Case Note & Summary
The petitioner, Ganesh Subhash Masurkar, challenged a preventive detention order dated 06.11.2017 issued by the Commissioner of Police, Pune, under the Maharashtra Prevention of Dangerous Activities Act, 1981 (MPDA Act). The detention was based on one criminal case (C.R. No. 124 of 2017) and three incamera witness statements, with the authority recording satisfaction that the petitioner was a 'dangerous person' acting prejudicially to public order. At the time of the detention order, the petitioner was in judicial custody in connection with C.R. No. 124 of 2017, having been arrested on 09.06.2017, and his bail application was rejected by the Sessions Court on 12.09.2017. The detaining authority, in the grounds of detention, acknowledged the custody and the bail rejection but stated that the petitioner could apply for bail in a higher court or before the same court if circumstances changed, and that there was a likelihood of bail because the offence was not compulsorily punishable with death and the charge-sheet had been filed. The petitioner argued that this showed non-application of mind as there was no cogent material to indicate an imminent or real possibility of release on bail, particularly when the Sessions Court had already rejected bail. The respondents contended that the detaining authority had shown awareness of the custody and recorded a compelling necessity, relying on Senthamilselvi v. State of T.N. The Bombay High Court examined the admitted facts and the detaining authority's reasoning. The court observed that the satisfaction recorded by the detaining authority was based on a mere ipse dixit and not on any cogent material. The court stated: 'We do not see how when such punishments are awarded or severe punishments are not awarded, necessarily every criminal as of right is entitled to bail.' The court found that the detaining authority failed to demonstrate a real possibility of the detenu being released on bail, thereby vitiating the detention order due to non-application of mind. The judgment text as provided does not include the final operative order, but the court’s analysis clearly holds the detention order illegal and liable to be quashed.
Headnote
A) Preventive Detention - Detention of Person in Custody - Requirement of Cogent Material for Subjective Satisfaction of Likelihood of Bail - Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black-Marketing of Essential Commodities Act, 1981, Sections 2(b1) and 3(1) - The detenu was in magisterial custody with his bail application rejected by the Sessions Court. The detaining authority, while recording subjective satisfaction, stated that the detenu could apply for bail in a higher court or before the same court if circumstances changed and that there was a likelihood of bail because the offence was not compulsorily punishable with death. The court held that this reasoning did not constitute cogent material and was a mere ipse dixit; there was no real or imminent possibility of release on bail, thereby exhibiting non-application of mind and rendering the detention order illegal (Paras 6-8).
Issue of Consideration
Whether the detention order dated 06.11.2017 passed under the Maharashtra Prevention of Dangerous Activities Act, 1981 is illegal due to non-application of mind by the detaining authority, particularly when the detenu was already in judicial custody and his bail application had been rejected?
Law Points
- Preventive detention
- subjective satisfaction
- compelling necessity
- detention during custody
- likelihood of bail
- non-application of mind
- dangerous person
- MPDA Act
- Article 226
Case Details
2018 LawText (BOM) (05) 39
Criminal Writ Petition No. 1543 of 2018
S.C. Dharmadhikari, Prakash D. Naik
Udaynath N. Tripathi, J.P. Yagnik
1. The Commissioner of Police, Pune; 2. The State of Maharashtra (Through Addl. Chief Secretary to Government of Maharashtra, Mantralaya, Home Department, Mantralaya, Mumbai); 3. The Superintendent, Kolhapur Central Prison, Kalamba, Kolhapur; 4. The Secretary, Advisory Board for M.P.D.A. Activities, C/o. Home Department, Mantralaya, Mumbai – 400 032.
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging a preventive detention order issued under the MPDA Act.
Remedy Sought
Petitioner-detenu seeks quashing of the detention order dated 06.11.2017.
Filing Reason
Alleged non-application of mind by the detaining authority in concluding that there was a likelihood of the detenu being released on bail despite being in custody and having his bail application rejected.
Previous Decisions
The bail application in C.R. No. 124 of 2017 was rejected by the Sessions Court, Pune on 12.09.2017. No previous legal challenge to the detention order mentioned in the text.
Issues
Whether the detention order dated 06.11.2017 passed under the MPDA Act is illegal due to non-application of mind by the detaining authority, especially when the detenu was already in judicial custody and his bail application had been rejected.
Submissions/Arguments
Petitioner argued that there was no cogent material before the detaining authority to conclude that the petitioner would be released on bail in the near future, particularly noting the Sessions Court's observations while rejecting bail; the conclusion was an ipse dixit and showed non-application of mind.
Respondents argued that the detaining authority had recorded valid subjective satisfaction, was aware of the custody, and expressed compelling necessity because the detenu could apply for bail in a higher court or before the same court if circumstances changed, and the offence was not compulsorily punishable with death.
Ratio Decidendi
Where a detenu is already in custody and his bail application has been rejected, the detaining authority must have cogent material to arrive at a subjective satisfaction that there is a real and imminent possibility of the detenu being released on bail. A mere ipse dixit or bald statement that the detenu may apply for bail in a higher court or before the same court if circumstances change, without any material indicating such likelihood, vitiates the detention order on grounds of non-application of mind.
Judgment Excerpts
We do not see how when such punishments are awarded or severe punishments are not awarded, necessarily every criminal as of right is entitled to bail.
the detaining authority has stated that he can apply for bail in higher Court or before the same Court, if the circumstances are changed. It is also stated that there is likelihood of the detenu getting bail as the offence is not compulsorily punishable with death sentence and now the charge sheet has been filed in the Court.
Procedural History
Petitioner was arrested on 09.06.2017 in C.R. No. 124 of 2017, produced before court on 10.06.2017, remanded to custody, charge-sheet filed on 21.07.2017. Bail application filed on 10.08.2017 and rejected by Sessions Court, Pune on 12.09.2017. Detention order issued on 06.11.2017 under MPDA Act. Petitioner filed Criminal Writ Petition No. 1543 of 2018 before Bombay High Court under Article 226, heard on 04.05.2018.
Acts & Sections
- Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black-Marketing of Essential Commodities Act, 1981: 2(b1), 3(1)
- Indian Penal Code, 1860: 307, 336, 323, 504, 506(2), 34
- Arms Act, 1959: 4, 25
- Maharashtra Police Act, 1951: 37(1), 135
- Constitution of India: Article 226
