- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2427 OF 2004 Mrs.Chetna Chandrakant Todankar, ) Age 34 years, R/o.Room No.245, ) Janata Colony, Worli-Koliwada, ) Mumbai - 400 030. )..Petitioner Vs. 1. Shri A.N.Roy, ) Commissioner of Police, ) Bombay. ) 2. The State of Maharashtra, ) 3. The Superintendent, ) Nasik Road Central Prison, ) Nasik. )..Respondents -- Shri U.N.Tripathi for the petitioner. Shri D.S.Mhaispurkar for the respondents. -- CORAM : R.M.S.KHANDEPARKAR & P.V.KAKADE, JJ. DATED : 7th March, 2005. ORAL JUDGMENT : ( Per R.M.S.Khandeparkar, J ) ORAL JUDGMENT : ( Per R.M.S.Khandeparkar, J ) ORAL JUDGMENT : ( Per R.M.S.Khandeparkar, J ) 1. Heard. Perused the records. The petitioner challenges the order of detention passed under the Maharashtra Prevention of Dangerous Activities of - 2 - Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981, hereinafter referred to as "MPDA Act", dated 19th August, 2004 against the husband of the petitioner, viz. Chandrakant Prabhakar Todankar, on four grounds. 2. The materials on record disclose that the C.R.No.136 of 2004 came to be registered against the detenu at Dadar Police Station on 22nd June, 2004 under Sections 387, 323, 506(ii) read with 34 of Indian Penal Code, read with Sections 3 and 25 of Arms Act, pursuant to the complaint lodged by one Shri Ramkrishna Genu More. The detenu applied for anticipatory bail before the Sessions Court on 9th July, 2004 which came to be rejected on 12th July, 2004. The detenu was arrested on 13th July, 2004. He was remanded to the custody from time to time till 23rd July, 2004. He was released on bail on 23rd July, 2004, pursuant to the order passed by the learned Additional Chief Metropolitan Magistrate, 5th Court, Dadar, on execution of the bond in the sum of Rs.7,000/- with one solvent surety in the like amount and on the condition that he should report at Dadar Police Station daily between 7.00 p.m. to 9.00 p.m. until further order. The bail facility was availed by the detenu from 26th July, 2004. Meanwhile, in-camera - 3 - statement of the Witness "A" came to be recorded on 25th June, 2004, and another in-camera statement of the Witness "B" came to be recorded on 28th June, 2004. The sponsoring authority proposed detention under the provisions of MPDA Act against the detenu on 23rd July, 2004, and ultimately the order of detention came to be passed on 19th August, 2004. The same was served upon the detenu on 20th August, 2004. 3. The first ground of challenge to the impugned order of detention is that the subjective satisfaction of the detaining authority for the purpose of issuance of order of detention against the detenu is being vitiated since the detaining authority failed to take into consideration the fact that the detenu though was released on bail, the same was subject to his daily attendants at Dadar Police Station between 7.00 p.m. to 9.00 p.m., and there was no complaint of any violation of the terms of the bail order nor the records disclose any attempt on the part of the investigating agency to seek cancellation of the bail, and that therefore, there was no case for clamping detention order against the detenu and in that regard, the detaining authority even failed to take note of the settled law that the detention is not substitute for punishment. Reliance is placed in the decision of - 4 - the Apex Court in the matter of Ramesh Yadav v. Ramesh Yadav v. Ramesh Yadav v. District Magistrate, Etah & Ors., District Magistrate, Etah & Ors., District Magistrate, Etah & Ors., reported in AIR 1986 SC 315. The contention of the petitioner in that regard is sought to be countered on behalf of the respondents while drawing attention to the affidavit-in-reply by the detaining authority wherein it has been stated that imposing condition of daily reporting at the police station did not sufficiently prevent the detenu from acting in any manner prejudicial to the maintenance of the public order, and taking into consideration the overall materials placed before the detaining authority including the order regarding grant of conditional bail and in-camera statements of the witnesses, the detaining authority was subjectively satisfied that the order of detention was the only remedy to curb prejudicial activities of the detenu. 4. The Apex Court in Ramesh Yadav’s case (supra) Ramesh Yadav’s case (supra) Ramesh Yadav’s case (supra), and particularly in the paragraph 6 thereof to which the attention was drawn had observed that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was to be released on bail, he would have again carried out his criminal activities in the area. Considering the same, the Apex Court had held that "if the - 5 - apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail, an order of detention under the National Security Act should not ordinarily be passed." That was a case wherein the detenu was already in the jail as an undertrial prisoner in connection with certain pending criminal cases. Besides, Allahabad High Court had already quashed the earlier order of detention dated 7th December, 1981 by its order dated 27th May, 1982 in Writ Petition No.2649 of 1982. The order challenged before the Apex Court was dated 16th September, 1984. It is to be noted that the ruling of the Apex Court was in the peculiar facts of that case wherein the grounds of detention mentioned that "At this time you were detained in the District Jail, Mainpuri and you have filed an application for bail in the Court of law which is fixed for hearing on September 17, 1984, and there is positive apprehension that after having bail you will come out of the jail and I am convinced that after being released on bail you will indulge in activities prejudicial to the maintenance of public order." Obviously, the order of detention was passed - 6 - one day prior to the hearing of the detenu’s application for bail which was fixed on 17th September, 1984. In the background of those facts, the observations regarding need for opposing bail application were made in the said decision. Those observations having been made in the peculiar set of facts, the same cannot be applied to the case in hand where the facts are totally different in nature. It is well settled law, as laid down by the Apex Court in Union of India & Ors. v. Dhanwanti Devi & Ors., Union of India & Ors. v. Dhanwanti Devi & Ors., Union of India & Ors. v. Dhanwanti Devi & Ors., reported in (1996)6 SCC 44, as also in Smt.Kesar Devi Smt.Kesar Devi Smt.Kesar Devi v, Union of India & Ors., v, Union of India & Ors., v, Union of India & Ors., reported in AIR 2003 SC 4195 that the ratio of a judgment is to be understood by considering the fact of the case, points raised and adjudicated therein and the ruling delivered on such points. In fact, in Kesar Devi’s case (supra), Kesar Devi’s case (supra), Kesar Devi’s case (supra), the Apex Court had clearly ruled that - "the judgment of a Court has not to be interpreted like a Statute where every word, as far as possible, has to be given a literal meaning and no word is to be ignored. The observations made have to be understood in the context of the facts and contentions raised." It is also well settled that every decision is an authority for what it actually decides and not what follows from it. Being so, the decision in Ramesh Yadav’s case (supra) Ramesh Yadav’s case (supra) Ramesh Yadav’s case (supra) is of no help to the petitioner either in relation to - 7 - the first ground of challenge or for that matter even in relation to other grounds of challenge. 5. As regards the contention that on account of conditional bail being granted, there was no occasion for the detenu to indulge in the activities prejudicial to the maintenance of public order and that there was failure on the part of the detaining authority to consider the same, it is to be noted that apart from the grounds of detention, the affidavit-in-reply clearly discloses that the detaining authority did take into consideration the fact that the detenu was released on conditional bail, as well as the fact that the same was not sufficient to prevent him from acting in any manner prejudicial to the maintenance of public order and clamping of detention order was the only remedy. Undoubtedly, the law of detention is to prevent future activities on the part of a person to be detained and it is not to be used as punitive action. Merely because the authorities did not move for cancellation of the bail, that will not amount to vitiate the subjective satisfaction arrived at by the detaining authority against the detenu in each and every case. It is also to be borne in mind that the order relating to the bail is in relation to the offence to which - 8 - investigation is carried out and charge-sheet is filed, whereas the order of detention in question does not relate to only one instance which is referred to in the charge-sheet. Undoubtedly, the order of detention has been issued after taking into consideration the various activities of the detenu disclosed from the investigation as well as the in-camera statements of the witnesses. That apart, the conditional bail merely required the attendance of the detenu at the police station for a period of two hours every day. That apart, criteria for grant of bail and the criteria to be followed to ascertain the need for detention of a person in custody, though in some aspects may be overlapping, are not essentially the same. The preventive detention is necessarily to prevent a person from indulging in an illegal activities in future. Being so, taking into consideration the grounds in support of detention order and the explanation furnished by the detaining authority in the affidavit-in-reply, the first ground of challenge is to be held as being without any substance. 6. The second ground of challenge to the impugned order of detention is that the first ground in support of the detention order as far as it relates to the - 9 - statement of the complainant Ramkrishna Genu More is concerned, is totally vague and does not disclose details of the allegations made against the detenu thereby resulting in great prejudice to the detenu as it adversely affects his right to make effective representation available and assured to him under Article 22(5) of the Constitution of India, and therefore, the order of detention is bad-in-law. Referring to the paragraph 5(a)(i) of the grounds of detention, the learned Advocate for the petitioner has submitted that the ground therein reads that "Shri Ramkrishna Genu More is aware that several criminal cases are registered against you and your associate Pramod @ Popatya Adsul and you were arrested in those cases. You and your associates had extorted money from Shri Ramkrishna Genu More on many occasions." The learned Advocate for the petitioner has submitted that neither the grounds in support of detention order disclose which were those several criminal cases registered against the detenu nor the same disclose on what occasion the detenu had extorted the money from the said Ramkrishna Genu More, nor any materials regarding the said criminal cases were disclosed, and yet the detaining authority has arrived at the subjective satisfaction regarding the need for issuance of detention order against the detenu based - 10 - on such vague ground. 7. According to the learned Advocate for the petitioner, since it is not permissible for the detaining authority to arrive at the subjective satisfaction based on such vague ground and excluding the C.R.No.136 of 2004, there are only two in-camera statements and they being merely corroborative pieces of materials in support of the said C.R., the same cannot be read independently, and in that regard, no assistance can be derived from Section 5A of MPDA Act, and in such cases, no ground can be severable from other grounds. Reliance is placed in the decision in the matter of Vashisht Narain Karwaria v. State of Vashisht Narain Karwaria v. State of Vashisht Narain Karwaria v. State of U.P. & Anr., U.P. & Anr., U.P. & Anr., reported in (1990) 2 SCC 629 as well as of Division Bench of this Court in Mrs.Jainab Sale Mrs.Jainab Sale Mrs.Jainab Sale Mohammed v. M.N.Singh, Commissioner of Police & Ors., Mohammed v. M.N.Singh, Commissioner of Police & Ors., Mohammed v. M.N.Singh, Commissioner of Police & Ors., reported in 2002 ALL MR (Cri) 2305. The said challenge is sought to be countered on behalf of the respondents by contending that the statement in paragraph 5(a)(i) in the grounds in support of the detention order is merely a passing reference to the facts stated therein in order to complete the narration of events in the complaint lodged by the complainant and the detaining authority has not relied upon the said narration for the purpose of arriving at - 11 - the subjective satisfaction regarding need for issuance of the detention order against the detenu. Without prejudice, it is sought to be contended that, assuming that the detaining authority is not able to establish one of the grounds comprised under the grounds in support of the detention order, the order of detention can be justified on remaining grounds by resorting to the provisions of Section 5A of the MPDA Act, and in that regard, reliance is sought to be placed in the decisions in the matter of Prabhakar Prabhakar Prabhakar Menka Shetty v. S.Ramamurthy, Commissioner of Police Menka Shetty v. S.Ramamurthy, Commissioner of Police Menka Shetty v. S.Ramamurthy, Commissioner of Police for Greater Bombay & Ors., for Greater Bombay & Ors., for Greater Bombay & Ors., reported in 1993 Cri.L.J. 1981, of the Apex Court in Attorney General for India Attorney General for India Attorney General for India etc.etc. v. Amratlal Prajivandas & Ors. etc.etc., etc.etc. v. Amratlal Prajivandas & Ors. etc.etc., etc.etc. v. Amratlal Prajivandas & Ors. etc.etc., reported in 1995 Cri.L.J. 426, of Kamarunnissa v. Kamarunnissa v. Kamarunnissa v. Union of India & Anr., Union of India & Anr., Union of India & Anr., reported in 1991 Cri.L.J. 2058, and of Dharamdas Shamlal Agarwal v. The Police Dharamdas Shamlal Agarwal v. The Police Dharamdas Shamlal Agarwal v. The Police Commissioner & Anr., Commissioner & Anr., Commissioner & Anr., reported in AIR 1989 SC 1282. 8. Plain reading of the grounds of detention discloses that the detaining authority, after taking into consideration all the facts recorded in paragraph 5 of the grounds in support of the detention order, has arrived at the subjective satisfaction about the detenu being a dangerous person within the meaning of the said expression under MPDA Act and the need for - 12 - issuance of detention order against him. Undisputedly, the fact relating to the statement by Ramkrishna Genu More alleging the involvement of the detenu in criminal cases as well as extortion of money from the said Ramkrishna More by the detenu have been narrated in the said paragraph 5 of the grounds in support of the detention order. In the circumstances, the contention which is now sought to be raised in the affidavit-in-reply that it is merely a passing reference to complete the narration of events is to be rejected as being totally devoid of substance. Reading of the grounds of detention apparently discloses that the detaining authority has taken into consideration even the allegations made by Shri Ramkrishna More regarding the criminal cases having been registered against the detenu and the allegation regarding extortion of money from the said Shri Ramkrishna More by the detenu on many occasions. Undoubtedly, there is no reference to the particulars regarding the alleged criminal cases or the alleged extortion of money. The learned Advocate for the petitioner is justified in contending that the detenu is entitled to make effective representation against the order of detention, and therefore the grounds in support of the detention order should be clear and should not be vague. As the said ground does not - 13 - disclose details regarding the alleged criminal cases stated to have been registered against the detenu and the alleged extortion of money from Shri Ramkrishna Genu More, certainly the detenu was prejudiced in that regard in making effective representation, and the said order of detention based on the said ground cannot be sustained on that count. However, as submitted by the learned APP that the order of detention is not based solely on the said ground, but there are two more grounds, and undisputedly, the said grounds disclose the activities of the nature of extortion of money, and therefore, there was sufficient cause for the detaining authority to arrive at the subjective satisfaction for the purpose of issuance of detention order against the detenu. The contention that the said two grounds in support of the detention order are subsidiary to the main ground revealed from the said C.R.No.136 of 2004, and therefore, cannot be read independently, is a far-fetched argument, as those grounds clearly disclose that the activities of the detenu on different occasions were sufficient to arrive at the subjective satisfaction of the detaining authority for issuance of detention order. The Apex Court in Amratlal Prajivandas’s case (supra) Amratlal Prajivandas’s case (supra) Amratlal Prajivandas’s case (supra) had clearly held that where an order of detention is made on more than - 14 - one ground, it must be deemed that there are as many orders of detention as there are grounds, which means that each of such orders is an independent order, and therefore, when an order is supported by more than one ground, and one or more grounds are found to be vague or irrelevant, nevertheless the order can be justified on the remaining valid ground or grounds. Considering the same, while holding the first ground to be invalid, it cannot be said that the impugned order of detention is totally bad-in-law. 9. The decision in Kamarunnissa’s case (supra) Kamarunnissa’s case (supra) Kamarunnissa’s case (supra) is of no relevancy to the matter in hand. In the said case, it was held that, if an incidental reference is made to some part of the investigation concerning a co-accused in the grounds of detention which is not relevant as far as the case set up against the detenu is concerned, the detenu cannot contend that he was denied the right to make an effective representation, on account of non-supply of copies of the documents in relation to the incidents so referred. That is not the case in hand. The averment in paragraph 5(a)(i) of the grounds in support of the detention order specifically refers to the allegation against the detenu by the complainant without giving any details regarding the allegation, and the said allegation was - 15 - certainly taken into consideration by the detaining authority while arriving at the subjective satisfaction regarding need for issuance of detention order against the detenu. 10. The Division Bench of this Court in Prabhakar Prabhakar Prabhakar Menka Shetty’s case (supra) Menka Shetty’s case (supra) Menka Shetty’s case (supra), after taking into consideration the various earlier decisions, had held that "even if one or more of the grounds fail on the ground of non-supply of the documents thereby infringing Article 22(5), the said infringement will not invalidate the order if it can be sustained on the basis of the remaining grounds wherein the constitutional requirements of Article 22(5) are complied with." 11. The decision in Vashisht Narain Karwaria’s Vashisht Narain Karwaria’s Vashisht Narain Karwaria’s case (supra) case (supra) case (supra) is of no help to the petitioner as that was the case wherein the detention order was based on single ground and once it was found that the same was based on some extraneous materials, there was no question of applicability of the provisions of Section 5A of MPDA Act. That is not the case in the matter in hand. 12. The decision of Division Bench in Mrs.Jainab Mrs.Jainab Mrs.Jainab - 16 - Sale Mohammed’s case (supra) Sale Mohammed’s case (supra) Sale Mohammed’s case (supra) is absolutely of no relevance as that was the decision delivered in the peculiar facts of that case which were not similar to those in the case in hand. 13. In Dharamdas Shamlal Agarwal’s case (supra) Dharamdas Shamlal Agarwal’s case (supra) Dharamdas Shamlal Agarwal’s case (supra), the detaining authority had taken into account a non-existing fact for arriving at the subjective satisfaction for issuance of detention order. In that case, when the order of detention was passed, a vital fact, viz. acquittal of detenu in two of the cases relied upon in the grounds of detention, was not brought to the notice of the detaining authority, and on the other hand, the said information was withheld and the detaining authority was given to understand that the trial of those cases were pending, and therefore, non placement of the material fact, viz. the acquittal of detenu in two of the cases, was held to have resulted in non-application of mind by the detaining authority rendering the impugned detention order invalid. Referring to the said judgment, it was sought to be contended that there were five cases which were referred to for arriving at the subjective satisfaction of the detaining authority for need of issuance of detention order. However, because there was suppression of relevant materials by the - 17 - sponsoring authority, the order of detention was held to be bad-in-law, even after referring to Section 6 of Gujarat Prevention of Anti-Social Activities Act, 1985, which is in pari materia with Section 5A of MPDA Act. There is no dispute that Section 6 of Gujarat Prevention of Anti-Social Activities Act, 1985 is in pari materia with Section 5A of MPDA Act. However, it is pertinent to note that the Apex Court has nowhere considered the applicability of the said section 6 to the detention order which was under consideration in the said case. Being so, the same cannot be held to be laying down the law on the point regarding applicability of the provisions of Section 5A of MPDA Act and for that matter, Section 6 of Gujarat Prevention of Anti-Social Activities Act, 1985, and therefore, the decision Dharamdas Shamlal Agarwal’s Dharamdas Shamlal Agarwal’s Dharamdas Shamlal Agarwal’s case (supra) case (supra) case (supra) is of no help to the petitioner in the case in hand. In any case, the said decision is of the Bench of two Judges whereas the decision in Amratlal Prajivandas’s case (supra) Amratlal Prajivandas’s case (supra) Amratlal Prajivandas’s case (supra) is of the Bench of nine Judges. Besides, the decision in Dharamdas Dharamdas Dharamdas Shamlal Agarwal’s case (supra) Shamlal Agarwal’s case (supra) Shamlal Agarwal’s case (supra) was delivered on 16th March, 1989 whereas the decision in Amratlal Amratlal Amratlal Prajivandas’s case (supra) Prajivandas’s case (supra) Prajivandas’s case (supra) was delivered on 12th May, 1994. So, on all counts, we are bound by the decision of Amratlal Prajivandas’s case Amratlal Prajivandas’s case Amratlal Prajivandas’s case, besides the same being - 18 - directly on the point in issue. 14. For the reasons stated above, therefore, even though the order of detention cannot be sustained under the first ground in support of detention, the same cannot be held to be bad-in-law, as it finds support from other two grounds based on in-camera statements of the said witnesses. 15. The third ground of challenge to the order of detention is that the materials referred