Namrata Avinash Kadu Wife Of Pappu ... vs State Of Maharashtra And Anr
2022 Latest Caselaw 13435 Bom

                                                                                          46-WP-1856-2022.doc




                                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                  CRIMINAL APPELLATE JURISDICTION
                                               CRIMINAL WRIT PETITION NO. 1856 OF 2022
                             Namrata Avinash Kadu Wife of Pappu @
                             Avinash Vasant Kadu - Detenu                           ...Applicant
                                   Versus
                             State of Maharshtra And Anr.                           ...Respondents
                                                             ....
                             Mr. Shailesh Kharat, Advocate for the Petitioner.
                             Mrs. M.H. Mhatre, APP for Respondent - State.
                                                      CORAM                   : A. S. GADKARI AND
                                                                                PRAKASH D. NAIK, JJ.

                                                      RESERVED ON             : 15th DECEMBER, 2022.
                                                      PRONOUNCED ON           : 22nd DECEMBER, 2022.
                             JUDGMENT : (Per : PRAKASH D. NAIK, J.)

1. Petitioner is the wife of Detenu Pappu @ Avinash Vasant Kadu

(hereinafter referred to as Detenu). The petitioner has challenged

Order of Detention dated 11th February, 2022 issued by the

Commissioner of Police, Pune City under the Maharashtra Prevention

of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders,

Dangerous Persons, Video Pirates, Sand Smugglers and Persons

engaged in Black-marketing Essential Commodities Act, 1981. (for

short "M.P.D. Act'). The impugned Order of Detention and the

grounds of detention were served upon the Detenu alongwith the Digitally signed

SUNNY by SUNNY ANKUSHRAO documents.

ANKUSHRAO THOTE
THOTE     Date:
          2022.12.22
          19:23:01 +0530

2. The impugned Order of Detention is purportedly issued with a

view to prevent the Detenu from acting in any manner prejudicial to

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the maintenance of public order.

3. The grounds of detention stipulates the offences considered for

passing of Detention Order. The Detaining Authority has relied upon

two crimes. C.R. No.162 of 2021 registered with Kothrud Police

Station on 4th August, 2021 for offences under Sections 435, 504,

506 and 34 of Indian Penal Code (for short 'IPC') and Section 4(25)

of the Arms Act. C.R. No.171 of 2021 was registered with Khothrud

Police Station on 14th August, 2021 for offences under Sections 353,

225, 143, 506 and 34 of IPC. Apart from the aforesaid cases the

Detaining Authority has also relied upon statements of two witnesses

recorded in camera. The said witnesses are referred to as Witness -A

and Witness-B. The Witness-A has referred to alleged incident dated

25th November, 2021 and Witness-B makes reference to statement

dated 10th December, 2021. In Paragraph No.8 of the grounds of

detention, it is stated that the Detaining Authority has relied upon

the material mentioned in Paragraph No.5.1, 5.2, 6.1 and 6.2 of the

ground of detention to arrive at his subjective satisfaction that

Detenu is a dangerous person as defined in Paragraph No.2(b-1) of

the M.P.D. Act and his criminal activities are prejudicial to the

maintenance of public order.

4. Learned Advocate Mr. Shailesh Kharat appearing for the

petitioner has submitted that the impugned Order of Detention has

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been challenged on several grounds. The main grounds of challenge

are as follows;

i. The Detenu had preferred an application for anticipatory

bail in connection with C.R. No.171 of 2021 registered with

Kothrud Police Station, Pune City. The said application was

allowed vide order dated 8th December, 2021. The order

granting anticipatory bail was not placed before the Detaining

Authority and not supplied to the Detenu. This has affected the

subjective satisfaction of the Detaining Authority and Detenu's

right to make effective representation under Article 22(5) of

Constitution of India.

ii. The Detenu has been supplied the documents alongwith

order of grounds of detention. Some of the documents are

illegible. Supply of illegible documents has affected right of

Detenu to make effective representation under Article 22(5) of

Constitution of India.

iii. The Detaining Authority has referred to past antecedents

and old cases registered against the Detenu. It was not

necessary for Detaining Authority to rely upon old and stale

cases.

5. In support of the first ground of challenge the learned

Advocate Mr. Kharat has submitted that, the order granting

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anticipatory bail to the Detenu was vital and important document.

The said order was not placed before the Detaining Authority by the

Sponsoring Authority. It was a detailed order and it contains

conditions while allowing the application for anticipatory bail.

Therefore, it was necessary for the Sponsoring Authority to place the

said order before Detaining Authority. Neither the detailed Order

dated 8th December, 2020 nor the operative part of the Order was

placed before Detaining Authority. The Order is also not supplied to

the Detenu. The Detaining Authority is not aware that the Detenu

was granted anticipatory bail in C.R. No.171 of 2021 registered with

Kothrud Police Station, Pune City. Hence in Paragraph No.5.2 the

Detaining Authority has stated that the Detenu has been arrested and

released on bail. It was made to appear to the authority that the

Detenu was arrested and released on bail. Non-placement of the

said document has affected subjective satisfaction of the Detaining

Authority and non-supply of said order to Detenu has affected his

right to make representation guaranteed under Article 22(5) of the

Constitution of India. He has relied upon the following decisions;

i. Rushikesh Tanaji Bhoite V/s. State of Maharashtra And

Others, 2012 SCC Online SC 7 .

ii. Abdul Sathar Ibrahim Manik V/s. Union of India And

Others, (1992) 1 SCC 1.

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iii. Pandurang @ Panda Narayan Garud V/s. The District

Magistrate, Pune decided by this Court in Criminal Writ

Petition No.454 of 2022 dated 12th August, 2022.

6. Learned APP submitted that non-placement of the order of

granting anticipatory bail to the Detenu in C.R. No. 171 of 2021 has

not affected the subjective satisfaction of the Detaining Authority. In

the grounds of detention the Detaining Authority has stated that the

Detenu was arrested and released on bail as per order of Sessions

Court, Shivaji Nagar, Pune. The Detaining Authority was aware that

the Detenu is on bail. The Detenu had executed Bail Bond and the

document relating to the execution of Bail Bond was placed before

the Detaining Authority. Learned APP has relied upon Affidavit-in-

reply filed by the Detaining Authority. In the reply it is stated that

non-supply of bail order has not affected right of Detenu under

Article 22(5) of Constitution of India. The Detaining Authority was

aware that in both the offences the Detenu is on bail. In the

additional affidavit dated 8th December, 2022 filed by the Detaining

Authority it was denied that, the Order of Detention is bad in law for

want of copy of anticipatory bail application and full text order of

granting bail in C.R. No.171 of 2021. The bail application and the

order granting bail in C.R. No.171 of 2021 was not placed before the

Detaining Authority and the copies of the same are not furnished to

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the Detenu except operative part of anticipatory bail order and the

other documents in relation to grant of bail. The full text of

anticipatory bail order was placed before this Court, which shows

that no stringent condition was imposed while granting bail. In the

said order, no vital material or information mentioned which would

have influenced the mind of Detaining Authority while recording

subjective satisfaction.

7. Learned APP submitted that the order granting anticipatory

bail was in relation to C.R. No.171 of 2021 which was one of the

case considered while issuing Order of Detention. Even if the

contention of the Detenu is accepted, the ground relating to C.R.171

of 2021 may not survive. However, Order of Detention would still

survive in view of Section 5-A of the M.P.D. Act on the basis of C.R.

No.162 of 2021 and two in camera statements of Witnesses A and B,

relied upon by Detaining Authority for issuing Order of Detention.

8. Learned APP has relied upon the following decisions;

i. K. Vardharaj V/s. State of T.N. And Another, (2002) 6

SCC 735.

ii. Vishal Aananda Mahabal V/s. The State of Maharashtra

And Others decided by this Court on 4th December, 2021 in

Writ Petition No.2702 of 2021.

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9. Although the petitioner had urged several grounds as stated

above, it is not necessary to deal with all the grounds since according

to us the Order of Detention can be set aside on one ground of

challenge i.e. non-placement of Order granting anticipatory bail

before Detaining Authority and non-supply of said Order to Detenu.

10. In Paragraph No.5 of the Order of Detention, the particulars of

offences considered for passing Detention Order are mentioned.

C.R. No.171 of 2021 registered with Kothrud Police Station, Pune

City is one of the case which is considered for issuing the Order of

Detention. The FIR was registered with Kothrud Police Station, Pune

City on 14th August, 2021 for offences under Section 353, 225, 143,

506 and 34 of IPC. After narrating the incident relating to C.R. No.

171 of 2021 in Paragraph No.5.2 of grounds of detention, it is stated

that Detenu was arrested on 3rd February, 2022 and immediately

released on bail as per the order of Sessions Court, Shivaji Nagar,

Pune. Apparently, the Detaining Authority has relied upon the Bail

Bond which is annexed at Page No.150 of the paper book indicating

that the Detenu has executed surety bond in the sum of Rs.50,000/-

in connection with C.R. No.171 of 2021. The said document or the

averments in grounds of detention does not indicate that the

Detaining Authority was aware that the Detenu was granted

anticipatory bail. In fact in the Affidavit-in-reply filed by Detaining

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Authority it is stated that application for anticipatory bail and Order

granting anticipatory bail to Detenu in C.R. No.171 of 2021 is not

placed before Detaining Authority and the said documents are not

supplied to Detenu.

11. In the case of Rushikesh Tanaji Bhoite V/s. State of

Maharashtra And Others (Supra), it was observed that in a case

where the 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, must be placed before Detaining

Authority to enable him to reach at the proper satisfaction. Since the

Order of bail 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 the Detention Order is

rendered invalid.

12. In the case of Abdul Sathar Ibrahim Manik V/s. Union of India

And Others (Supra), the Apex Court has observed that in a case

where detenu is released on bail and is at liberty at the time of

passing the Order of Detention, than the Detaining Authority has to

necessarily rely upon them as that would be a vital ground for

Ordering detention. In such a case the bail application and the order

granting bail should necessarily be placed before authority and the

copies should also be supplied to the detenu.

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13. In the case of Pandurang @ Panda Narayan Garud V/s. The

District Magistrate, Pune (Supra), the Court has considered the

submission that the bail application and the reasoned Order on the

anticipatory bail in respect of C.R. No. 638 of 2021 were not placed

before the Detaining Authority by the Sponsoring Authority, neither

copies were given to the Detenu. Hence the subjective satisfaction of

the Detaining Authority would be vitiated in law and non-supply of

documents to the Detenu would affect the right to make

representation under Article 22(5) of Constitution of India. This

Court referred to decision in the caes of Abdul Sathar Ibrahim Manik

V/s. Union of India And Others (Supra) and Paras V/s. State of

Maharashtra and Another. It was observed that, it cannot be said

that, the application for anticipatory bail and the order of bail were

not germane for consideration of Detaining Authority. The reasons

on which the Detenu applied for bail and was granted bail by the

ordinary Court would reflect upon the need to pass the Order of

Detention. The non-consideration of this vital documents vitiates the

subjective satisfaction of the Detaining Authority.

14. In the case of K. Vardhraj V/s State of T.N. And Another

(Supra), it was observed that, while making detention Order in

respect of a person detained under a Detention Act, it is not always

mandatory to the Detaining Authority to take into consideration, the

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bail application filed by the Detenu and any Order passed thereon by

the Criminal Court.

15. In the case of Vishal Aananda Mahabal V/s. The State of

Maharashtra and Others (Supra), it was argued at the instance of

petitioner/detenu that subjective satisfaction is based on three

grounds i.e. first information report and statements of witnesses A

and B and if the statement of witness-B is discarded than subjective

satisfaction in its entirety will be vitiated. The subjective satisfaction

is based on different grounds and if one ground is found to be invalid

than subjective satisfaction would be vitiated. The aforesaid

submission was rejected by this Court by considering Section 5-A

introduced under the Act. It was held that, if a person detained on

two more grounds and even if, one ground is improper, the same will

not make the entire detention invalid. Even if the statement of

witness-B is kept aside, the statement of witness-A and FIR can

constitute a ground for Order of Detention. Learned APP has

strongly relied upon the aforesaid decision to contend that for non-

placement of Order granting anticipatory bail at the most, the

ground relating to C.R. No.171 of 2021 would not survive, but the

Detention Order can be sustained on the other grounds.

16. We are not agreement with the submission advanced by

learned APP. The decision in the case of Vishal Aananda Mahabal

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V/s. The State of Maharashtra and Others (Supra) cannot be applied

to the present case. Section 5-A would not come to the rescue of the

Detaining Authority.

17. Section 5-A reads as follow:-

"5-A. Where a person has been detained in pursuance of an Order of Detention under Section - which has been made on two or more grounds, such Order of Detention shall be deemed to have been made separately on each of such grounds and accordingly-

(a) Such order shall not be deemed to be invalid or inoperative merely because one or more of the grounds is or are-

(i) vague,

(ii) non-existent,

(iii) not relevant,

(iv) not connected or not proximately connected with such person, or

(v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the State Government or an officer mentioned in sub-section (2) of section 3 making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds and made the Order of Detention;

(b) The State Government or such officer making the Order of Detention shall be deemed to have made the Order of Detention under the said section 3 after being satisfied as provided in that section with reference to the remaining ground or grounds."

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18. It is pertinent to note that, undisputadely the bail application

and the Order granting anticipatory bail were in C.R. No.171 of 2021

were not placed before Detaining Authority nor supplied to the

Detenu. Non-placement of the application and the Order would

certainly affect the subjective satisfaction of Detaining Authority. It

cannot be accepted that application for anticipatory bail and the

Order granting anticipatory bail were not vital and important

documents. The petitioner has placed for consideration the Order

dated 8th December, 2021 granting anticipatory bail. The Order

indicates that, considering the statement in FIR it appears that prima

facie case is made out against the detenu; he has antecedents; he

was externed; however, the State has already filed a chargesheet

against the detenu and others; investigation is over and the presence

of the detenu for investigation is not needed. Probably that is why

the Investigation Officer has already submitted chargesheet as is

evident from the documents produced on record by the State. If the

applicant is granted bail in anticipation of his arrest it is not going to

hamper the investigation. Witnesses in this case are police personnel

and there is no possibility of the applicant influencing them when

the chargesheet is already filed. It was directed that in the event of

arrest of detenu may be released on bail on furnishing P.B. of

Rs.30,000/- with one or more surety in the like amount. He shall

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cooperate with the Investigating Agency. He shall provide

permanent residential address and contact number of himself and of

his two close relatives with documentary proof to the Investigating

Agency within seven days from the date of his release on bail. He

shall not try to contact or influence the witness. From the tenor of

the Order and the grounds and conditions on which bail has been

granted to the detenu, it is difficult to accept that, the document was

not vital and important and that it would not have affected

subjective satisfaction of the Detaining Authority. The full text Order,

or operative Order were not before Detaining Authority. What was

placed is copy of bail bond executed after arrest of detenu. It ought

to have placed before Detaining Authority and the copy should have

been supplied to the Detenu. Non-suply of the document would

affect the right guaranteed under Article 22(5) of Constitution of

India.

19. As stated hereinabove, the non-placement of document before

detaining Authority and non-supply of documents to the Detenu

vitiate the subjective satisfaction of Detaining Authority and affects

right of detenu under Article 22(5) of Constitution of India. Section

5-A of the Act would not be any assistance to respondents. It is not

possible to accept that the Order would survive on the other

grounds. The decision relied upon by learned APP was delivered in

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the facts of the said case and would not be applicable in the instance

case. The Order of Detention has to be set aside.

ORDER

i. The Order of Detention dated 11th February, 2022 passed

by Respondent No.2 is quashed and set aside.

ii. The Detenu Pappu @ Avinash Vasant Kadu be released

forthwith unless require in any other case.

20. Criminal Writ Petition No.1856 of 2022 is allowed and Rule

made absolute in the above terms.

[PRAKASH D. NAIK, J.]                                       [A.S. GADKARI, J.]




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