Judgment:
Oral Judgment: (A.M. Khanwilkar, J. )
1. This letter petition was received through jail. It has been converted into Writ Petition under Article 226 of the Constitution of India, challenging the preventive detention order dated 5th September, 2011 passed by the Commissioner of Police, Brihan Mumbai in exercise of powers under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (hereinafter referred to as `the said Act').
2. Since the petition has been received through jail, we requested Mr.U.N.Tripathi to appear as amicus curiae to espouse the cause of the petitioner as also to assist the Court. We gave him liberty to file formal memo of petition to urge grounds as may be permissible in law to challenge the preventive detention order. The Public Prosecutor was requested to furnish complete compilation of the documents served on the detenu along with the grounds of detention to enable the learned amicus curiae to formulate the grounds of challenge. On the basis of the compilation furnished to the learned amicus curiae, he has filed formal memo of writ petition. We have dispensed with filing of affidavit in support of the said writ petition in the peculiar facts of the present case.
3. The first ground urged before us is essentially on the basis of the compilation of documents furnished to the learned amicus curiae. The compilation of documents includes a brief note on detention which is at pages 14 and 15 of the memo of petition filed by the learned amicus curiae. This document is prepared on 14th September, 2011 by the office of the Commissioner of Police, Brihan Mumbai. The learned amicus curiae relied on the confidential communication between Commissioner of Police to the Additional Chief Secretary (Home) dated 6th September, 2011 which is placed at page 27 of the memo of petition and argued that going by the dates referred to in the brief note of detention and the said communication, it appears that the order of detention was placed for approval before the State Government on 5th September, 2011. Thus, it was highly impossible for the State Government to accord approval before 5th September, 2011 when the proposal itself was placed before the concerned Authority for approval on 6th September, 2011. As aforesaid, this ground has been taken by the learned amicus curiae on the basis of the document furnished to him. That discrepancy, however, has now been explained in the reply affidavit filed by the Commissioner of Police that the said document i.e. brief note on detention was not part of the compilation of documents served on the detenu along with the grounds of detention, but it was prepared after the Government of Maharashtra approved the detention of the petitioner on 14th September, 2011. The fact that the brief note on detention was prepared on 14th September, 2011 is reinforced from the document as below the signature, that date has been mentioned on the document itself. It is noticed from the record that the grounds of detention along with the compilation of documents was served on the detenu on 6th September, 2011, while he was in jail. Therefore, there was no possibility of preparing that document before the date of service of grounds of detention on the detenu on 6th September, 2011. A priori, the ground under consideration deserves to be negatived, as it is founded on miscommunication.
4. The next argument canvassed before us by learned amicus curiae is that although paragraph 4 of the grounds of detention refer to the fact of petitioner having been placed under preventive detention as also order of externment passed in the year 2003 and 2010 respectively, there is nothing in the grounds of detention to indicate that the Detaining Authority was made aware about the outcome of the said proceedings. This argument, though attractive at the first blush, will have to be stated to be rejected. Inasmuch as, the material stated in paragraph 4 is not the material relied upon nor referred to by the Detaining Authority for forming subjective satisfaction. The facts stated in paragraph 4 were only to give the background of the petitioner and that such actions were taken against him and inspite of that, he continued his criminal activities, prejudicial to the maintenance of public order. In other words, it is not the fact relied upon by the Detaining Authority to form his subjective satisfaction. The subjective satisfaction, however, is founded on the material and the activities of the petitioner referred to in para 5(a) to 5(d) (ii) including two in-camera statements. In that case, non-mention of awareness about the outcome of the preventive actions against the petitioner in the year 2003 and 2010 would not vitiate the subjective satisfaction arrived at by the Detaining Authority. Accordingly, even the second ground urged before us is devoid of merits.
5. The next ground urged by the learned amicus curiae is that the petitioner was earlier arrested in connection with two criminal cases. He had filed bail application in those cases which have been rejected. There was no material before the Detaining Authority that the petitioner was likely to file successive bail application or that if such application was filed, the petitioner was bound to be released on bail. Further more, the Detaining Authority has not recorded its satisfaction that the petitioner, if released on bail, was likely to indulge in prejudicial activities in future. For all these reasons, the subjective satisfaction recorded by the Detaining Authority is vitiated.
6. The side argument advanced by the learned amicus curiae is that the Detaining Authority has not recorded his awareness of the fact that the ordinary law of land was not sufficient to curtail the activities of the petitioner or to deal with him thereunder and preventive detention was the only option to proceed against the petitioner. In support of this contention, reliance is placed on the decision of the Apex Court in 2012 Cri.L.J. 1662-Munagala Yadamma v. State of A.P. and Ors., (2008) 9 SCC 89- K.K. Saravana Babu v. State of Tamil Nadu and Anr., 2001 Cri.L.J. 474-Amritlal v. Union Government and lastly AIR 1990 SC 1196-Dharmendra Suganchand Chelawat and Anr. v. Union of India and Ors.
7. The abovesaid argument has been countered by the learned A.P.P. She has pointed out from the record that the petitioner was initially arrested in connection with C.R. No.260/2011 on 27th June, 2011. The petitioner applied for bail in that case on 6th July, 2011, which was granted. The petitioner availed of bail in that case on 7th July, 2011. Thereafter, the petitioner was once again arrested on 25th July, 2011 in connection with C.R.No.295/2011 and C.R.No.304/2011. The petitioner preferred bail application in both these C.Rs. on 30th July, 2011. Just on the previous day, i.e. 29th July, 2011, the Sponsoring Authority forwarded the proposal to issue preventive detention order against the petitioner to the superior Authority. Be that as it may, the bail applications filed by the petitioner in both C.Rs. came to be rejected on 30th July, 2011. While the proposal for issuance of preventive detention order against the petitioner was being processed, the petitioner filed second bail application in C.R.No.295/2011 on 17th August, 2011. That application was rejected on the same date. The apprehension of the Sponsoring Authority that the petitioner would resort to successive bail applications and may succeed in being released, has been reinforced due to unfolding of this event. The detention order was eventually passed by the Detaining Authority on 5th September, 2011 after duly considering the fact of previous three bail applications filed by the petitioner in connection with C.R.Nos.295/2011 and 304/2011. In this backdrop, the Detaining Authority proceeded to pass the impugned detention order being fully aware of the rejection of bail applications and that the detenu was already in jail. The learned A.P.P. has placed reliance on the dictum of the Apex Court in the case of Abdul Sathar Ibrahim Manik v. Union of India and Ors. reported in (1992) 1 SCC 1, in particular, paragraphs 9 to 12 thereof to buttress her argument that keeping in mind the basis on which the subjective satisfaction has been recorded by the Detaining Authority, as can be discerned from paragraphs 6 to 8 of the grounds of detention, no interference is warranted.
8. The question, whether the detention order can be passed even though the detenu is already in jail and his bail application has been rejected, has been debated in the past and is no more res-integra. The Apex Court in the case of Abdul Sathar Ibrahim Manik (supra) has expounded on this proposition. Even the decision pressed into service by the learned amicus curiae in the case of DharmendraSuganchand Chelawat (supra) predicates that an order of detention can be validly passed against a person in custody. In paragraph 19 of the said decision, however, the Apex Court has spelt out the factors to be kept in mind while passing detention order against a person who is already in custody. Paragraph 19 of the decision reads thus:
“19. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.”
9. We shall now revert to the grounds of detention. We deem it appropriate to extract the relevant portion thereof which reads thus:
“6. From the above facts, I am subjectively satisfied that you are a dangerous person as defined in section 2(b-1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (Mah.Act No.LV of 1981) (Amendment 1996) (Amendment 2009). You have unleashed a reign of terror and have become a perpetual danger to the society at large in the localities of Gopinath Colony, Dhorwada, Saibaba Nagar, Rajiv Gandhi Nagar, 90 Feet Road, Dharavi and areas adjoining thereto in the jurisdiction of Dharavi Police Station in Brihan Mumbai. People residing and carrying out their daily vocations in the above localities and areas are terror stricken and their normal life is affected adversely. Your activities are, therefore, prejudicial to the maintenance of public order in the above localities in Brihan Mumbai.
7. I have carefully gone through the material placed before me and I am subjectively satisfied that you are acting in a manner prejudicial to the maintenance of public order. I am aware that you have been granted bail in connection with Dharavi Police Station C.R.No.260/2011 you have availed of the bail facility and you are without bail in connection with Dharavi Police Station C.R.No.295/2011 and C.R.No.304/2011. However, you may be granted bail under the ordinary law of the land as the said offence is not compulsorily punishable to death or life imprisonment. You may avail of the bail facility and you 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 released on bail you will become a free person 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 it is necessary to detain you under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (Mah.Act No.LV of 1981) (Amendment 1996) (Amendment 2009) to prevent you from acting in such a prejudicial manner in future.” (emphasis supplied)
10. On bare reading of the above, it is amply clear that the Detaining Authority was aware of the fact that the detenu is already in jail. The Detaining Authority inspite of that, was of the opinion that there was compelling reasons justifying the detention of the petitioner. The Detaining Authority was conscious of the fact that the detenu is likely to be released from custody in the near future as the criminal offence for which he was proceeded was not compulsorily punishable with death or life imprisonment. It is common knowledge that in such matters, the Court is liberal in granting bail. This Court has had occasion to consider similar argument in the case of PramodAshok Pujari v. The State of Maharashtra in Writ Petition No.2081 of 2012 decided on 7th August, 2012.
11. The argument that the Detaining Authority has not examined the possibility of detenu being dealt with under the ordinary law is also devoid of merits. Inasmuch as, the subjective satisfaction recorded by the Detaining Authority does indicate that even that aspect has been considered by the Detaining Authority while forming his subjective satisfaction. In view of this finding, it is not necessary to elaborate on the decisions relied upon by the learned amicus curiae which deal with the said contention. Similar contention has been considered in the recent decision of the Division Bench of this Court, to which one of us (A.M.Khanwilkar, J.) was a party in the case of Maya Ajit Satam v. The State of Maharashtra and Ors. in Writ Petition No.1409 of 2012 decided on 24th August, 2012.
12. We are also of the considered opinion that the Detaining Authority has recorded subjective satisfaction that taking into account the nature of the antecedent activities of the petitioner, it is likely that after his release from custody, he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities in future. The learned amicus curiae was at pains to persuade us to take the view that the Detaining Authority has not adverted to the material on the basis of which that satisfaction has been recorded. In our opinion, the Detaining Authority has not only shown his awareness to the relevant aspects but also recorded subjective satisfaction in the grounds of detention itself about the necessity to issue preventive detention order against the petitioner in order to prevent him from engaging in prejudicial activities in future. Accordingly, there is no merit in the ground under consideration as well.
13. Taking overall view of the matter, the petition deserves to be dismissed being devoid of merits. Accordingly, the same is dismissed. Rule is discharged.
14. The Court expresses a word of gratitude for the able assistance extended by the learned amicus curiae to espouse the cause of the petitioner.
15. Copy of the Judgment be forwarded forthwith to the petitioner, who is in jail, for his information.