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4. Shri Mhaispurkar learned A.P.P. submitted that the order granting approval under Section 23(1)(a) of MCOC Act was not at all a vital document. He submitted that by order dated 5th March 2004 the learned Special Judge under MCOC Act refused to take cognizance of the case against the Petitioners. He submitted that as the Special Court under MCOC Act took no cognizance of the case against the Petitioners, the order granting approval was not a relevant and material document. He submitted that the order of approval under Section (1)(a) of MCOC Act was of no consequence. He submitted that a sanction was not granted under Section 23(2) of MCOC Act and therefore, there was no occasion to take cognizance of the case against the Petitioners by MCOC Court. He submitted that unless and until sanction under Section 23(2) of MCOC Act is granted and unless Special Court takes cognizance of the case, the stringent rule for granting bail incorporated in Section of the said Act will not apply to the Petitioners. He submitted that after considering the material placed before the detaining authority, the subjective satisfaction has been recorded that the Petitioners are likely to be released on bail as per the normal law of land.

8. One Sudam Anand Chavan, Police Sub Inspector has filed Affidavit-in-reply on behalf of the Sponsoring Authority. In the paragraph No.6 of his Affidavit, he has stated that, "...It is submitted that after the detenue and his associates were arrested and it was realised that they have indulged in other offences. It is submitted that thereafter the crime meeting was held on 23-6-2003 which was also attended by the Commissioner of Police and other higher Officers and it was decided that the provisions of MCOC Act should be applied to the organised crime syndicate of the detenu and his associates. It is submitted that in view of these circumstances, the sanction obtained by the Sponsoring Authority from the Additional Commissioner of Police, East Region, which was applied on 4-12-2003 and received on 9-12-2003 i.e. after the proposal for the detention of the detenu was submitted to the Detaining Authority. It is submitted that as per normal practise every order of sanction for prosecution under MCOC Act is sent to the Additional Commissioner of Police and from their the Commissioner of Police is informed about the same. In these circumstances, the Sponsoring Authority did not forward information of receipt of the sanction to invoke the provisions of MCOC Act to the detenu and his associate to the Detaining Authority. It is submitted that till the issuance of Detention Order and in execution, the Special Court, constituted under MCOC Act had not taken cognizance and the detenu and his associates were not arrested under the MCOC Act, therefore, for want of forwarding those documents to Detaining Authority to the detenu cannot be said to have violated any rights of the detenu or affected the subjective satisfaction of the Detaining Authority. Authority gets vitiated. I state that since the detenu was not arrested and under the MCOC Act prior to issuance and at the time of execution of detention order, the said facts were not vital and relevant which would have affected satisfaction of the Detaining Authority one way or the other."

10. At this stage, it will be necessary to refer to a copy of Remand Application No.2 of 2004 filed by the Assistant Commissioner of Police, Bhandup Division, Mumbai on 5th March 2004 before the Special Court under the MCOC Act. In the said Application, details of the offences allegedly committed by the Petitioners have been set out. It is stated in the Application that necessary permission under the provisions of MCOC Act has been obtained from the Additional Commissioner of Police, East Region, Mumbai vide order dated 9th December 2003 and accordingly Sections 3(1)(ii), 3(2), 3(4) and 4 have been applied to the case on 27th February 2004. It is stated in the Application that the Special Court was pleased to issue production warrant against the accused Nos.1 to 4 and ordered them to produce before the Special Court on 5th March 2004. The Petitioners in this group of Writ Petitions are accused Nos.4,1 and 2 respectively. The application also notes that non-bailable arrest warrant were issued by the Special Court against the accused Nos.5 and 6 on 1st March 2004. By the said application police custody of all the accused was prayed for. We have also perused the copy of order dated 5th March 2004 passed by the Special Court on the said Remand Application. The Special Court referred to prior approval under Section 23(1)(a) of MCOC Act dated 9th December 2003. The Special Court in paragraph No.5 of the Order recorded that the Investigating Officer himself expressed a doubt about the applicability of MCOC Act in this case. The Special Court observed that granting belated police custody remand in a case which is ripe for hearing as Sessions Case pending in the Sessions Court was neither proper nor just. The Special Court therefore rejected the application for police custody and observed that Investigating Officer can always obtain prior approval from Superintendent of Jail for interrogating the accused. By the said order, the Special Court granted bail to accused Nos.5 and 6. On plain reading of the order it is very clear to us that the learned Special Judge has not passed an order declining to take cognizance of the case. The effect of the order is that he has rejected the application for remand. Perusal of the application for remand and order passed by the learned Special Judge, it is clear that an order of production warrant was obtained prior to 4th March 2004 from the Special Court under MCOC Act as it is not in dispute that the production warrant was served in the jail on 4th March 2004. The precise date on which the production warrant was obtained is not on record of these petitions.

16. The only question to be decided is whether the order granting the approval was a vital document. As held by the Apex Court in the case of Noor Salman Makani's case, whether a particular document is vital or not is an issue which depends on the facts of each case. The stand has been taken before us in the Affidavits that the order granting approval was not acted upon. If the the order granting approval was not really acted upon, perhaps, there was some substance in the contention raised by the Respondents that the order of approval was not a vital document. In the application for remand filed on 5th March 2004 before the Special Court it is stated that Sections 3(1)(2), Section 3(2), 3(4) and 4 of MCOC Act have been applied on 27th February 2004 to the Petitioners on the basis of approval. The Special Court issued production warrants against the accused Nos.1 to 4 and ordered them to be produced before it on 5th March 2004. Thus, the stand taken in the said application is that the provisions of the Act were applied on the date on which the order of detention was passed and a production warrant was obtained from the Special Court on the basis of order of approval dated 9th December 2003. The order passed by the Special Court also records that the custody of the Petitioners was taken on the morning of 5th March 2004 from Thane Jail. In the present case, only defence of the detaining authority is that the order granting approval was not acted upon. In the facts of these cases it is very clear that on the very date on which the detention order was passed certain sections of MCOC Act were applied. It is reflected from the Remand Application made by the Assistant Commissioner of Police that before order of detention was executed an order for issuance of production warrants was passed by the Special Court. Moreover, in the order dated 5th March 2004 there is no clear refusal recorded by the Special Court to take cognizance under MCOC Act. Even in the Affidavit of the Sponsoring Authority a case is made out is that in normal course the order of approval is communicated by the Additional Commissioner of Police to the Commissioner of Police and therefore, the order was not specially brought to the notice of the Commissioner of Police by the Sponsoring Authority. Considering the fact that the order granting approval was acted upon on the date on which the order of detention was passed and further step of taking the production warrants from the Special Court under MCOC Act was taken before the execution of the order of detention, we are satisfied that the order granting approval under Section 23(1)(a) of the MCOC Act, in the facts of the case, was a vital document. Considering the peculiar facts of the present case, we are of the view that the said order could have influenced the subjective satisfaction of the detaining authority. In view of this position, the detention order passed against the Petitioners deserves to be quashed and set aside.