1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 1232 OF 2009 Firoz Faizulla Khan ..Petitioner vs. Shri Hasan Gafoor & Ors ..Respondents. Mr U. N. Tripathi, Advocate for the Petitioner. Ms A.S. Pai, A.P.P.for the State. CORAM: BILAL NAZKI AND A.R.JOSHI,JJ DATED : 17TH AUGUST,2009 P.C.:- 1. Heard learned Counsel for the Petitioner as well as the learned Additional Public Prosecutor. 2. The petition has been filed by the detenue who has been detained by an Order dated 24.2.2009 passed by the Commissioner of Police (hereinafter referred as “detaining authority”). in terms of provisions of Section 3 (1) the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug 2 Offenders and Dangerous Persons Act, 1981 (Mah.Act No.LV of 1981 (Amenment – 1996) (hereinafter referred as “the MPDA Act”). 3. The detenue had been arrested in C.R.No. 257 of 2008 registered against him in Dharavi Police Station for an offence punishable under Sections 307, 302, r.w.s. 34 of the Indian Penal Code. He moved an application for bail but lateron the said application came to be rejected by the Sessions Court, Bombay on 12.12.2008. The grounds of detention were served on him. Counter Affidavit has been filed by the respondents. We have gone through the record and heard the learned Counsel for the parties. 4. One of the grounds challenging the order of detention is that as the petitioner was in custody there were no compelling reasons to pass the order of detention. 5. The learned counsel for the respondents submits that detaining authority was aware of the fact that bail application was not pending but he was of the view that considering the charges, in normal course, detenue would have been released on bail. Whether, in such circumstances, the detention was bad or not? both counsels have relied on various judgments of this Court. In earlier judgment of this Court notice has been taken of various judgments of the Supreme Court including the judgment in the case of Dharmendra Suganchand Chelawat vs. Union of India reported in A.I.R. 1990 S C 1196. This judgment came in similar fact situation and in para 19 of the judgment, the Supreme Court held:- 3 “...that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenue is already in detention;and (ii)there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities”. 6. There are other judgments which favour the respondents like Noor Salman Makani vs. Union of India and Ors (1994) (1) SCC 381 but the earlier judgment is by three Judge Bench of the Supreme Court. Therefore, we are of the view that unless there is material before the detaining authority to come to the conclusion that the petitioner was likely to be released on bail or that such release was imminent, he could not have passed the order of detention. 7. For the aforesaid reason alone, we feel that the order of detention cannot sustain. Therefore, the petition is allowed. The Order of detention is quashed and set aside. Rule is made absolute in terms of prayer clause (c). The respondents are directed to release the detenue/petitioner forthwith, if not required in any 4 other case. The writ petition is disposed of accordingly. (BILAL NAZKI,J) (A.R.JOSHI,J)