Bombay High Court
Jainab Sale Mohammed vs M.N. Singh, Commissioner Of Police And ... on 16 August, 2002
Equivalent citations: 2003(3)MHLJ225
Author: A.S. Aguiar
Bench: D.G. Deshpande, A.S. Aguiar
JUDGMENT A.S. Aguiar, J.
1. The present Criminal Writ Petition is preferred under Article 226 of the Constitution of India. The petitioner, who is the mother of the detenu, challenges the order dated 11-10-2001 passed by the respondent No. 1 Commissioner of Police, Greater Bombay in exercise of powers conferred on 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 (Amendment-1996) on.
2. The activities of the detenu necessitating the passing of the impugned order have been set out in the grounds of detention of the same date i.e. 11-10-2001 which have been served upon the detenu along with the detention order of the same date. The grounds of detention are set out in para 4(a)(i) and 4(a)(ii). The ground of detention No. 4(a)(i) reads as follows :
"4(a)(i) On 21-4-2001, you approached Shri Sayyed Alvi and demanded hapta money. However, Shri Sayyed Alavi refuse to pay you hapta money, when you assaulted Shri Alvi, in retaliation , Shri Sayyed Alavi also assaulted you. In this connection, a case under Section 324, 504 Indian Penal Code vide C. R. No. 85/2001 has been registered against Shri Sayyed Alavi at Dongri Police Station."
The ground of detention No. 4(a)(ii) reads as follows :
"4(a)(ii) On 10-5-2001, at about 23.45 hours, Shri Sayyed Alavi had gone to see his foster mother Smt. Julubai Hassan and sister Parvin at 130/132, Nishanpada Road, Abubakar Manzil, 1st floor, Room No. 11, Dongri, and he was gossiping with them. When you came there, and forcibly entered into the house of Smt. Julubai Hassan and you demanded ransom of Rs. 10,000/- with Shri Sayyed Alavi, Shri Sayyed Alavi refuse to accede your demand. On this, you threatened Shri Sayyed Alavi however, Shri Sayyed Alavi Saying that, and saying so you slapped him. Shri Sayyed Alavi became stunned due to fear. After confirming that you had left the place, Shri Sayyed Alavi called at Dongri Police Station and reported the matter."
In this connection, on the complaint of Shri Sayeed Mohiddin Alavai, a case under Sections 387, 452, 506(ii) Indian Penal Code vide C.R No. 98 of 2001 was registered against the detenu at Dongri Police Station on 11-5-2001.
3. The challenge to the order of detention is set out in the grounds of challenge more specifically at ground (D), namely, that the Detaining Authority has taken into consideration Crime No. 98 of 2001 as set out in para 4(a)(ii) on which the order of detention is passed. It is contended that the incident on the basis of which Crime No. 98 of 2001 was recorded can by no stretch of imagination be said to be the one which disturbs public order. It is contended that the ground of detention nowhere set out the immediate impact of the act of the detenu on society or at least on a segment of the society and since public order is not disturbed, Section 3 of the MPD Act, 1981 is not attracted and hence, the order of detention is illegal and bad in law. Mr. Tripathi, the learned counsel for the petitioner has further pointed out that the said incident took place inside the house and not in the public place. Further, no weapon is alleged to have been used and hence, the detaining authority has not applied his mind to the facts of the case before passing the said order.
4. So far as ground 4(b) of the detention order is concerned, it is pointed out that the confidential enquiries made regarding the detenu disclose that number of people have been affected at his hands and that, since the detenu has weapons, nobody is willing to give statement against him due to fear of retaliation. However, two witnesses have given statements, namely, Witness (A) whose statement was recorded on 6-7-2001 and Witness (B) whose statement is recorded on 29-8-2001.
5. Witness (A) has referred to an incident in the first week of May, 2001 and alleged that, "When you entered the guest house and demanded Rs. 5000/- as Hafta money and on his showing inability to pay, you threatened him with a knife which you had kept under your pant and under the said threat to the life of the witness, you removed cash of Rs. 1200/- from the cash counter and witnessing this incident, the customers in the guest house ran away out of fear.
6. Witness (B) has referred to an incident which took place sometime in the third week of August, 2001 and alleged that on that day you entered the shop, took out a chopper hidden under your shirt and put it on the neck of the witness (B) and forcibly removed Rs. 6,300/- from his cash book. You also threatened certain persons present in the shop and you forcibly removed Rs. 2,100/- from the shirt pocket of the witness. On seeing the incident, customers and other persons ran away out of fear and by brandishing the chopper you threatened the witnesses. By putting the chopper on the neck of the witness you threatened the witness against lodging any complaint. On seeing the chopper in your hand, the shop keepers closed down their shutters. It is contended by the learned counsel for the petitioner that the said in-camera statements cannot be supported as the crime which was registered as Crime No. 98 of 2001 itself does not show that the detenu has indulged in activities prejudicial to public order. It is contended by the learned advocate for the petitioner that the incident of 10-5-2001 which resulted in registration of Crime No. 98 of 2001 for offence under Sections 324, 504 of Indian Penal Code in no way affects public order. The respondent is not able to justify passing of the order on the basis of in-camera statements as there is no concrete evidence as to the prejudicial activities of the detenu necessitating passing of the impugned order. It is further contended that Section 5-A of the M.P.D. Act will not be applicable and hence, the order of detention passed solely on the basis of the in-camera statements is not sustainable. It is lastly contended by the learned counsel for the petitioner that the copies of the case in M.C.R. No. 85 of 2001 except F.I.R. are not supplied to the detenu though the detaining authority has relied upon the said crime in passing the order of detention and in support of his contention relied upon the observations .
7. On the other hand, the learned A.P.P. Mr. Patil, who appeared for the State has contended that though the detaining authority made reference to the crime No. 85 of 2001, however, has not relied upon the said C. R. in issuing the detention order and therefore it was not incumbent on the detaining authority to furnish the copies of the papers in the said C. R. to the detenu. Even otherwise, copy of first information report has admittedly been issued.
8. Learned A.P.P. has contended that the two in-camera statements show that the detenu is a habitual offender involved in extortion and therefore even if crime No. 89 of 2001 cannot be the basis for issuing order of detention, nevertheless, the detention order can be sustained on the basis of the facts set out in the two in-camera statements making out a case of detenu indulging in the crime of extortion.
9. A reference to the detention order which is annexed to the petition as annexure "A" clearly shows that the order has been issued in order to prevent the detenu from acting in a manner prejudicial to the maintenance of public order. It is a settled position that public order is a different concept from 'law and order'. The Hon'ble Supreme Court in the case of Arun Ghosh v. State of Bengal, has held that public order is affected when even the tempo of life of the community, taking the country as a whole or even a specified locality, is disturbed. Disturbance of public order is distinct from acts directed against individuals which do not disturb society to the extent of causing a general disturbance of public tranquility.
10. In the present case, the detaining authority placing reliance on one crime, namely, Crime No. 85 of 2001 and two in-camera statements has come to the conclusion that the activities of the detenu are prejudicial to public order.
11. As pointed out by the learned advocate Mr. Tripathi, for the petitioner, the said incident by no stretch of imagination could be said to affect public order, since besides the complainant and few persons in the shop, nobody else was disturbed by the incident. No one was alarmed by the incident and no weapon was used by the detenu in the incident which is the subject matter of Crime No. 89 of 2001. In fact, it is alleged that after the detenu assaulted the complainant, Sayyed Alavi retaliated and, in turn, assaulted the detenu. Therefore, it cannot be said that the detenu is a dangerous person and has committed activities prejudicial to the maintenance of the public order.
12. So far as the two in-camera statements are concerned, it may be noted that the last in-camera statement was recorded on 29-8-2001 whereas the order of detention came to be passed on 11-10-2001. The delay in passing of the detention order is unexplained. Crime No. 89 of 2001 registered against detenu does not make out any case of the detenu having indulged in prejudicial activity affecting public, order. The reliance placed on the two in-camera statements for supporting the detention order as a link to connect the prejudicial activities as alleged in the said C.R. No. 98 of 2001 is wholly misplaced as the said C. R. No. 98 of 2001 does not disclose any such prejudicial activity on the part of the detenu as to affect public order. In fact, statement of witnesses A and B seeking to make out the detenu to be a habitual offender indulging in extortion or the basis of incidents alleged to have taken place in May, 2001 and August, 2001 are themselves suspect as the statements were recorded after a considerable delay. There is no reason why the said witnesses A and B or other witnesses to the alleged incident did not approach the police earlier to lodge their complaints. Clearly the incident of 10-5-2001 pursuant to which Crime No. 89 of 2001 was registered cannot sustain the order of detention as the alleged acts of the detenu set out in the said C. R. cannot be said to be prejudicial to public order. In the absence of any criminal antecedents being registered against the detenu showing the detenu having indulged in extortion as a habitual offender, the two in-camera statements recorded after a considerable delay cast doubts as to their genuineness. Therefore these two in-camera statements cannot by themselves sustain the order of detention. In this connection, the submission of learned A.P.P. that Section 5A of the MPD Act comes to the rescue of the detaining authority is of no avail. The detention order can be sustained neither on the basis of C. R. No. 89 of 2001 registered by the Dongri Police nor on the basis of two in-camera statements.
13. We therefore pass the following order :
"Petition is allowed. Order of detention bearing No. 344/PCB/DP/Zone-1/2002 dated 11-10-2001 (at Annexure 'A') issued under Section 3(1) of M.P.D.A. Act, 1981 (Amendment-1996) passed by the Commissioner of Police, Mumbai, is quashed and set aside. The detenu be released forthwith, if not required in any other case. Rule is made absolute accordingly. Petition stands disposed of."