Case Note & Summary
The petitioner, Shri Suraj Ram Gaikwad, challenged by writ petition under Article 226 of the Constitution the preventive detention order dated 8 February 2017 passed by the Commissioner of Police, Solapur under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Video Pirates, Sand Smugglers and Persons engaged in Blackmarketing of Essential Commodities Act, 1981. At the time of the detention order, the petitioner was in judicial custody in connection with C.R. No. 32 of 2017; his first bail application had been rejected on 24 January 2017 and a second was pending. The grounds of detention recorded that 'in future there is possibility of your bail' and referred to the court's power under Section 439 of the Code of Criminal Procedure, 1973. The petitioner contended that the detaining authority failed to record the subjective satisfaction required by the law laid down in Kamarunnissa v. Union of India, namely, that on the basis of reliable material there was an imminent or real possibility of the petitioner being released on bail. The state argued that the satisfaction could be recorded or supplemented by an affidavit of the detaining authority, and relied on G. Reddeiah, Omprakash Parshuram Rihal and Merugu Satyanarayana. The High Court, after examining the grounds of detention, found that the satisfaction recorded was merely of a 'possibility' and not of an imminent or real possibility. It held that the requirement under the preventive detention law is that the detaining authority must record in the grounds of detention a satisfaction that there is a real or imminent possibility of release on bail; a mere reference to a pending bail application or the court's power to grant bail does not satisfy this requirement. The Court further held that such satisfaction cannot be supplied subsequently by an affidavit. Consequently, the detention order was quashed.
Headnote
A) Preventive Detention - Subjective Satisfaction for Bail - Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Video Pirates, Sand Smugglers and Persons engaged in Blackmarketing of Essential Commodities Act, 1981, Section 3(2) - The detenu was in custody when the detention order was passed; the detaining authority only noted a 'possibility' of bail based on pending application and court's power, without recording that release on bail was imminent or a real possibility - Held that such satisfaction is legally insufficient and vitiates the detention order (Paras 4-5)
Issue of Consideration
Whether the preventive detention order is vitiated for want of proper subjective satisfaction by the detaining authority regarding the imminent possibility of release on bail when the detenu was already in custody
Final Decision
The High Court allowed the writ petition and quashed the impugned order of preventive detention dated 8th February 2017, holding that the subjective satisfaction regarding the release of the petitioner on bail was not properly recorded and could not be cured by a subsequent affidavit.
Law Points
- Subjective satisfaction requirement for preventive detention when detenu is in custody
- imminent possibility of release on bail must be recorded
- satisfaction cannot be supplemented by affidavit
Case Details
2017 LawText (BOM) (08) 94
Criminal Writ Petition No. 1252 of 2017
A.S. Oka, Riyaz I. Chagla
Shri Udaynath Tripathi for the Petitioner, Ms. M.H. Mhatre, APP for the Respondent/State
The Commissioner of Police, Solapur and Others
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition under Article 226 of the Constitution challenging the preventive detention order passed under Section 3(2) of the Maharashtra Prevention of Dangerous Activities Act, 1981
Remedy Sought
Quashing of the detention order dated 8 February 2017 passed by the Commissioner of Police, Solapur
Filing Reason
The petitioner contended that the detaining authority failed to record the proper subjective satisfaction regarding the imminent possibility of his release on bail, as required when the detenu is already in custody
Previous Decisions
The petitioner was in custody in C.R. No. 32 of 2017; his first bail application was rejected on 24 January 2017 and a second was pending; the detention order was passed during such custody
Issues
Whether the preventive detention order is vitiated for want of proper subjective satisfaction by the detaining authority that there was an imminent or real possibility of the petitioner being released on bail, given that he was already in custody at the time of the order
Submissions/Arguments
Petitioner: The detaining authority did not record satisfaction of imminent possibility of bail, merely stating a future possibility; such satisfaction must be recorded in the grounds of detention, not in an affidavit filed later.
Respondent: The subjective satisfaction can be recorded or supplemented by an affidavit of the detaining authority; the ground was not specifically urged; the satisfaction recorded was sufficient.
Ratio Decidendi
When a person is already in custody at the time of passing a preventive detention order, the detaining authority must record in the grounds of detention a satisfaction that there is a real or imminent possibility of the person being released on bail; a mere reference to the possibility of bail or the court's power to grant bail does not satisfy this requirement, and such satisfaction cannot be supplied later by an affidavit.
Judgment Excerpts
I am aware that, you are still under magisterial custody in connection with C.R., as mentioned in above Para No.51. Once you have applied for bail and Hon'ble Court rejected it. On 31/01/2017 you and your associates have once again applied for bail and same was pending on hearing. This shows that, you are trying to get bail. Now this offence is pending on investigation. There is a provision under section 439 of Cr.P .C. that Hon'ble High Court or Session Court may grant conditional bail for accused. Taking into consideration provision mentioned under section 439 of Cr.P .C., in future there is possibility of your bail, in connection with C.R. as mentioned in above para No.51 , in future if you get bail, you will become a free person and taking into consideration your propensity towards criminality as mentioned in above Para No.51, 52, 54 and 55 there is a possibility that you will likely to revert to the similar activities prejudicial to the maintenance of public order in future.
Thus, there is no satisfaction recorded after taking into consideration the material on record that the detaining authority that the release of the Petitioner on bail was imminent or that there was a real or distinct possibility of the Petitioner being released on bail. It is not sufficient to state that there is a second bail application filed and the Court has a power to grant bail.
Procedural History
The petitioner filed the writ petition challenging the detention order. The matter was heard on 16 August 2017 and subsequently, an affidavit was filed by the detaining authority on 16 August 2017. The petition was finally heard and decided on 22 August 2017.
Acts & Sections
- Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Video Pirates, Sand Smugglers and Persons engaged in Blackmarketing of Essential Commodities Act, 1981: Section 3(2)
- Code of Criminal Procedure, 1973: Section 439
