Grant Of Bail Important Factor To Assess Whether Preventive Detention Of Accused Was Necessary: Bombay HC

The Bombay High Court, Nagpur Bench while dealing with a criminal writ petition held that the grant of bail is an important factor for the Authority to assess whether the preventive detention of the accused was necessary.

The Division Bench comprising Justice Sunil B. Shukre and Justice M.W. Chandwani observed, “It is well settled law that the grounds on which an accused, and a proposed detenu, is granted bail also form important part of the material available against such a person and therefore, it is the duty of the Detaining Authority to also consider that material.”

The Bench said that the object of a preventive detention order passed under Section 3(1) of the MPDA Act is to curb criminal activities of the person which are considered prejudicial to the maintenance of public order.

The Court also said, “Grant of bail is an important factor which goes into making up of the requisite satisfaction of the Authority. When considered appropriately, the grounds of bail do impact the decision of the Authority, one way or the other.”

Advocate Vijay Sawal appeared on behalf of the petitioner while APP S.S. Doifode appeared for the respondents.

In this case, the petitioner questioned the legality of the detention order passed by the Commissioner of Police under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous Persons and Video Pirates, Sand Smugglers and Persons engaged in Black Marketing of Essential Commodities Act, 1981 (MPDA Act). The petitioner also challenged the order of delegation of power passed by the Ministry of Home Affairs Department thereby delegating the power of passing detention orders upon the District Magistrates and Police Commissioners.

The counsel for the petitioner submitted that the delegation order issued by the State Government is bad in law, as it does not record the satisfaction as contemplated in law. Whereas, the counsel for the respondent contended that it is well-settled law that it is not necessary for an Administrative Authority, to mention in the order any particular or some specific material, on the basis of which subjective satisfaction for the exercise of the power of delegation has been reached.

The High Court did not find any substance in the submissions of counsel for the petitioner and found merit in the argument canvassed by the APP on behalf of the State.

The High Court after hearing both parties asserted, “In order that an administrative order clears the test of non-arbitrariness and reasonableness, as laid down in the case of A. K. Kraipak (supra), it must be based upon objective material, which would enable the Administrative Authority to reach its subjective satisfaction for exercising or not exercising the administrative power conferred upon it. In the present case, the power exercised under Section 3(2) of the MPDA Act is undoubtedly an administrative power and therefore, its validity is required to be seen in the light of the material considered by the Administrative Authority led to reaching of its subjective satisfaction.”

The Court further noted that the reference made in the order is sufficiently indicative of the fact that the State Government must have considered those circumstances and reached its subjective satisfaction for conferring power upon District Magistrates and Police Commissioners under Section 3(2) of the MPDA Act.

The Court also said, “… we do not think that the impugned order dated 24.06.2022 could be found to be in violation of the test laid down in the case of A. K. Kraipak (supra). Therefore, the argument made about illegality of the impugned order dated 24.06.2022, on behalf of the petitioner, is thus rejected. We find no flaw in the impugned order dated 24.06.2022.”

The Court, therefore, concluded that no purpose would be served by keeping the petitioner behind the bar and regarded the order passed by the Detaining Authority as bad in law.

Accordingly, the Court allowed the petition.

Cause Title- Alakshit S/o. Rajesh Ambade v. The State of Maharashtra & Anr.

Click here to read/download the Judgment