Rng 1
cwp2640.15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2640 OF 2015
Rashid @ Jagga Shaukat Hussein Sayyed }
Age 22 years, residing at Plot NO.14/F/06, }
Road NO.0-3, Shivaji Nagar, Govandi, }
Mumbai } .. Petitioner
vs
1. The Commissioner of Police }
Mumbai ig }
}
2. The State of Maharashtra }
(through Additional Chief Secretary }
to Government of Maharashtra }
Mantralaya, Home Department }
Mumbai }
}
3. The Superintendent, }
Nasik Central Prison, Nasik } .. Respondents
Ms.Anjali Patil Advocate for Petitioner
Mr.Jayesh P.Yagnik Additional Public Prosecutor
for State
...
CORAM: S.C.DHARMADHIKARI &
G.S.KULKARNI, JJ
DATE: 11TH AUGUST, 2015
JUDGMENT (Per G.S.Kulkarni, J)
1. By this petition under Article 226 of the Constitution of ::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 ::: Rng 2 cwp2640.15.doc India the petitioner-detenu challenges the order dated 22nd September, 2014 passed by the 1st respondent in exercise of the powers under sub-section (2) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons Act, 1981 (for short 'M.P.D.A.Act'). By the impugned order, the 1st respondent has directed that the petitioner be preventively detained with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. By an order dated 26th September 2014 the Government of Maharashtra has granted approval to the detention order dated 22 nd September, 2014. By an order dated 14th May 2015 the 2nd respondent-
State of Maharashtra in exercise of the powers conferred by sub-section (1) of section 12 of the M.P.D.A. Act has confirmed the order of detention dated 22nd September, 2014.
2. The facts on the basis of which the detention order has been made as can be seen from the grounds of detention as served on the petitioner are that the petitioner is stated to be a violent and dangerous ::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 ::: Rng 3 cwp2640.15.doc criminal having taken himself to the life of a criminal indulging into criminal activities for the sake of easy money in the locality of Gajanan Colony, Ahilyabai Holkar Marg, Lotus Colony, Road No.1,2,3,4,5 and 6, Bajiprabhu Deshpande Marg Shivaji Nagar, Govandi, Mumbai and the adjoining areas of Shivaji Nagar police station. The petitioner has formed a gang of like-minded criminals from the said locality. The petitioner has unleashed a reign of terror in the above areas and have become a perpetual danger to the life and property of people residing and carrying out their vocations in the said areas. The petitioner and his associates are moving about in these areas armed with weapons like knife, chopper, sword and committing offences of robbery, extortion, attempt to commit murder, assault, criminal intimidation and threatening law-abiding citizens on the point of deadly weapons. The petitioner and his associates are terrorizing the people so as to see that nobody would dare to help the victims. A detailed background of the criminal proceedings initiated against the petitioner since 2008 and the specific instances are set out in the grounds of detention. It was reported that on 6th May 2014 in the evening at about 18.15 hours the complainant was chatting with his friend Imran in front of public toilet on Road No.3, Shivaji Nagar, Govandi. At that time, the ::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 ::: Rng 4 cwp2640.15.doc petitioner along with his associates reached the said place armed with a knife. On the point of knife, the petitioner threatened the complainant and made a demand of Rs.5,000/- for conducting business in the area. The complainant was abused by the petitioner and his associates and threatened with dire consequences. Due to the threats and noticing knife in the hands of the petitioner, people got frightened and started running helter-skelter.
The local residents closed their doors and windows due to fear. The petitioner raised his knife in the air and his associates accompanied the petitioner and left the place hurling abusive words. The complainant Noor Mohammed Faiyaz Khan registered a complaint at Shivaji Nagar police station for the offence under sections 387, 504, 34 of the Indian Penal code against the petitioner and his associates vide C.R.No.201 of 2014.
Investigations were undertaken and a panchanama was prepared as also statements of about six witnesses were recorded to corroborate the relevant facts. Three associates of the petitioner were also arrested on 7th May 2014. Statements of these persons also came to be recorded on 14 th May 2014. The petitioner was arrested on 12th May 2014. At the instance of the petitioner knife used by him in the above offence was recovered and seized by the police under a panchanama. The complainant had identified the ::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 ::: Rng 5 cwp2640.15.doc petitioner as the person who demanded Rs.5000/- as a monthly hafta. On 13th May 2014 when the petitioner was produced before the Court of the learned Metropolitan Magistrate, 52nd Court, Kurla Mumbai, the petitioner was remanded to police custody till 15th May 2014. The remand was further extended to 29th May 2014. Before that on 15th May 2014 a bail application came to be filed on behalf of the petitioner before the Court of the learned Metropolitan Magistrate, 52nd Court, Kurla, Mumbai. On 17th May 2014 the Court of the learned Metropolitan Magistrate granted conditional bail to the petitioner on the petitioner executing a P.R.bond in the sum of Rs.25,000/- with one or two sureties and that the petitioner shall not repeat similar offence and shall not tamper with the prosecution evidence or threaten the informant or witnesses and shall report to Shivaji Nagar police station between 10.00 a.m. and 11.00 a.m. on every Monday and Thursday till the filing of the charge sheet. Bail was availed of by the petitioner on 26th May 2014. However, there were further complaints which were registered against the petitioner. Complainant was Dawood Ali Kuttabuddin Ansari. The complaint was of harassment and demand of money. On 13th June 2014 and 17th June 2014 statements of two more witnesses were recorded in-camera.
::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 ::: Rng 6cwp2640.15.doc
3. On consideration of the above material the 1st respondent passed the impugned detention order dated 22nd September, 2014 as also grounds of detention were served on the petitioner. By a further order dated 26th September 2014 passed in exercise of the powers under sub-section (3) of section 3 of the M.P.D.A. Act the State Government granted its approval to the detention order dated 22nd September 2014 passed by the 1st respondent. By an order dated 14th May 2015 passed under sub-section (1) of section 12 of the M.P.D.A. Act by the 2nd respondent-Government of Maharashtra the order of detention passed against the petitioner came to be confirmed. The petitioner has filed the present petition on 30th June 2015 assailing his detention.
4. Learned counsel for the petitioner has urged that the petitioner impugns the detention order on the grounds firstly that there is no application of mind as facts do not justify passing of the impugned order.
Secondly the detaining authority has taken into consideration two statements of witnesses (A) and (B) recorded in-camera for arriving at a subjective satisfaction and in issuing the order of detention which are not verified by any Senior Police Officer of the rank of Assistant ::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 ::: Rng 7 cwp2640.15.doc Commissioner of Police and further no notice of the verification is furnished to the petitioner along with the statement which has resulted in the detention order being vitiated as also the right of the petitioner to make a representation guaranteed under Article 22 (5) of the Constitution of India. Thirdly, the detaining authority has taken into consideration Criminal Case namely C.R.No.201 of 2014 and C.R.No.202 of 2014 under section 387, 504, 506 (2) read with 34 of the Indian Penal Code and under section 385, 42, 427 read with 34 of the Indian Penal code. It is urged that from the facts that as narrated in para 5a (i) of the grounds of detention, it is inconceivable that on such an incident, it can be held that only on finding in possession of the petitioner one sharp koyta public order is disturbed. It is urged that mere possession of any arm without any use and overtact it cannot be held that this could have disturbed public order so as to attract the provisions of section 3 of the M.P.D.A. Act and on this ground the order stands vitiated. Fourthly, it is further urged that there is a variance between the contents of two pages i.e. page no.507 and 207 of the compilation of documents. It is submitted that page 205 of the compilation is a bail order, a rubber stamp is fixed signed by the Metropolitan Magistrate Court No.45, reading "with sureties" whereas at page 593 of the compilation, it is stated ::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 ::: Rng 8 cwp2640.15.doc that "with surety" without any rubber stamp (seal) of the Metropolitan Magistrate's Court. This shows non-application of mind. Learned counsel for the applicant thus submits that the writ petition deserves to be allowed on these grounds.
5. On the other hand, Mr.J.P.Yagnik learned Assistant Public Prosecutor appearing for respondents has supported the order of detention passed by the respondent no.1. He submits that the petitioner has miserably failed to make out any grounds which would even remotely indicate that the order of detention passed against the petitioner can be said to be vitiated. Mr.Yagnik has drawn our attention to the affidavit filed by the respondent no.1-the detaining authority and more particularly to the paragraphs dealing with the case of the petitioner. It is submitted that assertion of the petitioner that there is no application of mind is without any substance. In para 5 of the affidavit-in -reply, the 1 st respondent has set out in detail that the detention order has been passed after considering all the material placed before the 1st respondent and after careful scrutiny of the same and being subjectively satisfied of the need for detention as also consideration of two cases namely C.R.No.201 of 2014 under section 387, ::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 ::: Rng 9 cwp2640.15.doc 504 read with 34 of the Indian penal code and C.R.No.202 of 2014 under section 385, 452, 504, 427, 506 (ii) read with 34 of the Indian penal code.
As regards the contention of the petitioner that the in-camera statements recorded of witnesses A and B for arriving at a subjective satisfaction are not verified, the 1st respondent has stated that inquiries about both the in-
camera statements were first made by the Senior Inspector of Police, Shivaji Nagar police station, Mumbai who had submitted the proposal recommending detention of the petitioner. The in-camera statements were verified personally by the Divisional Assistant Commissioner of Police and the same are found to be true and correct and the verification appears at pages 30, 31, 34 and 35 of the annexures provided by the petitioner along with the grounds of detention. The same are part of the writ petition, Paper Book. The contention of the petitioner that there is no verification by the Senior Police Officer is therefore, wholly without any basis. As regards other grounds that there is a variance in the contents at page 207 and 507 the learned APP has drawn our attention to para 8 of the reply-affidavit of the 1st respondent in which it is stated that the said allegations of the petitioner are not correct. It is stated that the detenu was supplied with page nos. 207, 507 and 593 at page 207 of the compilation is a copy of the LAC ::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 ::: Rng 10 cwp2640.15.doc No.2387 2009 registered with Shivaji Nagar police station, Mumbai. Page 507 is copy of the bail order in C.R.No. 207 of 2014 passed by the learned Metropolitan Magistrate, 45th Court, Kurla, Mumbai which bears the seal of the 45th Metropolitan Magistrate's Court, Kurla, Mumbai and page 593 is copy of the statement of Smt Ruksana Mohammed Furkan Ansari in C.R.No.202 of 2014 registered at Shivaji Nagar Police station. It is stated that copies of these documents were served on the petitioner. It is denied that there is any variance in the same. It is stated that the grounds are filmsy.
6. We have heard learned counsel for the parties. With their assistance, we have perused the impugned order, grounds of detention as also reply- affidavit filed by the 1st and 2 nd respondents. On examining the material as placed on record, we are not persuaded in any of the submissions as made on behalf of the petitioner. The impugned order has been passed by the 1st respondent after taking into consideration several complaints as filed against the petitioner since 2008. The incident of 6 th May 2014 in which the petitioner along with his associates threatened the ::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 ::: Rng 11 cwp2640.15.doc complainant with knives and demanded an amount of Rs.5000/- to permit the complainant to undertake business activities in the area as also an atmosphere of terror as created by the petitioner forms part of the grounds in support of detention. The 1st respondent has recorded statements of various witnesses as also associates of the petitioner. Further the two in-
camera statements were recorded which completely confirms the assertion and complaints made against the petitioner. The petitioner was arrested however on 17th May 2014 he was released on bail. The contention as raised by the petitioner that there is no application of mind in passing the impugned order of detention and there is no material whatsoever is thus without any basis as is clear from the material as placed on record and which forms part of the grounds of detention. The contention that statement of two witnesses which came to be recorded in -camera does not have any verification by the Senior Police Officer is also rendered incorrect on the perusal of these documents. We have perused the statements which are annexed by the petitioner as the same were supplied to him along with the grounds of detention. These statements have the verification of the Assistant Commissioner of Police, Deonar Division, Mumbai who has verified the contents of the statement. Furthermore, the 1 st respondent on ::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 ::: Rng 12 cwp2640.15.doc affidavit has confirmed the verification of these statements by the Assistant Commissioner of Police. We therefore, see no merit in this assertion as made on behalf of the petitioner.
7. As regards the ground that there is a variance in page nos.507 and 207 of the compilation of documents, in our opinion, is completely misconceived and untenable. The explanation which is offered in the affidavit in our opinion, falsifies this ground as being urged on behalf of the petitioner. Pages 207 is the copy of LAC No.2387 of 2009 registered at Shivaji Nagar Police station, Mumbai. Page 507 is copy of the bail order in C.R.No.201 of 2014 passed by the 45th Court of Metropolitan Magistrate,Kurla, Mumbai which bears the seal of the 45th Court of Metropolitan Magistrate, Kurla, Mumbai and page 593 is a copy of the statement of Ruksana Ansari in C.R.No.202 of 2014 registered with Shivaji Nagar police station. From a perusal of what is urged in ground (e) at page 7 of the petition, we do not see in what manner the petitioner has urged this ground of variance. These documents are independent documents. These documents have been appropriately described and therefore, there can be no quarrel on the same. Whereas page 593 is copy ::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 ::: Rng 13 cwp2640.15.doc of the statement of Ruksana Mohammed Ansari. Learned counsel for the petitioner could not justify the manner in which ground (e) of the writ petition is framed and had no submissions to offer to the submission of the respondents in para 8 of the reply-affidavit filed on behalf of the 1 st respondent.
8. In the light of the above discussion, in our opinion, no case has been made out for interference in the impugned order of detention. We do not find any merit in this petition. Rule is discharged. The Writ Petition is dismissed.
G.S.KULKARNI, J S.C.DHARMADHIKARI, J ::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 ::: Rng 14 cwp2640.15.doc ::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 ::: Rng 15 cwp2640.15.doc ::: Uploaded on - 19/08/2015 ::: Downloaded on - 10/09/2015 20:01:35 :::