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, (Rajesh Bishamkumar Khanna @ Sagar v. Commissioner of Police, Greater Mumbai others)1, 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)2, 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.

4. As against this, it was tried to be urged by Mr. Patil that in the grounds of detention as well as in the affidavit the Detaining Authority has shown its awareness about the detenue in custody on the date of passing of the detention order and therefore according to him it could not be said that this was a case of non-application of mind.

5. In order to properly appreciate the submissions made by the Counsel for the petitioner-detenue and the A.P.P., it is necessary to reproduce section 21 sub-sections (4) and (5) of the M.C.O.C. Act.

"21(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless---

(a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and

(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

21(5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Court that he was on bail in an offence under this Act, or