GANESH NAVALSINGH THAPA Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) THESE three Petitions can be disposed of by a common Judgment as facts involved in all the three Petitions are more or less identical.

(2.) IN all these Writ Petitions, the petitioners are detenues against whom the orders have been passed for detention under section 3 (2) of Maharashtra Prevention of dangerous Activities of Slumlords, bootleggers, Drug Offenders and Dangerous persons Act, 1981 (hereinafter referred to as the said Act of 1981 ). The orders of detention have been passed in all the three cases on 27th february, 2004. The orders have been executed on 4th March, 2004. The orders of detention are based on the same incidents. The orders of detention are based on C. R. No. 145 of 2003 registered against the Petitioners on 11th June, 2003 with Mulund Police Station for offences punishable under Sections 399 and 402 of Indian Penal Code read with sections 3 and 25 of the Arms Act. The petitioners were arrested on 11th June, 2003 in connection with the said C. R. The order of detention is also based on C. R. No. 51/2003 registered with the Aarey Sub-Police Station against all the three Petitioners for the offence punishable under Sections 392, 394, 397 read with Section 34 of Indian Penal Code read with sections 3 and 25 of Arms Act. The orders of detention also rely upon the C. R. No. 34/2003 registered against the Petitioners with Sion police Station for offences punishable under sections 392, 395 read with Section 34 of indian Penal Code read with Sections 3,4 and 25 of Arms Act. The orders of detention are also based on In-camera statements of witness 'a' and witness 'b'. The orders of detention record awareness of the detaining authority that the Petitioners were under arrest. The orders also recite that the Petitioners may be granted bail in due course.

(3.) THE Petitioners have challenged the order of detention on various grounds. The main grounds canvassed by Shri. Sejpal, the learned Counsel for the Petitioners are the ground Nos. (xi), (xii) and (xxvi ). Shri. Sejpal pointed out that Mulund Police Station in connection with C. R. No. 145/2003 applied for approval for applying of The Maharashtra control of Organised Crime Act, 1999 (hereinafter referred to as 'the MCOC Act')and on 9th December, 2003 prior approval was granted by Additional Commissioner of Police (East Region ). He submitted that the order granting prior approval was a vital document which ought to have been placed before the detaining authority alongwith other documents. He urged that the said document could have affected the subjective satisfaction of the detaining authority. He submitted that the copies of the said vital document were also not supplied to any of the Petitioners. Shri. Sejpal pointed out that the orders of detention were served on the Petitioners on 4th March, 2004 and on 5th March, 2004, the Petitioners were produced before the Special Judge under mcoc Act, when the concerned Investigating officer filed an application for remand before the Special Court. He has placed on record copies of the application for remand made by the Investigating Officer i. e. Assistant commissioner of Police, Bhandup Division, mumbai and the order dated 5th March, 2004 passed by the learned Special Judge on the said application. He relied upon the said order to which we have made a detailed reference at a later stage. Relying upon the various provisions of MCOC Act and in particular section 21 he submitted that conditions for grant of bail under the said Act are very stringent. Relying upon Judgments of this hon'ble Court he submitted that grant of bail under the said Act is virtually impossible. He, therefore, submitted that once the provisions of MCOC Act are applied to the Petitioners, their release on bail was impossible and therefore, before a subjective satisfaction was recorded by the detaining authority regarding likelihood of the Petitioners of being granted bail, the order granting approval on 9th december, 2003 ought to have been placed before the detaining authority. He submitted that failure to place the said order of approval before the detaining authority has vitiated subjective satisfaction of the detaining authority. He relied upon the Judgment of the division Bench of this Court reported in 2003 all MR (Cri) 1006 (Kishore Ramanna pujari Vs. The Commissioner of Police greater Mumbai and Others), 2002 ALL MR (Cri) 550 (Rajesh Bishamkumar Khanna @ sagar Vs. Commissioner of Police and others ). The learned Counsel relied upon the judgment of Apex Court reported in AIR 1999 sc 3897 (Ahamed Nassar Vs. State of Tamil nadu and others), 1990 SCC (Cri) 249 (Dharmendra Suganchand Chelawat through his sister Vs. Union of India and others), 1979 SCC (Cri) 262 (Ashadevi w/o. Gopal Ghermal Mehta Vs. K. Shivraji, additional Chief Secretary to the Govt. of gujarat and another), 1987 SCC (Cri) 311 (Union of India and others Vs. Manoharlal narang) and 1989 SCC (Cri) 153 (Ayya @ ayub Vs. State of U. P. and another ).