Bombay High Court
Hasan Khan Ibne Haider Khan vs Shri R.H. Mendonca, Commissioner Of ... on 23 August, 1999
Equivalent citations: 2000(1)BOMCR310
Author: Vishnu Sahai
Bench: Vishnu Sahai, T.K. Chandrasekhara Das
ORDER Vishnu Sahai, J.
1. Through this writ petition preferred under Article 226 of the Constitution of India the petitioner-detenu has impugned the detention order dated 12th April, 1999 passed by the 1st Respondent Mr. R.H. Mendonca, the Commissioner of Police, Brihan Mumbai, detaining him under sub-section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) (Amendment 1996) hereinafter referred to as "MPDA Act".
The detention order along with the grounds of detention also dated 12th April, 1999 was served on the petitioner-detenu on 13th April, 1999. True copies of the detention order and the grounds of detention are annexed as Annexures "A" and "B" respectively to this petition.
2. A perusal of the grounds of detention would show that the impugned detention order is founded on one C.R. which has been referred to in ground 5(a)(i) and two in-camera statements of witnesses A and B respectively, referred to in ground 5(b)(i) and 5(b)(ii).
A perusal of ground 5(a)(ii) shows that C.R. No. 295/98 was registered against the petitioner and his associates at M.I.D.C. Police Station on the complaint of one Harishchandra Mithailal Gupta. On the basis of the said complaint a case under sections 341, 323, 324, 504, 506(ii), 34 I.P.C. was registered against the petitioner- detenu and his associates.
3. In ground 5(a)(i) the details of the averments contained in the said complaint are mentioned. It is stated therein that on 9-12-1998 at about 8.30 p.m. Harishchandra Gupta went to the open place by the side of Aghadi Nagar Society for urinating. When he came near his place of business he noticed that his younger brother Dipchand was being assaulted by petitioner- detenu and his associates by means of bamboos. When he rushed to save his brother, the petitioner-detenu caught him and his associate Rameshsingh assaulted him with a barber's razor. Thereafter the petitioner-detenu caught Dipchand and his associates started assaulting him by means of bamboos. When Harishchandra and Dipchand shouted for help none dared to come forward to their help. Thereafter Harischandra and Dipchand went to Cooper Hospital for treatment.
4. The in-camera statement of witness "A" is contained in ground 5(b-i). It was recorded on 15-2-1999 and shows that the petitioner-detenu is a notorious goonda in the locality of Subhash Nagar, Rebello Compound, M.I.D.C., Andheri (East) and along with 2 to 3 un-known associates moves about armed with deadly weapons and collects 'Hafta' from the residents and businessmen and assaults those who refuse to pay. One day, in the third week of January 1999 at about 6 p.m. the petitioner-detenu and his two associates visited his fruit stall (fruit stall of witness 'A') caught hold of his collar and asked him to send money by next day. Again 2 to 3 days later at about 7 p.m. the petitioner-detenu along with his one associate came to his fruit stall, abused him and pushed down his basket containing fruit. The associate of petitioner-detenu took out a chopper from his waist and started threatening by using filthy language. On seeing the incident the nearby vegetable and fruit vendors started running away with baskets. Some of them ran away leaving their belongings behind. The passers-by also ran away due to fright. The petitioner-detenu took out the chopper from his associate and put it on the chest of witness 'A' and threatened to kill him, if he informed the police.
5. The statement of witness 'B' is contained in ground 5(b-ii). It was recorded on 16-2-1994. He stated that the petitioner-detenu was a notorious goonda who along with his 2 to 3 unknown associates, moves about in the localities of Subhash Nagar, Rebello Compound, M.I.D.C., Andheri (East) armed with pistol, sword, knife, chopper and collects 'Hafta' money from the businessmen on threats of assault and on account of fear of petitioner-detenu no one dares to lodge an F.I.R. against him. In the 2nd week of January 1999 at about 11 a.m. two unknown persons left a message to this witness that the petitioner-detenu had called him. He could not meet him since he was busy. Hence the next day at 10 a.m. the petitioner-detenu along with his two associates approached him, questioned him why he did not meet him the last evening and dealt a chopper blow on a vegetable (Gourd) and thereafter upturned the basket of vegetables. When he tried to run away the petitioner-detenu accosted him and threatened to cut him into pieces. On seeing the incident the nearby vendors ran way leaving behind their belongings. Within a moment the road was deserted. Thereafter the petitioner-detenu and his associates ran away threatening him not to complain to the police.
6. We have heard Mr. U.N. Tripathi for the petitioner-detenu and Mr. S.G. Deshmukh A.P.P. for respondents.
7. Although in this petition Mr. Tripathi has pleaded a large number of grounds, running from ground 7-A to 7-G, but since he is only pressing two grounds viz. grounds 7-E and 7-F we are not adverting to the other grounds.
Ground 7-E in short is that several documents referred to in the said ground, which were either wholly or partly illegible, were furnished to the petitioner-detenu and this impaired his right to make an effective representation under Article 22(5) of the Constitution of India.
The ground has been replied to in paras 9 and 15 of the return of the detaining authority. In short what has been stated therein is that legible copies of all vital documents were furnished to the detenu and consequently his right to make an effective representation was not impaired.
8. We have examined ground 7-E and the said reply of the detaining authority. It is well settled that the petitioner-detenu's right of making an effective representation under Article 22(5) of the Constitution of India would only be impaired if illegible copies (either wholly or partly) of vital documents were supplied to him. Vital documents mean documents which would affect his right to make an effective representation.
We have examined the illegible documents mentioned in ground 7-E. In our view some of them cannot be categorized as illegible. We feel that the illegible documents mentioned in the said ground are not vital documents and do not affect the detenu's right to make an effective representation under Article 22(5) of the Constitution of India. Consequently we reject the submission canvassed in ground 7-E of the petition.
9. Ground 7-F is that even if the prejudicial activities of the detenu are accepted on their face value they would demonstrate a breach of law and order and not public order. This ground has been replied to in para 16 of the return of the detaining authority wherein the detaining authority has candidly mentioned that the prejudicial activities of the detenu spelt out in the grounds of detention amount to violation and disturbance of public order and not law and order simpliciter.
10. We have examined ground 7-F and the reply of the detaining authority referred to above.
In the oft quoted case of Arun Ghosh v. State of West Bengal, Hidayatullah, C.J., (as he then was) drew the distinction between public order and law and order. His Lordship observed in the said paragraph that if the impact of an act or acts disturbs peace or tranquility or the even tempo of life of a country as a whole or a segment of community, then the said act or acts would constitute violation of public order. On the converse if their impact is restricted to an individual or a few individuals they would constitute a violation of law and order.
11. When the grounds of detention are examined in the light of the ratio laid down in (supra) it becomes apparent that the petitioner-detenu committed acts which breached public order and not law and order simpliciter.
We have earlier adverted to, in some detail, the averments contained in the FIR of C.R. No. 295/98 and the two in-camera statements of witnesses A and B.
12. A perusal of para 5(a-i) of the grounds of detention would show that in a public place the petitioner-detenu and his associates assaulted Harischandra Gupta and his brother Dipchand with weapons like bamboo and razor and when they shouted no one came forward to their help. Since the said act was committed by the petitioner-detenu in a public place in our view, its impact cannot be construed to be restricted to Harischandra Gupta and his brother alone but was such that it affected the even tempo of life of the segment of community residing in the area wherein it was committed.
Again we find that a perusal of in-camera statement of witness 'A' shows that on account of the prejudicial act committed by the petitioner-detenu and his associates; on one day at 6 p.m. in the third week of January 1999 in a public place, the nearby vegetable and fruit vendors started running away with their baskets. Some of them ran away leaving their belongings behind as a result of which the passers-by also ran away due to fright. In our view the impact of the said act affected the even tempo of the life of a segment of community, viz. those fruit vendors and passers by who were present there and some of whom ran away.
13. Again we find that the in-camera statement of witness "B", which we have examined in some detail earlier, shows that on account of the prejudicial act committed by the petitioner-detenu and his two associates one day at 11 a.m. in the second week of January 1999 the vendors in the locality ran away leaving behind their belongings and within a moment the road was deserted. This also shows that the act of the petitioner-detenu not only affected witness 'B' but the even tempo of life a segment of community viz. the vendors who ran away leaving their belongings.
14. We may also mention that a perusal of para 6 of the grounds of detention shows that the petitioner-detenu has been detained under the MPDA Act as a dangerous person. Dangerous person has been defined in section 2(b-1) of the MPDA Act as a person, who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959.
Section 2(a) of the MPDA Act provides that "acting in any manner prejudicial to the maintenance of public order" means -
i) xxx xxxx xxx
ii) xxx xxxx xxx
iii) xxx xxxx xxx In a case of a dangerous person, when he is engaged, or is making preparation for engaging, in any of his activities as a dangerous person, which affect adversely, or are likely to affect adversely, the maintenance of public order.
The explanation to section 2(a) reads thus:
"For the purpose of this Clause (a), public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof, or a grave or widespread danger to life or public health;"
15. A perusal of paras 5(a-l), 5(a-2), 5(b-l) and 5(b-2) of the grounds of detention would show that the petitioner-detenu is a dangerous person under section 2(b-l) of the M.P.D.A. Act.
15A. If the provisions contained in section 2(a), 2(a)(iv) and explanation to section 2(a) are read conjunctively they would show that if the activities of a dangerous person directly or indirectly cause or are calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or a section thereof or a grave or widespread danger to life or public health then public order would have been deemed to have been affected adversely.
If the said barometer is applied to the averments contained in the complaint of C.R. No. 295/98 (set out in para 5(a-i) of the grounds of detention) and the in-camera statements of witnesses A and B respectively, (set .out in ground 5(b-i) and 5(b-ii) respectively of the grounds of detention), it would be clear that the petitioner-detenu violated public order, within the meaning of section 2(a) of the M.P.D.A. Act. The activities of the petitioner-detenu contained therein, both directly and indirectly caused and were calculated to cause harm, danger, alarm and feeling of insecurity in the section of public referred to therein.
16. For the reasons stated above ground 7-F also fails.
17. For the said reasons we do not find any merit in this petition and dismiss the same. Rule is discharged.
Issuance of certified copy is expedited.
18. Petition dismissed.