In Crim. W.P. No. 626 of 2022-Object of preventive detention order is to curb criminal activities which are considered prejudicial to maintenance of public order; Grant of bail is important factor which goes into making up requisite satisfaction of Authority: Bombay HC 
Justices Sunil B. Shukre & M.W. Chandwani [20-12-2022]

Read Order: ALAKSHIT S/O. RAJESH AMBADE V. THE STATE OF MAHARASHTRA AND ORS 

Mansimran Kaur

Nagpur, January 4, 2023: The Nagpur Bench of the Bombay High Court has reiterated that the grounds on which an accused and a proposed detenu, is granted bail also form an important part of the material available against such a person and therefore, it is the duty of the Detaining Authority to also consider that material. 

The Division Bench of Justice Sunil B. Shukre and Justice M.W. Chandwani allowed the present petition by observing that the impugned order passed by the Detaining Authority was perverse and bad in law.

By the present  petition, the petitioner  questioned the legality and correctness or otherwise of the detention order passed by the second  respondent under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drugoffenders, Dangerous Persons and Video Pirates, Sand Smugglers and Persons engaged in Black Marketing of Essential Commodities Act, 1981 . 

The petitioner challenged the order  passed by the first respondent under Section 12 of the MPDA Act and thereby confirming his detention order.  The petitioner also filed the petition against the order of delegation of power passed by the Home Department thereby delegating power of passing detention order upon the District Magistrates and Police Commissioners mentioned therein. 

After considering the submissions, the Court noted  that it is well settled law that the grounds on which an accused, and a proposed detenu, is granted bail also form an important part of the material available against such a person and therefore, it is the duty of the Detaining Authority to also consider that material. 

“After all, the object of a preventive detention order passed under Section 3(1) of the MPDA Act is to curb criminal activities of the person which are considered prejudicial to the maintenance of public order. Grant of bail is an important factor which goes into making up the requisite satisfaction of the Authority”, the Bench said.

When considered appropriately, the grounds of bail do impact the decision of the Authority, one way or the other. In a given case, a person may be granted bail on a ground, inter alia, that he is not likely to tamper with the prosecution’s evidence or witness, the Court stated. 

As per the Bench, this would be a ground which may strengthen the case of that person and it may possibly restrain the Authority from passing any detention order. In another case, a proposed detenu is granted bail, not on merits of the matter but, upon a default ground under Section 167 of the Code of Criminal Procedure. There may be another case where the person is granted temporary bail for fulfilling some urgent purpose. 

In both of these examples, the grounds of bail may not perhaps help the proposed detenu and the Authority may possibly find them to be all the more reason for ordering preventive detention of such a person, provided the other criteria is fulfilled. Such is the importance of the grounds of bail and therefore, they are required to be considered by the Detaining Authority while passing the order of detention, the Court noted. 

Reference was made to the case of Abdul Sathar Ibrahim Manik Vs. Union Of India (1991 AIR 2261). 

It was further noted by the Court that the prosecution had not questioned any of the three bail orders and they had attained finality. The bail orders expressed an opinion that no purpose would be served by keeping the petitioner behind the bar. 

Noting that the judicial opinion leans in favour of the petitioner insofar as it concerns the aspect of necessity of the petitioner being free and at large, the Bench stated that if this is the judicial opinion expressed by the Court of concerned JMFC, the Detaining Authority is obliged to pay its deference to it. That was not done by the Detaining Authority, the Court noted. 

 For such reasons, the Court allowed the petition and opined that the impugned order passed by the Detaining Authority was perverse and hence bad in law.