High Court Quashes Preventive Detention Order Under MPDA Act Due to Lack of Compelling Necessity for Detaining Person Already in Custody. Detaining Authority Failed to Provide Cogent Material Showing Likelihood of Detenu's Release on Bail, Rendering Detention Order Invalid.

Writ petition under Article 226 of the Constitution challenging a preventive detention order under the MPDA Act, 1981.

Petitioner sought quashing of the detention order dated 17.9.2004.

Petitioner contended that the detention order was passed while he was already in custody and there was no compelling necessity to detain him.

The detention order was passed on the subjective satisfaction of the Commissioner of Police; the petitioner's bail application in the criminal case was rejected on 14.9.2004; no prior court challenge was mentioned.

Whether the order of preventive detention under section 3(2) of the MPDA Act is vitiated due to lack of compelling necessity when the detenu was already in custody and there was no cogent material indicating likelihood of release on bail.

Petitioner argued that he was in custody, his bail application was rejected, and there was no imminent possibility of release, so the detention order lacked compelling necessity and relied on Dharmendra Chelawat v. Union of India and Rivadeneyta Ricardo Agustin v. Govt. of NCT of Delhi. Respondents argued that the detaining authority had subjectively satisfied that the petitioner may be granted bail and that after release he would indulge in prejudicial activities; thus, the detention order was valid.

For a preventive detention order against a person already in custody to be valid, the detaining authority must show (i) awareness that the detenu is in custody and (ii) compelling reasons justifying detention, which require cogent material indicating that the detenu is likely to be released in the near future and that after release he would indulge in prejudicial activities. A mere apprehension that the detenu may apply for bail and may be granted bail, without specific material showing likelihood of release, does not satisfy the test of compelling necessity. In the present case, the detaining authority's ground that the petitioner 'may be granted bail' lacked cogent material and thus the detention order was vitiated.

I am aware that you have not granted bail in Kurla Police Station C.R.No.192/2004, as yet. However, you may be granted bail in the said case under the ordinary law of the land. 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 release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.

The petitioner filed Criminal Writ Petition No.2662 of 2004 under Article 226 of the Constitution before the High Court of Judicature at Bombay, challenging the preventive detention order dated 17.9.2004. The petition was heard on 06.06.2005 and judgment was delivered orally on the same day, allowing the petition and quashing the detention order.

• Constitution of India: Article 226
• Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981: Section 3(2), Section 2(b-1)
• Indian Penal Code: Section 302, Section 34, Section 120(B)
• Bombay Police Act: Section 37(i)(a), Section 135