2001 ALL MR (Cri) 269


Smt. Maimuna Iqbal Kasam Pathan Vs. Shri. R. H. Mendonca & Ors.

Cri. Writ Petn. No. 1327 of 2000

8th January, 2001

Petitioner Counsel: Mr. U. N. TRIPATHI
Respondent Counsel: Mrs. V. K. TAHILRAMANI

Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act (1981), S.3 - Subjective satisfaction of detaining authority - Detention order passed when detenu was on bail - He was subsequently rearrested and order of detention was served on him while he was in custody - Grounds of detention not disclosing awareness of fact that detenu was in custody, on the contrary he was supposed to be on bail and likely to revert to prejudicial activities - Held there was non-application of mind vitiating order of detention - Order quashed. (Paras 5, 6)

Cases Cited:
Binod Singh Vs. District Magistrate, Dhanbad, Bihar, AIR 1986 SC 2090 [Para 4]


Vishnu Sahai, J.:- Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner who describes herself as the wife of the detenu - Iqbal Kasam Pathan has impugned the detention order dated 30-12-1999 passed by the First Respondent Mr. R. H. Mendonca, Commissioner of Police, Greater Bombay detaining the detenu under sub - section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) (Amendment 1996). (Hereinafter referred to as the MPDA Act).

The detention order along with the grounds of detention which are also dated 30-12-1999 was served on the detenu on 1-9-2000 and their true copies have been annexed as Annexures A and B respectively to this writ petition.

2. A perusal of the grounds of detention would show that the impugned detention order is founded on one C. R. namely C. R. No. 70 of 1999 under section 392, 394, 34 IPC registered at Agripada police station on the basis of a complaint dated 31-3-1999 filed at the said police station by Vasant Kumar Jain and two in-camera statements namely of witness A recorded on 15-10-1999 and of witness B recorded on 16-10-1999.

Since in our view, the details relating to the said C. R. and the in - camera statements are not relevant to the disposal of this writ petition, we are not adverting to them.

3. We have heard learned counsel for the parties. Although in this petition, Mr. Tripathi learned counsel for the petitioner has pleaded a large number of grounds, numbered as ground no. 8(A) to 8(K) in the petition but, since in our view, this petition deserves to succeed on a solitary ground namely that pleaded as ground no. 8(C) we are not referring to the other grounds of challenge raised in the petition.

Ground no. 8(C) in short is that the impugned detention order came to be passed on 30-12-1999 while the detenu was on bail in C. R. No. 70/1999 which was granted to him on 8-9-1999 and which was availed by him on 24-9-1999. In the said ground, it has been averred that subsequently on 9-6-2000, the detenu was arrested by the Byculla Police Station and when the detention order was served on him on 1-9-2000, he was in custody and the detaining authority in the grounds of detention has shown no awareness of this fact and consequently, the impugned detention order is vitiated on the vice of non application of mind.

Ground no. 8(C) has been replied by Mr. M. N. Singh, Commissioner of Police, Brihan Mumbai in para 11 of his affidavit. A perusal of the said para makes it manifest that the detaining authority has not shown any awareness of the fact that at the time of the execution of the detention order, the detenu was in custody.

4. The Supreme Court in the oft - quoted case of Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Ors. reported in AIR 1986 Supreme Court page 2090 in para 7 has held that where the detenu is in custody at the time of the service of the detention order, awareness of this fact should be reflected. It has also been averred in the said para that the possibility of his being released should also be reflected.

5. From a perusal of ground no. 8(C) of the petition and para 11 of the return of Mr. M. N. Singh, wherein the said ground has been replied, it is manifest that although the detenu was in custody, no such awareness has been shown. As a matter of fact, para 6 of the grounds of detention shows that the detaining authority was aware of the fact that the detenu was on bail and was likely to revert to similar prejudicial activities and consequently his detention under section 3(a) of the MPDA Act was imperative.

6. In the above circumstances, we find merit in the submission of the learned counsel for the petitioner that the impugned detention order is vitiated by the vice of non-application of mind.

7. In the circumstances, we allow this writ petition; quash and set aside the impugned detention order ; direct that the detenu - Iqbal Kasam Pathan be released forthwith if not wanted in some other case ; and make the rule absolute.

Petition allowed.