Elizabeth Ranibhai Prabhudas ... vs The State Of Mah. Home Dept. ...
2021 Latest Caselaw 2961 Bom

                         1                        wp677.20.odt




        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                      NAGPUR BENCH, NAGPUR


             CRIMINAL WRIT PETITION NO.677 OF 2020



Elizabeth Ranibhai Prabhudas
Gaikwad, Aged about 52 years,
Occ.Housewife, r/o. Wadalpura
Station Area, Murtizapur,
District Akola.                        ........     PETITIONER


     // VERSUS //


1.The State of Maharashtra,
  Home Department (Special),
  Through its Section Officer,
  Second Floor, Main Building,
  Mantralaya, Mumbai - 32.

2.Collector & District Magistrate,
  Akola, District Akola.               ........    RESPONDENTS


-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
         Mr.S.V.Sirpurkar, Advocate for the petitioner.
         Ms H.N.Jaipurkar, A.P.P. for Respondent Nos. 1 and 2.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                         2                          wp677.20.odt


                            CORAM : SUNIL B. SHUKRE &
                                    AVINASH G. GHAROTE, JJ.

DATE : 15.2.2021.

ORAL JUDGMENT (Per Sunil B. Shukre, J) :

1. Rule. Rule made returnable forthwith. Heard finally by

consent.

2. It is seen from the impugned orders that what really

weighed with respondent no.1 and 2 was pendency of seven criminal

cases against the petitioner. All the seven cases were in relation to

the offences allegedly committed under various Sections of

Maharashtra Prohibition Act, 1949. In short, these offences only gave

a narrative of boot legging tendencies of petitioner. Such tendencies

of petitioner, by the preventive detention orders impugned herein,

have been tried to be painted with the colour of fear and terror

overpowering the mind of the members of public. If this is so, it

would have been necessary for respondent nos. 1 and 2 to have taken

into consideration some of the fundamental facts which would have

had far reaching consequences on reaching of subjective satisfaction

regarding need for preventive detention of petitioner felt by these 3 wp677.20.odt

respondents. These facts were in the nature of bail having been

granted to the petitioner in each of the seven offences presently

pending against the petitioner as these very offences have been

considered by the respondents as constituting sufficient material for

reaching the subjective satisfaction in the matter. So, in such a case,

it was necessary for the respondents to also have considered the

impact these bail orders would have had on the proceedings initiated

against the petitioner under 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

(hereinafter referred to as "the Act of 1981"). This Section authorises

the District Magistrate to order preventive detention of a person in

anticipation of the person committing various crimes thereby creating

terror and fear in the mind of members of the public. Therefore, it is

all the more necessary for the authorities exercising power under

Section 3 of the Act of 1981 to consider as to what would be the

consequence if the proposed detenue will be allowed to remain at

large when criminal cases are pending against him. If the Authority

does not take into consideration the orders of bail granted to the

proposed detenue, it may lead to an anomalous situation whereby 4 wp677.20.odt

one authority of law i.e. Criminal Court thinks it fit to enlarge such a

person in criminal offences registered against him and the other

authority of law considers it necessary that such person is detained in

custody because of his criminal activities exhibited by pendency of

criminal cases against him The law does not expect any mismatch

between the orders passed by the two law enforcing authorites and

therefore, it is necessary that when one authority releases a person on

bail, the other authority seeking to detain him again for the same

criminal activities, considers the impact of the bail order and reaches

to an appropriate conclusion in the matter. This law is expounded by

the Apex Court in the case of Abdul Sattar Ibrahim Manik .vs. Union

of India and Others, AIR 1991 SC 2261 which has been followed by

another Division Bench in the case of Paras s/o. Ramprasad Sahu vs.

State of Maharashtra and another, 2003 (3) Mh.L.J. 24. In paragraph

8 of this Judgment, the Division Bench has reproduced relevant

observations of Supreme Court in the cited case of Abdul Sattar

Ibrahim Manik. For the sake of convenience, we would like to

reproduce the same as under :

"In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, 5 wp677.20.odt

then the Detaining Authority has to necessarily rely upon them as that would be vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should be supplied to the detenu."

3. As stated earlier, the impugned orders do not consider in

any manner the bail orders passed in various criminal cases pending

against the petitioner and therefore, the impugned order cannot be

said to be valid in the eye of law. It stands vitiated owing to the law

laid down by Hon'ble Supreme Court in the said case of Abdul Sattar

Ibrahim Manik.

4. In the result, the petition is allowed. The impugned orders

are hereby quashed and set aside.

Respondent no.2 is at liberty to consider the matter afresh,

if desired.

Rule accordingly.

                         JUDGE                            JUDGE

jaiswal                                    Digitally signed
                                 Suraj     by Suraj Jaiswal
                                           Date:
                                 Jaiswal   2021.02.17
                                           10:14:32 +0530
 6   wp677.20.odt