{"id":186584,"date":"2003-02-26T00:00:00","date_gmt":"2003-02-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shahid-mohd-yusuf-shaikh-vs-shri-m-n-singh-commissioner-of-on-26-february-2003"},"modified":"2018-08-05T02:26:57","modified_gmt":"2018-08-04T20:56:57","slug":"shahid-mohd-yusuf-shaikh-vs-shri-m-n-singh-commissioner-of-on-26-february-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shahid-mohd-yusuf-shaikh-vs-shri-m-n-singh-commissioner-of-on-26-february-2003","title":{"rendered":"Shahid Mohd. Yusuf Shaikh vs Shri M.N. Singh, Commissioner Of … on 26 February, 2003"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shahid Mohd. Yusuf Shaikh vs Shri M.N. Singh, Commissioner Of … on 26 February, 2003<\/div>\n
Equivalent citations: 2003 BomCR Cri<\/div>\n
Bench: S Radhakrishnan, D Bhosale<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 1. By this petition, the Petitioner is
\nchallenging the order of detention passed by the
\nCommissioner of Police, Mumbai dated 22nd April, 2002
\nunder Section 3(1) of the Maharashtra Prevention of
\nDangerous Activities of Slumlords, Bootleggers. Drug
\nOffenders and Dangerous Persons Act, 1981 (hereinafter
\nmentioned as M.P.D.A. Act) with a view to prevent the
\nPetitioner detenu from acting in any manner prejudicial
\nto the maintenance of the public order. On the very
\nsame day, i.e. 22nd April, 2002 the Commissioner of
\nPolice being the Detaining Authority had also furnished
\nin pursuance of Section 8 of the aforesaid M.P.D.A.
\nAct, the grounds of detention to the detenu. While
\ndoing so, the identity and the particulars of certain
\nwitnesses were not disclosed in public interest and the
\nDetaining Authority had claimed the privilege with
\nregard the same.\n<\/p>\n
 2. A perusal of the grounds of detention
\nindicate that as far as the Petitioner is concerned,
\nthree criminal cases have been registered against the
\nPetitioner. In the first case there is an incident
\nwhich took place on 15th November, 2001. The details
\nof which (as set out in the grounds of detention) are
\nas under:-\n<\/p>\n
  “Investigation revealed that on 15.11.2001 at
\nabout 02.30 hours you and your associates Imran
\nMohmed Kazi, Sudhakar Baliram Yadav and Imtiyaz
\nMohiddin Shaikh engaged the M\/taxi No. MH-01-X-2963
\nat Bhendi Bazar and asked taxi driver Shri. Babu
\nMarianna @ Lokeshkumar to take taxi at Ferry
\nWharf. You occupied the front seat next to taxi
\ndriver and your associates Sudhakar, Imtiyaz and
\nImran sat on the rear seat. When taxi reached near
\nWadibunder junction you asked taxi driver Babu
\nMarianna to stop the taxi and as soon as the taxi
\nstopped, your associate Imran whipped out a knife
\nand kept it on the neck of taxi driver Babu
\nMarianna and threatened him by saying that
\n^^txg ls fgyuk ugha] ugh rks dkV Mkywaxk**<\/p>\n
Your associate sudhakar caught hold of both the
\nhands of taxi driver Babu Marianna from behind and
\nyou started searching his person and removed cash
\nfrom his pockets. You and your associates Imran,
\nSudhakar and Imtiyaz got down from the taxi and
\nthreatened taxi driver Babu Marianna not to move
\nhis taxi till you all leave the place or else he
\nwould be killed. At that time the taxi driver
\nBabu Marianna also got down from taxi and caught
\nhold of you. When your associate Sudhakar caught
\nhold the taxi driver Babu Marianna from behind and
\nyou whipped out a knife and gave a blow of it on
\nthe neck of taxi driver Babu Marianna when he
\nsustained fatal injury. Then you all ran away
\nfrom the place. Injured taxi driver Babu Marianna
\nchased you all for a while and came back to his
\ntaxi and collapsed there. Due to the incident,
\nnearby people gathered there. Some of the
\nresidents got scared and changed their sleeping
\nplaces due to fear.”\n<\/p>\n
 3. The second incident with regard to which the
\nthe criminal case has been registered against the
\ndetenu is an incident which took place on 19.12.2001.
\nThe details of which as set out in the grounds of
\ndetention are as under:-\n<\/p>\n
  “On 19.12.2001 at about 03.00 hours Shri. Laxman
\nBechan Saroj had parked his M\/taxi No. MMO-1484 at
\nAbhudaya Nagar, Kalachowky and was waiting for
\npassengers. At that time, you and your
\nassociates, Imran, Sudhakar and Imtiyaz engaged
\nhis taxi and asked Shri Saroj to take you and your
\nsaid associates to Mazgaon. You sat on the front
\nseat next to taxi driver and your said associates
\nsat on the rear seat. Shri Saroj started his
\nM\/taxi and reached near Chaita towers building,
\nShivdas Champsi Marg, Mazgaon, when you asked the
\ntaxi driver to stop the taxi and gave note of
\nRs. 50 as fare. While Shri Saroj was giving balance
\namount to you, your associate Imran whipped out a
\nknife and kept it on the neck of Shri Saroj and
\nyour associate Sudhakar caught hold both of this
\nhands from behind. Your forcibly removed Rs. 1100\/-
\nfrom the shirt pocket of Shri Saroj. Your
\nassociate Imtiyaz removed the key of the taxi.
\nYou threatened Shri Saroj by saying that
\n^^ge nwj tkusrd VSDlh pykuk ugha** <\/p>\n
and you all left the
\nplace. Shri Saroj did not report the matter to
\npolice due to fear.”\n<\/p>\n
 4. With regard to the third incident, the Local
\nAct Case has been filed against the Petitioner and his
\nassociates. The details of third incident as set out
\nin the grounds of detention are as under:-\n<\/p>\n
  “On 22.12.2001 at about 03.30 hours Shri Laxman
\nBechan Saroj was waiting for passengers near
\nBhendi Bazar Signal. At that time you and your
\nassociates Imran and Sudhakar came there and sat
\nin his taxi and asked the taxi driver to take you
\nand your associates to Mazgaon. Shri Saroj
\nimmediately identified you and your associates
\nImran and Sudhakar as the same persons who robbed
\nhim in the night of 19.12.2001, but he kept mum
\nand took you to Mazgaon near Hancock Bridge. You
\npaid him taxi fare. After receiving taxi fare
\nShri Saroj went to Noor Baug Naka and apprised
\nthe facts to other taxi drivers who were waiting
\nfor passengers. Shri Saroj with other taxi
\ndrivers sat in his taxi and went for your search
\ntowards Mazgaon, Shri Saroj saw that you and your
\nsaid associates were coming in other taxi towards
\nNoor Baug Naka. Shri Saroj turned his taxi and
\nstarted chasing your taxi. Shri Saroj overtook
\nyour taxi and stopped in front of your taxi at
\nSheriyar baug, Ramchandra Bhatt Marg, Dongri. At
\nthat time you and your associates Imran and
\nSudhakar got down from the taxi and started
\nrunning. Meantime the staff of Dongri Police
\nStation, who was on patrolling duty, chased you
\nand your said associates and succeeded to nab your
\nassociates Imran and Sudhakar on the spot when
\nthey were found in possession of knives. The said
\nweapons were seized under a panchanama and you
\nmanaged to escape from the place. On the same day
\nyou were also arrested, and at the time of arrest
\nyou were found in possession of knife.”\n<\/p>\n
 5. Apart from the above three incidents, the two in-camera
\nstatements were also recorded which were duly
\nverified by the Senior Police Inspector and the
\nDivisional Assistant Commissioner of Police. In both
\nthose cases, the detnu and his associates were
\ninvolved in extorting money by threatening the traders
\nwith the held of knives. These two incidents had
\noccurred on 24.2.2002 and 5.3.2002.\n<\/p>\n
 6. The Detaining Authority while issuing the
\ndetention order had taken into account various FIR’s
\nfiled in the above cases as well as various statements
\ngiven by various witnesses. In fact, it may be
\npertinent to note that with regard to the first
\nincident, almost 14 witnesses had corroborated the
\nrelevant facts of the case. After taking into account
\nall the above facts and circumstances of the case, the
\nDetaining Authority has observed in paragraph 6 of the
\nDetention Order as under:- Is 1  <\/p>\n
  “I have carefully gone through the material
\nplaced before me and I am subjectively satisfied
\nthat, you are acting in a manner prejudicial to
\nthe maintenance of public order. I am aware that
\nyou have been granted bail in Dongri Police
\nStation LAC No. 2106\/2001 however you have not
\navailed bail facility, you may avail it any
\ntime. You are still in judicial custody. I am
\nalso aware that you are in judicial custody as
\nbail has not been granted to you in Byculla Police
\nStation C.R. No. 351\/2001 and 391\/2001. However, I
\nhave reason to believe that you are likely to get
\nbail under the normal law of land in due course.
\nIn view of your tendencies and inclination
\nreflected in the offences committed by you as
\nstated above, I am further satisfied that, after
\nhaving availed bail facility and becoming a free
\nperson and in the event of remaining at large, you
\nare likely to continue the similar activities
\nprejudicial to the maintenance of public order in
\nfuture and that it is necessary to detain you
\nunder the Maharashtra Prevention of Dangerous
\nActivities of Slumlords, Bootleggers, Drug
\nOffenders and Dangerous Persons Act 1981 (No. LV
\nof 1981) (Amendment 1996) to prevent you from
\nacting in such a prejudicial manner in future.”\n<\/p>\n
7. Mr. Tripathi, the learned counsel appearing
\nfor the Petitioner fairly stated that, though in the
\npetition there are various grounds on which the
\ndetention is challenged, he is restricting the entire
\nchallenge with regard to the detention only on one
\nground viz. grounds B, which reads as under:-\n<\/p>\n
  “The Petitioner says and submits that the detenue
\nwas already in Judicial custody in C.R. No. 351\/01
\nand 391\/01 since 1.1.2002 and while he was
\ncontinuing in custody in abovesaid both the cases,
\nan order of detention was passed against him on
\n22.4.2002. Thereby there was no necessity to
\ndetain a person preventively while he was already
\nprevented to commit any prejudicial activities.
\nMoreover, no compelling necessity is disclosed in
\nthe grounds of detention nor any cogent material
\nbefore the detaining authority to come to the
\nconclusion that the detenue will be granted bail
\nunder normal law of land shortly. This shows non-application
\nof mind of the detaining authority.\n<\/p>\n
The Petitioner says and submits that more
\nparticularly taking into consideration the nature
\nof crime and the detenue’s role no court of law
\nwill be inclined to grant of bail. The detenue
\nhas not applied for bail in C.R. No. 351\/01 in any
\ncourt of law and till today for about 4.1\/2 months
\ncontinuing in judicial custody. The order of
\ndetention suffers from the vice of non-application
\nof mind of the detaining authority. The order of
\ndetention is illegal and bad in law ought to be
\nquashed and set aside”.\n<\/p>\n
 To put in other words, the only limited
\nground on which the learned Counsel for the Petitioner
\nhas challenged the detention order in this case is
\nthat, as the Petitioner detenue was already in custody
\non the date when the detention order passed, and
\nthere was no likelihood of the Petitioner being
\nreleased on bail in the near future, especially when he
\nwas involved in the case charged with the offence
\npunishable under Section 302 of the Indian Penal Code
\nwith regard to the first incident. According to
\nMr. Tripathi, there was no necessity on the part of the
\nDetaining Authority to issue the detention order as the
\nPetitioner was in custody and there was no likelihood
\nof his getting released on bail. Mr. Tripathi also
\ncontended that the Detaining Authority has not applied
\nhis mind properly to the facts and circumstances of the
\ncase and has totally ignored the fact that the
\npetitioner has been charged with the offence punishable
\nunder Section 302 of the Indian Penal Code. The
\nlearned Counsel Mr. Tripathi has submitted that there
\nwas no likelihood of the Petitioner getting released
\non bail in the near future, however, the Detaining
\nAuthority without any cogent material or compelling
\nreasons has passed the detention order. Mr. Tripathi
\nalso contended that the Detaining Authority (The
\nCommissioner of Police) while passing the detention
\norder did not have any cogent material before him and
\ninspite of the same, has passed the detention order
\nwhich is impermissible in law.\n<\/p>\n
 8. In support of his contention, Mr. Tripathi,
\nthe learned Counsel for the Petitioner strongly relied
\nupon the well-known judgment of the Hon’ble Supreme
\nCourt in the case of Dharmendra Suganchand Chelawat
\nv. Union of India<\/a> . He laid great
\nemphasis on paragraph 21 of the said judgment, which
\nreads as under:-\n<\/p>\n
  “The decision referred to above lead to the
\nconclusion that an order for detention can be
\nvalidly passed, against a person in custody and for
\nthat purpose it is necessary that the grounds of
\ndetention must show that (i) the detaining
\nauthority was aware of the fact that the detenue
\nis already in detention; and (ii) there were
\ncompelling reasons justifying such detention
\ndespite the fact that the detenue is already in
\ndetention. The expression “compelling reasons” in
\nthe context of making an order for detention of a
\nperson already in custody implies that there must
\nbe cogent material before the detaining authority
\non the basis of which it may be satisfied that (a)
\nthe detenu is likely to be released from custody
\nin the near future, and (b) taking into account
\nthe nature of the antecedent activities of the
\ndetenu, it is likely that after his release from
\ncustody he would indulge in prejudicial activities
\nand it is necessary to detain him in order to
\nprevent him from engaging in such activities.”\n<\/p>\n
 9. Mr. Tripathi has contended that in the instant
\ncase, the Detaining Authority was aware that the Detenu
\nwas in detention as has been reflected in the detention
\norder. His main objection is that there was no
\ncompelling reason justifying such detention since the
\ndetenu was already in custody. According to
\nMr. Tripathi the Detaining Authority had no cogent
\nreasons before him to satisfy himself that the detenu
\nwas likely to be released from custody in the near
\nfuture.\n<\/p>\n
10. Mr. Tripathi also referred to and relied upon
\nanother judgment of the Hon’ble Supreme Court in the
\ncase of Surya Prakash Sharma v. State of U.P. and
\nOrs.<\/a> 1994 Supp.(3) Supreme Court Cases 195 wherein,
\nhe laid emphasis on paragraph 5 of the said judgment
\nwherein the Supreme Court has reiterated the
\nprinciples laid down earlier in the well-known case of
\nRameshwar Shaw v. District Magistrate, Burdwan<\/a> – , and also in the above mentioned case of
\nDharmendra Chelawat.\n<\/p>\n
 11. The learned Counsel Mr. Tripathi also referred
\nto and relied upon the Division Bench Judgment of our
\nHigh Court at Nagpur Bench in the case of Smt. Kamlabai
\nKalicharan Yadav v. State of Maharashtra and Anr.
\n2001 Cri.L.J.452. In the above judgment, the Division
\nBench came to the finding that there was no cogent
\nmaterial before the Detaining Authority that the detenu
\nwas likely to be released on bail. Especially in view
\nof the reply filed to the petition, the Court was not
\nsatisfied that there was any possibility of grant of
\nbail. In the facts and circumstances of that case, the
\nDivision Bench held that there was no cogent material
\njustifying such detention.\n<\/p>\n
 12. Mr. Tripathi also referred to the unreported
\njudgment of the Division Bench of our High Court in
\nCriminal Writ Petition No. 1240 of 2001, Junaid Abdur
\nRashid Shaikh v. M.N. Singh and Ors., dated 3rd December,
\n2001. In the said judgment, in paragraph 8 the
\nDivision Bench has clearly observed that there was no
\ncogent material before the Detaining Authority to
\nenable him to get himself satisfied that the person who
\nsought to be preventively detained was likely to be
\nreleased from custody in the near future, and
\naccordingly the detention order was quashed and set
\naside in the said case.\n<\/p>\n
 13. Mr. Tripathi also referred to and relied upon
\nanother unreported judgment of the Division Bench of
\nthis Court in the case of Mahadu Prabhakar Nair v.
\nM.N. Singh and Ors. (Criminal Writ Petition No. 210 of 2002
\nalongwith another connected writ petition) dated 2nd
\nMay, 2002. In this judgment with regard to two detenus
\nthe Division Bench came to the finding that there was
\nno cogent material before the Detaining Authority to
\nform an opinion hat they were likely to be released
\non bail. With regard to one of the matters as the said
\ndetenu was the main accused in that case and was
\ndirectly involved in the offence of murder, the Court
\ncame to the conclusion that there was no material
\nbefore the Detaining Authority to come to the
\nconclusion that the detenu was likely to be released
\non bail, as can be seen from paragraph 5 of the said
\njudgment, and hence the detention order was quashed and
\nset aside.\n<\/p>\n
 14. Mr. Tripathi also referred to and relied upon
\nanother judgment of the Division Bench of our High
\nCourt in the case of Shri. Basant Kumar Soni v.
\nM.N. Singh and Ors. (Criminal Writ Petition No. 1469 of
\n2000) dated 27th February, 2001, wherein also the
\nDivision Bench quashed and set aside the detention
\norder, as it was found that there was no cogent
\nmaterial before the Detailing Authority that the
\ndetenue was likely to be released on bail in the near
\nfuture. The learned Counsel Mr. Tripathi also brought
\nto our notice another judgment of the Division Bench
\nof our High Court in the case of Shri. Sanjay Ganpat
\nSawant v. M.N. Singh and Ors. (Criminal Writ Petition
\nNo. 305 of 2002 and two other connected writ petitions)
\ndated 6th June, 2002. In this case as far as one of
\nthe accused was concerned, the Court found material on
\nrecord that there was no likelihood of the getting
\nreleased on bail and there was no cogent material on
\nrecord justifying that he was likely to be released on
\nbail. Hence in the said matter also the detention
\norder was quashed and set aside.\n<\/p>\n
 15. Mr. Tripathi also referred to another judgment
\nof the Division Bench of our High Court in the case of
\nSmt. Zubeda Khalid Khan v. M.N. Singh and Ors. (Criminal
\nWrit Petition No. 1128 of 2001) dated 17th October,
\n2001. In this case also the Division Bench was of the
\nview that there was no concern material before the
\nDetaining Authority so as to conclude about the
\nimminent likelihood of the detenue being released on
\nbail in the near future. In this case it may be noted
\nthat the anticipatory bail application was made by the
\ndetenue and it was rejected. As there was no concrete
\nmaterial justifying that the detenu was likely to be
\nreleased on bail in the near future, the Court quashed
\nand set aside the detention order.\n<\/p>\n
 16. Thereafter, Mr. Tripathi referred to the
\njudgment of Hon’ble Supreme Court in the case of
\nN. Meera Rani v. Govt. of Tamil Nadu and Anr.<\/a> –
\n1989 Cri.L.J. 2190. In this judgment, the Hon’ble
\nSupreme Court reiterated the principles laid down in
\nthe case of Rameshwar Shaw v. District Magistrate,
\nBurdwan<\/a> wherein it was observed, in a very succinct
\nmanner that the Detaining Authority has to consider the
\nantecedent history of the said person and to decide
\nwhether the detention of the said person would be
\nnecessary after he is released from jail and if the
\nauthority is bonafide satisfied that such detention is
\nnecessary he can make a valid order of detention a
\nfew days before the person is likely to be released.
\nIn the said judgment the Hon’ble Supreme Court has
\nindicated that there must be the cogent material before
\nthe Detaining Authority to form an opinion that the
\ndetenu is likely to be released on bail in the near
\nfuture, and if there is no such cogent material
\nbefore the Detaining Authority, the Detaining Authority
\nought not to pass the mechanical order of detention
\nwithout applying his mind to the case of the case
\ninvolved.\n<\/p>\n
 17. Mr. Tripathi, the learned Counsel for the
\nPetitioner therefore contended that in the instant
\ncase, in one of the incidents the Petitioner has been
\ncharged with serious offence punishable under Section
\n302 of the IPC, and therefore the Detaining Authority
\nwas fully aware that there was no likelihood of the
\ndetenu being released on bail in the near future.
\nAccording to him the Petitioner being the person who
\ninflicted the injury on the neck of the deceased and
\nwas charged with an offence punishable under Section
\n302 IPC, there was no likelihood of the getting released
\non bail in the near future. According to Mr. Tripathi,
\nthe Detaining Authority has mechanically passed the
\ndetention order without clearly disclosing the reasons
\njustifying as to how the detenu is likely to be
\nreleased even though he was charged with the offence
\npunishable under Section 302 IPC. Mr. Tripathi
\ntherefore contended that the detention order cannot be
\nsustained at all in law as per the principles laid
\ndown by the Hon’ble Supreme Court and this Court in the
\njudgments referred to hereinabove. His main
\ncontention is that Detaining Authority has passed the
\ndetention order without applying his mind, in the
\nsense, the detention order does not disclose any cogent
\nmaterial on the basis of which it could be indicated
\nthat the detenu was likely to be released on bail in
\nthe near future. Mr. Tripathi does not dispute that in
\na case where the detenu is already in custody, the
\npreventive order of detention can be passed, but,
\naccording to him such a detention order can be passed
\nonly if there is likelihood of such detenu getting
\nreleased on bail in the near future. Under the
\naforesaid facts and circumstances, Mr. Tripathi contends
\nthat this is a case wherein the Detaining Authority
\nhas totally failed to apply his mind in the facts and
\ncircumstances of the case, and has mechanically passed
\nthe order of detention under Section 3(1) of the
\nM.P.D.A. Act, and that too without any cogent material
\nto form an opinion that the detenu was likely to be
\nreleased on bail in the near future. Hence, the
\nlearned Counsel for the Petitioner prays that the
\nDetention Order be quashed and set aside.\n<\/p>\n
 18. On the other hand, Mr. Pai, the learned APP
\nfor the Respondent took us through the grounds of
\ndetention as well as the reply filed by the Detailing
\nAuthority. She pointed out that as far as first
\nincident which took place on 15th November, 2001 and
\nwith regard to which the Petitioner has been charged
\nwith the offence punishable under Section 302 IPC,
\nthe facts of the case would clearly indicate that the
\nPetitioner and his associates were primarily
\ninterested in extorting money or at the most committing
\nrobbery. According to her, with regard to this
\nincident the facts indicate that one of the
\nassociates viz. Imran whipped out a knife and kept it
\non the neck of the taxi driver and the another
\nassociate Sudhakar caught hold of both the hands of
\ntaxi driver from behind, and at that point of time, the
\npetitioner started searching his person of taxi driver
\nand removal cash from his pockets. After removal of
\ncash from the pockets of the taxi driver, the
\nPetitioner and his associates had got down from the
\ntaxi and threatened the taxi driver not to move the
\ntaxi till they all leave the place or otherwise he
\nwould be killed. At that time, the taxi driver also
\ngot down from the taxi and caught hold of the
\nPetitioner. When one of the associate of the
\nPetitioner viz. Sudhakar caught hold of the taxi driver
\nfrom behind, the Petitioner whipped out a knife and
\ngave a blow of it on the neck of taxi driver as a
\nresult of which the taxi driver sustained a fatal
\ninjury. When the petitioner and his associates ran
\naway from the place the taxi driver chased them all for
\na while and then came back to the taxi and collapsed
\nthere. The learned APP pointed out that in the
\nbackground of the case, the charge of an offence
\npunishable under Section 302 IPC may be difficult to
\nsustain. According to her, in fact the Detaining
\nAuthority has found that there was every likelihood of
\nthe petitioner being released on bail in the near
\nfuture though being charged with the offence punishable
\nunder Section 302 IPC. She contended that the grounds
\nof detention are set out in detail and the material
\nwhich has been collected in the form of statements has
\nalso been set out, and it is not the case wherein the
\nDetaining Authority has merely mentioned the case
\nnumber & the charges under the different sections of
\nthe Indian Penal Code. She contends that from the
\ngrounds of detention which are given in detail and
\nthe punchanama and the FIRs before the Detaining
\nAuthority as well as the two in-camera statements, it
\nis clear that the Petitioner detenu was repeatedly
\nindulging in the armed extortion of money from the taxi
\ndrivers and the other traders in a particular area.
\nAccording to Mrs. Pai, based on the above material, and
\ntaking into account all the facts and circumstances the
\nDetaining Authority has come to the conclusion that
\nwith the aforesaid antecedents there was every
\nlikelihood of the detenu being released on bail in the
\nnear future. The learned APP stats that it is not
\nthe case where there was no cogent material before the
\nDetaining Authority to come to the conclusion that
\nthe detenu was likely to be released on bail. From the
\nnarration as indicated in the grounds of detention, it
\nis clear that with the material on record the Detaining
\nAuthority had applied his mind to the facts and
\ncircumstances fully and had come to the conclusion
\nthat the detenu was likely to be released on bail.
\nThe learned APP also brought to our notice the
\naffidavit in reply filed by the Detaining Authority
\ndated 19th August, 2002 wherein in page 13 and 14 the
\nDetaining Authority has categorically mentioned as
\nunder:-\n<\/p>\n
  “I say that the order of detention is based on
\nthe incidents viz. 2 CRs. and two incamera
\nstatements. I say that in para 6 of the grounds
\nof detention, I have also further stated that
\nsince I have reason to believe that the detenu may
\nbe granted bail under the normal law of the land
\nin due course, the order of detention was issued
\nby me. It is submitted that though the detenu has
\nnot preferred bail application in C.R. No. 351 of
\n2001 and C.R. No. 391 of 2001 there is no impediment
\non the detenu to prefer bail application and in
\nthe event the bail application is preferred by the
\ndetenu there is every likelihood that the detenue
\nwould be granted bail under the normal law of the
\nland. Hence, since there was cogent material
\nbefore me on the basis of which it was concluded
\nthat the detenu was likely to be released from
\ncustody and revert back to his prejudicial
\nactivities which would affect the maintenance of
\npublic order, I issued the order of detention. It
\nis submitted that the last incamera statement of
\nwitness B was recorded on 5.3.2002 and the Order
\nof Detention was issued on 22.4.2002. Hence, the
\nOrder of Detention is issued without any delay.
\nIt is denied that there is non application of mind
\non my part as a Detaining Authority in issuing the
\nOrder of Detention.”\n<\/p>\n
 From the above it is clear that the
\nDetaining Authority formed the opinion based on the
\nmaterial made available to him that there was no
\nimpediment to the detenu from preferring the bail
\napplication and that there was every likelihood of
\ndetenu being granted bail under the normal law of land.
\nThere was cogent material before him on the basis of
\nwhich it was concluded that the detenu was likely to be
\nreleased from the custody and he would revert back to
\nthe prejudicial activities which would affect the
\nmaintenance of public order and hence he issued the
\norder of detention.\n<\/p>\n
 19. Mrs. Pai, also brought to our notice the
\nrecent judgment of the Hon’ble Supreme Court in the
\ncase of Veeramani v. State of Tamil Nadu – 1995
\nCri.L.J. 2644. It may be noted here that in this case,
\nthe detenue was squarely involved in the offence
\npunishable under Section 302 IPC and the Petitioner in
\nthat case had not applied for bail. The Hon’ble
\nSupreme court after referring to various judgments
\nincluding the judgments referred to and relied upon by
\nthe learned Counsel for the Petitioner, in paragraph 6
\nof its judgment, has observed as under:-\n<\/p>\n
  “From the catena of decisions of this Court
\nit is clear that even in the case of a person in
\ncustody, a detention order can validly be passed
\nif the authority passing the order is aware of the
\nfact that he is actually in custody; if he has
\nreason to believe on the basis of the reliable
\nmaterial that there is a possibility of his being
\nreleased on bail and the on being so released,
\nthe detenu would in all probabilities indulge in
\nprejudicial activities and if the authority passes
\nan order after recording his satisfaction the same
\ncannot be struck down.”\n<\/p>\n
 20. It may be noted that in the above case,
\nVeeramani v. State of Tamil Nadu, it was very
\nstrongly argued on behalf of the detenu that since
\nthe detenu was in actual custody in connection with the
\nmurder case, no reasonable person can arrive at the
\nconclusion that he was likely to be released on bail,
\nand that the statement of the detaining authority in
\nthe grounds that the detenu is likely to file a bail
\napplication and come out on bail and that he was aware
\nthat bail is usually granted by the courts in such
\ncases, is illogical and unsound. In paragraph 8 of the
\nsaid judgment, the Supreme Court quoted the
\nobservations of the High Court upholding the order of
\ndetention. The relevant portion of the High Court
\nobservations quoted by the Hon’ble Supreme Court in
\nparagraph 8 of its judgment, reads as under:-\n<\/p>\n
“Of course, the detaining authority need not have
\nstated that he was also aware that bail is usually
\ngranted by Courts in such cases and hence there is
\nimminent possibility that he will come out on bail
\nif it has to be held to be a sweeping statement,
\nbut on fats, it cannot be said that the statement
\nis of a sweeping nature for, it is well known that
\nin offences punishable under the sections listed
\nabove, bail orders are usually granted after some
\ntime and most certainly except in rarest of rare
\ncases after the final report is laid.”\n<\/p>\n
 After quoting the same, the Hon’ble Supreme
\nCourt observed that therefore it cannot be said that
\nthe Detaining Authority has not applied its ind to
\nthis aspect. The learned APP has pointed out that in
\nthe above case on similar circumstances, the detenu had
\nnot applied for bail and he was charged with the
\noffence punishable under Section 302 IPC, still the
\norder of detention passed by the Detaining Authority
\nwas upheld by the High Court and the Supreme Court on
\nthe ground that even in such a case, there was every
\nlikelihood of detenu being released on bail in the near
\nfuture.\n<\/p>\n
 21. Mrs. Pai, thereafter referred to another
\njudgment of the Hon’ble Supreme Court in Kamarunnissa
\nv. Union of India and Anr.<\/a> – 1991 Cr.L.J. 2058,
\nwherein in paragraph 11, the Hon’ble Supreme Court
\nafter analysing various judgments, has observed that
\n“the decisions of this Court to which our attention was
\ndrawn by the learned Counsel for the Petitioners lay
\ndown in no uncertain terms that detention orders can
\nvalidly be passed against detenus who are in jail,
\nprovided the officer passing the order is alive to the
\nfact of the detenues being in custody and there is
\nmaterial on record to justify his conclusion that they
\nwould indulge in similar activity if set at liberty.”
\nIn the said judgment in paragraph 13 also the Hon’ble
\nSupreme Court has held as under:-\n<\/p>\n
  “It seems to us well settled that even in a case
\nwhere a person is in custody, if the facts and
\ncircumstances of the case so demand, resort can
\nbe had to the law of preventive detention.”\n<\/p>\n
 22. The learned APP brought to our notice another
\njudgment of the Hon’ble Supreme Court in the case of
\nSmt. K. Aruna Kumari v. Govt. of A.P. and Ors. –   wherein the Hon’ble Supreme
\nCourt has held that the High Court while considering
\nthe writ application is not sitting in appeal over the
\ndetention order and it is not for the Court to go into
\nand assess the probative value of the evidence
\navailable to the Detaining Authority. The Hon’ble
\nSupreme Court has observed that the Detention order
\nwhich is not supported by any evidence may be quashed.
\nThe learned APP pointed out that the Court exercising
\nthe power under Article 226 of the Constitution of
\nIndia is not exercising the power of Court of appeal to
\nreappreciate the material on record and to come on a
\ndifferent finding. The scope of interference of this
\nCourt is only in case the Detaining Authority has
\npassed the order of detention based on no evidence and
\nthis  Court cannot go into the issue of sufficiency of
\nmaterial as has been held by the Supreme Court in the
\nabove judgment. Mrs. Pai further referred to another
\njudgment of the Hon’ble Supreme Court in the case of
\nState of Gujarat v. Sunil Fulchand Shah and Anr.<\/a>
\n wherein also the Hon’ble Supreme Court
\nhas, held that it is not necessary to mention in the
\ngrounds the reaction of the Detaining Authority in
\nrelation to every piece of evidence, separately. The
\nlearned APP has contended that the Detaining Authority
\nmay set out in detail the grounds of detention on the
\nbasis of record made available to it. However, the
\nDetaining Authority, in the said grounds of detention,
\nneed not set out the reactions to the said facts as has
\nbeen held  by the Hon’ble Supreme Court in the aforesaid
\ncase.\n<\/p>\n
23. Mr. Pai also referred to another judgment of
\nthe Hon’ble Supreme Court in Ram Bali Rajbhar v. The
\nState of W.B. and Ors. –  wherein the
\nHon’ble Supreme Court has reiterated in paragraph 13
\nthat the High Court as well as the Supreme Court should
\nnot act as the Courts of appeal on the questions of
\nfact with regard to the order passed by the Detaining
\nAuthority. Finally, Mrs. Pai referred to the Hon’ble
\njudgment of the Hon’ble Supreme Court in the case of
\nUnion of India and Ors. v. Arvind Shergill and
\nAnr.<\/a> – . In paragraph 4
\nof the said judgment, in no uncertain terms, the
\nHon’ble Supreme Court has held that the responsibility
\nfor making a detention order rests upon the Detaining
\nAuthority who alone is entrusted with the duty in that
\nregard and it will be a serious derogation from that
\nreasonability if the Court substitutes its judgment for
\nthe satisfaction of that authority on an investigation
\nundertaken regarding sufficiency of the materials on
\nwhich such satisfaction was grounded.\n<\/p>\n
 24. Having considered all the facts and
\ncircumstances and the various judgments cited
\nhereinabove, in the instant case, the main contention
\nof the learned Counsel for the Petitioner is that the
\nDetaining Authority has not disclosed any cogent
\nmaterial to indicate as to how the detenue was likely to
\nbe released on bail in the near future. With regard
\nto the above, as pointed out hereinabove, in the
\ngrounds of detention, the Detaining Authority has set
\nout the factual aspects as well as the statements
\nrecorded with regard to the incident which took place
\non 15.11.2001. The said narration of the facts very
\nclearly indicate that though the Petitioner has been
\ncharged with the offence punishable under Section 302
\nIPC, the sequence of events clearly indicate that the
\ndetenu as well as his associates had intended only to
\nrob the taxi driver. It appears that when the taxi
\ndriver got down from the taxi and caught hold of the
\ndetenu the detenu had inflicted wound on the neck of
\nthe taxi driver and thereafter he and his associates
\nstarted running. All these facts have been taken into
\naccount by the Detaining Authority and prima-facie the
\nDetaining Authority seems to have come to the
\nconclusion based on the above sequence of events that
\nthe charge under Section 302 IPC may not be sustained
\nand hence the Detaining Authority has observed that
\nthere was every likelihood of the Petitioner being
\nreleased on bail in the near future. Even otherwise,
\neven if the accused is charged under Section 302 IPC,
\nit is not that such an accused would never get bail.
\nThere is always every likelihood of such person being
\nreleased on bail. The Detaining Authority was very
\nmuch aware of the same, and accordingly, had clearly
\nmentioned as to how the Petitioner who was in custody
\nwas likely to be released on bail in the near future
\nand would indulge in the prejudicial activities which
\nwould be against the public order. In the instant
\ncase, there are three cases filed against the detenu.
\nOver and above, there are two in-camera statements and
\nthe modus operandi appears to be that the Petitioner
\nand his associates armed with knives had been
\nextorting money and committing robbery from the taxi
\ndrivers and the traders in the particular area thereby
\ncreating a situation of terror and fear in such
\nlocality and thereby endangering the public order. As
\nhas been observed by the Hon’ble Supreme Court in the
\nabove judgment, it is not for this Court to sit in
\njudgment over the sufficiency of material produced
\nbefore the Detaining Authority as to whether the detenu
\nwas likely to be released or not.\n<\/p>\n
 25. As rightly pointed out by the learned APP
\nthat the Detaining Authority had FIRs, various
\nstatements made by various witnesses, the punchanamas
\netc., and the application of mind by the Detaining
\nAuthority is also clear from the narration of facts.
\nIn the facts of the case with regard to the incident of
\n15.11.2001 there was every likelihood of the Petitioner
\nbeing released on bail even if the charge is under
\nSection 302 IPC and this view of the Detaining
\nAuthority cannot be faulted on the ground that it was
\nbased on no evidence and that there was no cogent
\nmaterial or that there was a case of non-application of
\nmind. Under these facts and circumstances, we do not
\nfind any ground whatsoever made out by the Petitioner
\nas sought to be contended. Petition is devoid of
\nmerits, hence rule stands discharged.\n<\/p>\n
 26. Parties to act on an ordinary copy of this
\norder duly authenticated by the Associates. Issuance of
\ncertified copy is expedited.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shahid Mohd. Yusuf Shaikh vs Shri M.N. Singh, Commissioner Of … on 26 February, 2003 Equivalent citations: 2003 BomCR Cri Bench: S Radhakrishnan, D Bhosale 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-186584","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShahid Mohd. Yusuf Shaikh vs Shri M.N. 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