Jayesh Damodar Koli vs The Commissioner Of Police And Ors
2023 Latest Caselaw 867 Bom

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                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CRIMINAL APPELLATE JURISDICTION
                                         CRIMINAL WRIT PETITION NO. 2967 OF 2022
                               Jayesh Damodar Koli                                 ...Petitioner
                                     Versus
                               The Commissioner of Police & Ors.                 ...Respondents

                               Ms. Jayshree Tripathi, Advocate for Petitioner.
                               Mrs. S.D. Shinde, APP for the Respondent-State.
                                                        CORAM           : A.S. GADKARI AND
                                                                          PRAKASH D. NAIK, JJ.

RESERVED ON : 9th JANUARY, 2023.

PRONOUNCED ON : 25th JANUARY, 2023.

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

1. Petitioner assails the Order of Detention dated 18th May,

2022 issued by Commissioner of Police, Thane under the provisions

of 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 (for short 'M.P.D.A. Act'). The

Petitioner was served upon the Order of Detention, grounds of

detention and the documents relied upon by the Detaining

Authority while issuing the Order of Detention.

2. Learned Advocate Ms. Tripathi appearing for the Petitioner Digitally signed by SUNNY SUNNY ANKUSHRAO ANKUSHRAO THOTE submitted that the Order of Detention is bad in law. The Detaining THOTE Date: 2023.01.25 14:14:37 +0530 Authority was aware that the Petitioner was already in judicial

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custody without availing bail in C.R. No.I-95/2022. However, the

Detaining Authority has not disclosed any possibility of release on

bail. The Detaining Authority has not disclosed any cogent material

and facts which necessitated the making of the Detention Order.

The valid Detention Order can only be passed against the detenu if

the Detaining Authority is subjectively satisfied that there is real or

imminent possibility of 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

Detaining Authority is duty bound to express its satisfaction in the

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

released 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 what so ever. In reality Petitioner was granted bail by

Sessions Court, Thane vide Order dated 30th November, 2022 i.e.

after a period of about six months from date of Order of Detention.

3. Learned Advocate for the Petitioner has relied upon the

following decisions :

1. Ramesh Yadav V/s. District Magistrate, Etah and Others, (1985) 4 SCC 232.

2. Kamarunnissa V/s. Union of India and another, (1991) 1 SCC 128.

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3. Abdul Razak Abdul Wahab Sheikh V/s. S.N. Sinha, Commissioner of Police, Ahmedabad and another, (1989) 2 SCC 222.

4. Binod Singh V/s. District Magistrate, Dhanbad, Bihar and another, (1986) 4 SCC 416.

5. A. Shanthi (SMT) V/s. Govt. of T. N. and Others, (2006) 9 SCC 711.

6. Smt. Suman Sudhakar Jadhav V/s. The Commissioner of Police Thane & Ors., delivered by this Court in Criminal Writ Petition No. 3977 of 2017 dated 20th December, 2017.

7. Shri. Manmoorat R. Pandey V/s. The Commissioner of Police, Thane and Ors., delivered by this Court in Criminal Writ Petition No.1001 of 2022 dated 4th August, 2022.

4. Learned APP submitted that the Detaining Authority was

aware about the fact that the Petitioner was in custody at the time

of issuance of Order of Detention. In the grounds of detention it is

stated that the Petitioner is in custody in connection with C.R. No.

I-95/2022 and he has preferred an application for bail before the

Court which is pending and he is in jail. It is also stated that

considering Petitioner's Modus Operandi, criminal tendencies and

inclinations reflected in the offences committed by him, the

Detaining Authority is satisfied that after granting bail, he being a

free person and in the event of he being at large, he being a

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criminal, is likely to indulge in activities prejudicial to the

maintenance of public order, peace and tranquility in future and

that with a view the prevent him from acting in such a prejudicial

manner in future, it is extremely necessary to detain him under the

said Act. Learned APP has also relied upon the contents of

Affidvait-in-reply filed by the Detaining Authority wherein it is

stated that the Petitioner has applied for bail in C.R. No.I-95/2022

and he is in jail. It shows that the Petitioner has tried to get

released on bail. He is making efforts to get bail in the case.

Petitioner may be granted bail under normal law of the land at any

time as the offence is not compulsorily punishable with death

sentence. In view of his tendencies and inclinations reflected in the

offences committed by Petitioner as stated in the grounds he is

likely to indulge in activities prejudicial to the maintenance of

public order.

5. From the factual analysis it is evident that the Petitioner

was arrested on 17th March, 2022 in C.R. No.I-95/2022 registered

with Kalwa Police Station for offence under Sections 307, 324, 323,

504, 506(2), 34 of Indian Penal Code (for short 'IPC') r/w Sections

4, 25 of Arms Act r/w Sections 37(1) and 135 of Maharashtra

Police Act. Petitioner preferred an application for bail on 30 th

March, 2022 which was pending before the concerned Court and

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the Petitioner continued to be in custody. The impugned Order of

Detention was issued on 18th May, 2022. Learned Advocate for the

Petitioner brought to our notice that the said application for bail

was ultimately allowed vide Order dated 30th November, 2022.

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

and Others (supra) Court has observed that the Order of Detention

was issued as the Detaining Authority 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.

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

another and connected petitions (Supra), 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

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felt essential to detain him to prevent him from so doing him.

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

Dhanbad, Bihar and another (Supra), 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 there is no

imminent possibility of his 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 these should have

been made apparent.

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

Others (Supra), 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.

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

V/s. The Commissioner of Police Thane & Ors. (Supra), has dealt

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

was no necessity of issuing detention order. The Detaining

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

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satisfaction on which the Detention Order could have been

sustained.

11. From the factual analysis of the present case it is apparent

that the Petitioner was arrested in C.R. No. I-95/2022 and was in

custody. He preferred an application for bail which was pending.

The Detaining Authority was aware that the Petitioner was in

custody. The subjective satisfaction of Detaining Authority records

that the Detaining Authority is satisfied that after grant of bail and

in the event the Petitioner being at large, he is likely to indulge in

activities prejudicial to the maintenance of public order. This is not

sufficient requirement to issue the Order of Detention while the

detenu is in custody. There is no debate that even in case a person

is in custody a Detention Order can validly be passed. The

Detaining Authority should have reason to believe on the basis of

reliable material placed before him, that there is a 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 on so doing. The

satisfaction of the Detaining Authority does not reflect on the

reliable material placed before him to arrive at such conclusion. It

is not made apparent that there was cogent material to arrive at the

conclusion that the detenu might be released on bail. In the

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affidavit in reply the Detaining Authority has stated that the

Petitioner had been making efforts to get bail and he may be

granted bail under normal law of the land at any time as the

offence is not punishable with death sentence. These assertions

were lacking in the subjective satisfaction of the Detaining

Authority. 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.

Mere ipse dixit of the Detaining Authority is not sufficient to

sustain the Order of Detention. The Detaining Authority has failed

to record any satisfaction that there was reliable material before

the authority on the basis of which there was reason to believe that

the detenu is likely to be released on bail.

12. Considering the aforesaid circumstances, the impugned

Order of Detention would not sustain and deserves to be quashed

and set aside.

ORDER

i. Criminal Writ Petition No. 2967 of 2022 is allowed.

      ii.       Rule is made absolute.

      iii.      Order of Detention dated 18th May, 2022, bearing

No.TC/PD/DO/MPDA/09/2022 issued by Respondent No.1

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is quashed and set aside.

iv. Petitioner/Detenu be released from jail forthwith,

unless required in any other case.

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