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                                                                 wp.2081.2012.sxw

7. We may now turn to the grounds of detention served on the detenu. It refers to the attempts made in the past to prevent the involvement of the petitioner in commission of criminal activities prejudicial to the maintainance of public order in the concerned localities by issuance of externment orders in 2005 and again in 2008 including a preventive detention order under the subject Act in 2008. It also refers to the fact that the petitioner has been convicted in as many as 23 criminal cases. Reference is then made to the complaint received from Shantilal Hiralal Shah about the incident on 25.7.2011 and offence registered on that basis u/s 397 of the I.P.C. and 37(i)(a) r/w 135 of the Bombay Police Act.

13. The learned Amicus Curiae, however, was at pains to submit that keeping in mind the latest decision of the Apex Court, vss 13 of 24 wp.2081.2012.sxw we should hold that the preventive detention is a jurisdiction of suspicion and to prevent misuse of this potentially dangerous power, it must be confined within the narrow limits that the same would be permitted only if the ordinary law of the land cannot deal with the situation. We are afraid, in the facts of the present case, it may not be possible to countenance this argument. As noticed earlier, the preventive detention order has been passed in exercise of powers under the said Act which is intended to prevent the dangerous activities of the detenu, which are prejudicial to the maintainance of public order. The detenu has been found to be a habitual offender. He was not only externed on two occasions in 2005 and 2008 respectively, but was required to be detained by issuance of preventive detention order under the subject Act in October, 2008 because of his continual criminal activities prejudicial to the maintainance of public order. He has been convicted in 23 criminal cases. The sentence period in each of the said case ranges upto a maxium of 6 months. Nevertheless, the detenu has shown propensity to engage himself in criminal activities, unabatedly, which are prejudicial to the maintainance of public order. That is evident from the latest criminal case registered against the detenu in respect of the incident of 25.7.2011 as also vss 14 of 24 wp.2081.2012.sxw from the in-camera statements of two witnesses, who have spoken about the criminal activities of the detenu in the vicinity during the relevant period. These witnesses have plainly stated that they were afraid to give statements due to fear of retaliation by the detenu. It is only on being assured that their statements will be kept secret and they will not be required to give evidence against the detenu in any Court of Law or any other open forum that they expressed willingness to give their statements. The confidential enquiry also revealed that there were large number of people who were victimised by the detenu in the recent past but due to fear, they were not coming forward to give their statement. Accordingly, the argument under consideration will have to be stated to be rejected.

The material gathered during the confidential inquiry, while bail application was pending and the subsequent in-camera statements of the two witnesses, fortified that large number of people in the vicinity were victimised by the criminal activities of the detenu and were unwilling to depose against the petitioner, as he was a desperado and indulged in criminal activities, which are prejudicial to the maintenance of public order and more so, having struck terror in the minds of people living in the vicinity referred to in the grounds of detention and were not willing to give statements openly against the detenu, due to fear of retaliation. The Detaining Authority considered all these matters including the factum of case registered against the detenu was for offence which was not compulsorily punishable with death or life sentence and the Courts would normally grant bail in those matters, after filing of the charge-sheet. Moreover, the subjective satisfaction has been reached in the present case, keeping in mind that the petitioner was habitual offender and continued to indulge in criminal activities prejudicial to public order, unabatedly, inspite of having been convicted in 23 criminal cases, besides the preventive action taken against him on three occasions in the past. In substance, the vss 21 of 24 wp.2081.2012.sxw subjective satisfaction is not founded on one factor but, combination thereof and totality of all the circumstances indicative of the fact that the ordinary law was not sufficient to prevent the detenu from indulging in criminal activities prejudicial to the maintainance of public order. Accordingly, there is no substance even in this argument under consideration.