Hrishi @ Sarjerao Baban Takele v. The District Magistrate And ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.388 OF 2017 Hrishi @ Sarjerao Baban Takele ......Petitioner V/s.

The District Magistrate, Sangli & Ors.

.......Respondents Mr. Udaynath Tripathi, Advocate for Petitioner. Ms. M.H.Mhatre , APP for Respondent-State.

CORAM :

CORAM : SMT. V.K. TAHILRAMANI, & SMT. V.K. TAHILRAMANI, & SANDEEP K. SHINDE, JJ.

SANDEEP K. SHINDE, JJ.

DATE :

DATE :

14th th June, 2017.

June, 2017.

ORAL JUDGMENT (Per Smt. V.K.Tahilramani, J.) : ORAL JUDGMENT (Per Smt. V.K.Tahilramani, J.) : Heard both sides.

Heard both sides.

The Petitioner/Detenu Hrishi @ Sarjerao Baban The Petitioner/Detenu Hrishi @ Sarjerao Baban Takele has preferred this Petition questioning the Takele has preferred this Petition questioning the preventive detention order passed against him on preventive detention order passed against him on 27.12.2016 by the Respondent No.1-District Magistrate, 27.12.2016 by the Respondent No.1-District Magistrate, Sangli. The said detention order has been passed under the Sangli. The said detention order has been passed under the the Maharashtra Prevention the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drugoffenders, Dangerous persons

* 2/7 * 905-WP-388-2017.doc and Video Pirates act, 1981. (hereinafter referred to as (hereinafter referred to as 'MPDA Act'

MPDA Act'). The said detention order has been issued as ). The said detention order has been issued as the Detenu is a Dangerous person whose activities are the Detenu is a Dangerous person whose activities are prejudicial to the maintenance of public order. The prejudicial to the maintenance of public order. The detention order is based on one C.R i.e. C.R.No.36 of 2016 detention order is based on one C.R i.e. C.R.No.36 of 2016 of Bhilwadi Police Station, Sangli and two in-camera of Bhilwadi Police Station, Sangli and two in-camera statements of Witnesses 'A' and 'B'.

statements of Witnesses 'A' and 'B'.

Though a number of grounds have been raised Though a number of grounds have been raised in the present petition whereby the detention order has in the present petition whereby the detention order has been assailed, however, the learned counsel appearing for been assailed, however, the learned counsel appearing for the Petitioner/Detenu has pressed only two grounds before the Petitioner/Detenu has pressed only two grounds before us, i.e. ground nos.5(d) and 5(i). In ground 5(d), it is stated us, i.e. ground nos.5(d) and 5(i). In ground 5(d), it is stated that in C.R.No.36 of 2016, the Detenu was granted bail by that in C.R.No.

36 of 2016, the Detenu was granted bail by the Court and he was free person, however, the bail the Court and he was free person, however, the bail application and the bail order, which are vital documents application and the bail order, which are vital documents were not placed before the Detaining Authority nor copies were not placed before the Detaining Authority nor copies thereof were furnished to the Detenu. In such a case, thereof were furnished to the Detenu. In such a case, subjective satisfaction of the Detaining Authority is vitiated subjective satisfaction of the Detaining Authority is vitiated and the detenu is deprived of making an effective and the detenu is deprived of making an effective representation against the order of detention. Hence, the representation against the order of detention.

* 3/7 * 905-WP-388-2017.doc detention order is liable to be quashed and set aside. detention order is liable to be quashed and set aside. Ground 5(d) has been replied to by the Ground 5(d) has been replied to by the Detaining Authority in paragraph 11 of his reply. On perusal Detaining Authority in paragraph 11 of his reply. On perusal thereof, it is seen that the Detaining Authority has not thereof, it is seen that the Detaining Authority has not denied that the bail application was placed before him. The denied that the bail application was placed before him.

The Detaining Authority has stated that copy of the order Detaining Authority has stated that copy of the order whereby application of the Detenu for anticipatory bail whereby application of the Detenu for anticipatory bail came to be granted was placed before him which is at Page came to be granted was placed before him which is at Page 58 of the compilation furnished to the Detenu. On the basis 58 of the compilation furnished to the Detenu. On the basis thereof, he was aware that the Detenu was on bail. thereof, he was aware that the Detenu was on bail. Mr. Tripathi pointed out that Page 58 is only Mr. Tripathi pointed out that Page 58 is only operative part of the order of the Sessions Court granting operative part of the order of the Sessions Court granting anticipatory bail to the Detenu.

The entire order was not anticipatory bail to the Detenu. The entire order was not placed before the Detaining placed before the Detaining Authority. The order runs into Authority. The order runs into six pages and it contains detailed reasons as to why six pages and it contains detailed reasons as to why anticipatory bail was granted to the Detenu. Admittedly, anticipatory bail was granted to the Detenu. Admittedly, entire order running into six pages was not placed before entire order running into six pages was not placed before the Detaining Authority and the copy thereof was not the Detaining Authority and the copy thereof was not furnished to the Detenu.

furnished to the Detenu.

* 4/7 * 905-WP-388-2017.doc Mr. Tripathi also raised ground ( i ) in relation to Mr. Tripathi also raised ground ( i ) in relation to the detenu being in custody. In this ground, it is stated that the detenu being in custody. In this ground, it is stated that the Detaining Authority has relied on C.R.No.36 of 2016 to the Detaining Authority has relied on C.R.No.36 of 2016 to issue the detention order, which is clear from the grounds issue the detention order, which is clear from the grounds of detention, however, no awareness is shown in the of detention, however, no awareness is shown in the grounds of detention as to whether the Detenu was on bail grounds of detention as to whether the Detenu was on bail or not in the said case. It was stated that the Detaining or not in the said case.

It was stated that the Detaining Authority should have shown its awareness in relation to Authority should have shown its awareness in relation to whether the Detenu was in custody or not in the grounds of whether the Detenu was in custody or not in the grounds of detention and not showing such awareness would vitiate detention and not showing such awareness would vitiate the detention order.

the detention order.

In relation to ground (d) and ( i ) Mr. Tripathi is In relation to ground (d) and ( i ) Mr. Tripathi is relying on the decision of the Supreme Court in the case of relying on the decision of the Supreme Court in the case of Rushikesh Tanaji Bhoite v. State of Maharashtra & Rushikesh Tanaji Bhoite v. State of Maharashtra & Ors.

Ors. reported in reported in 2012 Cri.L.J.1334 2012 Cri.L.J.1334. Mr. Tripathi placed . Mr. Tripathi placed reliance on paragraphs 8,9 and 10 of the said decision. Mr. reliance on paragraphs 8,9 and 10 of the said decision. Mr. Tripathi pointed out that in paragraph 8, it is observed as Tripathi pointed out that in paragraph 8, it is observed as under:

under:

"8..............However, the detention order or the "8..............However, the detention order or the grounds supplied to the Detenu do not show that grounds supplied to the Detenu do not show that the detaining authority was aware of the bail order the detaining authority was aware of the bail order granted in favour of the Detenu on August granted in favour of the Detenu on August

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15,2010."

Mr. Tripathi pointed out that in the present case Mr. Tripathi pointed out that in the present case also, the detention order or grounds of detention do not also, the detention order or grounds of detention do not show any awareness of the detaining authority whether the show any awareness of the detaining authority whether the detenu was in custody or was released on bail. detenu was in custody or was released on bail. Mr. Tripathi pointed out that in the case of Mr. Tripathi pointed out that in the case of Rushikesh Bhoite (Supra) Rushikesh Bhoite (Supra), in paragraphs 9 and 10 of the , in paragraphs 9 and 10 of the said decision, it is observed as under:

said decision, it is observed as under:

"9 In a case where Detenu is released on bail In a case where Detenu is released on bail and is enjoying his freedom under the order of the and is enjoying his freedom under the order of the court at the time of passing the order of detention, court at the time of passing the order of detention, then such order of bail, in our opinion, must then such order of bail, in our opinion, must be placed before the detaining authority to be placed before the detaining authority to enable him to reach at the proper enable him to reach at the proper satisfaction.

satisfaction.

In the present case, since the order of bail In the present case, since the order of bail dated August 15, 2010 was neither placed before dated August 15, 2010 was neither placed before the detaining authority at the time of passing the the detaining authority at the time of passing the order of detention nor the detaining authority was order of detention nor the detaining authority was aware of the order of bail, in our view, the aware of the order of bail, in our view, the detention order is rendered invalid. We cannot detention order is rendered invalid. We cannot attempt to assess in what manner and to what attempt to assess in what manner and to what extent consideration of the order granting bail to extent consideration of the order granting bail to the detenu would have effected the satisfaction of the detenu would have effected the satisfaction of the detaining authority but suffice it to say that the detaining authority but suffice it to say that non-placing and non-consideration of the non-placing and non-consideration of the

* 6/7 * 905-WP-388-2017.doc material as vital as the bail order has vitiated material as vital as the bail order has vitiated the subjective decision of the detaining the subjective decision of the detaining authority."

authority."

(Emphasis supplied) (Emphasis supplied) Mr. Tripathi pointed out that after making above Mr. Tripathi pointed out that after making above observations in paragraphs 8, 9 and 10 of the decision in the observations in paragraphs 8, 9 and 10 of the decision in the case of case of Rushikesh Bhoite (Supra), Rushikesh Bhoite (Supra), the Supreme Court the Supreme Court observed that the order of bail was neither placed before the observed that the order of bail was neither placed before the Detaining Authority at the time of passing the detention order Detaining Authority at the time of passing the detention order nor the Detaining Authority was aware of the order of bail. nor the Detaining Authority was aware of the order of bail. Hence, detention order is rendered invalid. It was further Hence, detention order is rendered invalid.

It was further observed that non-placing and non-consideration of the observed that non-placing and non-consideration of the material as vital as the bail order has vitiated the subjective material as vital as the bail order has vitiated the subjective satisfaction of the Detaining Authority. In the present case also, satisfaction of the Detaining Authority. In the present case also, nowhere in the detention order or in the grounds of detention, nowhere in the detention order or in the grounds of detention, the Detaining Authority has shown its awareness that bail was the Detaining Authority has shown its awareness that bail was granted to the Detenu in C.R.No.36 of 2016. It is also an granted to the Detenu in C.R.No.36 of 2016.

It is also an admitted fact that detailed order granting anticipatory bail to admitted fact that detailed order granting anticipatory bail to the Detenu running into six pages was not placed before the the Detenu running into six pages was not placed before the Detaining Authority nor a copy thereof was furnished to the Detaining Authority nor a copy thereof was furnished to the Detenu.

Detenu.

* 7/7 * 905-WP-388-2017.doc In this view of the matter, the decision in the case of In this view of the matter, the decision in the case of Rushikesh Bhoite (Supra) Rushikesh Bhoite (Supra) would squarely apply to the would squarely apply to the present case, hence, we have no option but to set aside the present case, hence, we have no option but to set aside the order of detention. Accordingly, the detention order is quashed order of detention. Accordingly, the detention order is quashed and set aside. The Detenu be set at liberty, if not wanted in any and set aside. The Detenu be set at liberty, if not wanted in any other case. Rule is made absolute in the above terms. other case. Rule is made absolute in the above terms. (SANDEEP K. SHINDE, J) (SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J) (SMT. V.K. TAHILRAMANI, J)