JUDGMENT
1. Heard Mr. S.R. Pasbola for the petitioner-detenue and Mr. B.R. Patil, Acting P.P. for the State.
2. The detenue is detained by an Order dated 22nd August 2002 under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootledggers, Drug Offenders and Dangerous Persons Act, 1981. The grounds of detention are of the even date and the detention is challenged on number of grounds. However, Mr. Pasbola restricted himself to ground Nos. 13 and 18 and therefore we are considering the said grounds only because the petition has to be allowed on the said grounds.
3. It is mainly contended by the petitioner – detenue on the basis of the aforesaid two grounds that when the detention order was passed it was necessary for the detaining authority to find out whether the detenue was in custody or was at large and if he was in custody whether there was likelihood of his getting bail in order to enable him i.e detenue to continue with his prejudicial activities in future. According to the petitioner – detenue he was in custody when the detention order was passed for offences under the provisions of Maharashtra Control of Organised Crime Act 1999 (MCDC Act) and by virtue of provisions of Section 21(5) of the MCOC Act there was no possibility at all of the detenue getting bail, but this aspect is not at all considered by the detaining authority and no awareness is shown about the same in the detention order or in the grounds of detention and in the affidavit. Therefore there was no material before the detaining authority to come to the conclusion that the detenue was likely to be released on bail and this is therefore a case of total non application of mind affecting the validity of the detention order. Counsel for the petitioner relied upon the judgment of this Court reported in 2002 ALL MR (Cri) 550 Rajesh Bishamkumar Khanna @ Sagar v. Commissioner of Police, Greater Mumbai and Ors. wherein this Court on the basis of the judgment of the Supreme Court in Dharmendra Suganchand Chelawat and Anr. v. Union of India and Ors. reported in AIR 1990 SC 1198 held that when the detenue was detained under the MCOC Act then there was virtually no possibility of his getting bail in view of the stringent provisions of Section 21(4) of MCOC Act. Counsel for the petitioner contended that in fact in the case of Rajesh Khanna Section 21 Sub-section (5) was not at all attracted but even then the Court held that possibility of getting bail was nil. He contended that Section 21(5) of the MCOC Act imposes more stringent condition and makes it impossible for a person to get bail, if he commits an offence under the MCOC Act while on bail in any other case.
4. As against this, it was tried to be urged by Mr. Patil that in the grounds of detention as well as in the affidavit the detaining authority has shown its awareness about the detenue in custody on the date of passing of the detention order and therefore according to him it could not be said that this was a case of non application of mind.
5. In order to properly appreciate the submissions made by the counsel for the petitioner – detenue and the APP, it is necessary to reproduce Section 21 Sub-sections (4) and (5) of the MCOC Act.
“21(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless –
(a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and
(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
21(5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Court that he was on bail in an offence under this Act, or under any other Act, on the date of the offence in question.”
It will be clear from the provisions of Section 21(4) that getting bail for offence under the MCOC Act is extremely difficult in view of the conditions imposed as has been held by this Court in the case of Rajesh Khanna, referred to above. Sub-section 5, in our opinion, puts a complete ban on any accused getting bail if the court finds that he was on bail in offence under this Act i.e. MCOC Act or under any other Act, on the date of the offence in question. In other words Sub-section (5) provides that if an accused applies for bail after his arrest under the MCOC Act and it is found that when he committed offence under the MCOC Act he was on bail in any offence either under MCOC Act or any other Act then there is a legislative prohibition in granting bail to him because Sub-section (5) says that such an accused shall not be granted bail.
6. In the instant case offence under the MCOC Act was committed by the detenue on 9.5.2002 and 10.5.2002 however he committed this offence under the MCOC Act while on bail in C.R. No. 378 of 2001 of Khar Police Station about which there is no dispute. Therefore it is clear that Sub-section (5) of Section 21 of the MCOC Act directly and consequently applies to the present case of the detenue. As such there was no chance or possibility of the detenue getting bail on account of prohibition laid down in Sub-section (5) of Section 21. What is required of the detaining authority to show its awareness. Though case of Dharmendra Chelawat decided by Supreme Court, as quoted above, lays down that there should be compelling reasons in the context of making an order of detention of a person already in custody and the detaining authority must be satisfied that (i) that the detenue is likely to be realised from custody in the near future; (ii) Taking into account the nature of the incident, activities of the detenue, it is likely that after his release from custody he would be indulged in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.
7. The compelling reasons to which Supreme Court has made reference in the case of Dharmendra Chelawat are in the form of material to come to a conclusion that the detenue is likely to be released in the near future, it requires showing awareness of the detenue being in custody on the date of passing of detention order and also awareness of his likelihood of his getting bail. In the instant case we do not find either in the ground of detention or in the affidavit of the detaining authority that there was any material before the detaining authority to come to a conclusion that the detenue was likely to get bail. To the contrary what we find that the provisions of Sub-sections (4) and (5) of Section 21 of the MCOC Act have not at all been considered by the detaining authority. The detaining authority has not applied its mind to the aforesaid provisions and prohibition imposed in getting bail with reference to the facts of the case under which the detenue was arrested in offence under the MCOC Act while he was on bail for offence under some other provisions of law.
8. Out attention was invited by Mr. Patil on page 91 of the petition (internal page 31 of the affidavit) p
icularly paragraph 20 the detaining authority has tried to contend that the authority was aware that the accused was in custody and such awareness was reflected in the grounds of detention. The detaining authority was also aware that the detenue had preferred a Bail Application No. 141 of 2002 and the bail application came to be rejected. However, in this affidavit in the same para the detaining authority has stated:
“It is submitted that the gravity of the prejudicial activities in which the detenue was involved an the imminent possibility of his being released on bail and further imminent possibility of the detenu indulging in similar prejudicial activities upon his release on bail were the pressing and compelling reasons which prompted me to issue the order of detention, though the detenue was in custody.”
9. We find that the aforesaid averments in the affidavit is without any basis. There was no possibility of the detenue being released on bail much less any imminent possibility in view of the provisions of Section 21 Sub-section (5) of the MCOC Act.
10. Mr. Patil also tried to urge that in the same paragraph the detaining authority has stated:
“It is submitted that the detenu was in custody in C.R. No. 141 of 2002 under Sections 387, 34 of Indian Penal Code and under the M.C.O.C. Act. It is stated that since the detenue had already preferred an application for bail which was rejected, hence, there was imminent possibility that the detenu would be granted bail under the normal law of the land,….”
Mr. Patil tried to contend that the detaining authority has shown its awareness that the MCOC was invoked against the detenue in C.R. No. 141 of 2002.
11. We are unable to accept the submissions made by Mr. Patil. It is true that the detaining authority was aware that provisions or MCOC have been invoked against the detenue in C.R. No. 141 of 2002 but the question is whether there was sufficient material before the detaining authority to come to the conclusion that the detenue was likely to get bail or there was imminent possibility of his getting bail and the answer to that question is clearly in the negative on account of the provisions of Section 21(5) of the MCOC Act. It is therefore clear that this is a case where total non application of mind by the detaining authority to the important and vital provisions of Section 21 Sub-section (5) vis-a-vis the activities of the detenue, his release on bail in some other offence under some other Act and at the time when the provisions of MCOC were invoked against him, the detention order is therefore liable to be set aside. Hence, the order:
ORDER
Petition is allowed.
Rule made absolute.
Order of detention dated 22.8.2002 is quashed.
Detenue Kishor Ramanna Pujari be released forthwith, if not required in any other case.
