1 wp1266.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINALL WRIT PETITION NO. 1266 OF 2010 Bashir Mohammad Saudagar ..Petitioner v/s. The State of Maharashtra & anr. ..Respondents Mr. Abhaykumar Apte, advocate for the petitioner Mr. J.P. Yagnik-APP for the State. CORAM:- A.M.KHANWILKAR & U.D. SALVI, JJ DATED :- SEPTEMBER 09, 2010. P.C. This Petition is filed through jail. In this Petition the relief claimed is to challenge the detention order dated 10th September, 2009 passed by Commissioner of Police in exercise of powers under Section 3 of Maharashtra Prevention of Dangerous Activities of Slum Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981. 2. In all fairness the Counsel appearing for the petitioner has stated that 2 wp1266.10.sxw insofar as the co-detenue Yunus Hamid Khan @ Yunus Ahmed Sai is concerned, he had filed writ petition before this Court taking all contentions on merits. That Writ Petition being Criminal Writ Petition No. 1265/2010, has been rejected on 11th August, 2010. In the circumstances, only one ground has been argued before us. 3. The Counsel for the Petitioner submits that the detention order refers to the four criminal cases instituted against the Petitioner. However, in the reply affidavit filed before this Court the Detaining Authority has made reference to in all 13 criminal cases registered against the Petitioner including in some of which the Petitioner has been acquitted and in some cases convicted by the Court of competent jurisdiction. The affidavit also makes reference to some pending trials against the petitioner. The argument is that the detention order is bad because the material which is now stated in the reply affidavit was not supplied or furnished to the Petitioner. Taking into account the said material, the detention order came to be passed. 4. To buttress this argument, reliance is placed on the decision of the Apex Court in Bablu Das v/s. State of West Bengal reported in AIR 1975 3 wp1266.10.sxw SC 1513. In that case, the detention order referred only to one instance, whereas in the reply affidavit filed by the authority to counter the challenge before the Court, reference was made to several other instances. Obviously, therefore, the Apex Court did not reckon the said additional instances for considering the validity of detention order. The Apex Court went on to observe that on the basis of one instance, it was incomprehensible that the person can be termed as notorious wagon breaker. If so, the question of detaining the person on the sole ground referred to in the detention order cannot be sustained in law. The Apex Court also observed that factors which make up the notoriety and which are recited in the history sheet presented to the District Magistrate must have induced him into subjective satisfaction resulting into issuance of order of detention. 5. In the present case, the detention order refers to four instances, whereas in the affidavit reference is made by the detaining authority to 13 criminal cases against the petitioner. The additional 9 cases which are referred to in the reply affidavit were not communicated to the petitioner. That clearly violated the constitutional right guaranteed under Article 22(5). It is also not stated in the affidavit that detaining authority passed a detention order only on the basis of four criminal instances referred to in the 4 wp1266.10.sxw grounds of detention and did not reckon other 9 criminal cases which are now referred to in the affidavit. It is, therefore, not certain as to whether the subjective satisfaction reached by the detaining authority is on the basis of only four criminal instances referred to in the grounds of detention or upon reckoning all the 13 criminal cases against the petitioner. In the circumstances applying the principle stated by the Apex Court in the case of Bablu Das (supra), this petition ought to succeed. 6. Hence, the relief prayed in this petition of quashing and setting aside of impugned order of detention bearing no. D.O.NO.45/PCB/DP/Zone- IX/2009 passed against the Petitioner is quashed and set aside. The Respondents are directed to set the Petitioner at liberty forthwith unless required in any other criminal case. 7. The Court expresses word of gratitude for the able assistance given by the Amicus Curiae to the Court. A copy of this order be forwarded to the petitioner who is in jail. Petition disposed of on the above terms. (U.D.SALVI, J) (A.M.KHANWILKAR, J)