Case Note & Summary
The petitioner, Sagar Prakash Bhosale, challenged a preventive detention order dated 1 June 2015 passed by the Commissioner of Police, Solapur, under Section 3(1) 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 a single criminal case, C.R. No. 350 of 2014 under Section 392 read with Section 34 IPC, and two incamera statements. At the time the detention order was passed, the detenu was already lodged in judicial custody in connection with that same criminal case. The detention order was served on him in jail. The petitioner raised several grounds, but only ground (c) was pressed, which contended that the detaining authority failed to consider that the detenu was already in custody and did not record a satisfaction that there was a compelling necessity to detain him preventively despite his incarceration. The court examined the settled legal position that a preventive detention order can be passed against a person already in custody only if the detaining authority is aware of the custody and is satisfied on cogent material that there is an imminent possibility of the person being released on bail and that such release would lead to activities prejudicial to public order. In the present case, the grounds of detention did not indicate any such satisfaction or consideration of the possibility of bail. The court held that the failure to consider the less drastic remedy of opposing bail or seeking cancellation of bail vitiated the subjective satisfaction of the detaining authority. Consequently, the detention order was quashed and set aside, and the detenu was directed to be released forthwith unless required in any other case.
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 (MPDA Act), Section 3(1) - Detenu was already in judicial custody in connection with the same C.R. No. 350 of 2014 under Section 392 read with Section 34 IPC - Detaining authority passed detention order without considering that detenu was in custody and without recording satisfaction that there was imminent possibility of his release on bail - Held that the detention order is invalid and liable to be quashed (Paras 1-3).
Issue of Consideration
Whether a preventive detention order under the MPDA Act can be sustained when the detenu was already in judicial custody at the time of the order and the detaining authority failed to consider the possibility of resorting to less drastic remedies such as cancellation of bail.
Final Decision
The court quashed and set aside the detention order dated 1.6.2015 and directed the respondents to release the detenu forthwith unless required in any other case.
Law Points
- Preventive detention order cannot be passed when detenu is already in custody unless there is compelling necessity and imminent possibility of release
- Failure to consider less drastic remedy vitiates detention order
- Subjective satisfaction of detaining authority must be based on cogent material
