JUDGMENT
1. By this petition, the Petitioner is
challenging the order of detention passed by the
Commissioner of Police, Mumbai dated 22nd April, 2002
under Section 3(1) of the Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers. Drug
Offenders and Dangerous Persons Act, 1981 (hereinafter
mentioned as M.P.D.A. Act) with a view to prevent the
Petitioner detenu from acting in any manner prejudicial
to the maintenance of the public order. On the very
same day, i.e. 22nd April, 2002 the Commissioner of
Police being the Detaining Authority had also furnished
in pursuance of Section 8 of the aforesaid M.P.D.A.
Act, the grounds of detention to the detenu. While
doing so, the identity and the particulars of certain
witnesses were not disclosed in public interest and the
Detaining Authority had claimed the privilege with
regard the same.
2. A perusal of the grounds of detention
indicate that as far as the Petitioner is concerned,
three criminal cases have been registered against the
Petitioner. In the first case there is an incident
which took place on 15th November, 2001. The details
of which (as set out in the grounds of detention) are
as under:-
“Investigation revealed that on 15.11.2001 at
about 02.30 hours you and your associates Imran
Mohmed Kazi, Sudhakar Baliram Yadav and Imtiyaz
Mohiddin Shaikh engaged the M/taxi No. MH-01-X-2963
at Bhendi Bazar and asked taxi driver Shri. Babu
Marianna @ Lokeshkumar to take taxi at Ferry
Wharf. You occupied the front seat next to taxi
driver and your associates Sudhakar, Imtiyaz and
Imran sat on the rear seat. When taxi reached near
Wadibunder junction you asked taxi driver Babu
Marianna to stop the taxi and as soon as the taxi
stopped, your associate Imran whipped out a knife
and kept it on the neck of taxi driver Babu
Marianna and threatened him by saying that
^^txg ls fgyuk ugha] ugh rks dkV Mkywaxk**
Your associate sudhakar caught hold of both the
hands of taxi driver Babu Marianna from behind and
you started searching his person and removed cash
from his pockets. You and your associates Imran,
Sudhakar and Imtiyaz got down from the taxi and
threatened taxi driver Babu Marianna not to move
his taxi till you all leave the place or else he
would be killed. At that time the taxi driver
Babu Marianna also got down from taxi and caught
hold of you. When your associate Sudhakar caught
hold the taxi driver Babu Marianna from behind and
you whipped out a knife and gave a blow of it on
the neck of taxi driver Babu Marianna when he
sustained fatal injury. Then you all ran away
from the place. Injured taxi driver Babu Marianna
chased you all for a while and came back to his
taxi and collapsed there. Due to the incident,
nearby people gathered there. Some of the
residents got scared and changed their sleeping
places due to fear.”
3. The second incident with regard to which the
the criminal case has been registered against the
detenu is an incident which took place on 19.12.2001.
The details of which as set out in the grounds of
detention are as under:-
“On 19.12.2001 at about 03.00 hours Shri. Laxman
Bechan Saroj had parked his M/taxi No. MMO-1484 at
Abhudaya Nagar, Kalachowky and was waiting for
passengers. At that time, you and your
associates, Imran, Sudhakar and Imtiyaz engaged
his taxi and asked Shri Saroj to take you and your
said associates to Mazgaon. You sat on the front
seat next to taxi driver and your said associates
sat on the rear seat. Shri Saroj started his
M/taxi and reached near Chaita towers building,
Shivdas Champsi Marg, Mazgaon, when you asked the
taxi driver to stop the taxi and gave note of
Rs. 50 as fare. While Shri Saroj was giving balance
amount to you, your associate Imran whipped out a
knife and kept it on the neck of Shri Saroj and
your associate Sudhakar caught hold both of this
hands from behind. Your forcibly removed Rs. 1100/-
from the shirt pocket of Shri Saroj. Your
associate Imtiyaz removed the key of the taxi.
You threatened Shri Saroj by saying that
^^ge nwj tkusrd VSDlh pykuk ugha**
and you all left the
place. Shri Saroj did not report the matter to
police due to fear.”
4. With regard to the third incident, the Local
Act Case has been filed against the Petitioner and his
associates. The details of third incident as set out
in the grounds of detention are as under:-
“On 22.12.2001 at about 03.30 hours Shri Laxman
Bechan Saroj was waiting for passengers near
Bhendi Bazar Signal. At that time you and your
associates Imran and Sudhakar came there and sat
in his taxi and asked the taxi driver to take you
and your associates to Mazgaon. Shri Saroj
immediately identified you and your associates
Imran and Sudhakar as the same persons who robbed
him in the night of 19.12.2001, but he kept mum
and took you to Mazgaon near Hancock Bridge. You
paid him taxi fare. After receiving taxi fare
Shri Saroj went to Noor Baug Naka and apprised
the facts to other taxi drivers who were waiting
for passengers. Shri Saroj with other taxi
drivers sat in his taxi and went for your search
towards Mazgaon, Shri Saroj saw that you and your
said associates were coming in other taxi towards
Noor Baug Naka. Shri Saroj turned his taxi and
started chasing your taxi. Shri Saroj overtook
your taxi and stopped in front of your taxi at
Sheriyar baug, Ramchandra Bhatt Marg, Dongri. At
that time you and your associates Imran and
Sudhakar got down from the taxi and started
running. Meantime the staff of Dongri Police
Station, who was on patrolling duty, chased you
and your said associates and succeeded to nab your
associates Imran and Sudhakar on the spot when
they were found in possession of knives. The said
weapons were seized under a panchanama and you
managed to escape from the place. On the same day
you were also arrested, and at the time of arrest
you were found in possession of knife.”
5. Apart from the above three incidents, the two in-camera
statements were also recorded which were duly
verified by the Senior Police Inspector and the
Divisional Assistant Commissioner of Police. In both
those cases, the detnu and his associates were
involved in extorting money by threatening the traders
with the held of knives. These two incidents had
occurred on 24.2.2002 and 5.3.2002.
6. The Detaining Authority while issuing the
detention order had taken into account various FIR’s
filed in the above cases as well as various statements
given by various witnesses. In fact, it may be
pertinent to note that with regard to the first
incident, almost 14 witnesses had corroborated the
relevant facts of the case. After taking into account
all the above facts and circumstances of the case, the
Detaining Authority has observed in paragraph 6 of the
Detention Order as under:- Is 1
“I have carefully gone through the material
placed before me and I am subjectively satisfied
that, you are acting in a manner prejudicial to
the maintenance of public order. I am aware that
you have been granted bail in Dongri Police
Station LAC No. 2106/2001 however you have not
availed bail facility, you may avail it any
time. You are still in judicial custody. I am
also aware that you are in judicial custody as
bail has not been granted to you in Byculla Police
Station C.R. No. 351/2001 and 391/2001. However, I
have reason to believe that you are likely to get
bail under the normal law of 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
having availed bail facility and becoming a free
person and in the event of remaining at large, you
are likely to continue the similar activities
prejudicial to the maintenance of public order in
future and that it is necessary to detain you
under the Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers, Drug
Offenders and Dangerous Persons Act 1981 (No. LV
of 1981) (Amendment 1996) to prevent you from
acting in such a prejudicial manner in future.”
7. Mr. Tripathi, the learned counsel appearing
for the Petitioner fairly stated that, though in the
petition there are various grounds on which the
detention is challenged, he is restricting the entire
challenge with regard to the detention only on one
ground viz. grounds B, which reads as under:-
“The Petitioner says and submits that the detenue
was already in Judicial custody in C.R. No. 351/01
and 391/01 since 1.1.2002 and while he was
continuing in custody in abovesaid both the cases,
an order of detention was passed against him on
22.4.2002. Thereby there was no necessity to
detain a person preventively while he was already
prevented to commit any prejudicial activities.
Moreover, no compelling necessity is disclosed in
the grounds of detention nor any cogent material
before the detaining authority to come to the
conclusion that the detenue will be granted bail
under normal law of land shortly. This shows non-application
of mind of the detaining authority.
The Petitioner says and submits that more
particularly taking into consideration the nature
of crime and the detenue’s role no court of law
will be inclined to grant of bail. The detenue
has not applied for bail in C.R. No. 351/01 in any
court of law and till today for about 4.1/2 months
continuing in judicial custody. The order of
detention suffers from the vice of non-application
of mind of the detaining authority. The order of
detention is illegal and bad in law ought to be
quashed and set aside”.
To put in other words, the only limited
ground on which the learned Counsel for the Petitioner
has challenged the detention order in this case is
that, as the Petitioner detenue was already in custody
on the date when the detention order passed, and
there was no likelihood of the Petitioner being
released on bail in the near future, especially when he
was involved in the case charged with the offence
punishable under Section 302 of the Indian Penal Code
with regard to the first incident. According to
Mr. Tripathi, there was no necessity on the part of the
Detaining Authority to issue the detention order as the
Petitioner was in custody and there was no likelihood
of his getting released on bail. Mr. Tripathi also
contended that the Detaining Authority has not applied
his mind properly to the facts and circumstances of the
case and has totally ignored the fact that the
petitioner has been charged with the offence punishable
under Section 302 of the Indian Penal Code. The
learned Counsel Mr. Tripathi has submitted that there
was no likelihood of the Petitioner getting released
on bail in the near future, however, the Detaining
Authority without any cogent material or compelling
reasons has passed the detention order. Mr. Tripathi
also contended that the Detaining Authority (The
Commissioner of Police) while passing the detention
order did not have any cogent material before him and
inspite of the same, has passed the detention order
which is impermissible in law.
8. In support of his contention, Mr. Tripathi,
the learned Counsel for the Petitioner strongly relied
upon the well-known judgment of the Hon’ble Supreme
Court in the case of Dharmendra Suganchand Chelawat
v. Union of India . He laid great
emphasis on paragraph 21 of the said judgment, which
reads as under:-
“The decision referred to above lead to the
conclusion that an order for detention can be
validly passed, against a person in custody and for
that purpose it is necessary that the grounds of
detention must show that (i) the detaining
authority was aware of the fact that the detenue
is already in detention; and (ii) there were
compelling reasons justifying such detention
despite the fact that the detenue is already in
detention. The expression “compelling reasons” in
the context of making an order for detention of a
person already in custody implies that there must
be cogent material before the detaining authority
on the basis of which it may be satisfied that (a)
the detenu is likely to be released from custody
in the near future, and (b) taking into account
the nature of the antecedent activities of the
detenu, it is likely that after his release from
custody he would indulge in prejudicial activities
and it is necessary to detain him in order to
prevent him from engaging in such activities.”
9. Mr. Tripathi has contended that in the instant
case, the Detaining Authority was aware that the Detenu
was in detention as has been reflected in the detention
order. His main objection is that there was no
compelling reason justifying such detention since the
detenu was already in custody. According to
Mr. Tripathi the Detaining Authority had no cogent
reasons before him to satisfy himself that the detenu
was likely to be released from custody in the near
future.
10. Mr. Tripathi also referred to and relied upon
another judgment of the Hon’ble Supreme Court in the
case of Surya Prakash Sharma v. State of U.P. and
Ors. 1994 Supp.(3) Supreme Court Cases 195 wherein,
he laid emphasis on paragraph 5 of the said judgment
wherein the Supreme Court has reiterated the
principles laid down earlier in the well-known case of
Rameshwar Shaw v. District Magistrate, Burdwan – , and also in the above mentioned case of
Dharmendra Chelawat.
11. The learned Counsel Mr. Tripathi also referred
to and relied upon the Division Bench Judgment of our
High Court at Nagpur Bench in the case of Smt. Kamlabai
Kalicharan Yadav v. State of Maharashtra and Anr.
2001 Cri.L.J.452. In the above judgment, the Division
Bench came to the finding that there was no cogent
material before the Detaining Authority that the detenu
was likely to be released on bail. Especially in view
of the reply filed to the petition, the Court was not
satisfied that there was any possibility of grant of
bail. In the facts and circumstances of that case, the
Division Bench held that there was no cogent material
justifying such detention.
12. Mr. Tripathi also referred to the unreported
judgment of the Division Bench of our High Court in
Criminal Writ Petition No. 1240 of 2001, Junaid Abdur
Rashid Shaikh v. M.N. Singh and Ors., dated 3rd December,
2001. In the said judgment, in paragraph 8 the
Division Bench has clearly observed that there was no
cogent material before the Detaining Authority to
enable him to get himself satisfied that the person who
sought to be preventively detained was likely to be
released from custody in the near future, and
accordingly the detention order was quashed and set
aside in the said case.
13. Mr. Tripathi also referred to and relied upon
another unreported judgment of the Division Bench of
this Court in the case of Mahadu Prabhakar Nair v.
M.N. Singh and Ors. (Criminal Writ Petition No. 210 of 2002
alongwith another connected writ petition) dated 2nd
May, 2002. In this judgment with regard to two detenus
the Division Bench came to the finding that there was
no cogent material before the Detaining Authority to
form an opinion hat they were likely to be released
on bail. With regard to one of the matters as the said
detenu was the main accused in that case and was
directly involved in the offence of murder, the Court
came to the conclusion that there was no material
before the Detaining Authority to come to the
conclusion that the detenu was likely to be released
on bail, as can be seen from paragraph 5 of the said
judgment, and hence the detention order was quashed and
set aside.
14. Mr. Tripathi also referred to and relied upon
another judgment of the Division Bench of our High
Court in the case of Shri. Basant Kumar Soni v.
M.N. Singh and Ors. (Criminal Writ Petition No. 1469 of
2000) dated 27th February, 2001, wherein also the
Division Bench quashed and set aside the detention
order, as it was found that there was no cogent
material before the Detailing Authority that the
detenue was likely to be released on bail in the near
future. The learned Counsel Mr. Tripathi also brought
to our notice another judgment of the Division Bench
of our High Court in the case of Shri. Sanjay Ganpat
Sawant v. M.N. Singh and Ors. (Criminal Writ Petition
No. 305 of 2002 and two other connected writ petitions)
dated 6th June, 2002. In this case as far as one of
the accused was concerned, the Court found material on
record that there was no likelihood of the getting
released on bail and there was no cogent material on
record justifying that he was likely to be released on
bail. Hence in the said matter also the detention
order was quashed and set aside.
15. Mr. Tripathi also referred to another judgment
of the Division Bench of our High Court in the case of
Smt. Zubeda Khalid Khan v. M.N. Singh and Ors. (Criminal
Writ Petition No. 1128 of 2001) dated 17th October,
2001. In this case also the Division Bench was of the
view that there was no concern material before the
Detaining Authority so as to conclude about the
imminent likelihood of the detenue being released on
bail in the near future. In this case it may be noted
that the anticipatory bail application was made by the
detenue and it was rejected. As there was no concrete
material justifying that the detenu was likely to be
released on bail in the near future, the Court quashed
and set aside the detention order.
16. Thereafter, Mr. Tripathi referred to the
judgment of Hon’ble Supreme Court in the case of
N. Meera Rani v. Govt. of Tamil Nadu and Anr. –
1989 Cri.L.J. 2190. In this judgment, the Hon’ble
Supreme Court reiterated the principles laid down in
the case of Rameshwar Shaw v. District Magistrate,
Burdwan wherein it was observed, in a very succinct
manner that the Detaining Authority has to consider the
antecedent history of the said person and to decide
whether the detention of the said person would be
necessary after he is released from jail and if the
authority is bonafide satisfied that such detention is
necessary he can make a valid order of detention a
few days before the person is likely to be released.
In the said judgment the Hon’ble Supreme Court has
indicated that there must be the cogent material before
the Detaining Authority to form an opinion that the
detenu is likely to be released on bail in the near
future, and if there is no such cogent material
before the Detaining Authority, the Detaining Authority
ought not to pass the mechanical order of detention
without applying his mind to the case of the case
involved.
17. Mr. Tripathi, the learned Counsel for the
Petitioner therefore contended that in the instant
case, in one of the incidents the Petitioner has been
charged with serious offence punishable under Section
302 of the IPC, and therefore the Detaining Authority
was fully aware that there was no likelihood of the
detenu being released on bail in the near future.
According to him the Petitioner being the person who
inflicted the injury on the neck of the deceased and
was charged with an offence punishable under Section
302 IPC, there was no likelihood of the getting released
on bail in the near future. According to Mr. Tripathi,
the Detaining Authority has mechanically passed the
detention order without clearly disclosing the reasons
justifying as to how the detenu is likely to be
released even though he was charged with the offence
punishable under Section 302 IPC. Mr. Tripathi
therefore contended that the detention order cannot be
sustained at all in law as per the principles laid
down by the Hon’ble Supreme Court and this Court in the
judgments referred to hereinabove. His main
contention is that Detaining Authority has passed the
detention order without applying his mind, in the
sense, the detention order does not disclose any cogent
material on the basis of which it could be indicated
that the detenu was likely to be released on bail in
the near future. Mr. Tripathi does not dispute that in
a case where the detenu is already in custody, the
preventive order of detention can be passed, but,
according to him such a detention order can be passed
only if there is likelihood of such detenu getting
released on bail in the near future. Under the
aforesaid facts and circumstances, Mr. Tripathi contends
that this is a case wherein the Detaining Authority
has totally failed to apply his mind in the facts and
circumstances of the case, and has mechanically passed
the order of detention under Section 3(1) of the
M.P.D.A. Act, and that too without any cogent material
to form an opinion that the detenu was likely to be
released on bail in the near future. Hence, the
learned Counsel for the Petitioner prays that the
Detention Order be quashed and set aside.
18. On the other hand, Mr. Pai, the learned APP
for the Respondent took us through the grounds of
detention as well as the reply filed by the Detailing
Authority. She pointed out that as far as first
incident which took place on 15th November, 2001 and
with regard to which the Petitioner has been charged
with the offence punishable under Section 302 IPC,
the facts of the case would clearly indicate that the
Petitioner and his associates were primarily
interested in extorting money or at the most committing
robbery. According to her, with regard to this
incident the facts indicate that one of the
associates viz. Imran whipped out a knife and kept it
on the neck of the taxi driver and the another
associate Sudhakar caught hold of both the hands of
taxi driver from behind, and at that point of time, the
petitioner started searching his person of taxi driver
and removal cash from his pockets. After removal of
cash from the pockets of the taxi driver, the
Petitioner and his associates had got down from the
taxi and threatened the taxi driver not to move the
taxi till they all leave the place or otherwise he
would be killed. At that time, the taxi driver also
got down from the taxi and caught hold of the
Petitioner. When one of the associate of the
Petitioner viz. Sudhakar caught hold of the taxi driver
from behind, the Petitioner whipped out a knife and
gave a blow of it on the neck of taxi driver as a
result of which the taxi driver sustained a fatal
injury. When the petitioner and his associates ran
away from the place the taxi driver chased them all for
a while and then came back to the taxi and collapsed
there. The learned APP pointed out that in the
background of the case, the charge of an offence
punishable under Section 302 IPC may be difficult to
sustain. According to her, in fact the Detaining
Authority has found that there was every likelihood of
the petitioner being released on bail in the near
future though being charged with the offence punishable
under Section 302 IPC. She contended that the grounds
of detention are set out in detail and the material
which has been collected in the form of statements has
also been set out, and it is not the case wherein the
Detaining Authority has merely mentioned the case
number & the charges under the different sections of
the Indian Penal Code. She contends that from the
grounds of detention which are given in detail and
the punchanama and the FIRs before the Detaining
Authority as well as the two in-camera statements, it
is clear that the Petitioner detenu was repeatedly
indulging in the armed extortion of money from the taxi
drivers and the other traders in a particular area.
According to Mrs. Pai, based on the above material, and
taking into account all the facts and circumstances the
Detaining Authority has come to the conclusion that
with the aforesaid antecedents there was every
likelihood of the detenu being released on bail in the
near future. The learned APP stats that it is not
the case where there was no cogent material before the
Detaining Authority to come to the conclusion that
the detenu was likely to be released on bail. From the
narration as indicated in the grounds of detention, it
is clear that with the material on record the Detaining
Authority had applied his mind to the facts and
circumstances fully and had come to the conclusion
that the detenu was likely to be released on bail.
The learned APP also brought to our notice the
affidavit in reply filed by the Detaining Authority
dated 19th August, 2002 wherein in page 13 and 14 the
Detaining Authority has categorically mentioned as
under:-
“I say that the order of detention is based on
the incidents viz. 2 CRs. and two incamera
statements. I say that in para 6 of the grounds
of detention, I have also further stated that
since I have reason to believe that the detenu may
be granted bail under the normal law of the land
in due course, the order of detention was issued
by me. It is submitted that though the detenu has
not preferred bail application in C.R. No. 351 of
2001 and C.R. No. 391 of 2001 there is no impediment
on the detenu to prefer bail application and in
the event the bail application is preferred by the
detenu there is every likelihood that the detenue
would be granted bail under the normal law of the
land. Hence, since there was cogent material
before me on the basis of which it was concluded
that the detenu was likely to be released from
custody and revert back to his prejudicial
activities which would affect the maintenance of
public order, I issued the order of detention. It
is submitted that the last incamera statement of
witness B was recorded on 5.3.2002 and the Order
of Detention was issued on 22.4.2002. Hence, the
Order of Detention is issued without any delay.
It is denied that there is non application of mind
on my part as a Detaining Authority in issuing the
Order of Detention.”
From the above it is clear that the
Detaining Authority formed the opinion based on the
material made available to him that there was no
impediment to the detenu from preferring the bail
application and that there was every likelihood of
detenu being granted bail under the normal law of land.
There was cogent material before him on the basis of
which it was concluded that the detenu was likely to be
released from the custody and he would revert back to
the prejudicial activities which would affect the
maintenance of public order and hence he issued the
order of detention.
19. Mrs. Pai, also brought to our notice the
recent judgment of the Hon’ble Supreme Court in the
case of Veeramani v. State of Tamil Nadu – 1995
Cri.L.J. 2644. It may be noted here that in this case,
the detenue was squarely involved in the offence
punishable under Section 302 IPC and the Petitioner in
that case had not applied for bail. The Hon’ble
Supreme court after referring to various judgments
including the judgments referred to and relied upon by
the learned Counsel for the Petitioner, in paragraph 6
of its judgment, has observed as under:-
“From the catena of decisions of this Court
it is clear that even in the case of a person in
custody, a detention order can validly be passed
if the authority passing the order is aware of the
fact that he is actually in custody; if he has
reason to believe on the basis of the reliable
material that there is a possibility of his being
released on bail and the on being so released,
the detenu would in all probabilities indulge in
prejudicial activities and if the authority passes
an order after recording his satisfaction the same
cannot be struck down.”
20. It may be noted that in the above case,
Veeramani v. State of Tamil Nadu, it was very
strongly argued on behalf of the detenu that since
the detenu was in actual custody in connection with the
murder case, no reasonable person can arrive at the
conclusion that he was likely to be released on bail,
and that the statement of the detaining authority in
the grounds that the detenu is likely to file a bail
application and come out on bail and that he was aware
that bail is usually granted by the courts in such
cases, is illogical and unsound. In paragraph 8 of the
said judgment, the Supreme Court quoted the
observations of the High Court upholding the order of
detention. The relevant portion of the High Court
observations quoted by the Hon’ble Supreme Court in
paragraph 8 of its judgment, reads as under:-
“Of course, the detaining authority need not have
stated that he was also aware that bail is usually
granted by Courts in such cases and hence there is
imminent possibility that he will come out on bail
if it has to be held to be a sweeping statement,
but on fats, it cannot be said that the statement
is of a sweeping nature for, it is well known that
in offences punishable under the sections listed
above, bail orders are usually granted after some
time and most certainly except in rarest of rare
cases after the final report is laid.”
After quoting the same, the Hon’ble Supreme
Court observed that therefore it cannot be said that
the Detaining Authority has not applied its ind to
this aspect. The learned APP has pointed out that in
the above case on similar circumstances, the detenu had
not applied for bail and he was charged with the
offence punishable under Section 302 IPC, still the
order of detention passed by the Detaining Authority
was upheld by the High Court and the Supreme Court on
the ground that even in such a case, there was every
likelihood of detenu being released on bail in the near
future.
21. Mrs. Pai, thereafter referred to another
judgment of the Hon’ble Supreme Court in Kamarunnissa
v. Union of India and Anr. – 1991 Cr.L.J. 2058,
wherein in paragraph 11, the Hon’ble Supreme Court
after analysing various judgments, has observed that
“the decisions of this Court to which our attention was
drawn by the learned Counsel for the Petitioners lay
down in no uncertain terms that detention orders can
validly be passed against detenus who are in jail,
provided the officer passing the order is alive to the
fact of the detenues being in custody and there is
material on record to justify his conclusion that they
would indulge in similar activity if set at liberty.”
In the said judgment in paragraph 13 also the Hon’ble
Supreme Court has held as under:-
“It seems to us well settled that even in a case
where a person is in custody, if the facts and
circumstances of the case so demand, resort can
be had to the law of preventive detention.”
22. The learned APP brought to our notice another
judgment of the Hon’ble Supreme Court in the case of
Smt. K. Aruna Kumari v. Govt. of A.P. and Ors. – wherein the Hon’ble Supreme
Court has held that the High Court while considering
the writ application is not sitting in appeal over the
detention order and it is not for the Court to go into
and assess the probative value of the evidence
available to the Detaining Authority. The Hon’ble
Supreme Court has observed that the Detention order
which is not supported by any evidence may be quashed.
The learned APP pointed out that the Court exercising
the power under Article 226 of the Constitution of
India is not exercising the power of Court of appeal to
reappreciate the material on record and to come on a
different finding. The scope of interference of this
Court is only in case the Detaining Authority has
passed the order of detention based on no evidence and
this Court cannot go into the issue of sufficiency of
material as has been held by the Supreme Court in the
above judgment. Mrs. Pai further referred to another
judgment of the Hon’ble Supreme Court in the case of
State of Gujarat v. Sunil Fulchand Shah and Anr.
wherein also the Hon’ble Supreme Court
has, held that it is not necessary to mention in the
grounds the reaction of the Detaining Authority in
relation to every piece of evidence, separately. The
learned APP has contended that the Detaining Authority
may set out in detail the grounds of detention on the
basis of record made available to it. However, the
Detaining Authority, in the said grounds of detention,
need not set out the reactions to the said facts as has
been held by the Hon’ble Supreme Court in the aforesaid
case.
23. Mr. Pai also referred to another judgment of
the Hon’ble Supreme Court in Ram Bali Rajbhar v. The
State of W.B. and Ors. – wherein the
Hon’ble Supreme Court has reiterated in paragraph 13
that the High Court as well as the Supreme Court should
not act as the Courts of appeal on the questions of
fact with regard to the order passed by the Detaining
Authority. Finally, Mrs. Pai referred to the Hon’ble
judgment of the Hon’ble Supreme Court in the case of
Union of India and Ors. v. Arvind Shergill and
Anr. – . In paragraph 4
of the said judgment, in no uncertain terms, the
Hon’ble Supreme Court has held that the responsibility
for making a detention order rests upon the Detaining
Authority who alone is entrusted with the duty in that
regard and it will be a serious derogation from that
reasonability if the Court substitutes its judgment for
the satisfaction of that authority on an investigation
undertaken regarding sufficiency of the materials on
which such satisfaction was grounded.
24. Having considered all the facts and
circumstances and the various judgments cited
hereinabove, in the instant case, the main contention
of the learned Counsel for the Petitioner is that the
Detaining Authority has not disclosed any cogent
material to indicate as to how the detenue was likely to
be released on bail in the near future. With regard
to the above, as pointed out hereinabove, in the
grounds of detention, the Detaining Authority has set
out the factual aspects as well as the statements
recorded with regard to the incident which took place
on 15.11.2001. The said narration of the facts very
clearly indicate that though the Petitioner has been
charged with the offence punishable under Section 302
IPC, the sequence of events clearly indicate that the
detenu as well as his associates had intended only to
rob the taxi driver. It appears that when the taxi
driver got down from the taxi and caught hold of the
detenu the detenu had inflicted wound on the neck of
the taxi driver and thereafter he and his associates
started running. All these facts have been taken into
account by the Detaining Authority and prima-facie the
Detaining Authority seems to have come to the
conclusion based on the above sequence of events that
the charge under Section 302 IPC may not be sustained
and hence the Detaining Authority has observed that
there was every likelihood of the Petitioner being
released on bail in the near future. Even otherwise,
even if the accused is charged under Section 302 IPC,
it is not that such an accused would never get bail.
There is always every likelihood of such person being
released on bail. The Detaining Authority was very
much aware of the same, and accordingly, had clearly
mentioned as to how the Petitioner who was in custody
was likely to be released on bail in the near future
and would indulge in the prejudicial activities which
would be against the public order. In the instant
case, there are three cases filed against the detenu.
Over and above, there are two in-camera statements and
the modus operandi appears to be that the Petitioner
and his associates armed with knives had been
extorting money and committing robbery from the taxi
drivers and the traders in the particular area thereby
creating a situation of terror and fear in such
locality and thereby endangering the public order. As
has been observed by the Hon’ble Supreme Court in the
above judgment, it is not for this Court to sit in
judgment over the sufficiency of material produced
before the Detaining Authority as to whether the detenu
was likely to be released or not.
25. As rightly pointed out by the learned APP
that the Detaining Authority had FIRs, various
statements made by various witnesses, the punchanamas
etc., and the application of mind by the Detaining
Authority is also clear from the narration of facts.
In the facts of the case with regard to the incident of
15.11.2001 there was every likelihood of the Petitioner
being released on bail even if the charge is under
Section 302 IPC and this view of the Detaining
Authority cannot be faulted on the ground that it was
based on no evidence and that there was no cogent
material or that there was a case of non-application of
mind. Under these facts and circumstances, we do not
find any ground whatsoever made out by the Petitioner
as sought to be contended. Petition is devoid of
merits, hence rule stands discharged.
26. Parties to act on an ordinary copy of this
order duly authenticated by the Associates. Issuance of
certified copy is expedited.