dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE CRIMINAL JURISDICTION SIDE CRIMINAL JURISDICTION SIDE CRIMINAL JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1286 OF 2008 WRIT PETITION NO.1286 OF 2008 WRIT PETITION NO.1286 OF 2008 Shri Vinod @ Papa Rajan Nair Age 24 years, residing at Hut No.B-1/147, J.K.Bhasin Marg, Sion-Koliwada, Mumbai-400037 (At present detained at Central Prison at Thane.) Petitioner (Detenu) vs. 1. Shri D.N.Jadhav, Commissioner of Police, Mumbai 2. The State of Maharashtra, (Through the Secretary Home Department(Spl.), Mantralaya, Mumbai. 3. The Superintendent, Nashik Road Central Prison Nashik. Respondents Mr.U.N.Tripathi for the petitioner. Mrs.A.S.Pai, APP for the State. CORAM CORAM CORAM : BILAL NAZKI & : BILAL NAZKI & : BILAL NAZKI & ANOOP ANOOP ANOOP V.MOHTA,JJ. V.MOHTA,JJ. V.MOHTA,JJ. DATE DATE DATE OF RESERVING THE JUDGMENT: 23rd January, 2009. OF RESERVING THE JUDGMENT: 23rd January, 2009. OF RESERVING THE JUDGMENT: 23rd January, 2009. DATE DATE DATE OF PRONOUNCING THE JUDGMENT: 2nd February, 2009. OF PRONOUNCING THE JUDGMENT: 2nd February, 2009. OF PRONOUNCING THE JUDGMENT: 2nd February, 2009. JUDGMENT JUDGMENT JUDGMENT (Per Anoop V. Mohta,J.) (Per Anoop V. Mohta,J.) (Per Anoop V. Mohta,J.) The petitioner-detenu has challenged an order of detention dated 29.02.2008 passed by Respondent no.1-Commissioner of Police, Brihanmumbai, under Section 3 (1) of Maharashtra Prevention of Dangerous Activities of Slumlords Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (for short, the Act"). ( 2 ) 2. On the complaint of Smt.Vimal J.P.Gupta dated 21.01.2008 an offence vide C.R. No.00/2008 under Sections 342, 364, 384, 506(2) of Indian Penal Code (IPC) was registered at Ulhasnagar Police Station and subsequently transferred to Antop Hill Police Station which is registered vide C.R.No.26/2008. 3. The petitioner-detenu was on remand till 13.02.2008 by the learned Metropolitan Magistrate, 51st Court, Kurla, Mumbai. The Authorities recorded incamera statements of witnesses of "A", "B" and "C" from 24.01.2008 to 25.01.2008 which are also a part of alleged grounds of detention. 4. On 29.02.2008 an order of detention under Section 3(1) of the said Act was passed by the Commissioner of Police, Brihanmumbai. 5. The Government has granted approval on 04.03.2008 which is actually the date of the detention of the petitioner. On 24.03.2008 a reference under Section 10 of the Act was made to the Advisory Board. The report of the Advisory Board was received on 19.04.2008 and by order dated 22.04.2008 the order of detention was confirmed by the Government. ( 3 ) 6. The petitioner is detained and is at present in Central Prison, Thane. The petitioner has filed the present writ petition on 19.06.2008. 7. The basic contention of the petitioner-detenu is that his Bail Application in C.R.No.26/2008 was rejected and he is in custody. The order of detention inspite of this fact, therefore, is unsustainable. 8. The Apex Court in T.V.Sravanan alias S.A.R.Prasana T.V.Sravanan alias S.A.R.Prasana T.V.Sravanan alias S.A.R.Prasana Venkatachaariar Venkatachaariar Venkatachaariar Chaturvedi v. State, (2006) 2 SCC Chaturvedi v. State, (2006) 2 SCC Chaturvedi v. State, (2006) 2 SCC 664, 664, 664, has considered the question i.e. "Whether an order of detention is justified even though the detenu was in Jail on the date of issuance of order of detention?". In the present case, on the date of impugned order of detention the bail application of the petitioner was already rejected. There is nothing on record to show that the petitioner had moved any application for filing bail application again and/or any bail application filed by him, wherein he might be granted bail. There is no proper satisfaction recorded that there was imminent possibility that the petitioner would be released as on the date of impugned order, on presumption and assumption and basically for want of cogent material before the ( 4 ) Detaining Authority. We are of the view that the present order of detention is unsustainable on this ground itself. 9. There is no other offence registered against the Petitioner. Therefore, in the present case, it is difficult to accept that he is dangerous person or acting in any manner prejudicial to the maintenance of public order mainly on the basis of three statements recorded. 10. Insofar as the conclusion that the petitioner would indulge in similar activities if set at liberty is concerned, is also unsustainable. 11. In the result, the writ petition is allowed. The impugned order of detention being D.O. No.16/PCB/DP/Zone-IV/2008 dated 29.02.2008 issued under Section 3(1) of M.P.D.A. Act, 1981 (Amend 1996) by the Commissioner of Police, Greater Mumbai against the petitioner/detenu-Shri Vinod @ Papa Rajan Nair is quashed and set aside. The detenu-Shri Vinod @ Papa Rajan Nair be released forthwith, if not required in any other case. Rule is made absolute accordingly. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.) (BILAL (BILAL (BILAL NAZKI, J.) NAZKI, J.) NAZKI, J.)