Bombay High Court
Ganesh @ Ganya Shamrao Pendor vs State Of Maharashtra Thr. ... on 11 September, 2017
Bench: V.A. Naik
1
wp537.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.537 OF 2017
Ganesh @ Ganya Shamrao Pendor,
Aged about 29 years, Occ. Private,
r/o. Itwara Bazar, Wardha. ..... PETITIONER
// VERSUS //
1. State of Maharashtra,
Through its Secretary,
Home Department (Special)
Mantralaya, Mumbai.
2. District Magistrate/Collector,
Distt. Wardha.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr.Mir Nagman Ali, Advocate for the Petitioner.
Mr.S.S.Doifode, A.P.P. for the Respondents/State.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : SMT. VASANTI A NAIK AND
M. G. GIRATKAR, JJ.
DATE : 11.9.2017.
ORAL JUDGMENT (Per Vasanti A Naik, J) :
Rule. Rule made returnable forthwith. Heard finally with the
consent of the learned Counsel for the parties.
By this Criminal Writ Petition, the petitioner challenges the
order of his detention, dated 30th March, 2017 under the provisions of the
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers,
Drug Offenders, Dangerous Persons and Video Pirates Act, 1981.
Mr.Mir Nagman Ali, the learned Counsel for the petitioner, inter
alia, states that the impugned order is liable to be quashed and set aside in
view of the law laid down by the Hon'ble Supreme Court in the Judgments
reported in (2011) 5 SCC 244, Rekha vs. State of Tamil Nadu through
Secretary to Government and another and 2012 ALL SCR 1373,
Rushikesh Tanaji Bhoite .vs. State of Maharashtra and Others, in which
it is laid down that at the time of passing the order of detention it would be
necessary for the Detaining Authority to consider the order/orders granting
bail to the detenue in the offences that are pending against him. It is
submitted that it is held by the Supreme Court in the aforesaid Judgments
that non-placing and non-consideration of the bail orders would vitiate the
subjective decision of the Detaining Authority.
Mr.S.S.Doifode, the learned Additional Public Prosecutor
appearing on behalf of the respondents does not dispute that the orders
granting bail to the petitioner were not placed before the Detaining
Authority before the order of detention was passed. It is, however, stated
that non-consideration of the orders granting bail to the petitioner in the
offences that were pending against him would not vitiate the impugned
order as the petitioner has not pointed out as to what prejudice is caused to
the petitioner due to non-consideration of the orders granting bail. It is
submitted that the detention order was passed by the Detaining Authority
after being satisfied that the petitioner was a dangerous person and his
activities were adversely affecting the public peace and order. It is stated
that the impugned order of detention is based on the satisfaction of the
Detaining Authority that the petitioner had disobeyed the order of his
externment and has committed serious offences affecting the body and
property. The learned Additional Public Prosecutor relied on the Judgments
reported in 2002 ALL MR (Cri) 1018, Nitin Narayan Pandare .vs.
M.N.Singh and Others; 2006 ALL MR (Cri) 207 (S.C.), J. Abdul Hakeem
vs. State of Tamil Nadu and Others and (2000) 9 SCC 170,
Radhakrishan Prabhakaran vs. State of Tamil Nadu to substantiate his
submission. It is stated that it is held by this Court in the Judgment reported
in 2014 ALL MR (Cri) 2168, Ravi Hanumant Thorat .vs The State of
Maharashtra and Others that only the relevant and vital documents are
required to be placed before the Detaining Authority.
We are inclined to accept the submission made on behalf of the
petitioner that the impugned order would be vitiated due to non-
consideration of the orders granting bail to the petitioners in the offences
registered against him. In none of the Judgments that are relied on by the
learned Additional Public Prosecutor, the Hon'ble Supreme Court or this
Court were deciding the issue whether it would be necessary to place the
orders granting bail to the detenue, before the Detaining Authority. It is
observed by this Court in the Judgment reported in 2014 ALL MR (Cri) 2168
(supra) that the relevant and vital documents are required to be placed
before the Detaining Authority, which the Detaining Authority can take into
consideration. However, the question whether the orders releasing the
detenue on bail are required to be considered by the Detaining Authority or
not and what would be the effect of the non-consideration of the orders
granting bail to the detenue was considered by the Hon'ble Supreme Court
in the case of Rekha .vs. State of Tamil Nadu (supra) and Rushikesh Tanaji
Bhoite vs. State of Maharashtra and Others (supra). The Hon'ble Supreme
Court had observed in the Judgment in the case of Rushikesh Tanaji Bhoite
(supra) that non-placing and non-consideration of the bail orders granted to
the detenue would vitiate the subjective decision of the Detaining Authority.
The Hon'ble Supreme Court observed that it would not attempt to assess in
what manner and to what extent the consideration of the order granting bail
to the detenue would have affected the satisfaction of the Detaining
Authority, still the non-placing and non-consideration of the orders granting
bail would vitiate the subjective decision of the Detaining Authority. We
would humbly follow the law laid down in the Judgment in the case of
Rushikesh Tanaji Bhoite (supra) to allow the Writ Petition by quashing and
setting aside the order of the Detaining Authority.
Hence, for the reasons aforesaid, the Writ Petition is allowed.
The impugned order is quashed and set aside. Rule is made absolute in the
aforesaid terms.
Hamdast or Steno copy of this order is granted on request.
JUDGE JUDGE
JAISWAL
