Quashed

Alpana Mohan Mhaske v. the Commissioner of Police and Ors.

Bombay HC20 Jul 2016WP/1461/2016

Case brief

AI extract

What is this about?

In this criminal writ petition challenging a preventive detention order, the High Court held that the detaining authority failed to record satisfaction regarding a real possibility of bail. Relying on Supreme Court precedents, the Court quashed the order for illegality, directing the detenu's release.

What did the court decide?

Detention order dated 23.10.2015 quashed; detenu to be released forthwith if not required in any other case.

Alpana Mohan Mhaske Vs the Commissioner… — Constitutional and Fundamental Rights | Bombay HC (2016)

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 1461 OF 2016

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Alpana Mohan Mhaske .. Petitioner

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Versus

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The State of Maharashtra

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.. Respondent

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Appearances

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Mr. Udaynath Tripathi	Advocate for the Petitioner
Mrs. M.H. Mhatre	APP for the State

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CORAM : SMT. V.K. TAHILRAMANI &

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MRS. MRIDULA BHATKAR, JJ. DATE : JULY 20, 2016.

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ORAL ORDER [PER SMT. V.K. TAHILRAMANI, J.] :

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Heard both sides.

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2. This petition is preferred by the sister of detenu. The

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detenu Nitin Mohan Mhaske has been detained under the provisions of Maharashtra Prevention of Dangerous Activities

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of Slumlords, Bootleggers, Drug Offenders, Dangerous

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Persons and Video Pirates Act, 1981 (Maharashtra Act No. LV of 1981) (Amendment 1996) (Amendment 2009) (for short,

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'the MPDA Act'). By this petition, the order of detention dated 23.10.2015 issued by respondent No. 1 - The Commissioner of Police, Pune is challenged. The order of detention was issued to preventively detain the detenu as he

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is a dangerous person. The order is based on two C.Rs., Station Diary Entry and two in-camera statements. Two C.Rs. are :- i) C.R. No. 22/2015 of Bundgarden Police Station. This case is mainly under Section 307 of IPC. In the said case, the detenu is on bail. The second C.R. is 124/2015 of Bundgarden Police Station. The said C.R. was under Section 302 of IPC. In the said C.R., the detenu was in custody at the time of issuing the order of detention.

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Though a number of grounds have been raised in the petition, Mr. Tripathi, the learned counsel for the petitioner has pressed only one ground before us that is Ground 7(b) which reads as under:

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b. The Petitioner says and submits that on 23.10.2015, i.e. on the date of passing the order of detention, the Petitioner was already in judicial custody w.e.f. 10.08.2015 in C.R. No. 124 of 2015 having not been

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granted bail. The Bail Application of the Petitioner preferred on 19.10.2015 in the District Sessions Court, Pune was pending in the said Court. The Petitioner says and submits that no satisfaction of the detaining authority is recorded in para 8 of the grounds of detention stating that the detaining authority has reason to believe that there is imminent possibility rather real possibility of the grant of bail to the detenu based on cogent material. This is one of the conditions which has to be strictly complied with by the detaining authority. Moreover, there are no material before detaining authority to come to such conclusion. The order of detention vitiates. The order of detention is illegal and bad in law, liable to be quashed and set aside."

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Thus, the sole contention of Mr. Tripathi is that no subjective satisfaction was recorded by the detaining authority in the grounds of detention that the detaining authority had reason to believe that there was imminent possibility or probability or real possibility or likelihood of bail being granted to the detenu. Mr. Tripathi relied on the decision of the Supreme Court in the case of Champion R.

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Sangma Vs State of Meghalaya & Anr.¹ . The Supreme

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Court in paragraph 9 of the said decision observed as under:-

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Coming to the ground on which we intend to allow this appeal, we may point out that even if the appellant is in jail in connection with some criminal case(s), there is no prohibition in

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1 2015 ALL MR (Cri) 3673 (S.C.)

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law to pass the detention order. Law on this aspect is well settled and stands crystalized by plethora of judgments of this Court. However, a reading of those very judgments also clarifies that there are certain aspects which have to be borne in mind by the detaining authority and satisfaction on those aspects is to be arrived at while passing the detention order . There are three such factors which were re-stated in Kamarunnissa Vs. Union of India & Anr.²

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"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 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...................."

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[ Emphasis supplied. ]

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Mr. Tripathi pointed out that the second requirement is

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not complied with. He pointed out that there is no subjective satisfaction recorded in the grounds of detention that there

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is real possibility or likelihood or imminent probability of

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1991(1) SCC 128 (pa. 13)

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detenu being released on bail. On perusal of the grounds of detention, we find that no such satisfaction has been recorded by the detaining authority anywhere in the grounds of detention. In view of the above position of law, we have no

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option but to set aside the order of detention, hence, the detention order is quashed.

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The detenu be released forthwith if not required in any

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other case.

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Rule is made absolute in the above terms.

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[ MRS. MRIDULA BHATKAR, J ] [ SMT. V.K. TAHILRAMANI, J. ]

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Alpana Mohan Mhaske v. the Commissioner of Police and Ors.

Case brief

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What did the court decide?

Alpana Mohan Mhaske v. the Commissioner of Police and Ors.

Case brief

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What did the court decide?

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