1 wp.1969.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1969 OF 2010 Shri.Rajendra Daulat Desai, Aged 39 years, R/o.33/40, B.D.D. Chawl, ...Petitioner G.M.Bhosle Marg, Worli-18. (Brother of Detenue) Versus 1.The State of Maharashtra, (Through the Secretary, Home Department (Special), Mantralaya, Mumbai – 32. 2.Commissioner of Police for Greater Mumbai. 3.Superintendent of Prison, Nashik Road, Central Prison, Nashik. ...Respondents ...... Mr.Sanjeev P.Kadam with Mr.Jagdish Chaudhary, Mr.P.H.Gaikwad and Mr.A.P.Bagwe for the Petitioner. Mr.J.P.Yagnik, A.P.P. for Respondents. ...... CORAM:- A.M.KHANWILKAR AND P.D.KODE, JJ. DATED:- OCTOBER 21, 2010. JUDGMENT : (Per A.M.Khanwilkar, J.): 1. This Writ Petition under Article 226 of the Constitution of India 2 wp.1969.10.sxw challenges the order of detention dated 15th March 2010 issued by the Commissioner of Police, Brihan Mumbai bearing No.D.O.No. 2/PCB/DP/Zone-III/2010 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 (hereinafter referred to as `the Act of 1981'). As a consequence of the said detention order, the Petitioner's brother came to be detained on 15th March, 2010 and he is in jail since then. The present Petition has been filed on 2nd July, 2010. The detention order has been passed against the Petitioner's brother Surendra @ Surya Daulat Desai essentially keeping in mind his past tendencies and inclinations to continue with criminal activities prejudicial to the maintenance of public order in future. The Detaining Authority has referred to recent offence committed by the detenue on 26th October, 2009 which has been registered for offences under Sections 326 r/w 34 of the Indian Penal Code r/w Section 37(a) of the Mumbai Police Act r/w Sections 3 and 25 of the Indian Arms Act at Worli Police Station vide C.R. No. 333/2009. In addition, reliance is placed on two in-camera statements of witnesses A and B, who have spoken about the activities of the detenue during the relevant period which had the potentiality of affecting public 3 wp.1969.10.sxw order. It is on this premiss the Sponsoring Authority submitted proposal for issuance of preventive detention order which proposal was duly considered along with other relevant materials placed before the Detaining Authority. The Detaining Authority after recording his subjective satisfaction directed issuance of detention order to prevent the detenue from reviving his criminal activities as in the past. After recording that satisfaction, the Detaining Authority issued order dated 15th March, 2010 which reads thus : “Office of the Commissioner of Police, Brihan Mumbai. 15 MAR 2010 – O R D E R - D.O.NO. 2 /PCB/DP/Zone-III/2010 Whereas the Commissioner of Police, Brihan Mumbai, is satisfied with respect to the person known as Shri Surendra @ Surya Daulat Desai, aged 37 years, R/o. B.D.D. Chawl No.33, Room No.40, G.M. Bhosle Marg, Worli, Mumbai-400 018, that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order directing him to be detained under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (Mah. Act No. LV of 1981) (Amendment-1996) (Amendment-2009). Now, therefore, in exercise of the powers conferred by sub- section (2) of Section 3 of the said Act, read with Government order, Home Department (Special) No.DDS-1209/CR-334/SPL-3(B), dated 01/01/2010, the Commissioner of Police, Brihan Mumbai, hereby directs 4 wp.1969.10.sxw that the said Shri Surendra @ Surya Daulat Desai, aged 37 years, be detained under the said Act. (D. Sivanandhan) Commissioner of Police, Brihan Mumbai. To, The Sr. Inspector of Police, Worli Police Station for execution of Detention Order and to submit compliance report. Enclosures :- 1. 3 copies of Detention Order. 2. 3 copies of Committal Order. 3. Accompaniment sets.” 2. The report in respect of issuance of detention order was submitted to the Government on 17th March, 2010. The Government in turn after considering the proposal and the material forwarded to it, granted its approval on 20th March 2010. Simultaneously, reference was made to Advisory Board on 20th March 2010. The Advisory Board on 9th April 2010 gave its opinion which report was received in the Department on 12th April 2010. On the basis of the said opinion, the Government issued confirmation of the order of detention on 15th April 2010 which reads thus: “ORDER Home Department (Special), Mantralaya, Mumbai 400032, Dated the:- 15th April, 2010. 5 wp.1969.10.sxw Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug, Offenders, Dangerous Persons And Video Pirates Act, 1981. No.DDS.1210/35/SPL-3(B):- Whereas, the Commissioner of Police, Brihan Mumbai, in exercise of powers conferred by sub-section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (hereinafter referred to as ‘the said Act’), issued an order on dated 15th March, 2010, directing that Shri. Surendra @ Surya Daulat Desai, R/o. B.D.D. Chawl No.33, Room No.40, G.M. Bhosle Marg, Worli, Mumbai – 400 018 be detained under the said Act; And whereas, the Advisory Board appointed under the said Act, has opined that there is sufficient cause for detention of the said detenue. And whereas, the State Government after considering the opinion/report of the Advisory Board has decided that it is necessary to confirm the detention order and continue the detention of the said detenue. Now, therefore, in exercise of the powers conferred by sub-section (1) of section 12 of the said Act, the State of Maharashtra hereby confirms the detention order issued by the Commissioner of Police and directs that the detention of the said Shri. Surendra @ Surya Daulat Desai, be continued for a period of one year from the date of his detention. By order and in the name of the Governor of Maharashtra. Under Secretary to the Government of Maharashtra Home Department (Special). 3. As aforesaid, the present Petition came to be filed on 2nd July 2010. The Respondents after issuance of notice, have filed reply affidavit of the concerned authorities controverting the plea taken by the Petitioner. We shall advert to the details thereof at the appropriate stage. During the course of hearing, essentially five points have been raised before us. The grounds 6 wp.1969.10.sxw for assailing the order of detention and in particular, continued detention of the detenue are that: Firstly, the Marathi version of the grounds of detention served on the detenue contained error in translation of the word "detained" as appearing in the English version of grounds of detention. Instead, it is mentioned as Tadipaar (externed). The second ground is that the Detaining Authority has taken into account only one criminal incident being CR No.333/2009. That was not sufficient to attract public order situation. Besides, two in-camera statements were also of no consequence to satisfy the test of public order situation. The third contention is that the order of acquittal passed by criminal Courts in about seven criminal cases against the detenue were not made part of the compilation which was placed before the Detaining Authority. Thus, the order of detention passed by the Detaining Authority suffers from non application of mind. The fourth ground is that the order of detention does not specify the duration for which the detenue was to be detained. For that reason, the detention order itself was vitiated. It is lastly contended that the order of detention could have been issued by the Detaining Authority for a period of six months and continuation thereof could be done only after following the same procedure as provided in 7 wp.1969.10.sxw Section 3 of the Act. In absence thereof, the continued detention of the detenue after lapse of six months is illegal. These are the five grounds agitated before us. 4. Reverting to the first ground regarding incorrect translation of grounds of detention (Marathi version), indeed, in Paragraph 4 of the grounds of detention, the expression used while giving description of the proceedings is Tadipaar which means externment. However, in the English version of grounds of detention, it is stated that the detenue was detained in connection with the stated proceedings. The grievance in the Petition in connection with this is found in Ground 4(III) of the Writ Petition. The same reads thus: “III. That, the grounds of detention supplied to the detenu in English mention in para 4 that the detenu was previously detained under M.P.D.A. On three occasions. However the same ground in Marathi document supplied with a view to the detenu to understand the same in his Language mentions that there were tree orders of externment. Hence the impugned order of detention suffers from non-application of mind by the detaining authority. Hence the detention order is liable to be quashed and set aside. Infact Externment (तडीपार) and detention (सथानबद् ध) are two different actions under the Law.” 5. Considering the ground agitated by the Petitioner, the grievance is one of non-application of mind by the Detaining Authority and not of 8 wp.1969.10.sxw affecting right of making representation of the detenue as such. There is marked distinction between the two. If the ground were to be one of deprivation of right to make representation, the question would be whether the detenue has been misled because of the incorrect translation in the grounds of Marathi version? Besides, it would have been necessary to inquire into whether the Petitioner is conversant with English version. However, that is not the grievance with which we are called upon to deal with. The grievance is about non-application of mind of the Detaining Authority. In the reply affidavit filed before this Court, however, unfortunately, this aspect has not been specifically dealt with by the Detaining Authority. For that reason, we called upon the learned A.P.P. to produce the original record so as to find out whether the original proposal which culminated in passing of order of detention was in Marathi or in English. From the original record, it is noticed that the proposal initiated by the Sponsoring Authority was in English. The draft of grounds of detention considered by the Officers at different levels is also in English. The English version of the draft grounds of detention was placed before the Detaining Authority who proceeded to pass the detention order against the detenue. In other words, the Detaining Authority did not consider the Marathi version of grounds of detention which is furnished to the detenue. If so, the 9 wp.1969.10.sxw argument regarding non-application of mind by the Detaining Authority on account of some clerical error occurring in the Marathi version does not take the matter any further. Accordingly, this grievance of the Petitioner will have to be rejected. 6. The Petitioner, however, placed reliance on the decision of Division Bench of our High Court in the case of Smt.Bilkisbanu Abdul Gafar Shaikh vs. Shri M.N.Singh & Ors. reported in 2001 All MR (Cri.) 822. In that case, however, the detenue knew only Hindi. The order and grounds of detention which were served on him in Hindi mentioned the expression `public order’, as `law and order’. This discrepancy is stated to have affected the right of detenue to make effective representation under Article 22(5) of the Constitution. This Judgment, therefore, will be of no avail to consider the question that has been raised by the Petitioner before us. In that, we have been called upon to examine whether the opinion of the Detaining Authority suffers from non-application of mind on account of incorrect translation of the expression “detained” where, the same expression is translated as “tadipaar” (externed) in Marathi Version. 7. That takes us to the second ground raised before us. According to the 10 wp.1969.10.sxw Petitioner, the sole basis for passing of detention order as noted by the Detaining Authority seems to be the criminal case being CR No.333/2009 registered with Worli Police Station on 26th October 2009. It is submitted that the FIR of the said case itself would reveal that it is offence against an individual and the incident did not create situation of public order as such. For that, our attention was invited to the contents of the FIR and statement of the complainant Nilesh Prakash Bhosale recorded by the Police. Whereas, what we have noticed from the grounds of detention is that incident has been elaborately adverted to, including the material collected during the investigation of the said case. Besides the said case, however, the Detaining Authority has also relied upon the in-camera statements of two witnesses recorded during the confidential inquiries. The said statements would indicate that the detenue was indulging in activities in the locality which created terror in the minds of the people in the locality. He was engaged in extortion of money (hafta) from the local people, shopkeepers, hawkers from B.D.D. chawl area and adjoining area on the point of dangerous weapon. The witnesses were afraid of giving evidence against the detenue or to speak against him in public. Considering this material and the past activities of the detenue, the Detaining Authority was satisfied that it was imperative to invoke preventive detention order against the detenue 11 wp.1969.10.sxw as he had spread reign of terror at large in the localities of Worli, B.D.D. Chawl and adjoining area thereto. That was necessary to prevent the activities of the detenue which were prejudicial to the maintenance of the public order in the said localities in the Brihan Mumbai. That subjective satisfaction has been recorded by the Detaining Authority, which can be discerned also from the grounds of detention. It is not as if the preventive detention action has been resorted to against the detenue on the basis of solitary criminal case registered against him. Record indicates that in the past, twelve other criminal cases were registered against him. Indeed, some of the criminal cases ended in acquittal after trial. The record indicates that since 1993 onwards, the detenue was involved in criminal cases of serious nature, which is evident from the chart at Page 41 of the paper-book. The Detaining Authority in the grounds of detention as well as in the reply affidavit filed before us has made it amply clear that although the detenue was found to be engaged in criminal cases in the past, those cases were not the basis for proceeding to issue detention order against the detenue. But the last criminal case registered with the Worli Police Station was considered to be material along with the two in-camera statements recorded during the confidential inquiry. The question is: whether the said material can be said to be sufficient to take the view that it would not be a case of 12 wp.1969.10.sxw public order situation as such? It is well established position that sufficiency or adequacy of material with regard to the subjective satisfaction recorded by the Authority cannot be gone into. That is not the scope of judicial review. Indeed, it is open to the Court to test whether the cases and material referred to by itself discloses public order situation or otherwise. This limited judicial scrutiny is permissible. What would constitute public order is no more res integra. The Apex Court in the case of Harpreet Kaur (Mrs) Harvinder Singh Bedi vs. State of Maharashtra & Anr. reported in (1992) 2 SCC 177 while dealing with the detention order issued under the provisions of the same Act of 1981 had occasion to restate the same. In Paragraph 18, after referring to the earlier reported decisions, the Court observed thus: “18. From the law laid by this Court, as noticed above, it follows that it is the degree and extent of the reach of the objectionable activity upon the society which is vital for considering the question whether a man has committed only a breach of 'law and order' or has acted in a manner likely to cause disturbance to 'public order'. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of 'public order'. Whenever an order of detention is questioned, the courts apply these tests to find out whether the objectionable activities upon which the order of detention is grounded fall under the classification of being prejudicial to 'public order' or belong to the category of being prejudicial only to ' law and order'. An order of detention under the Act would be valid if the activities of a detenu affect 'public order' but would not be so where the same affect only the maintenance of 'law and order'. Facts of each case have, therefore, to be carefully scrutinised to test the validity of an order of detention.” (emphasis supplied) 13 wp.1969.10.sxw Again in Paragraphs 24 and 25, the Court observed thus: “24. Crime is a revolt against the whole society and an attack on the civilization of the day. Order is the basic need of any organised civilized society and any attempt to disturb that order affects the society and the community. The distinction between breach of 'law and order' and disturbance of 'public order' is one of degree and the extent of reach of the activity in question upon the society. In their essential quality, the activities which affects 'law and order' and those which disturb 'public order' may not be different but in their potentiality and effect upon even tempo of the society and public tranquillity there is a vast difference. In each case, therefore, the courts have to see the length, magnitude and intensity of the questionable activities of a person to find out whether his activities are prejudicial to maintenance of 'public order' or only 'law and order'. 25. There is no gain saying that in the present state of law, a criminal can be punished only when the prosecution is able to lead evidence and prove the case against an accused person beyond a reasonable doubt. Where the prosecution is unable to lead evidence to prove its case, the case fails, though that failure does not imply that no crime had been committed. Where the prosecution case fails, because witnesses are reluctant on account of fear of retaliation to come forward to depose against an accused, obviously, the crime would go unpunished and the criminal would be encouraged. In the ultimate analysis, it is the society which suffers. Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it. The objectionable activities of a detenu have, therefore, to be judged in the totality of the circumstances to find out whether those activities have any prejudicial affect on the society as a whole or not. If the society, and not only an individual, suffers on account of the questionable activities of a person, then those activities are prejudicial to the maintenance of 'public order' and are not merely prejudicial to the maintenance of 'law and order'.” (emphasis supplied) 8. In the present case, looking at the criminal case registered against the detenue and the contents of the two in-camera statements, we are in agreement with the argument of the Respondents that the subjective satisfaction recorded by the Detaining Authority that the situation 14 wp.1969.10.sxw mentioned therein would clearly indicate disturbance of public order. The contents of the in-camera statements do indicate that there is potentiality and effect upon even tempo of the society and public tranquility. The Apex Court in the above said decision has dealt with that aspect in Paragraph 25 reproduced hitherto. In later decision of the Apex Court in the case of Hasan Khan Ibne Haider Khan vs. R.H.Mendnoca reported in AIR 2000 SC 1146 while dealing with the same enactment, the Court with reference to the ground of detention in that case opined that the detenue indulged in extortion of money from businessmen and also gave threats to the people at the public places. That necessarily resulted in disturbing the even tempo of life of the society. The Court went on to observe that such activities cannot be said to be mere disturbance of law and order. Moreover, this authority is also relevant in the context of the plea considered and rejected by the Apex Court that since reference was made to the conviction of the detenue under MRTP Act that could not have been ground for detention of the detenue. The Court rejected that contention on the finding that reference to the conviction of the detenue under MRTP Act was mainly mentioned to indicate the past criminal history of the detenue. Even in the present case, the detenue has been found to be indulging in criminal activities since 1993. The fact that he has been acquitted in some of the 15 wp.1969.10.sxw criminal cases registered against him does not militate against the subjective satisfaction of the Detaining Authority that it was imperative to invoke preventive action against the detenue to curb his continuous criminal activities in future. 9. The Counsel for the Petitioner, however, placed reliance on the decision of the Division Bench of our High Court in the case of Mrs.Zabin Salim Hamja Shaikh vs. Shhri.A.N.Roy & Ors. reported in 2006 All MR (Cri.) 3324. In that case, the Detaining Authority issued order of detention as there was one criminal case registered against the detenue and in-camera statements of persons/witnesses also mentioned about the involvement of the detenue in commission of activities having potentiality of disturbing the public order. Notably, in that case, the Court went on to first discard the in-camera statements and only after recording that finding proceeded to hold that what was left for consideration of the Detaining Authority was the solitary criminal case registered against the detenue under Sections 326 and 114 of Indian Penal Code which by itself would not be sufficient to form opinion that incident would have resulted in disturbance of public order. In the present case, we are not called upon to examine the grievance about the truthfulness of the incidents referred to by 16 wp.1969.10.sxw the witnesses, whose statements have been recorded in-camera. In that case, the two in-camera statements were discarded as it was noticed that the Divisional Assistant Commissioner had failed to verify the truthfulness of the incidents as stated in both the in-camera statements. That is not the grievance in the present Petition. In other words, the truthfulness of the incidents stated by the two witnesses whose statements have been recorded in-camera is not assailed at all, nor any grievance is made that the Divisional Assistant Commissioner failed to verify the truthfulness of the incidents referred to therein. The argument in the present case, however, proceeds on the basis that the detention order is founded only on solitary criminal case registered against the detenue being C.R.No.333/2009 with Worli Police Station, which material was not sufficient to take the view that it would have resulted in disturbing public order situation. That argument will have to be stated to be rejected as the other material which has weighed with the Detaining Authority will also have to be kept in mind namely the two in-camera statements of the witnesses whose truthfulness and genuineness is not in dispute before us. 10. In our opinion, therefore, the material which has been adverted to by the Detaining Authority which formed the 17 wp.1969.10.sxw basis of arriving at the subjective satisfaction that the activities of the detenue would disturb the public order or that to prevent him from acting in any manner prejudicial to the maintenance of public order, is unexceptionable. 11. Counsel for the Petitioner was at pains to persuade us that the Detaining Authority not only took into account the criminal case registered against the detenue with the Worli Police Station being CR No.333/2009 but also other cases and circumstances referred to in Paragraph 4 of the order which is evident from the observation made in Paragraphs 5, 6 and 7 of the grounds of detention. In that, in Paragraph 5 of the grounds of detention, it is noted that “in recent past, shows your tendencies and inclinations to continue with your criminal activities prejudicial