1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 773 OF 2008 Akil Ahmed Qureshi, Age 32 years, ) An Indian Inhabitant, residing at ) Shastri Nagar, Patel Nagri, Bandra ) Station, Near Masjid, 1st Lane, Bandra ) (West), Mumbai – 400 050. .... )... ... ... Petitioner. Versus 1) The State of Maharashtra ) through the Secretary to the ) Government of Maharashtra ) (Preventive Detention), Home ) Department (Special), ) Mantralaya, Mumbai – 400 032. ) 2) D. N. Jadhav, ) The Commissioner of Police, ) Brihan Mumbai. ) 3) The Superintendent of Prison, ) Thane Central Prison, Thane. ) 4) The Superintednent of Prison, ) Nasik Road Central, Nasik. ) ... .... Respondents. Mrs. Asreen Ayubi for the Petitioner. Mrs. A. S. Pai, APP for the State. CORAM : BILAL NAZKI and 2 A. A. KUMBHAKONI, JJ. RESERVED ON : 15TH SEPTEMBER, 2008. DELIVERED ON: 23RD SEPTEMBER, 2008. JUDGMENT (Per Bilal Nazki, J.) : This petition has been filed by the brother of one Mohammad Nasir Jalish Qureshi, (hereinafter referred to as “the detenu”), seeking quashing of an order of detention dated 13th November, 2007 passed by the respondents against the detenu. 2. The order of detention is dated 13th November, 2007 and is passed by the Detaining Authority i.e. Commissioner of Police in terms of the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (for short “M.P.D.A. Act”). The grounds of detention have been served on the detenu and there are various grounds of detention on the basis of which the Detaining Authority came to the subjective satisfaction that the detenu needs to be detained. These grounds have been attacked by the learned Counsel for the petitioner on various grounds to seek quashing of order of detention. 3. First and foremost ground is that the petitioner was in custody when 3 the order of detention was passed and there was no need to pass an order of his detention. He submits that he was in judicial custody. He had not been granted bail in connection with Khadak Police Station C.R. No.167/07, RCF Police Station C.R. No. 114/07 and Yerwada Police Station C.R. No.85/07. All these cases in which the detenu was involved in serious offences but inspite of the fact that he had not been granted bail, the Detaining Authority passed an order of detention. The offences against the detenu were under Sections 397, 392, 399, 402 of the Indian Penal Code r/w Sections 3 and 25 of the Arms Act. There were three F.I.Rs. registered against the detenu for the aforesaid offences. 4. It is submitted by the learned Counsel for the petitioner that in the grounds of detention the Detaining Authority has stated that he was aware of the pendency of the cases against the detenu. He was also aware that the detenu was in custody and he had not been granted bail and as such there was no material before him to come to a conclusion that the Petitioner would be released on bail. While showing the awareness of pendency of cases and also showing awareness that the detenu was in jail, the Detaining Authority in grounds of detention stated thus:- “However, you may be granted bail in those cases at any time under the ordinary law of the land as the offences are not compulsorily punishable with death or life imprisonment and you may avail of the bail facilities and will become a free person. I am also aware that 4 you have been grant ed bail in Bandra Police Station C. R. No.291/2007 but you have not availed of the bail facility so far.” 5. It is contended by the learned Counsel for the petitioner that the matter is concluded by the Judgment of the Bench of three members of the Supreme Court in the case of Dharmendra Suganchand Chelawat v/s Union of India, reported in AIR 1990 SC 1196. In this judgment one of the ground of attack on the order of detention was that the detenu was in custody when the order of detention was passed and as such the order of detention could not have been passed. In paragraph 19 of the Judgment, the Court held : "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 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.” This Court relied on this judgment of the Supreme Court in Dharmendra Suganchand Chelawat earlier while deciding the Criminal Writ Petition NO. 5 552 of 2007 (Abdul Shakil Abdul Jamil Shaikh v/s The State of Maharashtra & Orders) decided on 11th January, 2008, and held that unless there is a cogent material before the Detaining Authority on the basis of which he can get satisfied that the detenu is likely to be released from custody in near future an order of detention cannot be passed. The second condition precedent for passing an order of detention is that the Detaining Authority should take into account the nature of the antecedents of the activities of the detenu and come to a conclusion that it was likely that after his release from custody, he will indulge in activities prejudicial. In the present case we do not find that there was any material before the Detaining Authority to come to a conclusion that there was a likelihood that the detenu would be released from the custody in the near future as in two cases not even a bail application had been moved and offences were under Sections 392 or 399 of the Indian Penal Code which carries the punishment of ten years. 6. Learned Counsel for the petitioner relied on an another latest judgment of the Supreme Court in the case of Veeramani v/s State of Tamil Nadu, reported in 1995 Cri. L. J. 2644. This judgment has taken into consideration the above referred judgment of the Supreme Court in Dharmendra Suganchand Chelawat (Supra) and it referred to the Judgment 6 of the Constitution Bench of the Supreme Court in Rameshwar Shaw v/s District Magistrate, Burdwan, reported in AIR 1964 SC 334, where the Constitution Bench considered the following question: “Can a person in jail custody be served with an order of detention while he is in such custody?” This question was after discussion replied in in the following terms: "Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.” In paragraph 6 of the Judgment, the Supreme Court said : "6. From the catena of decisions of this Court, it is clear that even in the case of a person in custody, a detention roder 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 authority passed an order after recording his satisfaction the same cannot be struck down.” Therefore, this judgment does not depart from the law laid down in the judgment in the case Dharmendra Suganchand Chelawat (Supra), because the principle laid down in paragraph 6 is again that the Detaining Authority should come to satisfaction on the basis of the reliable material that there was a possibility of the detenu being released on bail. It may also be pointed out that this judgment is of two Judges Bench whereas the earlier judgment 7 is by three Judges Bench of the Supreme Court. On the basis of the material in the case before the Supreme Court, they came to the conclusion that the Detaining Authority had material to come to a conclusion that there was a likelihood of bail being granted to the detenu. Therefore, this judgment would not apply to the present case before this Court. 7. Learned Counsel for the respondents has also relied on a judgment of the Division Bench of this Court in the case of Akhil Ahmed Khalil Ahmed Shaikh v/s M.N.Singh, Commissioner of Police and others, reported in 2002 Bom. C.R. (Cri.) 253. That judgment would not apply to the fact of the present case. 8. Learned Counsel for the petitioner has also submitted that the Supreme Court again considered this question in a latest case in T. V. Sravanan alias S.A.R. Prasana Venkatachaariar Chaturvedi v/s State through Secretary and another, reported in (2006) 1 Supreme Court Cases (Cri.) 593. In that case the material that was before the Magistrate when he ordered detention of a person who was already in custody was referred to him in the following terms: "I am aware that Thiru Venkata Sravanan alias S.A.R. Prasanna Venkatachariyar Chaturvedi is in remand in Central Crime Branch, Crime Nos. 582 of 2004, 592 of 2004, 594 of 2004, 598 of 2004, 601 of 2004 and 602 of 2004 and a bail application was moved before the Principal Sessions Court in Crl. MP No. 11163 of 2004 in Central Crime Branch, Crime No. 582 of 2004 8 and the same was dismissed on 17-11-2004. Further a bail application was moved before the Honourable High Court, Madras in Crl. OP No. 37011 of 2004 in Central Crime Branch, Crime No. 582 of 2004 and the same was withdrawn on 3-12- 2004. He has not moved any bail subsequently. However, there is imminent possibility of his coming out on bail by filing another bail application before the Principal Sessions Court or the Hon'ble High Court since in similar cases bails are granted by the Principal Sessions Court after a lapse of time. If he comes out on bail, he will indulge in further activities which will be prejudicial to the maintenance of public order.” Then the Court went into question whether on the basis of such material an order of detention was justified. Considering the earlier judgments of the Court, the Court held: "14. We are satisfied that for the same reason the order of detention cannot be upheld in this case. The bail applications moved by the appellant had been rejected by the courts and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted The “imminent possibility” of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. The inference has to be drawn from the available material on record. In the absence of such material on record, the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention. Thee was, therefore, no sufficient compliance with the requirements as laid down by this Court. These are the reasons for which while allowing the appeal we directed the release of the appellant by order dated 13-12-2005.” 9. Following the aforesaid judgments, we feel that the order of detention cannot sustain and it has to be quashed on this ground alone and therefore 9 the other grounds need not be gone into. 10. In view of the above, the Order of detention dated 13th November, 2007 passed by the Respondents against the detenu Mohammad Nasir Jalish Qureshi is hereby quashed and set aside. The said detenu be released forthwith, if not required in any other case. 11. Rule made absolute in terms aforesaid. There shall be no order as to costs. 12. The writ petition is disposed of, accordingly. Sd/- (BILAL NAZKI, J.) Sd/- (A. A. KUMBHAKONI, J.)