PRAMOD ASHOK PUJARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This letter petition has been received through Nashik Central Prison from the detenu. It has been treated as Writ Petition under Article 226 of the Constitution of India, questioning the preventive detention order passed against the detenu on 16.11.2011 under the signature of Under Secretary to the Government of Maharashtra, Home Department (Special) in exercise of powers under 3(3) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as the said Act). The detention order was passed whilst the detenu was already lodged in jail in connection with the criminal offence registered against him under the provisions of the Indian Penal Code and Bombay Police Act. After passing of the order, the same has been served on the detenu in jail. Even the grounds of detention has been served on the detenu in jail. Since the petition is filed through jail, we requested Mr.Mhaispurkar, Advocate, to appear as Amicus Curiae to espouse the cause of the petitioner. We also permitted him to file a formal petition after going through the compilation of documents forming part of the grounds of detention served on the detenu in jail. Copy of the said compilation was made over to the learned Amicus Curiae by the Office of the Public Prosecutor. Accordingly, the learned Amicus Curiae has filed memo of formal Writ Petition and has reiterated the grounds articulated in the memo of petition during his arguments before us.

(2.) The first contention, 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 sponsoring authority as well as 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 Amicus Curiae 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. In such cases, the detention order would be nothing but illegal.

(3.) 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 is also placed on another decision of three-Judge bench in the case of Yumman Ongbi Lembi Leima vs. State of Manipur & Ors., 2012 2 SCC 176. Before we analyse the facts of the present case, we would deal with the statement of law expounded in the aforesaid decisions. In Rekha's case , in para 7, the Court found, as of fact, that the grounds of detention did not mention any details such as about similar cases in which bail was allegedly granted by the Court concerned. No date of bail order was mentioned, nor the bail application number, nor whether the bail orders were passed in respect of co-accused in the same case, nor about the bail orders passed in respect of other co-accused in cases on same footing, as the case of the accused. On the other hand, the extracted portion of para 4 of the grounds of detention mentioned that although the detenu was arrested in connection with the criminal offence of tampering the original labels and printing fresh labels to make them appear as though they are not expired drugs and redistribute the same for sale to the general public, the detenu "had not moved any bail application till the date of passing of the order". The detenu was arrested on 15.3.2010 and the detention order was passed on 8.4.2010. In the light of these facts, the Court opined that the statement made by the Detaining Authority in the grounds of detention that the detenu is taking action to apply for bail before the higher Court and since in similar cases, bails were granted by the Courts after lapse of time, there was real possibility of detenu coming out on bail in the said criminal case by filing a bail application before the higher Courts, was mere ipse dixit of the Detaining Authority. On that basis, it was held that such subjective satisfaction could not be relied upon to substantiate the alleged imminent possibility of the detenu coming out on bail. The Court, therefore, went on to hold that the detention order was illegal and vitiated.