- (1.) HEARD Mr. S. R. Pasbola for the petitioner-detenue and Mr. B. R. Patil, Acting P. P. , for the State.
(2.) THE detenue is detained by an order dated 22nd August, 2002 under section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981. The grounds of detention are of the even date and the detention is challenged on number of grounds. However, Mr. Pasbola restricted himself to ground Nos. 13 and 18 and therefore we are considering the said grounds only because the petition has to be allowed on the said grounds.
(3.) IT is mainly contended by the petitioner-detenue on the basis of the aforesaid two grounds that when the detention order was passed it was necessary for the Detaining Authority to find out whether the detenue was in custody or was at large and if he was in custody whether there was likelihood of his getting bail in order to enable him i. e. detenue to continue with his prejudicial activities in future. According to the petitioner detenue he was in custody when the detention order was passed for offences under the provisions of Maharashtra Control of Organised Crime Act, 1999 (M. C. O. C. Act) and by virtue of provisions of section 21 (5) of the M. C. O. C. Act there was no possibility at all of the detenue getting bail, but this aspect is not at all considered by the Detaining Authority and no awareness is shown about the same in the detention order or in the grounds of detention and in the affidavit. Therefore there was no material before the Detaining Authority to come to the conclusion that the detenue was likely to be released on bail and this is therefore a case of total non-application of mind affecting the validity of the detention order. Counsel for the petitioner relied upon the judgment of this Court reported in 2002 (Cri. Supp.) Bom. C. R. 450 : 2002 All. M. R. (Cri.) 550, (Rajesh Bishamkumar Khanna @ Sagar v. Commissioner of Police, Greater Mumbai and others) wherein this Court on the basis of the judgment of the Supreme Court in (Dharmendra Suganchand Chelawat and another v. Union of India and others) reported in A. I. R. 1990 S. C. 1198, held that when the detenue was detained under the M. C. O. C. Act then there was virtually no possibility of his getting bail in view of the stringent provisions of section 21 (4) of M. C. O. C. Act. Counsel for the petitioner contended that in fact in the case of Rajesh Khanna section 21 of sub-section (5) was not at all attracted but even then the Court held that possibility of getting bail was nil. He contended that section 21 (5) of the M. C. O. C. Act imposes more stringent condition and makes it impossible for a person to get bail, if he commits an offence under the M. C. O. C. Act while on bail in any other case.;