R.Y. Ganoo, J.@mdashThe petitioner is detained pursuant to detention Order No. 13/PCB/BP/Zone-VI/2011 dated 13th December, 2011 passed under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous Persons and Video Pirates Act, 1981 (For short "Act of 1981"). The said order is passed by the Commissioner of Police, Briham Mumbai. The said order is approved on 20th December, 2011 by the State Government. The grounds of detention have been served upon the petitioner by communication dated 13th December, 2012 itself. On perusal of the grounds of detention, it is noticed that the order of detention is passed on the basis of following material :-
(i) Alleged involvement of the appellant in C.R. No. 115 of 2011 u/s 324 and 504 of Indian Penal Code registered at Deonar Police station in regard to incident dated 17th July, 2011, wherein it is alleged that one Mr. Mithun Sathe was assaulted by the petitioner causing him injuries and that said Sathe had taken treatment at Shatabdi Hospital.
(ii) C.R. No. 267 of 2011 of Chembur Police Station u/s 324, 506 r/w Section 34 of IPC in regard to the incident alleged to have taken place on 30th July, 2011 wherein Rajaram P. Babar was assaulted by the petitioner with iron rod and that said Rajaram was treated at Dhanvantari Hospital at Chembur.
(iii) C.R. No. 145 of 2011 of Deonar Police Station u/s 392, 323 r/w Section 34 of the I.P.C. being the incident alleged to have taken place on 28th August, 2011, wherein the petitioner and his associates are alleged to have robbed Mohd. Shakil Shafiq Shah of his mobile and a sum of Rs. 700/-.
(iv) In-camera statement rendered by witness "A" on 22nd October, 2011 in regard to an incident, which have taken place in the third week of August, 2011.
(v) In-camera statement rendered by witness "B" on 26th October, 2011 in regard to an incident, which have taken place in second week of July 2011.
(vi) It is also noticed that action u/s 37(1)(a) r/w Section 135 of the Bombay Police Act was initiated against the petitioner on two counts. In the grounds of detention, a general reference is made about the preventive action taken against the petitioner u/s 110 of the Criminal Procedure Code on three occasions.
2. A perusal of the grounds of detention at paragraph 6 would go to show that the Detaining Authority was convinced on the basis of the material placed before it that the petitioner had unleashed a reign of terror and had become a perpetual danger to the society at large in the localities of Gaikwad Nagar, P.L. Lokhande Marg, Indira Nagar, Govandi Deonar, Mumbai and areas adjoining thereto in the jurisdiction of Mankhurd, Chembur and Tilak Nagar in Brihan Mumbai. Further contents of paragraph 6 also indicate that people residing and carrying out their daily vocations in the above localities were terror stricken and their normal life was affected adversely. It is also recorded that the activities of the petitioner were found to be prejudicial to the maintenance of public order in the localities mentioned aforesaid in Brihan Mumbai.
3. Paragraph 7 of the ground of detention indicate that the fact of release of the petitioner on bail in various cases, was considered while arriving at subjective satisfaction. The respective respondents have filed reply-affidavit in as much as Mr. Arup Patnaik, the then Commissioner of Police of Brihan Mumbai, Detaining Authority has filed affidavit dated 19th July, 2012. Mr. P.H. Wagde, Deputy Secretary, Government of Maharashtra has filed affidavit dated 20th July, 2012. Dr. Satyapal Singh, present Commissioner of Police has filed additional affidavit dated 29th August, 2012. These affidavits have been duly considered in the course of hearing of this petition.
4. This petition raises challenge to the detention order on various counts. We shall deal with those objections ground-wise.
5. Learned advocate Mrs. Ansari appearing on behalf of the petitioner submitted that though the grounds of detention referred to injuries caused to Mr. Mithun Sathe, concerning C.R. No. 115 of 2011 of Deonar Police station and Mr. Rajaram P. Babar, concerning C.R. No. 267 of 2011 of Chembur Police Station, the medical certificates in regard to the injuries suffered by so called victims have not been supplied and that material is not placed before the Detaining Authority and consequently the subjective satisfaction of the Detaining Authority is vitiated. According to learned advocate Mrs. Ansari, it was necessary for the Detaining Authority to produce these certificates to enable the petitioner to effectively put up his representation in the matter of the impugned detention order.
6. Learned advocate Mrs. Kantharia appearing on behalf of the respondents submitted that Mr. Sathe, as well as Mr. Babar, the victims had suffered the injuries was apparent on the basis of the text of the FIR in as much as in the FIR itself the information was disclosed that Mr. Mithun Sathe had treatment for injuries suffered by him in Shatabdi Hospital. In so far as injuries suffered by Mr. Rajaram P. Babar, the said information was available on the basis of the FIR, which discloses that treatment was received by Mr. Babar from Dhanvantari Hospital. Learned advocate Mrs. Kantharia submitted that the Medical Certificates concerning these two victims were not relied upon and that is how those documents were not supplied and no fault, therefore, can be found for not supplying the said Medical Certificates to the petitioner. Learned advocate Mrs. Kantharia pointed out that the additional affidavit-in-reply filed by Dr. Satyapal Singh deals with this aspect of the matter and in the said affidavit in paragraph 9, the above position is clarified.
7. We have considered the submissions advanced on both the sides. We are inclined to accept the submissions advanced by learned advocate Mrs. Kantharia. Paragraph 9 of the affidavit filed by Dr. Satyapal Singh clearly indicates that in the FIR itself, appropriate information is divulged so as to show that the concerned victims had suffered injuries and had taken treatment from the Shatabdi Hospital and Dhanvantari Hospital respectively. It is apparent that the documents in the nature of medical certificates were not relied upon by the Sponsoring Authority and as such, the same were not placed before the Detaining Authority for the purposes of considering the case of the petitioner. In our view, the subjective satisfaction of the Detaining Authority about the necessity to detain the petitioner inter alia arrived at on the text of the FIR and in coming to the conclusion that the victims namely Mr. Mithun Sathe and Mr. Rajaram Babar had suffered injuries was proper. The Detaining Authority is not expected to enquire into the truthfulness of the allegations in the FIR. In our view, the subjective satisfaction was properly arrived at. The Detaining Authority did consider the material placed before him in the proper prospective so far as the point namely injuries suffered by the victims. We reject the argument of learned advocate Mrs. Ansari that the subjective satisfaction of the Detaining Authority is vitiated.
8. Learned advocate Mrs. Ansari had next contended that the in-camera statements were recorded on 22nd October, 2011 and 26th October, 2011 respectively. She had submitted that the petitioner was in custody at the time when the in-camera statements were recorded. According to her, in-camera statements are false and fabricated and have been placed on record only to justify the order of detention. Learned advocate Mrs. Ansari had submitted that the two in-camera statements relating to incidents of August, 2011 and July, 2011 should not have been considered by the Detaining Authority for the purposes of recording the subjective satisfaction. According to her on this count, the subjective satisfaction is vitiated.
9. Learned advocate Mrs. Kantharia appearing on behalf of the respondents submitted that the in-camera statements were recorded while the petitioner was in custody. She submitted that this fact reinforces the stand of the respondents that no person was prepared to come to give his statement against the petitioner. According to her the in-camera statements were in fact given by the persons and have been truthfully recorded. According to her the in-camera statements were rightly used for the purposes of arriving at the subjective satisfaction by the Detaining Authority.
10. We have considered this point. We are not impressed by the stand taken by the petitioner. It is true that the in-camera statements have been recorded while the petitioner was in custody. However, that by itself is not sufficient to discard the same. On perusal of the relevant portions of the grounds of detention, it is clear that the persons who have given the in-camera statements, have referred to the incidents, wherein they were the victims at the hands of the petitioner. In this connection, a reference will have to be made to paragraph 6 of the grounds of detention. A perusal of paragraph 6 of the grounds of detention clearly indicates as to how the members of the public in the various localities mentioned in the various areas were scared of the activities of petitioner and as to how the activities of the petitioner were prejudicial to the maintenance of public order in the aforesaid localities. It will be proper to reproduce the relevant portion of paragraph 6 of the grounds of detention as, in our view, the said portion indicates as to how the Detaining Authority was satisfied about need to take action against the petitioner. The relevant portion is as follows.
6. ... You have unleashed a reign of terror and have become a perpetual danger to the society at large in the localities of Gaikwad Nagar, P.L. Lokhande Marg, Indira Nagar, Govandi Deonar, Mumbai and areas adjoining thereto in the jurisdiction of Mankhurd, Chembur and Tilak Nagar Police Station in Brihan Mumbai. People residing and carrying out their daily vocations in the above localities and areas and terror stricken and their normal life is affected adversely. Your activities are, therefore, prejudicial to the maintenance of public order in the above localities in Brihan Mumbai.
11. It is worth noting that the two persons who came forward to give in-camera statements while the petitioner was in custody. This justifies the stand of the respondents that persons in the aforesaid localities were not prepared to come forward to depose against the petitioner, when the petitioner was moving in the society on the basis of bail orders secured by him.
12. It was next contended by learned advocate Mrs. Ansari that the Detaining Authority has relied upon the actions initiated against the petitioner on two occasions under the provisions of Bombay Police Act. She pointed out to us the provisions of Section 2(b-1) of the Act of 1981 and submitted that in order to call a person as a "dangerous person" within the meaning of Section 2(b-1) actions initiated under the provisions of the Bombay Police Act, cannot be considered. Learned advocate Mrs. Ansari, therefore, submitted that the material placed before the Detaining Authority has not been properly appreciated and the subjective satisfaction arrived at is vitiated on the ground that the Detaining Authority has considered the material, which is not a germen for the purposes of deciding whether the petitioner should be detained under the Act of 1981.
13. Learned advocate Mrs. Kantharia appearing on behalf of the respondents submitted that in addition to the three incidents covered under the provisions of the I.P.C. and two in-camera statements, the action initiated against the petitioner under the Bombay Police Act was placed before the Detaining Authority in order to place before the Detaining Authority the over all conduct of the petitioner. She submitted that merely because the material concerning the action initiated under the Bombay Police Act is placed before the Detaining Authority, the subjective satisfaction is not vitiated.
14. We have considered this contention. We are not impressed by the argument advanced by learned advocate Mrs. Ansari. A perusal of the grounds of detention would clearly indicate that the Detaining Authority has arrived at the conclusion that the petitioner is required to be detained by relying upon the incidents covered under the provisions of IPC and two in-camera statements. The Detaining Authority has based its subjective satisfaction on the aforesaid material. The placement of the material concerning action under the Bombay Police Act against the petitioner should be treated as placing additional material for the purposes of showing the overall conduct of the petitioner. In this view of the matter, the objection to the detention order raised in terms of this ground cannot be sustained.
15. Learned advocate Mrs. Ansari appearing on behalf of the petitioner raised another point so as to challenge the order of detention by contending that the acts alleged against the petitioner are not in any manner prejudicial to the maintenance of public order. She took us through the incidents quoted by the Detaining Authority, which are alleged to have taken place on 17th July, 2011, 13th July, 2011 and 28th August, 2011. By relying upon the grounds of detention so far as these incidents are concerned, she submitted that the incidents alleged to have taken place on 17th July, 2011 as well as on 13th July, 2011 indicate that the said incidents are allegedly between the petitioner and the respective complainant namely Mr. Mithun Sathe and Rajaram P. Babar. Learned advocate Mrs. Ansari submitted that members of the public were not involved in the said incidents and these two incidents are qua the aforesaid two persons and therefore, there was no breach of public order when these incidents are alleged to have taken place. Same was the argument so far as incident, which is said to have been taken place on 28th August, 2011.
16. Learned advocate Mrs. Ansari had further submitted that there is a marked difference between breach of law and order and breach of public order. According to her the three incidents alleged against the petitioner would fall within the term "breach of law and order" and not under the "breach of public order". She submitted that since the incidents on which reliance is placed for the purpose of passing the order of detention fall under category "breach of law and order", an order of detention under the Act of 1981 could not have been passed because the power to pass detention order under the Act of 1981 can be used for the purposes of maintenance of public order. Learned advocate Mrs. Ansari relied upon the judgment in the case of
17. Learned advocate Mrs. Kantharia appearing on behalf of the respondents opposed the submission advanced by learned advocate for the petitioner. Learned advocate Mrs. Kantharia pointed out to the Court that the petitioner did indulge in offence under the I.P.C. punishable under Chapter XVI and Chapter XVII being three incidents namely, incident of 17th July, 2011, 13th July, 2011 and 28th August, 2011. She pointed out that the petitioner participated in three incidents within a span of 1 1/2 month. She submitted that the 3 incidents quoted against the petitioner clearly indicate that the petitioner was habitually committing offences punishable under Chapter XVI and XVII of the I.P.C. She submitted that as the petitioner successively indulged in the commission of offences on three occasions, the petitioner will have to be termed as a "dangerous person" within the meaning of Section 2(b-1) of Act of 1981. Learned advocate Mrs. Kantharia further submitted that reading of Section 2(a) and explanation attached to Section 2(a) of Act of 1981, it will be clear that the Detaining Authority was right in passing the detention order by relying upon the three incidents and two in-camera statements. Learned advocate Mrs. Kantharia submitted that for consideration of the question whether the petitioner could be said to be a "dangerous person", it is necessary to read the definition of the term in Section 2(b-1) of Act of 1981 and the provisions of Section 2(a-iv) of Act of 1981 which defines the term "acting in any manner prejudicial to the maintenance of public order" as applicable to category of person viz. "dangerous person". Learned advocate Mrs. Kantharia submitted that the legal fiction in the explanation must be read conjointly with Section 2 (a-iv), which defines the term "acting in any manner prejudicial to the maintenance of public order". According to her, if a person is found to be repeatedly commits or habitually engages in the activities mentioned in Section 2(b-1), he would be covered by the term "dangerous person" and an order of detention can be passed in exercise of the power conferred on authorities u/s 3 of the Act of 1981. Learned advocate Mrs. Kantharia in support of this proposition relied upon the judgment in the case of
18. Learned advocate Mrs. Kantharia further submitted that even if for a moment the incidents alleged to have taken place on 17th July, 2011 and 13th July, 2011 are said to have resulted in breach of law and order, still the incident alleged to have taken place on 28th August, 2011 will have to be treated as one resulting into threat to public order thereby giving an alarm to the members of the society. Learned advocate Mrs. Kantharia pointed out that the petitioner is alleged to have created a terror in the minds of the members of the public who were present at the scene of offence. Learned advocate Mrs. Kantharia pointed out that Mr. Roshan Pawaskar and one more associate of the petitioner also joined the petitioner at the relevant time. Learned advocate Mrs. Kantharia pointed out from the grounds of detention necessary material which shows that the petitioner used knife in the course of incident and administered threats to the members of the public who were around. She submitted that on account of this conduct of the petitioner, people ran away helter skelter and the petitioner tried to escape. Learned advocate Mrs. Kantharia relied upon the ground No. 5(e)(i) and submitted that the incident, which is alleged to have been taken place on 28th August, 2011 is described in the said ground and a perusal of the same would go to show that the said incident resulted in breach of public order. Learned advocate Mrs. Kantharia had submitted that in addition to this incident of 28th August, 2011, the Detaining Authority has relied upon two in-camera statements and has passed the detention order. Learned advocate Mrs. Kantharia had submitted that the Detaining Authority has rightly considered the material placed before it and has passed an order after it was convinced that the petitioner is a "dangerous person" within the meaning of Section 2(b-1) of the Act of 1981 and that the overt acts committed by the petitioner were prejudicial to the maintenance of the public order as defined in Section 2 of the Act of 1981. Learned advocate Mrs. Kantharia had, therefore, submitted that the detention order has rightly passed by the Detaining Authority.
19. We have considered the rival submissions and the judgment cited by both the sides. We have perused the judgment in the case of Ajay Dixit Vs. State of U.P. & Ors. (Supra). In the said judgment the Supreme Court at paragraph 16 has observed as follows :-
It is, therefore, necessary in each case to examine the facts to determine, not the sufficiency of the grounds nor the truth of the grounds, but nature of the grounds alleged and see whether these are relevant or not for considering whether the detention of the detenu is necessary for maintenance of public order.
20. A reading of this observation of the Supreme Court would clearly go to show that question whether overt acts alleged against the person amount to "breach of law and order" or "breach of public order" would depend upon the facts and circumstances of each case. So far as record of the present case is concerned, even if it is accepted for a moment that the incidents said to have been committed on 17th July, 2011 and 13th July, 2011 are referable to "breach of law and order", still the incident of 28th August, 2011 alleged against the petitioner and two in-camera statements are sufficient to hold that the Detaining Authority did cause threat to public order and the Detaining Authority has rightly come to the conclusion that the detention order is required to be passed against the petitioner. In this view of the matter, the judgment relied upon by the learned advocate Mrs. Ansari in the case of Darpan Kumar Sharma Vs. State of T.N. and Ors. 2003 SCC (Cri.) 537 would have no application.
21. The incidents of 17th July, 2011 and 13th July, 2011 alleged against the petitioner indicate that the petitioner committed offence punishable under Chapter XVI of the I.P.C. These two incidents coupled with the incident alleged to have been taken place on 28th August, 2011 covered by Chapter XVII of the I.P.C. and the incidents quoted in the two in-camera statements clearly indicate that the petitioner was rightly termed as a "dangerous person" within the meaning of Section 2(b-1) of the Act of 1981.
22. Learned advocate Mrs. Kantharia appearing on behalf of the respondents had relied upon the judgment in the case of Sujit Suresh Menpal Vs. A.N. Roy & Ors. 2007(1) Bom. C.R. (Cri.) 938 and had submitted that detention order passed on the basis of one FIR and two in-camera statements was confirmed by this Court. She relied upon the judgment in the case of
23. We have perused the judgments quoted above. We are in agreement with the submission of learned advocate Mrs. Kantharia. We see no reason to differ from the view taken by this Court in the judgments in the case of Sujit Suresh Menpal Vs. A.N. Roy & Ors. (Supra) and Jafar Ahmed alias Jafar Fantoosh Mohamad Razzak Khan Vs. M.N. Singh and Ors. (Supra).
24. On consideration of the incidents quoted in the grounds of detention, we hold that the same were germane to arrive at the subjective satisfaction that the even tempo of life of people was disturbed and these incidents quoted against the petitioner, resulted in breach of public order. In our view, the Detaining Authority has rightly appreciated the material placed before it and has passed an appropriate order. For these reasons, we are not inclined to interfere with the order of detention on the argument under consideration.
25. Learned advocate Mrs. Ansari next contended that there was a delay in passing the detention order and on that count, the detention order is required to be set aside. Learned advocate Mrs. Ansari took us through the relevant dates concerning the incidents alleged against the petitioner as well as the relevant dates when the two in-camera statements were recorded. Learned advocate Mrs. Ansari submitted that there has been a delay in passing the order of detention and as such the same should be quashed and set aside. In support of her contention that delay in passing the detention order vitiates the subjective satisfaction, she relied upon the judgment in the case of Austin William Luis Pinto Vs. Commissioner of Police, Greater Mumbai & Ors. 2005, All MR (Cri) 28.
26. Learned advocate Mrs. Kantharia appearing on behalf of the respondents opposed this submission. We have considered the relevant dates. We have also perused the affidavit filed by Mr. Arup Patnaik, the then Commissioner of Police, who had passed the detention order. It is noticed that the material relied upon by Sponsoring Authority in terms of three incidents have taken place between the period 17th July, 2011 to 28th August, 2011 and the two in-camera statements, which are recorded on 22nd October, 2011 and 26th October, 2011 respectively. After the aforesaid material was placed before the Detaining Authority, the order of detention has been passed on 13th December, 2011. It is true that the two in-camera statements relate to the incidents, which have taken place in the month of August, 2011 and July, 2011 respectively. However, we are inclined to note that the persons came forward to give in-camera statements only when the petitioner was in custody. Hence, though the in-camera statements relate to the period namely July, 2011 and August, 2011, it cannot be said that there was a delay in recording the in-camera statements.
27. After considering the relevant dates, we are inclined to observe that the Detaining Authority had attended to the matter as expeditiously as possible and in any case there has been no delay much less intentional delay on the part of the Detaining Authority. Hence, the judgment relied upon by the learned advocate Mrs. Ansari in the case of Austin William Luis Pinto Vs. Commissioner of Police, Greater Mumbai (Supra) will have no application to the facts of this case.
28. For the aforesaid reasons we are inclined to observe that the Detaining Authority has rightly considered the material placed before it and the order of detention is properly passed. For these reasons, we are of the view that no interference is required with the impugned order of detention. Hence, we are inclined to dismiss the petition. Accordingly, the petition is dismissed. We express word of gratitude and commendation for the industry and able assistance given by learned advocate Mrs. Ansari, who was appointed by the Court as Amicus Curiae.
