Bombay High Court
Shahrukh Yunus Khan Through His ... vs The State Of Maharashtra And Ors on 16 April, 2016
Bench: V.K. Tahilramani
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RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 385 OF 2016
Shahrukh Yunus Khan
Age : 20 Years, Occ : Daily Wages.
R/at : Kala Khadak Zopadpatti,
Wakad, Dist. Pune.
Through his father Yunus Majid Khan,
Age : 45 Years, Occ : Daily Wages. .. Petitioner
Versus
1. State of Maharashtra
Through the Secretary,
Home Department (Spl),
Mantralaya, Mumbai.
2. Commissioner of Police
Pune City.
3. The Superintendent,
Kolhapur Central Prison,
Kolhapur. .. Respondents
...................
Appearances
Mr. Rahul S.Kadam Advocate for the Petitioner
Mrs. A.S. Pai APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
SMT. ANUJA PRABHUDESSAI, JJ.
Reserved on : APRIL 1, 2016.
Pronounced on : APRIL 16, 2016.
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JUDGMENT [ PER SMT. V.K. TAHILRAMANI, J. ] :
1. The petitioner / detenu - Shahrukh Yunus Khan has
preferred this petition questioning the preventive detention
order passed against him on 23.12.2015 by respondent No. 2
i.e Commissioner of Police, Pune City. The said detention
order has been passed in exercise of powers under Section
3(2) of the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug Offenders, Dangerous Persons
and Video Pirates Act, 1981 (No. LV of 1981) (Amendment-
1996 and 2009) (for short, 'MPDA Act'). The said detention
order is based on two C.Rs. i.e C.R. No. 325/2015 and C.R.
No. 511/2015 of Wakad Police Station and two incamera
statements. C.R. No. 325/2015 is under Sections 324, 323
and 504 read with 34 of IPC and C.R. No. 511/2015 is under
Sections 307, 143, 144, 147, 148 and 149 of IPC. The
detention order was passed whilst the detenu was already
lodged in jail in connection with C.R. No. 511/2015. After
passing of the detention order, the said detention order
along with grounds of detention was served to the detenu in
jail.
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2. Though a number of grounds have been raised in this
petition whereby the detention order has been assailed,
however, Mr. Kadam, the learned counsel appearing for the
petitioner has pressed only two grounds before us. The first
ground is that when the detenu was already in judicial
custody, the order of detention could not have been passed
on mere ipse dixit of the detaining authority that the detenu
was likely to be released on bail without there being any
material before the detaining authority to come to the
conclusion that the detenu was likely to be released on bail
in the near future. Reliance was placed on the decision of
the Supreme Court in the case of T.V. Sravanan alias
S.A.R. Prasana Vs. State through Secretary and Anr. 1.
He placed reliance on paragraph 14 of the said decision
wherein it is observed that when there was no cogent
material before the detaining authority on the basis of which
the detaining authority could be satisfied that the detenu
was likely to be released on bail, mere ipse dixit of the
detaining authority is not sufficient to sustain the order of
1 (2006) 2 SCC 664
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detention and the inference by the detaining authority that
the detenu is likely to be released on bail has to be drawn
from the available material on record.
3. Mr. Kadam submitted that in the present case, there is
no material on record to come to the conclusion that the
detenu is likely to be released on bail, hence, the detention
order as in the case of Sravanan (supra) would be vitiated.
Mr. Kadam pointed out that C.R. No. 511/2015 is under
Section 307 of IPC which is a serious offence. Charge sheet
had not been filed in the said case and none of the co-
accused had been granted bail in the said case, hence, only
on the basis of the fact that the detenu had filed application
for bail, it cannot be said that the detenu is likely to be
released on bail.
4. On careful perusal of the decision in the case of
Sravanan (supra), in paragraph 14 itself, we find that the bail
application moved by the detenu had been rejected by the
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Courts just 12 days before the detention order was issued
and it was in these circumstances that the Supreme Court
observed that there was no material whatsoever before the
detaining authority to apprehend that the detenu was likely
to move an application for bail or there was eminent
possibility of the prayer for bail being granted. However, the
facts in the present case are entirely different. The present
case is based on two C.Rs. and two incamera statements.
Two C.Rs. are C.R. No. 325/2015 and C.R. No. 511/2015 of
Wakad Police Station. In C.R. No. 325/2015, the detenu has
already been granted bail on 14.7.2015 and in C.R. No.
511/2015, the detenu had applied for bail. C.R. No.
511/2015 is under Sections 307, 143, 144, 147, 148 and 149
of IPC. In the case of Sravanan (supra), the application of
the detenu for bail was rejected. The Supreme Court noted
that the order of detention was passed merely 12 days after
dismissal of bail application by the High Court and there was
nothing on record to show that the detenu had made any
preparation for filing of bail application or that bail
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application was filed by him which was likely to come up for
hearing in due course. Hence, it was held that there was no
material before the detaining authority to come to the
conclusion that the detenu is likely to be released on bail.
Such are not the facts in the present case, hence, the
decision in the case of Sravanan (supra) would not applicable
to the facts of the present case. In the present case, the
detenu had preferred an application for bail which was
pending at the time when the order of detention was issued.
In the present case, there was reliable material before the
detaining authority on the basis of which, the detaining
authority would have reason to believe that there was a real
possibility of the detenu being released on bail. One of the
materials being the nature of the offence which was mainly
under Section 307 of IPC. The offence under Section 307 of
IPC is not compulsorily punished with life imprisonment or
death. In fact, the offence under Section 307 of IPC can even
be punished with imprisonment upto 10 years. It is a matter
of common knowledge that bail is normally granted in cases
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under Section 307 of IPC even if the charge sheet is not filed.
Thus, we can say that the main material before the detaining
authority was the fact that the detenu had preferred an
application for bail and the other material was the nature of
the offence. While considering the possibility of bail being
granted, the type of offence is one of the main
considerations. Looking to the material before the detaining
authority that is the fact that the detenu had preferred an
application for bail and the nature of the offence, it cannot
be said that the subjective satisfaction of the detaining
authority that the detenu is likely to be released on bail is
founded on ipse dixit of the detaining authority and not
supported by any circumstance or material indicative of real
possibility of release of detenu on bail.
5. Thereafter, reliance was placed by Mr. Kadam on the
decisions of the Supreme Court in the case of Ramesh
Yadav Vs. District Magistrate, Etah & Ors.2, to contend
that if a bail application was preferred by the detenu, the
2 (1985) 4 SCC 232
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appropriate course was not to issue an order of detention but
to oppose the application for bail and if that results in failure,
to challenge the said order before the higher forum. The
decision in the case of Ramesh Yadav (supra) is by a bench
of two Judges. This decision was considered by a bench of 3
Judges of the Supreme Court in the case of Suraj Pal Sahu
Vs. State of Maharashtra & Ors. 3. After considering the
decision in the case of Ramesh Yadav (supra), in paragraph
28 of this decision, the Supreme Court observed that this
principle will have to be judged and applied in the facts and
circumstances of each case.
6. The decision in the case of Ramesh Yadav (supra) and
the decision of the Supreme Court in the case of N. Meera
Rani Vs. Government of Tamil Nadu & Anr. 4 have been
considered by the Supreme Court in the case of
Kamarunnissa Vs. Union of India & Anr. 5. After
considering both these decisions as well as the decisions of
3 AIR 1986 SC 2177
4 (1989) 4 SCC 418
5 (1991) 1 SCC 128
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the Supreme Court in the cases of Dharmendra
Suganchand Chelawat Vs. Union of India 6 and Sanjay
Kumar Aggarwal Vs. Union of India 7, the Supreme Court
observed thus :-
"13. From the catena of decisions referred to above it
seems clear to us that even in the case of a person in
custody a detention order can validly be passed (1) if the
authority passing the order is aware of the fact that he is
actually in custody; (2) if he has reason to believe on the
basis of reliable material placed before him (a) that there is
a real possibility of his being released on bail, and (b) that
on being so released he would in all probability indulge in
prejudicial activity and (3) if it is felt essential to detain him
to prevent him from so doing. If the authority passes an
order after recording his satisfaction in this behalf, such an
order cannot be struck down on the ground that the proper
course for the authority was to oppose the bail and if bail is
granted notwithstanding such opposition, to question it
before a higher court. What this court stated in the case of
Ramesh Yadav (supra) was that ordinarily a detention
order should not be passed merely to preempt or
circumvent enlargement on bail in cases which are
essentially criminal in nature and can be dealt with under
the ordinary law. It seems to us well settled that even in a
case where a person is in custody, if the facts and
circumstances of the case so demand, resort can be had
to the law of preventive detention.
6 (1990) 1 SCC 746
7 (1990) 3 SCC 309
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In the present case, all the criteria as set out in
paragraph 13 of the decision in the case of Kamarunnissa
(supra) are clearly met, hence, the detention order cannot be
vitiated. Looking to the facts of the present case, the
possibility of the detenu being released on bail was a real
one and not imaginary one and certainly not a mere ipse
dixit of the detaining authority
7. Thereafter, reliance was placed by Mr. Kadam on the
decision of the Supreme Court in the case of Rekha Vs.
State of Tamil Nadu8. He placed reliance on the
observation in paragraph 30 of the decision which reads
thus:-
" Whenever an order under a preventive detention
law is challenged one of the questions the court must ask
in deciding its legality is : Was the ordinary law of the land
sufficient to deal with the situation ? If the answer is in the
affirmative, the detention order will be illegal. In the
present case, the charge against the detenu was of selling
expired drugs after changing their labels. Surely the
relevant provisions in the Indian Penal Code and the
Drugs and Cosmetics Act were sufficient to deal with this
situation. Hence, in our opinion, for this reason also the
8 (2011) 5 SCC 244
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detention order in question was illegal."
Mr. Kadam submitted that in the facts of the present
case, the ordinary law of the land would have been sufficient
to deal with the situation and it was not necessary to issue
an order of detention. In the case of Rekha (supra), the
detenu was selling expired drugs after changing their labels,
hence, in such circumstances, it was held that the relevant
provisions of the Penal Code and the Drugs and Cosmetics
Act was sufficient to deal with this situation. However, in the
present case, it is seen that the detention order is issued not
just on the basis of 2 C.Rs. in one of which, the detenu was
released on bail but it is also issued on the basis of two
incamera statements.
8. The case of Rekha (supra) has been considered in two
later decisions of the Supreme Court i.e in the case of D.M.
Nagaraja Vs. Government of Karnataka & Ors.9 and G.
Reddeiah Vs. Government of Andhra Pradesh & Anr. 10.
In both these decisions, the Supreme Court considered the
9 (2011) 10 SCC 215
10 (2012) 2 SCC 389
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earlier decision in the case of Rekha (supra) and
distinguished it. In both these decisions, it is held that each
case will have to be decided on its own facts. In the present
case as stated earlier two C.Rs. have been registered against
the detenu, however, in addition to these two C.Rs., the
detaining authority has relied on statements of two incamera
witnesses i.e Witness A and Witness B.
Witness A has stated that the detenu has created a
reign of terror in the area of Wakad Police Station. On
4.10.2015 at about 7.00 p.m., Witness A noticed people
running helter-skelter. On making inquiry, Witness A learnt
that the detenu had come there with three to four
accomplices and was threatening people with a sword. On
hearing this, the witness was scared and was about to close
his office. Just then, the detenu and his accomplices come to
the spot. The detenu demanded Rs. 1500/- from Witness A
at the point of sword and told him that every month the
witness has to give the detenu Rs. 1500/-, otherwise the
detenu would not allow him to live in that area. The detenu
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further threatened that if the witness went to the police, the
detenu would kill him with sword. The witness was scared,
hence, he did not complain to the police.
As far as the incident relating to Witness B is
concerned, Witness B has stated that the terrorizing acts of
the detenu have disrupted the routine life of the residents in
that locality. Witness B has stated that on 16.10.2015, the
detenu threatened him at the point of a big knife and
demanded Rs. 2000/-. The detenu assaulted the witness on
his leg and forcibly took away Rs. 1200/- which was in the
cash box. While going, the detenu threatened Witness
that if he went to the police, the detenu would kill him.
9. The grounds of detention clearly advert to the fact that
confidential inquiry was made about criminal activities of the
detenu in the locality of Wakad Police Station and
surrounding areas wherein it was noticed that a large
number of people were victimized by the detenu in recent
past. It was also noted that due to fear of the detenu,
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nobody dares to complain against the detenu openly and
make statement openly against the detenu due to fear of
retaliation. The witnesses only on being assured that their
names and identities will be kept secret and they will not be
called open to give evidence against the detenu in any court
of law or any other forum, have expressed willingness to give
their statements about criminal activities of the detenu. In
the grounds of
detention, contents of the incamera
statements of the two witnesses "A" and "B" are reproduced.
It discloses the involvement of the detenu in criminal
activities within the area of Wakad Police Station and nearby
areas indicating that the detenu had created a reign of terror
and had become a perpetual and potential danger to the
even tempo of life of people in those areas. Thus, it is seen
that the detenu had created such a reign of terror that the
people were not willing to come forward to complain against
him. In such case, it is difficult for the ordinary law of land to
deal with the situation and to prevent the detenu from again
acting in a manner prejudicial to the maintenance of public
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order.
10. Mr. Kadam tried to argue that the externment order
would have served the purpose, however, as far as this
contention is concerned, it is seen that the detenu who
appears to be a weapon-wielding dangerous desperado and
continuously engaged in extortion, would shift his prejudicial
activities from the jurisdiction of Wakad Police Station to
whichever area that he has been externed to. Moreover,
from the grounds of detention itself, it is seen that chapter
proceedings were initiated against the detenu and the
detenu had even executed an interim bond of Rs. 10,000/- to
maintain peace. However, the detenu continued committing
serious offences in the jurisdiction of Wakad Police Station
and Khadki Police Station. Criminal activities of the detenu
showed an ascending trend and the detenu was arrested in
many cases. However, in all cases except C.R. No. 511/2015,
he was granted bail by the court and after being released on
bail in the earlier cases, the detenu again committed various
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serious offences. Based on this, the detaining authority
reached the conclusion and in our opinion, rightly so that this
shows that the normal law of land is insufficient to contain
the dangerous criminal activities of the detenu. Looking to
all these aspects, we find no merit in this contention.
11. Lastly Mr. Kadam submitted that the detention order
can be issued under the MPDA Act only if the detenu is
acting in a manner prejudicial to the maintenance of the
public order and in the present case, there is no material to
show that the activities of the detenu are prejudicial to the
maintenance of public order. In support of his contention, he
has placed reliance on the decision of the Supreme Court in
the case of K.K. Saravana Babu Vs. State of Tamil Nadu
& Anr.11. He placed reliance on paragraphs 31 and 32 of the
said decision which read thus:-
"31. We have tried to deal with the important cases
dealing with the question of 'law and order' and 'public
order' right from Romesh Thappar 2 to the latest case of R.
Kalavathi13. This Court has been consistent in its approach
while deciding the distinction between `law and order' and
11 (2008) 9 SCC 89
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`public order'. According to the crystallized legal position,
cases affecting the public order are those which have
great potentiality to disturb peace and tranquility of a
particular locality or in the words of Hidayatullah, J. disturb
the even tempo of the life of the community of that
specified locality.
32. In the instant case, in the grounds of detention, two
cases have been enumerated, one of which pertains to the
offences punishable under Sections 420, 465, 468 read
with Sections 471 and 120B IPC in Crime No. 70 of 2006.
Another case pertains to Crime No. 364 of 2007 registered
under Sections 420, 465, 466, 467, 468 read with Sections
471 and 120B IPC. The facts of these cases have been
carefully examined and even assuming the allegations of
these cases as true, even then by no stretch of
imagination, the offences committed by the detenu can be
called prejudicial to public order. The detenu can be dealt
with under the ordinary criminal law if it becomes
imperative."
As far as this contention is concerned, it is already
noted above that the present detention order has been
issued on the basis of two C.Rs. and two incamera
statements. The facts of C.R. No. 511/2015 as seen from the
grounds of detention is that the detenu assaulted the
complainant and his friends with dangerous weapon. The
people present there got scared and ran helter-skelter and
while others closed the doors of their house. The incident
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relating to Witness A also shows that when people saw the
detenu along with his accomplices threatening the people
with sword, people started running helter-skelter. Witness A
was also about to close his office, however, the detenu came
and threatened him at the point of sword and robbed the
witness of money. Witness A had stated that the detenu has
created reign of terror in the area. Witness B has stated that
the local traders and workers working in the area were under
tremendous fear due to reign of terror created by detenu and
the terrorizing acts of the detenu have disrupted routine life
of the residents in Wakad and nearby areas. From this, it is
seen that the activities of the detenu were clearly such as to
affect the public order. In the case of Saravana (supra), the
detention order was issued only on the basis of two C.Rs and
both the C.Rs. were mainly under Section 420 of IPC i.e cases
of cheating and forgery. Thus, these were incidents which
affected individuals and not the society at large. Such are
not the facts in the present case.
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12. Learned APP submitted that incidents relating to
Witness A & B are of extortion in public places and such acts
are bound to affect public order. In support of this
contention, learned APP has relied on the decision of the
Supreme Court in the case of Hasan Khan Ibne Haider
Khan Vs. R.H. Mendnoca & Ors. 12. In the said case also,
it was argued that the activities of the detenu were such that
they did not disturb the public order. The Supreme Court in
paragraph 9 of the said decision observed thus:-
" We find that the appellant extorted money from
businessmen and also gave threats to the people at the
public place and thereby undoubtedly affected the even
tempo of life of the society, therefore, such activities
cannot be said to be mere disturbance of law and order. "
15. In view of the above, in our opinion, this ground raised
by the learned counsel for the petitioner to espouse the case
of the detenu, is also of no avail. Accordingly, the petition is
dismissed. Rule is discharged.
[ SMT. ANUJA PRABHUDESSAI, J ] [ SMT. V.K. TAHILRAMANI, J. ]
12 AIR 2000 SC 1146.
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