Bombay High Court
Smt. Phulwari Jagdambaprasad Pathak vs Shri R.H. Mendonca, Commissioner Of ... on 19 January, 2000
Equivalent citations: (2000)102BOMLR439
Author: Vishnu Sahai
Bench: Vishnu Sahai, P.V. Kakade
JUDGMENT Vishnu Sahai, J.
1. Through this Petition, preferred under Article 226 of the Constitution of India, the Petitioner who styles herself as the mother of the detenu-Shyamsunder @ Navin @ Amar @ Mahesh Jagdambaprasad Pathak, has impugned the detention order dated 19.6.1999 passed by the First Respondent Mr. R.H. Mendonea, Commissioner of Police, Brihan Murnbai, detaining the detenu under Sub-section (1) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons Act, 1981 (No. LV of 1981)(Amendment 1996). (The said Act hereinafter is also referred to as the M.P.D.A. Act).
The detention order along with the grounds of detention, also dated 19.6.1999, was served on the detenu on 20.6.1999. True copies of the detention order and the grounds of detention are annexed as Annexures A and C respectively to the Petition.
2. The prejudicial activities of the detenu warranting the issuance of the impugned detention order are contained in the grounds of detention. Their perusal would show that the impugned detention order is founded on one C.R. and two in -camera statement.
The C.R. is referred to in ground No. 4 (a)(iii). The said C.R. which is C.R. No. 101 /1999, registered on 16.4.1999, at the Nirmal Nagar police station on the basis of the complaint lodged by one Sursen Bandu Jadhav under Section 384, 387, 34 of the I.P.C. arises out of the facts mentioned in ground no. 4 (a) to 4 (a)(ii). The said facts are as under:-
Sursen Jadhav is a resident of Teen Bungalow Tenant's Association, Room No. 83/3/7, J.P. Road, Khar (East) Mumbai - 51. He lives there along with his family. In December, 1996, his wife Swati and some others started a finance agency named M/s Gold Strips Finstocks Pvt. Ltd., having Telephone No. 6456007 at Topiwala chawl, Jaihind Nagar, Pipe line Road, Khar (East) Mumbai - 51. He was helping Swati and others in their work. On 10.3.1999, Sursen Jadhav received thereatening calls at his residence telephone Nos. 6456007 and 6513338 from the detenu under the nick name of Sikandar demandng money. Consequently, on 5.4.1999, he lodged a N.C. complaint bearing No. 62/1999 at the Nirmal Nagar police station. Thereafter, his telephone was kept under observation through the Bandra Telephone Exchange by the police. On 6.4.1999, he again received threatening calls from the detenu demanding Rs. 3,00,000/-. He expressed his inability to pay such a staggering amount and on that the detenu threatened him saying that in case he did not pay the money, he would not remain alive. Again, he received threatening calls on 7.4.99, 8.4.99, 11.4.99 and 11.4.99 from the detenu. On 15.4.1999, at 8.45 p.m. Sursen Jadhav received a telephone call from the detenu. The detenu threatened him saying that he was a dangerous person and associate of Chota Shakil and insisted that he should give a part of the ransom amount otherwise, he would be killed. Consequently, Sursen Jadhav got terribly frightened and showed his inability. The detenu insisted and demanded Rs. 25.000/-. Sursen Jadhav agreed to pay Rs. 15,000/- and asked for a day to arrange for the said money. Thereafter, the detenu gave him the description of two of his associates and asked him to meet them in front of Sion Hospital, Gate No. 4 Near Tripti Hotel, Mumbai, from where his associates would collect the money, on 16.4.1999 at 6 p.m. He also threatened him not to report the matter to the police.
On 16.4.1999, Sursen Jadhav lodged the F.I.R. under Sections 384, 387, 34 of the I.P.C. referred to above.
2A. The an-camera statements are of two witnesses namely A and B and have been referred to in grounds No. 4 (b) to 4 (b)(ii) of the grounds of detention.
Witness A in his in-camera statement recorded on 29.4.1999, stated that he was having a bakery and residing at Kherwadi Road, and knew the detenu and his associate as goonda of his locality who moved in the areas of Khar (East) armed with weapons and collect monies from the traders, businessmen and residents of the said locality. He stated that one day in the second week of March, 1999 at about 7.30 p.m. when he was present in his bakery the detenu and his two associates approached him. The detenu pointed a revolver towards him and abusing him demanded his hafta (weekly share) of Rs. 2000/-. When he showed his inability to pay the said amount, the detenu and his associates started assaulting him and his servants and damaging the material in the bakery. Seeing this, the shopkeepers closed their shops and the pedestrians and hawkers started running batter - skelter. The detenu put a revolver on his head and he and his associates again abused him and told him to pay Rs. 5000/- otherwise his brain matter would be taken out. On account of fear, he paid Rs. 5000/ - to the detenu. While leaving, the detenu threatened him saying that in case he reported the matter to the police, his hands and legs would be broken. Thereafter, he went away.
Witness B is having a Garment factory at Kherwadi Road, Bandra (East) and in his statment recorded on 29.4.1999 stated that he knew the detenu and his associates as notorious goondas creating terror in the locality. He stated that one day in the third week of March, 1999, at about 11.30. a.m. when he was working in his factory along with his workers, the detenu and his associates approached him. The detenu whipped out a revlover and threatened him to give Rs. 10.000/-. His associate whipped out a chopper and threatened the servants not to move. Seeing this, the nearby shopkeepers closed their shops and the pedestrians and hawkers on the road started running helter skelter. The witness expressed his inability to pay such a big amount on which, the detenu assaulted him, abused him and took out Rs. 7.900/- from his cash box. While leaving he threatened the witness saying that in case every month the hafta amount (the weekly demand) was not met, he would be rendered in a hapless state. Thereafter, the detenu went away.
3. We have heard learned Counsel for the parties. In view of the importance of the question raised by Mr. Chitnis, we also felt it proper to hear the learned Advocate General of Maharashtra. Consequently, on 12.1.2000, on which date, we had heard this matter in part, we requested Mr. Ghulam Vahanwalu learned Advocate General of Maharashtra to render his able and experienced assistance to us.
4. The argument canvassed by Mr. Chitnis is that a perusal of the grounds of detention shows that the detenu was detained as a 'dangerous person within the meaning of Section 2(b-i) of the MPDA Act and the material famished in the grounds of detention does not warrant inference that he is a 'dangerous person' under the said provision. Mr. Chithis urged that the detenu would not fall within the definition of 'dangerous person ' used in the said provison.
To appreciate Mr. Chitnis's submission, it would be necessary to extract Section 2(b - i) of the M.P.D.A. Act. It reads thus:-
dangerous person" means a person who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959.
A perusal of the said provision, in the contention of Mr. Chitnis shows that a person can be only detained as a dangerous person there under, if either individually or as a member or leader of a gang habitually commits or attempts to commit or abets the commission of any of the offences punishable under Chapters XVI of XVII of the Indian Penal Code or Chapter V of the Arms Act, 1959.
Mr. Chitnis's submission is that the impugned detention order is founded on one C.R. and two in - camera statement, namely of witnesses A and B. His submission is that the expression 'commission of any of the offences' used in Section 2(b - i) of M.P.D.A. Act, would not include in -camera statements because, on the basis of the in-camera statements, no complaint or F.I.R. has been registered. He urged that if the in-camera statements are excluded then a solitary C.R. would remain against the detenu and if a solitary C.R. remains against him, then the detenu cannot be said to be habitually committing or attempting to commit or abetting the commission of acts, either under Chapter XVI or XVII of the Indian Penal Code or Chapter V of the Arms Act, 1959.
Mr. Chitnis invited our attention to Section 2(n) of the Cr. P.C. wherein the word 'offence' has been defined thus:-
'offence' means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle Tresspass Act, 1871 (1 of 1871) To fortify his submission that the expression 'any of the offences' used in Section 2(b - i) of the M.P.D.A. Act, would not include in - camera statement, Mr. Chitnis placed reliance on the following decisions of the Supreme Court:-
(i) Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad and Anr. (1989) 4 SCC 43.
(ii) Rashidmiya @ Chhaya Ahmedmiya Shaikh, v. Police Commissioner, Ahmedabad and Anr. AIR 1989 SC 1703
(iii) Ayub alias Pappu Khan Nawabkhan Pathan v. S.N. Sinha and Anr. 1990 (4) SCC 552 : AIR 1990 SC 2064 : 1990 (3) S.C.R. 927 : 1990 (3) J.T. 530 : 1990 Cr. L.J. 2232.
(iv) Mustakmtya Jabhar-Miya Shaikh v. M.M. Mehta, Commissioner of Police, and Ors. 1995 (3) SCC 237
5 The learned Advocate General cited before us two decisions namely: -
(i)(Appellant / Petitioner : Amanulla Khan Kudeatalla Khan Pathan v. Respondents Stale of Gujrat 1999 (3) S.W. 2222 : 1999 (5) SCC 613 and
(ii) the decision of this Court passed by a Division Bench of which one of us (Vishnu Sahai, J) was a member, rendered on 10.8.1999 in Criminal Vidyadhar H. Verma v. R.H. Mendonca, Commissioner of Police, Brihan Mumbai and Ors. Writ Petition No. 354 of 1999.
6. It is common ground between the counsel for the parties that to the best of their knowledge, there is no Supreme Court judgment wherein the expression ' dangerous person' as used in Section 2 (b - i) of the M.P.D.A. Act, has been construed by the Supreme Court. The Supreme Court decisions cited by the counsel for the parties relate to the definition of dangerous person' as defined under Section 2(c) of the Gujarat Prevention of Anti - Social Activities Act (16 of 1985). It is common ground between them that the definition of 'dangerous person' as defined in Section 2(b -i) of the M.P.D.A. Act has been bodily lifted from Section 2(c) of the Gujarat Prevention of Anti - Social Activities Act (16 of 1985).
7. We make no bones in observing that in none of the decisions of the Supreme Court cited by Mr. Chitnis, has it been held by the Supreme Court that in-camera statements do not fall within the ambit of expression 'commission of any of the offences' used in Section 2(b - i) of the M.P.D.A. Act. By implication, Mr. Chitnis has urged that this is the ratio in the said cases. We regret that we cannot accede to his submission because, the learned Advocate General has urged that a perusal of the Judgment of the Apex Court reported in 1999 AIR SCW 2222 (supra) shows that the expression 'commission of any of the offences ' used in Section 2(b - i) of the M.P.D.A. Act, would include in - camera statements. To elucidate his submission, the learned Advocate General read before us paras 1, 2, 3, and 4 of the said Judgment. A perusal of paras 3 and 4 would show that the question canvassed by Mr. Chitnis before us was precisely the question which was urged before the Apex Court. A perusal of para 3 would show that there were two in - camera statements pertaining to incidents dated 26.7.1998 and 2.8.1998. The burden of the song in the said in - camera statements was that the detenu had formed a gang and hatched a conspiracy to extort money from innocent citizens by threatening them and keeping them under constant fear of death. One of the witnesses stated that the detenu had demanded Rs. 1 lakh and when he had refused, he was dragged and assaulted. Other witness stated that he had demanded Rs. 50.000/- and on his refusal, he was dragged and beaten on the road. The Supreme Court while rejecting the contention that the detenu, was not a dangerous person at the fag end of para 5 held that in its considered opinion, the Detaining Authority had considered three different incidents of three different dates (one C.R. and two in - camera statements) and not on a solitary incident.
8. The learned Advocate General urged that a perusal of para 4 of the said decision would show that the Supreme Court intended that in - camera statements should be included within the amibit of the expression 'commission of any of the offences' used in Section 2(c) of the Gujrat Prevention of Anti - Social Activities Act (16 of 1985). He also urged that since the definition of dangerous person' contained in language which is identical to that used in Section 2(b - i) of the M.P.D.A. Act, the said decision would apply on all fours to the present case.
8A. We find merit in the submission of the learned Advocate General. We have already observed earlier that the definition of 'dangerous person' used in Section 2(b - i) of the M.P.D.A. Act, has been bodily lifted from the Gujarat Prevention of Anti-Social Activities Act (16 of 1985). Hence, the decision of the Supreme Court cited by the learned Advocate General would be fully applicable for construing the expression ' dangerous person' as used under Section 2(b-i) of the M.P.D.A. Act and we see no justification to place reliance on the authorities where in the contention of the learned Counsel for the Petitioner by implication, the Supreme Court has held to the contrary.
9. We would also like to refer to para 13 of the decision of this Court rendered in Criminal Vidyadhar Verma v. R.H. Mentioned, Commissioner of Police and Ors. Writ Petition No. 354 of 1999 to which one of us (Vishnu Sahai, J. was a party. The said Writ Petition was preferred by the Petitioner Vidyadhar Verma challenging the preventive detention of his son one Mahesh Verma as a dangerous person under the M.P.D.A. Act. On behalf of the Petitioner, the said Petition was argued by Mr. Chitnis, learned Counsel for the Petitioner in the present petition. In the said Writ Petition also, Mr. Chitnis had canvassed the submission that in - camera statements cannot be accepted or acted upon for deciding the question that a person is a 'dangerous person' under the M.P.D.A. Act, because no complaint on their basis is registered. The said contention was repelled by the Division Bench in para 13 of its Judgment.
10. Since the decision cited by the learned Advocate General demolishes the submission of Mr. Chitnis and the mandate contained in Article 141 of the Constitution of India is that the law declared by the Supreme Court shall be binding on all the Courts of India, we accept the ratio laid down in the said authority and the submission of the learned Advocate General.
11. In the circumstances, we find this Petition to be devoid of substance and dismiss the same. Rule is discharged.