Case Note & Summary
The petitioner, Vijay Baburao Avhad, challenged the detention order dated 19.05.2022 passed by the District Magistrate, Ahmednagar under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons, Video Pirates Sand Smugglers and Person Engaged in Black Marketing of Essential Commodities Act, 1981 (MPDA Act), and the subsequent confirmation order dated 21.07.2022 by the Secretary of the Home Department. The detention was based on Crime No. I-977/2021 registered at Pathardi Police Station for offences under Sections 328, 420, 465, 468, 470, 471 of the Indian Penal Code and Section 65(a) to 65(f) of the Maharashtra Prohibition Act. After filing of charge sheet, the case was committed to the Sessions Court as Sessions Case No.79/2022. The petitioner was granted bail by the Sessions Court on 10.03.2022. The petitioner argued that the detaining authority failed to consider the fact of bail grant, which indicated that the petitioner was not likely to be released and continue his activities. The court, relying on the decisions in Rushikesh Tanaji Bhoite v. State of Maharashtra (2012 Cri.L.J. 1334) and Vishal Waman Mhatre v. The Commissioner of Police and Ors. (2013), held that non-consideration of the bail order amounts to non-application of mind and vitiates the detention order. The court quashed both the detention order and the confirmation order, and directed the petitioner's release.
Headnote
A) Preventive Detention - MPDA Act - Non-Application of Mind - Section 3(2) Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons, Video Pirates Sand Smugglers and Person Engaged in Black Marketing of Essential Commodities Act, 1981 - The detaining authority failed to consider that the petitioner was granted bail in the criminal case (Sessions Case No.79/2022) which was the basis for the detention order. Held that such non-consideration amounts to non-application of mind and vitiates the detention order. (Paras 2-3)
Issue of Consideration
Whether the detention order under Section 3(2) of the MPDA Act is vitiated due to non-consideration of the fact that the petitioner was granted bail in the criminal case relied upon by the detaining authority.
Final Decision
The court quashed the detention order dated 19.05.2022 and the confirmation order dated 21.07.2022, and directed the release of the petitioner.
Law Points
- Preventive detention
- MPDA Act
- non-application of mind
- bail grant
- subjective satisfaction
- Section 3(2) MPDA Act
Case Details
2023 LawText (BOM) (03) 6
Criminal Writ Petition No.1118 of 2022 with Criminal Application No.3900 of 2022
Mangesh S. Patil, M.M. Sathaye
Mr. Suvidh S. Kulkarni, Mr. S.J. Salgare, Mr. Nitin Bhavar Patil
The State of Maharashtra, The Section Officer, Home Department, Rajendra Bhosale (District Magistrate), The Superintendent of Police, The Police Inspector
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Nature of Litigation
Criminal writ petition challenging preventive detention order under MPDA Act.
Remedy Sought
Quashing of detention order dated 19.05.2022 and confirmation order dated 21.07.2022, and release of petitioner.
Filing Reason
Detention order passed under Section 3(2) of MPDA Act based on Crime No. I-977/2021, without considering that petitioner was granted bail in the criminal case.
Previous Decisions
Petitioner was granted bail by Sessions Court on 10.03.2022 in Sessions Case No.79/2022.
Issues
Whether the detention order under Section 3(2) of the MPDA Act is vitiated due to non-consideration of the fact that the petitioner was granted bail in the criminal case relied upon by the detaining authority.
Submissions/Arguments
Petitioner argued that the detaining authority failed to consider the grant of bail, which indicates non-application of mind and vitiates the detention order. Relied on Rushikesh Tanaji Bhoite and Vishal Waman Mhatre.
Ratio Decidendi
Non-consideration of the fact that the detenu was granted bail in the criminal case which formed the basis of the detention order amounts to non-application of mind and vitiates the subjective satisfaction of the detaining authority, rendering the detention order invalid.
Judgment Excerpts
The petitioner is impugning the order dated 19.05.2022 passed by the respondent No.3 District Magistrate, Ahmednagar under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons, Video Pirates Sand Smugglers and Person Engaged in Black Marketing of Essential Commodities Act, 1981.
He submits that the registration of Crime No. I-977/2021 ... which has been relied upon by the respondents to pass the impugned order. After filing of the charge sheet and its committal to the Sessions Court it is numbered as Sessions Case No.79/2022. But the respondents failed to consider the fact that the petitioner was granted bail by the Sessions Court on 10.03.2022.
Procedural History
The petitioner was arrested in Crime No. I-977/2021. Charge sheet was filed and the case was committed to Sessions Court as Sessions Case No.79/2022. The petitioner was granted bail on 10.03.2022. The District Magistrate passed the detention order under Section 3(2) of MPDA Act on 19.05.2022. The Home Secretary confirmed the detention on 21.07.2022. The petitioner filed the present writ petition challenging both orders.
Acts & Sections
- Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons, Video Pirates Sand Smugglers and Person Engaged in Black Marketing of Essential Commodities Act, 1981: Section 3(2)
- Indian Penal Code: 328, 420, 465, 468, 470, 471
- Maharashtra Prohibition Act: 65(a) to 65(f)
