Quashed

Abdul Shakil Abdul Jamil Shaikh v. the State of Maharashtra

Bombay HC11 Jan 2008WP/552/2007

Case brief

AI extract

What is this about?

The High Court quashed an order of preventive detention passed under the Maharashtra Prevention of Dangerous Activities Act. The court held that the detaining authority lacked material to show the detenue was likely to be released from custody since no bail application was moved.

What did the court decide?

The order of detention was quashed and set aside; the detenu was directed to be released forthwith if not required by any other matter.

Abdul Shakil Abdul Jamil Shaikh Vs the… — Constitutional and Fundamental Rights | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 552 OF 2007

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Abdul Shakil Abdul Jamil Shaikh.

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... Petitioner.

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Versus

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The State of Maharashtra & Ors. .. Respondents.

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Mrs. Nasreen Ayubi (appointed) for the Petitioner. Mr. D.S.Mhaispurkar, APP for the State.

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CORAM : BILAL NAZKI and S. A. BOBDE, JJ. DATED : 11TH JANUARY, 2008.

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JUDGMENT (Per Bilal Nazki, J.):

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The order of detention passed on 29^th January, 2007 against the detenu was served on 3^rd February, 2007 in terms of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offender and Dangerous Persons Act, 1981. The grounds of detention were served on the detenu along with the material on which reliance was placed by the Detaining Authority while framing the grounds of detention.

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Various grounds have been taken by the learned Counsel for the petitioner to challenge the detention but we are confining ourselves to

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only one ground because on this ground alone, in our view, the petition succeeds.

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Learned Counsel for the petitioner submits that the detenu was in detention when the order of detention was passed and served on him in connection with the offence registered on 3^rd November, 2006 with respect to the occurrence of 3^rd November, 2006. It may also be pertinent to note that previously also the detenu had been detained in terms of the detention order and only on 2^nd November, 2006 he had been released as the period of detention had expired then. According to the respondents, on 3^rd November, 2006 the petitioner was arrested as a case was registered against him. He continued to remain in custody in connection with C.R. No. 136/2006. He did not even move a bail application of which the Detaining Authority was aware. Therefore, the Detaining Authority, in paragraph 7 of the grounds of detention, noted that the authority was aware that the detenu had not been granted bail in connection with Jogeshwari Police Station C.R. No. 136/2006 as yet. The Detaining Authority further observed that “However, you may be granted bail in the said case under the ordinary law of the land, in due course. In view of your tendencies and inclination reflected in the offences committed by you as stated above, I am further satisfied that after released on bail and in the

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event of your remaining at large, being a criminal, you are likely to avert to the similar activities prejudicial to the maintenance of public order. . . .”. The learned Counsel for the petitioner submits that the detenu had not even moved the bail application. Therefore, there was no reason for Detaining Authority to pass the order of detention of the detenu as there was no material before him which would suggest that there was a chance of his release from custody. Learned Counsel for the petitioner relies on the judgment of the Supreme Court in Dharmendra Suganchand Chelawat v/s Union of India, reported in AIR 1990 SC 1196. In paragraph 12 of the judgment, the Supreme Court while referring to another judgment in Ramesh Yadav v/s District Magistrate, Etah, reported in AIR 1986 SC 315, observed as under:

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"On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground

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that an accused in detention as an under-trial-prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in a series of cases relating to the preventive detention.”

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The Supreme Court further observed in paragraph 19 of the said judgment that if a person is already in custody and Detaining Authority has reason for passing an order of detention, he must be satisfied on the basis of material before him that the detenu is likely to be released from custody in the near future. In the present case, there is no such satisfaction and of course there could not have been such satisfaction since the detenu had not even moved the bail application. The Detaining Authority merely stated “However, you may be granted bail”. The assertion of that kind is not sufficient. In our view, in case a person is already in custody, the Detaining Authority must have material to satisfy himself that the detenu was likely to be released from the custody in the near future and such eventuality will only occur, if, at least a bail application is moved and in case there is not even a bail application and detenu is yet to be tried for

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the offences which are cognizable and non-bailable and there is likelihood of immediate release of the detenue.

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For this reason alone, we feel that the order of detention cannot stand and is accordingly, quashed and set aside. The respondents are directed to release the detenu forthwith, if not required in any other matter.

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Rule made absolute in the above terms. Writ Petition is

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allowed. No order as to costs.

Sd/-

(BILAL NAZKI, J.)

Sd/(S. A. BOBDE, J.)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 552 OF 2007

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Abdul Shakil Abdul Jamil Shaikh. ... Petitioner. Versus The State of Maharashtra & Ors. .. Respondents.

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Mrs. Nasreen Ayubi (appointed) for the Petitioner. Mr. D.S.Mhaispurkar, APP for the State.

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CORAM : BILAL NAZKI and S. A. BOBDE, JJ. DATED : 11TH JANUARY, 2008.

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P.C.:

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For the reasons separately recorded in the Judgment, we feel that the order of detention cannot stand and is accordingly, quashed and set aside. The respondents are directed to release the detenu forthwith, if not required in any other matter.

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Rule made absolute in the above terms. Writ Petition is

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allowed. No order as to costs.

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(BILAL NAZKI, J.)

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(S. A. BOBDE, J.)

Abdul Shakil Abdul Jamil Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Abdul Shakil Abdul Jamil Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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