Bombay High Court
Mahesh Balasaheb Thorat vs Commissioner Of Police Pune And Anr on 24 January, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S. M. Modak
2025:BHC-AS:4436-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO.23283 OF 2024
Mahesh Balasaheb Thorat .... Petitioner
versus
Commissioner of Police Pune,
Pune City & Anr. .... Respondents
.......
• Ms. Jayshree Tripathi a/w Anjali Raut, Advocate for Petitioner.
• Smt. M. M. Deshmukh, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL &
S. M. MODAK, JJ.
DATE : 24th JANUARY, 2025
JUDGMENT :
(PER : SARANG V. KOTWAL, J.)
1. Heard Ms. Jayshree Tripathi, learned Counsel for the
Petitioner and Smt. M. M. Deshmukh, learned APP for the State.
2. The Petitioner has challenged the detention order
bearing No. CRIME PCB/DET/BIBWEWADI/THORAT/600/2024
dated 24/07/2024 issued by the Respondent No.1, i.e. the
Digitally
signed by
Commissioner of Police, Pune City under section 3 of the
MANUSHREE
MANUSHREE NESARIKAR
NESARIKAR Date:
2025.01.30
14:44:34
+0530
Maharashtra Prevention of Dangerous Activities of Slumlords,
Nesarikar
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Bootleggers, Drug-offenders, Dangerous Persons, Video Pirates,
Sand Smugglers and Persons engaged in Black-marketing of
Essential Commodities Act, 1981 (for short 'MPDA Act').
3. By a separate committal order dated 24/07/2024, the
detenu was directed to be detained in Chandrapur Central
Prison, Chandrapur. The present Petition is filed by the father of
the detenu.
4. Apart from the detention order and the committal
order, the Petitioner was served with grounds of detention dated
24/07/2024. Paragraph No.3 mentions the previous offence and
the preventive action taken against the detenu. However,
paragraph No.4 mentions that the Respondent No.1 had relied
on the registered offence mentioned in paragraph Nos.5.1 and
two 'in camera' statements mentioned in paragraph Nos.6.1 and
6.2. The registered offence in question was C.R.No.41/2024
registered at Bibvewadi Police Station, u/s 307, 506, 504, 34,
120(B) of the Indian Penal Code, u/s 37(1)/135 of the
Maharashtra Police Act, u/s 4(25) of the Arms Act and u/s 7 of
Criminal Law Amendment Act.
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5. Apart from this registered offence, there is reference to
two 'in camera' statements of witness A and witness B in respect
of two incidents dated 23/02/2024 and 12/02/2024. In both
these instances, the Petitioner has extorted amount of Rs.3,200/-
and Rs.1,500/- from those two witnesses respectively by
showing weapons.
6. Learned counsel appearing for the Petitioner relied
only on one ground to challenge the order of detention. She
submitted that on the date of issuance of detention order, the
detenu was already in custody in connection with
C.R.No.41/2024 registered at Bibvewadi Police Station. His Bail
Application was rejected. She submitted that even if the detenu
was in custody, the detention order can be issued provided there
are certain requirements on the part of the detaining authority,
more particularly, regarding recording of his satisfaction that
there was imminent possibility that the detenu would be
released on bail and that his activities would be prejudicial to
maintaining the public order. The Petitioner has raised that
particular ground (d) in the Petition. It was mentioned that the
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said offence was registered on 22/02/2024. The detenu was
arrested on 24/02/2024. He applied for bail on 27/06/2024
before the Court of Session and it was rejected on 12/07/2024.
After that he continued to be in custody, whereas the order of
detention was passed against him on 24/07/2024. The ground
further mentions that the detaining authority has not recorded
its satisfaction to the effect that there was imminent possibility
of the detenu's release on bail based on any cogent material;
which was mandatory requirement while passing the detention
order against the person while in custody.
7. Learned counsel relied on the judgment passed by a
Division Bench of this Court on 06/08/2024 in the case of Aman
Yusuf Pathan @ Khan Vs. Commissioner of Police and Ors. in
Criminal Writ Petition No.1722 of 2024 . She further relied on
the judgment of another Division Bench dated 25/01/2023 in
Criminal Writ Petition No.2967 of 2022 in case of Jayesh
Damodar Koli Vs. The Commissioner of Police & Ors. In support,
she has also relied on the observations made by the Hon'ble
Supreme Court in the case of Rekha Vs. State of Tamil Nadu
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through Secretary to Government and Another, as reported in
(2011) 5 Supreme Court Cases 244.
8. Learned APP on the other hand submitted that the
Respondent No.1 in paragraph 8 has clearly recorded his
subjective satisfaction that in future the Petitioner might be
granted bail under the ordinary law of the land as the said
offence was not compulsorily punishable with death sentence.
He has referred to the satisfaction that after availing bail facility
and becoming a free person, the detenu was likely to revert to
similar activities, which were prejudicial to the maintenance of
public order in future and therefore it was necessary to detain
the detenu. Learned APP submitted that this subjective
satisfaction was clear enough and the detention order cannot be
set aside on that ground.
9. The affidavit-in-reply filed by the Respondent No.1 also
refers to this particular paragraph No.8 in the grounds of
detention. Learned APP has relied on those paragraphs.
10. We have considered these submissions. Before
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proceeding further it is necessary to reproduce the detaining
authority's satisfaction in that behalf. The relevant portion from
paragraph No.8 is as follows "
"Presently, you are in judicial custody in
the offence of (1) Bibvewadi Police Station, Pune
C.R.No.41/2024, u/s 307, 506, 504, 34, 120(B) of
IPC, u/s 37(1)/135 of MPA & u/s 4(25) of Arm Act
& u/s 7 of Criminal Law Amendment Act. You
applied for bail on 27/06/2024 before Hon'ble
Session court, which is rejected on 12/07/2024.
Moreover, in future you may be granted bail under
the ordinary law of the land as the said offence is
not compulsorily punishable with death sentence.
In view of your tendencies and inclinations
reflected in the offences committed by you as
stated above as well as the incidents recorded in
the 'In-Camera' statements, I am further satisfied
that after availing bail facility and becoming a free
person, you again are likely to revert to similar
activities. These are prejudicial to the maintenance
of public order in future and it is necessary to
detain you under the said Act to prevent you from
acting in such prejudicial manner in future."
11. Exactly similar stand was taken by the detaining
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authority in the case of Aman Yusuf Pathan @ Khan (supra). In
that judgment also the relevant portion from the grounds of
detention order was reproduced. In that case also, the detaining
authority had recorded that in future the detenu could be
granted bail under the ordinary law as the said offence was not
compulsorily punishable with death sentence. The Division
Bench has observed in that case that merely by saying that
offence is not compulsorily punishable with death sentence and
therefore the detenu is likely to be released on bail in future; is
not sufficient. In that case, the detenu was released on bail on
09/01/2024, after the detention order was passed on
04/01/2024.
12. Similar is the case of the judgment of Division Bench of
this Court in the case of Jayesh Koli (supra). In that case in the
affidavit-in-reply the detaining authority has stated that the
Petitioner in that case was making the efforts to get bail and that
he could be granted bail under normal law of land at any time
as the offence was not punishable with death sentence. Division
Bench further observed that those assertions were lacking in the
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subjective satisfaction of the detaining authority. There was no
cogent material before the detaining authority on the basis of
which the detaining authority was satisfied that the detenu was
likely to be released on bail.
13. The Hon'ble Supreme Court in Rekha's case (supra)
observed that if no bail application is pending, then there is no
likelihood of the person in custody being released on bail and
hence the detention order will be illegal.
14. Thus, from the analysis of these judgments, it is clear
that merely recording that the Applicant was likely to be
released on bail because none of the sections of IPC applied in
the registered offence was punishable with death penalty; is not
sufficient. The subjective satisfaction of the detaining authority
that the Applicant was likely to be released on bail, was not
based on other cogent material, except the fact that the offence
was not punishable under death penalty. This is not the basis on
which the subjective satisfaction can be arrived at in that respect
as is held in the above judgment. In this view of the matter, the
detention order is not sustainable and is liable to be set aside.
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15. Hence the following order is passed :
ORDER
(i) Rule is made absolute in terms of prayer clause
(b), which reads thus:
"(b) The order of Detention bearing No. CRIME
PCB/DET/BIBWEWADI/THORAT/600/2024
dated 24.07.2024 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 Omkar
Mahesh Thorat be ordered for release
forthwith."
(ii) The detenu shall be released forthwith if not
required in any other case.
(iii) This judgment is strictly restricted to the
detention order passed against the detenu.
(iv) The Petition is disposed of.
(S. M. MODAK J.) (SARANG V. KOTWAL, J.)
