Case Note & Summary
The petitioner, Mujammil @ Murgya Sabbir Mokashi, challenged an order of detention dated 26.09.2015 passed by the Commissioner of Police, Pune City under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (MPDA Act). The petitioner was already in custody since 12.09.2015 in connection with C.R. No.208/2015 under Sections 386, 387, 452 of the Indian Penal Code. The grounds of detention communicated to the petitioner on 26.09.2015 listed nine offences within the preceding five years and two preventive actions. The petitioner's representation against the detention order was rejected by the Government on 05.11.2015. The main ground of challenge was that the detaining authority did not consider the fact that the petitioner was already in custody and failed to record satisfaction that there was a real and imminent possibility of his release on bail. The court held that it is impermissible to pass a detention order while the detenu is in custody unless the detaining authority records such satisfaction. Since the order lacked this essential requirement, the detention order was quashed and set aside. The court allowed the writ petition and directed the petitioner's release unless required in any other case.
Headnote
A) Preventive Detention - Custody - Subjective Satisfaction - Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 - Detenu already in custody - Detaining authority must record satisfaction that there is imminent possibility of release on bail - Failure to do so vitiates detention order - Held that the detention order is invalid and set aside (Paras 2-4).
Issue of Consideration
Whether the detention order under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 is valid when the detenu was already in custody and the detaining authority failed to record satisfaction that there was a real possibility of his release on bail.
Final Decision
The writ petition is allowed. The order of detention dated 26.09.2015 passed by the Commissioner of Police, Pune City is quashed and set aside. The petitioner be released forthwith unless required in any other case.
Law Points
- Preventive detention
- custody
- subjective satisfaction
- imminent release on bail
- MPDA Act
Case Details
2016 LawText (BOM) (04) 4
CRIMINAL WRIT PETITION NO.27 OF 2016
Mr.U.N.Tripathi (holding for Shri R.D.Sanap) for petitioner; Mr.S.J.Salgare, A.P.P. for respondents
Mujammil @ Murgya Sabbir Mokashi
The Commissioner of Police, Pune City; The State of Maharashtra; The Superintendent, Aurangabad Central Prison
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Nature of Litigation
Criminal writ petition challenging preventive detention order under MPDA Act
Remedy Sought
Quashing of detention order and release of petitioner
Filing Reason
Petitioner was already in custody when detention order was passed; detaining authority failed to record satisfaction of imminent release on bail
Previous Decisions
Detention order dated 26.09.2015 by Commissioner of Police, Pune City; representation rejected on 05.11.2015
Issues
Whether the detention order is valid when the detenu was already in custody and the detaining authority did not record satisfaction of imminent release on bail
Submissions/Arguments
Petitioner argued that he was already in custody since 12.09.2015 and the detaining authority failed to consider this fact and did not record satisfaction that there was a real possibility of his release on bail.
Respondents opposed the petition, but the judgment does not detail their arguments.
Ratio Decidendi
A preventive detention order cannot be passed while the detenu is already in custody unless the detaining authority records its satisfaction that there is a real and imminent possibility of the detenu being released on bail and that such release would lead to activities prejudicial to public order. Failure to record such satisfaction vitiates the detention order.
Judgment Excerpts
The petitioner is assailing order of detention issued by the Commissioner of Police, Pune City on 26.09.2015 under the provisions of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981.
According to the petitioner, there is absence of consideration by the authority of the fact that the detenu is already in custody while issuance of order of detention and that no satisfaction of the detaining authority is recorded to the effect that there is imminent and real possibility of detenu's release on bail.
Procedural History
The petitioner was detained on 26.09.2015 under MPDA Act. He made a representation which was rejected on 05.11.2015. He then filed Criminal Writ Petition No.27 of 2016 before the Bombay High Court (Aurangabad Bench). The petition was heard on 05.04.2016 and judgment pronounced on 21.04.2016.
Acts & Sections
- Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981:
- Indian Penal Code: 386, 387, 452
