Judgment:
Oral Judgment:
Heard the learned counsel for the petitioner and the learned A.P.P for the respondent. By this petition under Article 226 of the Constitution of India, the petitioner has taken an exception to the order of preventive detention dated 7th May 2012 passed in exercise of power 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 said Act).
2. The learned counsel for the petitioner invited our attention to the grounds of detention supplied to the petitioner in accordance with section 8 of the said Act. He pointed out that the Detaining Authority has referred to as many as 15 offences registered against the petitioner and has noted that the petitioner has been enlarged on bail in all 15 cases.
3. He has specifically invited our attention to grounds 11 and 12 of the petition. He submitted that considering the fact that all the offences alleged against the petitioner were non bailable offences, the Applications for bail and the orders granting bail were vital documents. He submitted that the applications for bail and the orders granting bail were not placed before the Detaining Authority and therefore, the same were not considered by the Detaining Authority. He placed reliance on various decisions including the decisions of this Court in support of his submission. He also invited our attention to the affidavit in reply filed by the Detaining Authority and submitted that the affidavit itself proves that the Detaining Authority did not have benefit of perusing the applications for bail and orders granting bail. He submitted that subjective satisfaction of the Detaining Authority is vitiated and therefore, order of preventive detention will have to be set aside. The learned A.P.P invited our attention to the grounds of detention and submitted that the Detaining Authority was aware of the orders granting bail and therefore, it cannot be said that subjective satisfaction of Detaining Authority is vitiated. She invited our attention to the alleged prejudicial activities of the petitioner and propensity of the petitioner. Her submission is that considering the nature of prejudicial activities, no interference is called for in the present case.
4. We have given careful consideration to the submissions. We have perused the grounds of detention supplied to the petitioner under section 8 of the said Act. There is a reference therein to the 15 offences registered against the petitioner and the fact that the petitioner has been enlarged on bail in all the cases. It will be necessary to note here that the specific grounds of challenge based on non placing of bail applications and orders granting bail before the Detaining Authority have been set out in grounds 11 and 12 of the petition. We have perused the affidavit of Detaining Authority and in particular paragraph 14 thereof. The Detaining Authority has stated that the said Authority was aware that the petitioner has been released on bail in all the cases. The Detaining Authority has specifically stated that only in cases of 4 offences out of 15, bail orders and bail applications were placed before him. The details of the said four offences have been set out in the affidavit. Thus, as regards all other offences, copies of the bail orders and applications for bail were not at all placed before the Detaining Authority.
It will be necessary to make a reference to the well known decision of the Apex Court in case of Abdul Sattar Ibrahim Manik Vs. Union of India and others (1992 1 SC page 1). In paragraph 12 of the said decision, the Apex Court has summarised the law on the point. The Apex Court held that in a case where the detenue is released on bail and is at liberty at the time of passing order of detention, bail application and the order granting bail should necessarily be placed before the Detaining authority and the copies should be also supplied to the detenue. We may note here that in the present case, all the offences registered against the petitioner are non bailable offences and in case of 11 out of 15 offences, it is an admitted position that the orders granting bail and applications for bail were not placed before the Detaining Authority. We may also make useful reference to the recent decision of the Apex Court in case of Rushikesh Tanaji Bhoite Vs. State of Maharashtra (Appeal no.24 of 2012 decided on January 4, 2012). In paragraphs 9 and 10 the Apex Court has held thus:
"9. In a case where detenu is released on bail and is enjoying his freedom under the order of the Court at the time of passing the order of detention, then such order of bail, in our opinion, must be placed before the detaining authority to enable him to reach at the proper satisfaction."
"10. In the present case, since the order of bail dated August 15, 2010 was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, in our view, the detention order is rendered invalid. We cannot attempt to assess in what manner and to what extent consideration of the order granting bail to the detenu would have affected the satisfaction of the detaining authority but suffice it to say that non-placing and non consideration of the material as vital as the bail order has vitiated the subjective decision of the detaining authority." (underline added)
5. In the present case, Detaining Authority was aware of the fact that bail was granted to the detenue. However, in case of 11 offences, admittedly the orders granting bail were not produced before the Detaining Authority. The orders granting bail in these cases were certainly vital documents as the offences alleged against the petitioner were non-bailable offences. Therefore, conditions of bail, if any, imposed therein would have affected the subjective satisfaction of the Detaining Authority one way or the other. Considering the nature of the offences alleged against the petitioner, orders granting bail were certainly vital documents. Therefore, non placing of the orders granting bail will vitiate the subjective satisfaction of the Detaining Authority. Hence, the order of detention is vitiated and the same deserves to be quashed and set aside.
6. We accordingly pass the following order :
Order of detention dated 7th May 2012 bearing No.Desk No.10/Crime Branch/02/12 MPDA/2012 Nashik City passed by the Commissioner of Police, Nashik against the petitioner is quashed and set aside. Rule is accordingly made absolute.