Criminal Writ Petition No.28 of 2018

14th March, 2018.

Petitioner Counsel: JAYSHREE TRIPATHI, Mr. U.N. TRIPATHI
Respondent Counsel: Ms.M.H. MHATRE

Cases Cited:
Veermani Vs. State of Tamil Nadu, (1994) 2 SCC 337 [Para 9,11,18,19,20,27]
Senthamilselvi Vs. State of Tamil Nadu, (2006) 5 SCC 676 [Para 9,21]
Aarif @ Yasir Ahmed Satlar Ahmed Vs. D. Divanandan and others, (2000) 6 BOM Cri. 558 [Para 9,23]
Rameshwar Shaw Vs. D.M. Burdwan, AIR1964 SC334 [Para 11,19]
Haradhan Shha Vs. State of West Bengal, (1975) 30 SCC 198 [Para 11]
Yumman a.l. Leima Vs. State of Manipur and others, 2012 ALL SCR 511=(2012) 1 SCALE [Para 11]
Rekha Vs. State of Tamil Nadu, (2011) 5 SCC 244 [Para 11,24,26]
N. Meera Rani Vs. Govt. of Tamil Nadu, 1989 Cri. L.J. 2190 [Para 11]
Dharmendra S. Chelawat Vs. Union of India and others, (1990) 1 SCC 746 [Para 11]
Huidrom Konungjo Singh Vs. State of Manipur and others, 2012 ALL SCR 1763=(2012) 7 SCC 181 [Para 11]
Champion R. Sangma Vs. State of Meghalaya, 2015 ALL MR (Cri) 3673 (S.C.) [Para 11]
Kamarunnisa Vs. Union of India, [Para 11]
G.Reddeiah Vs. Govt. of Andhra Pradesh, 2011 ALL SCR 2970=(2012) 2 SCC 389 [Para 11]
Union of India Vs. Paul Manickam, 2003 ALL MR (Cri) 2710 (S.C.)=(2003) 8 SCC 342 [Para 11]
Pebam Ningol Mikoi Devi Vs. State of Manipur and others, 2010 ALL MR (Cri) 3704 (S.C.)=(2010) 9 SCC 618 [Para 25]

JUDGMENT

S. C. Dharmadhikari, J. :- By this writ petition under Article 226 of the Constitution of India, the petitionerdetenu challenges the order of detention. The said order has been passed under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, DrugOffenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in BlackMarketing of Essential Commodities Act, 1981 ('MPDA Act' for brevity). The order of detention is dated 27th September 2017. It is issued u/s 3 of MPDA Act by first respondent. The respondent nos.2 to 4 are the State of Maharashtra through Department of Home, the Superintendent of Kolhapur Prison and the Secretary, Advisory Board for MPDA Act.

2. The petition proceeds on the footing that the petitioner is a citizen and national of India. He is ordinarily residing in Pune city, however, he is presently lodged in Kolhapur Central Prison. The petitioner says that the copy of grounds of detention are served upon him and he has annexed the same as ExhibitB. A copy of the index of compilation of documents is annexed to the petition as ExhibitC. ExhibitD collectively are the copies of statements of witnessA and witnessB stated to be recorded incamera. ExhibitI is the copy of representation dated 2nd January 2018 forwarded by the detenu to the State Government.

3. The detention order is challenged on several grounds. However, Mr.Tripathi, learned advocate for petitioner, would submit that in the first instance, the petitioner presses ground (b) of paragraph 6. That ground appears at pages 5 and 6 of the paper book and reads thus :

"6(b). The petitioner says and submits that on the day of detention i.e. 27.09.2017 the petitioner was already in judicial custody having not been granted bail by any competent Court in C.R. No.244 of 2017 and C.R.No.316 of 2017 since the petitioner has never applied for bail in both the cases. It is therefore not justified to record such a satisfaction that there is imminent possibility of getting bail in view of the fact that the petitioner has never applied for bail. The detaining authority apprehends that if the petitioner will apply for bail he may be granted bail normally in such cases because Courts grant bail. Such a satisfaction of imminent possibility is based on no cogent material the satisfaction recorded by the Detaining Authority is vague and erroneous. It is a mandatory requirement of recording such satisfaction to come to the conclusion and arrive at the satisfaction particularly when the order of detention is passed while the petitioner is in custody. The order of detention is in violation of one of the guidelines laid down by the Hon'ble Supreme Court. The order of detention is illegal and bad in law liable to be quashed and set aside."

Mr.Tripathi submits that in the event this Court is not inclined to set aside the order of detention on the above, then only he would press other grounds in the writ petition. However, he would submit that the petitioner is on very firm and sound ground as far as challenge to the detention order as reproduced above.

4. Mr.Tripathi in elaborating this ground of challenge would urge that the order of detention, in paragraph 2, recites that the petitionerdetenu is a weapon wielding dangerous desperado of violent character indulging in terrorizing activities. The nature of his criminal activities are set out in paragraph no.2. In paragraph 3, the list of offences and preventive actions taken against the petitioner is reproduced. Then it is stated in this very paragraph that the above offences, as registered against him from time to time, would denote his criminal activities and for which he has been arrested. However, that had no effect on him. On the contrary, the petitioner's illegal dangerous criminal activities are showing an ascending trend. The chart enlists several offences and preventive actions taken against the petitioner. The offences at serial numbers 1 to 6 are mentioned only to show his continuous criminal activities. Mr.Tripathi further submitted that the cases at serial numbers 7 and 8 of this chart have been considered for issuing detention order. The serial numbers 7 and 8 of the chart are appearing at page 14 of the paper book, which read thus :

Sr.No.	Police Station	CR No.	Sections of Law	Date and Time of registration	Date and time of arrest	Status
7	Warje Malawadi	244 of 2017	U/s.394, 395, 427, 323, 504, 506, 34 of IPC.	13-6-2017 at 22.14 hours	16-08-2017 16.45 hours	Court pending
8	Warje Malawadi	316 of 2017	U/s.504, 506(2)427 IPC r/w Sec.7(1) of criminal Law Amendment Act r/w Sec.4(25) of Arms Act r/w Sec.37(1) 135 of Maharashtra Police Act.	15-8-2017 at 23.53 hours	16-8-2017 at 00.05 hours.	Court pending

Mr.Tripathi would submit that the detention order itself recites in further paragraphs that insofar as seventh offence is concerned, registered at Warje-Malawadi Police Station viz CR No.244 of 2017 alleging offences punishable under Sections 394, 395, 427, 323, 504, 506, 34 of IPC, the petitioner is alleged to have assaulted the complainant's worker at about 16.45 hours on 13th June 2017. Thereafter the petitioner and his accomplice came to the shop and demanded money. One worker Karim denied allegedly to give money, which angered the accomplice and who started abusing him. They beat him by hands and at the same time the petitionerdetenu is alleged to have picked up a brick from the road and threw it on the shop and forcibly robbed Rs.12,000/-from the cash tray. Thereafter the accomplice threw the egg trays outside the counter causing loss of Rs.5,000/-. Then they entered into the neighbouring shop and assaulted the worker namely Ramkaran Laltaprasad Yadav by chair, by which he suffered injuries to his head, hands and legs. This offence was registered based on the complaint of one Subhash Kisan Taru. The complainant carries on business in the name and style as Rahul Chicken Centre.

5. Mr.Tripathi submits that the detention order recites as to how after investigation the petitioner was arrested on 16th August 2017, produced before the Court of Judicial Magistrate, First Class, Court No.3 Pune on 17th August 2017, who remanded him to police custody till 20th August 2017. On being produced again on 20th August 2017, the petitioner was remanded to magisterial custody till 1st September 2017. After completion of investigation the charge sheet is laid in the Court of Judicial Magistrate, First Class, Court No.3, Pune on 8th September 2017. That case is pending. The petitioner did not apply for bail and, therefore, is in magisterial custody lodged at Yerwada Jail, Pune.

6. The eighth offence, according to Mr.Tripathi, is referable to paragraph 4.2 of the detention order, running page 17 of the petition paper book. There, the complainant is a Police Constable. CR No.316 of 2017 was registered after this incident by very same police station and it is common ground that the petitioner was arrested in connection with this CR on 16th August 2017. He was produced before the learned Judicial Magistrate, First Class, Court No.3, Pune and came to be remanded to magisterial custody till 29th August 2017. The charge sheet was filed in this case as well on 15th September 2017. The case is pending. The petitioner did not seek bail and he was and is still in magisterial custody of Yerwada Jail, Pune.

7. The argument of Mr.Tripathi is that if the detenu was already in custody and he did not apply for bail, then, the subjective satisfaction, as recorded, is wholly vitiated. The subjective satisfaction must reflect compliance with twin requirements of law. If the petitioner-detenu has not sought bail, but he still can be detained under MPDA Act, then, there should be materials which would indicate his imminent possibility of being enlarged on bail in future and real apprehension of continuation of his activities, so as to endanger the public order. In the present case, there is no material to indicate that there is possibility of the detenu being released from custody. In other words, there is no imminent possibility of he being enlarged on bail. Mr.Tripathi would submit that if this order of detention is made on 27th September 2017 and in connection with both cases the detenu continues to be in custody from August-2017, then, bearing in mind the object and purpose of MPDA Act and more particularly Section 3(1) of MPDA Act, the order of detention could not have been made. The necessity to detain ought to be viewed in the backdrop of subsection(1) of Section 3 of MPDA Act. The satisfaction should be that it is necessary to prevent a person from acting in any manner prejudicial to the maintenance of public order and it is necessary so to do, that the person should be detained. This element can never be said to be satisfied given the detenu's detention in custody. If there is no possibility of his release, then, there is no continuity attached to his activities. Hence, there is no necessity of his detention. That is how the detention order is vitiated and must be set aside.

8. Mr.Tripathi also brings to our notice two in-camera statements. The first in-camera statement refers to an incident of 27th July 2017 and the second refers to an incident of 11th June 2017. However, these incamera statements are stated to have been recorded on the own showing of the respondents much latter. The statements were recorded on 28th July 2017 and 12th August 2017. Mr.Tripathi would submit that the incidents under which the detenu was booked, arrested and continues to be in custody, are of 13th June 2017 and 15/16th August 2017. After this date and when the detention order was made, the detenu remained in custody. If the detenu continued in custody in relation to two Crs, then, based on two incamera statements, the subjective satisfaction could not have been arrived at. If the preventive detention is based on incamera statements alone, the subjective satisfaction could have been reached with regards to the necessity of his detention. However, the incidents pursuant to which the incamera statements are recorded are of 13th June 2017 and 27th July 2017. Thus, the subjective satisfaction is based on all the incidents but unmindful of the fact that the petitioner is already in custody in the two crimes. Thus, by continuing in custody the detenu till 27th September 2017, on which date the detention order is made, there was no question of petitioner-detenu carrying on the alleged criminal activities and referable to two in-camera statements. If this is how the subjective satisfaction is reached, it is clearly vitiated.

9. On the other hand, learned Assistant Public Prosecutor Ms.Mhatre submits that the detention order cannot be questioned and set aside on the above ground. She submits that there is no merit in the petition because it is not the law that if a detenu is in custody, no detention order can be passed. If the law permits passing of a detention order while the detenu is in custody, then, it is immaterial whether he has applied for bail or availed of it. If the detention order can be passed against a detenu who is in custody on the satisfaction as is recorded, then, there is no merit in the petition. She submits that Mr.Tripathi's argument presupposes that no detention order can be passed against a detenu because he is in custody and did not apply for bail at all. She submits that the law is otherwise. She would submit that at least in three decisions in the case of Veermani Vs. State of Tamil Nadu, (1994)2-SCC-337 and Senthamilselvi Vs. State of Tamil Nadu, (2006)5-SCC-676, the Hon'ble Supreme Court of India has held that even if the detenu did not apply for bail, that is immaterial and irrelevant for reaching the subjective satisfaction and it can still be reached when the detenu is required to be detained under laws like MPDA Act. She also relies upon the judgment of a Division Bench of this Court in case of Aarif @ Yasir Ahmed Satlar Ahmed Vs. D.Divanandan and others, (2000)6-BOM Cri.-558.

10. Ms.Mhatre, learned APP, would submit that there were cogent materials pointing towards a real possibility of the detenupetitioner being enlarged on bail in two criminal cases. The moment he would be enlarged, he will revert back to his criminal activities noted in the detention order and there is thus an apprehension, which is real and genuine, that his criminal activities would continue and may pose threat to the maintenance of public order. Therefore, this Court should not interfere in its extraordinary jurisdiction under Article 226 of the Constitution of India with the detention order.

11. As against this argument of Ms.Mhatre, Mr.Tripathi would submit that given the fact that the detenu was in custody for more than a month, and on the date of issuance of the preventive detention order, there was never any possibility of he being enlarged on bail. Secondly, once he was not enlarged on bail but was in custody for more than a month and in relation to two serious crimes, then, it is pure guess work on the part of the detaining authority that the detenu would be enlarged on bail in future. There are absolutely no materials which would indicate that there is a possibility of the detenu being enlarged on bail. The materials have to be clear, cogent and satisfactory. A general statement would not suffice. In such circumstances, Mr.Tripathi relied upon following decisions :

1	Rameshwar Shaw Vs. D.M.Burdwan, AIR 1964 SC 334	Constitution Bench
2	Haradhan Shha Vs. State of West Bengal, (1975) 30 SCC 198	-”-
3	Yumman a.l. Leima Vs. State of Manipur and others (2012) 1 SCALE : [2012 ALL SCR 511]	Three Judges Bench
4	Rekha Vs. State of Tamil Nadu, (2011) 5 SCC 244	-”-
5	N.Meera Rani Vs. Govt. of Tamil Nadu, 1989 Cri. L.J.2190	-”-
6	Dharmendra S. Chelawat Vs. Union of India and others, (1990) 1 SCC746	-”-
7	Huidrom Konungjo Singh Vs. State of Manipur and others, (2012) 7 SCC 181 : [2012 ALL SCR 1763]	Two Judges Bench
8	Champion R. Sangma Vs. State of Meghalaya, 2015 ALL MR (Cri) 3673 (S.C.)	-”-
9	Kamarunnisa Vs. Union of India	-”-
10	G. Reddeiah Vs. Govt. of Andhra Pradesh, (2012) 2 SCC 389 : [2011 ALL SCR 2970]	-”-
11	Union of India Vs. Paul Manickam, (2003) 8 SCC 342 : [2003 ALL MR (Cri) 2710 (S.C.)]	-”-

Mr. Tripathi urges that a few of these judgments are rendered by three Judge Bench of Hon'ble Supreme Court, in all these judgments it has been held that once the detenu has not applied for bail, then, the order of detention cannot be made lightly and casually. That is a very vital and crucial factor. That crucial factor having been ignored in this case, we must proceed to quash and set aside the detention order. He was at pains to point out that law of precedents would demand that if two three-Judge Bench judgments, firstly in case of N. Meera Rani Vs. Govt. of Tamil Nadu (supra) and in case of Dharmendra S. Chelawat Vs. Union of India and others (supra) have been rendered prior to Veermani Vs. State of Tamil Nadu (supra), and the judgment in Veermani Vs. State of Tamil Nadu does not notice them, then, the judgment in Veermani Vs. State of Tamil Nadu renders itself per incurim. This is also evident, according to Mr.Tripathi, from the latest three Judge Bench judgment rendered in the case of Yumman a. l. Leima Vs. State of Manipur and others : [2012 ALL SCR 511] (supra) decided on 4 th January 2012 in Criminal Application No.26 of 2012.

12. For properly appreciating the contentions, we will have to refer the object and purpose of MPDA Act. The MPDA Act has been enacted to provide for preventive detention of Slumlords, Bootleggers, Drugoffenders, Dangerous persons, Video Pirates, Sand Smugglers and Persons engaged in Blackmarketing of Essential Commodities, for preventing their dangerous activities prejudicial to the maintenance of public order. It was a known fact that public order was adversely affected every now and then by the dangerous activities of certain persons. Having regard to the resources and influence of the persons by whom the large scale on which and the manner in which the dangerous activities were being clandestinely organized and carried on in violation of law by them, particularly in urban areas, the State was satisfied that circumstances existed which rendered it necessary for it to take immediate action to have a special law in the State to provide for preventive detention of Slumlords, Bootleggers and Drugoffenders and for matters connected therewith.

13. Section 2 of MPDA Act contains definitions. The term "acting in any manner prejudicial to the maintenance of public order" is a phrase and expression defined under subsection (a) of Section 2. The definition is as under :

"S.2(a) "acting in any manner prejudicial to the maintenance of public order" means

(i) in the case of a slumlord, when he is engaged, or is making preparations for engaging, in any of his activities as a slumlord, which affect adversely, or are likely to affect adversely, the maintenance of public order;

(ii) in the case of bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order;

(iii) in the case of a drug offenders,when he is engaged, or is making preparations for engaging, in any of his activities as a drugoffender,which affect adversely, or are likely to affect adversely, the maintenance of public order;

(iv) in the case of a dangerous person, when he is engaged, or is making preparations for engaging, in any of his activities as a dangerous person, which affect adversely, or are likely to affect adversely, the maintenance of public order;

(iv-a) in the case of a sand smuggler, when he is engaged, or is making preparations for engaging, in any of his activities as a sand smuggler, which affect adversely, or are likely to affect adversely, the maintenance of public order;

(iv-b) in the case of a person engaged in black-marketing of essential commodities, when he is engaged, or is making preparations for engaging, in any of his activities as a person engaged in black-marketing of essential commodities, which affect adversely, or are likely to affect adversely, the maintenance of public order;

(v) in the case of video pirate, when he is engaged, or is making preparations for engaging, in any of his activities as a video pirates, which affect adversely, or are likely to affect adversely, the maintenance of public order.

Explanation.For the purpose of this clause (a), public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely, inter alia if any of the activities of any of the persons referred to in this clause, directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health or disturbance in public safety and tranquility or disturbs the day to day life of the community by black-marketing in the essential commodities which is resulting in the artificial scarcity in the supply of such commodities and rises in the prices of essential commodities which ultimately causes inflation or disturbs the life of the community by producing and distributing pirated copies of music or film products, thereby resulting in a loss of confidence in administrations.

Clause (b1) of Section 2 defines the term "Dangerous Persons" to mean a person, who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959.

14. The preventive detention order can be made in terms of sub-section (1) of Section 3 of MDPS Act, on satisfaction with respect to any person, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do.

15. In the instant case the activities of the petitionerdetenuu, which are said to be violent in character, terrorizingg the people in the vicinity and posing a perpetual danger to the lives and properties of people residing and carrying out their daily activities and vocations in the jurisdiction of WargeMalwadi and Alankar Police Stations of Pune city, are set out. The petitioner is said to be a dangerous person moving with deadly weapons; not hesitating to use them while committing offence; such as attempt to commit murder, grievous hurt, dacoity, robbery, possession of illegal weapon. He also does not hesitate to use these weapons either by himself or by his accomplices to terrorise and threaten the people. He is alleged to have been habitually committing the offences punishable under Chapters XVI and XVII of Indian Penal Code. He is, thus, styled as a Dangerous Person. The order of detention says that two offences narrated at serial numbers 7 and 8, details of which have already been set out hereinabove, are considered to issue the detention order. The detention order proceeds on the footing that the petitioner is detained in custody in relation to both cases. However, at page 21, paragraph 8, the subjective satisfaction is culled out in the following words :

"8. I have carefully gone through the material placed before me and I am subjectively satisfied that you are acting in a manner prejudicial to the maintenance of public order. Presently, you are in Yerwada Central Prison, Pune in the offences registered at WarjeMalawadi Police Station, Pune vide C.R.No.244 of 2017 u/s 395, 427, 323, 504, 506, 34 of the IPC, and C.R.No.316 of 2017 u/s 504, 506(2), 427 r/w Sec.4/25 of the Arms Act, 1959 r/w Sec.37(1)/135 of Maharashtra Police Act, 1951. I am aware that presently you are in jail and you have not applied for the bail. But nobody restricted you from applying for the bail. If you apply for the bail Hon'ble Court may grant you bail because generally Hon'ble Court grants bail for such offences which are not with the punishment of compulsorily death or imprisonment for life time. So there is imminent possibility of getting you bail if you apply for that. I am satisfied that after availing bail facility, again you will revert to similar activities which are prejudicial to the maintenance of public order. In view of your desperate tendencies and inclinations reflected in the offences committed by you as stated above, as well as the incidents recorded in the 'incamera'statements, it is necessary to detain you under the said Act to prevent you from acting in such prejudicial manner in future."

A bare perusal of this paragraph would indicate that the detaining authority is aware that the detenu is presently in jail and he has not applied for bail. However, the detaining authority further says that nobody restricted him from applying for bail and if he applies for bail, the Court may grant him bail because generally the Court grants bail for such offences which are not visited with the punishment of death or imprisonment of life. The detaining authority has carved out a ground to detain the detenu by stating that generally Court grants bail for such offences which are not visited with the punishment of compulsorily death or imprisonment for life time. 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. Be that as it may, the detention order further recites that there is imminent possibility of getting bail and if he applies for that, and if he avails of the bail, he will revert to the similar activities which are prejudicial to the maintenance of public order. The tendencies and inclination of the petitioner is reflected, according to the detaining authority, in the offences committed by him as well as in the incidents recorded in the incamerastatements. It is necessary, therefore, to detain the detenu from acting in such prejudicial manner in future.

16. While meeting the grounds in the writ petition, in the affidavit-in-reply, at page 43, it is stated as under :

"9. With reference to ground 6(b) of the petition, it is denied that the satisfaction recorded by me of imminent possibility is based on no cogent material and therefore the same is vague and erroneous. It is further denied that the order of detention is in violation of one of the guidelines laid down by the Hon'ble Supreme Court.

It is submitted that I was aware that the detenu was in custody on the date of issuance of order of detention in respect of offence mentioned in para 4.1 and 4.2 of the grounds of detention. I was further aware of the facts that the detenu has not applied for bail. I have gone through the charge sheets filed in respect of C.R.No.244 of 2017 and CR No.316 of 2017 and after considering the over all nature of offence and the entire charge sheet placed before me, I came to be satisfied that there was imminent and real possibility of detenu being released on bail in future. This is the reliable material on which I came to the conclusion about imminent possibility of detenu being released on bail. Considering detenu's involvement in prejudicial activities, I was further satisfied that there is imminent likelihood to revert to similar activities in future, hence looking to the propensity and potentiality of the detenu of indulging in activities which are prejudicial in nature, I felt it necessary to issue order of detention against the detenu to prevent him from further indulging in prejudicial activities in future. I have further gone through the punishment prescribed under the provisions of law for which the detenu was arrested. The punishment was not compulsorily death or life imprisonment. Thus from the said reliable material, I came to be satisfied that there was imminent and real possibility of release of the detenu on bail supported with the said cogent material. Thus there is no substance in the say of the petitioner in this para."

17. Pertinently, paras 6 and 7 of the impugned order reads as under :

"6. On going through your criminal record, it is evident that you are a habitual and dangerous criminal involved in serious and violent crimes. Your criminal activities are a threat to the lives and properties of the public. In order to curb your criminal activities, preventive action was taken against you. A proposal u/s 56(1)(b) of the Maharashtra Police Act, 1951 was sent against you by WarjeMalawadi Police Station, Pune to the Deputy Commissioner of Police, ZoneI, Pune City. In the said proceeding, the D.C.P.ZoneI, Pune City had externed you for a period of two years from Pune City and Pune District vide order No.12/2012, dated 08/06/2012. After the externment period was over, you again committed serious offences such as attempt to commit murder, dacoity, grievous hurt, robbery, possession of illegal arm in the jurisdiction of Warje-Malawadi and Alankar Police Station, Pune. These offences are shown at serial numbers 4 to 8 of the chart of offences. Hence, it is evident that the normal laws of the land are insufficient to curtail your dangerous criminal activities. Your criminal activities are showing an ascending trend and are prejudicial to maintenance of public order. You were arrested in various offences such as attempt to commit murder, dacoity, grievous hurt, robbery, possession of illegal arms and you were released on bail from time to time by the Hon'ble Courts. You continued to commit various serious offences after getting released on bail.

7. From the above facts, I am subjectively satisfied that you are a 'dangerous person' as defined in Section 2(b1) of the said Act. You have unleashed a reign of terror and have become a perpetual danger to the society at large in the area of WarjeMalawadi Police Station in Pune City. The people there are experiencing a sense of insecurity and are living under shadow of constant fear, whereby even daytoday businesses and activities of citizens are under threat. You show no respect to the law of the land and to the citizens of the society where you live. You are perpetually an impulsively violent man who wants to spread terror in the society by your violent criminal activities, in connivance with your criminal associates."

A bare perusal of the same would spell out the inconsistency and contradiction in the order and though at one place it is stated that only two recent crimes are considered in arriving at subective satisfaction, the above reproduced paras would spell out quite the contrary. Thus, the tendency to revert to criminal activities and repeat them allegedly necessitates the preventive detention and even though the detenu is in custody for one month and more particularly prior to passing of the impugned order.

18. We are mindful of the fact that learned public prosecutor relies on the judgment in Veermani Vs. State of Tamil Nadu (supra), which was a peculiar case. There, the detention order was passed, though said Veermani was in custody, on 16th February 1993. He was arrested on 11th February 1993, remanded to custody on 11th February 2013 and on 16th February 1993 the detention order was passed. There was no opportunity for him to file a bail application within this short span of time. The ground to challenge the detention order, inter alia, is that he was already in custody under the orders of Magistrate, who remanded him on 11th February 1993 in connection with Crime Nos.288 of 1993 and 237 of 1993 being accused of offence punishable u/s 147, 148, 302 and 307 of IPC. The argument was that there was no question of he being released on bail and as a matter of fact he did not apply for bail. Hence, the detention order was unwarranted and there was no genuine satisfaction regarding detention as required under the Act and, therefore, the order was illegal. The argument would revolve around the lack of awareness on the part of detaining authority that the detenu is in custody and that he had reason to believe that he is likely to be released. The Supreme Court found that the detaining authority was indeed aware that the detenu is remanded to custody, but holds that he was likely to file a bail application and that bail is usually granted by Courts in such cases and that if he comes out of jail on bail, he would indulge in such activities prejudicial to the maintenance of public order.

19. The Hon'ble Supreme Court referred to one earlier decision in the case of Rameshwar Shaw Vs. District Magistrate, Burdwan reported in AIR 1964 SC 334. This reference was made on the question whether the detaining authority has properly applied its mind in such case where person sought to be detained is already in custody. In Rameshwar Shaw (supra), the Hon'ble Supreme Court, inter alia, held that if a person is already in custody, how it can rationally be postulated that if he is not detained, he would act in a prejudicial manner. At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained, and that is a consideration which would be absent when the authority is dealing with a person already in detention. However, in that very judgment, the Hon'ble Supreme Court clarified that where detention of the said person would be necessary after his release from jail and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. The Hon'ble Supreme Court then clarified that the question as to whether an order of detention can be passed against a person who is in custody or in jail, will always have to be determined in the circumstances of each case.

Purportedly the arguments of Ms.Mhatre, learned APP, ignores this dictum and then what follows in paragraphs 6, 7 and 8 of the judgment in Veeramani. These paragraphs read as under :

"6. From the catena of decisions of this Court it is clear that even in the case of a person in custody, a detention order can validly be passed if the authority passing the order is aware of the fact that he is actually in custody; if he has reason to believe on the basis of reliable material that there is a possibility of his being released on bail and that on being so released, the detenu would in all probabilities indulge in prejudicial activities and if the authority passes an order after recording his satisfaction the same cannot be struck down.

7. Learned counsel, however, submitted that by making a sweeping statement that the petitioner is likely to be released on bail, the detaining authority cannot pass a detention order and when there is no likelihood of his being released on bail from custody, the order of detention is illegal inasmuch as there is no proper application of mind. In this context the learned counsel also submitted that since the detenu was in actual custody in connection with the murder case, no reasonable person can arrive at the conclusion that he was likely to be released on bail and that the statement of the detaining authority in the grounds that the detenu is likely to file a bail application and come out on bail and that he was aware that bail is usually granted by the courts in such cases, is illogical and unsound. In this context the learned counsel relied on an unreported judgment of this Court in Rivadeneyra Ricardo Agustin Vs. Government of National Capital Territory of Delhi. In that case in the grounds it was only mentioned that there was a 'possibility' of the detenu being released in case he moves a bail application. This Court observed that since the grounds did not indicate that such release was likely or that it was imminent and that on a mere possibility the detention order could not have been passed. The bench also examined the relevant file and observed that there was no material indicating that the release of the petitioner was likely.

8. But in the instant case what we have to mainly see is whether there was awareness in the mind of the detaining authority that the detenu is in custody and that he had reason to believe that he is likely to be released. The grounds do disclose that the detaining authority was aware that the detenu is in custody and it is further mentioned that he was also aware that bail is usually granted by the courts in such cases and it is further emphasised that there is 'imminent possibility' of the detenu coming out on bail. As a matter of fact the High Court in its judgment while considering this aspect also observed thus :

'The grounds indicate that the detenu, who was in remand, was likely to file a bail application and come out on bail. This shows the subjective satisfaction of the detaining authority not only of the awareness of the petitioner being in remand, but his subjective satisfaction of the likelihood of the petitioner coming out on bail by filing bail application. Of course, the detaining authority need not have stated that he was also aware that bail is usually granted by courts in such cases and hence there is imminent possibility that he will come out on bail if it has to be held to be a sweeping statement, but on facts, it cannot be said that the statement is of a sweeping nature for, it is well known that in offences punishable under the sections listed above, bail orders are usually granted for some time and most certainly except in rarest of rare cases after the final report is laid.' (underline ours)

Therefore it cannot be said that the detaining authority has not applied its mind to this aspect. It is also submitted that the detenu, as a matter of fact, did not file any bail application. But it must be noted that the detenu was arrested on February 11, 1993 and remanded to custody and on February 16, 1993 itself the detention order was passed. Therefore there was no opportunity for him to file a bail application within this short interval."

20. Thus, in Veeramani (supra), the Hon'ble Supreme Court was firstly satisfied that the activities of the detenu were prejudicial to the maintenance of public order. After making reference to the cases registered against Veeramani, an incident of 11th February 1993 is noted when police party proceeded to apprehend him and his associates. The said Veeramani and his associates shouted at them and when the police party surrounded the petitioner and his associates to apprehend them, the members of the police party were challenged and were attacked and the petitioner aimed a cut on the head of the Inspector with a patta knife but which fell on his left forearm causing a bleeding injury and similarly some of the associates of the petitioner inflicted injuries on the constables and stones were pelted against them which caused injuries. However, Veeramani and his associates were apprehended but Veeramani threatened the general public and thereby instilled a sense of fear and panic in their minds. Some more details of the crime were mentioned and finally it was concluded that from this material, the detaining authority was satisfied that the detenu and his associates acted in a manner prejudicial to the maintenance of public order. At the same time, we must bear in mind that the Hon'ble Supreme Court was considering the challenge to the detention order on the ground that detaining authority was not aware that the detenu was in custody. It had not applied its mind to this aspect. We are, therefore, of the opinion that the decision in Veeramani turns on its own facts.

21. Similarly in the case of Senthamilselvi (supra), three grounds were urged to support the petition. The grounds are culled out in paragraph 3 of the judgment. One of the ground was that the detenu had not filed any bail application and the detaining authority could not have inferred that there was possibility of he being released on bail. Several judgments were relied upon but in paragraph 10 of the Senthamilselvi (supra), the Hon'ble Supreme Court held as under :

"10. It was also submitted that since the detenu had not filed any bail application, the detaining authority could not have inferred that there was possibility of his being released on bail. Strong reliance is placed on several decisions of this Court. It has to be noted that whether prayer for bail would be accepted depends on circumstances of each case and no hardandfast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority. On the basis of materials before him, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of detenu being released on bail. It has been clearly stated that in similar cases orders granting bail are passed by various courts. The appellant has not disputed correctness of his statement. Strong reliance was placed by learned counsel for the appellant on Rajesh Gulati Vs. Govt. of NCT of Delhi (2002)7-SCC-129. The factual scenario in that case was entirely different. In fact, five bail applications filed had been already rejected. In that background this Court observed that it was not a 'normal' case. The high Court was justified in rejecting the stand of the appellant."

22. Thus, the Hon'ble Supreme Court has emphasised that the detenu may not be enlarged on bail and may be in custody when the detention order is made. He may have also applied for bail, but still, a detention order can be made, provided, there are materials before the detaining authority to come to the conclusion that there is likelihood of the detenu being released on bail and that on being released on bail, he is likely to resume or revert back to his criminal activities.

23. Even in the case of Aarif @ Yasir Ahmed Sattar Ahmed (supra), the judgment of the Division Bench of this Court turns essentially on facts. There also, the ground of challenge was, inter alia, that there is no possibility of the detenu being termed as a dangerous person, for, satisfaction in terms of subsection(1) of Section 3 of MPDA Act is lacking. In that case as well, the materials before this Court indicated that there was no substance in that challenge. The ground was rejected in the factual matrix that after the detention order was passed, the detenu has been released on bail in two out of three cases based on which the order of detention was made. Thus, there was a real possibility of he being enlarged on bail and that the detenu would revert back to his criminal activities. Thus, the wider issue, as to whether there is a conflict in the views expressed in the two Judge Bench decisions and the three or Constitution Bench judgment of the Hon'ble Supreme Court requiring a reference to the Rule of Precedents, need not be gone into in the case at hand. Pertinently, when the knowledge or awareness of the factual aspect of the detenu being in custody is lacking, then, the preventive detention order is exfacieuntenable and unsustainable is the law and principle laid down in all the judgments cited before us. Secondy, if there is awareness of this fact and still the detention is warranted, then, both two Judge and three Judge judgments, demand that there must be a real possibility of the detenu being released on bail and reverting to his criminal activities. In the instant case, only vague statement is made that in the earlier cases the detenu continued to commit various serious offences after getting released on bail (see para 6 of the detention order, page 20). However, the detention order itself states that the case at serial nos.2 to 6 from chart at pages 14 and 15 are not taken into consideration and the detention order is passed taking into consideration the cases at serial nos.7 and 8 (recent ones of 2017). This is apparent from paragraph no.3 of the order at page 15 of the paper book. In the recent cases as above, the detenu is in custody for more than a month as noted above. He did not seek bail. Hence, there was no satisfaction about his imminent release or his possibility of release and resuming his criminal activities. The statement in that regard is bald and mere ipse dixit of the detaining authority. Hence, it is clearly vitiated in law.

24. In all the three Judge Bench judgments and bearing in mind the matter in the case of Rekha Vs. State of Tamil Nadu (supra), the Hon'ble Supreme Court has not shown lack of awareness of this principle. In fact, it refers to this very principle and then proceeds to hold as under :

"7. A perusal of the above statement in Para 4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the coaccused on the same case, nor whether the bail orders were passed in respect of other coaccused in cases on the same footing as the case of the accused. All that has been stated in the grounds of detention is that "in similar cases bails were granted by the courts". In our opinion, in the absence of details this statement is mere ipse dixit, and cannot be relied upon. In our opinion, this itself is sufficient to vitiate the detention order.

8. It has been held in T.V.Sravanan Vs. State (2006)2-SCC-664, A. Shanthi Vs. Govt of T.N. (2006)9-SCC-711, Rajesh Gulati Vs.Govt. Of NGT of Delhi (2002)7-SCC-129, etc. that if no bail application was pending and the detenu was already, in fact, in jail in a criminal case, the detention order under the preventive detention law is illegal. These decisions appear to have followed the Constitution Bench decision in Haradhan Saha Vs. State of W.B. (1975)3-SCC-198 Wherein it has been observed : (SCC p.209, para 34) :

"34. ... ... ... where the person concerned is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or public order."

9. On the other hand, Mr.Altaf Ahmed, earned Senior Counsel appearing for the State of Tamil Nadu, has relied on the judgments of this Court in A. Geetha Vs. State of T.N. (2006)7-SCC-603 and Ibrahim Nazeer Vs. State of T.N. (2006)6-SCC-64 wherein it has been held that even if no bail application of the petitioner is pending but if in similar cases bail has been granted, then this is a good ground for the subjective satisfaction of the detaining authority to pass the detention order.

10. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the coaccused in the same case, and whether the case of the coaccused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a coaccused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.

11. In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained.

12. Moreover, even if a bail application of the petitioner relating to the same case was pending in a criminal case the detention order can still be challenged on various grounds e.g. that the act in question related to law and order and not public order, that there was no relevant material on which the detention order was passed, that there were mala fides, that the order was not passed by a competent authority, that the condition precedent for exercise of the power did not exist, that the subjective satisfaction was irrational, that there was nonapplication of mind, that the grounds are vague, indefinite, irrelevant, extraneous, nonexistent or stale, that there was delay in passing the detention order or delay in executing it or delay in deciding the representation of the detenu, that the order was not approved by the Government, that there was failure to refer the case to the Advisory Board or that the reference was belated etc.

13. In our opinion, Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution. An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R.V.Secy. Of State for the Home Deptt. Ex p. Stafford (1998)1-WLR-503(CA) : (WLR p.518 FG):

"... ... The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law."

Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule.

14. Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles. Our Founding Fathers realised its value because they had seen during the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty would be placed on the highest pedestal along with the right to life as the basic right of the people of India.

15. Right to liberty guaranteed by Article 21 implies that before a person is imprisoned a trial must ordinarily be held giving him full opportunity of hearing, and that too through a lawyer, because a layman would not be able to properly defend himself except through a lawyer.

17. Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous and historical struggles, will become nugatory.

21. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year's imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive ?

26. It was held in Union of India Vs. Paul Manickam (2003)8SCC342 that if the detaining authority is aware of the fact that the detenu is in custody and the detaining authority is reasonably satisfied with cogent material that there is likelihood of his release and in view of his antecedent activities he must be detained to prevent him from indulging in such prejudicial activities, the detention order can validly be made.

27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a coaccused whose case stands on the same footing and been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed.

29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.

30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is : was the ordinary law of the land sufficient to deal with the situation ? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal."

25. Prior to that the Hon'ble Supreme Court in Pebam Ningol Mikoi Devi Versus State of Manipur and others reported in (2010) 9 SCC 618 : [2010 ALL MR (Cri) 3704 (S.C.)] declared the principles of law as under :

"3. Individual liberty is a cherished right, one of the most valuable fundamental rights guaranteed by the Constitution to the citizens of this country. On "liberty", William Shakespeare, the great play writer, has observed that "a man is master of his liberty". Benjamin Franklin goes even further and says that "any society that would give up a little liberty to gain a little security will deserve neither and lose both". The importance of protecting liberty and freedom is explained by the famous lawyer Clarence Darrow as "you can protect your liberties in this world only by protecting the other man's freedom; you can be free only if I am free". In India, the utmost importance is given to life and personal liberty of an individual, since we believe personal liberty is the paramount essential to human dignity and human happiness.

4. The Constitution of India protects the liberty of an individual. Article 21 provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. In matters of preventive detention such as this, as there is deprivation of liberty without trial, and subsequent safeguards are provided in Article 22 of the Constitution. They are, when any person is detained pursuant to an order made under any law providing for preventive detention, the authority making the order is required to communicate the grounds on the basis of which, the order has been made and give him an opportunity to make a representation against the order as soon as possible. It thus, cannot be doubted that the constitutional framework envisages protection of liberty as essential, and makes the circumstances under which it can be deprived.

26. What emerges from these rulings is that, there must be a reasonable basis for the detention order, and there must be material to support the same. The Court is entitled to scrutinise the material relied upon by the authority in coming to its conclusion, and accordingly determine if there is an objective basis for the subjective satisfaction. The subjective satisfaction must be twofold. The detaining authority must be satisfied that the person to be detained is likely to act in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public order and the authority must be further satisfied that it is necessary to detain the said person in order to prevent from so acting.

28. We are conscious of the fact that the grounds stated in the order of detention are sufficient or not, is not within the ambit of the discretion of the court and it is the subjective satisfaction of the detaining authority which is implied. However, if one of the grounds or reasons which lead to the subjective satisfaction of the detaining authority under the NS Act, is nonexistent or misconceived or irrelevant, the order of detention would be invalid."

26. Pertinently in this judgment the Hon'ble Supreme Court says that there is a real possibility of release of a person on bail who is already in custody, provided, he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail and hence the detention order will be illegal. However, there can be an exception to this rule and that is where a coaccused whose case stands on the same footing, had been granted bail. In such case, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most Courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed. It is therefore necessary that the details have to be set out. In the absence of details, the reason or satisfaction is mere ipse dixit and cannot be relied upon. If the details are given, then, of course, it can be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most Courts that if a coaccused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. Pertinently, the respondent authority should have given the details about the alleged bail order in similar case, which in the case of Rekha (supra) was lacking. It is in such circumstances that by referring to all the earlier decisions, the Hon'ble Supreme Court concludes that such an order of detention cannot be sustained.

27. We are, therefore, not required to go into larger controversy. Even if we follow the dictum in Veeramani's case, the details therein justifies the order of passing the detention order. If the detention order has to be passed when the detenu is in custody, the details prescribed under law ought to be present in the detention order itself. The subjective satisfaction, as reflected in the detention order in this case, does not make any reference to any details, leave alone a case of co-accused being enlarged on bail. There are, therefore, no instances or details of similar cases in which bail orders have been passed indicating the real possibility of detenu being enlarged on bail. It is thus a bald statement or a mere ipsi dixit of the detaining authority. That would not suffice. Even in the affidavitinreply the stand, as taken by the detaining authority, is specifically reproduced by us. Beyond stating that she has gone through the charge sheets and after considering the over all nature of the offences she was satisfied that there was imminent and real possibility of detenu being released in future, there is no reliable material based on which the apprehension is expressed that there is possibility of detenu being enlarged on bail. Moreover, this statement overlooks the fact that there was not one but two cases and in each of them the charge sheet was filed long time back, the detenu was in custody and for more than a month. Secondly, the incamera statements relied on some instances of 11th June 2017 and 27th July 2017. These statements were recorded on 28th July 2017 and 12th August 2017. After these instances as well, two crimes, as noted above, were registered and the detenu was taken into custody. In such circumstances, the details as are demanded by the judgments of Hon'ble Supreme Court, ought to be on record. None of these details are forthcoming. In the circumstances awareness of the fact that the detenu has not applied for bail, is not sufficient in this case. In the facts and circumstances of this case, the detaining authority should have recorded a satisfaction that there is a real possibility of the detenu being enlarged on bail. That possibility should be indicated with reference to cogent and satisfactory materials. Pertinently, there are no bail orders passed in the cases of co-accused as well.

28. The order of detention dated 27th September 2017 cannot be sustained. It is accordingly quashed and set aside. Rule is made absolute. The detenu be released forthwith, if not required in any other case.

Ordered accordingly.