1 222811 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2228 OF 2011 Vijay @ Bijwa Sheganram Sharma Age 40 years, residing at : Rook No. 26, Chawl No. 80, Transit Camp, Near Sainath Rahiwasi Sangh, Antop Hill, Mumbai 400 037 And also at: SMD Road, Devram Dada Chawl, Near Post Office, Antop Hill, Mumbai 400 037 (At present detained in Nasik Road Central Prison, Nashik) ...Petitioner (Detenu) Vs 1. The Commissioner of Police, Greater Mumbai 2. Addl. Chief Secretary (Home) Home Department, Mantralaya, Mumbai 400 032 3. The State of Maharashtra 2 222811 4. The Superintendent, Nashik Road Central Prison, Nashik ...Respondents -- Mr. U.N. Tripathi for the Petitioner Mr. A.S. Gadkari, A.P.P., for the State. -- CORAM : A.M.KHANWILKAR & R.G.KETKAR, JJ. DATE : NOVEMBER 22, 2011 JUDGMENT (Per R.G. Ketkar,J.):- Heard Mr.U.N.Tripathi, learned counsel for the petitioner and Mr.A.S.Gadkari, learned APP for respondent State at length. 2] By this petition under Article 226 of the Constitution of India, the petitioner Vijay @ Bijwa Sheganram Sharma (hereinafter referred as “the detenu”) has challenged the order of detention bearing No.3/PCB/DP/Port Zone/2011 dated 16 th May, 2011 issued under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous 3 222811 Persons and Video Pirates Act, 1981 (for short “the Act”) by the Commissioner of Police, Mumbai and prayed for releasing him forthwith. 3] The relevant material facts that are necessary for the disposal of this petition, briefly stated, are as under : It is the case of the respondents that on 6 th February, 2011 the detenu along with his associates committed offence by using sword, chopper and hockey sticks. On 7 th February, 2011, C.R. No.26 of 2011 under Sections 384, 324, 323, 427 read with 34 Indian Penal Code, 1860 (for short I.P.C.) was registered against the detenu and his associates at Wadala Police Station at the instance of complainant Ms.Shabnam Shah. On 28 th February, 2011, the detenu and his associates started abusing and threatening the complainant Shri.Arogyaswamy Lurd Paul. The detenu assaulted the said complainant with chopper on his neck which he avoided by his hand. On the same day, C.R.No.69/2011 under Sections 326, 120(b), 506 (II), 504 I.P.C. read with 37(I), 135 of the Bombay Police Act, 1951 was registered at Antop Hill Police Station. Apart from detenu, other two accused were involved in the said crime, namely, Yogesh 4 222811 Vichare and Mangesh Vichare. 4] In pursuance of C.R.No.26 of 2011, the detenu was arrested on 1 st March, 2011 and was produced for remand before the concerned Court. On 5 th March, 2011, the detenu was enlarged on bail in C.R.No.26 of 2011. On the same day, the detenu was arrested in Crime No.69 of 2011 by Transfer Warrant and was taken into custody. On the next date i.e.6 th March, 2011, he was produced before the Holiday Court for remand. On the same day, the detenu applied for bail in C.R.No.69 of 2011. The learned Metropolitan Magistrate, 51 st Court, Kurla, Mumbai rejected the said bail application on 9 th March, 2011. On the same day i.e.9 th March, 2011, in-camera statement statement of the witnesses “A” and “B” came to be recorded by the Police Officer from Wadala Police Station. On 11 th March, 2011, co- accused Yogesh Vichare and Mangesh Vichare in C.R.No.69 of 2011 were arrested. They applied for bail and, by order dated 15 th March, 2011, the learned Metropolitan Magistrate, 51 st Court, Kurla, Mumbai enlarged them on bail on P.R.Bond and surety of Rs.10,000/-. 5] On 23 rd March, 2011, the proposal for detention of detenu was sent by the Senior Inspector of Police, Wadala Police Station to the Commissioner of Police, Mumbai through appropriate channel. 5 222811 On 8 th April, 2011, after scrutiny of the said proposal at different levels, the same was put up before the Deputy Commissioner of Police (Prevention), Mumbai. On 11 th April, 2011, the Deputy Commissioner of Police (Prevention), Mumbai, after scrutiny of the proposal, put up his endorsement and forwarded the same to the Addl. Commissioner of Police (Crimes) who, in turn, gave his endorsement and forwarded the same to the Deputy Commissioner of Police (Operations) on 18 th April, 2011. 6] On 18 th April, 2011, the detenu filed second application for bail in connection with C.R.No.69 of 2011 and the said bail application was rejected on 19 th April, 2011. After completing the procedure, the Deputy Commissioner of Police (Operations) forwarded the proposal to the Commissioner of Police, Mumbai on 28 th April, 2011. After scrutiny of the said proposal, the office of the Commissioner of Police forwarded it to the Deputy Commissioner of Police (Prevention) for preparing set of documents, scrutiny and translation of grounds of detention on 2 nd May, 2011. The proposal was verified by the Asstt. Commissioner of Police, Wadala Police Station, Mumbai on 12 th May, 2011. On 16 th May, 2011, final draft of grounds of detention along with other documents were put up before 6 222811 the Commissioner of Police for passing order. The order of detention was passed against the detenu by the Commissioner of Police on 16 th May, 2011 which is challenged in this petition. 7] The petition raises several grounds. However, Mr. Tripathi confined challenge only on the ground that the order of detention was issued on 16 th May, 2011, when the detenu was already in judicial custody with effect from 5 th March, 2011 as he was not enlarged on bail in C.R. No.69 of 2011. There was absolutely no need and necessity to issue order of detention against the person like detenu who is already in custody, unless there was imminent possibility of release of detenu on bail shortly. There was no tangible material before the Detaining Authority to indicate possibility of detenu being released on bail in the near future. On the other hand, the bail application made by the detenu was rejected firstly, on 9 th March, 2011 and secondly, on 19 th April, 2011. The detenu, thereafter, never applied for bail either before the Magistrate or before any higher forum. The reasons given by the Court rejecting his two bail applications would clearly show that no Court would normally grant bail to the detenu. In that order, it was observed that the detenu is a history sheeter and 26 cases are registered 7 222811 against him. The detenu was thrice detained under the Act earlier. He, therefore, submitted that the impugned order clearly reflects non application of mind on the part of the detaining Authority. 8] In support of the submissions, Mr.Tripathi relied upon the following judgments : (i) Dharmendra Suganchand Chelawat Vs. Union of India, AIR 1990 SC 1196 and in particular, paragraph 19 thereof; (ii) Rivadeneyta Ricardo Augustin Vs. Government of the National Capital Territory of Delhi, 1994 Supp (1) SCC 597; (iii)N.Meera Rani Vs. Govt. of Tamilnadu, 1989 Cri.L.J. 2190; (iv) T.V. Sravanan alias S.A.R. Prasana Venkatachaariar Chaturvedi Vs. State, (2006) 2 SCC 664 and in particular, paragraphs 12 and 13 thereof; 8 222811 (v) A. Majid Fakir Kazi Vs. A.N. Roy & Ors., 2008 (1) Bom.C.R. (Cri.) 129 (paragraph 12); (vi) Division Bench judgment in the case of Firoz Faizulla Khan Vs. Hasan Gafoor and ors. in Criminal Writ Petition No.1232 dated 17 th August, 2009; (vii) Mohd. Ubed Abdul Rashid Ansari Vs. M.N.Singh, 2002 All M.R. (Cri) 1893. 9] On the other hand, Mr.Gadkari supported the impugned order. He submitted that the impugned order of detention is issued under Section 3(1) of the Act on the basis of cogent material. The detaining Authority was satisfied that with a view to preventing the detenu herein from acting in a manner prejudicial to the maintenance of public order in future, it was necessary to detain him. While exercising powers under Article 226 of the Constitution of India, subjective satisfaction arrived at by the detaining Authority is not justiciable and therefore, it is not open to the detenu to ask this Court to consider the question as to whether the said satisfaction of 9 222811 the Detaining Authority was justified by the application of objective tests. The reasonableness of the satisfaction of the detaining Authority cannot be questioned in Court of law; the adequacy of the material on which the said satisfaction purports to rest also cannot be examined in a Court of law. He submitted that after carefully applying mind to the material placed before the detaining Authority, the said Authority honestly and genuinely came to the conclusion that it is necessary to issue order of detention against the detenu. He submitted that after following due process of law and after satisfying itself about prejudicial activities of the detenu, it was found that the detenu is a dangerous desperado. The detaining Authority, therefore, was satisfied that the detenu is a dangerous person within the meaning of Section 2(b-i) of the Act, as the detenu was acting in a manner prejudicial to the maintenance of public order. In support of his submissions, he relied upon the following judgments: (i) Division Bench judgment of this Court in the case of Dinesh Doshi Vs. Commissioner of Police Mumbai and others in Criminal Writ Petition No.2775 of 2009 decided on 21 st July, 2010; 10 222811 (ii) Ibrahim Nazeer Vs. State of T.N., (2006) 6 SCC 64; (iii)Dharmendra Suganchand Chelawat Vs. Union of India, AIR 1990 SC 1196; (iv) A. Geetha Vs. State of T.N., (2006) 7 SCC 603; (v) Union of India Vs. Paul Manickam, (2003) 8 SCC 342; (vi)Akhil Ahmed Khalil Ahmed Shaikh Vs. M.N.Singh, 2002 Bom.C.R. (Cri) 253; (vii)Vinod @ Vinu Bhupat s/o.Karsan Lakhoon Vs. Satish Sahney, 1997 All M.R. (Cri) 403. 10] As aforesaid, Mr. Tripathi confined his arguments regarding necessity of issuing order of detention by the detaining Authority. He reiterated that the detenu was already in judicial custody with effect from 5 th March, 2011 as his application for bail was rejected in 11 222811 C.R. No.69 of 2011. The order of detention came to be issued on 16 th May, 2011 and served on 17 th May, 2011 while he was already in judicial custody. Thus, there was no need and necessity to issue order of detention against a person like detenu who is already in custody unless there is imminent possibility of his release on bail shortly. The application for bail were twice rejected, firstly, on 9 th March, 2011 and secondly, on 19 th April, 2011. Thereafter, the detenu never applied for bail and the reasoning recorded by the Court while rejecting his second bail application in particular would clearly show that no Court would normally grant bail. While rejecting bail application, the Metropolitan Magistrate recorded that the detenu is a history sheeter and 26 cases are registered against him. Thrice he was detained under the Act earlier. He, therefore, submitted that there was no cogent material before the detaining Authority to come to the conclusion that there is imminent possibility of release on bail by the detenu shortly. 11] In the case of Dinesh Doshi (supra), the Division Bench of this Court, after considering the judgments of the Apex Court in the cases of (a) Dharmendra Suganchand Chelawat (supra), (b) Kamarunnissa Vs. Union of India, AIR 1991 SC 1640, 12 222811 (c) Veeramani Vs. State of Tamil Nadu, (1994) 2 SCC 337, summarised the following requirements that are to be satisfied in the reasons set out in support of the order of detention:- (i) The detaining authority is aware of the fact that the detenu is actually in custody. (ii) The detaining authority has reasons to believe, on the basis of reliable material placed before him/her, that there is every likelihood or an imminent possibility of the detenu being released on bail, on the prima facie assessment of the said material. (iii) The detaining authority has reasons to believe, on the basis of the reliable material placed before him/her, that on being so released, the detenu shall in all probability indulge in prejudicial activities. (iv) The detaining authority feels it essential to detain him to prevent him from doing so. 13 222811 It is in these circumstances, we have to first examine whether the Detaining Authority has recorded its satisfaction on the abovenoted requirements when the order of detention is necessitated even though the detenu is already in custody or jail. For that, we may turn to the grounds of detention supplied to the detenu. Paragraphs 6 and 7 thereof plainly refer to the satisfaction recorded by the Detaining Authority. The same read thus:- “6. From the above facts, I am subjectively satisfied that you are a dangerous person as defined in Section 2(b-1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (Mah. Act No. LV of 1981) (Amendment – 1996) (Amendment – 2009). You have unleashed a reign of terror and have become a perpetual danger to the society at large in the area of Anand Nagar, Rajiv Gandhi Nagar, Barkatali Nagar, Jaikarwadi in the jurisdiction of Wadala police station and the areas adjoining thereto within the jurisdiction of Wadala Police Station. Action taken against you under the normal law of land is found to be insufficient and ineffective to deter you from indulging in criminal activities prejudicial to the maintenance of public order in the said area. The people are experiencing a sense of insecurity and are living and carrying out their daily vocation under the constant shadow of fear, whereby the even tempo of life of the citizens is badly disturbed. 7. I have carefully gone through the material placed before me and I am subjectively satisfied that you are acting in a manner prejudicial to the maintenance of public order. I 14 222811 am aware that you are in judicial custody, as bail has not been granted to you in Antop Hill Police Station in C.R.No. 69/2011. However, you may be granted bail under the normal law of land in due course, as the offences are not compulsorily punishable with death or life imprisonment. In view of your tendencies and inclinations reflected in the offences committed by you as stated above, I am further satisfied that after availing bail facility and becoming a free person, being a criminal, you are likely to revert to the similar activities prejudicial to the maintenance of public order in future and that it is necessary to detain you under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981. (Mah. Act. No. LV of 1981) (Amendment – 1996) (Amendment – 2009) to prevent you from acting in such a prejudicial manner in future.” A bare perusal thereof would show that the Detaining Authority was conscious of the relevant factors mentioned in Dinesh Doshi’s case referred to above. The Detaining Authority has clearly recorded his satisfaction on all the counts in the grounds of detention supplied to the detenu. 12] The argument before us is limited to the question as to whether the satisfaction so recorded by the Detaining Authority is borne out from cogent material to the effect that there was imminent possibility of detenu being released on bail in due course in the 15 222811 near future. Indisputably, the Detaining Authority has recorded his satisfaction that, although bail has been rejected to the detenu in connection with Antop Hill Police Station C.R. No. 69/2011, however, the detenu could be granted bail under the normal law of land in due course, as the offence in question was not compulsorily punishable with death or life imprisonment. Obviously, this satisfaction is recorded in the backdrop of the fact that, on 7 th February, 2011, C.R.No.26 of 2011 was registered against the detenu under Sections 384, 324, 323, 427 read with 34 I.P.C. at Wadala Police Station. The detenu was arrested on 1 st March, 2011 in connection with the said C.R. and was produced for remand before the concerned Court. He was enlarged on bail on 5 th March, 2011. In the meantime, on 28 th February, 2011, C.R.No.69 of 2011 was registered against the detenu and two co-accused namely Yogesh Vichare and Mangesh Vichare under Sections 326, 120(b), 506 (II), 504 I.P.C. read with 37(I), 135 of the Bombay Police Act, 1951. On 5 th March, 2011, the detenu was arrested in C.R.No.69 of 2011 by Transfer Warrant and was taken into custody. The detenu was produced before the Holiday Court for remand on 6 th March, 2011 when he applied for bail in connection with said C.R. On 9 th March, 2011, the learned Metropolitan Magistrate, 51 st Court, Kurla, Mumbai rejected the bail application. 16 222811 On the same day, in-camera statement of the witnesses “A” and “B” came to be recorded. On 11 th March, 2011, Yogesh Vichare and Mangesh Vichare co-accused in C.R.No.69 of 2011 were arrested and subsequently, they were enlarged on bail on 15 th March, 2011. It is in this context, the Senior Police Inspector of Wadala Police Station submitted proposal for detention on 23 rd March, 2011 to the Commissioner of Police, Mumbai through proper channel. The said proposal was scrutinised at different levels. In the meantime, the detenu filed second bail application on 18 th April, 2011 in connection with C.R.No.69 of 2011. The said application was incidentally rejected on 19 th April, 2011. 13] From the above, it is noticed that the detenu did make more than one attempt to get bail in C.R. No. 69/2011. Further, the co-accused in that case were already granted bail. Soon thereafter, the Sponsoring Authority moved into action apprehending that even the detenu would get bail. That proposal was moved on 23 rd March, 2011. Notably, that apprehension gets reinforced from the fact that the detenu, in fact, filed second bail application on 18 th April, 2011. In that bail application, he has referred to the fact that his co-accused in the same case are already released on bail. It is a different matter 17 222811 that even the second bail application filed by him came to be rejected on 19 th April, 2011 for the reasons stated therein. The fact remains that both the orders passed on bail application filed by the detenu were part of the documents considered by the Detaining Authority. The Detaining Authority formed his subjective satisfaction, as noted in the grounds of detention (in paragraphs 6 and 7) after perusing all the documents placed before him. It is not as if there was absolutely no material to reach at that satisfaction. The Detaining Authority was satisfied that detenu may be granted bail under the normal law of land in due course, as the offences are not compulsorily punishable with death or life imprisonment. 14] In the instant case, the order of detention is issued under Section 3 of the Act which provides that if the detaining Authority is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make order directing such person to be detained. The detaining Authority must be satisfied that the detention of person is necessary in order to prevent him from acting in any prejudicial manner to the maintenance of public order. It is hardly necessary to emphasise that since the Act authorises the preventive 18 222811 detention of a citizen without trial, the material provisions of the Act must be strictly construed and the safeguards which the Act has deliberately provided for the protection of citizens must be liberally interpreted as held by the Constitution Bench of the Apex Court in Rameshwar Shaw Vs. Dist. Magistrate, Burdwan, AIR 1964 SC 334. It is further observed therein that the satisfaction of the detaining authority is his subjective satisfaction and so is not justiciable. It would, therefore, be not open to the detenu to ask the Court to consider the question as to whether the said satisfaction of the detaining Authority can be justified by the application of objective tests. The reasonableness of the satisfaction of the detaining Authority cannot be questioned in a Court of law; the adequacy of the material on which the said satisfaction purports to rest also cannot be examined in a Court of law and that is the effect of true legal position in regard to the satisfaction contemplated by Section 3 is, as held by the Apex Court in the case of State of Bombay Vs. Atma Ram Sridhar, 1951 SCR 167 (paragraph 6 of that report). The question about validity of satisfaction of the Authority will have to be considered on the facts of each case. In the light of the exposition of law by Constitution Bench of the Apex Court in the case of Rameshwar (supra), we will have to examine the argument 19 222811 advanced before us in the facts and circumstances of this case. 15] In the case of Dharmendra (supra) and, in particular, paragraph 21, the Apex Court recorded finding of fact that, in that case, the grounds of detention do not show that the Detaining Authority apprehended that the further remand would not be granted by the Magistrate and that the appellant would be released from the custody nor there was material in the grounds of detention which could lend support to such apprehension. In view of the facts obtaining in the case of Dharmendra (supra) and the facts in the present case, in our opinion, the said judgment is of no assistance to the detenu. In paragraph 11 of that report, the Apex Court considered its earlier judgment in the case of Alijan Mian Vs. District Magistrate, Dhanbad, AIR 1983 SC 1190 and, in particular, paragraph 9 thereof, which considered similar challenge as the grounds of detention stated that the detenu was in jail and is likely to be released on bail, which was to the following effect: “The position would have been entirely different if the petitioners were in jail and had to remain in jail for a pretty long time. In such a situation there could be no apprehension of breach of `public 20 222811 order’ from the petitioners. But the detaining authority was satisfied that if the petitioners were enlarged on bail, of which there was every likelihood, it was necessary to prevent them from acting in a manner prejudicial to public order.” 16] Mr. Tripathi then relied upon the judgment of the Apex Court in the case of Rivadeneyta Ricardo Augustin (supra) to contend that there was no cogent material before the Authority to establish that the detenu is likely to be released or that there was imminent possibility of his being released. In that case, the detention was under Section 3 of COFEPOSA because the detenu was involved in offence under Section 135 of the Customs Act. The bail application filed by the detenu was rejected on June 9, 1992 and no bail application was filed thereafter or pending on the date when the detention order was passed on August 18, 1992. In that context, the Apex Court observed that the Detaining Authority merely mentioned about the possibility of detenu being released on bail if he moves for bail. In the instant case, we have already noted that the detenu was already enlarged on bail on 5 th March, 2011 in connection with C.R.No.26 of 2011. The co-accused Yogesh Vichare and Mangesh Vichare in C.R. No.69/2011 were enlarged on bail on 15 th 21 222811 March, 2011. Soon thereafter, the proposal for detention was moved in the present case on 23 rd March, 2011. In our opinion, in the facts and circumstances of the present case, the dictum of the Apex Court will have no application, as it is not a case of satisfaction of the Detaining Authority merely founded on possibility. 17] We are fortified in taking this