Grounds Of Bail Important Factor To Decide Whether Preventive Detention Of Accused Necessary: Bombay High Court

“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.….In a given case, a person may be granted bail on a ground, inter alia, that he is not likely to tamper with the prosecution’s evidence or witnesses. This would be a ground which may strengthen the case of that person and it may possibly restrain the Authority from passing any detention order”.

The court added:

“In another case, a proposed detenu is granted bail, not on merits of the matter but, upon a default ground under Section 167 of the Code of Criminal Procedure. There may be another case where the person is granted temporary bail for fulfilling some urgent purpose. In both of these examples, the grounds of bail may not perhaps help the proposed detenu”.

The division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani set aside an order for preventive detention of a man 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).

Three crimes had been registered against the petitioner for intentional insult with intent to provoke breach of the peace, extortion, and consumption of narcotics drugs respectively along with sections 4 and 14 of the Arms Act for possession of unauthorised arms. Bail was granted to him in all three crimes.

The petitioner approached the High Court challenging the preventive detention order passed by the police commissioner and confirmed by the State. He also challenged the Home Department’s order delegating power of passing detention order upon the mentioned District Magistrates and Police Commissioners.

Advocate Vijay Sawal for the petitioner submitted that the detaining authority did not consider the grounds on which the petitioner was released on bail in the three crimes.

APP S. S. Doifode for the State said that the detaining authority not only considered the three crimes but also additional material available against the petitioner i.e., two statements of confidential witnesses. The detaining authority took an overall view of the material against petitioner and its impact on prospective witnesses and reached the subjective satisfaction about the necessity of passing the detention order, the State said.

The court noted that Home Department’s order records satisfaction that compelling circumstances exist for the state government to exercise its power of delegation under Section 32 of the MPDA Act. While the material considered by the administrative authority is not produced, nothing suggests that there was no material with the state government when it exercised this power, the court said while upholding the order.

The court noted that while the detaining authority considered the three crimes registered against the petitioner, it did not, in any manner, consider the grounds on which the petitioner was released on bail in all the crimes.

The court said that the grounds of bail granted to an accused form an important part of the material available against the accused and the detaining authority has a duty to consider it.

In the bail order related to the case of consumption of narcotics against the petitioner, the Judicial Magistrate First Class had held that no purpose would be served by keeping him behind the bar. The JMFC rejected the prosecution’s submission that if he is released on bail he would tamper with evidence and threaten witnesses. The bail orders were not challenged in any of the crimes and attained finality, the court noted.

The court, set aside the detention order observing –

“…the judicial opinion leans in favour of the petitioner insofar as it concerns the aspect of necessity of the petitioner being free and at large. If this is the judicial opinion expressed by the Court of concerned JMFC, the Detaining Authority is obliged to pay its deference to it. That has not been done by the Detaining Authority”.

Case no. – Criminal Writ Petition No. 626 of 2022

Citation: 2023 LiveLaw (Bom) 6

Case Title – Alakshit S/o. Rajesh Ambade v. State of Maharashtra