GANESH Vs. STATE OF MAHARASHTRA
LAWS(BOM)-2017-9-364
HIGH COURT OF BOMBAY
Decided on September 11,2017

GANESH Appellant
VERSUS
STATE OF MAHARASHTRA Respondents

JUDGEMENT

VASANTI A NAIK,J. - (1.) Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the parties. By this Criminal Writ Petition, the petitioner challenges the order of his detention, dated 30th March, 2017 under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981.
(2.) Mr.Mir Nagman Ali, the learned Counsel for the petitioner, inter alia, states that the impugned order is liable to be quashed and set aside in view of the law laid down by the Hon'ble Supreme Court in the Judgments reported in (2011) 5 SCC 244, Rekha vs. State of Tamil Nadu through Secretary to Government and another and 2012 ALL SCR 1373, Rushikesh Tanaji Bhoite .vs. State of Maharashtra and Others, in which it is laid down that at the time of passing the order of detention it would be necessary for the Detaining Authority to consider the order/orders granting bail to the detenue in the offences that are pending against him. It is submitted that it is held by the Supreme Court in the aforesaid Judgments that non-placing and non-consideration of the bail orders would vitiate the subjective decision of the Detaining Authority. Mr.S.S.Doifode, the learned Additional Public Prosecutor appearing on behalf of the respondents does not dispute that the orders granting bail to the petitioner were not placed before the Detaining Authority before the order of detention was passed. It is, however, stated that non-consideration of the orders granting bail to the petitioner in the offences that were pending against him would not vitiate the impugned order as the petitioner has not pointed out as to what prejudice is caused to the petitioner due to non-consideration of the orders granting bail. It is submitted that the detention order was passed by the Detaining Authority after being satisfied that the petitioner was a dangerous person and his activities were adversely affecting the public peace and order. It is stated that the impugned order of detention is based on the satisfaction of the Detaining Authority that the petitioner had disobeyed the order of his externment and has committed serious offences affecting the body and property. The learned Additional Public Prosecutor relied on the Judgments reported in 2002 ALL MR (Cri) 1018, Nitin Narayan Pandare .vs. M.N.Singh and Others; 2006 ALL MR (Cri) 207 (S.C.), J. Abdul Hakeem vs. State of Tamil Nadu and Others and (2000) 9 SCC 170, Radhakrishan Prabhakaran vs. State of Tamil Nadu to substantiate his submission. It is stated that it is held by this Court in the Judgment reported in 2014 ALL MR (Cri) 2168, Ravi Hanumant Thorat .vs The State of Maharashtra and Others that only the relevant and vital documents are required to be placed before the Detaining Authority.
(3.) We are inclined to accept the submission made on behalf of the petitioner that the impugned order would be vitiated due to non- consideration of the orders granting bail to the petitioners in the offences registered against him. In none of the Judgments that are relied on by the learned Additional Public Prosecutor, the Hon'ble Supreme Court or this Court were deciding the issue whether it would be necessary to place the orders granting bail to the detenue, before the Detaining Authority. It is observed by this Court in the Judgment reported in 2014 ALL MR (Cri) 2168 (supra) that the relevant and vital documents are required to be placed before the Detaining Authority, which the Detaining Authority can take into consideration. However, the question whether the orders releasing the detenue on bail are required to be considered by the Detaining Authority or not and what would be the effect of the non-consideration of the orders granting bail to the detenue was considered by the Hon'ble Supreme Court in the case of Rekha .vs. State of Tamil Nadu (supra) and Rushikesh Tanaji Bhoite vs. State of Maharashtra and Others (supra). The Hon'ble Supreme Court had observed in the Judgment in the case of Rushikesh Tanaji Bhoite (supra) that non-placing and non-consideration of the bail orders granted to the detenue would vitiate the subjective decision of the Detaining Authority. The Hon'ble Supreme Court observed that it would not attempt to assess in what manner and to what extent the consideration of the order granting bail to the detenue would have affected the satisfaction of the Detaining Authority, still the non-placing and non-consideration of the orders granting bail would vitiate the subjective decision of the Detaining Authority. We would humbly follow the law laid down in the Judgment in the case of Rushikesh Tanaji Bhoite (supra) to allow the Writ Petition by quashing and setting aside the order of the Detaining Authority.;


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