Case Note & Summary
The petitioner, father of the detenu Jaidev @ Rajubhai @ J.D. Ramji Mishra, filed a habeas corpus petition under Article 226 of the Constitution challenging the detention order dated 8/10/2009 passed under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (MPDA Act). The detention order was based on C.R. No. 261 of 2009 registered with Borivali Police Station and two in-camera statements. The detenu was already in judicial custody at the time of the order, not having been granted bail. The sole ground pressed was that the detaining authority had no cogent material to conclude that the detenu would be released on bail or that there was an imminent possibility of his release, rendering the order illegal for non-application of mind. The court examined the detention order and the grounds, noting that the detaining authority did not record any satisfaction regarding the likelihood of the detenu being released on bail. The court held that when a person is already in custody, a preventive detention order can only be justified if there is material showing an imminent possibility of release and that the detenu would again engage in prejudicial activities. Since no such material existed, the detention order was quashed and set aside.
Headnote
A) Preventive Detention - Judicial Custody - Validity of Detention Order - Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981, Section 3(2) - Detenu was in judicial custody at the time of detention order; detaining authority failed to demonstrate imminent possibility of bail or compelling reasons for detention - Held that detention order is illegal and liable to be quashed for non-application of mind (Paras 1-4).
Issue of Consideration
Whether a detention order under the MPDA Act can be sustained when the detenu is already in judicial custody and there is no cogent material to show an imminent possibility of his release on bail.
Final Decision
The detention order dated 8/10/2009 is quashed and set aside. The detenu is directed to be released forthwith unless required in any other case.
Law Points
- Preventive detention
- judicial custody
- imminent possibility of bail
- non-application of mind
- MPDA Act
Case Details
2010 LawText (BOM) (07) 85
Criminal Writ Petition No. 3167 of 2009
B. H. Marlapalle, Anoop V. Mohta
Mr. U. N. Tripathi for petitioner, Mr. J. P. Yagnik, APP for State
Shri Jaidev @ Rajubhai @ J.D.Ramji Mishra (through father)
Shri D. Shivananadan, Commissioner of Police, Mumbai & Ors.
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Nature of Litigation
Habeas corpus petition challenging preventive detention order under MPDA Act
Remedy Sought
Quashing of detention order and release of detenu
Filing Reason
Detenu was already in judicial custody at the time of detention order; no material to show imminent possibility of bail
Previous Decisions
Detention order passed on 8/10/2009, approved on 15/10/2009, confirmed on 17/11/2009 for one year
Issues
Whether a detention order under MPDA Act is valid when the detenu is already in judicial custody and there is no material to show imminent possibility of release on bail.
Submissions/Arguments
Petitioner argued that the detaining authority failed to consider that the detenu was in judicial custody and there was no cogent material to conclude that he would be released on bail, showing non-application of mind.
State argued in support of the detention order.
Ratio Decidendi
When a person is already in judicial custody, a preventive detention order can only be justified if the detaining authority has material to show an imminent possibility of the detenu being released on bail and that he would again indulge in prejudicial activities. Absent such material, the order suffers from non-application of mind and is illegal.
Judgment Excerpts
The detention order was based on C.R. No. 261 of 2009 registered with the Borivali Police Station.
The learned counsel for the petitioner has pressed for the following ground only, '(d) The petitioner says and submits that the detaining authority has issued the order of detention on 8th October 2009, while the detenu was already in judicial custody having not been granted bail by Court.'
Procedural History
Detention order passed on 8/10/2009, served on 9/10/2009, approved by State Government on 15/10/2009, confirmed on 17/11/2009 for one year. Petition filed under Article 226 challenging the order.
Acts & Sections
- Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981: Section 3(2)
- Constitution of India: Article 226
