Bombay High Court
Krishna Hari Godambe vs The Commissioner Of Police, ... on 3 May, 2017
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3945 OF 2016
Krishna Hari Godambe ]
Aged about 35 years, ]
Through his wife Mrs. Shubhangi ]
Krishna Godambe, Residing at ]
Namrata Chawl, Lane No.1, ]
Near Jethwan Buddh Vihar, ]
Jalprabhat Ramabai Colony, ]
Ghatkopar (East), Mumbai-400 077 ]
(At present detained at Thane ]
Central Prison, Thane) ].. Petitioner
Vs.
1. The Commissioner of Police, ]
Opposite Crawford Market, ]
Mumbai ]
]
2. The State of Maharashtra ]
Through the Secretary, ]
Home Department ]
(Preventive Detention) ]
Govt. of Maharashtra ]
Mantralaya, Mumbai -400 032 ]
]
3. The Superintendent, ]
Nashik Road, Central Prison, ]
Nashik ]
]
4. The Superintendent ]
Thane Central Prison, Thane ].. Respondents
1
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....
Mr. Nitin Sejpal Advocate along with Ms. Jyoti Joshi Advocate
for Petitioner
Mr. J.P.Yagnik A.P.P. for the State
....
CORAM : SMT.V.K.TAHILRAMANI AND
REVATI MOHITE DERE, JJ.
DATED : APRIL 27 / MAY 03, 2017
ORAL JUDGMENT [PER SMT. V.K.TAHILRAMANI, J.]:
1 The petitioner / detenu - Krishna Hari Godambe has
preferred this petition questioning the preventive detention
order passed against him on 7.10.2016 by the Respondent
No.1 i.e. Commissioner of Police, Mumbai. 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,
Video Pirates, Sand Smugglers and Persons engaged in Black-
Marketing of Essential Commodities Act, 1981 (Mah. Act No. LV
of 1981) (hereinafter referred to as "MPDA Act") as the detenu
is a "dangerous person" whose activities are prejudicial to the
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maintenance of public order. The detention order along with
grounds of detention and other documents were served on the
detenu on 7.10.2016.
2 Perusal of grounds of detention (Annexure-A) shows
that the detention order is based on 3 registered cases and 2
incamera statements. The first registered case is CR No. 530
of 2015 dated 15.11.2016 of Dharavi Police Station, Mumbai.
The incident relating to the said CR is dated 14.11.2015. The
said case is under Sections 326, 504, 506 read with Section 34
of IPC and Section 37(1)(a) read with Section 135 and 142 of
the Maharashtra Police Act. The second registered case is CR
No. 15 of 2016 of Dharavi Police Station. The incident in the
said CR took place on 8.1.2016. This CR is under Sections 386,
324 read with Section 34 of IPC. The third registered case is
Special LAC No. 58 of 2016. Incident in the said case occurred
on 7.6.2016. In addition, reliance is placed on statements of
two incamera witnesses "A" and witness "B". The incident
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relating to witness "A" took place in the last week of May, 2016
and incident relating to incamera witness "B" took place in the
third week of June, 2016. The statements of incamera
witnesses "A" and "B" were recorded on 21.6.2016 and
25.6.2016 respectively.
3 When the matter was last heard the petitioner had
raised five grounds i.e. ground nos. (xvi), (xiv), (xvii), (xiii) and
(xi). After hearing both the parties, all these grounds were
dealt with in detail by order dated 3.3.2017 and all the grounds
were negatived by reasoned order. Thereafter, the learned
counsel for the petitioner submitted that in view of the reply in
paragraph 8 of the affidavit filed by the detaining authority
which was affirmed on 13.1.2017, it appears that there is delay
in issuance of order of detention and the same has not been
properly explained by the detaining authority, therefore, leave
was sought to amend and add the ground that "there is delay
in issuance of the detention order and the same has not been
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properly explained by the detaining authority, hence, the
detention order is vitiated".
4 At that time, the learned A.P.P. in reply has submitted
that since no specific ground was raised in relation to delay in
issuance of the detention order, he had not filed a detailed
affidavit explaining the delay in issuance of the detention order
and if such ground is raised, he will file additional affidavit
explaining the time taken to issue the order of detention. By
order dated 3.3.2017, in the interest of justice, leave to amend
as prayed for, was granted. It was made clear that leave was
granted only to add one ground i.e. "delay in issuance of
detention order". Thereafter the amended ground i.e. ground
"(xiii)(A1)" was added. Learned A.P.P. has also filed detailed
replies of the detaining authority to the same, wherein delay
has been explained.
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5. As stated earlier 5 grounds were negativated by order
dated 3.3.2017. For the sake of convenience, we are
reproducing below the relevant part of the order dated
3.3.2017 wherein the said 5 grounds i.e ground (xi), (xiii), (xiv),
(xvi) and (xvii) were turned down after they were dealt with in
detail.
5(a) Though a large number of grounds are raised in this
petition, the learned counsel for the petitioner categorically
submitted that he is going to press only ground nos. (xvi), (xiv),
(xvii), (xiii) and (xi) and no other ground, hence, we proceed to
consider the said grounds.
5(b) The first ground raised is in relation to the two
incamera statements. As far as the two incamera statements
are concerned, the first ground which has been raised in
relation to the same is ground (xvi). The said ground briefly
stated is that the petitioner was not supplied the verification of
the incamera statements which was done by the Assistant
Commissioner of Police which has resulted in violation of his
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constitutional right under Article 22(5) of the Constitution of
India on the ground of which, the detention order is vitiated.
This ground has been replied by the detaining authority in
paragraph 19 of the affidavit-in-reply. On perusal of the said
reply, we find that there is no averment therein about
furnishing of verification by the Assistant Commissioner of
Police of the incamera statements to the detenu. The learned
A.P.P. has produced before us the original incamera statements
and we find that the Assistant Commissioner of Police (ACP)
has put an endorsement on both the incamera statements that
he has verified the incamera statements and found them to be
true and genuine. However, it is noticed that in the copies of
incamera statements of witnesses "A" and "B" which have
been supplied to the detenu, there is no endorsement of the
ACP to show that the incamera statements were verified. As
stated earlier, the original incamera statements show that both
incamera statements were verified by the ACP but this
verification by the ACP, has not been furnished to the detenu.
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5(c) Mr. Sejpal, the learned counsel for the petitioner
submitted that it was mandatory for the detaining authority to
furnish the verification of the incamera statements by the ACP
to the detenu and non-supply of the same affects the right of
the petitioner to make an effective representation under Article
22(5) of the Constitution of India and thus, the order of
detention is liable to be set aside. In this connection, Mr.
Sejpal relied firstly on the judgment of the Division Bench of
this Court in Shubhangi Sawant Vs. R.H. Mendonca reported in
2001 ALL MR (Cri.) 68. This was a case where the petitioner
was given only the copies of incamera statements, without
verification made by the Assistant Commissioner of Police. The
detaining authority had taken into consideration the incamera
statements of two witnesses which were recorded by Senior
Police Inspector and which were verified by the Assistant
Commissioner of Police, however, the copies of the incamera
statements supplied to the detenu did not contain the
verification made by the Assistant Commissioner of Police. In
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these circumstances, this Court held that it had resulted in
violation of Article 22(5) of the Constitution and, therefore, the
detention order was vitiated. The said judgment was relied on
and applied by another Division Bench of this Court (Coram:
Sahai and S.K. Shah, JJ.) in Criminal Writ Petition No. 1649 of
2001 in the case of Joginder Prakash Piwal Vs. M.N. Singh
and others, decided on 7.2.2002. In the said case also the
copies of the incamera statements of witnesses supplied to the
detenu did not contain verification done by the ACP.
Consequently, it was held that there was violation of Article
22(5) of the Constitution and the detention order was vitiated.
Mr. Sejpal further placed reliance on the decision of this Court
in the case of Mehmood Shahjad Khan @ Pathan Vs. The
State of Maharashtra, reported in 2013 ALL MR (Cri.) 3349 :
2014(4) Bom.CR (Cri.) 509. Mr. Sejpal pointed out that in this
case also the detenu was supplied with the copies of the
incamera statements of two witnesses without being supplied
the verification done by the ACP. Mr. Sejpal submitted that in
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these circumstances, it was held that the right of the detenu to
make an effective representation was violated and hence, the
detention order was set aside.
5(d) The learned A.P.P. pointed out that the present order
of detention has been made on five grounds i.e. two incamera
statements and three registered cases i.e. CR No. 530 of 2015
dated 15.11.2016 of Dharavi Police Station, Mumbai. The said
case is under Sections 326, 504, 506 read with Section 34 of
IPC and Section 37(1)(a) read with Section 135 and 142 of the
Maharashtra Police Act. The second CR is CR No. 15 of 2016 of
Dharavi Police Station. This CR is under Sections 386, 324
read with Section 34 of IPC. The third case is Special LAC No.
58 of 2016. Incident in the said case occurred on 7.6.2016.
He submitted that assuming that the two incamera statements
cannot be relied upon on account of non furnishing of the
verification of the incamera statements, Section 5-A of the
MPDA Act would operate and these two incamera statements
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would be excluded from consideration, however, the three CRs
i.e. (1) CR No.530 of 2015, (2) CR No. 15 of 2016, and (3)
Special LAC No. 58 of 2016, would remain. Thus, it can be said
that the detention order has been issued on three grounds i.e.
on the aforesaid three CRs. and on these three grounds, the
detention order would sustain.
5(e) In support of the above contention, the learned A.P.P.
placed reliance on the decision of the Division Bench of this
Court in Smt. Gobibai Ghanavat Vs. State of Maharashtra and
others, reported in 2003 ALL MR (Cri.) 406. In the said case
also similar situation had arisen and similar arguments were
advanced that as the verification by the ACP of the incamera
statements was not furnished to the detenu the detenu's right
to make an effective representation was violated and thus, the
detention order was vitiated. In Smt. Gobibai (supra), this
Court has observed as under:
"13. In our view, with the introduction of Section
5A it cannot be disputed that even if some of the
grounds fail on account of being vague, non-existent,
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non-relevant or not connected with such person or is
rendered invalid for any other reason, still the order
cannot be deemed to be invalid or inoperative if the
same can be supported on the remaining ground or
grounds. The impugned order was passed under
Section 3(2) of the Act, which can be passed if the
detaining authority is satisfied that it is necessary to
do so in case the detenu is acting in any manner
prejudicial to the maintenance of public order which
is defined in Section 2 of the Act."
5(f) Thereafter the learned A.P.P. placed reliance on the
decision of the Supreme Court in the case of State of Uttar
Pradesh and another Vs. Sanjai Pratap Gupta alias Pappu
and others reported in (2004) 8 SCC 591. In the said decision,
the Supreme Court observed that section 5-A of the National
Security Act was introduced to take care of the situation when
one or more of the grounds can be separated from the other
grounds for justifying detention. It may be stated that Section
5-A of MPDA Act and NSA Act are pari materia.
In Attorney General for India V. Amratlal
Prajivandas reported in (1994) 5 SCC 54 : 1994 SCC (Cri.)
1325, it was observed that where the detention order is based
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on more than one ground, by a legal fiction it would be deemed
that there are as many orders of detention as there are
grounds which means that each of such orders is an
independent one. In that case the Constitution Bench was
considering scope of Section 5-A of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 (in
short "the COFEPOSA Act") which is pari materia with Section
5-A of the MPDA Act. In the said case it was held that grounds
can be severed in view of Section 5-A and the detention order
can be sustained on the remaining ground/s. In view of the
factual position analysed, the inevitable conclusion is that
Section 5-A is applicable to this case and as in the present
case, the detention order is based on three CRs and two
incamera statements, it can be said that by legal fiction, it
would be deemed that there are five orders of detention as
there are five separate grounds on which the detenu has been
detained. Thus, even if two grounds i.e. grounds relating to
incamera statements are excluded from consideration, three
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grounds still remain i.e. CR No. 530 of 2016, 15 of 2016 and
LAC 58 of 2016. It may also be stated that it is observed in the
case of Shubhangi Sawant, Joginder Prakash Piwal &
Mehmood Shahjad Khan (supra), that the point of severability
under Section 5-A of the MPDA Act was not raised by the
learned APP and hence, it did not arise for consideration.
However, in the present case the learned A.P.P. has specifically
raised the point of applicability of Sec. 5-A and we are of the
opinion that Sec. 5-A would fully apply in the facts of the
present case.
5(g) Thereafter as far as the two incamera statements are
concerned, Mr. Sejpal raised ground (xiv). In the said ground, it
is stated that incamera statements should not have been relied
upon by the detaining authority to issue the order of detention
as the incidents therein do not affect "public order" and the
incidents therein are stale, they are false, fabricated etc.
However, in view of the fact that in earlier paragraphs, it has
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been observed by us that we are not inclined to rely on the
incamera statements, we do not feel it necessary to deal with
this ground. Thereafter Mr. Sejpal raised ground (xvii) in
relation to incamera statements. Various contentions are
raised in this ground in relation to the two incamera
statements. However, we have already observed earlier that
the incamera statements are being excluded from
consideration, hence, it is not necessary to deal with this
ground as it is redundant.
5(h) Thereafter, Mr. Sejpal raised ground (xi). This
ground is in relation to the first CR. He submitted that as far as
the first CR i.e. CR No. 530 of 2015 is concerned, it does not
affect "public order", hence, it could not have been relied upon
by the detaining authority to pass the detention order. The
facts relating to CR No. 530 of 2015 are that the complainant
had lodged a case against the detenu and his associates. The
detenu and his associates threatened the complainant to
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withdraw the said criminal case. However, the complainant did
not listen to them. On 13.11.2015 at about 1.00 a.m. when the
complainant was on his way home, he met his friend Selva.
They went upto the place inside the compound of the society.
The complainant at the said place noticed the detenu and his
associates glaring at him. The complainant questioned the
detenu and his associates why they were doing so ? Due to
this, detenu and his associates abused the complainant. The
complainant also abused the detenu. The complainant then
started proceeding inside the society building. The
complainant suspected that the detenu and his associates were
following him to assault him, hence, the complainant
attempted to run away. On this, the detenu pulled the
complainant back and dealt a blow with "paver-block" on the
left side of face of the complainant and also on the head of the
complainant. Someone hit the complainant with hard
substance on the back. The complainant fell down and became
unconscious. Thereafter, the complainant lodged F.I.R.
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5(i) In relation to this incident, Mr. Sejpal reiterated that
the incident does not affect "public order". The incident
therein only concerns one private individual i.e. the
complainant. Mr. Sejpal submitted that looking to the facts
relating to CR No. 530 of 2015, it cannot be said that it affects
public at large and the act of the detenu was such that it
affected the "public order". We find much merit in this
submission because from the facts pertaining to CR No. 530 of
2015, it is seen that the act of the detenu did not affect the
even tempo of life of the society at large or even a section of
the society but it was only limited to one private individual.
There was no disturbance of public order. The incident
occurred on account of previous enmity between the
complainant and the detenu and there was no impact of this
incident on society in general. Thus, it cannot be said that
this incident affects "public order". However, as stated earlier,
the order of detention in the present case, has been made on 5
grounds i.e. 3 registered cases and 2 incamera statements.
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Even if the 2 incamera statements and this CR i.e. CR No.530
of 2015, are excluded from consideration, the incidents relating
to two registered cases remain i.e. CR No. 15 of 2016 and LAC
58 of 2016.
5(j) Thereafter, Mr. Sejpal raised ground (xiii). He
submitted that after applying provisions of Section 5-A only 2
cases remain i.e. CR No. 15 of 2016 and LAC 58 of 2016. He
submitted that the incident relating to LAC 58 of 2016 is not
such that it affects "public order". Thus, he submitted that if
the incident relating to LAC No. 58 of 2016 is excluded from
consideration as it does not affect "public order", only CR No.
15 of 2016 would remain. He submitted that only on the basis
of a single solitary incident relating to CR No. 15 of 2016, it
cannot be said that the detenu is a "dangerous person". He
submitted that the detention order in the present case, has
been passed against the detenu because he is a "dangerous
person" as visualized under the provisions of MPDA Act. In
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which case, it would be necessary to see Section 2(b-1) which
defines "dangerous person". As per this section, "dangerous
person" means a person, who either by himself or as a member
or leader of a gang, "habitually commits", or attempts to
commit or abets the commission of any of the offences
punishable under Order XVI or Chapter XVII of the Indian Penal
Code or any of the offences punishable under Chapter V of the
Arms Act, 1959 (LIV of 1959).
5(k) Thus, a perusal of Section 2(b-1) would show that if
the person singly or as a member or a leader of a gang
"habitually commits" or attempts to commit or abets the
commission of any offence punishable under Chapter XVI or
Chapter XVII of the IPC or Chapter V of the Arms Act, he would
be a "dangerous person" in terms of Section 2(b-1) of the
MPDA Act. Just as a single swallow does not make a summer a
solitary act, does not constitute a habit. Thus for a person to
fall within the definition of "dangerous person" there have to
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be at least two acts in which he has indulged, which acts affect
"public order". In relation to the contention raised by Mr.
Sejpal, we would like to go into the incident relating to LAC No.
58 of 2016. It may be stated at this stage that Mr. Sejpal, as
far as CR No. 15 of 2016, does not dispute that the incident
therein affects "public order". Thus, we now proceed to
consider the facts relating to LAC No. 58 of 2016.
5(l) The facts relating to LAC No. 58 of 2016 are that the
complainant Police Head Constable Navadkar in LAC 58 of 2016
states that on 7.1.2016 at mid-night i.e. 00.30 hours, he along
with 7 police personnel reached Priyanka Bar while they were
patrolling. There they received information that three persons
armed with swords, sickles etc. were roaming and terrorizing
local people and due to their violent act, people were running
helter skelter, therefore, police party reached the spot and
found the detenu and his associates armed with swords and
sickle like weapons. They were shouting at the top of their
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voice and rushing at people and letting loose a reign of terror
over there. On spotting the police, the detenu and his
associates made efforts to run away, however, they came to be
apprehended. The detenu was found in possession of a sword
which was 79" in length. Both the associates of the detenu
were found in possession of sickles.
5(m) To support the contention that the incident relating to
LAC No. 58 of 2016, did not affect "public order" and cannot
be taken into consideration, Mr. Sejpal placed reliance on a
decision of this Court in the case of Austin William Luis Pinto
Vs. Commissioner of Police, Greater Mumbai and others
reported in 2005 ALL MR (Cri.) 28. In the said case, while two
constables were on patrolling duty, they noticed the detenu
and his associates whispering amongst themselves. By
listening carefully to the discussion of the detenu and his
associates, they learnt that the detenu and his associates had
hatched a plan to commit an offence of dacoity at Kamal Art
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Jewellers in Mulund and some of the detenu's associates were
waiting at that place. One of the constables requested for
additional police help and they reached Kamal Art Jewellers. In
the meanwhile, the detenu and his associates also reached the
spot i.e. Kamal Art Jewellers. They went near the two
associates who were waiting for them. They had some
discussion among themselves. Then the detenu and his
associates started walking towards Kamal Art Jewellers.
Immediately the police team rushed towards the detenu and
his associates and surrounded them. On sensing the presence
of police, the detenu and his associates started running away.
Police team chased them and caught the detenu and his three
associates and the detenu came to be apprehended. The
detenu was found in possession of a revolver. Some weapons
were found with his associates. It was submitted that the said
incident did not affect "public order". The Court in paragraph
5 observed that it was inclined to agree with the learned
counsel for the detenu that the incident did not affect "public
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order". It was further observed that there is no material on
record to indicate that on account of the incident, a reign of
terror was created in the vicinity and the even tempo of life of
the society was disturbed. However, as far as the present
incident pertaining to LAC No. 58 of 2016 is concerned, it is
seen that the police received information that three persons
armed with swords and sickles were roaming and terrorizing
the local people and due to their violent act, people were
running helter skelter. When the police party reached the spot,
they found the detenu and his two associates armed with
swords and sickle like weapons. The detenu and his associates
were shouting at the top of their voice and rushing at people
and a reign of terror was created over there. This clearly
shows that the incident affected "public order" as a reign of
terror was created by the detenu and his associates at the
spot. They were rushing at people with weapons in their hands
which created a feeling of terror in the minds of the people at
the spot. Thus, this incident had clearly affected "public
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order".
5(n) Thereafter, Mr. Sejpal drew our attention to further
observation in paragraph 5 of the decision in the case of
Austin William Luis Pinto (supra). He pointed out that in the
said case, it is observed that admittedly there was no material
before detaining authority in the form of statements of
independent persons stating that on account of this incident,
there was a reign of terror created in the vicinity at large and
the even tempo of life of the society was disturbed. Mr. Sejpal
placed great emphasis on the fact that there was no statement
of an independent witness. He submitted that in the present
case also, there are no statements of independent persons to
show that a reign of terror was created in the vicinity and on
account of which, the even tempo of life of the society was
disturbed. On reading paragraph 5 and the decision as a
whole, it can be seen that the observation made that
admittedly there was no material before the detaining
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authority in the form of statements of independent persons
stating that on account of this incident, there was a reign of
terror created in the vicinity and the even tempo of life of the
society was disturbed, was made in view of the fact that there
was no material in the said case to show that a reign of terror
was created or that the even tempo of life of the society was
disturbed. However, in the present case, there was ample
material before the detaining authority that the even tempo of
life of the society was disturbed and the detenu and his
associates had created a reign of terror in the vicinity. The
observation relied upon by Mr. Sejpal has to be read as a whole
in the context of the facts relating to the incident as a whole in
the said case. Thus, the observations relating to independent
witnesses cannot be read out of context and they have to be
read in the context of the facts of the said case. The facts
relating to the incident in Austin Pinto (supra) and the facts to
LAC No. 58 of 2016 are entirely different. In the case of
Austin Pinto, there was no material to show that the incident
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affected "public order" whereas in the present case, there is
sufficient material on record to indicate that on account of the
said incident, a reign of terror was created in the vicinity and
the even tempo of life of the society was disturbed. There is no
reason to disbelieve the evidence or statements of police
officers. Just because they are police officers, it does not mean
that their statements should not be taken into consideration.
The Supreme Court in the case of Ahir Raja Khima Vs. State of
Saurashtra reported in AIR 1956 SC 217 observed as under:
"The presumption that a person acts honestly applies
as such in favour of a police officer as in other
persons and it is not a judicial approach to distrust or
suspect him without good ground thereof. Such an
attitude could do neither credit to the magistrate nor
to the public. It can only run down the prestige of the
public administration."
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5(o) It does happen that in some cases there are only
police witnesses but it does not mean that just because they
are police witnesses, the accused therein cannot be convicted
or the detention order cannot be issued on the incident which
has been stated by the police personnel. As stated earlier, the
Supreme Court has in relation to police witnesses in the case of
Ahir Raja Khima (supra), also observed that "the presumption
that a person acts honestly applies as such in favour of a police
officer as in other persons and it is not a judicial approach to
distrust or suspect him without good ground thereof. Such an
attitude could do neither credit to the magistrate nor to the
public. It can only run down the prestige of the public
administration". We are respectfully bound by the decisions of
the Supreme Court. Thus, looking to the facts relating to
LAC 58 of 2016, we are of the opinion that it certainly affects
"public order". We therefore, fail to appreciate the contention
raised by the learned counsel for the petitioner that the
satisfaction of the detaining authority that the detenu is a
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"dangerous person" is based only upon a solitary incident that
is CR No. 15 of 2016 as only that incident affects "public
order". In our opinion, as the incidents relating to LAC 58 of
2016 and CR 15 of 2016 clearly affect maintenance of "public
order" it cannot be said that the detention order is based on a
solitary incident. There are two incidents i.e. LAC 58 of 2016
and CR No. 15 of 2016 which show that the test of
repetitiveness or continuity of activities of the detenu is fully
satisfied and the satisfaction holding the detenu to be a
"dangerous person" is not vitiated in any manner. The
contention of the learned counsel for the petitioner in this
regard, therefore, stands rejected.
5(p) For the sake of convenience, we shall refer to the
incident relating to CR No. 15 of 2016. In the said case, on
8.1.2016 the complainant returned home at 10.30 p.m.. The
detenu made a call on the cell phone of the complainant and
asked him to come down. When the complainant came down,
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the detenu threatened the complainant and asked him to give
him Rs.10 lakhs. The complainant asked the detenu why he
should give him Rs.10 lakhs ? Whereupon, the associate of the
detenu caught him from behind and hugged him and the
detenu smashed Mc'Donalds liquor bottle on the head of the
complainant. The complainant sustained bleeding injury on his
head. As there was bleeding, some people rushed forward to
save him. On seeing those persons, the detenu raised bottle in
their direction and loudly shouted that if they come forward to
save the complainant, he would not leave them. Two of the
associates of the detenu also raised glass bottles towards the
people to attack them with the same. Due to fear of the
detenu and his associates, the people in the locality got
terrified and ran helter skelter. Residents closed doors of their
houses. Thus, this shows that "public order" was certainly
disturbed on account of the incident relating to CR No.15 of
2016. The incident was such that it affected the even tempo of
life of a section of the society. It is the degree of disturbance
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and its impact upon the even tempo of life of the society or the
people of a locality which determines whether the disturbance
caused by such activity amounts only to a breach of "law and
order" or it amounts to breach of "public order". Applying this
principle to the facts of the present case, we find that the
activities of the detenu in relation to the CR No. 15 of 2016 and
LAC 58 of 2016 are such that they affected "public order".
5(q) The learned A.P.P. submitted that CR No.15 of 2016
pertains to an act of extortion and acts of extortion disturb
"public order". In support of his contention, he has placed
reliance on paragraph 5 of the decision of the Supreme Court in
the case of Amanulla Khan Kudeatalla Khan Pathan Vs. State
of Gujarat, reported in AIR 1999 SC 2197. The relevant
portion thereof reads as under:
" It is the degree of disturbance and its impact upon
the even tempo of life of the society or the people of
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a locality which determines whether the disturbance
caused by such activity amounts only to a breach of
"law and order" or it amounts to breach of "public
order". Applying the ratio of the aforesaid decision to
the facts of the present case, we find that the
activities of the detenu by trying to extort money
from ordinary citizens by putting them to fear of
death and on their refusal to part with the money to
drag them and torture them on public road
undoubtedly affected the even tempo of life of the
society and, therefore such activities cannot be said
to be a mere disturbance of law and order."
5(r) This Court in the decision in the case of Zebunissa
Vs. M.N. Singh reported in 2001 (3) Mh.L.J. 365 has observed
that the acts of extortion disturb public order can no longer be
disputed. In the decision in the case of Amin Mohammed
Qureshi Vs. Commissioner of Police, Bombay, reported in
1994 Cri.L.J. 2095, the detenu was indulging in crimes like
robbery, extortion and criminal intimidation. The Supreme
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Court held that these activities affected the maintenance of
public order. Similar view was taken in Prabhakar Shetty Vs.
S. Ramamurthy reported in 1993 (2) B.C.R. 3 and Sunil Patil
Vs. Satish Sahney and others reported in 1996(3) All M.R.
426. Thus, applying the ratio of the aforesaid decisions to the
incident relating to CR No. 15 of 2016 it can be said that the
said incident affects public order. The detention order can be
passed under MPDA Act on the ground that a person is a
"dangerous person" on the basis of two incidents. As observed
earlier that the two incidents relating to CR No. 15 of 2016 and
LAC 58 of 2016 are such that they affected "public order",
hence, the detention order can be sustained on the basis of
these two incidents. Thus, we find no merit in the submission
of the learned counsel for the petitioner.
5(s) At this stage, the learned counsel for the petitioner
stated that he does not wish to urge any other ground in this
petition, however, he submitted that in view of the reply in
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paragraph 8 of the affidavit filed by the detaining authority
which was affirmed on 13.1.2017, it appears that there is delay
in issuance of detention order and the same has not been
properly explained by the detaining authority. The learned
counsel for the petitioner therefore, seeks leave to amend and
add the ground that "there is delay in issuing the detention
order and the same has not been explained properly by the
detaining authority, hence, the detention order is vitiated".
6 We have reproduced above from paras 5(a) to 5(s),
the grounds which were raised and negativated. Now we
proceed to deal with the new ground raised by way of
amendment i.e ground (xiii). This ground mainly deals with
delay in issuance of detention order. In relation to this ground,
Mr. Sejpal submitted that the incamera statements of the
witnesses were recorded on 21.6.2016 and 25.6.2016. They
were verified by the Assistant Commissioner of Police on
27.6.2016, however, the proposal was sent only after delay of
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25 days i.e. the proposal was sent on 20.7.2016. He submitted
that there is no explanation for this delay. Thereafter, he
submitted that the papers were placed before the detaining
authority and the detaining authority received the proposal on
22.8.2016 and the detention order has been issued on
7.10.2016 i.e. after a delay of 1½ month. Mr. Sejpal submitted
that the delay in passing the order of detention has vitiated the
order of detention. He submitted that the period from
verification of the incamera statements which was done on
27.6.2016 till the date when the detention order was issued on
7.10.2016, has not been satisfactorily explained and hence,
the detention order is vitiated. In support of his contention, Mr.
Sejpal placed reliance on the decision of the Supreme Court in
the case of Pradeep Nilkantha Paturkar Vs. S. Ramamurthi
and others reported in 1993 S.C.C. (Cri.) 392. He pointed out
that in Pradeep Paturkar (supra), the detention order was
passed after 5 months and 8 days from the date of registration
of the last case and more than 4 months of the proposal and
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the Supreme Court held that the delay has not been
satisfactorily explained, hence, the detention order came to be
quashed. Mr. Sejpal relied upon the observations in the case of
Pradeep Paturkar (supra) that unexplained delay whether short
or long especially when the detenu has taken a specific plea of
delay, vitiates the order of detention.
7. First of all in the present case, the last criminal
activity of the detenu took place in 3rd week of June and the
detention order is passed on 7.10.2016 i.e in 3 months and 3
weeks. Thus, it is seen that the detention order was passed 3
months and 3 weeks from the last criminal activity of the
detenu which period is far less than the period in the case of
Pradeep Paturkar. In the case of Pradeep Paturkar, the
detention order was passed 5 months and 8 days from the date
of registration of last case. Moreover, though the proposal in
the present case is dated 20.7.2016, the detention order has
been passed on 7.10.2016 i.e 2 months and 17 days from the
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date of submission of the proposal. This period is also far less
than the period in the case of Pradeep Paturkar where the
detention order was passed after more than 4 months from
submission of the proposal.
8. In the present case, the detaining authority has filed
an affidavit explaining the delay in issuance of the detention
order. It is stated therein that proposal dated 20.7.2016 from
Dharavi Police Station was received by the office of the D.C.P.,
Zone - V, Mumbai on the same day i.e 20.7.2016. On
21.7.2016, there was holiday due to Sunday. After verifying
the documents and particulars, it was sent to PCB, Crime
Branch on 25.7.2016 by Outward No. 4858/2016. PCB received
the same on the evening of 26.7.2016. Senior Inspector of
Police of PCB scrutinized the same at their end and verified the
proposal and all the documents from 26.7.2016 to 4.8.2016.
On 31.7.2016, there was a Sunday. Learned APP submitted
that as the compilation consisted of 373 pages, at the initial
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stage, it would take some time for each department to
scrutinize the papers. Thereafter in the affidavit, it is stated
that on 5.8.2016, PCB forwarded the said proposal to ACP,
Preventive Crime Branch and the same was received by ACP,
Preventive Crime Branch, CID, Mumbai on 6.8.2016. Then on
the very same day, after verifying the same, it was forwarded
to DCP, Preventive Crime Branch, CID, Mumbai. As 7.8.2016
was a Sunday, same was received on 8.8.2016. The same was
scrutinized. Thereafter, it was forwarded to the Additional
Commissioner of Police and the same was received by the
Additional Commissioner of Police, Preventive Crime Branch on
8.8.2016. The Additional Commissioner of Police forwarded the
same to the Joint Commissioner of Police on the very same day
i.e 8.8.2016. The Joint Commissioner of Police sent the
proposal to the Additional Director of Public Prosecutor for
obtaining legal opinion and it was received back on 12.8.2016.
The Additional Director of Public Prosecutor opined that it was a
fit case to consider the proposal. Then Joint Commissioner of
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Police verified the documents and suggested some corrections
on 16.8.2016 In between, there were public holidays from
13.8.2016 being 2nd Saturday, on 14.8.2016 being Sunday and
on 15.8.2016 being Independence Day. Apart from that, the
concerned Joint Commissioner of Police and other staff were
also busy with other official work. After the suggested
corrections were carried out, the Joint Commissioner of Police
received the file on 19.8.2016. The same was scrutinized by
him and finalized on 20.8.2016. On 21.8.2016, there was
holiday being Sunday, therefore, the same was forwarded to
the office of detaining authority on 22.8.2017. During the
same period, the detaining authority had other proposals
pending for issuance of detention order which were as under:-
Sr. No. Police Station P.D. Name Date
1 Kanjurmarg Mayur Shinde 14.07.2016
2 Bangur Nagar Mohsin Javed 15.07.2016
3 Shivaji Nagar Nisar @ Nigro 19.07.2016
4 Boriwali Mandar Borkar 22.07.2016
5 Juhu Alex @ Mariappa 25.07.2016
6 Dharavi Krishna Godambe 26.07.2016
7 Kandiwali Ramkisan Chouhan 23.09.2016
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9. In his affidavit, the detaining authority has stated that
after receipt of the proposal, on account of other proposals
pending for issuance of detention order, simultaneously turn
by turn, he has carefully gone through the proposals and
approved the present proposal on 22.9.2016. The proposal of
Dharavi Police Station was received by his office on 22.8.2016
and there was bandobast on account of Ganpati festival and
Bakri Id between 5.9.2016 to 15.9.2016. The proposal was
perused by him and he directed his subordinate officers to
scrutinize the same. Accordingly, all the papers were placed
again before the detaining authority on 22.9.2016
10. The detaining authority has further stated that on
22.9.2016, after going through the proposal and all the
documents, he approved the same on 22.9.2016. Thereafter,
he dictated the draft grounds of the detention. He asked the
officer from PCB to prepare the translation of all the documents
which were to be served on the detenu. The papers were
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received back by the detaining authority on 27.9.2016. Some
mistakes were found therein, hence, it was sent for correction.
After the corrections were carried out, the papers were put up
before the detaining authority on 30.9.2016. The detaining
authority then went through the grounds of detention and
compilation of the documents which were to be served to the
detenu. Then he finalized the draft detention order on that day
and asked the officer from PCB to prepare the final copy of the
the detention order. On 2.10.2016, it was holiday. The
detention order was then put up before the detaining authority
on 4.10.2016. Thereafter, the detaining authority went
through all the papers simultaneously on 5 & 6.10.2016. On
7.10.2016, the detaining authority again scrutinized all the
documents and finalized the grounds of detention and issued
the order of detention on the very same day i.e 7.10.2016.
11. Learned counsel for the petitioner submitted that
there are two pockets of delay. The first pocket is of 25 days
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i.e after the incamera statements were verified on 27.6.2016
and the proposal was sent on 20.7.2016. As far as this delay is
concerned, the affidavit of the sponsoring authority shows that
in between the period after the last incamera statement was
recorded and the proposal was sent, all the papers relating to
the preventive action taken against the detenu i.e chapter
cases and externment proceedings were obtained by the
sponsoring authority. Thereafter, the papers relating to C.R.
No. 530/2015, 15/2016 and LAC No. 58/2016 were collected
and zeroxed. The papers relating to earlier offences were also
collected. After collecting all the documents, seven sets were
prepared. They were paginated and index was made. Final
proposal was prepared and thereafter, the proposal was
submitted on 20.7.2016. Thus, looking to the activities
undertaken by the sponsoring authority to prepare the
necessary sets of the documents, it cannot be said that the
period of 25 days is inordinate. We are of the opinion that this
period of 25 days has been satisfactorily explained.
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12. Thereafter, learned counsel for the petitioner
submitted that the period between 22.8.2016 to 22.9.2016 i.e
the date the detaining authority received the proposal to the
date the detaining authority approved the proposal has not
been explained which delay would vitiate the order of
detention. As far as this period is concerned, it has been
explained by the detaining authority, as discussed by us, in
foregoing paragraphs. The decision of Pradeep Paturkar on
which reliance is placed by the learned counsel for the
petitioner in relation to delay in issuance of the detention order
had been considered by this Court in the decision dated
10.3.2010 in Criminal Writ Petition No. 2090 of 1999 in the
case of Deepak Govind Murudkar. In the case of Deepak
Murudkar, it was held that the delay in issuance of detention
order would be computed from the last date of in-camera
statement and not from the date of last C.R. In that case,
the delay was almost 10 months from the last C.R. and 2
months and 11 days from the proposal. However, the said
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detention order was maintained.
13. As far as delay is concerned, the holidays i.e Sunday,
public holidays and 2nd and 4th Saturday would have to be
excluded. The Supreme Court in the case of Noor Salaman
Makani Vs. Union of India & Ors. reported in (1994) 1 SCC
381 observed that the delay is to be computed after excluding
holidays. In any event, in Dharavi, there is huge population of
Hindus and Muslims and as the festivals of Hindus and Muslims
are celebrated during the said period, heavy bandobast has to
be maintained. In any event, all over the city of Mumbai,
during the period of Ganpati festival, vigilance is required to be
maintained almost around the clock in order to control the
traffic, crowd and to see that no untoward incident takes place,
hence, during this period, the detaining authority would have
no time at all to issue the order of detention. The detaining
authority in his affidavit has stated that from 5.9.2016 to
15.9.2016 on account of Ganpati fesetival, there was heavy
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bandobust.
14. As far as delay is concerned, the main issue is
whether the live-link is snapped. This depends on the facts and
circumstances of each case. No hard and fast rule can be
precisely formulated that would be applicable under all
circumstances and no exhaustive guide lines can be laid down
in that behalf. It follows that the test of proximity is not a rigid
or mechanical test by merely counting number of months
between the offending acts and the order of detention.
However, when there is undue and long delay between the
prejudicial activities and the passing of detention order, the
court has to scrutinize whether the detaining authority has
afforded a tenable and reasonable explanation as to why such
a delay has occasioned, when called upon to answer and
further the Court has to investigate whether the causal
connection has been broken in the circumstances of each case.
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15. The Supreme Court in the case of Hemlata Kantilal
Shah Vs. State of Maharashtra reported in (1981) 4 SCC
647 : 1982 SCC (Cri) 16 observed as under:-
"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."
16. Coming to the case in hand, the detention order was
issued on 7.10.2016 i.e after 3 months and 12 days from the
date when the last in-camera statement was recorded which
was recorded on 25.6.2016 and after 2 months and 17 days
from the submission of proposal i.e on 20.7.2016. Looking to
the prejudicial activities of the detenu, we are of the opinion
that the delay, if any, during this period which is unexplained,
would not snap the live-link between the prejudicial activities of
the detenu and the purpose of detention. In any event, we are
of the opinion that the delay has been satisfactorily explained.
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Thus, we find no merit in this ground.
17. In view of the above, we find no merit in this petition.
The petition is dismissed.
[ REVATI MOHITE DERE, J. ] [ SMT.V.K.TAHILRAMANI, J.]
Amberkar
