Allowed

Pandurang @ Panda Narayan Garud v. the District Magistrate and Anr.

Bombay HC12 Aug 2022WP/454/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an order of preventive detention under the MPDA Act. The order was quashed because the Detaining Authority failed to consider the petitioner's bail application and order, vitiating the subjective satisfaction required for detention. Consequently, the petitioner was set at liberty.

What did the court decide?

The order of detention dated 6 December 2021 is quashed and set aside. The Petitioner is set at liberty unless required in any other case.

Pandurang @ Panda Narayan Garud Vs the… — Pension and Retirement Benefits | Bombay HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 454 OF 2022

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Shri. Pandurang @ Panda Narayan Garud
Age 36 yrs. R/o. Chavanwadi (Karde),
Tal. Shirur, Dist: Pune…Petitioner

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Versus

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1. The District Magistrate Pune

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2. The State of Maharashtra (Through Addl. Chief Secretary to Government of Maharashtra Mantralaya, Home Department Mantralaya, Mumbai)

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3. The Superintendent Yerwada Central Prison Pune

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… Respondents

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Mr. Nitin Gaware Patil with Mr. Abhishek Datta Nagade for the
Petitioner.

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Mr. J P. Yagnik, Assistant Public Prosecutor for the State.

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CORAM: NITIN JAMDAR AND
N.R. BORKAR, JJ.

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DATED: 12 AUGUST 2022

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JUDGMENT :-

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 By this writ petition, the Petitioner is praying for quashing
and setting aside the order of detention dated 6 December 2021

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Trupti

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issued by Respondent No.1, the District Magistrate, Pune. The
order of detention is issued under section 3 of the Maharashtra
Prevention of Dangerous Activities of Slumlords, Bootleggers
(Drug Offenders, Dangerous Persons and Video Pirates) Act,
1981 (for short "MPDA Act"). Since the Petitioner was detained
pursuant to the detention order, the Petitioner is praying that he
be set forth at liberty.

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2. Along with the copy of the order of detention dated 6
December 2021, a copy of the committal order, grounds of
detention and material thereupon were supplied to the
Petitioner. In the grounds of detention, the Detaining Authority
relied upon the case registered against the Petitioner vide C.R.
No. 638 of 2021 for the offences punishable under Sections
379, 34 of the Indian Penal Code; Section 3 of the Prevention
of Damages to the Public Property Act; Sections 9 and 15 of the
Environment Protection Act; and Sections 3,4 and 21 of Mines
and Minerals (Regulation and Development) Act, 1957. The
Detaining Authority also relied upon two in-camera statements
of witnesses "A" and "B".

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3.The Detaining Authority considered the history of criminal
activities of the Petitioner, the recent crimes committed and the
action taken by the Revenue Department against the Petitioner

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Trupti

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at relevant times and the chapter case filed. Based on this
material, the Detaining Authority concluded that the activities of
the Petitioner were detrimental to public order and could not
have been dealt with under ordinary law. Forming a subjective
satisfaction that the Petitioner was a sand smuggler within the
meaning of Section 2(b) (i) of the MPDA Act and his activities
had caused terror prejudicially to the maintenance of public
order, the Detaining Authority held that preventive detention of
the Petitioner was warranted. The representation made by the
detenu was rejected. Therefore, the Petitioner is before us with
this petition.

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4.We have heard Mr. Gaware, learned Counsel for the
Petitioner and Mr.Yagnik, learned APP for the
Respondent/State. Rule has already been issued in this petition.
Taken up for disposal.

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5.The learned Counsel for the Petitioner inter alia submitted
that the bail application and the reasoned order on the
anticipatory bail in respect of C.R No. 638 of 2021 were not
placed before the Detaining Authority by the Sponsoring
Authority, neither copies were given to the Petitioner.
According to the Petitioner, this has two effects. First, that
subjective satisfaction of the Detaining Authority would be

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Trupti

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vitiated in law. Secondly, since a copy of a vital document has
not been furnished to the petitioner, his fundamental right to
make a representation guaranteed under Article 22(5) of the
Constitution of India is affected. The learned Counsel has
relied upon the decision of the Hon’ble Supreme Court in the
case of Abdul Sathar Ibrahim Manik vs. Union of India1as also
the decision of this Court in the cases of Paras s/o. Ramprasad
Sahu vs. State of Maharashtra and another2; and Shri Abbad Ali
Khan vs. Shri R. H.Mendonca and others3.

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6.The factual position that copies of the application for
anticipatory bail and the order of bail were neither supplied by
the sponsoring authority to the Detaining Authority nor
supplied to the Petitioner is not disputed before us. The learned
APP sought to contend that though this is an admitted position,
it would have no legal consequences.

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7. In Paras v. State of Maharashtra, the division bench has clarified the legal position on this aspect of the controversy as follows:

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“8. What is the bearing of absence of the material
regarding granting bail to the detenu in respect of
the offences registered against him and which are

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1 AIR 1991 SC 2261

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2 2003 (3) Mh. L.J.

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3 2000 ALL MR (Cri) 792

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Trupti

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taken into consideration by the Detaining
Authority for clamping order of detention is
explained way back in 1991 by the Apex Court in
(1992) 1 SCC 1 : AIR 1991 SC 2261, Abdul Sathar
Ibrahim Manik v. Union of India. The Apex Court
has observed as under:

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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.

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9. This Court in 2000 ALL MR (Cri) 792, Shri
Abbad Ali Khan v. Shri R.H. Mendonca, while
considering the petition challenging the order of
detention passed under this Act and dealing with
the same question as to the effect of non-
furnishing the copy of the bail application and the
order passed on it to the detenu, who has been
released on bail and also not having the said
documents before the Detaining Authority while
considering the case of the detenu for imposing
detention order, has placed reliance on the
decision of the Apex Court (supra) and has
observed as under:

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Since the bail application was not placed
before the Detaining Authority and its copy not
furnished to the detenu, the impugned detention
order is vitiated on a dual count:—

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Trupti

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(a) the subjective satisfaction of the Detaining
Authority to preventively detain the detenu under
the aforesaid provision is vitiated in law; and

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(b) since the copy of a vital document has not been
furnished to the detenu, his fundamental right to
make a representation guaranteed by Article 22(5)
of the Constitution of India, is impaired.

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10. In the case before hand, as stated earlier,
admittedly, the Detaining Authority was not
having, even for perusal, the application for bail
and the order passed granting bail. It is significant
to note that, in spite of the petitioner being
released on bail, the Detaining Authority passed the
order of detention of the petitioner. It goes without
saying that the subjective satisfaction of the
Detaining Authority has been totally hampered for
not taking into consideration the fact that the
petitioner was already released on bail. That apart,
the petitioner was also deprived of making effective
representation when the detention order has been
passed by the Detaining Authority. Therefore, the
order of detention cannot sustain. It is vitiated”.

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8.The above mentioned dicta is clear and unambiguous and
supporting the contention of the Petitioner. Though the learned
APP has sought to contend based upon the decision of the
Division Bench of this Court in the case of Dharmendra
Kamlakar Tangadi v. Commissioner of Police, Thane and Ors4
that non supply of bail order and application to the detenu cannot

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4 2012 CRI. L.J. 3798 Trupti

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impair the right of the detenu to make effective representation,
there is no answer to the first ground that the subjective
satisfaction of the Detaining Authority is vitiated for non
consideration of the application for bail and the bail order. It
cannot be said that the application for anticipatory bail and the
order of bail were not germane for consideration of the
Detaining Authority. The reasons on which the detenu applied
for bail and was granted bail by the ordinary court would reflect
upon the need to pass the order of detention. Non-
consideration of these vital documents would vitiate the
subjective satisfaction of the Detaining Authority. In view of this
legal position arising from the admitted facts on record, the
Petitioner is entitled to succeed, as the impugned order of
detention stands vitiated.

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9.As a result, the petition is allowed. Rule is made absolute
in terms of prayer clause (b); that is, the order of detention
dated 6 December 2021 is quashed and set aside. The Petitioner
is set forth at liberty unless required in any other case.

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TRUPTI SADANAND BAMNE

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( N.R. BORKAR, J. )

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( NITIN JAMDAR, J. )

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Digitally signed by TRUPTI SADANAND BAMNE Date: 2022.08.12 17:31:56 +0530

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Trupti

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Pandurang @ Panda Narayan Garud v. the District Magistrate and Anr.

Case brief

What is this about?

What did the court decide?

Pandurang @ Panda Narayan Garud v. the District Magistrate and Anr.

Case brief

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