Gousiya Firoz Khan vs Commissioner Of Police
2023 Latest Caselaw 1668 Bom

                               SAT                                                     70-WP-3789-2022.doc




                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CRIMINAL APPELLATE JURISDICTION
                                         CRIMINAL WRIT PETITION NO. 3789 OF 2022
                               Gousiya Firoz Khan,
                               Aged : 36 years, Occu : Housewife,
                               R/o. Old Survey No.1140, New
                               Survey No.1146, Bhavani Peth,
                               Opp. Aaina Masjid, AD Camp Chowk,
                               Pune, Maharashtra                                   ...Petitioner
                                     Versus
                               1.    The Commissioner of Police,
                                     Pune City,

                               2.    The Superintendent of Jail,
                                     Nagpur Central Prison,
                                     Nagur.

                               3.    The Secretary,
                                     Advisory Board (MPDA),
                                     Mantralaya, Mumbai                          ...Respondents

                               Ms. Misbaah Solkar, Advocate for Petitioner.
                               Ms. M.H. Mhatre, APP for the Respondent-State.
                                                        CORAM           : A.S. GADKARI AND
                                                                          PRAKASH D. NAIK, JJ.

RESERVED ON : 8th FEBRUARY, 2023.

PRONOUNCED ON : 20th FEBRUARY, 2023.

JUDGMENT - (PER : PRAKASH D. NAIK, J.) :-

1. Petitioner has preferred this Petition under Article 226 of

Constitution of India, challenging the Order of Detention dated 6 th Digitally signed September, 2022 passed by Commissioner of Police, Pune City by SUNNY SUNNY ANKUSHRAO ANKUSHRAO THOTE THOTE Date: 2023.02.21 10:17:32 +0530 (Respondent No.1) under Section 3(2) of the Maharashtra

Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug

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Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and

persons engaged in Black-marketing of Essential Commodities Act,

1981 (for short 'M.PD.A. Act'), directing that Mr. Firoz @ Babali

Makbul Khan be detained with a view to prevent him from acting

in any manner prejudicial to the maintenance of public order.

Petitioner is wife of the said detenu.

Alongwith Order of Detention the detenu was also served

with the grounds of Detention and the documents relied upon by

the Detaining Authority for passing Impugned Order of Detention.

2. Learned Advocate Ms. Misbaah Solkar appearing for

Petitioner submitted that, the Order of Detention is based on C.R.

No.156 of 2022 registered with Khadak Police Station for offence

under Sections 143, 147, 148, 149, 427, 504, 506 of Indian Penal

Code (for short 'IPC') and Section 4(25) of the Arms Act and

Section 7 of Criminal Law Amendment Act and C.R. No.116 of

2022 registered with Samarth Police Station for offence under

Sections 326, 323, 504, 506, 34 of IPC and Sections 3 and 7 of

Criminal Law Amendment Act. The Detaining Authority has also

relied upon statement of witnesses A and B recorded in camera for

issuing the impugned Order of Detention. It is submitted that, the

detenu was arrested in connection with C.R. No.156 of 2022 on

31st May, 2022 and in C.R. No.116 of 2022 on 7th July, 2022.

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Pursuant to the arrest of detenu in C.R. No.156 of 2022 the detenu

was produced before the concerned Court and remanded to

magisterial custody till 14th June, 2022. In the grounds of detention

it was stated that the detenu had applied for bail on 2nd June, 2022

before the J.M.F.C. Court, Pune which was granted and he was

released accordingly. In C.R. No. 116 of 2022 the detenu was

produced before the concerned Court on 8th July, 2022 and

remanded to magisterial custody till 22 nd July, 2022. He had

applied for bail on 8th July, 2022 and the application was pending.

On completing investigation, charge-sheet was filed. The impugned

Order of Detention was issued on 6th September, 2022. On the date

of issuance of Order of Detention the detenu was in custody. The

Detaining Authority was aware that the detenu was already in

judicial custody. However, the Detaining Authority has not

disclosed any possibility of detenu being released on bail. The

Detaining Authority has not disclosed any cogent material and facts

which necessitated the making of Detention Order. The valid

Detention Order can only be passed against the detenu if the

Detaining Authority is subjectively satisfied that there is real and

imminent possibility of the detenu being released on bail based on

cogent material and that it is absolute imperative to pass a valid

Detention Order against the detenu while he is in custody. The

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Detaining Authority is duty bound to express its satisfaction in the

grounds of detention as to the imminent possibility of detenu's

release on bail, which is not done in this case. The satisfaction of

the Detaining Authority is vitiated as it is not based on any cogent

material. The Detaining Authority has not dealt with this issue in

the affidavit-in-reply. Reliance is placed on the decision of this

Court dated 25th January, 2023 in the case of Jayesh Damodar Koli

V/s. The Commissioner of Police & Ors., passed in Criminal Writ

Petition No. 2967 of 2022.

3. Learned APP submitted that the Detaining Authority was

aware that the detenu was in custody on the date of issuing Order

of Detention. In the grounds of detention it is stated that the

detenu had applied for bail in C.R. No.116 of 2022 and the

application for bail was pending before the Court. In paragraph

No.8 of grounds of detention the Detaining Authority has stated

that the application for bail of detenu is pending for decision. The

detenu may be granted bail under the ordinary law of the land as

the offence is not compulsorily punishable with death sentence. In

view of his activities the Detaining Authority is satisfied that after

availing bail facility and becoming a free person the detenu is likely

to revert to similar activities. It is submitted that the question of

dealing with submission advanced by the learned Advocate for

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Petitioner in the affidavit-in-reply did not arise since the aforesaid

ground is not pleaded in the Petition. Learned APP adverted to

ground (F) urged by Petitioner in the Petition wherein it has been

urged that, despite the Sponsoring Authority knowing that, the

detenu was in judicial custody in C.R. No.116 of 2022 registered

with Samarth Police Station, the Sponsoring Authority moved a

proposal before the Detaining Authority during the pendency of the

bail application of the detenu only to ensure that the detenu

continues to be behind bars, if the Court grants bail to the detenu

and therefore, Detention Order smacks of malafide rendering it to

quash and set aside. It is submitted that in the context of the

ground urged by Petitioner the Detaining Authority in the affidavit-

in-reply has stated that the said ground pertains to Sponsoring

Authority and therefore, the affidavit of Sponsoring Authority may

be perused. Learned APP then pointed out the reply filed by the

Sponsoring Authority and submitted that Petitioner's contention

urged in the ground 6-(F) has been dealt with in the said affidavit-

in-reply by stating that it is denied that Sponsoring Authority has

moved the proposal before Detaining Authority during the

pendency of bail application of detenu, only to ensure that, he

continues to remain behind the bars. It is also denied that the

Order of Detention smacks of malafide. It was also stated that

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during the course of investigation the detenu was arrested on 7th

July, 2022. The bail application preferred by detenu was pending

on the day of issuance of Order of Detention. Hence, there is no

substance in the say of Petitioner.

4. Assuming that the submission advanced by the learned

Advocate for Petitioner is not raised categorically in the grounds of

challenge in the Petition, the grounds urged in the Petition would

indicate that the proposal was submitted for detention before the

Detaining Authority during the pendency of bail application of the

detenu. Although there may be justification for not replying the

aforesaid ground in the affidavit-in-reply by Detaining Authority,

the documents on record, the ground of detention and subjective

satisfaction reflected in the grounds of detention would indicate

that on the date of issuance of Order of Detention the detenu was

in custody in connection with C.R. No. 116 of 2022, he preferred

an application for bail on 8th July, 2022. It was pending. It is

pertinent to note that Order of Detention was issued on 6th

September, 2022, thus for a period of two months until Detention

Order was issued, the detenu was not released on bail.

5. In the case of Ramesh Yadav V/s. District Magistrate, Etah

and Others (1985) 4 SCC 232, the Supreme Court has observed

that the Order of Detention was issued as the Detaining Authority

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was apprehensive that in case the detenu was released on bail he

would again carry activities in the area. If the apprehension of the

Detaining Authority was true, the bail application had to be

opposed and in case bail was granted, challenge against that Order

in the higher forum had to be raised. Merely on the ground that

accused in detention as an under trial prisoner was likely to get bail

an Order of Detention under the National Security Act should not

ordinarily be passed.

6. In the case of Kamarunnissa V/s. Union of India and

another and connected petitions (1991) 1 SCC 128, it was observed

that even in the case of person in custody a Detention Order can

validly be passed (i) if the authority passing the Order is aware of

the fact that he is actually in custody; (ii) if he has reason to

believe on the basis of reliable material placed before him that

there is a real possibility of he being released on bail and on being

so released he would in all probability indulge in prejudicial

activity; (iii) If it is felt essential to detain him to prevent him from

so doing.

7. In the case of Binod Singh V/s. District Magistrate,

Dhanbad, Bihar and another (1986) 4 SCC 416 , it was held that

there must be awareness of the facts necessitating preventive

custody of a person for social defense. If a man is in custody and

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there is no imminent possibility of he being released, the power of

preventive detention should not be exercised. Detenu was in jail.

There was no indication that this factor or the question that the

said detenu might be released or that there was such possibility of

his release, was taken into consideration by the Detaining Authority

properly and seriously before the service of the Order. A bald

statement is merely an ipse dixit of the officer. If there were cogent

material for thinking that the detenu might be released then this

should have been made apparent.

8. In the case of A. Shanthi (SMT) V/s. Govt. of T. N. and

Others (2006) 9 SCC 711, it was observed that there was no cogent

material before the Detaining Authority on the basis of which the

Detaining Authority could be satisfied that the detenu was likely to

be released on bail. The inference has to be drawn from the

available material on record. In the absence of such material on

record the mere ipse dixit of the Detaining Authority is not

sufficient to sustain the Order of Detention.

9. This Court in the case of Smt. Suman Sudhakar Jadhav

V/s. The Commissioner of Police Thane & Ors. in Criminal Writ

Petition No.3977 of 2017 dated 20th December, 2017, has dealt

with the submission that the detenu is already in custody and there

was no necessity of issuing detention order. The Detaining

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Authority had arrived at conclusion that the detenu is violent and

terrorizing character in the concerned area and indulged in various

criminal activities. He was arrested and remanded to custody. He

preferred an application for bail which was pending before the

Court. The Detaining Authority had stated that, Detaining

Authority was aware of the fact that the detenu was in custody and

his application for bail was pending. After scrutinizing the factual

aspects of the case, this Court had observed that the Detaining

Authority has grossly failed to record any satisfaction that there

was reliable material before authority on the basis of which it

would have reason to believe that the detenu is likely to be

released on bail. Though the Detaining Authority raises an

apprehension that in case if the detenu is released on bail, he may

engage in similar activities, the possibility and likelihood of he

being released on bail, do not precede the said apprehension. It

was also observed that the Order which did not spell out the

reasons required in support of it, cannot be explained through an

affidavit. The Detaining Authority has failed to record the

satisfaction on which the Detention Order could have been

sustained.

10. The subjective satisfaction of the Detaining Authority

records that the detenu has applied for bail and the application is

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pending and in future he may be granted bail. The Detaining

Authority was aware that detenu was in custody. This is not

sufficient requirement to issue the Order of Detention while the

detenu is in custody. The Detaining Authority should have reason

to believe on the basis of reliable material placed before him, that

there is real possibility of the detenu being released on bail and

that being so released he would in all probability indulge in

prejudicial activity and it is essential to detain him to prevent him

doing so. The satisfaction the Detaining Authority does not reflect

any reliable material placed before him to arrive at such

conclusion. It is not apparent that there was cogent material to

arrive at the conclusion that the detenu might be released on bail.

There was no cogent material before Detaining Authority on the

basis of which the Detaining Authority was satisfied that the detenu

was likely to be released on bail. No such inference could be drawn

from the available material on record. The Detaining Authority has

failed to record any satisfaction that there was reliable material

before the authority on the basis of which there was reasoned to

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

11. Considering the aforesaid circumstances, the impugned

Order of Detention would not sustain and deserves to be quashed

and set aside. Hence the following order.

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                                         ORDER

      i.        Criminal Writ Petition No. 3789 of 2022 is allowed.

      ii.       Rule is made absolute.

      iii.      Order of Detention dated 6th September, 2022, bearing

No.OW.NO./CRIME PCB/DET/KHAN/283/2022 passed by

Respondent No.1 is quashed and set aside.

iv. Petitioner/Detenu be released from jail forthwith,

unless required in any other case.

12. All the concerned to act on the basis of an authenticated

Order of this Court.

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