Mohamed Harshad Mohamed Ashraf ... vs Mr. M.N. Singh, Commissioner Of ...
2001 Latest Caselaw 358 Bom

JUDGMENT

Vishnu Sahai, J.

1. Through this writ petition preferred under Article 226 of the Constitution of India, the Petitioner - detenu impugns the order dated 18.1.2001 passed by the First Respondent Mr. M. N. Singh, Commissioner of Police, Greater Mumbai, detaining 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 (No. LV of 1981 (Amendment - 1996). (Hereinafter referred to as the M.P.D.A. Act).

The detention order along with the grounds of detention which are also dated 18.1.2001 was served on the petitioner-detenu on 21.1.2001 and

their true copies are annexed as Exhibit A and B respectively to this writ petition.

2. The prejudicial activities of the petitioner-detenu prompting the First Respondent to pass the Impugned order are contained in the grounds of detention. Their perusal shows that the impugned order is founded on 1 C.R. namely C.R. No. 266/2000 of Nehru nagar police station, Bombay, under sections 323. 324. 506(2) 34 of the I.P.C. registered on the basis of a complaint dated 13.7.2000 lodged by Mohammed Sayed Mohd. Lakir Khan, one LAC, namely LAC No. 1504/2000 and in camera statement of two witnesses namely A and B which were recorded on 5.9.2000 and 6.9.2000 respectively.

3. We have heard learned counsel for the parties. Although in this writ petition, Ms. Anjali Patil-Contractor, learned Counsel for the petitioner-detenu, has pleaded a large number of grounds numbered as ground Nos. 6(i) to 6(xiv) but, she has only pressed before us two grounds namely those pleaded as ground Nos. 6(iii) and 6(vi).

We now propose considering the said grounds.

4. Ground No. 6(iii) in short is that the first respondent be called upon to point out to this Court as to when the proposal was received by the Detaining Authority and when the grounds of detention were formulated. It has also been averred in the said ground that the Detaining Authority is required to consider proposal and formulate the grounds expeditiously and if it is not so done, the detention order would be rendered bad in law and would deserve to be quashed and set aside.

5. Ground No. 6(iii) has been replied to by the Detaining Authority in two returns filed by him: both having been sworn on 16.4.2001. The first return is at page Nos. 126 to 151 of the petition and the second at page Nos. 152 to 157.

In the first return, ground No. 6(iii) has been replied to in para 11; in the second, in para 2.

In para 11 of the first return, the Detaining Authority, in short, has stated as under :-

The last in camera statement was recorded on 6.9.2000 and thereafter, the Sponsoring Authority went through all the material and after preparing the necessary sets of documents, by getting them typed, xeroxed etc. forwarded the proposal on 11.9.2000 through proper channel to the Senior P. I. of Nehru nagar police station, Bombay, who after going through the proposal and the papers gave his endorsement on 11.9.2000. On 12.9.2000, as per the usual practice, the papers were forwarded to the Dy. Commissioner of Police, Zone-5, who after going through them gave his endorsement on 20.9.2000.

The reasons as to why it took the Dy. Commissioner of Police, Zone-5, eight days to give his endorsement were as under :-

(i) On 12.9.2000, there was Anant Chaturdashi. Hence, Dy. Commissioner of Police was busy in overseeing bandobust arrangements and monitoring the situation;

(ii) 17.9.2000 was a holiday, being a Sunday: and

(iii) in the said period, there were many detention proposals before him.

After giving his endorsement on 20.9.2000, the papers were forwarded by the Deputy Commissioner of Police to the Additional Commissioner of

Police who after going through them gave his endorsement on 25.9.2000, 23.9.2000 and 24.9.2000 being holidays.

Thereafter the papers were forwarded to the Sr. P. I. P.C.B., C.I.D., Bombay who after going through them and preparing a detailed note forwarded them on 28.9.2000 to the Dy. Commissioner of Police (Preventive) Bombay. Thereafter, the papers were forwarded to the Dy. Commissioner of Police who gave his endorsement on them on 3.10.2000, 1.10.2000 and 2.10.2000 being holidays.

Thereafter, the papers were forwarded to the Additional Commissioner of Police (Crime) Bombay who went through them and gave his endorsement on 18.10.2000. The reason as to why it took him 15 days was that during this time, there were many detention proposals for consideration before him. Thereafter, the papers were forwarded to the Joint Commissioner of Police, Bombay who gave his endorsement after considering the proposal on 21.10.2000. Thereafter, on 21.1.2001, papers were placed before the Detaining Authority who went through them, formulated the draft grounds of detention and forwarded the papers to the Sponsoring Authority who on that very date submitted them for fair typing, translation of documents in a language known to the detenu etc.

After the said work was completed, the papers were received in the office of the Sr. P. I. P.C.B., C.I.D., Mumbai, on 9.1.2001 who after checking them placed them before the Additional Commissioner of Police (Crime) vide endorsement dt. 10.1.2001 and the latter went through them and gave his endorsement on 11.1.2001.

Thereafter, on 18.1.2000, the papers were placed before the Detaining Authority who on the said date finalised the grounds of detention and issued the detention order. The reason for the delay in the said period was that there were many detention matters which were pending before the Detaining Authority and which were prior to this proposal.

6. We now come to the "second affidavit of the Detaining Authority wherein the said ground has been replied to in para 2. We do not want to over burden our judgment and hence are not referring to the averments made by him in the first affidavit.

The main averment made by him in the second affidavit is that between 23.10.2000 and 2.1.2001, there were a large number of ready detention orders before him as also a large number of fresh detention proposals like the present one. During this period, he issued 53 detention orders which related to proposals received prior to the present proposal. Another explanation for the delay in the said period is that there were 15 holidays namely on 28.10.2000, 29.10.2000, 5.11.2000, 11.11.2000, 12.11.2000, 19.11.2000, 25.11.2000, 26.11.2000, 3.12.2000, 9.12.2000, 10.12.2000, 17.12.2000, 23.12.2000, 24.12.2000 and 31.12.2000.

Explaining the delay between 12.1.2001 and 17.1.2001, the Detaining Authority has stated that there were a large number of ready detention matters before him and in the said period, he issued many detention orders.

7. In both the affidavits, the Detaining Authority has asserted that at any rate, looking to the propensity and potentiality of the detenu to commit similar prejudicial activities, it cannot be said that the live link between his prejudicial activities and the rationale of clamping a detention order on him was severed.

8. We have perused ground No. 6(iii) of the petition, the averments contained in para 11 of the first return of the Detaining Authority and those contained in para 2 of his second return and heard learned counsel for the parties.

9. We are constrained to observe that ground no. 6(iii) is devoid of substance. It should be borne in mind that delay simplicitor in the issuance of a detention order does not vitiate the same. A detention order is vitiated on the vice of delay in its issuance if the delay is not satisfactorily explained. Our view is founded on sound common sense and in our judgment, there is no necessity to take recourse to the crutches of authorities but, since reference to and reverence of authorities has become the order of the day, we do not want to deviate, lest we be castigated as non-conformists. The authority which we propose referring to is the oft-quoted case of Hemlata Kantilal Shah v. State of Maharashtra,.

The relevant observations are at page 13, which read thus :-

"Delay ipso facto in passing an order of detention after an incident Is not fatal to the detention of a person, for in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the Detaining Authority.

10. In the instant case, we do not even have an iota of doubt that the delay in the issuance of the impugned detention order has been satisfactorily explained by the Detaining Authority in the two returns filed by him. The Detaining Authority virtually on a day-to-day basis has explained the said delay. We have earlier copiously referred to the said explanation I furnished by him in para 11 of his first return and para 2 of the second return and do not want to burden our judgment by reiterating the said facts, constituting the said explanation.

11. In our view, in the instant case on the face of the explanation furnished in the returns of the Detaining Authority, the detention order cannot be castigated as being vitiated by the (SIC) of delay so as to throw a cloud of doubt on the genuineness of the subjective satisfaction of the Detaining Authority to detain the detenu under sub-section (1) of section (3) of the M.P.D.A. Act.

Hence, ground No. 6(iii) fails.

12. We now come to ground No. 6(vi) which is perhaps the most common ground taken to impugn detention orders.

The said ground in short is that the incident of C.R. No. 266/2000 at the highest amounts to violation of law and order and not public order and consequently, the impugned order, which suffers from the vice of non-application of mind, could not have been passed.

Ground No. 6(iii) has been dealt with in para 14 of the first return of the Detaining Authority wherein he has averred that he has replied to ground No. 6(ii) and 6(iii) of the petition in para 10 of his return (first return). In the said para, the Detaining Authority has not only dealt with as to how the incident pertaining to the said C.R. amounts to violation of public order and not law and order simplicitor but, has also dealt with as

to how the in camera statements of witnesses A and B palpably disclose violation of public order.

Regarding the incident relating to C.R. No. 266/2000, the Detaining Authority has averred that on 13.7.2000, the detenu and his associate waylaid the complainant Mohamed Sayed and the detenu assaulted him with a razor causing him injuries on his neck and abdomen and his associate also assaulted him. Frightened by the act committed by the detenu and his associate passers by ran helter-skelter. The Detaining Authority has averred that the incident relating to C.R. No. 266/2000 makes it manifest that public order, and not law and order simplicitor, was violated.

13. We have reflected over the averments contained in ground No. 6(vi) and those contained in paras 10 and 14 of the first return of the Detaining Authority wherein the said ground has been replied to. We regret that we do not find any merit in ground No. 6(vi).

Way back in the year 1970, in the off-quoted case of Arun Ghosh v. State of West Bengal, Hidaytullah, Chief Justice, laid down the test for determining whether there has been an infraction of law and order simplicitor or public order. In para 3, the learned Chief Justice held that if the consequence of an act is restricted to individuals, the said act would constitute violation of law and order but, if it affects the even tempo of life of a community as a whole or a segment of community, it would amount to violation of public order. If this test is to be applied and the averments contained in para 10 of the return of the Detaining Authority and those contained in para 4(a)(iii) of the grounds of detention are to be examined, then there is no escape from the conclusion that the act of the detenu palpably violated public order.

13A. We have already dealt with para 10 of the first return of the Detaining Authority whicrtgs founded on the recitals contained in ground No. 4(a-iii) of the grounds of detemtion. In ground 4(a-iii) it has been stated that on 13.7.2000 at 2 p.m. when the informant Mohamed Sayed along with his friend Mohamed Akram was returning home and when the two of them were passing near Madina Hotel, (Qureshi nagar, Kurla (E) Bombay, the detenu and his associate Raju Kalya waylaid the informant. The detenu abused them in a most foul language and told the informant that if he tried to act too clever, he would be finished. So saying, he whipped out a razor from his pocket, and assaulted him resulting in his receiving injuries on his neck and abdomen. His associate Raju Kalya also assaulted him. On account of the said acts Mohammed Akram ran away and passers by who were frightened also ran away helter-skelter. A perusal of the above averments contained in ground No. 4(a-iii) would make it manifest that the Impact of the act of the detenu was not restricted to the informant Mohamed Sayed or his associate Mohamed Akram alone, but affected passers by who ran helter-skelter. To put it differently, as a consequence of the act of the detenu, the even tempo of life of that segment of the society, (in the form of passers by) which was present there, was affected.

Consequently, in our view, the act of the detenu described in para 4(a-iii) of the grounds of detention, would amount to clear infraction of public order in terms of AIR 1970 SC 1128 (supra.)

14. Apart from it, we have not the least reservation in observing that the detenu violated public order in the sense in which the expression is used in section 2 of the M.P.D.A. Act.

A perusal of para 5 of the grounds of detention would show that the detenu has been detained as a dangerous person within the meaning of section 2(b-i) of the M.P.D.A. Act.

Section 2(a)(iv) of the M.P.D.A. Act and the Explanation thereto reads thus :

"2. In this Act, unless the context otherwise requires -

(a) acting in any manner prejudicial to the maintenance of public order means -

(i) ......

(ii) ......

(iii) ......

(iv) in the case of a dangerous person, when he is engated or is making preparation for engaging, in any of his activities as a dangerous person which affect adversely or are likely to affect adversely the maintenance of public order;

Explanation. - For the purpose of this clause (a) public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly or indirectly is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof, or a grave or widespread danger to life or public health:"

15. A perusal of the said provision would show that a person would be acting in a manner prejudicial to the maintenance of public order, as a dangerous person, if his activities as a dangerous person adversely affect or are likely to affect the maintenance of public order.

A perusal of the explanation would show that public order would be deemed to have been affected adversely if the activities of a dangerous person directly or indirectly cause or are calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof.

16. When the averments contained in ground No. 4(a-iii) are examined in the light of the said provision, then there is no escape from the Inference that the petitioner-detenu violated public order.

We say this because, the direct consequence of his act, as a dangerous person, was of causing alarm or a feeling of Insecurity amongst a section of general public namely those persons of the public who were present there when he committed the act.

We have seen that in para 4(a-iii) of the grounds of detention it has been averred that as a consequence of the act of the detenu, passers by on account of fright ran away helter-skelter.

17. For the said reasons, in our view, ground No. 6(vi) is also devoid of substance.

18. Before proceeding to the operative part of the judgment, we would like to point out that although in this writ petition, Ms. Anjali Patil-Contractor, learned counsel for the petitioner has pleaded a large number of other grounds but, since she has not pressed any of them, we have not dealt them.

19. In the result, we dismiss this petition and discharge the rule.

Before closing this judgment, we cannot refrain from observing that with great tenacity learned counsel for the petitioner has argued this petition.