Smt. Zebunnisa Abdul Majid vs Shri M.N. Singh, Commissioner Of ...
2001 Latest Caselaw 319 Bom

JUDGMENT

Smt. Ranjana Desai, J.

1. This petition is filed by the mother of one Abdul Rafiq alias Rafiq Lala Majid Shaikh ('the detenu') who has been detained under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords. Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 ('he said Act' for short), challenging the order of detention issued by Shri M. N. Singh, Commissioner of Police, Brihan Mumbai dated 6th July, 2000 whereunder the detenu is detained.

2. The order of detention issued under Sub-section (1) of Section 3 of the said Act, with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order was served on the detenu along with grounds of detention and material in support thereof on 15th July, 2000. Pursuant thereto the detenu was detained in Nasik Road Central Prison at Nasik.

3. In the grounds of detention, the Detaining Authority has set out incidents in which the detenu is involved and which in his opinion, have disturbed the even tempo of the life of society of concerned area.

4. The first incident is registered as C.R. No. 51/2000 at D. N. Nagar Police Station under Sections 387 and 506(ii) and 34 of the Indian Penal Code. The complaint lodged by scrap dealer Kalamuddin discloses that, on 2.2.2000, when his employee Achhelal was busy with his work in the scrapshop. the detenu and his associates Salim and Liyaqat Mohamed Ali Ansari and one unknown associate approached him. After giving threats to him they demanded Rs. 5,000/-. The detenu whipped out achopper and told him that, if within two days money was not paid, he and his employer would be killed. They threatened Achhelal and told him that they would come after two days to collect money. The detenu's associate Salim had a sword with him. The unknown associate of the detenu told Achhelal that, if the matter was reported to the police, the members of Kalamuddin's family would be killed. On next day Achhelal reported the matter to Kalamuddin. On 3.2.2000. Kalamuddin lodged the complaint.

5. In this connection, the detenu was arrested on 10.2.2000. On 7.4.2000. he was granted bail. He availed of the bail facility on 11.4.2000.

6. The second incident is registered as C.R. No. 53/2000 under Section 384, 506, 504, 34 of the Indian Penal Code at the D. N. Nagar Police Station. On 24.1.2000, complainant Shamshad Khan and his servant Amin Khan were busy with their work in the complainant's factory at Andheri (W). The detenu along with his associates Liyaqat and Salim came there. The detenu demanded Rs. 10,000/- from the complainant Shamshad Khan. When he asked the detenu as to why he should give him money, the detenu's associate Salim manhandled him. His associate Liyaqat Ali threatened him by saying that, if money was not paid they would not allow him to stay in Juhu Galli. Shamshad Khan did not lodge the complaint due to fear.

7. On 4.2.2000, the detenu contacted Shamshad Khan at his residence and enquired about money. When Shamshad Khan showed his inability to pay, the detenu threatened him and told him that, if money was not given within half an hour, he would not be allowed to conduct business in Juhu Lane. Shamshad Khan was frightened and he agreed to give Rs. 2,000/-. The detenu then asked him to come with money in front of Shivprasad Hotel, Juhu Lane. When Shamshad Khan reached the said hotel, detenu and his associates were sitting in a rickshaw there. Shamshad Khan gave Rs. 2,000/- to the detenue. The detenu and his associates threatened Shamshad Khan of dire consequences, if the matter was reported to the police. On 15.2.2000, Shamshad Khan mustered courage and lodged his complaint.

8. The detenu was arrested in this case on 10.2.2000. He was granted bail on 7.4.2000 and he availed of the ball facility on 11.4.2000. The grounds of detention further notice that confidential enquiries made by the police into the criminal activities of the detenu revealed that the detenu and his associates are weapon wielding, dangerous desperadoes, and nobody is willing to complain against them openly due to fear of retaliation. On getting assurance that their names and identity particulars would be kept secret and that they would not be called upon to give evidence against the detenu in any Court the witnesses expressed their willingness to give their statements. Their statements were, therefore, recorded incamera.

9. Statement of witness 'A' was recorded on 16th May, 2000. This witness has stated that the detenu and his associates extort money at the point of weapons from businessmen, shopkeepers and hawkers of the area; that whoever refuses to give them hapta money are threatened by them and that out of fear nobody complains against them. This witness gives detenu Rs. 5,000/- as hapta. According to him, in the third week of January. 2000 one day when the witness and his brother were attending customers in their shop, detenu came there along with his associates. The detenu whipped out a chopper and rested it on the neck of the witness. The detenu's associate Llyaqat All threatened the brother of the witness and asked for Rs. 2,000/-. Salim, another associate of the detenu took out cash from the cash box of the witness. They branded their weapons at the customers and threatened them by saying that they should run away from the place or else they would be done away with. The frightened customers ran away. The witness did not lodge complaint due to fear.

10. Statement of witness 'B' was recorded on 16.5.2000. He has stated that he knows detenu and his associates as jobless persons who extort money at the point of weapons from the shopkeepers, hoteliers and vehicle owners from the area. Whoever resists is assaulted. Out of fear nobody complains against the detenu. He has further stated that since last about six months detenu and his associates have been demanding Hapta of Rs. 1,000/- from him for parking his vehicle in front of his own house. In the second week of January. 2000 one day in the afternoon when he was parking his vehicle near his house, the detenu and his associates approached him. The detenu whipped out a knife and threatened the complainant and asked for Rs. 5,000/-. He threatened to set his vehicle on fire, if the money was not given to him. Sallu, the associate of the detenu damaged his vehicle. Out of fear he handed over Rs. 700/- to detenu's associate Liyaqat. People collected there ran away out of fear. This witness was scared and hence he did not lodged the complaint.

11. On the basis of these activities of the detenu, the Detaining Authority was satisfied that the detenu is a dangerous person within the meaning of Section 2(b-i) of the said Act and that he has unleashed a wave of terror and has become a perpetual danger to the society at large, in the locality falling in the jurisdiction of D. N. Nagar Police Station. The Detaining Authority has further asserted in the grounds that the people residing in the said area are experiencing a sense of insecurity and are living under a constant shadow of fear whereby the even tempo of life of the citizens is disturbed. The Detaining Authority has concluded that the detenu is a habitual criminal and action taken against him under the normal law of the land is found to be ineffective and insufficient to put a stop to his violent and criminal activities which are prejudicial to the maintenance of public order. The Detaining Authority has expressed his awareness about the fact that the detenu has availed bail facility, and has also expressed his apprehension that in view of the detenu's tendencies and inclination reflected in the offences committed by him. In the event of remaining at large the detenue was likely to revert to similar activities prejudicial to the maintenance of public order and that it was necessary to detain him under the provisions of the said Act in order to prevent him from acting in such a prejudicial manner in future. This order is under challenge before us.

12. We have heard at considerable length Shri S. R. Chitnis, Senior Counsel instructed by Shri S. V. Kotwal for the petitioner and Smt. Tahilramani, learned Government Pleader, who represents the State of Maharashtra. With the assistance of the learned Counsel, we have gone through the record.

13. Mr. Chitnis firstly contended that inasmuch as the Detaining Authority has not satisfied himself about the truthfulness of the contents of the incamera statements, the order of detention based on the said statements deserves to be quashed and set aside. As regards the issue whether an order of detention could be based on incamera statements. Mr. Chitnis stated that in view of the judgment of the Supreme Court in Smt. Phulwari Jagdambaprasad Pathak v. Shri R. H. Mendonca & Ors.,' it is no longer open to contend that incamera statements cannot be taken into consideration by the Detaining Authority. Mr. Chitnis, however, added a rider that in all cases where incamera statements are sought to be used, the Detaining Authority must be satisfied about the truthfulness of their contents. They must be verified and found to be true and this verification must be to the satisfaction of the Detaining Authority and this fact must be apparent from the grounds or from contemporaneous record. This safeguard according to Mr. Chilnis is imperative.

14. In Smt. Phulmart's case (supra) while dealing with the question as to whether incamera statements can be utilized by the Detaining Authority for passing the detention order, the Supreme Court observed that it is neither possible nor advisable to catalogue the types of materials which can form the basis of a detention order under the Act. That will depend on the facts and situation of every case. The matter is left to the discretion of the Detaining Authority. However, the facts stated in the materials relied upon should be true and should have a reasonable nexus with the purpose for which the order is passed.

15. In the facts of Smt. Phulwari's case (supra), the Supreme Court found that in the incamera statements separate incidents of the criminal activities of the detenu were stated. The assertions were not assailed as untrue, nor could they be said to be irrelevant for the purpose of the order. Therefore, it cannot be said that there was no basis for the Detaining Authority to feel satisfied that the detenu as habitually committing offences as stated under Section 2(b-i)of the said Act.

16. Relying on this judgment Mr. Chitnis emphasised the need to verify the truthfulness of the contents of the incamera statements by the Detaining Authority. He contended that, if there is no proper verification of truthfulness of the contents the said statements cannot be used by the Detaining Authority.

17. He has also relied on the judgment delivered by the Division Bench of this Court in Vijaga Raju Gupta v. Shri R. H. Mendonca & ors.,. In that case also the order of detention was issued under the provisions of the said Act. The Detaining Authority had based his satisfaction on the incamera statements. The detenu had taken a specific plea in the petition that the incamera statements are false and fabricated; that the incamera statements were recorded by inferior authority and also verified by inferior authority and, therefore, the Detaining Authority could not have claimed privilege in pubic interest in not disclosing the names of the witnesses whose statements were recorded Incamera.

18. While denying that the statements were false and fabricated, the Detaining Authority had stated in his affidavit that the incamera statements were verified by higher grade police officer of the rank of Assistant Commissioner of Police (A.C.P. for short) and in view of the verification of the in camera statements made by Senior Police Officer of the rank of A.C.P., he was subjectively satisfied that the contents of the in camera statements were true and genuine. It was also stated that he was subjectively satisfied that all the materials on which he had placed reliance were true and genuine.

19. After quoting the relevant observations of the Supreme Court in Smt. Phulwari's case (supra), the Division Bench concluded that the Supreme Court had made it clear that the materials relied upon by the Detaining Authority should be true and have a reasonable nexus with the purpose for which the order is based. Necessary corollary, therefore, is that the Detaining Authority must be satisfied about the truthfulness of the statements made in the in-camera statements. The Division Bench referred to the affidavit filed by the Detaining Authority wherein he had stated that the in camera statements were verified by the higher grade police officer of the rank of A.C.P. and, therefore, he was satisfied that the contents of the said statements were true. The Court referred to the translation of the verification made by the A.C.P. below the in camera statements which read as "my statement was translated to me in Hindi which is in accordance with what I stated". The Court, therefore, concluded that the A.C.P. had only verified that the statements made by the witnesses were recorded as per their say. The A.C.P. had not verified the contents of the said statements. Therefore, the Detaining Authority could not have relied upon this verification. This was more so because there was no contemporaneous document or material in support of this verification. The Court observed that no such statement was made in the grounds of detention that the statements made in the in camera statements were believed to be true. On these facts the Court concluded that it was difficult to hold that the Detaining Authority was in fact subjectively satisfied that the assertions made in incamera statements were true.

20. Mr. Chitnis urged that in the present case also the Detaining Authority has not verified whether the contents of the in camera statements are truthful. The verification is faulty, there is no contemporaneous record to indicate that the Detaining Authority had applied his mind to this fact and was subjectively satisfied that the contents of the in camera statements were true. Mr. Chitnis urged that there was no statement to that effect in the grounds of detention and hence judgment in Smt. Vijaya Raju's case (supra) is squarely applicable to the facts of the present case.

21. As against this, Mrs. Tahilramani, the learned Government Pleader contended that in the case on hand there is sufficient indication in the affidavit in reply filed by the Detaining Authority that he was personally satisfied about the truthfulness of the contents of the in camera statements. She submitted that the judgment in Vijaya Raju's case (supra) can be distinguished as the facts in the present case are entirely different. She also placed reliance on the judgment of Division Bench of this Court in K.B. Babu Menon v. R. H. Mendonca & Ors...

22. We find no difficulty in rejecting Mr. Chitnis's submission. It is true that in Smt. Phulwari's case (supra), the Supreme Court has observed that materials relied upon by the Detaining Authority should be true and should have a reasonable nexus with the purpose for which the order is passed. It is, however, not laid down that the Detaining Authority should expressly state in the grounds of detention that he had verified the contents of statements and found them to be true. Mr. Chitnis made an effort to deduce this proposition from the observations of this Court in the judgment in Vijaya Raju's case (supra) that "on the basis of mere verification without there being something more by way of contemporaneous documents or material more over when no such statement is made in the grounds of detention that the statements made in camera were believered to be true, it is very difficult to hold that the Detaining Authority was in fact subjectively satisfied that the assertions made in incamera statements were true". In our opinion, this observation of the Division Bench is being torn out of context. In the facts of that case the Detaining Authority in his affidavit had stated that the incamera statements were verified by the higher grade police officer of the rank of A.C.P. In the subsequent affidavits, he had expressed his satisfaction that the contents of the incamera statements were true and genuine because they were verified by the A.C.P. The English translation of the veriflcation made by the A.C.P. below the incamera statements, made it amply clear that the A.C.P. had not verified the truthfulness of the contents of the statments. He had merely varified that the statements of the witnesses were recorded according to their say. Obviously, therefore, it cannot be said that the A.C.P. had verified the truthfulness of the contents of the incamera statements.

23. If the A.C.P. had himself not verified whether the contents of the incamera statements were true, the Detaining Authority could certainly not have recorded his satisfaction on the basis, thereof that the contents of the said statements were true. The observation of this Court in Vyaya Raju's case (supra) on which Mr. Chitnis has placed reliance will have to be read against this background. No conclusion can be drawn from it that in all cases the Detaining Authority must aver in the grounds of detention that he was subjectively satisfied about the truthfulness of the contents of the incamera statements. In fact in State of Gujarat v. Sunil Fulchand Shah & Ann, the Supreme Court has stated that, it is not necessary for the Detaining Authority to mention in the grounds his reaction in relation to every piece of evidence placed before him. Similar view has been taken by the Division Bench of this Court in Criminal Writ Petition No. 542 of 1995 delivered on 7th June, 1996/11.6.1996.

24. Besides, the affidavit filed in the case on hand is entirely different from the one which was filed in Vijaya Raju's case (supra). In the present case in the affidavit, the Detaining Authority has clearly stated that the A.C.P. had personally got it confirmed from the witnesses that their statements were correctly recorded. The A.C.P. was satisfied after making enquiries that the incidents mentioned by the witnesses were true. The Detaining Authority had relied upon this verification made by the A.C.P. In paragraph 19 of his affidavit the Detaining Authority has stated as under:

"I say that the incamera statements are recorded by the responsible officer of D. N. Nagar Police Station. The witnesses have given a vivid and truthful account of the atrocities committed by the detenu against them. It is submitted that both the incamera statements were verified by the Senior Official of Police, from the persons who made the said statements. I say that the Assistant Commissioner of Police, personally got it confirmed from the said witnesses that their statements were correctly recorded. The Assistant Commissioner of Police had made detail enquiries due to which he was satisfied that such a person i.e., incamera witnesses did exist, that the fear in the minds of the witnesses was real and that the incidents which they had stated were true. It is submitted that it is not necessary for the Detaining Authority to personally verify about the existence of the incamera witnesses or the truth of the averments in respect of the incidents described by the said witnesses in their statements. As stated earlier, the truth of the contents of the incamera statement was verified by the Police Officer of a Senior Rank that is the Assistant Commissioner of Police made detailed enquiries with the witnesses and ascertained that the fear in their minds of the detenu by the witnesses A and B was genuine."

"It is denied that there was no occasion to enquire against the activities of the detenu in the month of May. 2000. It is further denied that this exercise was done by the Sponsoring Authority only with a view to bolstering the case for detention against the detenu. I say that I had carefully applied my mind to this aspect and I was satisfied that the two witnesses who made the in-camera statements were very much in existence and that the incidents stated by them are true."

These averments made in the affidavit make it amply clear that verification done in the present case is about the truthfulness of the contents of the incamera statements.

25. That the A.C.P. had verified whether the contents of the incamera statements are true or not can be ascertained from the noting found at the end of the incamera statements. Noting found at the end of incamera statement of witness A may be quoted :

The abovementioned witness-A is present before me today i.e. on 17.5.2000, when his above statement was read over and explained to him. He stated that it was recorded as per his say and that the signature made on this statement was his. When further enquiry was made with him, I was satisfied that his identity, theincldents narrated by him and the apprehension entertained by him about the detenu is true."

From this verification it is clear that the A.C.P. after questioning the witness was satisfied about the fact that the incident narrated by him was truthful. It is on this verification that the Detaining Authority has placed reliance and, we find nothing wrong with it. It is not even Mr. Chitnis's case that the Detaining Authority should personally question the witnesses and satisfy himself about the truthfulness of the contents of the statements, in the nature of things, the Detaining Authority cannot undertake such exercise personally and has to place reliance on a senior officer like the A.C.P. In this case that is exactly what he has done. To us his subjective satisfaction based on A.C.P.'s verification about the truthfulness of the contents of the incamera statements appears to be genuine.

26. In K. B. Babu Menon's case (supra) the affidavit of the Detaining Authority is on similar lines and the Court has come to a conclusion that the Detaining Authority was satisfied about the truthfulness of the incamera statements. The judgment in Vijaya Raju's case (supra) was distinguished by the Court by holding that the observations of the Court were confined to the facts with which it was concerned. We are In respectful agreement with this view. We have, therefore, no hesitation in observing that the Detaining Authority was subjectively satisfied about the truthfulness of the contents of the incamera statements and hence reliance placed on them cannot be faulted on that count.

27. Mr. Chltnis then contended that the incamera statements pertain to unregistered offences. Timely reporting of an offence lends credibility to the incident narrated by the informant. Therefore, while considering the truthfulness of incamera statements, this fact must be present in the mind of the Detaining Authority. He must express that this fact was considered by him. In our view this submission also cannot be accepted. Statements of witnesses have been recorded incamera because they did not want to disclose their identity out of fear of reprisal at the hands of the detenu. The witnesses did not register cases out of fear. This itself is a good enough reason to consider the detenu to be a threat to maintenance of public order. Once the Detaining Authority is subjectively satisfied about the truthfulness of the contents of the incaniera statements, as he is in the present case, the inclusion of such incamera statements in the grounds of detention cannot be faulted. It is not necessary for him to express in the grounds of detention his reaction to every piece of evidence placed before him.

28. Mr. Chitnis also relied on Pradeep Nilkanth Paturkar v. S. Ramamurthi & Ors... In that case, detention order was issued under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981. It was passed after about five months from registration of last case and more than four months from the date of proposal. Only one contention was pressed before the Supreme Court, namely delay in passing the detention order. The Supreme Court while dealing with the aspect of delay observed that out of five criminal cases three were of the year 1990 and the remaining two were dated 5.1.1991 and 26.2.1991. In respect of the five incidents, witnesses A to E were examined in the later part of March, 1991. that is long after the detenu had been released on ball in all the five criminal cases. It is against this background that the Supreme Court observed that the fact that the statements from the witnesses were obtained only after the detenu was successful in getting bail in cases registered against him, that too in the later part of March, 1991 is a disturbing feature. Mr. Chitnis contended that even in the present case the statements of witnesses have been recorded after the detenu was released on bail. Therefore, it is a disturbing feature and the Detaining Authority should have applied his mind to it. We are not impressed by this submission. Firstly, there is no delay in issuing the present detention order and Mr. Chitnis has not even pressed his challenge based on delay. Secondly, in our opinion, the Supreme Court has not laid down that in all cases where statements are recorded after the detenu is released on bail they should be viewed with suspicion. The observation of the Supreme Court are in the con text of delay in issuing the detention order and are confined to the facts of that case. In any event this aspect of the matter was clearly evident from record which was before the Detaining Authority. After considering all aspects of the matter in their proper perspective the Detaining Authority has expressly stated in the affidavit that he was satisfied about the truthfulness of the said statements. Such satisfaction cannot be questioned. This submission of Mr. Chitnis must therefore, fail.

29. Mr. Chitnis then contended that in any event the incidents mentioned by the witnesses whose statements have been recorded incamera do not affect public order. He contended that the incidents concern specified individuals. They cannot be said to disturb the even tempo of the society.

30. In this connection, he relied on the judgment of the Supreme Court in Niranjan Singh Karan Singh Punjabi v. Jiteridra Bhimrqj Bijjaya & Ors.,. He led particular stress on paragraph 10, where while dealing with the statements ofthewitnesses on which the prosecution had placed reliance the Supreme Court has observed that the Designated Court was right in coming to the conclusion that the intention of the accused persons was to eliminate Raju and Keshav for gaining supremacy in the underworld. A mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence under Section 3(1) of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (the T.A.D.A. for short). The Supreme Court further observed that that may indeed be the fall out of the violent act but that cannot be said to be the intention of the perpetrators of the crime. Mr. Chitnis urged that in the instant case also the terror or fear is merely the fall out of the violent act but creation of terror cannot be said to be the intention of the detenu.

31. In our opinion the reliance placed by Mr. Chitnis on Niranjan Singh's case (supra) is wholly misplaced. The accused in that case was detained under the T.A.D.A., Section 2(h) of the T.A.D.A. defines the expression "terrorist act" to have the same meaning assigned to it under Section 3(1) thereof. The relevant part of Section 3(1) provides that whoever, with intent (i) to overawe the Government as by law established or (ii) to strike terror in the people or any sections of the people or (iii) toalienate any section of the people or (iv) to adversely affect the harmony amongst different sections of the people, does any act or thing by using any of the lethal weapons mentioned therein insuch a manner as to cause death of/or injuries to any person or persons, commits a terrorist act. Therefore intention is a prerequisite for an act to partake the character of a terrorist act within the meaning of Section 3(1).

32. Before the Supreme Court the case of the prosecution was that the five accused persons had formed an unlawful assembly, killed Raju and injured Keshav 'with intent to strike terror in the people or any section of the people' I.e. the residents of the locality, by the use of lethal weapons and thereby they committed offence punishable under Section 3(1) of the T.A.D.A. read with other offences under the Penal Code. The Supreme Court was considering whether this act of the accused constituted a terrorist act within the meaning of section, 3(1) of the T.A.D.A., For this purpose it had to ascertain whether the act was committed with the necessary intention. The Supreme Court observed that the intention of the accused persons was to eliminate the rivals and gain supremacy in the underworld so that they may be known as the bullies of the locality and would be dreaded as such. But it cannot be said that their intention as to strike terror in the people or a section of the people and thereby commit a terrorist act. The consequence of such violence, observed the Supreme Court, is bound to cause panic and fear but the intention of committing the crime cannot be said to be to strike terror in the people or any section of the people. It is in these circumstances that the Supreme Court observed that the necessary intent to strike terror was absent and panic created amongst a section of people is merely fall out of the violent act and, therefore, prima facie, commission of offence punishable under Section 3(1) of the T.A.D.A. was not disclosed.

33.We are of the opinion that these observations of the Supreme Court cannot be applied to the facts of the instant case. In the case of detention' of a person under the provisions of the said Act, what is to be ascertained is whether the activities of a detenue are likely to cause a disturbance of public order or whether they lead to a disturbance of even tempo of the life of the community- The said Act makes no reference to 'intention". Detention under the said Act cannot be compared to action taken under the T.A.D.A. Tn the present case the material placed before the Detaining Authority indicates that the detenu and his associates go to public places and extort money at the point of weapons. These are not acts directed I against the specified individuals, but against the members of general public without there being any previous enemity. If the activities of the detenu unleash a wave of terror in the general public, as is the case here, they affect public order. Mr. Chitnis's submission based on Niranjan Singh's case (supra) must, therefore, be rejected.

34. Mr. Chitnis also relied upon Ajay Dixit v. State of U.P. & Ors., where after taking a resume of several judgments the Supreme Court has quoted observations made by it in Arun Ghosh v. State of West Bengal. where it is observed that the question whether a man has only committed a breach of law and order, or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the Act, upon society. The test is : Does it lead to a disturbance of even tempo and current of life of the community so as to amount a disturbance of the public order, or does it effect merely an individual without affecting the tranquility of society. The distinction between the area of law and order and public order is one of degrees and extent of the reach of the act in question on society. It is the potentiality of the act to the disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. If the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only. These concentric concepts of law and order and public order may have a common epicenter, but it is the length, magnitude and intensity of the terror-wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting public order from that concerning law and order.

35. Applying these tests to the case on hand, it will have to be concluded that the activities of the detenu affect maintenance of public order. Witnesses A and B have in terms stated that the detenu extorts money from the businessmen of the locality at the point of weapons. Due to terror created by him and his associates, people are afraid to report the matter to the police and they pay extortion money out of fear. Both the witnesses have deposed about the manner in which the detenu and his associates threatened them and extorted or tried to extort money from time. Therefore, the incidents deposed to by witnesses A and B do affect public order.

36. Even the first two incidents in respect of which cases are registered at D. N. Nagar Police Station have a potentiality to disturb public order, as they are extortion cases. That acts of extortion disturb public order can no longer be disputed. In Arun Mohammed Qureshi v. Commissioner of Police, Bombay, the detenu was Indulging in crimes like robbery, extortion and criminal intimidation. The Supreme Court held that the detenu was a desperate character and had been indulging in crimes of serious nature disturbing maintenance of public order. In Prabhakar Shetty v. S. Ramamurthy, and in Sunil Patil v. Satish Sahney & Ors., this Court has taken a similar view. We are, therefore, of the view that the first two cases of extortion also disturb the even tempo of the community.

37. Mr. Chitnis relied upon Mustakmiya Shaikh v. M. M. Metha & Ors., where the Supreme Court was dealing with the case of a person detained under the Gujarat Prevention of Anti-Social Activities Act, 1985 (the Gujrat Act for short). The definition of dangerous person under the Gujarat Act is identical to the definltton of the said term in the said Act. Dangrous person has been defined as a person who habitually commits or attempts to commit or abets the commission of any offence punishable under Chapter XVI or Chapter XVII of the I.P.C. The Supreme Court quoted the definition of the word habitually as given in the Law Lexicon by P. Ramanatha Aiyar. The Law Lexicon says that habitually means constant, customary and addicted to specified habit and the term habitual criminal may be applied to anyone who has been previously convicted of a crime to the sentences and committed to prison more than twice. After considering this definition and the relevant case law, the Supreme Court concluded that in order to bring a person within the expression 'dangerous person' there should be positive material to indicate that such person is habitually committing offences which are punishable under Chapter XVI or Chapter XVII of the I.P.C. or under Chapter V of the Arms Act and a single or isolated act falling within the said chapter cannot be characterised as habitual act.

38. Mr. Chitnis contended that, if the incamera statements are left out then there are only two registered cases against the detenu and in the light of observations of the Supreme Court in Mustakmiya's case (supra), It cannot be said that the detenu is a habitual criminal. We have already held that the incamera statements have rightly been relied upon by the Detaining Authority. The two registered cases also pertain to activities which affect even tempo of the community. Hence this is not a case where the detenu is involved in only two cases. The two registered cases and the incamera statements cumulatively porlray the detenu as a person whose activities have unleashed a wave of terror in the area. The judgment in Mustakmiya's case (supra) can have no application to the facts of the present case. This argument of Mr. Chitnis must, therefore, be rejected. No other submissions were made by Mr Chitnis.

39. We are, therefore, of the view that the detenu is a habitual criminal. His activities have spread terror in the general public resulting in disturbance of even tempo of the life of the society. Normal law of the land has failed to curb his activities. The order of detention is, therefore, perfectly justified. We find no Infirmity in it. The petition deserves to be dismissed and is accordingly dismissed. Rule is discharged.