IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1685 OF 2024 Vikas @ Vicky Rohidas Funde .. Petitioner Versus The State of Maharashtra and ors. .. Respondents …

Mr.Shailesh Kharat for the petitioner.

Mr. S.V. Gavand, APP for the State.

CORAM: BHARATI DANGRE &

MANJUSHA DESHPANDE, JJ.

DATED : 18th JULY, 2024 P.C:-

1 The order of detention dated 9/11/2023, passed by the Commissioner of Police, Pune City, is assailed in the Petition filed by the detenu, who is ordered to be detained under the provisions of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers (Drug- offenders, Dangerous persons and video pirates) Act, 1981, as the Detaining Authority is satisfied that it is necessary to detain him so as to prevent him from acting in any manner prejudicial to the maintenance of public order.

2 We have heard learned counsel Mr. Kharat for the petitioner and Mr. Gavand, learned APP for the State.

Mr. Gavand has placed before us the affidavit affirmed by Mr. Amitesh Kumar, the present Commissioner of Police, Pune City and though we have taken the affidavit on record, we must note that the detention order is passed by the then Commissioner of Police, Pune city, Mr. Retesh Kumaarr, and the grounds of the detention are furnished to the detenu by the erstwhile Commissioner of Police, Pune City.

The affidavit filed by the present Commissioner therefore, definitely cannot and do not reflect the subjective satisfaction reached by the Detaining Authority, who has passed the impugned order and who has communicated the grounds of detention to the detenu. The affidavit filed as stated in paragraph no.1 is based on the record and files pertaining to the detention order, which according to the deponent of the affidavit is believed to be true.

We must make it very clear to Mr. Gavand the learned APP, that whenever the dentation order is passed by a particular authority, the affidavit must be affirmed by the said authority, as his successor definitely cannot discern the subjective satisfaction reached by his predecessor.

We except that the public prosecutors appearing for the Detaining Authority, to keep this aspect in mind.

Mr. Gavand has informed, that the erstwhile Detaining Authority has been transferred and promoted as Head of Home Guard Division Mumbai.

3 Mr. Kharat has referred to various grounds in the petition raising a challenge to the order of detention, but the prime ground raised by him is contained in paragraph no. (c) which reads to the following effect:-

“c. The impugned Order of Detention was issued on 9^th November, 2023. The Petitioner was arrested on 09-10-2023. On the date of issuance of Order of Detention, the detenu was in custody in CR No.253 of 2023 and 258 of 2023 of Sahkar Nagar Police Station. The Applicant had not even applied for bail therefore, there is no question of his release on bail. 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. The satisfaction of the Detaining Authority is vitiated as it is not based on any cogent material.”

4 Since we are not referring to the affidavit of the Detaining Authority, as it is not filed by the officer, who has passed the detention order, we have perused the grounds of detention.

In the grounds of detention the Detaining Authority has relied upon two C.Rs for reaching a subjective satisfaction that the activities of the detenu are detrimental to public interest and these C.Rs are registered with Sahakar Nagar Police Station being C.R No.253/2023 as well