Criminal Writ Petition No. 4854 of 2015. Case: Sagar Prakash Bhosale Vs The Commissioner of Police and Ors.. Bombay High Court

Case Number:Criminal Writ Petition No. 4854 of 2015
Party Name:Sagar Prakash Bhosale Vs The Commissioner of Police and Ors.
Counsel:For Appellant: Mr. Udaynath Tripathi, Advocate and For Respondents: Mr. J.P. Yagnik, A.P.P.
Judges:Smt. V. K. Tahilramani and Smt. Anuja Prabhudessai, JJ.
Issue:Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 - Section 3(1); Indian Penal Code - Sections 392, 34; Criminal Procedure Code - Sections 110, 117
Judgement Date:April 04, 2016
Court:Bombay High Court
 
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Judgment:

Smt. V. K. Tahilramani, J.

  1. The petitioner / detenu - Sagar Prakash Bhosale has preferred this petition questioning the preventive detention order passed against him on 1.6.2015 by the respondent no.1 i.e. Commissioner of Police, Solapur. The said detention order has been passed in exercise of powers under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (No. LV of 1981) (Amendment- 1996 and 2009) (hereinafter referred to as the "MPDA Act"). The said detention order is based on one C.R. i.e. C.R. No. 350 of 2014 dated 7.12.2014 of Vijapur Naka Police Station, Solapur and two incamera statements. The said C.R. is under Section 392 read with Section 34 of IPC. The detention order was passed whilst the detenu was already lodged in Jail in connection with C.R.No. 350 of 2014. After passing of the detention order, the said detention order along with grounds of detention was served to the detenu in Jail.

  2. Though grounds (a) to (g) have been raised in this petition whereby the detention order has been assailed, however, Mr. Tripathi, the learned counsel appearing for the petitioner, has pressed only one ground i.e. ground (c) of the petition. In the said ground (c), it is stated that the detenu was already in judicial custody in C.R.No. 350 of 2014 which is a case under Section 392 read with Section 34 of IPC. He is in custody in the said case since 14.2.2015 and was not granted bail in the said matter. The remaining part of ground (c) briefly stated, is as under:

    "(c).... The detaining authority has not recorded his satisfaction as regards to the imminent possibility and real possibility of detenu's release on bail in abovesaid case. Moreover, there are no cogent materials before the detaining authority to come to such conclusion. It is therefore, not justified on the part of the detaining authority to clamp detention law on a person who is already in custody w.e.f. February, 2015.....

    Since the detenu has never applied for bail, there cannot be any possibility of availing bail in the said C.R.No. 350 of 2014".

  3. The sole contention raised before us, is that, since the detenu was already in jail, the subjective satisfaction recorded by the detaining authority for issuing the impugned detention order, is vitiated. In that, the subjective satisfaction is founded on the ipse dixit of the detaining authority and not supported by any circumstance or material indicative of real possibility of release of the detenu on bail, who was already in custody. The learned counsel for the petitioner has stretched his argument to the extreme by contending that on the date of passing of the detention order, if no bail application has been moved by the detenu or was pending, then it necessarily follows that there was no likelihood of the person in custody being released on bail, hence, in such cases, the detention order would be nothing, but illegal.

  4. To buttress this argument, reliance is placed on the decision of the three-Judge bench of the Apex Court in the case of Rekha vs. State of Tamil Nadu & anr., (2011) 4 SCC 260. Reliance was placed on paragraph 27 of the judgment wherein it is stated that "there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence, the detention order will be illegal."

  5. The learned A.P.P. on the other hand placed reliance on two subsequent decisions of the Supreme Court in the case of D.M.Nagaraja Vs. Government of Karnataka and others, reported in (2011) 10 S.C.C. 215 and G. Reddeiah Vs. Government of Andhra Pradesh and another, reported in (2012) 2 S.C.C. 389. In both these decisions, the Supreme Court considered the earlier decision in the case of Rekha (supra) & distinguished it. In the case of Nagaraja, it is observed as under:

    "18. The learned counsel for the appellant very much relied on a decision of Apex Court in Rekha. In the above case, against the detention order dated 8.4.2010 imposed on Ramkrishnan under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982 on the allegation that he was selling expired drugs after tampering with labels and printing fresh labels showing them as non-expired drugs, his wife filed a habeas corpus petition before the Madras High Court. The said writ petition came to be dismissed. Hence, the wife of the detenu therein, approached the Apex Court by way of special leave to appeal.

  6. In the judgment in Rekha, Apex Court has extracted the detention order and the grounds for detaining him under the Tamil Nadu Act, 1982. The grounds show that there is reference to one incident relating to selling expired drugs and the detaining authority by pointing out that necessary steps are being taken by his relatives to take him out on bail and since in similar case, bails were granted by the courts after lapse of some time and if he comes out on bail, he will indulge in further activities which will be prejudicial to the maintenance of public health and order and recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, on the materials placed and after fully satisfying, the detaining authority has passed an order under the Tamil Nadu Act, 1982. In para 7, the Bench has pointed out that in the grounds of detention, no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. The grounds retracted therein also are bereft of any further details. In those circumstances, this Court taking note of various earlier decisions came to the conclusion that normal recourse to ordinary law would be sufficient and there is no need for invocation of the special Act.

  7. In the case on hand, we have already extracted criminality, criminal activities starting...

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