The necessity of reliable material and imminent possibility of release on bail to justify a detention order while the detenu is in custody.

JUDGMENT

Prakash D. Naik, J. - Petitioner has preferred this Petition under Article 226 of Constitution of India, challenging the Order of Detention dated 6th September, 2022 passed by Commissioner of Police, Pune City (Respondent No.1) under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and persons engaged in Black-marketing of Essential Commodities Act, 1981 (for short 'M.PD.A. Act'), directing that Mr. Firoz @ Babali Makbul Khan be detained with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. Petitioner is wife of the said detenu.

Alongwith Order of Detention the detenu was also served with the grounds of Detention and the documents relied upon by the Detaining Authority for passing Impugned Order of Detention.

2. Learned Advocate Ms. Misbaah Solkar appearing for Petitioner submitted that, the Order of Detention is based on C.R. No.156 of 2022 registered with Khadak Police Station for offence under Sections 143, 147, 148, 149, 427, 504, 506 of Indian Penal Code (for short 'IPC') and Section 4(25) of the Arms Act and Section 7 of Criminal Law Amendment Act and C.R. No.116 of 2022 registered with Samarth Police Station for offence under Sections 326, 323, 504, 506, 34 of IPC and Sections 3 and 7 of Criminal Law Amendment Act. The Detaining Authority has also relied upon statement of witnesses A and B recorded in camera for issuing the impugned Order of Detention. It is submitted that, the detenu was arrested in connection with C.R. No.156 of 2022 on 31st May, 2022 and in C.R. No.116 of 2022 on 7th July, 2022.

Pursuant to the arrest of detenu in C.R. No.156 of 2022 the detenu was produced before the concerned Court and remanded to magisterial custody till 14th June, 2022. In the grounds of detention it was stated that the detenu had applied for bail on 2nd June, 2022 before the J.M.F.C. Court, Pune which was granted and he was released accordingly. In C.R. No. 116 of 2022 the detenu was produced before the concerned Court on 8th July, 2022 and remanded to magisterial custody till 22nd July, 2022. He had applied for bail on 8th July, 2022 and the application was pending. On completing investigation, charge-sheet was filed. The impugned Order of Detention was issued on 6th September, 2022. On the date of issuance of Order of Detention the detenu was in custody. The Detaining Authority was aware that the detenu was already in judicial custody. However, the Detaining Authority has not disclosed any possibility of detenu being released on bail. The Detaining Authority has not disclosed any cogent material and facts which necessitated the making of Detention Order. The valid Detention Order can only be passed against the detenu if the Detaining Authority is subjectively satisfied that there is real and imminent possibility of the detenu being released on bail based on cogent material and that it is absolute imperative to pass a valid Detention Order against the detenu while he is in custody. The Detaining Authority is duty bound to express its satisfaction in the grounds of detention as to the imminent possibility of detenu's release on bail, which is not done in this case. The satisfaction of the Detaining Authority is vitiated as it is not based on any cogent material. The Detaining Authority has not dealt with this issue in the affidavit-in-reply. Reliance is placed on the decision of this Court dated 25th January, 2023 in the case of Jayesh Damodar Koli V/s. The Commissioner of Police & Ors., passed in Criminal Writ Petition No. 2967 of 2022.

3. Learned APP submitted that the Detaining Authority was aware that the detenu was in custody on the date of issuing Order of Detention. In the grounds of detention it is stated that the detenu had applied for bail in C.R. No.116 of 2022 and the application for bail was pending before the Court. In paragraph No.8 of grounds of detention