The entire order was not

placed before the Detaining Authority. The order runs into

six pages and it contains detailed reasons as to why

anticipatory bail was granted to the Detenu. Admittedly,

entire order running into six pages was not placed before

the Detaining Authority and the copy thereof was not

furnished to the Detenu.

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6                Mr. Tripathi also raised ground ( i ) in relation to

the detenu being in custody. In this ground, it is stated that

the Detaining Authority has relied on C.R.No.36 of 2016 to

issue the detention order, which is clear from the grounds

of detention, however, no awareness is shown in the

grounds of detention as to whether the Detenu was on bail

or not in the said case. It was stated that the Detaining

Authority should have shown its awareness in relation to

whether the Detenu was in custody or not in the grounds of

detention and not showing such awareness would vitiate

the detention order.

7 In relation to ground (d) and ( i ) Mr. Tripathi is

relying on the decision of the Supreme Court in the case of

Rushikesh Tanaji Bhoite v. State of Maharashtra &

Ors. reported in 2012 Cri.L.J.1334. Mr. Tripathi placed

reliance on paragraphs 8,9 and 10 of the said decision. Mr.

Tripathi pointed out that in paragraph 8, it is observed as

under:

"8..............However, the detention order or the grounds supplied to the Detenu do not show that the detaining authority was aware of the bail order granted in favour of the Detenu on August

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15,2010."

Mr. Tripathi pointed out that in the present case

also, the detention order or grounds of detention do not

show any awareness of the detaining authority whether the

detenu was in custody or was released on bail.

8 Mr. Tripathi pointed out that in the case of

Rushikesh Bhoite (Supra), in paragraphs 9 and 10 of the

said decision, it is observed as under:

"9 In a case where Detenu is released on bail and is enjoying his freedom under the order of the court at the time of passing the order of detention, then such order of bail, in our opinion, must be placed before the detaining authority to enable him to reach at the proper satisfaction.

10 In the present case, since the order of bail dated August 15, 2010 was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, in our view, the detention order is rendered invalid. We cannot attempt to assess in what manner and to what extent consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority but suffice it to say that non-placing and non-consideration of the

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material as vital as the bail order has vitiated the subjective decision of the detaining authority."

(Emphasis supplied)

9 Mr. Tripathi pointed out that after making above

observations in paragraphs 8, 9 and 10 of the decision in the

case of Rushikesh Bhoite (Supra), the Supreme Court

observed that the order of bail was neither placed before the

Detaining Authority at the time of passing the detention order

nor the Detaining Authority was aware of the order of bail.

Hence, detention order is rendered invalid. It was further

observed that non-placing and non-consideration of the

material as vital as the bail order has vitiated the subjective

satisfaction of the Detaining Authority. In the present case also,

nowhere in the detention order or in the grounds of detention,

the Detaining Authority has shown its awareness that bail was

granted to the Detenu in C.R.No.36 of 2016. It is also an

admitted fact that detailed order granting anticipatory bail to

the Detenu running into six pages was not placed before the

Detaining Authority nor a copy thereof was furnished to the

Detenu.

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10               In this view of the matter, the decision in the case of

Rushikesh Bhoite (Supra) would squarely apply to the

present case, hence, we have no option but to set aside the

order of detention. Accordingly, the detention order is quashed

and set aside. The Detenu be set at liberty, if not wanted in any

other case. Rule is made absolute in the above terms.

(SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J)

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