Rekha Shambhu Gawli vs The State Of Maharashtra
2021 Latest Caselaw 12448 Bom

                                                                             WP 1881-21

                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CRIMINAL APPELLATE JURISDICTION
         Amk
                                          WRIT PETITION NO. 1881 OF 2021

                         Rekha Shambhu Gawli                   ]
                         Age-46 yrs, Occ.-Housewife,           ]
                         R/at : Pratikshanagar Slum,           ]
VISHAL                   Panchshilnagar No.02,                 ]
SUBHASH                  Room No.407, Sion, Koliwada,          ]
PAREKAR
                         Mumbai-400022.                        ]     .. Petitioner
Digitally signed
by VISHAL
SUBHASH                         Versus
PAREKAR
Date:
2021.09.03
11:08:50 +0530     1.    State of Maharashtra                  ]
                         (Through Commissioner of Police,      ]
                         Railways, Mumba)              ]

                   2.    Superintendent of Thane               ]
                         District Jail.                        ]     .. Respondents

                   Ms. Paavani Chadha for the Petitioner.
                   Mr. J. P. Yagnik, APP for the State.

                                CORAM       : S. S. SHINDE AND N. J. JAMADAR, JJ.

                   Judgment reserved on            : 29.07.2021
                   Judgment pronounced on          : 02.09.2021

                   JUDGMENT (Per N. J. Jamadar, J.)

1. Rule. Rule made returnable forthwith and, with the consent of the Counsels,

heard finally.

2. The petitioner, who is mother of Umesh Shanbhu Gawli, a detenue, has

assailed the order of detention dated 07.04.2021 passed by Commissioner of

Police, Railway, Mumbai 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

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of Essential Commodities Act. 1981 (MPDA Act).

3. The petition arises in the backdrop of the following facts:

(a) A proposal was initiated to detain the detenue as it transpired

that number of offences were registered against the detenue. He was

indulging in criminal activities with impunity in the area of Thane, Kalyan,

Kurla and Dadar. The detenue roamed around with his associates armed

with deadly weapons. Various grave offences like robbery, theft, causing

hurt and extorting money were registered against the detenue. The

activities of the detenue were causing harm and insecurity amongst the

general public. In the past preventive action was taken against the detenue

yet the detenue continued to pursue life of criminality, unabated and with

impunity.

(b) The detaining authority considered two predicate offences,

namely, C.R. No. A-915/2020 registered at Thane Railway Police Station on

07.12.2020 for the offence punishable under Section 392 of the Indian Penal

Code, 1860 (the Penal Code) and C. R. No. A-922/ 2020 registered with

Thane Railway Police Station on 22.12.2020 for the offences punishable

under Sections 392, 201 and 75 of the Penal Code. As persons were not

coming forward to lodge complaints against the dangerous criminal

activities of the detenue due to fear of reprisal, the sponsoring authority

recorded the statements of witnesses in camera.

(c) The detaining authority after considering the facts revealed in

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the above numbered offences registered against the detenue and the

confidential statements of the witnesses, arrived at a subjective satisfaction

that the detenue was a dangerous person and indulged in activities which

were prejudicial to maintenance of public order. Thus, in order to prevent

the detenue from indulging in such activities, which were prejudicial to the

maintenance of public order, in future, found it necessary to detain the

detenue by invoking the provisions contained in Section 3 of the Act.

(d) The grounds of detention were served on the detenue. The

State Government approved the order under sub-Section (3) of Section 3 of

the MPDA Act.

4. The petitioner has invoked the writ jurisdiction of this Court assailing the

legality and correctness of the impugned detention order by raising multi-fold

grounds. On a careful consideration of the petition, we find that only ground (a)

can, at best, be said to contain a challenge to the legality of the detention order.

The petitioner asserts in ground (a) that the detention order is legally

unsustainable as it does not spell out the period of detention. Rest of the grounds

in the petition reflect the adverse social condition and poor financial position of

the petitioner and detenue. In the passing, in ground (f), it is asserted that there is

no threat to any person of the society from the detenue as he is an ordinary young

citizen.

5. Affidavits-in-reply have been filed by the detaining authority as well as on

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behalf of the State Government. The challenge to the detention order on the score

of not specifying the period of detention is stated to be unworthy of countenance.

There is no requirement in law that the detaining authority must specify the period

of detention. Rest of the contentions in the petition, according to the respondents,

properly construed, do not constitute grounds of challenge to the detention order.

6. In the wake of aforesaid facts and pleadings, we have heard Ms. Paavani

Chadha, learned counsel for the petitioner and Mr. J. P. Yagnik, learned APP for the

State at length. With the assistance of the learned counsel for the parties, we have

also perused the material on record including the original record tendered for the

perusal of the Court.

7. Ms. Chadha, learned counsel for the petitioner strenuously urged that the

detention order cannot be sustained as the satisfaction arrived at by the detaining

authority that the activities of the detenue were prejudicial to the maintenance of

the public order is infirm. Amplifying the submission, Ms. Chadha would urge that

the acts and conduct attributed to the detenue, even if taken at their face value,

would, at best, justify an inference that those activities fall in the realm of law and

order issue. No element of threat to public order by the alleged activities of

detenue is made out, submitted Ms. Chadha.

8. As against this, Mr. Yagnik, learned APP took the Court through the grounds

of detention and the material against the detenue borne out therefrom. It was

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urged that in the facts of the case, where the detenue is shown to have relentlessly

engaged in criminal activities and created a reign of terror, no other inference than

that of the detenue being a dangerous person and having engaged in activities

prejudicial to the maintenance of public order can be drawn. In the backdrop of

material on record, according to Mr. Yagnik, the detaining authority was well

within its rights in arriving at the subjective satisfaction that the detention of the

detenue was necessary for preventing him from acting in a manner prejudicial to

the maintenance of public order. And adequacy or sufficiency of the material to

arrive at such subjective satisfaction cannot be delved into in exercise of

extraordinary writ jurisdiction, submitted Mr. Yagnik.

9. As indicated above, the petitioner has not raised substantive grounds to

assail the detention order, except the challenge on the count that the detention

order is legally unsustainable for not specifying the period of detention. Even this

ground does not advance the cause of detenue. The legal position is no longer res

integra. A three Judge Bench of the Supreme Court in T. Devaki Vs. Government

of Tamil Nadu and Ors. (1990) 2 SCC 456 has set the controversy at rest. After

adverting to the provisions of Section 3 of the Tamil Nadu Prevention of Dangerous

Activities of Bootleggers, Drug Offenders, Forest Offenders, Immoral Traffic

Offenders and Slum Grabbers Act, 1982 which are pari materia with Section 3 of

the MPDA Act, the Supreme Court ruled in clear and explicit terms that the order

of detention is not rendered invalid or illegal in the absence of specification of

period of detention in the detention order passed under Section 3(1) or (2). The

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observations in paragraph 10 are material and hence extracted below:

"10. ........................The Act nowhere requires the detaining authority to specify the period for which the detenu is required to be detained. The expression "the State Government are satisfied that it is necessary so to do, they may, by order in writing direct that during such period as may be specified in the order" occurring in sub-section (2) of Section 3 relates to the period for which the order of delegation issued by the State Government is to remain in force and it has no relevance to the period of detention. The legislature has taken care to entrust the power of detention to the State Government; as the detention without trial is a serious encroachment on the fundamental right of a citizen, it has taken further care to avoid a blanket delegation of power, to subordinate authorities for an indefinite period by providing that the delegation in the initial instance will not exceed a period of three months and it shall be specified in the order of delegation. But if the State Government on consideration of the situation finds it necessary, it may again delegate the power of detention to the aforesaid authorities from time to time but at no time the delegation shall be for a period of more than three months. The period as mentioned in Section 3(2) of the Act refers to the period of delegation and it has no relevance at all to the period for which a person may be detained. Since the Act does not require the detaining authority to specify the period for which a detenu is required to be detained, order of detention is not rendered invalid or illegal in the absence of such specification."

(emphasis supplied)

10. This takes us to the pivotal question, which the Court is invariably

confronted with, while adjudging the legality and validity of a preventive detention

order. Whether the resort to the exceptional power to preventively detain a person

is justified on the touchstone of the activities of the detenue being prejudicial to

the maintenance of public order?

11. Ms. Chadha made an earnest endevour to draw home the point that the

activities attributed to the detenue do not fall within the ambit of the expression,

"prejudicial to the maintenance of public order". An effort was made to

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demonstrate that the activities which the detenue is alleged to have indulged in,

constitute offences which can be very well dealt with under ordinary criminal laws

and there was no justification for invoking the provisions which authorise

preventive detention. Often the obfuscation as to whether the activities, in a given

case, fall in the realm of law and order or within the ambit of public order, arises in

not appreciating the real distinction between the concepts of 'breach of law and

order' and 'threat to public order'. The Courts often come across the cases where

two expressions are confused and detention orders are passed by authorities on

the strength of the activities which may properly fall within the domain of law and

order and do not bear upon the maintenance of public order.

12. In order to properly appreciate the import of the term, "public order", in the

context of the challenge at hand, it would be imperative to note the relevant

provisions of the MPDA Act, 1981. Clause (a) of Section 2 of the MPDA Act, 1981

provides that "acting in any manner prejudicial to the maintenance of public

order", in the case of dangerous person, means, when he is engaged, or is making

preparations for engaging, in any of his activities as a dangerous person, which

affect adversely, or are likely to affect adversely, the maintenance of public order.

Clause (b-1) of Section 2 of the Act, defines the "dangerous person" to mean 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 Chapter XVI or Chapter XVII of the Indian Penal Code or any of

the offences punishable under Chapter V of the Arms Act, 1959. It would be

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contextually relevant to note that the explanation to Clause (a) explains as to when

public order shall be deemed to have been affected adversely or shall be deemed

likely to be affected adversely.

13. A conjoint reading of the aforesaid provisions would indicate that to sustain

the order of detention under the MPDA Act, the detaining authority must be

satisfied that the proposed detenue is a, "dangerous person" within the meaning

of Section 2(b-1) of the Act, who habitually commits or attempts to commit or

abets the commission of any of the offences punishable under Chapter XVI or

Chapter XVII of the Penal Code or any of the offences punishable under Chapter V

of the Arms Act, 1959. The authority must be further satisfied that such dangerous

person is engaged or is making preparation for engaging in any of his activities as

a dangerous person, which affect adversely or are likely to affect adversely the

maintenance of public order.

14. It is well recognized that the act by itself may not be determinative of its

character so as to fall within the ambit of "law and order" or "public order". In its

quality the act may not differ, when it affects law and order or public order. What

is of critical significance is the potentiality and propensity of the act to affect the

even tempo of life of ordinary citizen. It is the degree of disturbance and its impact

upon the even tempo of life of society or the people of locality which answers the

question as to whether the disturbance caused by such activity amounts to only a

mere "breach of law and order" or "prejudicial to maintenance of public order".

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15. The aforesaid legal position is well neigh settled. A useful reference in this

context can be made to the Judgment of the Supreme Court in the case of

Mustakmiya Jabbarmiya Shaikh Vs. M. M. Mehta, Commissioner of Police &

Ors. (1995) 3 SCC 237, on which a strong reliance is placed by Ms. Chadha, albeit

for a different purpose. In the said case, the distinction between law and order and

public order was expounded in the following words:

"In this connection it may be stated that in order to bring the activities of a person within the expression of "acting in any manner prejudicial to the maintenance of public order", the fall out and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance 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 "public order". If the activity falls within the category of disturbance of "public order" then it becomes essential to treat such a criminal and deal with him differently than an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order, disturbing the even tempo of life of the community of the specified locality."

16. In the said case, after adverting to the criminal activities of the detenue-

petitioner therein, the Supreme Court expounded that casual and isolated

incidents can hardly have any implications which may affect the even tempo

of life or jeopardize the public order. Ms. Chadha laid special emphasis on the

observations of the Supreme Court in paragraph 11 which read as under:

"11. This brings us to the criminal activities of the detenu-petitioner which are said to have taken place on 10-8-1994 at 4.00 p.m. and on 12- 8-1994 at 7.00 p.m. In the incident dated 10-8-1994 the petitioner is alleged to have purchased goods worth Rs 500 from a businessman and

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on the demand of the price of the goods, the petitioner is alleged to have dragged him out on the public road and not only gave a beating to him but also aimed his revolver towards the people gathered over there. Similarly it is alleged that on 12-8-1994 at about 7.00 p.m. the detenu- petitioner stopped the witness on the road near the eastern side of Sardar Garden and beat him as the petitioner doubted that he was informing the police about the anti-social activities of the petitioner and his associates. The petitioner is also alleged to have rushed towards the people gathered there with the revolver. Taking the aforesaid two incidents and the allegations on their face value as they are, it is difficult to comprehend that they were the incidents involving public order. They were incidents directed against single individuals having no adverse effects prejudicial to the maintenance of public order, disturbing the even tempo of life or the peace and tranquility of the locality. Such casual and isolated incidents can hardly have any implications which may affect the even tempo of life or jeopardize the public order and incite people to make further breaches of the law and order which may result in subversion of the public order. As said earlier the act by itself is not determinant of its own gravity but it is the potentiality of the act which matters."

(emphasis supplied)

17. Banking upon the aforesaid observations, it was urged by Ms. Chadha

that in the instant case the acts attributed to the detenue are of much lesser

gravity and, thus, the impugned order is wholly unsustainable.

18. In the backdrop of aforesaid submissions, we revert to the

consideration of the material on record qua the detenue. The detaining

authority has noted that in the past since 27.04.2017, as many 13 crimes were

registered against the detenue. The detaining authority, however, based its

order on the crimes registered at C.R. Nos. 915 of 2020 on 07.12.2020 and 922

of 2020 on 22.12.2020. In both these offences registered against the detenue,

the allegations are that the detenue committed robbery in running trains. The

moment the trains left the Thane station, after halt, the detenue allegedly

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robbed unknown and unsuspecting passengers of their mobile phones. In

addition, the detaining authority considered the confidential statements of

two witnesses. The first incident deposed to by witness 'A' indicates that in

the first week of December, 2020, the detenue, in the precincts of Thane

Railway Station, attempted to extort money from the said witness for

arranging a party. When the witness remonstrated, the detenue whipped out

a knife and threatened the witness on the point of knife. Upon alarm being

raised by the witness, people gathered. However, on account of terror created

by the detenue and his associates, nobody came to his rescue. The detenue

robbed him of a sum of Rs.600/- amidst threat to amputate his arms and legs

if he reported the matter to police.

19. The narration of facts in the statement of witness 'B' proceeds on

identical lines. The detenue allegedly demanded the said witness to collect

Rs.500/- from each of the coolies working at Thane Railway Station. When

the witness expressed his inability, the detenue slapped him and exhorted his

associates to beat the said witness. When he raised alarm, people gathered

thereat. The detenue took out a knife and threatened the persons to mind

their businesses lest they would also face the same fate like the witness. The

detenue extorted a sum of Rs.400/- from the witness amidst threat that if the

matter was reported to the police, his life would not be spared.

20. We have perused original statements of the witnesses. There is a

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proper verification of the truthfulness and correctness of the facts narrated

therein. The competent authority, namely the Assistant Police Commissioner,

Kalyan Railway Division, has himself verified the truthfulness from the

witnesses in person and also visited places where the alleged incident had

occurred and satisfied himself about the correctness thereof.

21. The situation which thus obtains is that the material on record

indicates that the detenue had been habitually indulging in offences

punishable under Chapter XVI and XVII of the Penal Code. As many as 15

offences were registered against the detenue in a span of about three years

preceding the order of detention. In two of the cases, arising out of C. R. No.

1478/19 of Kurla Railway Station and C. R. No. 751/20 of Thane Railway

Police Station, the detenue was convicted for the offence punishable under

Section 392 of the Penal Code. In the totality of the circumstances, the

satisfaction recorded by the detaining authority that the detenue was a

dangerous person does not seem to be vitiated.

22. The submission of Ms. Chadha that the detenue has indulged in

offences of theft and robbery only and, thus, the activities of the detenue could

not have been termed to be prejudicial to the maintenance of public order,

looses sight of the fact that the robbery armed with a dangerous weapon in a

public transport has the propensity to cause a sense of insecurity in the

ordinary commuters. Theft per se is essentially a law and order issue.

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However, the robbery armed with deadly weapons at public places like

railway station and in the running trains stands on a different footing on

account of its reach and impact upon the general public. It has the potential

to disturb the even tempo of life of ordinary citizens. To add to this, the

activity of extortion, on the point of deadly weapons, attributed to the

detenue, at the railway station, squarely fall within the mischief of an activity

prejudicial to the maintenance of public order.

23. In the instant case, had those acts been isolated incidents, different

considerations could have come into play. What, however, emerges from

record, is a pursuit of criminality of a particular type associated with elements

of system, continuity and repetition. This factor coupled with the potentiality

of the activities brings them within the tentacles of "prejudicial to

maintenance of public order".

24. For the foregoing reasons, we are not persuaded to accede to the

submission on behalf of the petitioner that the activities of the detenue, at

best, represented a law and order problem and could have been dealt with

under ordinary penal laws. We are of the view that the detaining authority

was justified in invoking the provisions contained in Section 3 of the MPDA

Act and the subjective satisfaction arrived at by the detaining authority is

sustainable.

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25. Hence, the petition deserves to be dismissed. Thus, the following order:

ORDER

(i) The petition stands dismissed.

(ii) Rule discharged.

       (N. J. Jamadar, J.)                          (S. S. Shinde, J.)




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