Santosh Tukaram Chavan vs The State Of Maharashtra
2011 Latest Caselaw 151 Bom

                                     1                                               2099.11


SQP         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION




                                                                              
                CRIMINAL WRIT PETITION NO.2099 OF 2011




                                                     
      Santosh Tukaram Chavan,
      Nashik Road Central Prison,
      NASHIK.                                              ...Petitioner




                                                    
          Versus
      The State of Maharashtra                             ...Respondent
                                       ......
      Mr.Rizwan Merchant, amicus curiae.




                                         
      Ms.M.H.Mhatre, A.P.P. for Respondent-State.
                           ig          ......
                           CORAM:- A.M.KHANWILKAR AND
                                      R.G.KETKAR, JJ.

DATED:- DECEMBER 1, 2011.

ORAL JUDGMENT (Per A.M.Khanwilkar, J.) :

1. This letter petition is received through jail. It challenges the order of

detention passed against the petitioner under Section 3 of the Maharashtra

Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-

Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as `the

Act'). The Detaining Authority after considering the material placed before

it recorded his subjective satisfaction that the petitioner is a dangerous

person as defined in Section 2(b-1) of the Act, as he had unleashed a reign

of terror and has become a perpetual danger to the Society at large in the

localities of Vaibhav Chowk, Jockim Compound, Jamil Nagar, Pratap

2 2099.11

Nagar, Utkarsh Nagar, Kokan Nagar, Samarth Nagar, Nardas Nagar,

Sarvoday Nagar, Gamdevi Road, T.P.Road, Jangal Mangal Road, Bhandup

(West), Mumbai - 400 078 and areas adjoining thereto in the jurisdiction of

Bhandup Police Station in Brihan Mumbai. The Detaining Authority has

noticed from the material placed before him that the people residing and

carrying out their daily vocations in the above localities and areas are terror

stricken and their normal life is affected adversely. Further, the activities of

the petitioner were prejudicial to the maintenance of the public order in the

said localities in Brihan Mumbai. Upon recording this satisfaction, the

Detaining Authority noted that the petitioner was acting in a manner

prejudicial to the maintenance of public order. It has also noticed that the

petitioner was granted bail in connection with the offences registered with

Bhandup Police Station being C.R.Nos.213/2010, 218/2010, 336/2010,

367/2010 and 378/2010 and the petitioner has already availed of bail on 21st

October, 2010 and has become a free person. The Detaining Authority then

proceeded to record that in view of the petitioner's tendencies and

inclinations reflected in the offences committed by him, he was satisfied

that after release on bail and petitioner becoming a free person and in the

event of his being at large, being a criminal, is likely to indulge in activities

prejudicial to the maintenance of public order in future and that with a view

3 2099.11

to preventing him from acting in such a prejudicial manner in future, it was

necessary to detain him under the provisions of the Act.

2. On the basis of this satisfaction, the impugned order of detention

came to be passed on 18th January, 2011. The same was served on the

petitioner on 21st January, 2011. Since then, the petitioner is in Nashik Road

Central Prison in connection with the said detention order. As aforesaid, the

petitioner has challenged the detention order by sending letter Petition to

this Court.

3. In the circumstances, we thought it appropriate to appoint Mr.Rizwan

Merchant, Advocate to appear as amicus curiae to espouse the petitioner's

cause as also to assist the Court. At the same time, we directed the

respondents to ensure that the entire compilation pertaining to the

impugned order of detention and the grounds of detention as served on the

petitioner at the time of execution of the order, be placed on record. The

Office of the Public Prosecutor has accordingly placed before us the

complete compilation of documents including vernacular documents as

well as translated English version of the same consisting of total pages from

1 to 564. In addition, reply affidavit has been filed by the Assistant Police

4 2099.11

Inspector of Bhandup Police Station to oppose this Petition. As the Petition

was received in the form of letter sent by petitioner through jail, the learned

amicus curiae has articulated the grounds which could be raised by the

petitioner on the basis of the letter Petition and also with reference to the

compilation of documents made available to him. However, at the time of

hearing of the matter, in all fairness, the learned amicus curiae submitted

that he would argue three formidable points on the basis of which, the

petitioner has good chance of succeeding in this Petition.

4. The first argument canvassed before us is that although the grounds

of detention refer to 12 different areas mentioned therein, however, the

grounds in the context of the instances on the basis of which criminal cases

have been registered against the petitioner are only in respect of five areas.

In his usual fairness, learned amicus curiae submitted that even if the

detention order is to be justified on the basis of the areas referred to by the

two witnesses whose in-camera statements have been recorded and found to

be part of the documents relied upon by the Detaining Authority, even so,

there is no material whatsoever to connect the involvement and activities of

the petitioner in at least four areas, namely, Jockim Compound, Jamil

Nagar, Pratap Nagar and Sarvoday Nagar. In his submission, therefore, it

5 2099.11

would clearly affect the subjective satisfaction reached by the Detaining

Authority and the same is vitiated on the ground of non-application of

mind.

5. As regards this submission, the learned A.P.P. contends that although

the instances referred to in the grounds of detention which resulted in

registration of criminal offences against the petitioner do not refer to the

above mentioned four areas but the grounds will have to be read in its

entirety and not out of context, as is suggested by the learned amicus

curiae. In her submission, there is intrinsic material in the grounds

furnished to the petitioner along with the detention order to indicate that the

prejudicial activities of the petitioner were also in respect of the above

named four areas. She has pointed out that the names and the localities,

where the two witnesses, whose in-camera statements came to be recorded,

has not been furnished along with the grounds of detention. The said

witnesses A and B are residents of Pratap Nagar and Jockim Compound

areas. More over, witness No.A has mentioned about the activities of the

petitioner and his colleagues in Jamil Nagar area. The only area specifically

not mentioned in the statements of the two witnesses or in the criminal

cases registered against the petitioner is Sarvoday Nagar. However, the

6 2099.11

witnesses in their statements have clearly mentioned that the petitioner and

his colleagues indulged in prejudicial activities in Jangal Mangal Road area

and its adjourning areas. It is further submitted that Sarvoday Nagar area is

adjoining area to Jangal Mangal Road area. She therefore submits that the

ground urged on behalf of the petitioner that there was no material before

the Detaining Authority to refer to the aforesaid four areas which has

resulted in affecting the subjective satisfaction of the Authority is devoid of

merits. The learned A.P.P. has also pointed out that besides the instances

referred to in the grounds of detention, the material on record would clearly

indicate that the petitioner was required to be externed for two years from

the locality in the year 2004 for having indulged in prejudicial activities.

Even after returning on completion of externment period, the petitioner

continued with his prejudicial activities unabated which necessitated

initiation of chapter proceedings against him in the year 2007. Inspite of

that, since the petitioner did not stop his prejudicial activities and continued

to indulge in the same even till recently, was a habitual offender,

necessitating stricter action against him to prevent him from indulging in

such activities prejudicial to the maintenance of public order in future. This

is the subjective satisfaction reached by the Appropriate Authority and the

Court ought not to sit over the same as the Court of appeal.

7 2099.11

6. Having considered the rival submissions on the first contention raised

before us, we have no hesitation in rejecting the same. Instead, we would

accept the argument canvassed by the learned A.P.P. It is noticed that the

grounds of detention, although, refer to 12 areas mentioned in paragraph 2

as well as in the subsequent paragraphs, amongst others paragraph 6, it also

clearly mention that the petitioner was a violent type of dangerous criminal

having taken to the life of a criminal for the sake of easy money and to

show his upper hand in the 12 referred localities situated in Bhandup

(West), Mumbai and areas adjoining thereto in the jurisdiction of Bhandup

Police Station, Mumbai. This subjective satisfaction is, amongst others,

founded on the in-camera statements of witnesses wherein, it is mentioned

that the petitioner is notorious criminal and he along with his ten associates

have unleashed a reign of terror in the localities specifically referred to in

their statements and areas adjoining thereto in Bhandup (West) by extorting

money from the civil contractors, hawkers, shopkeepers, businessmen, etc.

All these persons roam around in these areas together to collect hafta and

are always armed with deadly weapons. In other words, there is no dispute

that the instances referred to in the grounds of detention on the basis of

which criminal cases came to be registered refer to five specific areas out of

8 2099.11

the twelve mentioned in the grounds of detention. The in-camera statements

of the witnesses recorded and relied upon by the Detaining Authority refer

to the prejudicial activities of the petitioner and his colleagues in the

remaining areas specifically mentioned in the grounds of detention as well

as areas adjoining thereto in the jurisdiction of Bhandup Police Station in

Brihan Mumbai. The grounds of detention will have to be read as a whole

along with material accompanying thereto which was placed before the

Detaining Authority and obviously relied upon by the Detaining Authority

to form his subjective satisfaction. The Detaining Authority has taken into

account all aspects of the matter including the past criminal record of the

petitioner to form his subjective satisfaction that the petitioner is a

dangerous person and it was necessary to detain him to prevent him from

engaging himself in prejudicial activities in future. Accordingly, the first

contention ought to fail.

7. The second point raised by the learned amicus curiae is that there is

no material worth the name to indicate that all documents which are made a

part of the compilation served on the petitioner along with the grounds of

detention were in fact placed before the Detaining Authority. For that,

learned amicus curiae has placed reliance on the endorsement on

9 2099.11

documents at pages 121 to 133 which bears seal of the Authority concerned.

According to the learned amicus curiae, similar endorsement is

conspicuously absent in all other documents which raises doubt about

placement of those documents though forming part of the compilation

served on the petitioner.

8. In response to this argument, learned A.P.P. has explained the

circumstances in which the endorsement and seal appearing on documents

at pages 121 to 133 of the compilation is noticed. According to her, these

documents were part of record of another action initiated against the

petitioner. The Photostat copy of those documents came to be included in

the compilation of documents forwarded to the Detaining Authority for

consideration of the proposal for detention. She has also relied on the index

which sequentially mention the documents referred to therein running from

pages 1 to 564. She has also relied on the original file produced in Court to

support her argument that the compilation which has been served on the

petitioner along with the grounds of detention was in the same form and

placed before the Detaining Authority. The compilation was placed before

the Detaining Authority to consider the same before recording his

subjective satisfaction. We have no reason to doubt the correctness of the

10 2099.11

position so stated, which is reinforced even from the original record. The

submission canvassed by the learned amicus curiae, in our opinion, is

based on assumptions and not the real fact situation. Suffice it to hold that,

from the original record, it is noticed that all the documents included in the

compilation and served on the petitioner along with the grounds of

detention were placed before the Detaining Authority who had considered

the same while examining the detention proposal. Accordingly, even this

argument will have to be stated to be rejected.

9. The last submission canvassed by the amicus curiae is that the

material on record clearly goes to show that the petitioner along with ten

other colleagues was indulging in prejudicial activities, which allegedly

affected the maintenance of public order in the locality. However, the action

of detention has been proceeded selectively against the petitioner and no

other person. Even this clearly affects the subjective satisfaction recorded

by the Detaining Authority and the same is vitiated on the ground of non-

application of mind. This argument is countered by the learned A.P.P. In

the first place, she contends that the action of detention was proceeded

against the petitioner in his capacity as leader of the gang operating in the

area. By detaining the petitioner, prejudicial activities of the said gang

11 2099.11

could be curtailed, as the kingpin would be behind the bars. Further, the

Detaining Authority was well informed from the material on record placed

before him that as regards the colleagues of the petitioner indulging in

prejudicial activities in the locality, the action of externment was proceeded

with. It is not as if no action whatsoever was taken against the members of

the gang of which the petitioner was a leader. As regards the petitioner, in

the past, he was externed from the locality for two years but inspite of that,

he did not show any improvements. Thus, necessitating order of detention

against him.

10. Having given our anxious thought, we have no hesitation in

accepting this argument of the learned A.P.P. The same is reinforced from

the record which is part of the compilation served on the petitioner along

with the grounds of detention. The detention proposal refers to the

externment action initiated against the other members of the gang and the

necessity to detain the petitioner to prevent him from indulging in

prejudicial activities in future. Assuming that the grievance of the petitioner

needs to be examined seriously, it is well established position that merely

because no action is taken against the other persons, that by itself, cannot be

the basis to hold that it results in discrimination. Suffice it to observe that

12 2099.11

the argument of the petitioner that no detention order has been passed

against other members of the gang, does not impact the detention order

passed by the Detaining Authority, which is founded on specific, extant,

relevant grounds which are not only connected but proximately connected

with the petitioner and in particular, because of the subjective satisifcation

recorded by the Detaining Authority of the likelihood of petitioner

indulging in such prejudicial activity in future, necessitating his detention.

11.

Taking over all view of the matter, therefore, the Petition is devoid of

merits. The same is dismissed.

12. The Court expresses word of gratitude for the able assistance

rendered by the learned amicus curiae to espouse the cause of the

petitioner.

13. Copy of the Judgment be forwarded to the petitioner, who is in jail.

     (R.G.KETKAR, J.)                             (A.M.KHANWILKAR, J.)