Bombay High Court
Rashid @ Jagga Shaukat Hussein ... vs The Commissioner Of Police, ... on 11 August, 2015
Bench: S.C. Dharmadhikari
Rng 1
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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
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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
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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
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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
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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.
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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
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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
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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,
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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
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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
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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
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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
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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
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