Allowed

Dipak @ Fanty Ashokrao Kawanpure v. State of Mah. Thr. Its Secretary Home Dep. Mantralya MUMBAI-32 and 2 Others

Bombay HC23 Aug 2022WP/126/2022

Case brief

AI extract

What is this about?

This criminal writ petition challenged a preventive detention order under the 1981 Act. The High Court quashed the order because the detaining authority failed to consider bail orders granted to the petitioner for cited offences, citing Supreme Court precedents stating such omission vitiates the order.

What did the court decide?

The impugned orders dated 30.12.2021 and 04.02.2022 were quashed. The petitioner was ordered to be released from detention forthwith.

Dipak @ Fanty Ashokrao Kawanpure Vs State of… — Pension and Retirement Benefits | Bombay HC (2022)

¶1

- Jud.wp126.2022.odt

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR

¶3

CRIMINAL WRIT PETITION NO. 126 OF 2022

¶4

Dipak @ Fantya Ashokrao Kawanpure,
Aged about 22 years, Occ.: Labourer,
R/o. Near Post Office, Warud, Tah. Ward,.. Petitioner
District – Amravati.

¶5

Versus

¶6

1. State of Maharashtra
Through its Secretary, Home Department,
Mantralaya, Mumbai – 32

¶7

2. The Collector and District Magistrate,.. Respondents
Amravati Office at Camp, Amravati.

¶8

3. The Police Inspector, Police Station,
Warud, District – Amravati.

¶9

Mr. S.B. Gandhe, Advocate for petitioner.
Mr. S.S. Doifode, APP for respondent Nos.1 to 3.

¶10

 CORAM:MANISH PITALE, &
VALMIKI SA MENEZES, JJ.
RESERVED ON:10/08/2022
 PRONOUNCED ON:23/08/2022

¶11

JUDGMENT : [PER : Valmiki Sa Menezes, J.]

¶12

Rule. Heard finally by consent of the learned counsel for

¶13

the parties.

¶14

PAGE 1 OF 20

¶15

- Jud.wp126.2022.odt

¶16

(2) This is a Criminal Writ Petition invoking this Court’s powers under Article 226 of the Constitution of India, and powers under Section 482 of the Code of Criminal Procedure, 1973, seeking a writ, order or direction to quash and set aside order of detention of the Petitioner dated 30.12.2021, passed by Respondent No.2 – the Collector and District Magistrate, Amravati, under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in BlackMarketing of Essential Commodities Act, 1981 (for short ‘of the Act of 1981’), which order was confirmed by impugned order dated 04.02.2022 issued by Respondent No.1 – State of Maharashtra, through its Secretary, Home Department, Mantralaya, Mumbai, whereby the petitioner was ordered to be continued in detention for a period of twelve months.

¶17

(3) Shri Gandhe, learned counsel for the petitioner submitted that the Respondent No.3 – Police Inspector, Police Station, Warud, District – Amravati, through the Superintendent of Police, Amravati and Sub-Divisional Police Officer, Morshi, had furnished a confidential proposal dated 01.12.2021 bearing No.410/2021 to the Respondent No.2, proposing preventive detention of the Petitioner on the ground that the

¶18

PAGE 2 OF 20

¶19

- Jud.wp126.2022.odt

¶20

alleged criminal activities of the petitioner in the area were creating terror
in the vicinity of Police Station, Warud. He further submitted that the
proposal contained seven criminal cases registered against the Petitioner
since the year 2017, on which basis preventive action was sought against
the Petitioner in the said proposal.

¶21

(4) He further submitted that by the aforesaid proposal, Respondent No.3 had relied upon statements of two confidential witnesses who alleged that the Petitioner had given threats and they were under apprehension that the Petitioner would indulge in further acts of violence against them. That the detaining authority, Respondent No.2 accepted the proposal dated 01.12.2021 furnished by Respondent No.3, passed the impugned detention order dated 30.12.2021 under Section 3(1) read with Section 3(2) of the Act of 1981, along with grounds of preventive detention stated therein. It is further his contention that the impugned detention order is also based upon two offences made reference to therein and specifically bearing :

¶22

(i) Crime No.655/2021 under Section 4 and 25 of the Arms Act,
1959, read with Section 123 of the Maharashtra Police Act, 1951,
registered at Police Station Warud.

¶23

(ii) Crime No.482/2021 under Section 392, 506 of the Indian Penal
Code registered at Police Station Warud.

¶24

PAGE 3 OF 20

¶25

- Jud.wp126.2022.odt

¶26

It was further submitted that the main ground for
challenging the order of detention was that the reliance of the
Respondent No.2, on the two offences of the year 2021, out of the
seven offences registered against the Petitioner, was without
reference to or considering the bail orders passed by the competent
Magistrate in the aforesaid two cases namely Crime No.655/2021
and Crime No.482/2021, since the orders passed in bail applications
moved by the petitioner in the said two criminal applications had
never been placed before the detaining authority for consideration,
before the impugned orders were passed.

¶27

(5) Mr. Gandhe, learned counsel for the petitioner invited

¶28

our attention to the orders granting bail, the first order being dated
01.09.2021 passed by the Judicial Magistrate First Class, Warud, in Crime
No.482/2021 and the second bail order being dated 12.11.2021 passed in
Crime No.655/2021 and took us through the reasons cited by the Magistrate
for enlarging the Petitioner on bail.

¶29

The learned counsel for the petitioner further relied upon
the judgment of the Bombay High Court in the case of Ratnamala Mukund
Balkhande and Ors. Vs. State of Maharashtra and Ors. (Criminal Writ
Petition No.820/2021 decided on 01.07.2022) MANU/MH/2155/2022,

¶30

PAGE 4 OF 20

¶31

- Jud.wp126.2022.odt

¶32

wherein this Court after referring to another judgment rendered by another
Division Bench of this Hon’ble Court in Elizabeth Ranibhai Prabhudas
Gaikwad Vs. State of Maharashtra and anr. reported in 2021 All.M.R.
(Criminal) 1394, held that non-consideration of the reasons set out in our
order granting bail in criminal cases considered by the detaining authority,
while passing the impugned order, vitiates the entire process of reaching his
subjective satisfaction while passing the order. He further relied upon the
judgments of the Hon’ble Supreme Court in the case of Shaik Nazeen Vs.
State of Telangana and Ors. reported in 2022 LiveLaw (SC) 559 and
Mallada K. Sri Ram Vs. the State of Telangana and Ors.
MANU/SC/0444/2022, to buttress his argument that the orders of detention
were passed without reference to orders granting bail in the very same
criminal case under consideration, vitiates the order of detention in its
entirety.

¶33

(6) Mr. Doifode, learned Assistant Public Prosecutor

¶34

appeared for the Respondent Nos.1 to 3 and sought to support the
impugned orders on the basis of the record placed before the detaining
authority, and more specifically by taking us through the seven criminal
cases filed against the petitioner between the years 2017 and 2022. He
further argued that of the seven criminal cases referred to in paragraph 3 of
the grounds of detention, the detaining authority had made specific

¶35

PAGE 5 OF 20

¶36

- Jud.wp126.2022.odt

¶37

reference to orders of bail passed by the Judicial Magistrate First Class,
Warud, in those two cases namely Crime No.655/2021 and Crime
No.482/2021. He, however, accepts the position that neither of the two bail
applications or copies of orders passed in the said two criminal cases
granting bail to the Petitioner were placed before the detaining authority for
consideration while passing the impugned orders. Mr. Doifode, learned
Assistant Public Prosecutor further relied upon the judgments of the Hon’ble
Supreme Court in the case of theDistrict Magistrate, Nowgong and anr. Vs.
Sarat Mudoi, reported in AIR (1984) SC 43, Mrs. Saraswati Seshagiri Vs.
State of Kerala and another, reported in AIR (1982) SC 1165 and Haridas
Amarchand Shah of Bombay Vs. K.L. Verma and Ors., reported in AIR
(1989) SC 497. He further argues that since there is a reference to the
orders granting bail to the petitioner in the aforementioned criminal cases,
in the detention order, the petitioner could not raise any ground that he was
prejudiced in any manner.

¶38

(7) We have heard the learned counsel for the parties and considered their submissions as well as record before us.

¶39

(8) It would be advantageous to first consider the position of law on the submissions made before us, as laid down by the Hon’ble Supreme Court and this Court in various judgments.

¶40

PAGE 6 OF 20

¶41

- Jud.wp126.2022.odt

¶42

A Division Bench of this Court in the case of Ratnamala
Mukund Balkhande and Ors. (supra), after referring to another judgment of
the Bombay High Court in Elizabeth Ranibhai Prabhudas Gaikwad Vs. State
of Maharashtra and anr. reported in 2021 All.M.R. (Criminal) 1394 and to
the judgment rendered by the Supreme Court in the case of Abdul Sathar
Ibrahim Manik Vs. Union of India and Ors. reported in AIR (1991) SC 2261,
has held that where the orders of bail granted to the detenu by the
competent Court were not placed before the detaining authority for
consideration, the entire order passed by the detaining authority stood
vitiated, as the detaining authority was deprived of the opportunity to
consider relevant material, which was available. In Ratanmala Mukund
Balkhande and Ors. (supra) this Court held thus:

¶43

“7. We would first deal with the objection that bail orders were not placed
before the detaining authority. On this point, the law is very clear. This
Court, in the case of Elizabeth Ranibhai Prabhudas Gaikwad Vs.The State of
Maharashtra and anr. reported in 2021 ALL MR (Cri) 1394, following the
law expounded by the Apex Court in the case of Abdul Sathar Ibrahim
Manik Vs.Union of India and ors reported in AIR 1991 SC 2261 held thus:-

¶44

"If the Authority does not take into consideration the orders of bail
granted to the proposed detenue, it may lead to an anomalous
situation whereby one authority of law i.e. Criminal Court thinks it fit
to enlarge such a person in criminal offences registered against him
and the other authority of law considers it necessary that such person
is detained in custody because of his criminal activities exhibited by

¶45

PAGE 7 OF 20

¶46

- Jud.wp126.2022.odt

¶47

pendency of criminal cases against him. The law does not expect any
mismatch between the orders passed by the two law enforcing
authorities and therefore, it is necessary that when one authority
releases a person on bail, the other authority seeking to detain him
again for the same criminal activities, considers the impact of the bail
order and reaches to an appropriate conclusion in the matter. This
law is expounded by the Apex Court in the case of Abdul Sattar
Ibrahim Manik .vs. Union of India and Others, AIR 1991 SC 2261 :
[1991 ALL MR ONLINE 1728 (S.C.)] which has been followed by
another Division Bench in the case of Paras s/o. Ramprasad Sahu vs.
State of Maharashtra and another, 2003 (3) Mh.L.J. 24 : [2003 ALL
MR (Cri) 2296]. In paragraph 8 of this Judgment, the Division Bench
has reproduced relevant observations of Supreme Court in the cited
case of Abdul Sattar Ibrahim Manik. For the sake of convenience, we
would like to reproduce the same as under :

¶48

"In a case where detenu is released on bail and is at liberty
at the time of passing the order of detention, then the
Detaining Authority has to necessarily rely upon them as
that would be vital ground for ordering detention. In such
a case the bail application and the order granting bail
should necessarily be placed before the authority and the
copies should be supplied to the detenu."

¶49

(9) In the case of Shaik Nazneen (supra), it was held that setting aside of a detention order on the basis that it was not justified would not leave the State without any remedy, as in case, the detenu is a menace to the society as is being alleged, then the prosecution could seek for the cancellation of his bail and/or move an appeal to the Higher Court. It has

¶50

PAGE 8 OF 20

¶51

- Jud.wp126.2022.odt

¶52

further held that seeking shelter under the preventive detention law is not
the proper remedy under the facts and circumstances of the case.

¶53

(10) In Mallada K. Sri Ram (supra) the Hon’ble Supreme Court, while considering the orders of detention passed under the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Immoral Traffic Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986, in relation to the fundamental rights under Article 22 of the Constitution of India conferred upon the citizen has held :

¶54

“15. A mere apprehension of a breach of law and order is not sufficient
to meet the standard of adversely affecting the “maintenance of public
order”. In this case, the apprehension of a disturbance to public order
owing to a crime that was reported over seven months prior to the
detention order has no basis in fact. The apprehension of an adverse
impact to public order is a mere surmise of the detaining authority,
especially when there have been no reports of unrest since the detenu
was released on bail on 8 January 2021 and detained with effect from 26
June 2021. The nature of the allegations against the detenu are grave.
However, the personal liberty of an accused cannot be sacrificed on the
altar of preventive detention merely because a person is implicated in a
criminal proceeding. The powers of preventive detention are exceptional
and even draconian. Tracing their origin to the colonial era, they have

¶55

PAGE 9 OF 20

¶56

- Jud.wp126.2022.odt

¶57

been continued with strict constitutional safeguards against abuse.
Article 22 of the Constitution was specifically inserted and extensively
debated in the Constituent Assembly to ensure that the exceptional
powers of preventive detention do not devolve into a draconian and
arbitrary exercise of state authority. The case at hand is a clear example
of non-application of mind to material circumstances having a bearing on
the subjective satisfaction of the detaining authority. The two FIRs which
were registered against the detenu are capable of being dealt by the
ordinary course of criminal law”.

¶58

(11) In the case of Khaja Bilal Ahmed (supra) the Hon’ble

¶59

Supreme Court has held :

¶60

“15.…………….The purpose of the Telangana Offenders Act 1986 is to
prevent any person from acting in a manner prejudicial to the
maintenance of public order. For this purpose, Section 3 prescribes that
the detaining authority must be satisfied that the person to be detained
is likely to indulge in illegal activities in the future and act in a manner
prejudicial to the maintenance of public order. The satisfaction to be
arrived at by the detaining authority must not be based on irrelevant or
invalid grounds. It must be arrived at on the basis of relevant material;
material which is not stale and has a live link with the satisfaction of
the detaining authority. The order of detention may refer to the
previous criminal antecedents only if they have a direct nexus or link
with the immediate need to detain an individual. If the previous
criminal activities of the appellant could indicate his tendency or
inclination to act in a manner prejudicial to the maintenance of public
order, then it may have a bearing on the subjective satisfaction of the
detaining authority. However, in the absence of a clear indication of a
causal connection, a mere reference to the pending criminal cases

¶61

PAGE 10 OF 20

¶62

- Jud.wp126.2022.odt

¶63

cannot account for the requirements of Section 3. It is not open to the
detaining authority to simply refer to stale incidents and hold them as
the basis of an order of detention. Such stale material will have no
bearing on the probability of the detenu engaging in prejudicial
activities in the future.”

¶64

(12) In Rushikesh Tanaji Bhoite Vs. State of Maharashtra and

¶65

Ors. reported in 2012 ALL SCR 1373, the Hon’ble Supreme Court while
considering the effect of not placing orders on the record of the Detaining
Authority, passed by the Judicial Magistrate First Class, Warud, releasing the
detenu on bail for crimes that are referred to by the authorities while
passing the orders of detention has held as under:

¶66

“8. It would be, thus, seen that the order releasing the detenu on bail
in the crime registered on August 14, 2010 and the order relaxing the
bail condition were passed by the Judicial Magistrate, 1st Class,
Dharangaon much before the issuance of detention order dated
January 10, 2011. However, the detention order or the grounds
supplied to the detenu do not show that the detaining authority was
aware of the bail order granted in favour of the detenu on August 15,
2010.

¶67

9. In a case where detenu is released on bail and is enjoying his
freedom under the order of the court at the time of passing the order of
detention, then such order of bail, in our opinion, must be placed
before the detaining authority to enable him to reach at the proper
satisfaction.

¶68

10. In the present case, since the order of bail dated August 15, 2010

¶69

PAGE 11 OF 20

¶70

- Jud.wp126.2022.odt

¶71

was neither placed before the detaining authority at the time of passing
the order of detention nor the detaining authority was aware of the
order of bail, in our view, the detention order is rendered invalid. We
cannot attempt to assess in what manner and to what extent
consideration of the order granting bail to the detenu would have
effected the satisfaction of the detaining authority but suffice it to say
that non-placing and non-consideration of the material as vital as the
bail order has vitiated the subjective decision of the detaining
authority.”

¶72

In this judgment, the Hon’ble Supreme Court has in terms
held that since the order of bail was not placed before the detaining
authority at the time of passing the order of detention, even though the
detaining authority was aware of the order of bail, the detention order was
rendered invalid.

¶73

(13) The Bombay High Court, while considering the position

¶74

that when only the operative part of a bail order was placed before the
authority for consideration while passing the detention order, whether the
detention order would still be vitiated for non-consideration for the reasons
contained in the order of grant of bail, has held :

¶75

“9. Of course, it is submitted by learned APP that these five crimes were
only considered as indicative of the previous criminal activity and
therefore it was not necessary for the detaining authority to consider the
reasons for which the detenu was granted bail in each of these crimes.
In our respectful submission the argument cannot be accepted. The law

¶76

PAGE 12 OF 20

¶77

- Jud.wp126.2022.odt

¶78

settled by Hon'ble Apex Court in the case of Abdul Sathar Ibrahim
Manik (supra), is clear in this regard. Hon'ble Supreme Court has in
clear terms observed that in the case where detenu is released on bail
and is at liberty at the time of passing the order of detention, then the
detaining authority has to necessarily rely upon them as that would be a
vital ground for ordering detention. Hon'ble Supreme Court further held
that in such a case, the bail application and the order granting bail must
necessarily be placed before the authority and the copies should also be
supplied to the detenu. It would then mean that, whenever previous
crimes registered against the detenu are considered as indicative of
continuous criminal activity of the detenu, the detaining authority must
also consider the reasons for which the detenu was granted bail in those
previously registered crimes. This is because of the fact that those
reasons would enable the detaining authority to reach proper
satisfaction upon knowing existence of prima facie case against the
detenu or otherwise in those previously registered crimes. Besides, as
held by this Court in the case of Elizabeth Ranibhai Prabhudas Gaikwad
(supra) there should not be any mismatch or unexplained inconsistency
between the order passed by one authority granting bail and the order
passed by another authority directing detention of that person for the
very criminal activity. Consideration of the reasons of bail would help
the detaining authority bridge the gap, in some cases, between the
reasons for which bail was granted and the reasons for which preventive
detention is ordered. Thus, we find no substance in the argument of
learned APP made in this regard.

¶79

10. Learned APP has invited our attention to the case of Lakhan Kisan
Tusambad Vs.District Magistrate, Beed and ors. reported in 2022 ALL
MR (Cri)1748, to support the contention that since previous crimes
were considered only for the purpose of demonstrating past crime
record, non placing of bail orders in those crimes has not adversely
affected the detention order. Let us, therefore, consider this case.

¶80

PAGE 13 OF 20

¶81

- Jud.wp126.2022.odt

¶82

(14)The Nagpur Bench of this Court in its judgment dated
01.07.2022 passed in Ratanmala Mukund Balkhande Vs. State of
Maharashtra and Ors., Criminal Writ Petition No.820/2021, was considering
a situation where the detaining authority had knowledge that the detenu
was on bail in all seven crimes referred to in the detention order, that the
reasons for grant of bail were not placed before the detaining authority,
whilst considering the effect of non-placement of the reasons contained in
the bail orders passed by the competent Court, it has held:

¶83

“8. In this case, although, seven crimes registered against the detenu
formed the material for reaching the subjective satisfaction of the
detaining authority, admittedly, in five of the crimes, in which the
detenu was on bail, no bail orders were placed before the detaining
authority. This lacuna, in our opinion, has vitiated the satisfaction
reached by the detaining authority as it was deprived of opportunity to
consider relevant material, though available.

¶84

(15) In the case of Elizabeth Ranibhai Prabhudas Gaikwad

¶85

Vs. State of Maharashtra and anr. reported in 2021 All.M.R. (Criminal)
1394, a Division Bench of this Court gave the following reasons for
holding a detention order passed without considering copies of bail
orders passed in the crimes under consideration:

¶86

“2……….. If the Authority does not take into consideration the orders
of bail granted to the proposed detenu, it may lead to an anomalous

¶87

PAGE 14 OF 20

¶88

- Jud.wp126.2022.odt

¶89

situation whereby one authority of law i.e. Criminal Court thinks it fit
to enlarge such a person in criminal offences registered against him
and the other authority of law considers it necessary that such person
is detained in custody because of his criminal activities exhibited by
pendency of criminal cases against him The law does not expect any
mismatch between the orders passed by the two law enforcing
authorites and therefore, it is necessary that when one authority
releases a person on bail, the other authority seeking to detain him
again for the same criminal activities, considers the impact of the bail
order and reaches to an appropriate conclusion in the matter. This law
is expounded by the Apex Court in the case of Abdul Sattar Ibrahim
Manik .vs. Union of India and Others,AIR 1991 SC 2261 which has
been followed by another Division Bench in the case of Paras s/o.
Ramprasad Sahu vs. State of Maharashtra and another,2003 (3)
Mh.L.J. 24. In paragraph 8 of this Judgment, the Division Bench has
reproduced relevant observations of Supreme Court in the cited case
of Abdul Sattar Ibrahim Manik. For the sake of convenience, we would
like to reproduce the same as under :

¶90

"In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the Detaining Authority has to necessarily rely upon them as that would be vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should be supplied to the detenu."

¶91

3. As stated earlier, the impugned orders do not consider in any manner the bail orders passed in various criminal cases pending against the petitioner and therefore, the impugned order cannot be said to be valid in the eye of law. It stands vitiated owing to the law

¶92

PAGE 15 OF 20

¶93

- Jud.wp126.2022.odt

¶94

laid down by Hon’ble Supreme Court in the said case of Abdul Sattar
Ibrahim Manik.”

¶95

(16)The Nagpur Bench of this Court has also considered the
proposition that no prejudice could be caused to a detenu by non-
consideration of the reasons contained in the bail order in a crime which
was considered by the detaining authority in Criminal Writ Petition
No.916/2021, Shakir Khan Zakir Khan Vs. State of Maharashtra and anr.
dated 14.07.2022, and has held :

¶96

“5. Learned Additional Public Prosecutor for the Respondent Nos.1 and 2 disagreeing with the submission of the learned counsel for the petitioner submits that no prejudice has been caused, whatsoever to the petitioner by non consideration of a reasoned bail order because the detaining authority has considered the nature of allegations contained in the First Information Report filed against the petitioner.

¶97

6. We do not think that the argument so submitted by the learned
Additional Public Prosecutor can be accepted in view of the opinion
expressed by this Court in the cases of Ratnamala Mukund Balkhande
Vs. State of Maharashtra and Ors., Criminal Writ Petition No.820/2021
decided on 01.07.2022, Hanif Karim Laluwale Vs. State of Maharashtra
and Ors., Criminal Writ Petition No.75 of 2022, decided on 28.06.2022
and in the case of Vilas Kisan Pawar Vs. State of Maharashtra and anr.,
Criminal Writ Petition No.915 of 2021, decided on 14.07.2022. The
facts of the present case are in fact similar to the facts involved in the
said case, therefore, the issue involved in this petition would stand
covered by the view taken in those petitions, which would mean that

¶98

PAGE 16 OF 20

¶99

- Jud.wp126.2022.odt

¶100

the impugned order cannot be sustained in the eye of law, Criminal
Writ Petition is allowed in terms of prayer Clause (i), which reads as
under:

¶101

(i) Pass any appropriate writ order or direction and thereby
quash and set side the impugned order dated 28.10.2021
(Annexure No.I) passed by Respondent No.2, Collector, Akola
City, Akola.”

¶102

(17)Applying the ratio laid down by the Hon’ble Supreme

¶103

Court and the Bombay High Court in all the above referred case law, we
have no doubt in our mind that the orders impugned in the present petition
are required to be quashed and set aside for the following reasons:

¶104

(A) The detention order and the grounds contained therein
make reference to seven criminal cases against the petitioner of the
seven cases in Crime No.655/2021 and Crime No.482/2021 are
discussed in detailed. In the discussion, reference is made to the
arrest of the detenu, his production before the Judicial Magistrate
First Class, Warud, and the fact that he was released on bail in the
said two criminal cases. There is, however, no reference made to the
reasons in the orders granting bail to the detenu since the sponsoring
authority, though it must have had copies of the said bail orders, has
not bothered to place the same before the detaining authority, for its
consideration.

¶105

PAGE 17 OF 20

¶106

- Jud.wp126.2022.odt

¶107

 The aforesaid bail applications with the orders
passed thereon had been placed before us and the detailed reasons
therein by the Magistrate while releasing the detenu on bail and
which have not been considered by the detaining authority, which, as
held by the judgments of the Hon’ble Supreme Court and this Court
vitiates the impugned orders.

¶108

(B)We also find from the record that the detaining
authority, while passing its order dated 30.12.2021, has not specified
the period of detention as required under the provision of Section 3
of the Act of 1981, similarly, the order dated 06.01.2022 was
confirmed of the Government of Maharashtra passed under Section 3
(3) of the said of Act of 1981 also does not specify the period of
detention as required by the said provisions.

¶109

(18)The ratio laid down in theDistrict Magistrate, Nowgong
and anr. Vs. Sarat Mudoi, reported in AIR (1984) SC 43 and in Mrs.
Saraswati Seshagiri Vs. State of Kerala and another, reported in AIR (1982)
SC 1165 and as cited by Mr. Doifode, learned APP for the State, were both
rendered in a set of facts where past conduct or antecedent history of the
detenu was considered while passing the detention order. Neither of these
judgments were based upon the non-filing of orders of grant of bail to the

¶110

PAGE 18 OF 20

¶111

- Jud.wp126.2022.odt

¶112

detenu by a Magistrate, which is the factor brought before us for
determination. In Haridas Amarchand Shah of Bombay Vs. K.L. Verma and
Ors., reported in AIR (1989) SC 497 as cited by Mr. Doifode, non-furnishing
of all documents such as Bank Pass Books, considered by the Authority
under the National Security Act, 1980, as grounds for reaching its subjective
satisfaction were considered by the Supreme Court as a ground which does
not vitiate the detention order. The facts of this judgment too are not on the
aspect as to the consequence of non-furnishing of a bail order for
consideration by the authority while answering at its subjective satisfaction.
For these reasons, none of the judgments cited by the learned APP would
apply to the present case.

¶113

(19)For the reasons stated above, we allow the present
criminal writ petition in terms of prayer Clauses (I) and (II). The petitioner
shall be released from detention forthwith, unless required in any other
case. Rule is made absolute in the above terms.

¶114

(20) We have taken notice of the fact that several matters of
similar nature have been heard by us, wherein orders of bail granted by the
Magistrate, though within the knowledge of the sponsoring authority, have
not been placed before the Detaining Authority for consideration while
passing orders under Section 3 of the Act of 1981. It is distressing to note

¶115

PAGE 19 OF 20

¶116

- Jud.wp126.2022.odt

¶117

that, we have been constrained to set aside several orders of detention, on
this ground alone, leaving us to believe that the concerned authorities have
adopted a negligent or casual attitude towards pursuing such cases in a
proper manner, by failing to place all relevant material within their powers
before the detaining authority for its consideration.

¶118

(21)In these circumstances, we deem it fit to direct the Home
Secretary, Government of Maharashtra, to circulate this judgment to all
concerned Police Officers and District Magistrates and to ensure that they
are sufficiently trained and are made aware in all cases, in which detention
is sought under the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates,
Sand Smugglers and Persons Engaged in Black-Marketing of Essential
Commodities Act, 1981, that all relevant material, which includes the
reasoned order granting bail to a proposed detenu, are placed before the
authority for consideration while recording its subjective satisfaction under
the provisions of the said Act.

¶119

[VALMIKI SA MENEZES, J.]

¶120

 [MANISH PITALE J.]

¶121

Prity

¶122

Signed By:PRITY S GABHANE Reason: Location: Signing Date:23.08.2022 14:35

¶123

PAGE 20 OF 20

Dipak @ Fanty Ashokrao Kawanpure v. State of Mah. Thr. Its Secretary Home Dep. Mantralya MUMBAI-32 and 2 Others

Case brief

What is this about?

What did the court decide?

Dipak @ Fanty Ashokrao Kawanpure v. State of Mah. Thr. Its Secretary Home Dep. Mantralya MUMBAI-32 and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sunil Samadhan Dhandar Vs the State of Mah. Thr. P.S.O. of P.S. Kholapur, Amravati, Tq. and Dist. Amravati.

Harish Chandumal Bajaj and 3 Others Vs State of Maharashtra Thr. Pso Ps Gadge Nagar, Amravati and 2 Others

Tarkesh S/O Bharat Mhalas and 2 Others Vs State of Mah., Thr. P.S.O. Ps Washim, Distwashim and Another

Smt Shila Deorao Bhagat and Another Vs State of Mah., Thr. P.S.O. Ps Sadar Dist Nagpur and Another

S.D.P.L. and C.C.C.P.L. through Partner Sanjay Arvind Chiddarwar Vs Public Works Department, through Principal Secretary, Mumbai and Others

Mahfooz Ali S/O Yusuf Ali Mirsahab and 3 Others Vs the State Ofmha. Thr. Pso Ps Gadgenagar Dist.Amravati and Another