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2021 DIGILAW 1384 (BOM)

Sharafat Ali Barkat Ali v. State of Maharashtra

2021-10-20

M.S.SONAK, PUSHPA V.GANEDIWALA

body2021
JUDGMENT M.S. Sonak, J. - Heard learned counsel for the parties. 2. Rule. The rule is made returnable forthwith with consent and at the request of learned counsel for the parties. This is a matter where the order of preventive detention has been challenged and therefore the matter of this nature deserves priority. 3. The challenge, in this case, is to the detention order dated 25.05.2020 passed by District Magistrate, Akola-respondent no. 2 herein invoking provisions of Section 3(1) of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black Marketing of Essential Commodities Act, 1981. 4. Shri M. N. Ali, learned counsel for the petitioner has raised several grounds. At this stage, he has focused on the ground that the petitioner herein was already in custody and there was no satisfaction recorded by the Detaining Authority about the necessity to issue the impugned order and preventively detain the petitioner. He relied on the decision of the Hon'ble Supreme Court in the case of Dharmendra Suganchand Chelawat Vs. Union of India, reported in AIR 1990 SC 1196 and also the decision of Division Bench of this Court in the case of Suresh @ Khiladi Yellappa Shivpure Vs. Commissioner of Police reported in 2017 ALL Mr. (Cri.) 3289 in support of his contention. 5. Shri T. A. Mirza, learned A.P.P. for respondents/State has defended the impugned detention order passed on reasoning reflected therein and the explanation offered in the return. 6. On perusal of the impugned detention order as well as the affidavit filed by the Detaining Authority, it does appear that sufficient consideration was not bestowed on the vital circumstance that the petitioner was already in custody when the detention order was made. There is no dispute that the petitioner was already in judicial custody in Crime No. 276/2021 when the detention order was made. The petitioner was no doubt granted bail vide order dated 24.05.2021 but, even before the petitioner could comply with the condition subject to which he was enlarged on bail, the impugned detention order came to be issued. As noticed earlier neither the detaining order nor the affidavit of Detaining Authority indicates that there was any application of mind and the record of satisfaction that despite aforesaid position, there was some compelling necessity to preventively detain the petitioner. 7. As noticed earlier neither the detaining order nor the affidavit of Detaining Authority indicates that there was any application of mind and the record of satisfaction that despite aforesaid position, there was some compelling necessity to preventively detain the petitioner. 7. In Dharmendra Chelawat (supra) case, Hon'ble Supreme Court has held that an order of detention can be validly made even though the proposed detainee is already in custody. But for this purpose, the grounds of detention must show that Detaining Authority was aware of the fact that the detenue was already in custody and further compelling reasons were existing to justify such detention despite this vital circumstance. The expression “compelling reason” in the context of making the order for detention of a person already in custody implies that there must be cogent material before the Detaining Authority based on which the Detaining Authority can be satisfied that detenue is likely to be released from the custody in near future and therefore there is the necessity of preventive detention. 8. Suresh @ Khiladi Shivpure (supra) follows Dharmendra Chelawat (supra) and under somewhat similar circumstances, a detention order made without recording subjective satisfaction on the aspect of the awareness about the detention of the petitioner and existence of compelling reasons for making the detention order despite this vital circumstance was quashed by this Court. 9. According to us, the petition is liable to succeed on the aforesaid ground alone and there is no necessity to consider the other grounds raised in the petition. Accordingly, the impugned detention order is set aside. The rule is made absolute in terms of prayer clause (i). There shall be no order as to costs. 10. The petitioner is ordered to be released forthwith, if not required in connection with any other matter.