Shabana Iqbal Shaikh(Mother Of ... vs The Commissioner Of Police Pune ...
2023 Latest Caselaw 10156 Bom

2023:BHC-AS:28887-DB

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                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  rrpillai                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL WRIT PETITION (ST) NO. 13359 OF 2023

               Mrs. Shabana Iqbal Shaikh
               (Mother of the detenu)
               Aged : 37 years
               R/o. 386, Bhavani Peth
               Overa Construction, Opp. Chudaman Talim,
               Pune                                                .... Petitioner
                        Versus
               1        The Commissioner of Police
                        Pune City

               2        The State of Maharashtra
                        (Through Addl. Chief Secretary
                        to Government of Maharashtra,
                        Mantralaya, Home Department
                        Mantralaya, Mumbai

               3        The Superintendent
                        Nagpur Central Prison
                        Nagpur
                        (detenu is presently detained at
                                                               .... Respondents
                        Nagpur Central Prison)



               Ms. Jayshree Tripathi for the Petitioner.
               Ms. M. H. Mhatre, APP for the State.



                                                 1/22
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                          CORAM : REVATI MOHITE DERE &
                                        GAURI GODSE, JJ.
                    RESERVED ON : 25th SEPTEMBER 2023
                    PRONOUNCED ON : 3 rd OCTOBER 2023


JUDGMENT (Per : Gauri Godse, J.) :

1. By this petition, the petitioner challenges the order of detention

bearing No. CRIME PCB/DET/KHADAK/SHAIKH/246/2023 dated

29th June 2023 issued by Respondent no. 1 - The Commissioner of

Police, Pune City, in the exercise of the powers conferred by sub-

section (2) of section 3 of the Maharashtra Prevention of Dangerous

Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous

Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black

Marketing of Essential Commodities Act, 1981 ("the M.P.D.A. Act")

for detaining petitioner's son Arbaz alias Baban Iqbal Shaikh.

2. Perusal of the detention order indicates that the detaining

authority has relied upon two CRs registered against the detenu and

two in-camera statements. On 5th May 2023, CR No. 139 of 2023 was

registered against the detenu for the offences punishable under section

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34 of the Indian Penal Code, under section 4 and 25 of the Arms Act

and under section 37(1)(3), 135 of the Maharashtra Police Act. The

allegation against the detenu in the said CR is that the detenu and his

brother abused and threatened the complainant with a sword. The

detenu was arrested on 5th May 2023 and was granted bail on 6 th May

2023.

3. In the said CR No. 151 of 2023 registered on 10 th May 2023,

the allegation against the detenu is that on 9 th May 2023, the detenu

and his father abused and threatened the complainant with a sword

and palghan and also abused the complainant in filthy language. In the

said CR, there is also an allegation against the detenu that the detenu

had a criminal record, that he watched the complainant with bad

intentions and that he was in the habit of watching women with bad

intentions. In the said CR, the detenu was arrested on 18 th June 2023.

There was an application filed for grant of bail on 22 nd June 2023,

which was pending.

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4. Meanwhile, on 16th May 2023, two in-camera statements are

recorded referring to incidents of 24th April 2023 and 6th May 2023.

The allegation by both witnesses of the in-camera statements is that the

detenu and his accomplices threatened and assaulted the witnesses and

extorted money from them. The detaining authority has thus relied

upon the aforesaid two CRs, and two in-camera statements for

recording subjective satisfaction that the detenu is a dangerous person

and his activities are prejudicial to the maintenance of public order in

future and hence, it is necessary to detain him.

5. From the perusal of the record, it is revealed that while the

detenu was in custody in connection with CR No. 151 of 2023

sponsoring authority submitted the proposal on 22 nd June 2023 for

detaining him. The detention order was served upon the detenu while

he was in custody.

6. Learned counsel for the petitioner has raised various grounds to

challenge the order of detention; however, it is not necessary to

examine all the grounds as the petition ought to succeed on the ground

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raised in clause (d) of the petition, which reads as under :

"(d) The petitioner says and submits that the order of detention came to be passed on 29.06.2023 while the detenu was in custody, in C.R. No. 151 of 2023 U/Sec. 354, 506(2), 504, 509, 34 of IPC r/w Sec. 4(25) of Arms Act & U/Sec 37(1) (3)/135 of MPA registered on 10.05.2023. The detenu came to be arrested on 18.06.2023 and was in custody while the order of detention was passed. The detaining authority has not recorded his satisfaction to the effect that there is imminent/real possibility of the detenu's release on bail based on any cogent material, which is a mandatory requirement while passing a valid detention order against the detenu (while he is in Custody). Law is well settled on this aspect in a number of pronouncements of the Hon'ble apex Court and Our High Courts that a valid order of detention can be passed (while in Custody) if the detaining authority has recorded three satisfactions, Firstly, awareness about the bail position of the detenu, Secondly, that there is real/imminent possibility of his release on bail based on cogent material (therefore a necessity of a detention order) and thirdly, the detenu may again continue his prejudicial activities in future. The detaining authority is duty bound to give justifiable and cogent reasons based on material available with him that there is a necessity for passing detention order against a person while he is in custody, in this case the detaining

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authority has failed to recorded his satisfaction of imminent/ real possibility of the detenu's release on bail, which is a mandatory requirement of law. The order of detention is therefore illegal and bad in law for not recording satisfaction, the order of detention is liable to be revoked and set aside."

7. Regarding the ground of challenge raised in aforesaid clause

(d) is concerned, the learned counsel submitted that the detaining

authority has not recorded any satisfaction to the effect that there is

any imminent or real possibility of the detenu being released from

the custody in relation to CR No. 151 of 2023. She submitted that

the detention order is served upon the detenu while he is in custody.

She further submitted that the bail application of the detenu in

relation to the said CR is still pending, and the detenu is still in

custody in relation to the said CR.

8. Learned counsel submitted that since the detention order was

passed while the detenu was already in custody, it was incumbent

upon the detaining authority to record satisfaction as to any

imminent or real possibility of the detenu being released and any

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possibility of the detenu being involved in any activities prejudicial to

the maintenance of public order. She submitted that in the absence

of any such subjective satisfaction recorded, the detention order

would stand vitiated, and the continued detention of the detenu

would be rendered illegal and impermissible.

9. In support of her submissions, the learned counsel for the

petitioner relied upon the decisions of the Hon'ble Supreme Court

and this Court in the following cases :

(a) Ramesh Yadav Vs. District Magistrate, Etah and Others.1

(b) Kamarunnissa Vs. Union of India and Another.2

(c) Abdul Razak Abdul Wahab Sheikh Vs. S. N. Sinha, Commissioner of Police, Ahmedabad and Another.3

(d) Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others.4

(e) A. Shanthi (Smt) Vs. Govt. Of T.N. and Others.5

(f) Suresh @ Khiladi Yellappa Shivpure Vs. Commissioner of Police and Others.6

1 (1985) 4 SCC 232 2 (1991) 1 SCC 128 3 (1989) 2 SCC 222 4 (1986) 4 SCC 416 5 (2006) 9 SCC 711 6 2017 ALL MR (Cri) 3289

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(g) Smt. Suman Sudhakar Jadhav Vs. The Commissioner of Police, Thane and Others.7

(h) Shri Manmoorat R. Pandey Vs. The Commissioner of Police, Thane.8

10. Learned counsel for the petitioner relied upon the aforesaid

decisions and submitted that in the event a person is in custody, a

detention order can be validly passed only if the detaining authority,

based on reliable and cogent material, finds that there is a real

possibility of the detenu being released on bail and on being so

released he would in all probability indulge in prejudicial activities.

She submitted that ordinarily, a detention order should not be passed

merely to pre-empt or circumvent enlargement on bail of the detenu,

which can otherwise be dealt with under the ordinary law. Hence,

learned counsel submitted that as the detention order was passed

while the detenu was already in custody without recording any

subjective satisfaction with respect to any possibility of the detenu

being released on bail, and that on being so released, he is likely to

indulge in any activity prejudicial to the maintenance of public order, 7 Cri. Writ Petition No. 3977 of 2017 8 Cri. Writ Petition No. 1001 of 2022

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the order of detention stands vitiated.

11. Learned counsel thus submitted that in the present case, no

such subjective satisfaction is recorded by the detaining authority

while issuing the detention order when the detenu is already in

custody. She, therefore, submitted that the detention order stands

vitiated and the continued detention of the detenu is rendered illegal

and impermissible. She, therefore, submitted that the detention

order be quashed and set aside and detenu be set free immediately.

12. Learned APP supported the order of detention by relying upon

the affidavit dated 7th September 2023 of Retesh Kumaarr,

Commissioner of Police, Pune City; affidavit dated 11 th August 2023

of Deepa Vaibhav Agey, Deputy Superintendent, Nagpur Central

Prison, Nagpur; and affidavit dated 13th September 2023 of Anil

Eknath Kulkarni, Joint Secretary, Government of Maharashtra,

Home Department (Special), Mantralaya, Mumbai.

13. Learned APP submitted that after the detenu was released on

bail on 6th May 2023 in relation to CR No. 139 of 2023, he

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committed another offence, which was registered on 10 th May 2023

vide CR No. 151 of 2023. The learned APP submitted that the

detenu was again arrested on 18th June 2023 in relation to the

second CR in which he applied for bail on 22 nd June 2023.

14. Learned APP further submitted that in the meantime, the

sponsoring authority submitted a report on 22 nd June 2023, which

revealed that pursuant to an inquiry, the detenu was found to have

been involved in criminal activities, thereby fostering terror in the

society. Thus, the detaining authority, by relying upon the aforesaid

two CRs as well as the in-camera statements, has recorded a

subjective satisfaction in paragraph 8 of the detention order that it is

necessary to detain the detenu as there is a possibility of him being

released on bail in the second CR and he is likely to indulge into

prejudicial activity.

15. The learned APP, thus, submitted that considering the offences

alleged in the said CRs as well as the incidents recorded in the in-

camera statements, the detaining authority is satisfied that after

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availing bail in the second CR, the detenu is likely to revert to similar

activities which are prejudicial to the maintenance of public order.

Considering the offences alleged against the detenu, she submitted

that the detaining authority has specifically recorded that in view of

the detenu's tendencies and inclinations reflected in the offences

committed in the said CRs as well as the incident recorded in the in-

camera statements, the detaining authority is satisfied that after

availing bail in the second CR the detenu is likely to revert to similar

activities which are prejudicial to the maintenance of public order.

Learned APP, therefore, submitted that there is no substance in the

ground of detention raised on behalf of the detenu.

16. We have considered the submissions made by both parties. We

have perused the record. A perusal of the dates of registration of the

CRs shows that the first CR was registered against the detenu on 5 th

May 2023, and he was arrested on the same day. However, he was

released on bail on 6th May 2023. The detenu committed another

offence, which was registered on 10th May 2023. However, he was

arrested on 18th June 2023, and he applied for bail on 22 nd June

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2023, which was pending. In the meantime, on 16 th May 2023, two

in-camera statements were recorded referring to the incidents of 24 th

April 2023 and 6th May 2023. Thus, the incident of the in-camera

statement of witness 'A' occurred before the first CR was registered

against the detenu on 5th May 2023. The incident of the in-camera

statement of witness 'B' occurred on 6th May 2023, i.e. on the day

the detenu was released on bail with reference to CR No. 139 of

2023.

17. Considering the activities of the detenu, the sponsoring

authority submitted a report on 22 nd June 2023 for detaining the

detenu. The detention order was passed on 29 th June 2023 while the

detenu was in custody, and the same was also served upon the detenu

while he was in custody.

18. So far as the second CR is concerned, the same was registered

on 10th May 2023, i.e. after the detenu was released on bail on 6 th

May 2023 in connection with the first CR. The aforesaid dates and

events show that though the second CR was registered against the

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detenu after he was granted bail, no steps were taken for cancellation

of his bail in the first CR.

19. Perusal of the detention order indicates that the detaining

authority in paragraph 8 of the detention order has referred to the

particulars of the CRs registered against the detenu. The detaining

authority has recorded that the detenu has applied for grant of bail

and that he "may" be granted bail as the offence is not compulsorily

punishable with a death sentence. The detaining authority has

further recorded that in view of the tendencies and inclinations

reflected in the offences committed and the incidents recorded in the

in-camera statements, the detenu is likely to revert to similar

prejudicial activities once he is released on bail with reference to the

second CR.

20. We find that the detaining authority has not recorded any

reasons to believe that, based on the material placed before him,

there is any imminent possibility of the detenu being released on bail,

and on being so released, he is likely to indulge in any prejudicial

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activities. The aforesaid dates would show that though the second

CR was registered against the detenu after he was released on bail in

connection with the first CR, no steps are taken under the ordinary

law to apply for cancellation of his bail. Though the second CR was

registered on 10th May 2023, the detenu was arrested on 18 th June

2023, i.e. after more than a month. The detention order, as well as

the affidavit-in-reply of the detaining authority, is silent on the aspect

as to why the detenu was not arrested immediately after registration

of the second CR. There is also no reason forthcoming as to why no

action was taken under the ordinary law for cancellation of bail

granted to the detenu in connection with the first CR.

21. In view of the aforesaid, we find that the settled principles of

law that ordinarily, detention order should not be passed merely to

pre-empt or circumvent enlargement on bail in cases which are

essentially criminal in nature and can be dealt with in the ordinary

law is squarely applicable to the facts and circumstances of the

present case. We, therefore, find it difficult to accept the ground of

detention that there was any valid or compelling reason for issuing a

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detention order when the detenu was already in custody.

22. In the decision of the Hon'ble Supreme Court in the case of

Ramesh Yadav, the Hon'ble Supreme Court held that merely on the

ground that the accused, who is an under-trial prisoner, was likely to

get bail, an order of detention should not be ordinarily passed to

pre-empt or circumvent enlargement on bail in cases which are

essentially criminal in nature and can be dealt under the ordinary

law. So far as the decision of the Hon'ble Supreme Court in the case

of Kamarunnisa is concerned, the detention order was passed under

the COFEPOSA Act. Considering the facts therein, the Hon'ble

Supreme Court negatived the contention that the detention order

could not have been passed while the petitioner therein was in

custody. By referring to the catena of decisions on the point, the

Hon'ble Supreme Court held in paragraph 13 as under:

"13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable

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material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this Court stated in the case of Ramesh Yadav was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody."

23. The Hon'ble Supreme Court, in the case of Abdul Razak

Abdul Wahab Sheikh, held that a mere bald statement that the

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detenu who is in jail/custody is likely to be released on bail, and there

is a possibility that he may continue the offensive activities, without

reference to any particular case or acts it cannot be said that there

was any subjective satisfaction by the detaining authority in making

an order of detention.

24. The Hon'ble Supreme Court in the case of Binod Singh has

held in paragraph 7 as under:

"7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. 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. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining

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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 materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens. In the affidavits on behalf of the detaining authority though there are indications that transfer of the detenu from one prison to another was considered but the need to serve the detention order while he was in custody was not properly considered by the detaining authority in the light of the relevant factors. At least the records of the case do not indicate that. If that is the position, then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody. Therefore, though the order of preventive detention when it was passed was not invalid and on relevant considerations, the service of the order was not on proper consideration."

25. In the said case, the order of detention was served upon the

detenu when he was in jail, and there was no indication or any factor

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involved that the detenu might be released or that there was any

possibility of his release which was taken into consideration by the

detaining authority seriously before issuing the detention order.

Hence, the Hon'ble Supreme Court quashed and set aside the

detention order by holding that the affidavit filed by the detaining

authority did not indicate that the detenu would indulge in any

prejudicial activities if released on bail.

26. The Hon'ble Supreme Court in the case of A. Shanthi has held

that without any cogent material on record that the detenu was likely

to be released on bail, mere ipse dixit of the detaining authority is

not sufficient to sustain the order of detention.

27. Even in the decisions of this Court in the case of Suresh

Shivpure, Suman Jadhav and Manmoorat Pandey, the well-settled

principle of law on this point was applied by this Court and the

detention order was set aside by holding that there was no material

on record before the detaining authority to be subjectively satisfied

that the detenu is likely to be released on bail and on being a free

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person, he will revert to similar activities.

28. In the facts of the present case, we find it necessary to take

note of the well-settled principles of law on preventive detention,

which holds that all the laws on preventive detention are necessarily

harsh, which curtails the personal liberty of a person guaranteed by

the Constitution, without a trial; hence, the court has a duty to

enquire about the genuineness of the decision of the executive.

Considering the aforesaid, we find that in the present case, there are

no efforts taken by the police to apply for cancellation of bail in the

first CR registered against the detenu by taking recourse to the well-

known remedies of ordinary law. Even in the second CR, no efforts

are made to arrest the detenu for more than one month after

registration of the CR. Thus, by applying the well-settled principles

of law as referred to in the aforementioned decisions, it seems clear

to us that though the detaining authority was aware of the fact that

the detenu is actually in custody, there is no reason recorded to

believe based on any reliable material that there is "a real possibility"

of the detenu being released on bail, and on being so released he

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would in all probability indulge in any prejudicial activity. Thus, in

the present case, in the absence of any such satisfaction recorded by

the detaining authority, the detention order needs to be struck down

on the ground that the proper course for the authority was to apply

for cancellation of bail in the first CR and to oppose the bail in the

second CR and if bail is granted notwithstanding such opposition, to

question it before a higher court. Thus, the well-settled principle of

law that ordinarily, a detention order should not be passed merely to

pre-empt or circumvent enlargement on bail in cases which are

essentially criminal in nature and can be dealt with under ordinary

law is squarely applicable to the present case. Thus, in the facts and

circumstances of the present case, we do not see any reason to resort

to the preventive detention law. We, therefore, accept the contention

of the learned counsel for the petitioner that there was no valid and

compelling reason for passing the impugned order of detention.

29. Thus, for the reasons recorded above, we find merit in the

ground of challenge raised on behalf of the detenu, and hence we

pass the following order :

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(i) Petition is allowed and Rule is made absolute in terms

of prayer clause (b), which reads as under:

                                               (b)    The order of Detention bearing No. CRIME/

                                               PCB/DET/KHADAK/SHAIKH/246/2023,               dated

29.06.2023 issued under Section 3 of M.P.D.A. Act

1981 by the Respondent No. 1 be quashed and set

aside and on quashing the same the detenu Arbaz

alias Baban Iqbal Shaikh be ordered for release

forthwith.

(ii) The petitioner's son is set at liberty forthwith, if not

required in any other case.

All concerned to act on the authenticated copy of this

order.

                           GAURI GODSE, J.                             REVATI MOHITE DERE, J.








Signed by: Rajeshwari R. Pillai
Designation: PS To Honourable Judge
Date: 03/10/2023 17:12:57