JUDGMENT
Bilal Nazki, J.
1. Heard learned Counsel for the Petitioner as well as the learned Public Prosecutor.
2. By this petition, the petitioner is challenging the order of detention passed under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as “the Act”)
3. The detenu was detained in terms of Order passed by the detaining authority on 4th June, 2007. The grounds of detention were subsequently furnished to him. Afterwards the Writ Petition was filed. The Respondents have filed their Counter Affidavit and we have gone through the record and heard the learned Counsel for the parties.
4. The learned Counsel for the Petitioner submits that the grounds of detention disclose that the material which was placed before the detaining authority for coming to the conclusion that the detenu needs to be detained contained the facts about a case being C.R. No. 103 of 2007 registered by the Police under Section 302 read with Section 34 of the Indian Penal Code. He was also charged under Section 4 and 27 of the Arms Act read with Section 37 of Bombay Police Act. Besides this material, there was a reference to a case registered under Chapter Proceedings under Section 107 of the Code of Criminal Procedure in the year 2003 against the Petitioner and also a reference to another case registered under Section 107 of the Code of Criminal Procedure in the year 2006. According to the detaining authority, the Police also conducted an in-camera enquiry and recorded the statements of two anonymous witnesses. These in-camera statements were recorded on 12/05/2007, when the accused was already in Judicial custody in connection with C.R. No. 103 of 2007.
5. The foremost attack on the order of detention is that though the detenu was facing the trial in a serious offence under Section 302 read with the provisions of the Arms Act and the Bombay Police Act and since he had not moved any bail application, there was no material before the detaining authority to come to the conclusion that the detenu would be released on bail and therefore he could not have passed the order of detention.
6. Learned Counsel has drawn our attention to Paragraph No. 7 of the grounds of detention in which the detaining authority has stated:
I am aware that you have not granted bail in connection with R.A. Kidwai Marg Police Station C.R. No. 103/07. As such you are in judicial custody in the said case. However, you may be granted bail in the said case at any time under the ordinary law of the land in case you make application and you may avail of the bail facility in the said case and will become a free person. In view of your tendencies and inclinations reflected in the offences committed by you as stated above, I am further satisfied that after you are released on bail and in the event of your being at large, being a criminal, you are likely to indulge in activities prejudicial to the maintenance of public order in future and that with a view to prevent you from acting in such a prejudicial manner in future, it is necessary to detain you under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (Mah. Act No. LV of 1981) (Amendment 1996)
7. We have gone through complete record but, we have not found any material that was available to the detaining authority, on the basis of which he could to the conclusion that the detenu could be released on bail, when even the bail application had not been moved by the detenu.
8. Learned Public Prosecutor submits that possibility of moving an application for bail is different than the possibility of getting released on bail. We agree with the contention of the learned Public Prosecutor, that moving a bail application would be one of the important factors while coming to the conclusion as to whether there was any likelihood of a person getting released on bail. In the absence of an application seeking bail, there should be something more and there should be cogent material, as has been laid down by the Supreme Court, for the detaining authority to come to a conclusion that the accused was likely to be released on bail. When there is no application for bail being made, the necessity of the relevant and cogent material becomes more. But, in the present case, we have not seen any material which would suggest that the accused would be released on bail. He was facing a trial under Section 302 read with Section 34 of the Indian Penal Code and also under the provisions of Arms Act and Bombay Police Act and there was likelihood of his not getting a bail.
9. He has in this connection relied on the Judgment of this Court in Writ Petition No. 552 of 2007 which was passed relying on the Judgment of Supreme Court in Dharmendra Suganchand Chelawat and Anr. v. Union of India and Ors. reported in 1990 Supreme Court, 1196. The Supreme Court in Paragraph 19 of the said Judgment held:
If a person is already in custody and Detaining Authority has reason for passing an order of detention, he must be satisfied on the basis of material before him that the detenu is likely to be released from custody in the near future
This Judgment was pronounced by the Supreme Court after taking into consideration more than half a dozen judgments including the Judgment of the Constitution Bench of the Supreme Court in Ramesh Yadav v. District Magistrate, Etah
This Judgment was subsequently also followed by the Supreme Court in Amritlal and Ors. v. Union Govt. Through Secy. Ministry of Finance and Ors. in (2001) 1 Supreme Court Cases, 341.
The learned Public Prosecutor has however, drawn our attention on an un-reported judgment of this Court in Writ Petition No. 1362 of 2005 in Shri Sayyed Akbar Ali @ Jugnu Sayyed Hasim Ali v. Shri A.N. Roy and Ors. According to the learned Public Prosecutor, in this case the Court has accepted the contention of the detaining authority that the detenu could be detained even if he was in custody and had not moved any application for bail. We have gone through the said unreported judgment in Writ Petition No. 1362 of 2005 (supra) We do not find that the judgment in any way has laid down any new law. But in the facts and circumstances of the case before it, the Court found that cogent material had been before the detaining authority to come to a conclusion that there was likelihood of breach of public order and the detenu was getting bail, who was in custody at the time of order of detention. The Bench of High Court stated, “According to us in the facts and circumstances of the present case, it satisfies the test laid down in Dharmendra Suganchand Chelawat (supra). Cogent material has been pointed out which, according to the detaining authority, is sufficient for the grant of bail”
10. Learned Public prosecutor has also drawn our attention to the Judgment of Supreme Court reported in 1991 CRI. L.J. 2058 in Kamarunissa v. Union of India and Anr. with Badhrunissa v. Union of India and Anr. with Sithy Aysha v. Union of India and Anr. This was a case where a person was facing trial under some provisions of the Customs Act. Though the offences under which he was charged were non-bailable, the detaining authority referred to those offences as bailable and concluded that there was likelihood of his being enlarged on bail. The accused at that point of time had already moved the bail application. In the counter affidavit, he explained that he had referred to the offences as bailable on the ground that in similar matters for similar offences, the Courts were granting bail as a matter of routine and those cases were practically taken to be bailable cases. The material before the detaining authority, while passing an order of detention of a person who was in custody, was that in similar offences for which the detenu was charged, the Courts were granting bail in a routine manner. Therefore, there was cogent material before the detaining authority to believe that detenu was likely to get bail.
11. The other ground that there were chapter proceedings under Section 107 of the Code of Criminal Procedure in 2003 which had already been lodged is too remote in point of time to be taken into consideration for coming to the conclusion that detenu needed to be detained. Similar was case about the other instance of Section 107 in 2006.
12. Then remains the statements recorded in camera. These statements were recorded immediately just before the order of detention on 12th May, 2007 was passed. and it really becomes suspicious whether these statements were engineered for the purpose of passing an order of detention. Although, there was a chapter case under Section 107 of the Code of Criminal Procedure registered against the Petitioner in 2003 and another case in 2006, the detaining authority did not think it proper to conduct an enquiry into the alleged criminal activities of the detenu.
13. The in-camera statements of two persons, which were recorded, have been referred to as “A” and “B”. The statement of Mr. “A” was recorded on 10th May, 2007 and he referred to an instance of 2nd week of January 2007 and the second witness Mr. “B”, whose statement was recorded on 12/05/2007 also referred to another instance of 4th week of January, 2007.
14. It is interesting to note that the detenu was charged for the offence under Section 302 read with Section 34 of the Indian Penal Code in C.R. No. 103 of 2007 along with one Rihazuddin @ Pammu, who has also been accused of the allegations levelled against him in the discreet enquiry by witness “A and B”. We are told at bar that Rihazuddin @ Pammu was not ever detained.
15. For the aforesaid reasons, we feel that the order of detention cannot sustain.
16. The Petition is accordingly allowed. The Order of detention is quashed. The accused be released forthwith, if not required in any other case.