Bombay High Court
Adil Chaus S/O. Hamad Chaus vs The State Of Maharashtra on 3 August, 2020
Equivalent citations: AIRONLINE 2020 BOM 974
Author: M.G.Sewlikar
Bench: T.V.Nalawade, M.G.Sewlikar
{1} CRI WP 559 of 2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.559 OF 2020
. Adil Chaus S/o. Hamad Chaus
Age: 30 years, Occ.: Private Job,
R/o. Chaus Colony, Shahbazar,
Aurangabad. ..Petitioner
VERSUS
1. The State of Maharashtra
Through Chief Secretary,
Home Department Mantralaya,
Mumbai - 32.
2. The State of Maharashtra
Through Commissioner of Police,
Aurangabad.
3. The State of Maharashtra
Through Superintendent,
Central Jail Aurangabad. ..Respondents
...
Advocate for Petitioner : Mr.R. A. Jaiswal
APP for Respondents - State : Mr.M.M.Nerlikar
...
CORAM : T.V.NALAWADE &
M.G.SEWLIKAR, JJ.
RESERVED ON : 16.07.2020
PRONOUNCED ON : 03.08.2020
JUDGMENT:- (Per: M.G.Sewlikar, J.)
1. Rule. Rule made returnable forthwith.
2. By consent of both the sides, heard fnally.
3. Challenge in this Writ Petition under Articles 226 and 227 of the Constitution of India is to the order of detention passed by ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {2} CRI WP 559 of 2020 respondent No.2 dated 12.03.2020 and confrmed by respondent No.1 by order dated 18.03.2020. This detention is under Sections 3(1) and 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-ofenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black-Marketing of Essential Commodities Act, 1981 (hereinafter referred to as the MPDA Act).
4. Facts leading to this petition are as under:
The petitioner (hereinafter called as detenu) is an Indian citizen and resident of Aurangabad. It is alleged that the detenu was served with the order of detention dated 12.03.2020 alleging that the detenu is a dangerous person and he has committed serious ofences i.e. robbery, voluntarily causing hurt in in committing robbery, attempt to commit robbery when armed with deadly weapon, voluntarily causing grievous hurt by dangerous weapons, insult intended to provoke breach of the peace, criminal intimidation etc. The detenu had created reign of terror near the City Chowk Police Station area and his activities were prejudicial to the maintenance of public order. Owing to his criminal activities the persons residing in the jurisdiction of the City Chowk Police Station and adjoining areas are in constant fear. The detenu has criminal antecedents. Following is the list ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {3} CRI WP 559 of 2020 of ofences detenu has committed and the preventive action taken against the detenu:-
Sr. Police C.R.No. Under Date of Present
No. Station Section Registration Status
1 City Chowk 359/2019 392, 394, 26/01/2018 Pending Trial
398, 504,
506, 34 IPC
2 City Chowk 15/2020 394, 324, 08/01/2020 Pending
323 IPC Investigation
Preventive action
Sr. Police Chapter Case Disposal
No. Station No. And u/s.
1 City 08/2015 u/s 110 Case was dropped as he was
Chowk of Cr.P.C. detained under MPDA Act , 1981
Externment Proceeding
Sr. Police Externment Order Under Section
No. Station No.
1 City No.DCP/Externment/ 56(1) (a)(b) of Bombay Police
Chowk 11/2262/2009 Ofce of Act 1951. Externed from the Dy. Commissioner Aurangabad City, Aurangabad of Police, Zone, District & Jalna District for two Aurangabad Dated years 20/05/2009.
Detention Proceeding
Sr. Police Detention Order No. and date Under
No. Station Section
1 City No.2011/MPDA/DET-02/CB-15 Ofce of 3(1) of MPDA
Chowk the Commissioner of Police, Act 1981.
Aurangabad, Dated 30/08/2011
2 City No.2013/MPDA/DET-02/CB-22 Ofce of 3(1) of MPDA
Chowk the Commissioner of Police, Act 1981
Aurangabad, Dated 3/10/2013.
3 City No.2015/MPDA/DET-03/CB-41 Ofce of 3(1) of MPDA
Chowk the Commissioner of Police, Act 1981.
Aurangabad, Dated 06/08/2015.
4 City No.2018/MPDA/DET-02/CB-19 Ofce of 3(1) of MPDA
Chowk the Commissioner of Police, Act 1981.
Aurangabad, Dated 25/07/2018.
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5. Despite taking preventive action against him, the detenu has continued to engage himself in criminal activities and to prevent him from committing ofences, he is required to be detained. After recording subjective satisfaction, respondent No.2 passed order of detention of the detenu dated 12.03.2020.
On 14.03.2020, proposal was forwarded to the Advisory Board for approval. On 18.03.2020 approval was received from the State Government. The detenu made the representation of 22.04.2020 which was turned down by the Advisory Board vide its decision dated 23.04.2020.
6. While passing detention order, the detaining authority considered two ofences i.e. Crime No.359 of 2019 under Sections 392, 394, 398, 504 and 506 read with 34 of the Indian Penal Code (IPC) and Crime No.15 of 2020 under Sections 394, 324, 323 of the IPC. Both have been registered with City Chowk Police Station, Aurangabad. The detaining authority also considered statements of witnesses 'A' and 'B' and recorded its subjective satisfaction that the activities of the detenu are prejudicial to the maintenance of public order and therefore, by its order dated 12.03.2020 directed detention of the detenu for a period of one year from the date of detention. The Chronology of the events is as under:-
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15.01.2020 Proposal forwarded for detention of detenu by
Police Inspector, Crime Branch, Aurangabad. 12.03.2020 Detention order of detenu was passed. 14.03.2020 Grounds of detention served on detenu. 14.03.2020 Proposal forwarded to Advisory Board for approval.
18.03.2020 State Government accorded approval. 22.04.2020 Representation made by detenu.
23.04.2020 Final order passed by the Advisory Board.
Detenu has been confned in Aurangabad Central Prison, Aurangabad.
7. The detenu has challenged the order of detaining authority dated 12.03.2020, confrmed by the State Government on 18.03.2020 and the order dated 24.04.2020.
8. Heard Shri R.A.Jaiswal, learned counsel for the detenu and Mr.M.M.Nerlikar, learned APP for the State.
9. Shri Jaiswal, learned counsel for the petitioner submitted that respondent No.2, the detaining authority, passed the order of detention belatedly. He submitted that the last ofence alleged to have been committed by the detenu was on 08.01.2020, whereas respondent No.2 passed detention order on 12.03.2020. He submitted that the object of the MPDA Act is immediate detention. If the detention is not immediate and is delayed, it goes to show that the activities of the detenu are not ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {6} CRI WP 559 of 2020 harmful and prejudicial to the interest of the society. He further submitted that the belated action indicates that the activities of the detenu were not prejudicial to the maintenance of the public order. He further submitted that respondent No.2 considered the in-camera statements of witnesses 'A' and 'B'. The detaining authority, respondent No.2, did not consider that the purport of both the statements was same. Both the statements are exactly similar and therefore, those statements are not useful for forming the subjective satisfaction of respondent No.2. He further submitted that both the in-camera statements do not bear the endorsement that the statements were read by me and they were true and correct. He further submitted that there is delay and latches in forwarding the impugned order to the State Government. He submitted that the order of detention was passed on 12.03.2020 and the proposal was forwarded to the Advisory Board on 14.03.2020. This clearly shows that the report was not made to the State Government forthwith, but there is delay in forwarding the papers for approval to the State Government. He further submitted that the delay and latches in making the report to the State Government vitiates the action initiated by respondent No.2. He further submitted that the crimes registered against the petitioner were all false and concocted. Copies of First Information Reports (FIRs) were not ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {7} CRI WP 559 of 2020 produced before the detaining authority. Therefore, without there being the copies of FIRs before the detaining authority, it cannot be said that respondent No.2 had subjectively satisfed himself about the detention of the detenu. He further submitted that respondent No.2 has considered conviction of the detenu under Section 142 of the Maharashtra Police Act, when the proposal forwarded by the sponsoring authority does not make a reference of this conviction. He submitted that this clearly denotes that the detention authority has considered the extraneous material. He further submitted that while passing the order dated 12.03.2020, the detaining authority has stated that he considered the material placed before him by the Police Station, Vedant Nagar, Aurangabad. He submitted that papers were not forwarded by Vedant Nagar Police Station, but by City Chowk Police Station, Aurangabad. This clearly shows that the order dated 12.03.2020 is passed without application of mind. He further submitted that in Crime No.359 of 2019, the date of incident is 10.10.2019, whereas FIR was lodged on 12.10.2019. The detaining authority did not consider the delay in fling FIR. He submitted that all these aspects clearly show that respondent No.2 has passed the order without application of mind.
10. Mr.Nerlikar, learned APP for the respondents-State ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {8} CRI WP 559 of 2020 submitted that mentioning of Vedant Nagar Police Station, clearly is a mistake, and much cannot be read into it. He further submitted that there was no delay and latches in forwarding the papers to the State Government for approval. According to him, detention order was passed on 12.03.2020 and the detenu was served with the notice on 14,.03.2020 and papers were sent for approval on 14.03.2020, and approval was received on 18.03.2020. He submits that this clearly indicates that there was no delay and latches in referring the order of detention by respondent No.2. He submitted that respondent No.2, after having considered entire material placed before him, came to the conclusion after applying mind and after having subjectively satisfed that the detenu is a dangerous person and detention of the detenu is necessary and his being at large is prejudicial to the maintenance of public order. He, therefore, prayed for dismissal of the Writ Petition.
11. Before embarking upon the enquiry, provisions of MPDA Act will have to be looked into.
12. "Dangerous person" is defned under Section 2(b-1) to mean a person, who either by himself or as member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the ofences punishable under Chapter XVI ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {9} CRI WP 559 of 2020 or Chapter XVII of the Indian Penal Code or any of the ofences punishable under Chapter V of the Arms Act, 1959.
13. Thus, the essential requirement of this Section for determining whether a person is a dangerous person is that he must be habituated to committing ofences or attempts to commit or abets the commission of any of the ofences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the ofences punishable under Chapter V of the Arms Act, 1959. Chapter XVI of the Indian Penal Code deals with the ofences against the human body and Chapter XVII of the Indian Penal Code deals with the ofences against the property.
14. The next important provision is Section 2(a) of the MPDA Act. It has defned the expression "acting in any manner prejudicial to the maintenance of the public order". Section 2(iv) deals with the case of a dangerous person. Section 2(iv) reads as under:-
"Section 2:
(a) "acting in any manner prejudicial to the maintenance of public order" means -
(i) ............................
(ii) ...........................
(iii) .........................
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(iv) in the case of a dangerous person, when he is engaged or is making preparations for engaging, in any of the activities as a dangerous person, which afects adversely, or are likely to afect adversely, the maintenance of the public order."
15. This provision signifes that merely a person is a dangerous person is not sufcient to invoke the provisions of the MPDA Act . The further essential requirement is that the activities of a dangerous person must prejudicially afect the maintenance of the public order. If the activities of a dangerous person do not afect prejudicially the maintenance of the public order, the provisions of the MPDA Act cannot be invoked.
16. Section 3 of the MPDA Act provides thus :-
"3(1) The State Government may, if satisfed with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.
(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfed that it is necessary so to do, it may by order in writing, direct that during such period as may be specifed in the order such ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {11} CRI WP 559 of 2020 District Magistrate or Commissioner of Police may also, if satisfed as provided in sub-section (1), exercise the powers conferred by the said sub-
section:
Provided that the period specifed in the order made by the State Government under this sub-section shall not, in the frst instance, exceed [six months] but the State Government may, if satisfed as aforesaid that it is necessary so to amend such order to extend such period from time to time by any period not exceeding [six months] at any one time.
(3) When any order is made under this section by an ofcer mentioned in sub-section (2), he shall forthwith report the fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government."
17. This Section mandates that if a District Magistrate or a Commissioner of Police is satisfed that a person needs to be detained with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, shall make the order of detention. Sub-Section 3 of Section 3 casts a duty on the Detaining Authority to report the fact of detention to the ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {12} CRI WP 559 of 2020 State Government together with the grounds on which the order has been made within a period of twelve days from the date of passing of the order.
18. Section 8 of the MPDA Act makes it obligatory for the Detaining Authority to communicate to the detenu the grounds on which the order has been made within fve days of the date of detention and also shall aford him an opportunity of making representation against the order of the State Government. Section 10 of the MPDA Act requires the State Government to place before the Advisory Board within three weeks from the date of detention of a person the grounds on which the order has been made. Section 11 states that within seven weeks from the date of detention of the person, the Advisory Board shall submit the report to the State Government. Section 13 states that detention shall not be for more than twelve months.
19. After having gone through the relevant provisions of the MPDA Act, it will have to be examined whether the detaining authority recorded subjective satisfaction for the detention of the detenu. For this purpose the detaining authority considered two ofences for the detention of the detenu viz. Crime Nos.359 of 2019 and 15 of 2020 registered with City Chowk Police Station, ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {13} CRI WP 559 of 2020 Aurangabad. So far as Crime No.359 of 2019 is concerned, charge-sheet has been produced in the trial Court and it is pending for trial. Copy of the charge-sheet has been produced. We have gone through the record of the detaining authority. It shows that charge-sheet has been produced in Crime No.359 of 2019. The FIR shows that on 10.10.2019, the informant ShaikhMustak Shaikh Munaf was proceeding towards Dargah of Kachiwada at about 10:30 p.m. for demanding the amount from Shaikh Javed Shaikh Kalim given as a handloan to the said Shaikh Javed. The informant was riding on Pleasure Moped, at that time the detenu called him, two unknown persons were with the detenu. The detenu took out a knife and snatched the keys of his Moped and slapped him and robbed the informant of Rs.230/-. The detenu also snatched the Moped of the informant. FIR was lodged on 12.10.2019. Charge-sheet shows that on the basis of memorandum of detenu dated 13.10.2019 at 07:45 p.m. Pleasure Moped bearing Registration No.MH20 DK-0243 and a knife kept in Dicky of the Moped were recovered and seized. This clearly shows the involvement of the detenu in the alleged ofence. The injury certifcate produced on the record indicates that the informant had sustained blunt trauma on chest and blunt trauma on right hand and he was referred to surgery and Orthopedic Department for further management. ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 :::
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20. So far as Crime No.15 of 2020 is concerned, FIR was
lodged on 09.01.2020 relating to the incident dated 08.01.2020, which happened between 08:00 to 08:15 p.m. The informant Saddam Hussain was called by the detenu and asked him to sit in the Auto. The detenu was accompanied by two unknown persons. When the informant refused, the detenu gave a fst blow in the abdomen of the informant and robbed him of Rs.1,700/- and snatched the mobile of Tambo company and assaulted the informant by means of a blade and said to the informant that he is historysheeter of Aurangabad and in City Police Station nobody dares fle complaint against him. Accordingly, FIR was registered in the Police Station under Section 394, 324, 323 of the IPC. In this crime, investigation was in progress at the time of initiation of detention proceedings. The record further shows that the detenu was arrested on 10.01.2020 and at his instance cash of Rs.450/- were recovered from the detenu on 11.01.2020. Thus, on the basis of memorandum, cash of Rs.450/- was recovered as remaining amount was spent by the detenu. Thus, this shows that on the basis of memorandum given by the detenu, blade (half broken) and cash of Rs.450/- were recovered from the detenu. Thus, the record of these two ofences clearly shows that the detenu is in ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {15} CRI WP 559 of 2020 the habit of committing crimes.
21. This record shows that the crimes registered against the detenu are serious in nature. In Crime No.359 of 2019, the ofences are under Sections 392, 394, 398, 504, 506 read with 34 of the IPC and in Crime No.15 of 2020, the ofence are under Section 394, 324, 323 of the IPC. This clearly shows that the detenu is a habitual ofender. The statements of the witnesses 'A' and 'B' also lend support to this inference. The statement of witnesses 'A' and 'B' are annexed with the record. The statement of witness 'A' shows that witness 'A' was intercepted by the detenu in Chandani Chowk. Detenu abused witness 'A' and threatened him of stabbing him by means of knife and robbed him of Rs.1,500/-. The detenu also threatened witness 'A' that if this information is disclosed to the Police, witness 'A' will be eliminated. This incident was witnessed by many, but nobody came forward to give complaint against the detenu because of his criminal activities. This statement was recorded on 14.01.2020. Again on 14.01.2020 statement of witness 'B' was recorded. In his statement, he has stated that when witness 'B' was passing through Chelipura Square, the detenu was standing there alongwith his two associates and abused him. He fshed out a knife from his waist and robbed the witness 'B' of ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {16} CRI WP 559 of 2020 Rs.2,200/-. The detenu abused witness B. This witness stated in his statement that he did not disclose the incident to the Police as the detenu created reign of terror in the locality and therefore, he did not approach the Police. Thus, this record produced before Respondent No.2 shows that respondent No.2 has considered all the aspects of the case and the statement of the witnesses and came to the conclusion that the activities of the detenu are prejudicial to the maintenance of public order. Therefore, we do not fnd any infrmity in the opinion formed by the detaining authority. On perusal of both the statements, it is seen that both these statements bear endorsement that Deputy Superintendent of Police, Aurangabad paid visit to the spot, examined the witnesses and found that the statements were in accordance with in-camera statements. It is further endorsed that the apprehension of the witnesses A and B was genuine.
22. So far as the argument of learned counsel Mr.Jaiswal that extraneous material was considered, cannot be accepted. In paragraph No.10 of the detention order, it is stated that on 25.02.2020, the detenu was convicted of the ofence punishable under Section 142 of the Bombay Police Act and sentenced to sufer simple imprisonment for two years and to pay fne of Rs.2,000/- in Sessions Case No.228 of 2016. It is further stated ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {17} CRI WP 559 of 2020 in the detention order that on the same day, his sentence was suspended by Sessions Judge, Aurangabad and he was released on bail. Operative order was also annexed alongwith the detention order. As indicated above, sponsoring authority forwarded the proposal on 15.01.2020 and the conviction was recorded on 25.02.2020, which means on the date when proposal was moved, conviction was not recorded.
23. The question is whether the order of detention is based on this conviction alone. The order shows that the Respondent No.1 considered the Crime No.359 of 2019 and Crime No.15 of 2020 and statements of witnesses 'A' and 'B' and came to the conclusion that the detenu is a dangerous person and his activities are prejudicial to the maintenance of public order. The detaining authority did not base its conclusion on the sole basis of the conviction under Section 142 of the Maharashtra Police Act, but it is an additional factor. In paragraph 6 of the detention order, the detaining authority has observed as under:-
"6. From the above facts, I am satisfed that you are a "Dangerous person" within the meaning of section 2 (b-1) of the "Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-ofenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black-Marketing of Essential Commodities Act, 1981" respectively . You are also a ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {18} CRI WP 559 of 2020 weapon wielding desperado, dreaded criminal striking terror in the mind of peace loving and law abiding citizens residing in the localities of City Chowk Police Station and adjoining areas, by your criminal activities. The action taken against you under the normal law of the land is found to be insufcient and inefective to deter you from indulging in criminal activities prejudicial to the maintenance of public order. The public is under constant shadow of you and your associate's fear. Your above described criminal activities are disturbing the normal tempo of life of citizens of the said localities and areas, which can be seen from grounds 4 & 5."
24. These observations make it explicit that the detaining authority frst came to the conclusion that the activities of the detenu are prejudicial to the maintenance of public order. In paragraph 10 detaining authority has stated that the detaining authority is aware that the detenu has been convicted under Section 142 of the Maharashtra Police Act and that the detenu has been enlarged on bail. This shows that the conviction under Section 142 of the Maharashtra Police Act is not the sole factor for the detention of the detenu. Had it been the sole basis for the passing of the order of detention, it would have been altogether a diferent matter. Therefore, the submission of the learned counsel cannot be accepted.
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25. Learned counsel Shri Jaiswal placed reliance on the case of Lakhan Rohidas Jagtap Vs. The Commissioner of Police, Pune and Ors. [2019 ALL MR (Cri) 5261] in which it has been held that, "only the operative part of the bail order and not full text of the order was placed before the detaining authority. Therefore, the detaining authority had no occasion to apply its mind for grant of bail to the detenu before recording subjective satisfaction for passing the order of detention. It was incumbent on the part of the sponsoring authority to place full text of the order granting bail to the petitioner/detenu before the detaining authority before passing the detention order. It is observed in the verifcation that the statement of witness 'A' and apprehension expressed by other persons residing in the vicinity appears to be genuine and true. However, as observed in the decision of the Division Bench in the case of Mrs.Zabin Salim Hamja Shaikh (Supra), the verifcation required to be done by the Senior Police Ofcer of such in-camera statement required as additional condition to be met i.e. the satisfaction of the verifcation ofcer regarding the truthfulness of the incident that was claims to have occurred and as disclosed by the respective complainants i.e. witness 'A' and witness 'B'. Such a verifcation ensures the subjective satisfaction of the Senior Police Ofcer who has verifed the statements so as to ascertain the identity of ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {20} CRI WP 559 of 2020 the witness and truthfulness of his statement. However, in the present case the Assistant Commissioner of Police while recording the statement of witness 'A' has only mentioned that the witness 'A' was called in the ofce of the Commissioner of Police, Swargate and inquiry about his name and address was made, and he told his name and address. In order to verify his statement the Assistant Commissioner of Police made inquiry with other people residing in the said vicinity, and it was revealed that, the incident stated by the witness 'A' is correct. However, Assistant Commissioner of Police, has not recorded satisfaction to the efect that incidents stated by the witnesses are true and genuine."
26. This authority has no application to the facts of the case at hand as the sponsoring authority has placed full text of the bail orders in Crime Nos.359 of 2019 and 15 of 2020. Similarly, in the statements of witnesses 'A' and 'B', Deputy Superintendent of Police, Aurangabad, has made an endorsement that he had examined the witnesses and found that the statements tallied with in-camera statements recorded by the sponsoring authority and that it was genuine and that the apprehension expressed by the witnesses was genuine.
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27. Reliance was also placed on the case of Dharani Raja Padyachi Vs. The State of Maharashtra & Ors [2019 ALL MR (Cri) 3504] in which it has been held that, "undisputedly, the detention order was made on 6 th November 2018. As refected from the afdavit of the State, report under Section 3(3) of the said Act was received by the State from the Detaining Authority on 14th November 2018. In the matter of Hetchin Haokip [2018 ALL SCR (Cri) 1240] (supra) the Honourable Apex Court has interpreted the terms "forthwith" by holding that this term does not mean instantaneous, but it means without undue delay and within reasonable time. Paragraph 15 and 16 of that judgment clinches the issue. Those read thus:
"15. The expression "forthwith" under Section3(4) must be interpreted to mean within reasonable time and without any undue delay. This would not mean that the detaining authority has a period of twelve days to submit the report (with grounds) to the State Government from the date of detention. The detaining authority must furnish the report at the earliest possible. Any delay between the date of detention and the date of submitting the report to the State Government, must be due to unavoidable circumstances beyond the control of the authority and not because of administrative laxity."
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28. As indicated above, the detention order was passed on 12.03.2020 and the papers were sent for approval to the State Government on 14.03.2020, therefore, there was no delay on the part of the detaining authority in forwarding the papers to the State Government for approval.
29. Reliance was also placed on the case of Kiran Dhanraj Kharat Vs. The Commissioner of Police, Pune & Ors. [2018 ALL MR (Cri) 4269], in which it has been held that, "we have gone through the grounds of detention, documents on record and an index of compilation of documents. On perusal of the grounds of detention, it can be seen that in paragraph 1 of the said grounds the detaining authority has stated that the Petitioner is being communicated the grounds as mentioned in paragraph No.5.1, 5.2, 6.1 and 6.2 below on the basis of which the detention order has been passed by the detaining authority under Section 3(2) of the said Act. It is further stated that the copies of documents placed before the detaining authority on which she has relied and formed her subjective satisfaction are enclosed. The list of documents annexed to the Petitioner's Exhibit-C refers to several documents relating to the ofences registered against the Petitioner. These documents includes the list of documents which were supplied to the Petitioner and that ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {23} CRI WP 559 of 2020 some of them refers to the previous ofences i.e. C.R.No.67 of 2014, C.R.No.270 of 2014, C.R.No.113 of 2015, C.R.No.342 of 2016 or registered with Bandgarden Police Station and C.R. No.100 of 2016 registered with Samarth Police Station. The documents also includes the preventive actions initiated against the Petitioner vide Chapter case No.34 of 2016 and Externment Order No.27 of 2017. The reference to this case and preventive action is made in paragraph 3 of the grounds of detention. It is also pertinent to note that in Paragraph 4 it is stated that on going through the criminal record, it is evident that the Petitioner is a habitual and dangerous criminal involved in serious and violent crimes and that preventive action was initiated against him. The introductory paragraph of grounds of detention categorically states that the grounds on the basis of which the detention order has been issued are refected in paragraph referred to therein. However, paragraph 8 of the grounds of detention mentioned and the detaining authority has carefully gone through the material placed before her and is subjectively satisfed that the Petitioner is acting in a manner prejudicial to the maintenance of public order. Thus, the subjective satisfaction of the detaining authority is based on the entire material placed before her. The entire material in the form of documents placed before the detaining authority includes the ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {24} CRI WP 559 of 2020 cases registered against the Petitioner in the year 2014, 2015, 2016 and the preventive action initiated against him which are refected in paragraph 3 of the grounds of detention. Thus, while recording this subjective satisfaction, it is apparent that the detaining authority has relied upon the extraneous material. The approach shows total non-application of mind on the part of the detaining authority."
30. Nothing has been placed on record to show that the detaining authority has not applied its mind and has not reached the subjective satisfaction. Moreover, even if the conviction under Section 142 of the Bombay Police Act is kept aside, there was enough material before the detaining authority to come to the conclusion that the activities of the detenu are prejudicial to the maintenance of the public order. Crime No.359 of 2019 shows that detenu had robbed the informant of Rs.230/- and has also robbed the Moped. Similarly in Crime No.15 of 2020, the detenu had robbed the informant of Rs.1,700/- and had also inficted injury on his person by blade and had snatched the mobile of the informant. This shows that even if the conviction under Section 142 of the Bombay Police Act is ignored, the activities of the detenu indicate that he is acting prejudicially to the maintenance of public order.
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31. Reliance was also placed on the case of Narendra @ Chotya Mahadev Balkawade Vs. The Commissioner of Police, Pune & Ors. [2020 ALL MR (Cri) 862] . In this case, it has been held that, "when there is undue and long delay between the prejudicial activities and the passing of the detention order, the Court has to scrutinize whether the detaining authority has satisfactorily examined such a delay and aforded a tenable and reasonable explanation as to why the delay has occasioned, when called upon to answer and further the Court has to investigate whether the casual connection has been broken in the circumstances of each case. For the same purpose, reliance was placed on the case of Shri Sandeep @ Shankar Vasant Khalase Vs. The Commissioner of Police, Pune City & Ors. [2018 ALL MR (Cri) 2512].
32. This authority does not apply to the facts of the case at hand. In the case of Narendra @ Chotya Mahadev Balkawade (cited supra) there was delay of 14 days in forwarding the proposal by Additional Commissioner of Police, West Region, Pune to PCB Crime Branch, Pune, had remained unexplained. There was also delay of 9 days in forwarding the said proposal by the Joint Commissioner of Police to the Commissioner of Police, Pune City, Pune. In the case in hand, the ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {26} CRI WP 559 of 2020 proposal was immediately forwarded to the State Government by the detaining authority. Moreover, in the case of Hasan Khan Ibne Haider Khan Vs,. R.H.Mendonca and Others [2000 ALL MR (Cri) 1070 SC], it has been held as under:
"12. Mr.Jain has further submitted that there was delay in passing the detention order. We fnd that the inquiry was completed during the last past of February at the level of Deputy Commissioner of Police and the fnal order was passed on 12-4-1999. It cannot be said that there was undue delay and action was being taken in a routine manner, as after completion of inquiry the matter had to be examined at various levels and fnally the orders were passed by the Commissioner."
Therefore, it cannot be said that there was delay in passing detention order.
33. Now, the question is of acting prejudicially to the maintenance of public order. In the case of T. Devki Vs. Government of Tamil Nadu and others reported in [(1990) 2 Supreme Court Cases 456] . The Honourable Supreme Court in paragraph No. 18 of the order has dealt with this aspect of the matter as under :-
"18. Any criminal ofence is bound to some extent afect the peace prevailing in the locality and it may also afect law and order problem but the same need not afect maintenance of public order. There is basic diference between 'law and order' and 'public order', this aspect has been considered by this Court ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {27} CRI WP 559 of 2020 in a number of decisions, see: Dr. Ram Manohar Lohia v. State of Bihar, Pushkar Mukherjee v. State of West Bengal and Shymal Chakraborty v. Commissioner of Police, Calcutta. In these cases it as emphasised that an act disturbing public order is directed against individuals which does not disturb the society to the extent of causing a general disturbance of public peace and tranquility. It is the degree of disturbance and its efect upon the life of the community in the locality which determines the nature and character of breach of public order. In Arun Ghosh v. State of West Bengal, the court held that the question whether a man has only committed a breach of law and order, or has acted in a manner likely to cause disturbance of the public order, is a question of degree and the extent of the reach of the act upon the society. This view was reiterated in Nagendra Nath Mondal v. State of West Bengal, Sudhir Kumar Saha v. Commissioner of Police, Calcutta, S.K. Kedar v. State of West Bengal, Kanu Biswas v. State of West Bengal, Kishori Mohan Bera v. State of West Bengal and Amiya Kumar Karmakar v. State of West Bengal."
34. The above observations of the Hon'ble Supreme Court indicate that there is fundamental diference between law and order and public order. It is the degree of disturbance and its efect upon the life of the community in the locality which determines the nature and character of breach of public order. It is further held that whether there was a breach of law and ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {28} CRI WP 559 of 2020 order or the activities were likely to cause disturbance to the public order is a question of degree and the extent of the reach of the act upon the society.
35. In the case at hand, two crimes under Sections 392, 394, 398, 504, 506 read with 34 of the IPC and 394, 324, 324 of the IPC respectively have been registered against the detenu. Witnesses are not coming forward to depose against him nor anyone dares fle complaint against him. Witness 'A' has stated that the incident was witnessed by many, but nobody came forward to help him. He also did not lodge report against the detenu fearing the reign of terror created by the detenu. Witness 'B' has also stated that he did not disclose this incident to anyone. This incident was witnessed by many, but nobody came to his rescue. He did not disclose this incident to anyone and went home directly. This clearly shows that the detenu has created reign of terror and fear in the minds of public because of which nobody dares come forward to lodge report against him or to give evidence against him. Both these witnesses requested to keep their identities confdential. This clearly shows that none of the members of public is ready to come forward to give evidence against the detenu because of atmosphere of terror created by him. The detaining authority has also considered that ::: Uploaded on - 05/08/2020 ::: Downloaded on - 05/08/2020 23:18:07 ::: {29} CRI WP 559 of 2020 the detenu is jobless. Having regard to this, it has to be said that the detenu is acting prejudicially to the maintenance of public order. Therefore, the detaining authority was perfectly justifed in coming to the conclusion that the detenu being at large is prejudicial to the maintenance of public order.
36. Thus, having regard to what is stated herein above, there is no substance in the Writ Petition. Hence, it is dismissed. Rule is discharged.
( M.G.SEWLIKAR ) ( T.V.NALAWADE )
JUDGE JUDGE
SPT
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