Case Note & Summary
The petitioner, Mukesh @ Mukya Ramesh Desaikar, challenged a preventive detention order dated 31st October 2019 passed by the Commissioner of Police, Thane, under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug offenders, Dangerous persons and Video Pirates, Sand Smugglers and persons engaged in Black-marketing of Essential Commodities Act, 1981 (MPDA Act). The detention order was based on three criminal cases: C.R. I-196/2019 under Sections 326, 504, 506 IPC read with Section 142 of Maharashtra Police Act; C.R. II-320/2019 under Sections 4(25) of Arms Act read with Section 37(1), 135 of Maharashtra Police Act; and C.R. I-355/2019 under Section 394 IPC read with Sections 37(1), 135 of Maharashtra Police Act, along with two in-camera statements of witnesses 'A' and 'B'. The detenu was already in custody at the time of the detention order and had been granted bail in all three cases. The court examined whether the detaining authority had properly applied its mind and whether the material justified the detention. The court found that the detaining authority failed to consider that the detenu was on bail and that less drastic remedies were available. The in-camera statements did not show any disturbance to public order but only law and order issues. There was also an unexplained delay of 2 months and 10 days between the last prejudicial activity and the detention order, indicating lack of genuine satisfaction. The court held that the detention order was vitiated by non-application of mind and quashed it, directing the detenu's release unless required in any other case.
Headnote
A) Preventive Detention - MPDA Act - Dangerous Person - Subjective Satisfaction - The detaining authority must apply its mind to the necessity of preventive detention, especially when the detenu is already in custody and has been granted bail in all predicate offences. Failure to consider less drastic remedies and the availability of bail vitiates the detention order. (Paras 4-8)
B) Preventive Detention - Public Order vs. Law and Order - The alleged acts of the detenu, even if true, only affect law and order and not public order. The in-camera statements do not reveal any disturbance to the even tempo of life of the community. The detention order is unsustainable. (Paras 9-10)
C) Preventive Detention - Delay in Passing Order - Unexplained delay of 2 months and 10 days between the last prejudicial activity and the passing of the detention order indicates lack of real and subjective satisfaction, rendering the order invalid. (Para 11)
Issue of Consideration
Whether the preventive detention order passed under the MPDA Act against the petitioner as a 'dangerous person' is vitiated due to non-application of mind, failure to consider less drastic remedies, and lack of credible material to show disturbance of public order.
Final Decision
The court allowed the petition, quashed the detention order dated 31st October 2019, and directed the detenu's release unless required in any other case.
Law Points
- Preventive detention
- MPDA Act
- dangerous person
- public order
- subjective satisfaction
- non-application of mind
- less drastic remedies
- bail
- in-camera statements
- delay in passing order
Case Details
2020 LawText (BOM) (04) 8
Criminal Writ Petition No. 194 of 2020
S. S. Shinde, V. G. Bisht
Mr. D.S. Mhaispurkar for the Petitioner, Mr. J.P. Yagnik, APP for Respondent – State
Mukesh @ Mukya Ramesh Desaikar
Vivek Phansalkar, Commissioner of Police, Thane; Sr. Inspector of Police, Khadakpada Police Station, Kalyan; The State of Maharashtra; The Superintendent, Nasik Central Prison, Nasik
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Nature of Litigation
Criminal writ petition challenging a preventive detention order under the MPDA Act.
Remedy Sought
The petitioner sought quashing of the detention order and his release from detention.
Filing Reason
The petitioner challenged the detention order on grounds of non-application of mind, failure to consider less drastic remedies, and lack of credible material to show disturbance of public order.
Previous Decisions
The detention order was passed on 31st October 2019 by the Commissioner of Police, Thane. The petitioner was already in custody and had been granted bail in all three predicate offences.
Issues
Whether the detention order is vitiated due to non-application of mind by the detaining authority.
Whether the detaining authority failed to consider less drastic remedies and the fact that the detenu was on bail.
Whether the alleged activities of the detenu affect public order or merely law and order.
Whether the unexplained delay in passing the detention order indicates lack of genuine satisfaction.
Submissions/Arguments
The petitioner argued that the detaining authority did not apply its mind to the necessity of preventive detention when the detenu was already in custody and had been granted bail.
The petitioner contended that the in-camera statements did not show any disturbance to public order but only law and order issues.
The petitioner pointed out the unexplained delay of 2 months and 10 days between the last prejudicial activity and the detention order.
The respondent argued that the detention order was valid and based on credible material.
Ratio Decidendi
The detaining authority must apply its mind to the necessity of preventive detention, especially when the detenu is already in custody and has been granted bail. Failure to consider less drastic remedies and the availability of bail vitiates the detention order. The alleged acts must affect public order, not merely law and order. Unexplained delay in passing the detention order indicates lack of real and subjective satisfaction.
Judgment Excerpts
The detention order has been passed under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug offenders, Dangerous persons and Video Pirates, Sand Smugglers and persons engaged in Black-marketing of Essential Commodities Act, 1981.
The detention order is based on three Crimes... and two in-camera statements of witnesses ‘A’ and ‘B’ recorded on 05-09-2019 and 19-08-2019 respectively.
The detaining authority failed to consider that the detenu was on bail and that less drastic remedies were available.
The in-camera statements do not reveal any disturbance to the even tempo of life of the community.
Unexplained delay of 2 months and 10 days between the last prejudicial activity and the passing of the detention order indicates lack of real and subjective satisfaction.
Procedural History
The petitioner filed Criminal Writ Petition No. 194 of 2020 before the Bombay High Court challenging the preventive detention order dated 31st October 2019 passed by the Commissioner of Police, Thane. The petition was reserved on 6th March 2020 and pronounced on 9th April 2020.
Acts & Sections
- Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug offenders, Dangerous persons and Video Pirates, Sand Smugglers and persons engaged in Black-marketing of Essential Commodities Act, 1981:
- Indian Penal Code, 1860: 326, 504, 506, 394
- Maharashtra Police Act: 142, 37(1), 135
- Arms Act, 1959: 4(25)
