- 1 - 1 - 1 - 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 CRIMINAL JURISDICTION CRIMINAL JURISDICTION CRIMINAL JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO. 1711 OF 2005 WRIT PETITION NO. 1711 OF 2005 WRIT PETITION NO. 1711 OF 2005 Shri. Shri. Shri. Devidas @ Dasha Bhagoji Devidas @ Dasha Bhagoji Devidas @ Dasha Bhagoji Shinde, Shinde, Shinde, aged 23 years, residing aged 23 years, residing aged 23 years, residing at at at R/O, New Sahyadri Nagar "B", R/O, New Sahyadri Nagar "B", R/O, New Sahyadri Nagar "B", Near Near Near Ambedkar Statue, Vashinaka, Ambedkar Statue, Vashinaka, Ambedkar Statue, Vashinaka, Chembur, Chembur, Chembur, Mumbai-400 074. Mumbai-400 074. Mumbai-400 074. .. .. .. ..Petitioner ..Petitioner ..Petitioner Versus Versus Versus 1. 1. 1. A. A. A. N. Roy, Commissioner N. Roy, Commissioner N. Roy, Commissioner of of of Police, Greater Bombay. Police, Greater Bombay. Police, Greater Bombay. 2. 2. 2. The The The State of Maharashtra. State of Maharashtra. State of Maharashtra. 3. 3. 3. The The The Superintendent, Superintendent, Superintendent, Nasik Nasik Nasik Road Central Prison, Road Central Prison, Road Central Prison, Nasik. Nasik. Nasik. .. .. .. .. .. .. .. .. .. ..Respondents ..Respondents ..Respondents ----- ----- ----- Shri. Shri. Shri. U. N. Tripathi, Advocate, for the Petitioner. U. N. Tripathi, Advocate, for the Petitioner. U. N. Tripathi, Advocate, for the Petitioner. Shri. Shri. Shri. D. S. Mhaispurkar, A. P. P., for the D. S. Mhaispurkar, A. P. P., for the D. S. Mhaispurkar, A. P. P., for the Respondent-State. Respondent-State. Respondent-State. ------- ------- ------- CORAM CORAM CORAM : S. B. MHASE AND : S. B. MHASE AND : S. B. MHASE AND S. S. S. R. SATHE, JJ. R. SATHE, JJ. R. SATHE, JJ. DATE DATE DATE : OCTOBER 25, 2005 : OCTOBER 25, 2005 : OCTOBER 25, 2005 ORAL ORAL ORAL JUDGEMENT ( PER S. R. SATHE, J.) JUDGEMENT ( PER S. R. SATHE, J.) JUDGEMENT ( PER S. R. SATHE, J.) . By this criminal writ petition under Article 226 of By this criminal writ petition under Article 226 of By this criminal writ petition under Article 226 of the the the Constitution of India, the petitioner is Constitution of India, the petitioner is Constitution of India, the petitioner is challenging challenging challenging the order of detention passed against him the order of detention passed against him the order of detention passed against him by by by Respondent No. 1- the Commissioner of Police, Respondent No. 1- the Commissioner of Police, Respondent No. 1- the Commissioner of Police, Greater Greater Greater Bombay dated 21.2.2005 in exercise of the Bombay dated 21.2.2005 in exercise of the Bombay dated 21.2.2005 in exercise of the powers powers powers conferred under subsection (2) of section 3 of conferred under subsection (2) of section 3 of conferred under subsection (2) of section 3 of the the the Maharashtra Prevention of Dangerous Activities of Maharashtra Prevention of Dangerous Activities of Maharashtra Prevention of Dangerous Activities of - 2 - 2 - 2 - Slumlords, Slumlords, Slumlords, Bootleggers, Drug Offenders and Dangerous Bootleggers, Drug Offenders and Dangerous Bootleggers, Drug Offenders and Dangerous Persons Persons Persons Act, 1981 ( For the sake of convenience Act, 1981 ( For the sake of convenience Act, 1981 ( For the sake of convenience hereinafter hereinafter hereinafter referred to as the "MPDA Act"). referred to as the "MPDA Act"). referred to as the "MPDA Act"). 2. 2. 2. The order of detention in this case is based on one The order of detention in this case is based on one The order of detention in this case is based on one C.R. C.R. C.R. and two and two and two in camera statements. C.R. No. 272 of 2004 2004 2004 was filed for the offences punishable under was filed for the offences punishable under was filed for the offences punishable under sections sections sections 302, 307, 324, 323, 143, 147, 148, 149, 452, 302, 307, 324, 323, 143, 147, 148, 149, 452, 302, 307, 324, 323, 143, 147, 148, 149, 452, 427 427 427 of the Indian Penal Code read with section 37 (a ) of the Indian Penal Code read with section 37 (a ) of the Indian Penal Code read with section 37 (a ) of of of the Bombay Police Act. It was pertaining to the the Bombay Police Act. It was pertaining to the the Bombay Police Act. It was pertaining to the incident incident incident dated 16.12.2004. dated 16.12.2004. dated 16.12.2004. In camera statement of witness witness witness "A" recorded on 10.1.2005 was in respect of an "A" recorded on 10.1.2005 was in respect of an "A" recorded on 10.1.2005 was in respect of an incident incident incident which occurred in the first week of December which occurred in the first week of December which occurred in the first week of December 2004. 2004. 2004. Statement of witness "B" was recorded on Statement of witness "B" was recorded on Statement of witness "B" was recorded on 13.6.2005, 13.6.2005, 13.6.2005, which had reference to the incident which which had reference to the incident which which had reference to the incident which occurred occurred occurred in the second week of December 2004. in the second week of December 2004. in the second week of December 2004. 3. 3. 3. On the above material, the detaining authority was On the above material, the detaining authority was On the above material, the detaining authority was subjectively subjectively subjectively satisfied that the petitioner was satisfied that the petitioner was satisfied that the petitioner was indulging indulging indulging in activities prejudicial to the maintenance in activities prejudicial to the maintenance in activities prejudicial to the maintenance of of of public order. Hence the detaining authority passed public order. Hence the detaining authority passed public order. Hence the detaining authority passed an an an order of detention on 21.2.2005. order of detention on 21.2.2005. order of detention on 21.2.2005. 4. 4. 4. Although, in the petition the order of detention is Although, in the petition the order of detention is Although, in the petition the order of detention is challenged challenged challenged on several grounds, at the time of hearing, on several grounds, at the time of hearing, on several grounds, at the time of hearing, Shri. Shri. Shri. Tripathi, learned Counsel for the Petitioner, Tripathi, learned Counsel for the Petitioner, Tripathi, learned Counsel for the Petitioner, - 3 - 3 - 3 - has has has pressed into service only two grounds. First pressed into service only two grounds. First pressed into service only two grounds. First ground ground ground is the one mentioned in clause (B). It runs as is the one mentioned in clause (B). It runs as is the one mentioned in clause (B). It runs as follows: follows: follows: "(B) "(B) "(B) The Petitioner says and submits that the The Petitioner says and submits that the The Petitioner says and submits that the detenu detenu detenu was already in judicial custody having was already in judicial custody having was already in judicial custody having not not not been granted bail by the Court. The been granted bail by the Court. The been granted bail by the Court. The detenu detenu detenu submits that it is therefore submits that it is therefore submits that it is therefore unwarranted unwarranted unwarranted and unjustified to clamp detention and unjustified to clamp detention and unjustified to clamp detention law law law on a person who is already in custody and on a person who is already in custody and on a person who is already in custody and is is is already deprived from committing any already deprived from committing any already deprived from committing any prejudicial prejudicial prejudicial activities. This shows activities. This shows activities. This shows non-applicatioan non-applicatioan non-applicatioan of mind of the detaining of mind of the detaining of mind of the detaining authority. authority. authority. Moreover the detaining authority Moreover the detaining authority Moreover the detaining authority has has has not applied his mind to the facts of this not applied his mind to the facts of this not applied his mind to the facts of this case, case, case, particularly he has not taken into particularly he has not taken into particularly he has not taken into consideration consideration consideration the role of the petitioner in the role of the petitioner in the role of the petitioner in the the the incident. The Petitioner further submits incident. The Petitioner further submits incident. The Petitioner further submits that that that he has never applied for bail in any he has never applied for bail in any he has never applied for bail in any courts. courts. courts. The detaining authority has no The detaining authority has no The detaining authority has no material material material before him to come to conclusion that before him to come to conclusion that before him to come to conclusion that the the the detenu may be granted bail under normal detenu may be granted bail under normal detenu may be granted bail under normal law law law of land in near future. The order of of land in near future. The order of of land in near future. The order of detention detention detention is illegal and bad in law, ought to is illegal and bad in law, ought to is illegal and bad in law, ought to be be be quashed and set aside." quashed and set aside." quashed and set aside." - 4 - 4 - 4 - 5. 5. 5. It is an admitted fact that at the time when the It is an admitted fact that at the time when the It is an admitted fact that at the time when the detention detention detention order was passed, the detenu was in judicial order was passed, the detenu was in judicial order was passed, the detenu was in judicial custody custody custody as he was arrested in connection with C.R. No. as he was arrested in connection with C.R. No. as he was arrested in connection with C.R. No. 272 272 272 of 2004 for the offence punishable under section of 2004 for the offence punishable under section of 2004 for the offence punishable under section 302 302 302 of the Indian Penal Code. In view of this of the Indian Penal Code. In view of this of the Indian Penal Code. In view of this position, position, position, Shri. Tripathi, learned Counsel for the Shri. Tripathi, learned Counsel for the Shri. Tripathi, learned Counsel for the petitioner, petitioner, petitioner, argued before us that there was no argued before us that there was no argued before us that there was no necessity necessity necessity for the detaining authority to pass the order for the detaining authority to pass the order for the detaining authority to pass the order of of of detention, particularly when there was no cogent detention, particularly when there was no cogent detention, particularly when there was no cogent material material material before the detaining authority to hold that before the detaining authority to hold that before the detaining authority to hold that the the the detenu was likely to be released on bail and the detenu was likely to be released on bail and the detenu was likely to be released on bail and the detenu detenu detenu had, in fact, not preferred any application for had, in fact, not preferred any application for had, in fact, not preferred any application for bail. bail. bail. It is true that it is well-settled that if a man It is true that it is well-settled that if a man It is true that it is well-settled that if a man is is is in custody and there is no imminent possibility of in custody and there is no imminent possibility of in custody and there is no imminent possibility of his his his being released, the power of preventive detention being released, the power of preventive detention being released, the power of preventive detention should should should not be exercised. It has been so observed in not be exercised. It has been so observed in not be exercised. It has been so observed in the the the case of Binod Singh v. District Magistrate, (1986) case of Binod Singh v. District Magistrate, (1986) case of Binod Singh v. District Magistrate, (1986) 4 Supreme Court Cases 416. Supreme Court Cases 416. Supreme Court Cases 416. Naturally, the question arises arises arises as to what are the factors which must be as to what are the factors which must be as to what are the factors which must be considered considered considered by the detaining authority in such a by the detaining authority in such a by the detaining authority in such a situation. situation. situation. In the case of Vijay Kumar v. Union of In the case of Vijay Kumar v. Union of In the case of Vijay Kumar v. Union of India, India, India, A.I.R. 1988 Supreme Court 934, A.I.R. 1988 Supreme Court 934, A.I.R. 1988 Supreme Court 934, Their Lordships have have have observed that two facts must appear from the observed that two facts must appear from the observed that two facts must appear from the grounds grounds grounds of detention, namely, (1) awareness of the of detention, namely, (1) awareness of the of detention, namely, (1) awareness of the detaining detaining detaining authorithy of the fact that the detenu is authorithy of the fact that the detenu is authorithy of the fact that the detenu is already already already in detention, and (2) there must be compelling in detention, and (2) there must be compelling in detention, and (2) there must be compelling - 5 - 5 - 5 - reasons reasons reasons justifying such detention, despite the fact justifying such detention, despite the fact justifying such detention, despite the fact that that that the detenu is already under detention. So, it is the detenu is already under detention. So, it is the detenu is already under detention. So, it is not not not that in no circumstances the detaining authority that in no circumstances the detaining authority that in no circumstances the detaining authority can can can pass order of detention when the detenu is already pass order of detention when the detenu is already pass order of detention when the detenu is already in in in judicial custody. The legal position about this has judicial custody. The legal position about this has judicial custody. The legal position about this has been been been summed up in the case of N. Meera Rani v. Govt. summed up in the case of N. Meera Rani v. Govt. summed up in the case of N. Meera Rani v. Govt. T. T. T. N., A.I.R. 1989 Supreme Court 2027 N., A.I.R. 1989 Supreme Court 2027 N., A.I.R. 1989 Supreme Court 2027 as under : " We may summarise and reiterate the settle We may summarise and reiterate the settle We may summarise and reiterate the settle principle. principle. principle. Subsisting custody of the detenu Subsisting custody of the detenu Subsisting custody of the detenu by by by itself does not invalidate an order of his itself does not invalidate an order of his itself does not invalidate an order of his preventive preventive preventive detention and the decision must detention and the decision must detention and the decision must depend depend depend on the facts of the particular case; on the facts of the particular case; on the facts of the particular case; preventive preventive preventive detention being necessary to detention being necessary to detention being necessary to prevent prevent prevent the detenu from acting in any manner the detenu from acting in any manner the detenu from acting in any manner prejudicial prejudicial prejudicial to the security of the State or to to the security of the State or to to the security of the State or to the the the maintenance of public order etc. maintenance of public order etc. maintenance of public order etc. ordinarily ordinarily ordinarily it is not needed when the detenu is it is not needed when the detenu is it is not needed when the detenu is already already already in custody; the detaining authority in custody; the detaining authority in custody; the detaining authority must must must show its awareness to the fact of show its awareness to the fact of show its awareness to the fact of subsisting subsisting subsisting custody of the detenu and take that custody of the detenu and take that custody of the detenu and take that factor factor factor into account while making the order; into account while making the order; into account while making the order; but, but, but, even so, if the detaining authority is even so, if the detaining authority is even so, if the detaining authority is reasonably reasonably reasonably satisfied on cogent material that satisfied on cogent material that satisfied on cogent material that there there there is likelihood of his release and in view is likelihood of his release and in view is likelihood of his release and in view of of of his antecedent activities which are his antecedent activities which are his antecedent activities which are - 6 - 6 - 6 - proximate proximate proximate in point of time he must be detained in point of time he must be detained in point of time he must be detained in in in order to prevent him from indulging in such order to prevent him from indulging in such order to prevent him from indulging in such prejudicial prejudicial prejudicial activities the detention order can activities the detention order can activities the detention order can be be be validly made even in anticipation to validly made even in anticipation to validly made even in anticipation to operate operate operate on his release. This appears to us to on his release. This appears to us to on his release. This appears to us to be be be the correct legal position. " the correct legal position. " the correct legal position. " 6. 6. 6. Bearing in mind the above settled legal position, Bearing in mind the above settled legal position, Bearing in mind the above settled legal position, if if if we see the grounds of detention in question, and in we see the grounds of detention in question, and in we see the grounds of detention in question, and in particular particular particular paragraph (7) of the same, we find that the paragraph (7) of the same, we find that the paragraph (7) of the same, we find that the detaining detaining detaining authority was aware of the fact that the authority was aware of the fact that the authority was aware of the fact that the detenu detenu detenu is involved in the offence punishable under is involved in the offence punishable under is involved in the offence punishable under section section section 302 of the Indian Penal Code and at the 302 of the Indian Penal Code and at the 302 of the Indian Penal Code and at the relevant relevant relevant time he was in judicial custody. Besides time he was in judicial custody. Besides time he was in judicial custody. Besides this, this, this, it is also very clear that having regard to the it is also very clear that having regard to the it is also very clear that having regard to the antecedents antecedents antecedents reflected from the statements of the reflected from the statements of the reflected from the statements of the witnesses witnesses witnesses recorded in C. R. No. 272 of 2004 and the recorded in C. R. No. 272 of 2004 and the recorded in C. R. No. 272 of 2004 and the statements statements statements of witnesses "A" and "B", there was a of witnesses "A" and "B", there was a of witnesses "A" and "B", there was a reasonable reasonable reasonable apprehension in the mind of the detaining apprehension in the mind of the detaining apprehension in the mind of the detaining authority authority authority that if the detenu is released on bail in the that if the detenu is released on bail in the that if the detenu is released on bail in the abovementioned abovementioned abovementioned C.R., then he is likely to indulge in C.R., then he is likely to indulge in C.R., then he is likely to indulge in similar similar similar criminal activities prejudicial to the criminal activities prejudicial to the criminal activities prejudicial to the maintenance maintenance maintenance of public order. Merely because he was of public order. Merely because he was of public order. Merely because he was involved involved involved in the offence punishable under section 302 of in the offence punishable under section 302 of in the offence punishable under section 302 of the the the Indian Penal Code, it cannot be argued on behalf of Indian Penal Code, it cannot be argued on behalf of Indian Penal Code, it cannot be argued on behalf of the the the petitioner that there was no possibility of the petitioner that there was no possibility of the petitioner that there was no possibility of the - 7 - 7 - 7 - detenu detenu detenu being released on bail. Similarly, merely being released on bail. Similarly, merely being released on bail. Similarly, merely because because because till that time the detenu had not filed bail till that time the detenu had not filed bail till that time the detenu had not filed bail application application application was also not sufficient. In fact, the was also not sufficient. In fact, the was also not sufficient. In fact, the detaining detaining detaining authority took into consideration the fact as authority took into consideration the fact as authority took into consideration the fact as to to to what will happen if the application for bail is what will happen if the application for bail is what will happen if the application for bail is submitted submitted submitted by the detenu and is released on bail in the by the detenu and is released on bail in the by the detenu and is released on bail in the said said said C.R. C.R. C.R. 7. 7. 7. If we peruse the reply filed by respondent No. 1, If we peruse the reply filed by respondent No. 1, If we peruse the reply filed by respondent No. 1, which which which is at page 38 of the present proceedings, it is at page 38 of the present proceedings, it is at page 38 of the present proceedings, it appears appears appears that the detaining authority has taken into that the detaining authority has taken into that the detaining authority has taken into consideration consideration consideration the individual role played by the the individual role played by the the individual role played by the petitioner-detenu petitioner-detenu petitioner-detenu in the above-mentioned C.R. The in the above-mentioned C.R. The in the above-mentioned C.R. The petitioner’s petitioner’s petitioner’s individual overt act was only to the individual overt act was only to the individual overt act was only to the extent extent extent of giving a slap to the deceased. Of course, of giving a slap to the deceased. Of course, of giving a slap to the deceased. Of course, the the the associates of the petitioner were also involved in associates of the petitioner were also involved in associates of the petitioner were also involved in the the the said C.R. and the case was, in fact, registered said C.R. and the case was, in fact, registered said C.R. and the case was, in fact, registered also also also for the offences punishable under sections 143, for the offences punishable