JUDGMENT - S.S. PARKAR, J.:---By this writ petition the petitioner has challenged the detention of his son by name Mohammed Husein Nasibullah Khan under the provisions of M.P.D.A. Act.

2. The respondent No. 1, the Commissioner of Police, Brihan Mumbai, by order dated 16th March, 2001 issued order of detention under section 3(1) of M.P.D.A. Act. Along with the order of detention the detenu was served with the grounds of detention of the same date. A copy of the order of detention is annexed at Exh. A to this petition while the copy of the grounds of detention has been annexed at Exh. C to this petition. The detenu along with two co-accused was arrested on 25th June, 2000 under C.R. No. 125 of 2000 for offences under sections 170, 365, 376(g), 392 read with section 34 of I.P.C. His bail application made to the Sessions Court was rejected on 17-10-2000 in the said C.R. Thereafter there was no application made by him for his release on bail and the detenu continued to be in custody. While the detenu was in custody in the above C.R., the respondent No. 1 the Commissioner of Police, Brihan Mumbai, issued the impugned order of detention on 16th March, 2001, against the detenu. Similar orders were issued against his two co-accused in the aforesaid crime. As per the grounds of detention three instances have been relied on for issuing the order of detention. Firstly, the crime registered under the above C.R. for the aforesaid offences and secondly reliance is placed on two in-camera statements of two witnesses with regard to the alleged acts of extortion of money by the detenu along with the co-accused from the shopkeepers in the 3rd and 4th week of June, 2000. The petitioner, who is the father of the detenu, has filed the present petition challenging the detention order as well as the continued detention of the detenu under the aforesaid Act.

3. It is not in dispute that the detention orders of the co-accused were challenged in this Court by filing Criminal Writ Petitions, one being Criminal Writ Petition No. 973 of 2001 and another being Criminal Writ Petition No. 975 of 2001. Both those petitions were allowed by the judgment and order of this Court delivered separately on 5th September, 2001 whereby the detention orders of the co-detenues identically placed were quashed and set aside. Their detention orders were quashed on two grounds. Firstly, that there were no compelling reasons justifying detention when the detenues were already in custody and secondly the Detaining Authority had not shown its awareness that the detenues were in custody in C.R. No. 125 of 2000.

4. Though in this petition number of grounds have been raised challenging the order of detention of the detenu, Mr. Tripathi the learned Counsel appearing on behalf of the petitioner has pressed the ground that there were no compelling reasons justifying the detention of the detenu when the detenu was already in custody under C.R. No. 125 of 2000. This ground has been explicitly taken in para 6(2) of the petition. In support of his contention the learned Counsel cited the decision of the Division Bench of this Court delivered in Criminal Writ Petition No. 973 of 2001 challenging the order of detention of co-detenu. From the perusal of the said judgment, it is clear that this Court relying on the judgment of the Apex Court in the case of (Dharmendra Suganchand Chelawat and another v. Union of India)1, reported in A.I.R. 1990 S.C. 1196 held that though a detention order can be clamped against a person in custody, no cogent material has been shown by the Detaining Authority to conclude that there was imminent likelihood of the detenu being released on bail in C.R. No. 125 of 2000. The learned Counsel also referred us to the decision of the Apex Court in Chelawat's case (supra) and some other decisions of the Apex Court.

5. On the other hand Ms. Kamat, the learned A.P.P. took us through the grounds of detention and also the reply affidavit filed by respondent  No. 1 and submitted

Click Here to Read the rest of this document