1 cri-w.p.1265-10 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1265 OF 2010 Yunus Hamid Khan @ Yunus Ahmed Sai ..Petitioner Vs. The State of Maharashtra ..Respondent Mrs. Indrayani Koparkar, for the petitioner. Mr. J.P. Yagnik, APP for State. CORAM: B. H. MARLAPALLE & ANOOP V. MOHTA, JJ. DATED: 11TH AUGUST, 2010. P.C. This petition is filed for seeking a writ of habeas corpus under Article 226 of the Constitution. The detention order dated 10th September, 2009 passed under Section 3(2)of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (for short the M.P.T.A. Act) by the Commissioner of Police Brihan Mumbai against the petitioner is under challenge. The said order was served on the detenu on 19th 2 cri-w.p.1265-10 September, 2009. It was placed before the Advisory Board for approval and it was so approved on 3rd November, 2009. The period of detention of one year would expire on 18th September, 2010. 2. The detention order along with the statement of reasons and the documents stated therein were served on the detenu. In the statement of reasons it is pointed out that prior to the detention order, in all 8 cases were registered against him at the Bandra Police Station from the year 2004 to 2009. It has also been pointed out that the externment proceedings were initiated against him and by an order dated 5th August, 2008 he was externed under Section 57(a-1) of the Bombay Police Act, 1951. The said period of externment of 2 years was subsequently reduced. 3. The detention order is based on C.R. No.126 of 2009 registered against the detenu and two others in respect of the incident that had taken place on 10th April, 2009 and for the offence punishable under Sections 394 and 397 read with Section 34 of the I.P.C. On completion of the investigation, the charge sheet was also filed. He was arrested in the combing operation on 13th April, 2009 in C.R. No.126 of 2009 and at the same time it was noticed that he had acted in contravention of the order of externment passed on 5th August, 2008. He was remanded to judicial custody till 27th April, 2009 and on 20th April, 2009 a charge sheet was filed in C.C. 3 cri-w.p.1265-10 No.959/PW/09. He was released on P.R. Bond of Rs.4,000/- on 20th April, 2009, but he continued to remain in custody in C.R. No.126 of 2009 even when the detention order was served on 19th October, 2009. It appears that he has not applied for bail and, therefore, he has been in custody. 4. The reasons for detention are also based on two in-camera statements i.e. Witness “A” and Witness “B”. The statement of witness “A” was recorded on 24th July, 2009 whereas the statement of witness “B” was recorded on 25th July, 2009. As per witness “A” in the second week of March, 2009, at about 22.15 hours when he was in his house the detenu and his associates Bashir Mohamed Saudagar Usman Gani and Asif Kamar Ali Khan went to the house of the witness and called him out and demanded Rs.10,000/- under threats and criminal intimidation. When he declared his inability he was threatened and he was told if he wanted to save his life he had to pay Rs.10,000/-. The witness could collect Rs.1000/- from his house and handed over the same to the detenu, but he was called upon to pay the remaining amount. On the next day at about 10.45 a.m. the detenu and his two associates went to the witness’s house and demanded the balance amount. His associate Bashir Mohamed Saudagar took out a knife from his pant’s pocket and threatened to assault the witness with it. Seeing this, the witness folded both his hands and pleaded for mercy. Seeing this, the detenu caught the witness’s hair 4 cri-w.p.1265-10 tightly and rained him with fist blow and kicks. Seeing the fracas, people from the locality crowded around. The detenu and his associate Asif Kamar Alia Khan picked up a bamboo from the street and brandished the same at the public and ran after the persons collected there and seeing this the people got scared and ran helter-shelter. Witness “B” as per his statement also experienced similar extortion in the last week of March, 2009 at about 20.00 hours when he was constructing a hut and doing plumbing work in the vicinity of Lalmati he was called upon to pay Rs. 10,000/- by way of extortion and somehow he could collect only Rs.4,000/- . The detenu grabbed that amount and demanded for the balance. When the witness could not pay he was kicked on his legs and he fell down. Seeing this the passers by collected there and the detenu and his associate Bashir Mohamed Saudagar Usman Gani brandishing the chopper which he had in his possession and threatened the crowd to run away. 5. We have seen the file produced before us and perused the statement of witness “A” and Witness “B”. The statements were recorded by the Police Sub Inspector and both the statements have been verified by the Assistant Commissioner of Police within a period of 4 days. Both the witnesses were 5 cri-w.p.1265-10 present before the Assistant Commissioner of Police. 6. So far as C.R. No.126 of 2009 is concerned, we are informed by Mrs. Koparkar, the learned Counsel for the petitioner that subsequently a Criminal case arising from the same has resulted in acquittal on 3rd October, 2010 by the learned Additional Sessions Judge, Fast Track Court. However, this acquittal has no bearing on the order of detention in the instant case. 7. Section 2(b-1) of the M.P.D.A. Act defines “dangerous person” and it means a person who either by himself or as a member or leader of a gang habitually commits or attempts to commit or abates the commission of any of the offences punishable under Chapter XVI or XVII of the I.P.C., or any of the offences punishable under Chapter VI of the Arms Act, 1959. As per Section 3(2) of the said Act, if, having regard to the circumstances prevailing in any area within the local limits of the Commissioner of Police, Mumbai if he is satisfied that it is necessary to detain a person, the Commissioner of Police may direct the person to be detained. The detention order impugned states that the detenu is a violent type of dangerous criminal having taken to the life of a criminal for the sake of easy money and to show his upper hand in the localities of Lal Mathi, K.C. Marg, Bandra Reclamation, Shastri Nagar, Darga Lane, Bada Masjid, Hill Road, Bandra 6 cri-w.p.1265-10 West and area adjoining thereto within the jurisdiction of the Bandra Police Station in Brihan Mumbai. He has become a perpetual danger to the life and properties of people residing and carrying out their daily vocations in the said areas and he along with his associates is moving about in the said areas armed with revolver, knife, chopper and committing the offences of assault, robbery, extortion and criminal intimidation. He had made himself a virtual terror by his criminal activities which are prejudicial to the maintenance of public order in the localities concerned. He was convicted for the offence under Section 379 read with Section 34 I.P.C. by the learned Additional Chief Metropolitan Magistrate, Bandra on 13th September, 2009 and sentenced to suffer R.I. for six months. He was also convicted for similar offences arising from C.R. No.75 of 2007 by the very same Court and sentenced to suffer R.I. from the date of arrest till the date of conviction. He was convicted under Section 124 of the Bombay Police Act and sentenced to suffer R.I. for 5 months. He was also sentenced to suffer R.I. for six months in the criminal case arising from C.R. No.22 of 2007 for the offence punishable under Section 379 read with Section 34 of I.P.C. We have noted earlier that when the impugned order of detention was served on him he was under arrest. It is clear from the order of the Detaining Authority that the Detaining Authority was aware of this. In para.7 of the reasoned detention order it has been stated that the Detaining Authority had gone through the material placed before him and he 7 cri-w.p.1265-10 was subjectively satisfied that the detenu was acting in a manner prejudicial to the maintenance of public order. The Detaining Authority was also aware that the detenu was not granted bail in connection with C.R. No.126 of 2009 but as and when he would apply for bail he may be released as the offences charged were not punishable with sentence of death or life imprisonment. The detenu had not applied for bail and as such his application is not rejected. For the offence punishable under Section 397 of the I.P.C. and for which the detenu was charged in the past, the sentence has not been in excess of six months R.I., and, therefore, it cannot be said that the conclusion arrived at by the Detaining Authority about the immediate possibility of the detenu being released on bail was erroneous or was not supported from the material on record. 8. We are, therefore, satisfied that the detention order is not vitiated on any count and no fault could be found with the same. The Detaining Authority was justified, having regard to the record of the detenu in invoking Section 3(2) of the M.P.T.A. Act so as to pass the impugned detention order. 9. Hence this petition must fail and the same is hereby dismissed. (ANOOP V. MOHTA,J.) (B. H. MARLAPALLE, J.)