Bombay High Court
Shri Indrajit Goswami vs Shri R.H. Mendonca Commissioner Of ... on 16 April, 1999
Equivalent citations: 1999(5)BOMCR691, 1999CRILJ4332
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
ORDER T.K. Chandrashekhara Das, J.
1. Challenge in this petition is directed against the order passed by R.H. Mendonca, Commissioner of Police, Brihan Mumbai dated 16th April, 1998 ordering the detention of the petitioner under the provisions of The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-offenders Act, 1981 (hereinafter called the Act). Annexure-A to the petition is the said order. Annexure-B to the petition is the grounds of detention. In the grounds of detention, it is stated that the petitioner along with other two of his associates became persons dangerous to the life of people residing in the areas of Chamdewadi, Kherwadi Road, J.P. Road, Teen Bunglow, Jawahar Nagar, Adarsh Lane, Maratha Colony, Deepak Wadi, Service Road, Khar (East) and the areas adjoining thereto in the jurisdiction of Nirmal Nagar Police Station in Brihan Mumbai. It is further stated in the order that the petitioner and his associates Hemant Surti Murti and Ajay Kasare are the weapon weilding desperado, unleashing a reign of terror in the aforesaid areas.
2. On 1-12-1997 at about 2.30 p.m. while one Sunil Ramchandra Singh was returning home along Service Road, at that time the petitioner and his associates aforementioned, approached him at Hanuman Mandir when Hemant Surti Murti dealt blows with chopper on the head of Sunil Singh and another associate, Ajay Kasare gave a blow with sword over his left arm pit. Sunil Singh turned back and at that time the petitioner assaulted him with chopper on his left shoulder, thereby Sunil Singh sustained grievous injuries. When Sunil Singh managed to free himself from the detenu and his associate's clutches and started running away, the detenu and his associates chased him for a distance brandishing their weapons. Seeing this terrible scene people started running helter-shelter. One of his friend Khalil took Sunil Singh to Dr. V.N. Desai Hospital for treatment. An offence under section 326 of I.P.C. was registered against the detenu and his associates at Nirmal Nagar Police Station on 1-12-1997. They were thereupon arrested and produced in the Court of the Metropolitan Magistrate, 32nd Court. Bandra and the Magistrate released them on bail on 8-12-1997.
3. It is revealed from the grounds of detention that while the investigation was going on with regard to the above offence, it has come to the knowledge of the police that after releasing the petitioner and his associates on bail, they still continued their dangerous activities thereafter. The people were afraid of coming in open to make complaint against them because they are a terror in the locality. But however the police could record two 'in camera' statements on the assurance of keeping them anonymous. In the detention order it is stated that witness 'A' is residing at Adarsh Lane, Khar (East), Mumbai-51. In his statement dated 16-3-1998 he has stated that he undertakes contracts of construction works. He knows the detenu and his associates as goondas. He stated that the detenu and his associates are always carries sword, chopper, gupti and knife in order to create terror in the mind of the people in the locality for committing heinous offences such as assault, extortion and collecting hafta from the residents, hawkers and traders.
4. This witness in his statement recorded 'in camera' stated that in the first week of February 1098 at 11.30 a.m. when he was constructing a room at Adarsh Lane, Khar (East), the detenu and his associates approached him and caught hold of his shirt collar and whipped out chopper and put it on the stomach of the witness and demanded Rs. 10,000/-. Seeing this scene, the nearby residents closed their doors, pedestrians on the road, and, hawkers started running helter-shelter. The detenu and his associates threatened his workers to sit at one place. However out of the seriousness of situation and mortal fear, witness promised him that he will pay the amount on the next day. Inspite of the promise, the detenu took out forcibly Rs. 4,500/- from his pocket and threatened him saying that if he went to police station, his limbs will be cut. Due to revengeful attitude of the detenu and his associates, witness did not dare to lodge complaint.
5. The grounds of detention gives another account of the dangerous activities of the detenu which according to the witness 'B' had occurred in second week of February 1998. At about 4.30 P.M. witness 'B' was present in his vegetable shop, situated at J.P. Road, when the detenu approached him along with his associates and demanded Rs. 500/- as hafta. The witness expressed his inability to pay the amount immediately. But the detenu and his associates whipped out chopper and put it on the stomach of the witness and threatened him. Seeing this scene, the nearby hawkers, pedestrians on the road, rickshawala started running helter-shelter and shopkeepers closed their shops when the detenu kicked and fisted him and robbed him of Rs. 350/- from his money box. While leaving, the detenu and his associates threatened witness 'B' saying that if he report to the police, his place of business will be sold to somebody and due to terror and revengefully attitude, the witness did not dare to lodge complaint. From these facts the Detaining Authority came to the conclusion that the petitioner and his associates are to be detained in custody under the Act.
6. Shri R.H. Mendonca, Commissioner of Police, Mumbai filed an affidavit in this case justifying the order of detention. C.K. Kanekar, Secretary, Advisory Board, Home Department (Special), Mantralaya also filed a reply affidavit in this case.
7. The learned Counsel for the petitioner Shri Tripathi raised three questions in this writ petition. He submits that while the detenu making a representation to the Advisory Board, he has offered for examination of the witnesses. The Advisory Board has not given that opportunity. This omission on the part of the Advisory Board according to the learned Counsel, vitiates the detention order. In as much as it violates the right given to the detenu under Article 22(5) of the Constitution of India.
8. We have examined the representation and we also examined the affidavit of the Secretary, Advisory Board. The Secretary of the Advisory Board in his affidavit in paras 3 and 4 says as under :-
"Thereafter, the detenu was interviewed by the Hon'ble Advisory Board, I was present at that time. The Hon'ble Advisory Board carefully went through the representation of the detenu and on going through the para No. 5 of the representation the detenu was specifically asked whether he wishes to examine any witnesses to which the detenu replied in negative. Thus, the detenu was not deprived from making an effective representation before the Hon'ble Advisory Board. The Hon'ble Advisory Board has taken into consideration the submissions of the detenu as well as the contents of his written representation. Thus, there is no merit in the say of the petitioner in this para.
I reiterate that the detenu was given sufficient opportunity to put up his case before the Hon'ble Advisory Board. A specific query was also made to the detenu at the time of the Board Meeting whether he wanted to examine any witnesses, however, the detenu replied in negative. Thus, there is no merit in the say of the petitioner in this para."
In the light of the categorical statement made by the Secretary, Advisory Board, we do not think that there is any merit in the contention raised by the learned Counsel for the petitioner.
9. The learned Counsel for the petitioner in this context brought to our notice the decision of the Supreme Court rendered in Criminal Appeal No. 55 of 1986 dated 14-1-1986 wherein the decision of the Supreme Court in A.K. Roy v. Union of India, was relied upon and has observed that the detenu has a right to be represented by a friend of his choice and that he has right to examine witnesses to rebut the allegations made against him. The Supreme Court in that case has found that it does not appear from the record placed before us that the written request of the detenu was ever considered. We are afraid that the aforesaid decision will not render any help to the petitioner's case. As we observed earlier, the affidavit of Secretary, Advisory Board in this case has clearly and unambiguously stated that the Advisory Board had asked the petitioner as to whether he intended to examine any witness and as the petitioner has answered in negative, no witness was examined at that time. Therefore the decision cited by the learned Counsel for the petitioner cannot, on facts, be applicable in this case. On this ground the point urged by the petitioner based on the non examination of the witness by the Advisory Board has to be decided against the petitioner.
10. Shri Tripathi the learned Counsel for the petitioner next contended that there is a delay in between the incident occurred on 1-12-1997 and the passing of the detention order. According to him because of this delay in passing the detention order dated 16-4-1998, i.e. a long delay of about 5 months resulted in snapping the livelink between the commission of offence and the detention order. In other words, he submits that as livelink is snapped one cannot say that the propensity and the potentiality to commit the offence again by the detenu does not exist. In this context, we have to refer to the affidavit of Shri Mendonca, Commissioner of Police, where he in all details, dealt with this aspect of the matter. He stated in para 10 of the reply that on account of the incident occurred on 1-12-1997 pertaining to C.R. No. 296 of 1997 the detenu was arrested. After the arrest of the detenu further investigation was carried out and charge-sheet was filed on 20-1-1998 in the Court of Metropolitan Magistrate, Bandra. It is stated in the affidavit, that during the course of investigation it was learnt that the detenu had committed several offences but witnesses were not willing to come forward to make any complaint openly, due to reign of terror which was created by the detenu and his associates in the locality. The assurances given to the witnesses that their names and identity will not be disclosed, and then only two witnesses came forward to give their statements. Their statements were recorded on 16-3-1998 and the proposal for keeping the petitioner and his associates under the detention was forwarded on 20-3-1998 and the proposal as a part of procedural formality first sent to the Assistant Commissioner of Police, Dharavi Division. After going through the proposal he gave his endorsement thereon on 21-3-1998 and then papers were forwarded to the Deputy Commissioner of Police, Zone VIII. After obtaining his endorsement thereon on 23-3-1998 the papers came to be forwarded to the Senior Police Inspector, P.C.B.C.I.D. He went through all the papers and prepared the detailed note and forwarded the papers to the Selection Grade Police Prosecutor for his opinion. After the Selection Grade Police Prosecutor gave his opinion on 25-3-1998 the papers were forwarded to the Assistant Commissioner of Police (P). He went through the papers and gave his endorsement on 26-3-1998. Then the papers were forwarded to the Deputy Commissioner of Police (P) and he gave his endorsement on 27-3-1998. Thereafter it was forwarded to Additional Commissioner of Police (Crime) and he gave his endorsement on 31-3-1998 and sent the papers to Joint Commissioner of Police for his recommendation and he gave his recommendation on 2-4-1998. After the Detaining Authority had carefully gone through the opinion and the notes forwarded to him by the above officers, he gave the endorsement on 3-4-1998 and then he forwarded the papers to the Sponsoring Authority on 4-4-1998 and all the necessary documents were received in the office of the Senior P.I. P.C.B. C.I.D. as per the procedure on 13-4-1998. He checked all the documents and put them before the D.C.P. He went through all the papers and after putting his endorsement thereon he submitted the proposal and the papers to the Detaining Authority. The Detaining Authority in his affidavit dated 16-4-1998 stated that he once again carefully went through the proposal and papers accompanying the same and finalized the grounds of detention and contemporaneously issued the Order of detention on 16-4-1998.
11. On going through the above minutes details of moving of papers through the hierarchy of administration, we do not think that the argument of Shri Tripathi has any merit. The Detaining Authority in his affidavit, as observed above, has explained all the days from the day one of the arrest of the detenu and the passing of the detention order. We are fully satisfied that this period from 20-12-1997 to 16-4-1998 is well explained.
12. In this context it is relevant to emphasize that the delay in order to snap the livelink must be the delay, from the dates of committing series of incidents, to the passing the order of detention. As pointed out earlier, as per the statement of the witnesses recorded by the police, the Investigating Officer, the last incident occurred on 2nd week of February 1998. Taking into account this date, the delay to pass the order of detention would be only hardly two months. The learned Additional P.P. Shri Rajiv Patil brought to our notice a decision of the Supreme Court in Rajendrakumar v. State of Gujarat, where the Supreme Court held that mere unexplained delay will not ipso facto give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. It is profitable in this context to refer the observation of the Supreme Court in the aforesaid decision in paras 11 and 12 of the judgment.
11. "In the present case, the direct and proximate cause for the impugned order of detention was the importation in bulk of Indian made foreign liquor by the appellant acting as a broker from across the border on the night between 29/30th December, 1986. The District Magistrate in the counter-affidavit has averred that it was revealed from the statements of the -witnesses recorded on 4th January, 1987 that the appellant was the person actually involved. Apprehending his arrest the appellant applied for anticipatory bail On 21st January 1987. It appears that on the same day the appellant (sic) appears to have made a statement that there was no proposal at that stage to arrest the appellant. However, later it was discovered that there was no trace of the appellant. He was arrested on 2nd February, 1987 and on the same day he made a statement admitting these facts. Meanwhile, the proposal to detain the appellant was placed before the District Magistrate. It is averred by the District Magistrate that on a careful consideration of the material on record he was satisfied that it was necessary to make an order of detention of the appellant under section 3(2) of the Act and that accordingly on 28th May, 1987 he passed the order of detention, The appellant was taken into custody on 30th May 1987. He had forwarded the report to the State Government on the 28th and the Government recorded its approval on the 31st.
12. Even though there was no explanation for the delay between 2nd February and 28th May, 1987 it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. There is a plethora of decisions of this Court as to the effect of unexplained delay in taking action. These are admirably dealt with in Durga Das Basu's Shorter Constitution of India, 8th Edn. at P. 154. We will only notice to a few salient decisions. In Olia Mallick v. State of West Bengal, it was held that mere delay in making the order was not sufficient to hold that the District Magistrate must not have been satisfied about the necessity of the detention order. Since the activities of the detenu marked him out as a member of a gang indulging systematically in the cutting of aluminium electric wire, the District Magistrate could have been well satisfied, even after the lapse of five months that it was necessary to pass the detention order to prevent him from acting in a manner prejudicial to the maintenance of the supply of electricity. In Golam Hussain v. Commr. of Police, Calcutta, , it was held that the credible chain between the grounds of criminal activity alleged by the Detaining Authority and the purpose of detention, is snapped if there is too long and unexplained an interval between the offending acts and the order of detention. But no 'mechanical test by counting the months of the interval' was sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. The Court has to investigate whether the casual connection has been broken in the circumstances of each case. In Odut Ali miah v. State of West Bengal, where the decision of the Detaining Authority was reached after about five months, Krishna Iyer, J., repelled the contention based on the ground of delay as a mere 'reed of straw' and it was held that the 'time-lag' between the dates of the alleged incidents and the making of the order of detention was not so large that it could be said that no reasonable person could possibly have arrived at the satisfaction which the District Magistrate did on the basis of the alleged incidents. It follows that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. In Vijay Narain Singh v. State of Bihar, , one of us, Sen, J., observed:
"On merits the impugned order cannot be said to be vitiated because of some of the grounds of detention being non-existent or irrelevant or too remote in point of time to furnish a rational nexus for the subjective satisfaction of the Detaining Authority. It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order."
See also : Gora v. State of West Bengal, , Raj Kumar Singh v. State of Bihar, and Hemlata Kantilal Shah v. State of Maharashtra, ."
13. The above cited decision Supreme Court was dealing with the unexplained delay. But here in this case we see that the delay was well explained and therefore we cannot come to the conclusion that there is any delay at all to raise an inference that there is really nexus between the prejudicial activities and the impugned order of detention. In view of this discussion, we find that the point raised by the petitioner with regard to the delay is also found to be unsustainable.
14. Lastly the learned Counsel for the petitioner Shri Tripathi submits that taking into account the conduct of the detenu it cannot be said that public order is affected in order to invoke the provisions of the Act. He submits that at the most the conduct of the detenu is said to be only relating to law and order. The Detaining Authority in para 12 of its reply has stated thus :-
12. With reference to Ground 'E' of the petition, it is denied that the present Detention Order has been issued only on the basis of the C.R. No. 296 of 1997 and that the said incident was not such which would disturb the public order or even tempo of the life of the society. I say that the present Detention Order has been issued on the basis of three incidents i.e. incidents which occurred on 1-12-1997, incident which occurred in the First Week of February 1998, and the incident which occurred in the Second Week of February 1998; In the present case, the nature of the prejudicial activities, the manner of its commission and other attendant circumstances were such that I was subjectively satisfied that unless preventively detained the detenu would continue to indulge in similar prejudicial activities in future. I say that all the incidents which are relied upon by me for issuing the order of detention are germane to the issue of public order. All these incidents, in which the detenu has involved himself are law and order but they are activities which prejudicially affect the maintenance of public order.
In the first case i.e. the incident which occurred on 1-12-1997, the detenu along with his associates assaulted the complainant Sunil Singh with deadly weapons. The detenu at that time was armed with deadly weapon i.e. chopper. On seeing the detenu and his associates armed with deadly weapons the nearby residents closed their doors and windows. This fact has been specifically stated by the eye witness Shri Khalil Deshmukh. The other two incidents upon which I had placed reliance are that of extortion at the point of deadly weapons. It is submitted that acts of extortions have a direct nexus with the maintenance of public order.
In the incidents pertaining the witness A, the detenu caught hold of him and put the chopper to the stomach of the witness and demanded Rs. 10,000/. The detenu robbed him of Rs. 4,500/- and also threatened him with dire consequences. On seeing this scene, nearby residents closed their doors and the pedestrians and hawkers started running helter shelter. In the incident pertaining to witness 'B' the detenu put the chopper to the stomach of the witness and threatened him. He also assaulted him and robbed the money from his money box. On seeing this scene, nearby residents closed their doors and the hawkers, pedestrians and rickshawalas started running helter shelter.
It is submitted that both these incidents are grave and serious incidents of extortion at the point of deadly weapons. The motive behind it is that of getting easy money from the business community and other people. In each case, the activities of the detenu have the potentiality, reach and effect to adversely affect the even tempo of the life of the society, falling within the jurisdiction of Nirmal Nagar Police Station, Each incident is a link in the chain of antisocial criminal activities of the detenu, showing the continuity in his nefarious behaviour. It is submitted that because of the acts of the detenu it had created a feeling of insecurity, fear and danger in the minds of the people in that area. I say that there is ample material on record that the activities of the detenu are capable of disturbing the public order. I say that the activities of the detenu cannot be separated from their antisocial background and viewed in isolation. Therefore, there is no substance in the contentions raised by the petitioner in this para."
15. On going through the above pleadings in the reply, we cannot agree to the submission made by the learned Counsel for the petitioner. All the incidents including the incident of 1-12-97 did create a havoc and scarce in the mind of the public. The activity tends to terrorise the public as those activities are done in the broad day light in front of the public. Therefore the manner in which the offence was committed by the detenu was definitely with a view to unleash reign of terror in the mind of the public in order to enabling him to continue his illegal activities of extortion and force. All the activities of the detenu and his associates wilt go to show that the detenu and his associates are weapon weilding desperados which affects the public order of the locality. The affidavit has clearly spelt out that the witnesses were not coming forward freely as they are totally afraid of making the complaints against the detenu. In view of above pleadings we have no hesitation to hold that the activities of the detenu tend to create a dread in the minds of the public and it vitally affected the public order and tranquility of the society. In this context the learned Addl. P.P. Shri Rajiv Patil has brought to our notice a decision reported in 1994 Cri.L.J. page 2443 Where a Division Bench of this Court in Smt. Jaya Denieel Lobo v. A.S. Samra and others, and was relying upon the observations in the decision of the Supreme Court in Ram Manohar Lohia v. State of Bihar, which extracted below.
"Justice Hidayatullah, as the learned Chief Justice then was, and Justice Bachhawat observed in the said decision that the satisfaction of the Detaining Authority cannot be subjected to objective tests and courts are not to exercise appellate powers over such authorities and an order proper on its face, passed by a competent authority in good faith, would be a complete answer to a petition for a writ of habeas corpus. But when from the order itself circumstances appear which raise a doubt whether the officer concern had not misconceived his own powers, there is need to pause and enquire. The enquiry then is, not with a view to investigate tile sufficiency of the materials but in the officer's notions of his power. If the order passed by him showed that he thought his powers were more extensive than they actually were, the order might fail to be a good order. When the liberty of the citizen is put within the reach of authority and the scrutiny by courts is barred, the action must comply not only with the substantive requirements of law but it should be with those forms which alone can indicate the substance. The learned Judges further observed that the contravention "of law" always affects 'Order" but before it could be said to affect "Public Order" it must affect the community or the public at large. One has to imagine three concentric circles, the largest representing 'law and order', the next representing 'Public order' and the smallest representing 'Security of State'. An act may affect 'Law and order' but not 'public order', just as an act may affect 'Public Order' but not 'Security of the State'. Therefore one must be careful in using these expressions.
The test is: Does it lead to a disturbance of the even tempo and current life of the community so as to amount to a disturbance of the public order, or does it affect merely an individual without affecting the tranquility of society. This Court found in that case that however reprehensible the appellants conduct might be, it did not add up to the situation where it may be said that the community at large was being disturbed. Therefore, it could not be said to amount to an apprehension of breach of public order, and hence he was entitled to be released."
16. As is elucidated from the above paragraph in the judgment of the Supreme Court, it is clear that in order to call as prejudicial activities which effect a public order actual offence committed by the detenu is primary concern. If that conduct or act of the detenu goes to disturb the tranquility and peace of the community then definitely it affects the public order and the relevant provision of the Act can be invoked. In the reply filed by the respondents as quoted above, a strong case has been made out by the Detaining Authority to detain the petitioner. In view of this, we have to reject the last contention of the learned Counsel for the petitioner Shri Tripathi.
17. In the result we find no merit in the petition. The petition is therefore dismissed. No order as to costs.
18. Petition dismissed.