JUDGMENT - Smt. DESAI RANJANA, J.:---The petitioner is the father of one Santosh @ Santya Sarjerao Pawar, who has been detained by the Commissioner of Police, Brihan Mumbai, under an order of detention dated 11-11-2002 issued under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (for short, the MPDA Act). The order of detention, grounds of detention and the material in support thereof were served on the detenu on 14-11-2002. From that day till date, the detenu is in custody.

2. The order of detention is based on C.R. No. 97 of 2002 registered under section 302 of the Indian Penal Code read with sections 3, 23(1-B), 27, 35 of the Arms Act and two in-camera statements. In the present petition, there is a challenge to the said order of detention.

3. Though several grounds have been taken up in the petition, Mr. Patil, learned Counsel for the petitioner, has canvassed only one ground which is taken up by way of amendment in paragraph 5(k) of the petition. It is stated that the inference drawn by the Detaining Authority in C.R. No. 97 of 2002 that there is a likelihood of the detenu being granted bail under the normal law of land is erroneous and this shows clear non-application of mind of the Detaining Authority. It is, inter alia, stated that the incident in question is serious and looking to the charges levelled against the detenu and the role played by him, the Detaining Authority could not have come to the conclusion that there is imminent possibility of any Court granting bail to the detenu in near future. It is also stated that the detenu had applied for bail in the Court of Sessions, Mumbai on 26-11-2002 and the Sessions Court passed an order thereon as "withdrawn as rejected".

4. Mr. Patil submitted that the detenu having withdrawn his bail application and considering the grave nature of the incident in which he was involved and the active role played by him, there was no possibility of any Court granting bail to him. There was no cogent material before the Detaining Authority to arrive at the conclusion that the detenu was likely to be released on bail and, therefore, the order of detention deserves to be set aside.

5. In support of his submission, the learned Counsel relied on decisions of this Court in (Amit Rakesh Janbandhu v. State of Maharashtra and another)1, 2002 Bom.C.R.(Cri.) (N.B.)561 , (Shri Mohd. Ubed Abdul Rashid Ansari v. Shri M.N. Singh and others)2, 2003 Bom.C.R.(Cri.) 787. He contended that unless there is some cogent existing material before the Detaining Authority to indicate that the detenu is likely to be released on bail, he cannot issue the order of detention as there is no compelling necessity to issue the detention order while the detenu is in custody.

6. We have heard Mr. Thakur, learned Addl. P.P. for the State. He relied on a decision of this Court in Criminal Writ Petition No. 1595 of 2002 in (Mrs. Sakshi w/o. Uday Mahadeo Sawant v. State of Maharashtra)3, dated 10-6-2003. He drew our attention to the affidavit in reply filed by the Detaining Authority, more particularly paragraph 2 thereof, wherein the Detaining Authority has set out the compelling necessity. He submitted that in view of this, the present order of detention deserves to be confirmed.

7. In our opinion, whether in a particular case, there is compelling necessity to issue the order of detention while the detenu is in custody depends on facts and circumstances of each case. No hard and fast rules can be laid down in that behalf. In (Noor Salman Makani v. Union of India and others)4, A.I.R. 1994 S.C. 575, the Detaining Authority had made a statement that there was a possibility that the detenu was likely to be released on bail. While meeting similar contention the Supreme Court observed as under :

"5. The next submission is regarding non-application of mind by the Detaining Authority with regard to the circumstances that the detenu was in jail