JUDGMENT - AGUIAR A.S., J.:---By this writ petition preferred under Article 226 of the Constitution of India, the petitioner Mohd. Ubed Abdul Rashid Ansari has impugned order dated 17th August, 2001 passed by the first respondent Shri M.N. Singh, Commissioner of Police for Greater Bombay detaining the detenu under sub-section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) (Amendment 196) (hereinafter referred to as the "M.P.D.A. Act" for short). The detention order along with grounds of detention both dated 17th August, 2001 were served on the detenu and true copies are annexed at Exh. A and B respectively to this petition. 2. Perusal of the grounds of detention shows that the impugned order is found on two C.Rs. and two in-camera statements. The first C.R. being C.R. No. 49 of 2001 for offences under sections 302, 307, 449 and 34 of Indian Penal Code (I.P.C.) read with sections 4 and 25 of the Arms Act on the complaint of Shri Hasan Shah registered by the Paydhuni Police Station. The case was subsequently transferred to the D.C.P., C.I.D. Unit No. 1 for further investigation vide C.R. No. 22 of 2001. The other C.R. being C.R. No. 50 of 2001 for the offences under sections 307 and 34 of I.P.C. read with 3 and 25 of the Arms Act registered by the Agripada Police Station on the complaint of Shri Rafique Asif Gulam Husain Shaikh. The two in-camera statements are of witnesses 'A' and 'B' both recorded on 23rd June, 2001. 3. The details pertaining to C.R. No. 22 of 2001 are as follows : On 8th February, 2001, at about 11.30 hours Shri Hasan Shah had attended office at "Sana Enterprises". One Shri Ezaz Ahmed who had purchased one gala No. 14 from Shri Mohd. Sharif Abdul Gafoor Shaikh @ Sharif Tunda in "Royal Touch" came in his office and gave Rs. 4,50,000/-, as its price. At the same time deceased Shri Mohd. Sharif Abdul Gafoor Shaikh @ Sharif Tunda also came in his said office and discussed with Shri Ezaz Ahmed about his business. Then Shri Ezaz Ahmed left office. At about 14.00 hours, Shri Mohd. Sharif Abdul Gafoor Shaikh @ Sharif Tunda along with Hasan Kasam Shah had gone for lunch in the building opposite his office in his parents house. Sharif Abdul Gafoor Shaikh @ Sharif Tunda also came in his said office and discussed with Shri Ezaz Ahmed about his business. Then Shri Ezaz Ahmed left office. At about 14.00 hours, Shri Mohd. Sharif Abdul Gafoor Shaikh @ Sharif Tunda along with Hasan Kasam Shah had gone for lunch in the building opposite his office in his parents house. At about 14.30 hours, they both came back in the office, after about 15 to 20 minutes one of the associate of the detenu came into the office and made enquiry about Venus Enterprises. Shri Hasan Shah replied in negative. After few minutes the detenu along with his associates Habib Ahmed Sohel Ahmed Shaikh @ Rocky, Anwar Khan @ Raja Mohd. Hashim Khan and Mohd. Shabir @ Sachin @ Pappu Ahmed Khan entered in his office and the other associates of the detenu Madan @ M.D., Nasir Hussain Khan and Mohd. Salim @ Vicky were standing out side office of Shri Mohd. Sharif @ Tunda and were keeping watch. After entering office the detenu and his said associates surrounded Shri Hasan Shah and deceased Shri Mohd. Sharif Abdul Gafoor Shaikh @ Sharif Tunda. The detenu and his associates Habib, Anwar @ Raja and Sachin took out choppers and repeatedly gave blows of choppers first on deceased Shri Mohd. Sharif Abdul Gafoor Shaikh @ Sharif Tunda. Shri Hasan Shah tried to intervene when the detenu assaulted him with weapon at his left car side and on his neck. The deceased Mohd. Sharif tried to run away in order to save his life, when the detenu and his said associates repeatedly assaulted Shri Mohd. Sharif all over his body. Due to severe attack Shri Mohd. Sharif collapsed on the floor. Then the detenu and his said associates ran away from the place. While going the detenu and his said associates closed the door from outside. Shri Hasan Shah immediately informed the incident to Police Control Room on telephone number 100. After few minutes police arrived on the spot and removed injured Shri Mohd. Sharif at J.J. Hospital where he was declared dead before admission. One week prior to this incident detenu and his said associates were at the counter of "Gulshan-E-Eran" hotel, situated opposite "Royal Touch" Shopping Centre along with his another associates Mohd. Etesham Haji Gulam Rasool Shaikh @ Ballu. At that time the associate of detenu Mohd. Sharif at J.J. Hospital where he was declared dead before admission. One week prior to this incident detenu and his said associates were at the counter of "Gulshan-E-Eran" hotel, situated opposite "Royal Touch" Shopping Centre along with his another associates Mohd. Etesham Haji Gulam Rasool Shaikh @ Ballu. At that time the associate of detenu Mohd. Etesham pointed out deceased Shri Mohd. Sharif Abdul Gafoor Shaikh @ Sharif Tunda to detenu and his said associates and the said Mohd. Etesham threatened Shri Mohd. Sharif and accordingly they all carried their plan. In this connection on the complaint of Shri Hasan, a case under sections 302, 307, 449 and 34 of I.P.C. read with sections 4 and 25 of the Arms Act. 4. The details of C.R. No. 50 of 2001 are as follows : On 9th March, 2001 at about 22.00 hours, Shri Rafique Asif Gulam Hussain Shaikh came to Almas Hotel, Mumbai Central for meeting his friend Arif. When he came to Almas Hotel, the detenu and his associates Umar Jagga, Liyakat Rasool, Madan and Etheshyam approached him on two motor cycles. Umar Jagga suggested the complainant Shri Rafique Shaikh to meet one of his friend. Shri Rafique Shaikh agreed to meet the friend of Umar Jagga the associate the detenu and sat on the motor cycle of his other associate Liyakat Rasool. The detenu and his associate Madan sat on the another motor cycle No. Mh. 02-2944 of Umar Jagga in triple seat. Then detenu all along with Rafique Shaikh came on Motibai Street near Maratha Mandir. His associate Liyakat Rasool asked the complainant Shri Rafique Shaikh to get down from motor cycle and run away but Shri Rafique Shaikh did not move from place and stood there. Detenu's associate Umar Jagga angrily pushed Shri Rafique Shaikh and his other associate took out a revolver. On seeing revolver complainant Shri Rafique Shaikh got frightened and tried to run away when detenu's associate Madan fired three bullet shots on Shri Rafique Shaikh in order to kill him. One bullet hit on the back of Shri Rafique Shaikh. After hitting bullet shot Shri Rafique took shelter in Central Court Building to save his life. After confirming that detenu and his said associates had gone, he called at Agripada Police Station in a taxi and reported the matter. The police referred him to Nair Hospital and admitted for treatment. One bullet hit on the back of Shri Rafique Shaikh. After hitting bullet shot Shri Rafique took shelter in Central Court Building to save his life. After confirming that detenu and his said associates had gone, he called at Agripada Police Station in a taxi and reported the matter. The police referred him to Nair Hospital and admitted for treatment. In this connection, on the complaint of Shri Rafique Asif Gulam Hussain Shaikh, a case under sections 307 and 34 of I.P.C. and sections 3 and 25 of the Arms Act was registered at Agripada Police Station. 5. The details of the in-camera statements are as under : Witness A in his statement recorded on 23rd June, 2001 stated that he knows the detenu and his associate Mohd. Etesham @ Ballu who affiliated to notorious criminal Chhota Shakil. Witness knows that detenu's associate Mohd. Etesham involved in series of Bomb Blast cases. The detenu and his said associate always move armed with revolver and collects Hafta money from the shop keeps and businessmen of the area. Due to the revengeful attitude of the detenu nobody speaks against him and his said associate. Witness A further stated that in the first week of April 2001, one day at about 18.30 hours the witness along with his servants was busy with his customers, at that time detenu and his associate Mohd. Etesham and two more unknown associates went there and demanded Rs. 50,000/- from the witness. Upon this, witness told him that he used to pay him monthly hafta. On this, detenu whipped out a revolver and threatened the witness. His associate Mohd. Etesham made the servants and customers of the witness to stand aside in the shop and forcibly took out Rs. 15,000/- from the cash box of the witness. While leaving detenu again threatened witness. On seeing the detenu and his associate with a revolver passers-by ran away and shopkeepers closed their shops due to mortal fear and tension prevailed in the locality. Due to fear of retaliation witness did not complain with police. Witness B in his statement recorded on 23rd June, 2001 stated that he knows the detenu and his associate Mohd. Etesham as a trusted henchmen of Chhota Shakil. The detenu and his associate always move armed with revolver. His associate Etesham is involved in series of Bomb Blast cases. Due to fear of retaliation witness did not complain with police. Witness B in his statement recorded on 23rd June, 2001 stated that he knows the detenu and his associate Mohd. Etesham as a trusted henchmen of Chhota Shakil. The detenu and his associate always move armed with revolver. His associate Etesham is involved in series of Bomb Blast cases. Witness also stated that he know that detenu and his said associate extort hafta money from the shopkeepers and hawkers of the area. The detenu and his said associate unleashed a reign of terror in the locality to such an extend that nobody dare to lodge complaint with police. The witness has further stated that in the first week of April 2001, one day at about 19.00 hours, the witness was present in his shop when detenu and his associate Mohd. Etesham along with two more unknown associates came into the shop of the witness and detenu threatened the witness. On seeing detenu and his associate witness got frightened, even though he mustered courage and expressed his inability to pay such huge amount. The associate of the detenu Mohd. Etesham suddenly whipped out a revolver and rested it on the forehead of the witness and threatened him. On seeing the incident the servant of the witness and the customers present in the shop tried to run away when the detenu and his associates assaulted them with fist blows and kicks. On seeing the violent act of the detenu, the passers-by ran away and shopkeepers closed their shops due to fear. Detenu's associate Mohd. Etesham forcibly removed cash of Rs. 20,000/- from the table drawer of witness and further threatened him. Thereafter detenu and his associates left the place. Due to fear of retaliation witness did not complain with police. 6. Perusal of para 5 of the grounds of detention would show that the detenu has been detained as dangerous person within the meaning of section 2(h-1) of the M.P.D.A. Act. 7. We have heard the learned Counsel for the parties. Although, in this petition, the petitioner has raised several grounds, Mr. Tripathi only pressed before us ground No. 6(d) wrongly shown as 7(o) of the petition. 7. We have heard the learned Counsel for the parties. Although, in this petition, the petitioner has raised several grounds, Mr. Tripathi only pressed before us ground No. 6(d) wrongly shown as 7(o) of the petition. Ground 6(d), in substance, is that inference drawn by the Detaining Authority in two C.R.s. namely, C.R. No. 22/2001 and C.R. No. 50/2001 that there is likelihood of granting bail by the courts is erroneous and this shows clear non-application of mind by the Detaining Authority. It is contended that looking to the charges and role of the detenu in those two C.R.s the Detaining Authority could not come to the conclusion that there is eminent possibility of the courts of law granting bail to the detenu in the near future and that is why the detenu never applied for bail in any Court of law. Mr. Tripathi to press home his submission invited our attention to para 19 of the Apex Court judgment in (Dharmendra Suganchand Chelawat v. Union of India)1, reported in A.I.R. 1990 S.C. 1196, wherein, one of the conditions precedent for issuing a detention order against a person in custody is that there should be cogent material before the Detaining Authority that he is likely to be released from custody in the near future. Mr. Tripathi urged before us that there is no cogent material before the Detaining Authority to come to the conclusion that the detenu will be granted bail and has, therefore, never applied for bail in any Court of law and in view of the fact that the detenu had repeatedly given blows of the choppers on deceased Shri Mohd. Sharif Abdul Gafoor Shaikh and thereafter the detenu assaulted Shri Hasan Shah with weapon at his left ear side and on his neck and while he tried to run away the detenu repeated assaulted Shri Mohd. Sharif due to which the said Mohd. Sharif collapsed. Sharif Abdul Gafoor Shaikh and thereafter the detenu assaulted Shri Hasan Shah with weapon at his left ear side and on his neck and while he tried to run away the detenu repeated assaulted Shri Mohd. Sharif due to which the said Mohd. Sharif collapsed. It is further pointed out that on 18th April, 2001, at the instance of the detenu Police recovered chopper used in the commission of this offence under panchanama and hence there was no likelihood of the detenu being released on bail and hence there was no cogent material before the Detaining Authority to conclude that the detenu was likely to be released from the custody in the near future and that in view thereof the impugned order is rendered bad and unwarranted in law. 8. Respondent No. 1, the Commissioner of Police for Greater Bombay has, in para 10 of the affidavit in reply to the ground 6(d) shown his awareness that the detenu was in custody in C.R. No. 49/2001 by Paydhuni Police Station (which was then transferred to the D.C.P., C.I.D. Unit No. 1 for further investigation vide C.R. No. 22 of 2001) and C.R. No. 50/2001 by Agripada Police Station. The respondent No. 1 Commissioner of Police further contended that he was aware that the detenu had preferred an application for bail in the Sessions Court in C.R. No. 49/2001 which was rejected by the Sessions Court as well as the bail application in C.R. No. 50/2001 which was withdrawn by the detenu. The respondent No. 1 has also admitted that the co-accused Nasir Hussain Khan and Mohd. Salid @ Vicky were granted bail by the Sessions Court and that the bail application of another co-accused Mohd. Etheshyam Haji Gulam Rasool Shaikh @ Ballu was pending before the Sessions Court. The respondent No. 1 has further stated that in view of the fact that two co-accused were granted bail before passing of the detention order and bail application of one more co-accused was pending on that day, he had reason to believe that the detenu, whose role was similar to that of Nasir Hussain Khan and Mohd. Salim, would also be granted bail under the normal law of the land, if he again applied for bail. Salim, would also be granted bail under the normal law of the land, if he again applied for bail. Further that there was no impediment for the detenu from making further bail application at any point of time and his application was likely to be granted on the basis of parity. In view thereof, it is urged by the learned A.P.P. on behalf of the respondents that there was cogent material before respondent No. 1, the Commissioner of Police, on the basis of which, he concluded that the detenu was likely to be released from the custody and would revert back to his prejudicial activities which will affect the maintenance of the public order and hence the order of detention is justified. 9. We have perused the averments contained in ground No. 6(d) of the petition and para 10 of the affidavit of respondent No. 1, the Detaining Authority. We have heard the learned Counsel for the parties. 10. We feel constrained to repeat the observations of the Supreme Court in para 19 of its judgment in Dharmendra Suganchand Chelawat v. Union of India (supra) which has laid down the prerequisites before the detention order can be issued against the person in custody. "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 released from custody he would indulge in prejudicial activities and it is necessary to detain him from engaging in such activities." 11. A perusal of the said paragraph would show that for clamping a detention order against a person in custody not only should the Detaining Authority show its awareness in the grounds of detention that the person is in custody and if released from custody he is likely to revert to prejudicial activities similar to those mentioned in the grounds of detention but also there should be cogent material before him to conclude that he is likely to be released from custody in near future. 12. Our attention has been drawn by the learned Counsel for the parties to the judgment of this Court dated 4th December, 2001 in Criminal Writ Petition No. 1319/2001 (Ajaykumar @ Vijaykumar @ Sonu Janardan Pandey v. Shri M.N. Singh others)2, judgment dated 3rd December 2001 in Criminal Writ Petition No. 1240/2001 (Junaid Abdul Rashid Shaikh v. Shri M.N. Singh others)3, in both cases Coram: Vishnu Sahai and S.K. Shah, JJ.; it judgment dated 2nd May, 2002 in Criminal Petition Nos. 210/2002 and 211/2001 (Mahadu Prabhakar Nair v. Shri M.N. Singh and others)4, (Coram : D.G. Deshpande and S.K. Shah, JJ.) and recent judgment of this Court dated 6th June, 2002 in Criminal Writ Petition Nos. 305, 306 and 307 of 2002 (Shri Sanjay Ganpat Sawant v. Shri M.N. Singh and others)5. In the Ajaykumar's case where the earlier two judgments, wherein, the charges were under sections 302, 34, 120-B and 109 of I.P.C. read with sections 4 and 27 of the Arms Act, the Court in para 13 has ruled as follows : "If the Detaining Authority in view of the fact that Crime No. 252/2000 was registered under section 302 I.P.C. read with sections 34 and 120-B I.P.C. was of the opinion that since co-accused persons had been granted bail the petitioner-detenu could also be granted bail, his subjective satisfaction cannot be faulted. It should be borne in mind that both for an offence punishable under section 302 I.P.C. simpliciter and that punishable under section 302 I.P.C. read with sections 34 and 120-B I.P.C. the punishment is identical. It should be borne in mind that both for an offence punishable under section 302 I.P.C. simpliciter and that punishable under section 302 I.P.C. read with sections 34 and 120-B I.P.C. the punishment is identical. If in such a situation the Detaining Authority has taken the view that since the two co-accused of the petitioner detenu had been granted bail by the High Court and there was no impediment in the way of the petitioner detenu in approaching the High Court for grant of bail we cannot conclude that there was no cogent material before the Detaining Authority to conclude that the petitioner-detenu was likely to be released on bail in near future." The reference to the above observation in Ajaykumar's (supra) is unnecessary not being germane to the point involved for decision by this Court. However, the last two judgments of this Court cited are material. In the two later judgments referred to above, this Court has in deciding whether the detenu should be granted bail or not been guided by the seriousness of the role played by the detenu in commission of offence, and when it was felt that the role of the detenu was more serious than that of the co-accused, who was granted bail, the Court came to the conclusion that the detenu would not in normal course be granted bail and would continue to remain in custody for want of bail and, therefore, passing of any order of detention in such circumstances is unnecessary and unwarranted. Looking to the facts of the present case, it is seen that the role played by the detenu in C.R. No. 49/2001 is more serious than that of the co-accused who have been granted bail. In C.R. No. 49/2001, it was the detenu who assaulted Shri Hasan Shah by striking him with a weapon at his left ear side and on his neck when he tried to intervene. Moreover the chopper used in the commission of the offence was seized under panchanama at the instance of the detenu. In view thereof, it would be very difficult for the detenu to obtain bail. In fact, the Detaining Authority has in his affidavit at para 10 contended that the detenu had applied for bail in C.R. No. 49/2001 which was rejected on 26th July, 2001. In view thereof, it would be very difficult for the detenu to obtain bail. In fact, the Detaining Authority has in his affidavit at para 10 contended that the detenu had applied for bail in C.R. No. 49/2001 which was rejected on 26th July, 2001. In view thereof, the contention of the respondents that since the said two co-accused who were released on bail also used choppers and yet have managed to get bail, there is likelihood that the courts would grant the detenu bail if he applies for the same on the basis of parity is without merit. Thus it is seen that there was no cogent material before the Detaining Authority to come to the conclusion that the detenu was likely to be released on bail if he applied for the same and hence the impugned order of detention is unnecessary and is required to be set aside. In the result, we allow the petition and make the rule absolute. Detention of the detenu Shri Mohd. Ubed Abdul Rashid Ansari is quashed. He be released from detention forthwith unless required in any other case. Petition to stand disposed of. Petition allowed. -----