Bombay High Court
Smt Kailas Laxman Joshi vs B. Akashi Commissioner Of Police, Thane ... on 16 June, 1994
Equivalent citations: 1994(4)BOMCR147, 1995CRILJ231
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Rane, J.
1. The petitioner in this petition has challenged the detention order dated 8-2-1994 issued and served by the 1st respondent, Commissioner of Police, Thane in exercise of the powers conferred under sub-section (2) of Section 3 of the National Security Act, (hereinafter referred to as the 'Said Act') read with Government Order, Home Department (Special) No. NSA. 2394/2/SPL. 3(B) dated 28-1-1994 with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order.
2. The detaining authority has relied upon the material normally called as grounds for detention which consists of (i) a case registered against the petitioner for the offence punishable u/s. 363, 384 read with Section 34 of the Indian Penal Code i.e. for abduction of a businessman and a builder; (ii) an anonymous written complaint about the prejudicial activities of the petitioner and his associates of the activities of indulging in extorting ransom amounts under threat of deadly weapons from the businessmen; (iii) in-camera statements recorded by the concerned police agency which as will be pointed out hereinbelow also mentions the incidents of ransom demands made by the petitioner and his associates upon the businessmen who have made the said statements.
3. Before we proceed to note the grounds of detention relied upon by the detaining authority while passing the impugned detention order it will be convenient to spell out the precise grounds of challenges levelled by the petitioner in assailing the detention order. At the outset it may be stated that while advancing submissions the reference is made and reliance is placed on various decisions of the Apex Court so also of this Court. Points with considerable significance have also been urged and agitated in the background and in the context of ratios of the judicial pronouncements on the subject. These aspects will be dealt with in details in the course of judgment. The grounds upon which the impugned order is challenged by the petitioner may be neatly summarised as under :
(i) Delay in issuance and execution of the impugned order of detention;
(ii) Inordinate and unjustified delay in consideration of his representation submitted before the Central Government-respondent No. 4 herein;
(iii) The alleged activities attributed to the petitioner and relied upon as grounds in support of detention order do not pertain to public order; and
(iv) Placing reliance upon the material obtained in the form of "in-camera statements of the witnesses" as a ground of detention is illegal and malafide exercise of the powers.
4. Before we consider the submissions on the aforesaid points in the light of the facts and circumstances as obtained in the matter herein and the various decisions referred to by both the parties it is thought necessary to notice the grounds of detention furnished alongwith the detention order by the detaining authority. The same are reproduced in verbatim because of the nature of challenge as referred to above.
"3(a). Complainant Lalchand Mohandas Gangwani aged 30 years dealing in Embroidery Work is residing at 103, Kala Mandir Apartment, Ist floor, Vasansha Bazar, Ulhasnagar, Camp No. 5 alongwith his brother Ishwarlal. He owns room No. 11 and 12 in Barrack No. 1840 of Section 38. He does the business of Embroidery at the said rooms. He started constructing bungalow at the said place. On 18-11-1993 at 9.00 a.m. he attended his business as usual. On that day at about 10 a.m., you alongwith your two associates (1) Baliram Damu Bhoir, (2) Ganesh Kundalik Mhatre came in autorickshaw No. MWU/6610 to the above said business place and asked complainant whether his name was Lalchand. On confirming the name, you enticed him to accompany you on the pretext that you wanted to have some talks with him. Therefore, complainant's workers Prakash Mangalmal Motha and Jaipal Vishnudas Jariayani also followed him. When all of you came near Anantpuri Ashram you asked the complainant, "YE BUILDING KA KAM KISKE CHALU HAI". Over this complainant replied as, "HAMARA HAI". You forced the complainant and his two colleagues to sit in the rickshaw on the pretext that you wanted to converse with him. You and your associates sat on their laps. Thereafter, you brought them in the said rickshaw to Samata Nagar. You and your associates compelled them to walk. When all of you went across the Nallah, you told him, "TUM BUILDING BANATA HAI. HAMKO DO LAKH RUPYE DO". Complainant expressed that he had no money. Over this you and your associates took out knives and razor and threatened them that if they failed to pay the ransom amount within an hour, they would be finished. Complainant asked his colleague Prakash to arrange amount of Rs. 40/50 thousand from anybody. You and your associates allowed Prakash to go for bringing money. You took the complainant near a Zopadi where you and your colleagues consumed Beer. The colleague of complainant sought money from Ghanshyam Chandwani, Giridhar Ramchand and Mukesh Bubudas Mata collectively Rs. 50,000/- and paid the said amount to you and on receipt of this amount you allowed the complainant and his colleagues to go. This news was spread in the locality and in the business community resulting fear and panic in their mind and thus public order was disturbed. One Shri Manik Gangwani informed this on telephone to Hill Line Police Station whereupon Police arrived on the spot, visited the scene of offence and a Criminal case vide Hill Line Police Station C.R. No. 1-154' 1993 under section 363, 384, 34 I.P.C. came to be registered. During the course of investigation, the concerned rickshaw driver was traced and you were arrested in this case on 19-11-1993. Your other associate Baliram Damu Bhoir and Lakhu Ramchandra Kamdar were arrested on 29-11-1993 and 4-1-94 respectively. One of your associates Ganesh Kundalik Mhatre has been arrested on 9-1-94. A knife used in the commission of offence was recovered at your instance on 21-11-1993. You were produced in the court of J.M.F.C. Ulhasnagar on 22-11-1993 and you were released on bail of Rs. 2000/- on the same day. The case is under investigation.
(b) An anonymous application dated 18-11-1993, addressed to Police Inspector Hill Line Police Station was received by P.I. Hill Line Police Station. It is alleged in the said application that you and your associates take recourse to assault and thereby extort ransom money. Due to fear and reprisal from you and your associates nobody comes forward to lodge complaint against you and your associates. You and your associates have created a reign of terror in camp No. 5. One month prior to this application, you entered a shop of businessman and forcibly took Rs. 1200/- to Rs. 1300/- from cash box and while leaving the shop, you threatened the shop owner that if he complained to police against you, his shop would be burnt. The applicant requested confidential enquiry and preventive action. Police inspector Hill Line Police Station conducted confidential enquiry into the application, but due to fear and reprisal of you and your associates no person came forward to give evidence or to make statement against you and your associates openly. However, on the assurance that their names and identities will not be disclosed and that they will not be called to give evidence against you in any court, the Police Inspector Hill Line Police Station could record statement of four witnesses, which were recorded 'in-camera'. The gist of their statements is as under :-
(i) 'A' states that he is a Dealer in whole-sale grains. He knows you as bad character and that you and your associates indulge in extortion at the point of deadly weapons, you and your associates always move with knives, Gupti and Swords. You have created a reign of terror in the locality. Nobody comes forward to lodge complaints against you openly. On 9-11-1993 at about 20.00 hours when Shri 'A' was closing his shop, you and your 4/5 associates came with deadly weapons and took out Rs. 2000/- forcibly from cash box. Further you asked him to pay Rs. 500/- p.m. by way of 'Hapta'. You warned Shri 'A' that he would be dealt with severely if he lodged complaint against you or failed to pay monthly Hapta. Due to fear of reprisal from you, Shri 'A' did not lodge his complaint at the Police Station and he is also not willing to depose against you openly and requested to keep his name secret.
(ii) Shri 'B' states that he is having a Kirana Shop. He earns his livelihood on this business. He knows you as a goonda and gang leader indulging in extortion. You move alongwith your associates in Camp No. 1 to 5 and collect 'Hapta'. On 15-11-1993 at 1500 hours, you and your 8/10 associates went to his shop, took out Rampuri knife from pant pocket and put it on table and took away Rs. 800/- to 900/- forcibly and asked him to pay Rs. 400/- per month as a 'Hapta' else he would not survive and his shop would not exist. Due to fear of you and your associates, he has not lodged any complaint at the Police Station. He requested to keep his statement confidential. He is also unwilling to depose against you openly.
(iii) Shri 'C' states that he is having his whole sale readymade cloth shop. On 5-12-1993, you and your 3/4 associates of goonda nature went to his shop and questioned him whether he knew them and so saying took out Rs. 700/- from his person by putting a knife on his chest. Like others, Shri 'C' is also unwilling to lodge complaint against you for fear of reprisal from you and your associates.
(iv) Shri 'D' states that he is a Goldsmith by profession and earns his livelihood on that business. He knows that you are a resident of village Manera and gangster creating reign of terror in the locality, hence nobody complains to the Police against your terrorism. On 11-12-93 at about 20.00 hours, you went to him and asked for 'Hapta' of Rs. 300/- per month and threatened with murder if demand was not fulfilled. You took out Gupti and put it on his chest and took out Rs. 250/- from his person. You warned 'D' that he would be eliminated, if he complained to the police. Like all the above three persons, he is also not willing to go to Police for complaining against you. He has requested to keep his statement confidential.
The names and other particulars of above witnesses referred to in ground 3(b)(i) to (iv) are not being disclosed to you in public interest for which I claim my privilege.
4. From the above mentioned incidents, it will be seen that you are goonda indulging in violent terrorising and extorting activities in Ulhasnagar Camp No. 1, 2 and 5 area in the limits of Ulhasnagar and Hill Line Police Station under Thane Police Commissionerate. You and your associates at the point of deadly weapons are indulging in threatening, kidnapping, assaulting, and extorting activities in above areas and have created a reign of terror amongst the members of public, businessmen, shop-keepers, builders. Your such violent, terrorising and extorting activities are found to be prejudicial to the maintenance of public order in above areas as businessmen, shop-keepers, builders are constantly living under the shadow of fear from you and your associates. Therefore, I am satisfied that if you are not preventively detained, you are likely to indulge in similar activities in future, thereby disturbing public order in above areas. Therefore, I am subjectively satisfied that with a view to preventing you from acting in any manner prejudicial to the maintenance of Public Order, it is necessary to detain you under the provisions of the National Security Act, 1980."
5. Having considered the above material, the detaining authority was subjectively satisfied that the petitioner and his associates at the point of deadly weapons were indulging in threatening, kidnapping, extorting activities in the area and locality in Ulhasnagar Camp No. 1, 2 and 5 coming under the jurisdictional limits of Hill Line Police Station under Thane Commissionerate, and it is the case of the detaining authority that the petitioner and his associates had created reign of terror amongst the members of public, businessmen, shop-keepers and builders and further such violent, terrorising and extorting activities were prejudicial to the maintenance of public order in the abovementioned area as the businessmen, shop-keepers and builders in the said area have been living under the constant shadow of fear from the petitioner and his associates.
6. On behalf of the respondents Nos. 1 to 3 returns have been filed which arc Affidavit of B. Akashi, Commissioner of Police 1st respondent and the detaining authority, M. D. Ambade, Desk Officer, Home Department (Special), Mantralaya, Bombay, K. P. Jadhav, Jailor, attached to Yerawada Central Prison where the petitioner has been detained under the detention order and Ishwar Singh, Desk Officer, Ministry of Home Affairs, Government of India, New Delhi. In the said returns the details whereof will be noticed at the appropriate stages, various challenges advanced by and on behalf of the petitioner have been sought to be repelled.
7. We now propose to deal with the contentions raised as mentioned above at seriatim.
8. The first contention raised is for delay in passing the detention order.
9. In order to properly appreciate the said challenge it will be necessary to notice the sequence as well as the course of events as revealed from the grounds furnished alongwith the detention order. The first incident mentioned at ground No. 3(a) above is stated to have occurred on 18-11-1993 in which the petitioner was arrested on the following day i.e. 19-11-1993 and released on bail on 22-11-1993 by the concerned Magistrate which facilities the appellant-petitioner availed of. The second ground is anonymous written complaint being dated 18-11-1993 received by the local Police which mentions, the alleged activities of the petitioner and his associates in threatening the businessmen in the locality and making ransom demands. As far as in-camera statements are concerned, the first statement of witness A has been recorded on 25-11-93 in respect of incident dated 9-11-1993, that of witness B on 26-11-1993 in respect of incident dated 15-11-1993, that of witness C on 13-12-1993 pertaining to the incident occurred on 5-12-1993 and statement of witness D on 17-12-1993 relating to the incident dated 11-12-1993.
10. Thus it will be noticed that the petitioner in the first instance was let out on bail on 22-11-93. The last in-camera statement came to be recorded on 17-12-1993. As stated earlier the impugned order of detention has been passed on 8-2-1994. It was urged by Mr. Chitnis, learned counsel for the petitioner that there is a long delay in issuing the detention order. He submitted that the last in-camera statement was recorded on 17-12-1993 and the detention order has been made on 8-2-1994. Thus there is a delay of about 52 days in issuing the detention order. In view of this the learned counsel submitted that the live link was totally snapped and therefore there was no need to invoke and take recourse to the issuance of detention order. The impugned order, according to learned counsel, suffers from infirmity and non-application of mind to the effect that live-link was totally snapped which would show that subjective satisfaction of the detaining authority is vitiated.
11. To meet this, the learned Assistant Government Pleader Mrs. Desai has relied upon the affidavits filed on behalf of the State Government and in particular she placed reliance on the statement as appearing in the affidavit of 1st respondent Shri B. Akashi, Commissioner of Police, Thane in para 21. The affiant of the said affidavit after reciting the various events in chronological order which we have already mentioned hereinabove has stated that the last in-camera statement was recorded on 17-12-1993 and he has further explained as under :-
"After collecting necessary documents the sponsoring authority prepared the proposal on 2-2-1994. it was received in my office on 4-2-1994. On 8-2-1994, I considered the proposal, scrutinized the documents, formulated the grounds of detention and contemporaneously issued the order of detention against the detenu. There is no delay in issuing the order of detention. A live link exists between the grounds of detention in ground 3(a) and 3(b)(i to iv). In any case, considering the propensity of the detenu to indulge in similar prejudicial activities in future, it cannot be said that live link is snapped."
12. The point of delay has been subject of debate and discussion before the Courts and there is catena of decisions on the point. The legal position has been crystalised by the Apex Court on the point laying down that delay by itself in passing the order of detention after the incident is not fatal in all the cases if it is explained that such delay was unavoidable and reasonable and satisfactorily explained. The judicial, view has gone to the extent of observing that in such matters it is not that one should count number of days and months but should consider whether delay has been occasioned which is unjustified and has resulted in causing prejudice to the detenu. In this respect it will be useful to make reference to the judgment of the Supreme Court in the case of Fitrat Raza Khan v. State of U.P., wherein the question of delay of about one year in issuing detention order from the date of first incident has been considered and the Supreme Court has observed as under (at p. 339 of Cri LJ) :
"It is true that the order of detention is based on two grounds which relate to two incidents, one of August 13, 1980 and the other of July 27, 1981, i.e. the second incident was after a lapse of about a year, but both the incidents show the propensities of the petitioner to instigate the members of the Muslim community to communal violence."
13. What is more important is that the said legal position has also been reiterated in a recent decision of the Supreme court in the case of T. A. Abdul Rahman v. State of Kerala, which has been referred to in the subsequent decision of the Supreme Court in the case of P. N. Paturkar v. S. Ramamurthi, 1994 Cri LJ 620. In as much as in Paturkar's case relevant passage from the Judgment of T. A. Abdul Rehman's case (1990 Cri LJ 578) on the point has been reproduced in para 9 and since the same sets the legal position on the point of delay luminously, is reproduced hereunder (at p. 622) :
"The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case."
14. Coming to the matter in hand it is noticed that Sponsoring Authority submitted its report as, it is seen from the affidavit filed by the detaining authority on 2-2-1994 which was received by him on 4-2-1994 and on 8-2-1994 the detention order has been passed. Therefore considering the facts and circumstances of this case and the explanation offered, as noticed above, it is not possible to accept the submission of the learned counsel for the petitioner that because of this delay the necessary nexus got severed and grounds became stale and illegal. The Sponsoring Authority has to collect, scrutinise and examine the material with caution. It is stated that because of fear, witnesses were hesitant to come forth to report against the petitioner and his associates. Such victims came forth when assured of keeping their names in seecret. The higher officer in the rank of Assistant Commissioner of Police had, it is explained, verified from each of the witnesses whose statements were recorded in-camera. All this would need some time. It is most pertinent to note that the detaining authority has passed the order within 4 days of the receipt of the proposal from the Sponsoring Authority as is clear from its affidavit noticed earlier. Further nature of prejudicial activities of the petitioner and his associates were of such a nature as revealed from the grounds, that there existed constant threat to the shopkeepers for ransom demand. Therefore, taking into consideration all these facts and circumstances, it is not possible to hold in the first instance, that there was undue delay in issuance of the detention order or secondly the same has not been satisfactorily and adequately explained. We, therefore, reject the said ground i.e. of delay in issuance of detention order.
15. Coming to the second point about the delay in considering the representation of the petitioner by the Central Government, it was vehemently urged by the learned counsel for the petitioner that it was entirely unnecessary for the Central Government to await for the opinion of the advisory board and postpone the consideration of the representation of the petitioner till then. He proceeds to State that the Central Government has under the statute, to consider it independently and this being the statutory mandate it was wholly improper on the part of the Central Government to delay the consideration and to postpone the consideration of the representation of the petitioner and await for the opinion of the advisory board. The learned counsel submits that thereby the constitutional safeguards provided to the detenu under Article 22(5) of the Constitution of India have been violated and therefore the detention order should be struck down on that ground alone.
16. On this point arguments in great details were advanced by both the sides. Various decisions of the Supreme Court as also of this Court were referred to by the learned counsel for the petitioner as also by the Government counsel for the State and Central Government.
17. The crux of the submission of the learned counsel for the petitioner was that the opinion of the advisory board in such matter was not at all necessary when the Central Government considers the representation made by the petitioner-detenu and making back reference to the State Government calling for the opinion of the advisory board. It is further commented that in this case, the Central Government made references twice and postponed its consideration of the representation under the said pretext, which is not justified and on this ground of delay, the detention order must be set aside.
18. Mr. Chitnis, learned counsel for the petitioner, has placed reliance in support of his aforesaid contention on the following decisions :
(i) P. N. Paturkar v. S. Ramamurthi, 1994 Cri LJ 620 (SC);
(ii) Smt. Vithabbai Laxmishankar Tiwari v. S. K. Bapat, Writ Petition No. 352 of 1993 decided by the Division Bench of this Court (M. L. Pendse and M. F. Saldanha, JJ.) on 9-9-1993;
(iii) Smt. Asa Arun Gawali v. Shri A. Samra, Writ Petition No. 1474 of 1993 decided by the Division Bench of this Court. (H. H. Kantharia and one of us, i.e. Vishnu Sahai, JJ.) on 24-3-1994.
19. On behalf of the State learned Assistant Government Pleader Mrs. R. P. Desai placed reliance upon the decision of the Constitutional Bench of the Supreme Court in the case of K. M. Abdulla Kunhi and B. L. Abdul Khader v. Union of India, .
20. The decision in K. M. Abdulla Kunhi's case (1991 Cri LJ 790) which is of constitutional bench of the Supreme Court comprising of five Judges and the decision in P. N. Paturkar's case (1994 Cri LJ 620) has been rendered by the Bench consisting of two Judges. We will first consider the ratio as laid down in both the cases.
21. Before we proceed to consider the legal position on the point as enunciated in the judicial pronouncements mentioned hereinabove, it would be appropriate to formulate various facets of the submissions viz : (i) in the instant case whether there is a unreasonable delay in consideration of the representation of the petitioner and if so, whether it has been adequately and satisfactorily explained; (ii) whether learned counsel for the petitioner is justified in his submission that the Central Government is not at all required to call for and await for the opinion of the Advisory Board for the consideration of the petitioner.
22. As far as the first issue is concerned viz. whether there is delay, it will be required to notice certain events in chronological sequence as could be obtained from the pleadings made available in this matter. The petitioner made his representation on 22-2-94 through his advocate Shri S. R. Chitnis to the Central Government, Ministry of Home Affairs which was received by the said department on 24-2-1994. On 25-2-94 i.e on very next day of the receipt of the representation the Home Ministry made back reference to the State Government by wireless soliciting certain information. The information was received by the Central Government on 15-3-1994 and on the very next day i.e. on 16-3-1994 the representation was kept before the Home Minister, who thought it necessary to call for the opinion of the advisory board as by then petitioner's case was referred to the advisory board on 16-2-1994 and opinion of the Board was received by the State Government on 19-3-1994, and therefore second wireless message was flashed to the State Government and the required information reached the Home Ministry on 23-3-1994 and on the next day matter was kept before the Home Minister and on 26-3-1994 the Home Minister rejected the said representation. Thus, it will be noticed that the entire process took about a month before the Home Ministry, Central Government for processing and considering the representation of the petitioner and the Home Minister, on receipt of the opinion within two days considered it and proceeded to reject it.
23. The next point which would arise for consideration is as to whether the Central Government was at all required to call for the opinion of the Advisory Board and await till such opinion is reached to it. It may be stated that in two decisions of the Bench of this Court which the learned counsel for the petitioner has cited referred to above, similar point was urged and in the context of the facts and circumstances as obtained in both the matters herein the delay in consideration of the representation submitted by the detenu in those matters was held to be improper and having not been satisfactorily and adequately explained and as a result thereof detention orders in both the matters were struck down. We shall express our view on the said decisions later on.
24. In the case of K. M. Abdulla Kunhi, (1991 Cri LJ 790) (Supra) the Supreme Court had occasion to deal with and consider the point whether the Central Government should call for the opinion of the Advisory Board for its consideration of the detenu's representation and further, the delay occasioned as the result of waiting for the opinion of the Advisory Board was justified. It will be useful to notice how the said points have been dealt with, considered and viewed by the Apex Court in the said decision. In the context para 16 (at pp. 796, 797 of Cri LJ) is relevant which runs as under :-
"16. We agree with the observation in Frances Coralie Mullin case. . The time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board alongwith the case of the detenu. The representation my be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the Government has delayed consideration of the representation unnecessarily awaiting the report of the Board. It is proper for the Government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the Government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The Constitution of the Board shows that it consists of eminent persons who are Judges or persons qualified to be Judges of the High Court. It is therefore, proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the representation is received by the Government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Advisory Board. It will have to be dealt with and disposed of by the Government as early as possible."
Further in para 20 (at p. 798 of Cri LJ) it proceeded to observe :-
"20 ..... ..... ..... ..... ..... ..... The confirmation of the order of detention is not conclusive as against the detenu. It can be revoked suo motu under secition 11 or upon a representation of the detenu. It seems to us therefore, that so long as the representation is independently considered by the Government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention or confirmation of the detention. The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention. Nor it could be presumed that such consideration is not an independent consideration. With all respect, we are not inclined to subscribe to the views expressed in V. J. Jain, Om Prakash Bahal and Khairul Haque cases. They cannot be considered to be good law and hence stand overruled."
25. If one reads the above observation of the Supreme Court. It clearly emerges that there is no time imperative for consideration of the representation and the same depends upon the facts and circumstances of the matter. Further it will be clear that in the said judgment certain eventualities have been enumerated when Central Government can solicit the opinion of the Advisory Board sounding on the same a note of caution that the decision of the Central Government upon the representation of the detenu has to be on its own independent decision. It also spells out that there is no absolute bar for the Central Government in soliciting opinion of the Advisory Board if the facts and circumstances of the matter show the date of submission of representation before the Advisory Board is in close proximity. In para 22 of this judgment we have mentioned various material dates. In addition, from the return of the State Government it is noticed that information as required under section 3(5) of N.S.A. Act was furnished to the Central Government on 15-2-1994. Reference to Advisory Board was made on 16-2-1992 and opinion was received on 19-3-1993, which State Government considered on 25-3-1994, on which date Central Government called for the information from the State. Therefore the submission made by the learned counsel for the petitioner that the Central Government is not at all justified and entitled to call for the opinion of the Advisory Board as done in the instant case cannot be accepted. On the other hand, the Apex Court in the above decision has pointed out why in such cases the opinion of the Advisory Board would be a factor which would need consideration as the Board is constituted of a sitting Judge of the High Court, and Board is called as high-power body.
26. Now, coming to the two decisions of the Benches of this Court in the cases of Smt. Vithabai L. Tiwari and Smt. Asha Arun Gawali, (Supra) it needs to be clarified that both judgments nowhere lay down that the Central Government is completely precluded or prohibited from considering the opinion of the Advisory Board. It is relevant to note the observations made by the Division Bench in the case of Smt. Vithabai which read as under :
"It is entirely incorrect to use the observations in paragraphs 16 of the judgment to claim that the Central Government is entitled to postpone the consideration of representation in every case till the opinion of the Advisory Board is received."
The above observation clinches the issue. It will imply that the Central Government cannot insist upon the opinion of the Advisory Board for its decision on the representation of the detenu in each and every case. Expression "in each and every case" is most relevant in the context. On the other hand, and as laid down by the Supreme Court in K. M. Abdulla Kunhi's case (1991 Cri LJ 790) (Supra) that if the situation exists as has been enunciated in the said decision the Central Government is not precluded from calling for the opinion of the Advisory Board and consideration thereof.
27. It further needs to be stated that in both the decisions viz. Vithabai's case and Asha Gawali's case the facts and circumstances in both the matters were such that the dely in considering the representation by the Central Government was not adequately and satisfactorily explained. In asmuch as in Vithabai's case it took 10 days for the Hon'ble Home Minister to consider the representation of the petitioner-detenu when the same was placed before him for consideration and in the case of Asha Gawali no steps were taken to communicate the decision to the detenu with promptness it needed and it took seven days for the same. In both the decisions these aspects have been taken into consideration and as a consequencee thereof the detention orders were held to be illegal and were quashed.
28. Turning to the present case we have already noticed various dates of submission and receipt of the representation by the Central Government and its decision thereon. If these material dates are taken into consideration, in our view the situation did exist as enumerated in the K. M. Abdulla Kunhi's case (1991 Cri LJ 790) in the case herein. In that situation of the matter it is difficult to accept the contention of the learned counsel for the petitioner that there was inordinate delay in consideration of the representation of the petitioner by the Central Government or that the Central Government was not entitled to call for the report of the Advisory Board and await till its decision.
29. However, it needs to be distinctly clarified and we wish to do and as is made abundantly clear by the Supreme Court in the case of K. M. Abdulla Kunhi, (1991 Cri LJ 790) as also in the two decisions of the Benches of this Court in the cases of Vithabai Tiwari and Asha Gawali that while considering the representation the Central Government should ensure strict adherence to the constitutional safeguards available to the petitioner-detenu. It follows that while soliciting the opinion of the Advisory Board for consideration of the representation of the detenu the balance has to be struck to ensure that the process does not consume considerable time and consideration of the representation is not unduly delayed on that ground or under that pretext. In a given case or cases this aspect can be certainly examined by the Court depending upon the facts and circumstances in each case.
30. Now, the third ground is about the public order.
31. Before we take up the question whether the prejudicial activities attributed to the petitioner pertained to law and order or public order we think it necessary to thrash out one more point urged by the learned counsel for the petitioner viz. placing reliance upon the grounds based upon the statements of witnesses recorded "in-camera". Mr. S. R. Chitnis, learned counsel for the petitioner has placed strong reliance in support of his aforesaid contention upon a decision in the case of P. N. Paturkar, (1994 Cri LJ 620) (Supra) in particular he has drawn our attention to para 13 of the said judgment which reads as under (at pp. 622, 623) :
"13. Coming to the case on hand, the detention order was passed after 5 months and 8 days from the date of the registration of the last case and more than 4 months from submission of the proposal. What disturbs our mind is that the statements from the witnesses A to E were obtained only after the detenu became successful in getting bail in all the prohibition cases registered against him, that too in the later part of March, 1991. These statements are very much referred to in the grounds of detention and relied upon by the detaining authority alongwith the registration of the cases under the Act."
32. On behalf of the detaining authority reliance is placed on the observations of the Supreme Court in the case of Harpreet Kaur Haryinder Singh v. State of Maharashtra, . It is noticed from the facts as obtained in the said decision that the detaining authority has relied upon the material in support of the grounds for issuance of detention order which included statements of four witnesses which were recorded by the Sponsoring Authority in in-camera. The material so relied upon was also considered by the Apex Court in the said judgment and proceeded to uphold the detention order issued by the detaining authority. It is therefore sought to be urged that the reliance placed upon in-camera statements is permissible to the detaining authority and if the position was otherwise, then the Apex Court would have certainly dealt with the point in the said judgment. It is to be noted that the Supreme Court was not concerned in the said judgment nor the point was urged before it in the manner as has been done before us. Therefore it has become necessary for us to consider the merits in the said submission of the learned counsel for the petitioner. There are numerous cases which include reported decisions wherefrom it is noticed that in large number of matters the detaining authority has relied upon statements of the witnesses recorded in-camera, keeping names of such witnesses in anonymity. Their names are not divulged or disclosed, for the obvious reasons that their identities have to be kept secret because of the potentially dangerous activities of the persons against whom such persons are otherwise afraid or scared to come forth and approach the police authorities and lodge complaints. As stated earlier although the Supreme Court in the case of Harpreet Kaur Haryinder Singh Bendi, (1992 Cri LJ 769) (Supra) was not directly concerned to decide the said issue still however in para 18 it has taken note of the fact as to why the Sponsoring Authority is required to rely upon the material such as in-camera statements. The said para clearly depicts the picture and situation under which, when there prevails atmosphere of terror and fear because of the prejudicial activities of the detenu that the course obtained in the matter herein in recording in-camera statements is required to be taken. This is what the Apex Court has observed in para 18 (at p. 775 of Cri LJ) :-
"18. There is no gainsaying that in the present state of law, a criminal can be punished only when the prosecution is able to lead evidence and prove the case against an accused person beyond a reasonable doubt. Where the prosecution is unable to lead evidence to prove its case, the case fails, though that failure does not imply that no crime had been committed. Where the prosecution case fails, because witnesses are reluctant on account of fear of retaliation to come forward to depose against an accused, obviously, the crime would go unpunished and the criminal would be encouraged. In the ultimate analysis, it is the society which suffers. Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it. The objectionable activities of a detenu have, therefore, to be judged in the totality of the circumstances to find out whether those activities have any prejudicial effect on the society as a whole or not. If the society, and not only in individual, suffers on account of the questionable activities of a person, then those activities are prejudicial to the maintenance of 'public order' and are not merely prejudicial to the maintenance of 'law and order.'"
33. From the observation as contained in said para it will be noticed that the Apex Court has taken due note of the situation and emphasized that when there prevails atmosphere of terror and fear and the witnesses who may be victims due to the prejudicial activities of an individual are reluctant to come forth, in the interest of society such course will be necessary as done in the instant case.
34. The observations, in our view appearing in Paturkar's case (1994 Cri LJ 620) (SC) (Supra) as reproduced hereinabove have to be considered and read in the facts and circumstances as obtained in the matter therein. Their Lordships were considering inordinate delay in issuance of detention order which was not satisfactorily and adequately explained by the detaining authority and on the said ground the detention order was struck down as will be noticed from the concluding part of the said judgment. While commenting it comes to the notice of their Lordships that material relied upon comprised also of statements of the witnesses recorded in in-camera after the detenu in that case was let out on bail. In our view, observations of their Lordships of the Supreme Court have to be considered in the context of the facts and circumstances as obtained in the matter herein. To be precise, while considering the inordinate delay in issuance of the detention, which was not satisfactorily explained, the Apex Court commented upon the conduct of the detaining authority of relying upon the in-camera statements. In our view, the said observations does not lay down that reliance upon in-camera statement is completely prohibited.
17th June, 1994.
35. In this connection, it is also relevant to note the precautions that Sponsoring Authority as well as the detaining authority has taken while relying upon the statements of witnesses recorded in in-camera. It is stated that the witnesses came forth to make statements only when they were assured that their identity will be kept secret. The witnesses were afraid and scared of the petitioner and his associates who had held out threats of dire consequences should they i.e. the witnesses report the matter to the police. Section 8(2) of the National Security Act permits the detaining authority to not to disclose certain facts which it considers to be against the public interest. Therefore in view of the clear provisions of the statute the detaining authority is entitled to and justified to rely upon the material of the nature viz. as contained in the in-camera statements of the witnesses. The Court was informed by the learned Assistant Government Pleader that when such statements are recorded keeping the identity of the witnesses confidential or secret, the senior officer in the rank of Assistant Commissioner of Police who is a Gazetted Officer also verifies and ascertains the correctness or otherwise of such statements. In our view, that will provide sufficient safeguard for avoiding the possible misuse as apprehended. We also make it clear that when material of the nature viz. in-camera statements of the witnesses are relied upon the sponsoring authority as well as detaining authority shall ensure that such statements are subjected to verification by the senior officer in the rank of Assistant Commissioner of Police or higher to him.
36. Now we switch over to the challenge of whether the issue involved is of law and order or of public order. We have considered and extensively dealt with the legal position on the point which is no more a question of res integra in our judgment dated 8-6-1994 in Writ Petition No. 48 of 1994 after surveying the various judgments on the point and we reiterate as the principles would hold good squarely to the facts as obtained in this matter.
37. The principles on these points as enunciated in various judicial pronouncements of the Apex Court as also various High Courts are very clear. Needless to emphasize that conceputally there is difference between the two. The two concepts have well defined cantours. The distinction between area of law and order and public order is one of degree and extent of reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of the public order. If the contravention in its effect is confined only to a few individuals directly involved as distinguished from wider spectrum of public it will raise the problem of law and order. Again it needs to be noted that principally the act may not be a determinative of its own gravity. It would all depend upon the impact it maker on the society at large and for which one has to turn to the facts of each case to ascertain the same. These principles and guidelines have been laid down in various pronouncements of the Apex Court and luminously explained in various judgments in particular in the case of Arun Ghosh v. State of West Bengal, and reiterated in a later decisions in the cases of State of U.P. v. Hari Shankar Tewari, and Sharad Kumar Tyagi v. State of U.P., of which a reference has been made by the learned Government Pleader extensively. It may be stated that various other decisions were also referred to taking similar view as done in the aforesaid decisions. However it is unnecessary to multiply the reference.
38. It will be useful to see how these aspects have been viewed by the Apex Court. In the case of Arun Ghosh 1970 Cri. LJ 1136 (supra) the point as urged by the petitioner with regard to law and order and public order was canvassed and agitated and the Apex Court has in the said decision laid down as under (at p 1138 of Cri. LJ) "They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. The question to ask is : Does it lead to disturbance of the current of life of the community so as to amount a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society disturbed ? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another.
Thereafter in later decisions in the cases of Hari Shankar Tewari (1987 Cri. LJ 840) and Sharad Kumar Tyagi (1989 Cri. LJ 830) (supra) the principle as enunciated in Arun Ghosh's case (1970 Cri. LJ 1136) on this aspect has been reaffirmed and reiterated in the said judgment in which the Apex Court has taken survey of various judicial pronoucements on the point and reaffirmed and reiterated the principles which have been laid down in Arun Ghosh's case (1970 Cri. LJ 1136). In as much as in the said judgment their Lordships reaffirmed the principle as they have laid down in the case of Ram Ranjan Chatterjee v. State of West Bengal and quoted with approval therefrom the observations which are being reproduced to bring home the point.
"It is the potentiality of the Act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of the public order. If the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of public it would raise a problem of law and order only. These concentric concepts of law and order and public order may have a common epicentre, but it is the length magnitude and intensity of the terror-wave unleased by a particular eruption of disorder that helps distinguish it as an act affecting public order from that concerning 'law and order."
39. We may mention that in Hari Shankar Tewari's case 1987 Cri. LJ 840 there was a solitary incident but the Apex Court on taking into consideration facts and circumstances as obtained in the case observed that the potentiality of the act objected to would require to be properly assessed and viewed and considered and no hard and fast rule can really be evolved to deal with the problems of human society and that if possible situation cannot be brought under watertight classification and a set of tests to deal with them cannot be laid down. Similarly, in the case of Sharad Kumar Tyagi (1989 Cri. LJ 830) the fact shows that the detenu in the matter was indulging in activities of extorting moneys and demanding Hafta from the shop-keepers and the Court observed that such demands made from one or two shop-keepers would make the other shop-keepers in the locality feel apprehensive that they too would be targetted in the same manner.
40. The Constitutional Bench of the Apex Court very recently i.e. in the last month (May 1994) consisting of nine Judges was required to consider the similar point. viz. whether the activities alleged to be prejudicial will fall within the category of public order or law and order. Apex Court in the case of Attorney General for India, v. Amratlal Prajivandas reported in Judgment Today has taken a survey of its various decisions on the point and reiterated and reaffirmed the principles as stated above observing as under (at p. 2207 of AIR).
"47. Now, it is beyond dispute that an order of detention can be based upon one single ground. Several decisions of this Court have held that even one prejudicial act can be treated as sufficient for forming the requisite satisfaction for detaining the person. In Debu Mahato v. State of West Bengal it was observed that while ordinarily-speaking one act may not be sufficient to form the requisite satisfaction, there is no such invariable rule and that in a given case one act may suffice. That was a case of wagon-breaking and having regard to the nature of the Act, it was held that one act is sufficient. The same principle was reiterated in Anil Dey v. State of West Bengal . It was a case of theft of railway signal material. Here too one act was held to be sufficient. Similarly, in Israil SK v. District Magistrate of West Dinajpur and Dharua Kanu v. State of West Bengal single act of theft of telegraph copper wires in huge quantity and removal of railway fish plates respectively was held sufficient to sustain the order of detention. In Saraswathi Seshagiri v. State of Kerala a case arising under COFEPOSA, a single act, viz., attempt to export a huge amount of Indian currency was held sufficient. In short, the principle appears to be this : though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity. The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon-breaking, theft of signal material, theft of telegraph copper wires in huge quantity and removal of railway fish plates were held sufficient."
41. We will now examine the nature of grounds relied upon in support of the detention order. The material in ground No. 1 shows that the petitioner had along with his associates abducted a businessman and the builder by name Lalchand Gangwani, confined him in the solitary place and under a threat of life forced him to pay to the petitioner a ransom sum of Rs. 55,000/-. At that time the petitioner and his associates were armed with weapons. Matter was reported to the concerned police station and offence u/Ss. 363, 394 read with Section 34, IPC have been registered against the petitioner and his associates. After registration of the offence the petitioner was enlarged on bail.
42. The second ground of detention refers to the anonymous complaint received by Inspector of Police, Hill Line Police Station, Ulhasnagar wherein the mention is made of the incident where the petitioner and his associates resorted to offence of extorting ransom money from businessmen by entering into his shop removed forcibly cash box from the shop. The shop-keeper was threatened of dire consequences if he reported the matter to the police. The third category of ground consists of four in-camera statements for the purpose of reference indicated as A, B, C and D, which show that all the four victims were the businessmen of the said locality and ransom demand was made upon them by the petitioner and his associates by resort to same modus operandi as done in the case of first incident. It further shows that the four victims could not or rather dare not report the matter to the police as they were very much scared and afraid of the petitioner and his associates and as they were subjected to threats.
43. Thus it will be noticed that the demands for the ransom payment under threats have been made by the petitioners and his associates from the businessmen and shop-keepers from a particular locality. All the victims are none else than shop-keepers with whom otherwise the petitioner and his associates have no dealings or connection whatsoever. It is not the case of singling out a particular shop-keeper or shop-keepers for payment of ransom moneys but demand expected to he complied with by shop-keepers in the locality whenever such demand is made by the petitioner and his associates. It is not as if the demand and threat following it were intended only against the victims referred to in the incidents. It is clear that the demand had been made as part of a scheme to extort money from all the shop-keepers under threat that their continuous running of business and their lives would be in danger if ransom demand is not met with. The manner in which the demand was made from the various shop-keeprs, referred to in the grounds, would have certainly made all the shop-keepers in the locality feel apprehensive that they too will be forced to make payment to the petitioner and his associates.
44. The target and the victims in the grounds in this case are shop-keepers and businessmen. In such circumstances, the prejudicial acts of the petitioner and his associates for ransom demand under threat will undoubtedly cause fear and panic in the minds of all the shop-keepers, in that locality and would have effect on even tempo of life of the community. The material clearly shows that the shop-keepers in the locality had closed their shops. In such ccircumstances these incidents cannot be considered as merely causing disturbance to law and order situation. It has to be viewed as one affecting the even tempo of life in the market. One cannot therefore subscribe to the contention raised by and on behalf of the petitioner in the terms as aforesaid and conseequently same stand rejected.
45. Since we have held that the various grounds urged on behalf of the petitioner are devoid of any merits, the petition fails and stands dismissed.
46. Petition dismissed. The impugned order of detention stands upheld and confirmed. Rule stands discharged accordingly.
47. Petition dismissed.