1 cri-wp-2775-09 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2775 OF 2009 Dinesh Doshi Age 52 years, residing at Anand Nagar D-67, Near N.L. College, S.V. Road Malad (West), Mumbai – 400 064 .. Petitioner Vs. 1. Commissioner of Police, Mumbai 2. The State of Maharashtra (Through the Secretary, Home Department (Spl.), Mantalaya, Mumbai. 3. The Superindent Nashik Road Central Prison Nashik .. Respondents Mr. U. N. Tripathi for petitioner. Mr. J. P. Yagnik, APP for State. CORAM: B. H. MARLAPALLE & ANOOP V. MOHTA, JJ. RESERVED ON : JULY 01, 2010 PRONOUNCED ON : JULY 21, 2010 2 cri-wp-2775-09 JUDGMENT (Per B. H. Marlapalle,J.): 1. In this petition, filed under Article 226 of the Constitution of India, praying for a writ of habeas corpus against the order of detention passed on 11/8/2009 under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (for short MPDA Act) has been challenged by the father of the detenu - Shri Pritesh Dinesh Doshi. The detention order was served on the detenu on 12/8/2009. It was approved by the State Government on 21/8/2009 and was thereafter confirmed on 29/9/2009, for a period of one year from the date of its execution i.e. from 12/8/2009. 2. The detention order was based on three CRs, namely, C.R. No. 95 of 2009 registered with the Charkop Police Station, C.R. No. 161 of 2009 registered with the Oshiwara Police Station and C.R. No. 150 of 2009 registered with the Oshiwara Police Station. In addition, there were two in- camera statements recorded on 26/6/2009 and 29/6/2009, which referred to the incidents of last week of April 2009 and first week of May, 2009 respectively. Along with the detention order, the grounds of detention and 3 cri-wp-2775-09 a list of documents along with their translation in Hindi, was provided to the detenu. Though a host of grounds have been set out, the learned counsel for the petitioner has pressed for the following ground only, “(b) The Petitioner says and submits that on 11.08.2009, the Petitioner was already in judicial custody having not been granted bail. It is, therefore, unwarranted and unjustified to detain a person, since there is no imminent possibility of release of a person on bail. The Petitioner has never applied for bail. This shows total non- application of mind of the detaining authority. There is no cogent material before the detaining authority to come to the conclusion and pass an order of detention. The order of detention is illegal and bad in law, ought to be quashed and set aside. This shows total non-application of mind of the detaining authority.” 3. In C.R. No. 161 of 2009, registered with the Oshiwara Police Station, it was alleged that on 10/5/2009 the detenu had forcibly dragged the 4 cri-wp-2775-09 complainant’s minor daughter in a rickshaw at about 4 p.m., taken her, under threats of violence, to Madh Island, Malad (West), Mumbai and she was forced to have oral sex with him in a hired room in a hotel. The detenu forcibly kept the said girl in his company for about one hour and was thereafter freed. C.R. No. 161 of 2009 was registered at the instance of the minor girl’s father for the offence punishable under Section 363 of IPC and on investigation, the offences punishable under Sections 377, 354, 392 and 109 of IPC were added. On completion of investigation, a charge-sheet came to be filed and the case has been registered as C.C. No. 1785/PW/2009. 4. During the course of investigation, statements of 11 witnesses came to be recorded and the detenu was at large. However, he came to be arrested in connection with C.R. No. 95 of 2009 registered with the Charkop Police Station and he was taken in charge on transfer warrant in C.R. No. 161 of 2009 and was shown to be arrested in the same CR on 3/6/2009. The Manager of the hotel, where the incident had taken place, was also arrested on 5/6/2009. He was remanded to judicial custody till 22/6/2009 and the charge-sheet came to be submitted on 29/7/2009 in the 22nd Court of Metropolitan Magistrate, Andheri and the detenu continued to be in jail. 5 cri-wp-2775-09 5. In the second case, i.e. C.R. No. 95 of 2009, it was alleged that the complainant’s minor daughter, aged about 13 years, was forcibly dragged in a rickshaw by the detenu on 19/5/2009 at about 12.40 hours and taken in the direction of Charkop Market. He was alleged to have claimed that he was a doctor and threatened her that he would disclose her illicit affairs with so many boys to her parents. The detenue caught hold of her neck and threatened her to stop crying and keep silent. The rickshaw driver was ordered to stop near two Baithy Chawls but as there was no room available, the girl was taken to a third Baithy Chawls and the detenu booked a room. He detained the minor girl in his company for one hour in the said room and raped her three times. She was released by the detenu at about 15.15 hours and her mother registered the C.R. for an offence punishable under Section 363 of IPC. During the course of investigation, the charge under Section 376 of IPC was added and on 3/6/2009 a test identification parade was held by the Nayab Tahisldar (Revenue), Borivali. He was presented for remand on 20/5/2009 and was remanded to judicial custody till 10/6/2009. The charge-sheet came to be filed on 5/8/2009 in the 24th Court of Additional Chief Metropolitan Magistrate, Borivali for the offences punishable under Sections 363 and 376 of IPC. He remained in jail and the 6 cri-wp-2775-09 case came to be registered as C.C. No. 1659 of 2009. 6. C.R. No. 150 of 2009 was in respect of the incident that had taken place on 4/5/2009 opposite Tarapore Tower, near Parkar Petrol Pump, the detenu and his associate Umesh Chakravarti had snatched a gold Mangalsutra weighing 2 ½ tolas and valued of Rs.35,000/- from the person of Smt. Dhanlaxmi Narendra Karkera and, therefore, an offence was registered under Section 379 read with Section 34 of IPC with the Oshiwara Police Station. The detenu was arrested on 7/6/2009 and the Mangalsutra was recovered at his instance. He was in judicial custody till 17/8/2009 and on filing of the charge-sheet on 6/7/2009, the case was registered as C.C. No.1606/PW/2009 in the 22nd Court of the Metropolitan Magistrate at Andheri and is pending for trial. In none of these cases the detenu applied for bail. 7. As per the Statement of witness “A”, the incident had taken place on 26/6/2009 and it was alleged that he stopped the witness and put his hand around her neck so as to snatch away her Mangalsutra. When she raised alarm, members of the public gathered and at that stage the detenu took out his knife and threatened that anybody who came forward would be 7 cri-wp-2775-09 dealt with. The people around got frightened and ran helter skelter, including the peddlers and hawkers. In the second incident, Witness “B” had purchased articles and was proceeding towards her house from Pancholiya High School at Mahavir Nagar. She was stopped by the detenu and after stopping an autorickshaw she was dragged in the same under threats. When she shouted for help, the detenu closed her mouth. The rickshaw driver tried to run away and he was threatened at knife point. When people tried to intervene, they were threatened at knife point and they ran away. However, some how the complainant escaped from the clutches of the detenu. 8. Mr. Tripathi, the learned counsel for the petitioner, submitted that the detenu was in jail when the impugned detention order was passed and served on him and he had not applied for bail in any of the above referred cases pending before the competent courts. Even the material placed on record in terms of the charge-sheets filed against the detenu in the respective courts clearly went to show that the detenu could not have been released on bail even if he had applied for the same. Mr. Tripathi also submitted that it could not be certainly stated that in all the three cases he could have been released on bail. It was further pointed out that in respect 8 cri-wp-2775-09 of the offences punishable under Sections 363 and 376 of IPC, there was no chance for the detenu to be released on bail in view of the material placed along with the charge-sheet and the detaining authority failed to apply his mind to this material on record and mechanically proceeded to pass the impugned order of detention. The learned counsel referred to para 8 of the reasoned order and submitted that the detaining authority failed to apply her mind to the fact that the detenu was already in jail and there was no material on the basis of which it could be concluded that the competent court in all the three cases could have released the detenu on bail, if he had applied for the same. The said para reads as under:- “8. 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 am aware that you have not been granted bail in Charkop Police Station CR No. 95/2009, and in Oshivara Police Station C.R. Nos.150/2009 and 161/2009. However, you may be granted bail in these cases as investigation of these cases is over and the charge sheets have been submitted against you before the Hon’ble Courts and the offences are 9 cri-wp-2775-09 not compulsorily punishable with death or life imprisonment. In view of your tendencies and inclination reflected in offence committed by you as stated above. I am further satisfied that after availing the bail facility you will become a free person, and being at large, being criminal, you are likely to revert to the similar criminal 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) (Mah. Ord. X of 2009), to prevent you from acting in such a prejudicial manner in future.” Mr. Tripathi, in support of his arguments, has placed reliance on the following decisions of the Supreme Court:- (a) Dharmendra Suganchand Chelawat and anr. vs. Union of India and ors. [AIR 1990 SC 1196]. (b) Kamarunnissa vs. Union of India [AIR 1991 SC 1640]. 10 cri-wp-2775-09 (c) Veeramani vs. State of Tamil Nadu [(1994) 2 SCC 337]. (d) Amritlal and other vs. Union Government through Secretary, Ministry of Finance and others [AIR 2000 SC 3675]. 9. Mr. Yagnik the learned APP has opposed the petition and submitted that para 8 of the reasoned detention order clearly makes out a case that the detaining authority was aware that the detenu was already in jail when the detention order was passed, the detaining authority was aware of the material placed along with the charge-sheets filed in the respective courts, it had applied its mind to the material and reached to a conclusion that there was a likelihood of the detenu being released on bail and he was likely to revert to the similar criminal activities prejudicial to the maintenance of public order in future and that it was necessary to detain him under the MPDA Act so as to prevent him from acting in any such prejudicial manner in future. Mr. Yagnik relied upon the very same decisions of the Supreme Court, as were cited by Mr. Tripathin, and yet other decisions of the Supreme Court in the case of A Geetha vs. State of T.N. and anr. [(2006) 7 SCC 603], Smt. Phulwari Jagdambaprasad Pathak vs. Shri R.H. Mendonca and ors. [JT 2000 (8) SC 209] and the following decisions of this court, as well: 11 cri-wp-2775-09 (a) Akhil Ahmed Shaikh v/s. State of Maharashtra [2002 BCR (Cri) 253]. (b) Shahid Mohd. Yusuf v/s. State of Maharashtra [Cri.W.P. No. 856 of 2002 decided on 26/2/2003 – unreported] (c) Vinod @ Vinu Bhupat Lakhoon v/s. State of Maharashtra [1997 ALL M.R. (Cri) 403]. (d) Harun Shaikh v/s. State of Maharashtra [1997 Cri.L.J. 2085] 10. In the case of Dharmendra Chelawat (Supra), a three Judge bench of the Supreme Court reconsidered the law laid down earlier on the issue as to whether and in what circumstances the order for preventive detention may be passed against the person who is already in custody and stated as under:- “19. The decisions referred to above lead to the conclusion 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 12 cri-wp-2775-09 detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu 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 detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, 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.” In the case of Kamarunnissa (Supra), the Supreme Court referred to Dharmendra Chelawat (Supra) and held in para 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 13 cri-wp-2775-09 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 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 14 cri-wp-2775-09 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 detenu were in custody.” The law on the very same point was again considered by the Supreme Court in the case of Veeramani (Supra) and having regard to the law laid down in the case of Dharmendra Chelawat (Supra), the Supreme Court held as under:- “6. From the catena of decisions of this Court it is clear that even in the case of a person in custody, a detention order can validly be passed if the authority passing the order is aware of the fact that he is actually in custody; if he has reason to believe on the basis of the reliable material that there is a possibility of his being released on bail and that on being so released, the detenu would in all probabilities indulge in prejudicial activities and if the 15 cri-wp-2775-09 authority passes an order after recording his satisfaction the same cannot be struck down.” 11. A Division Bench of this court in the case of Shahid Mohd. Yusuf Shaikh (Supra), on the issue of application of mind to the material on record by the detaining authority observed as under:- “......With regard to the above, as pointed out hereinabove, in the grounds of detention, the Detaining Authority has set out the factual aspect as well as the statements recorded with regard to the incident which took place on 15.11.2001. The said narration of the facts very clearly indicate that though the petitioner has been charged with the offence punishable under Section 302 IPC, the sequence of events clearly indicate that the detenu as well as his associates had intended only to rob the taxi driver. It appears that when the taxi driver got down from the taxi and caught hold of the detenu, the detenu had inflicted wound on the neck of the taxi driver and thereafter he and his associates started running. All these facts have been taken into account by the 16 cri-wp-2775-09 Detaining Authority and prima facie the Detaining Authority seems to have come to the conclusion based on the above sequence of events that the charge under Section 302 IPC may not be sustained and hence the Detaining Authority has observed that there was every likelihood of the petitioner being released on bail in the near future.....” 12. The law settled by the Supreme Court in the case of Dharmendra Chelawat (Supra), Kamarunnissa (Supra) and Veeramani (Supra) necessitates, while a detention order is being passed against a person who is already in jail, that the following requirements are satisfied in the reasons set out in support of the detention order:- (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. 17 cri-wp-2775-09 (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. If the detention order satisfies all these four grounds, there would be no reason/ground to strike down the order of detention. We are, therefore, required to examine, whether all these grounds are met in the instant case. It is also pertinent to note that all the above four grounds must be satisfied from the reasoning provided in the detention order itself and such a reasoning cannot be supplemented by furnishing an explanation or satisfaction of the detaining authority about the material placed on record, by filing an affidavit. The order of detention cannot be supported by furnishing the details in terms of the affidavit and the order of detention must stand on the reasons set out therein. Application of mind to the material on record by the detaining authority must reflect in the detention order itself and the same cannot be supplemented by filing an affidavit. 18 cri-wp-2775-09 13. Both the parties have relied upon the reasons set out in para 8 of the detention order. It is clear from the same that the detaining authority was aware that the detenu was in custody, he was not granted bail in Charkop Police Station C.R. No. 95 of 2009 and Oshivara Police Station C.R. Nos. 150/09 and 161/09. The detaining authority further of the view that detenu may be granted bail in all these cases as the charge-sheets filed against him did not indicate that the offences were punishable with death or life imprisonment. The detaining authority was also satisfied that the tendencies and inclination reflected in the offences committed by the detenu and on his being free on bail, he was likely to revert to the similar criminal activities prejudicial to the maintenance of public order in future and it was necessary to prevent him from doing so by passing a detention order. However, it is clear that the detaining authority did not apply its mind to the material on record before arriving at a conclusion that the detenu was likely to be released on bail in any of the three cases pending against him. The reasoning set out in para 8 does not disclose that the material on record, like the statements of witnesses or the nature of offence punishable under Section 376 of IPC (rape of a minor girl) was considered, by the detaining authority and it was so imperative as no bail application was pending or filed by the 19 cri-wp-2775-09 detenu. It is also pertinent to note that the maximum punishment provided for the offence punishable under Section 376 of IPC is life imprisonment which obviously does not appear to have been considered by the detaining authority as is clear from para 8 of the reasoned order. Thus one of the tests laid down by the apex Court i.e. the second test set out in para 12 above is not satisfied in the instant case and, therefore, the impugned detention order is vitiated on the same ground. 14. Hence the detention order is unsustainable and the petition succeeds. The petition is hereby allowed and the impugned order of detention dated 11th August 2009 is quashed and set aside. Rule is made absolute accordingly. (ANOOP V. MOHTA,J.) (B. H. MARLAPALLE, J.)