RUSHIKESH TANAJI BHOITEversusSTATE OF MAHARASHTRA & ORS.

                        [2012]2 S.C.R. 640


A                  RUSHIKESH TANAJI BHOITE
                                  v.
               STATE OF MAHARASHTRA & ORS.
                 (Criminal Appeal No.24 of 2012)

                         JANUARY 4, 2012
B
             [R.M. LODHA AND H.L. GOKHALE, JJ.]

         Preventive detention - Maharashtra Prevention of
    Dangerous Activities of Slumlords, Bootleggers, Drug
c   Offenders and Dangerous Persons Act, 1981 - s.2(b-1) and
    s.3(1)- Detention order- Legality of- Challenged on ground
    of non-placing and non-consideration of bail order in favour ·
    of the dentenu - Held: In a case where detenu is released on
    bail and is enjoying his freedom under the order of the court
0   at the time of passing the order of detention, then such order
    of bail must be placed before the detaining authority to enable
    him to reach at the proper satisfaction - In the instant case,
    since the bail order granted in //{vour of the dentenu on August
    15, 2010 in a criminal case registered on August 14, 2010
E   and referred to in the grounds of detention was neither placed
    before the detaining authority at the time of passing the order
    of detention nor the detaining authority was ,~ware of the order
    of bail, the detention order dated 10th January, 2011 was
    rendered invalid - The subjective decision of the detaining
F   authority was vitiated - Moroever, none of the criminal cases,
    except the offence registered on August 14, 2010, referred to
    in the grounds for detention, was proximate to the order of
    detention - Order of detention accordingly set aside.

      On January 10, 2011, the District Magistrate, in
G exercise of the powers conferred upon him by sub-
  section (1) of Section 3 of the Maharashtra Prevention of
  Dangerous Activities of Slumlords, Bootleggers, Drug
  Offenders and Dangerous Persons Act, 1981 and the
  Government Order Home Department (Special)·
H                             640
      RUSHIKESH TANAJI BHOITi= v. STATE OF             641
             MAHARASHTRA & ORS.
 Mantralaya, Mumbai No. DDS 1210/Cr-207/SPL-3(B) dated A
 31.12.2010 directed the appellant's father to be detained
 under the provisions of the 1981 Act. This order was
 followed by another order of the same date directing that
 appellant's father shall be detained in Central Prison,
 Nagpur. The legality of the detention order dated January B
 10, 2011 was challenged by the appellant in the High
 Court. The Division Bench of that Court dismissed the
 Criminal Writ Petition filed by the appellant. Hence the
 present appeal.

     Allowing the appeal, the Court                          c
       HELD: 1.1. In pursuance of Section 8 of Maharashtra
  Prevention of Dangerous Activities of Slumlords,
  Bootleggers, Drug Offenders. and Dangerous Persons
  Act, 1981, the detenu was supplied with the grounds for D
  detention setting out therein particulars of offences and
  the action taken against him. The offences registered
  against the detenu way back in the year 1980 upto the last
  offence registered on August 14, 2010 have been noted
  by the detaining authority in reaching at the satisfaction E
  that the detenu's activities were prejudicial to the
  maintenance of public order and he was dangerous
  person within the meaning of Section 2 (b-1) of the 1981
  Act. The last criminal case referred to in the grounds is
  against the detenu for the offences under Sections 143, F
  147, 323, 504, 506, 353, 427 of IPC read with Section 7,cJf
  Criminal Law Amendment Act read with Section 37 (1)(3)
  for breach of Section 135 of the Bombay Police Act, 1951,
  registered at Police Station on August 14, 2010. [Para 6]
  (644-F-H; 645-A]
                                                              G
       1.2. The admitted position is that detenu was arrested
  in connection with the above crime on August 15, 2010
  and he was released on bail by the Judicial Magistrate,
. 1st Class, on that very day. One of the conditions imposed
  in the Order of Bail was that the detenu would appear at H
    642    SUPREME COURT REPORTS               [2012] 2 S.C.R.

A Police Station on every Monday between 10.00 a.m. to 12
  O'Clock till the charge-sheet was filed. Later on, the
  detenu made an application before the Judicial
  Magistrate, 1st Class, seeking relaxation of the above
  condition. That application was allowed and the above
B condition was relaxed by the concerned Judicial
  Magistrate on January 4, 2011. [Para 7] [645-8-C]

       1.3. It would be, thus, seen that the order releasing
  the detenu on bail in the crime registered on August 14,
  2010 and the order relaxing the bail condition were
C passed by the Judicial Magistrate, 1st Class, Dharangaon
  much before the issuance of detention order dated
  January 10, 2011. However, the detention order or the
  grounds supplied to the detenu do not show that the
  detaining authority was aware of the bail order granted
D in favour of the dentenu on August 15, 2010. [Para 8] [645-
  D-E]

       2.1. In a case where detenu is released on bail and
  is enjoying his freedom under the order of the court at
E the time of passing the order of detention, then such order
  of bail must be placed before the detaining authority to
  enable him to reach at the proper satisfaction. [Para 9]
  [645-F]

        2.2. In the present case, since the order of bail dated
F August 15, 2010 was neither placed before the detaining
  authority at the time of passing the order of detention nor
  the detaining authority was aware of the order of bail, the
  detention order is rendered invalid. Non-placing and non-
  consideration of the material as vital as the bail order has
G vitiated the subjective decision of the detaining authority.
  [Para 1OJ [645-G-H; 646-A]
      2.3. The other offences refe.rred to in the order of
  detention suffer from remoteness and want of proximity
H to the order of detention. None of the criminal cases,
      RUSHIKESH TANAJI BHOITE v. STATE OF                    643
             MAHARASHTRA & ORS.
exceptthe offence registered on August 14, 2010, referred           A
to in the grounds for detention, can be said to b~
proximate to the order of detention. [Para 14] [647-C]
    2.4. In view of the above, it is clear that the order of
detention dated January 10, 2011 cannot be sustained                a
and has to be set aside. [Para 15] (647-D]
     Rekha v. State of Tamil Nadu Through Secretary to
Government and Another (2011) 5 SCC 244 and Vijay
Narain Singh vs. State of Bihar and Others (1984) 3 SCC 14
- relied on.                                                        C
                      Case Law Reference:
    (2011) s sec 244           relied on              Para 11
    (1984) 3 sec 14            relied on              Para 13
                                                                    D
    CRIMINAL APPELLAT ORIGINAL JURISDICTION :
Criminal Appeal No. 24 of 2012.
     From the Judgment and Order dated 13.05.2011 of the
High Court of Bombay at Aurangabad in Criminal W.P. No. 123
of 2011.                                                            E

    Dr. A.M. Singhvi and Jayant Bhushan, Shivaji M. Jadhav,
Anish R. Shah, Jayant Bhatt, Nishant R Katneshawarkar,
Shankar Chillarge, Asha Gopalan Nair, Debasis Misra and
Suhas Kadam for the appearing parties.                              F

    The Judgment of the Court was delivered by
    R.M. LODHA, J. 1. Leave granted.
      2. We have heard Dr. A.M. Singhvi, learned senior counsel
for the appellant, Mr. Shankar Chillarge, learned counsel for the   G
State of Maharashtra and Mr. Suhas Kadam, learned counsel
for the respondent no. 4.
     3. On January 10, 2011, the District Magistrate, Jalgaon
in exercise of the powers,conferred upon him by sub-section         H
    644     SUPREME COURT REPORTS                 [2012] 2 S.C.R.


A (1) of Section 3 of the Maharashtra Prevention of Dangerous
  Activities of Slumlords, Bootleggers, Drug Offenders and
  Dangerous Persons Act, 1981 (for short 'the 1981 Act') and
  the Government Order Home Department (Special) Mantralaya,
  Mumbai No. DDS 1210/Cr-207/SPL-3(B) dated 31.12.2010
B directed Tanaji Keshavrao Bhoite resident of Kishavkunj, Bhoite
  Nagar, Jalgaon to be detained under the provisions of the 1981
  Act. This order was followed by another order of the same date
  directing that Tanaji Keshavrao Bhoite shall be detained in
  Central Prison, Nagpur.
c       4. The legality of the detention order dated January 10,
  2011 was challenged by the present appellant, who is son of ·
  the detenu, in the Bombay High Court at Aurangabad Bench,
  Aurangabad. The Division Bench of that Court dismissed the
  Criminal Writ Petition filed by the appellant on May 13, 2011.
D It is from this order that the present appeal, by special leave,
  has arisen.

      , 5. Dr. A.M. Singhvi, learned senior counsel for the
  appellant urged diverse grounds in challenging the order of the
E High Court. We do not want to deal with all the grounds urged
  by Dr. A.M. Singhvi as in our view, appeal deserves to be
  allowed on the short ground that we indicate hereinafter.

        6. In pursuance of Section 8 of 1981 Act, the detenu was
F supplied with the grounds for detention setting out therein
  particulars of offences and the action taken against him. The
  offences registered against the detenu way back in the year
  1980 upto the last offence registered on August 14, 2010 have
  been noted by the. detaining authority in reaching at the
  satisfaction that the detenu's activities were prejudicial to the
G maintenance of public order and he was dangerous person
  within the meaning of Section 2 (b-1) of the 1981 Act. The last
  criminal case referred to in the grounds is against the detenu
  for the offences under Sections 143, 147, 323, 504, 506, 353,
  427 of the Indian Penal Code read with S!=!ction 7 of Criminal
H Law Amendment Act read with Section 37 (1)(3) for breach of
      RUSHIKESH TANAJI BHOITE v. STATE OF                    645
      MAHARASHTRA & ORS. [R.M. LODHA, J.]
Section 135 of the Bombay Police Act, 1951, registered at            A
Dharangaon Police Station on August 14, 2010.

     7. The admitted position is that detenu was arrested in
connection with the above crime on August 15, 2010 and he
was released on bail by the Judicial Magistrate, 1st Class,
                                                                     8
Dharangaon on that very day. One of the conditions imposed
in the Order of Bail was that the detenu would appear at
Dharangaon Police Station on every Monday between 10.00
a.m. to 12 O'Clock till the charge-sheet was filed. Later on, the
detenu made an applicatic;m before the Judicial Magistrate, 1st      C
Class, Dharangaon seeking relaxation of the above condition.
That application was allowed and the above condition was
relaxed by the concerned Judicial Magistrate on January 4,
2011.

     8. It would be, thus, seen that the order releasing the         D
detenu on bail in the crime registered on August 14, 2010 and
the order relaxing the bail condition were passed by the
Judicial Magistrate, 1st Class, Dharangaon much before the
issuance of detention order dated January 10, 2011. However,
the detention order or the grounds supplied to the detenu do         E
not show that the detaining authority was aware of the bail order
granted in favour of the dentenu on August 15, 2010.

     9. In a case where detenu is released on bail and is
enjoying his freedom under the order of the court at the time of
passing the order of detention, then such order of bail, in our      F
opinion, must be placed before the detaining authority to enable
him to reach at the proper satisfaction.

     10. In the present case, since the order of bail dated August
15, 2010 was neither placed before the detaining authority at        G
the time of passing the order of detention nor the detaining
authority was aware of the order of bail, in our view, the
detention order is rendered invalid. We cannot attempt to
assess in what manner and to what extent consideration of the
order granting bail to the detenu would have effected the            H
    646     SUPREME COURT REPORTS                  [2012] 2 S.C.R.

A satisfaction of the detaining authority but suffice it to say that
  non-placing and non-consideration of the material as vital as
  the bail order has vitiated the subjective decision of the
  detaining authority.

         11. A three Judge Bench of this Court in the case of Rekha
8
    vs. State of Tamil Nadu Through Secretary to Government
    and Another, reported in (2011) 5 sec 244, decided recently
    held as under:

          "In this connection,it may be noted that there is nothing
C         on the record to indicate whether the detaining authority
          was aware of the fact that the bail application of the
       · accused was pending on the date when the detention
          order was passed on 08.04.2010. On the other hand, in
          para 4 of the grounds of detention it is mentioned that
D          "Thiru. Ramakrishnan is in remand in crime No. 1321
          2010 and he has not moved any bail application so far".
        . Thus, the detaining authority was not even aware whether
           a bail application of the accused was pending when he
          passed the detention order, rather the detaining authority
E         passed the detention order under the impression that no
           bail application of the accused was pending but in similar
           cases bail had been granted by the courts. We have
           already stated above that no details of the alleged similar
           cases has been given. Hence, the detention order in
F        · question cannot be sustained."
        12. In the case of Rekha (supra), the detention order was
  held to be bad as the detaining authority was not aware of the
  fact that the bail application of the detenu was pending on the
  date when the detention order was passed. In the present case,
G the detenu was already released on bail but the detaining
  authority was not aware of the fact of grant of bail to the detenu.
      ·13. A reference to the decision of the majority view in the
  case of Vijay Narain Singh vs. State of Bihar and DJ!lers,
H reported in (1984) 3 sec 14, may not be out of the conteXt. In
       RUSHIKESH TANAJI BHOITE v. STATE OF                  647
     - MAHARASHTRA & ORS. [R.M. LODHA, J.]
para·graph 32 of the Judgment, Venkataramiah, J. (as His            A
Lordship then was) speaking for the majority observed as
follows:

    "When a person is enlarged on bail by a competent
    criminal court, great caution should be exercised in            8
    scrutinising the validity of an order of preventive detention
    which is based on the very same charge which is to be
    tried by the criminal court."

     14. The other offences referred to in the order of detention
suffer from remoteness and want of proximity to the order of        C
detention. None of the criminal cases, except the offence
registered on August 14, 2010, referred to in the grounds for
detention, can be said to be proximate to the order of detention.

     15. In view of the above, we are satisfied that the order of   o
detention dated January 10, 2011 cannot be sustained and has
to be set aside. We order accordingly.

    16. Appeal is allowed and the order dated May 13, 2011
passed by the Bombay High Court, Aurangabad Bench,
Aurangabad, is set aside. The detenu - Tanaji Keshavrao             E
Bhoite - is ordered to be released forthwith, if not required in
any other case.

    17. In light of the above order, no order is required to be
passed on the Application for lmpleadment and the same              F
stands disposed of accordingly.

B.B.B.                                         Appeal allowed.