1 2099.11 SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2099 OF 2011 Santosh Tukaram Chavan, Nashik Road Central Prison, NASHIK. ...Petitioner Versus The State of Maharashtra ...Respondent ...... Mr.Rizwan Merchant, amicus curiae. Ms.M.H.Mhatre, A.P.P. for Respondent-State. ...... CORAM:- A.M.KHANWILKAR AND R.G.KETKAR, JJ. DATED:- DECEMBER 1, 2011. ORAL JUDGMENT (Per A.M.Khanwilkar, J.) : 1. This letter petition is received through jail. It challenges the order of detention passed against the petitioner under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as `the Act’). The Detaining Authority after considering the material placed before it recorded his subjective satisfaction that the petitioner is a dangerous person as defined in Section 2(b-1) of the Act, as he had unleashed a reign of terror and has become a perpetual danger to the Society at large in the localities of Vaibhav Chowk, Jockim Compound, Jamil Nagar, Pratap 2 2099.11 Nagar, Utkarsh Nagar, Kokan Nagar, Samarth Nagar, Nardas Nagar, Sarvoday Nagar, Gamdevi Road, T.P.Road, Jangal Mangal Road, Bhandup (West), Mumbai – 400 078 and areas adjoining thereto in the jurisdiction of Bhandup Police Station in Brihan Mumbai. The Detaining Authority has noticed from the material placed before him that the people residing and carrying out their daily vocations in the above localities and areas are terror stricken and their normal life is affected adversely. Further, the activities of the petitioner were prejudicial to the maintenance of the public order in the said localities in Brihan Mumbai. Upon recording this satisfaction, the Detaining Authority noted that the petitioner was acting in a manner prejudicial to the maintenance of public order. It has also noticed that the petitioner was granted bail in connection with the offences registered with Bhandup Police Station being C.R.Nos.213/2010, 218/2010, 336/2010, 367/2010 and 378/2010 and the petitioner has already availed of bail on 21st October, 2010 and has become a free person. The Detaining Authority then proceeded to record that in view of the petitioner’s tendencies and inclinations reflected in the offences committed by him, he was satisfied that after release on bail and petitioner becoming a free person and in the event of his being at large, being a criminal, is likely to indulge in activities prejudicial to the maintenance of public order in future and that with a view 3 2099.11 to preventing him from acting in such a prejudicial manner in future, it was necessary to detain him under the provisions of the Act. 2. On the basis of this satisfaction, the impugned order of detention came to be passed on 18th January, 2011. The same was served on the petitioner on 21st January, 2011. Since then, the petitioner is in Nashik Road Central Prison in connection with the said detention order. As aforesaid, the petitioner has challenged the detention order by sending letter Petition to this Court. 3. In the circumstances, we thought it appropriate to appoint Mr.Rizwan Merchant, Advocate to appear as amicus curiae to espouse the petitioner’s cause as also to assist the Court. At the same time, we directed the respondents to ensure that the entire compilation pertaining to the impugned order of detention and the grounds of detention as served on the petitioner at the time of execution of the order, be placed on record. The Office of the Public Prosecutor has accordingly placed before us the complete compilation of documents including vernacular documents as well as translated English version of the same consisting of total pages from 1 to 564. In addition, reply affidavit has been filed by the Assistant Police 4 2099.11 Inspector of Bhandup Police Station to oppose this Petition. As the Petition was received in the form of letter sent by petitioner through jail, the learned amicus curiae has articulated the grounds which could be raised by the petitioner on the basis of the letter Petition and also with reference to the compilation of documents made available to him. However, at the time of hearing of the matter, in all fairness, the learned amicus curiae submitted that he would argue three formidable points on the basis of which, the petitioner has good chance of succeeding in this Petition. 4. The first argument canvassed before us is that although the grounds of detention refer to 12 different areas mentioned therein, however, the grounds in the context of the instances on the basis of which criminal cases have been registered against the petitioner are only in respect of five areas. In his usual fairness, learned amicus curiae submitted that even if the detention order is to be justified on the basis of the areas referred to by the two witnesses whose in-camera statements have been recorded and found to be part of the documents relied upon by the Detaining Authority, even so, there is no material whatsoever to connect the involvement and activities of the petitioner in at least four areas, namely, Jockim Compound, Jamil Nagar, Pratap Nagar and Sarvoday Nagar. In his submission, therefore, it 5 2099.11 would clearly affect the subjective satisfaction reached by the Detaining Authority and the same is vitiated on the ground of non-application of mind. 5. As regards this submission, the learned A.P.P. contends that although the instances referred to in the grounds of detention which resulted in registration of criminal offences against the petitioner do not refer to the above mentioned four areas but the grounds will have to be read in its entirety and not out of context, as is suggested by the learned amicus curiae. In her submission, there is intrinsic material in the grounds furnished to the petitioner along with the detention order to indicate that the prejudicial activities of the petitioner were also in respect of the above named four areas. She has pointed out that the names and the localities, where the two witnesses, whose in-camera statements came to be recorded, has not been furnished along with the grounds of detention. The said witnesses A and B are residents of Pratap Nagar and Jockim Compound areas. More over, witness No.A has mentioned about the activities of the petitioner and his colleagues in Jamil Nagar area. The only area specifically not mentioned in the statements of the two witnesses or in the criminal cases registered against the petitioner is Sarvoday Nagar. However, the 6 2099.11 witnesses in their statements have clearly mentioned that the petitioner and his colleagues indulged in prejudicial activities in Jangal Mangal Road area and its adjourning areas. It is further submitted that Sarvoday Nagar area is adjoining area to Jangal Mangal Road area. She therefore submits that the ground urged on behalf of the petitioner that there was no material before the Detaining Authority to refer to the aforesaid four areas which has resulted in affecting the subjective satisfaction of the Authority is devoid of merits. The learned A.P.P. has also pointed out that besides the instances referred to in the grounds of detention, the material on record would clearly indicate that the petitioner was required to be externed for two years from the locality in the year 2004 for having indulged in prejudicial activities. Even after returning on completion of externment period, the petitioner continued with his prejudicial activities unabated which necessitated initiation of chapter proceedings against him in the year 2007. Inspite of that, since the petitioner did not stop his prejudicial activities and continued to indulge in the same even till recently, was a habitual offender, necessitating stricter action against him to prevent him from indulging in such activities prejudicial to the maintenance of public order in future. This is the subjective satisfaction reached by the Appropriate Authority and the Court ought not to sit over the same as the Court of appeal. 7 2099.11 6. Having considered the rival submissions on the first contention raised before us, we have no hesitation in rejecting the same. Instead, we would accept the argument canvassed by the learned A.P.P. It is noticed that the grounds of detention, although, refer to 12 areas mentioned in paragraph 2 as well as in the subsequent paragraphs, amongst others paragraph 6, it also clearly mention that the petitioner was 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 12 referred localities situated in Bhandup (West), Mumbai and areas adjoining thereto in the jurisdiction of Bhandup Police Station, Mumbai. This subjective satisfaction is, amongst others, founded on the in-camera statements of witnesses wherein, it is mentioned that the petitioner is notorious criminal and he along with his ten associates have unleashed a reign of terror in the localities specifically referred to in their statements and areas adjoining thereto in Bhandup (West) by extorting money from the civil contractors, hawkers, shopkeepers, businessmen, etc. All these persons roam around in these areas together to collect hafta and are always armed with deadly weapons. In other words, there is no dispute that the instances referred to in the grounds of detention on the basis of which criminal cases came to be registered refer to five specific areas out of 8 2099.11 the twelve mentioned in the grounds of detention. The in-camera statements of the witnesses recorded and relied upon by the Detaining Authority refer to the prejudicial activities of the petitioner and his colleagues in the remaining areas specifically mentioned in the grounds of detention as well as areas adjoining thereto in the jurisdiction of Bhandup Police Station in Brihan Mumbai. The grounds of detention will have to be read as a whole along with material accompanying thereto which was placed before the Detaining Authority and obviously relied upon by the Detaining Authority to form his subjective satisfaction. The Detaining Authority has taken into account all aspects of the matter including the past criminal record of the petitioner to form his subjective satisfaction that the petitioner is a dangerous person and it was necessary to detain him to prevent him from engaging himself in prejudicial activities in future. Accordingly, the first contention ought to fail. 7. The second point raised by the learned amicus curiae is that there is no material worth the name to indicate that all documents which are made a part of the compilation served on the petitioner along with the grounds of detention were in fact placed before the Detaining Authority. For that, learned amicus curiae has placed reliance on the endorsement on 9 2099.11 documents at pages 121 to 133 which bears seal of the Authority concerned. According to the learned amicus curiae, similar endorsement is conspicuously absent in all other documents which raises doubt about placement of those documents though forming part of the compilation served on the petitioner. 8. In response to this argument, learned A.P.P. has explained the circumstances in which the endorsement and seal appearing on documents at pages 121 to 133 of the compilation is noticed. According to her, these documents were part of record of another action initiated against the petitioner. The Photostat copy of those documents came to be included in the compilation of documents forwarded to the Detaining Authority for consideration of the proposal for detention. She has also relied on the index which sequentially mention the documents referred to therein running from pages 1 to 564. She has also relied on the original file produced in Court to support her argument that the compilation which has been served on the petitioner along with the grounds of detention was in the same form and placed before the Detaining Authority. The compilation was placed before the Detaining Authority to consider the same before recording his subjective satisfaction. We have no reason to doubt the correctness of the 10 2099.11 position so stated, which is reinforced even from the original record. The submission canvassed by the learned amicus curiae, in our opinion, is based on assumptions and not the real fact situation. Suffice it to hold that, from the original record, it is noticed that all the documents included in the compilation and served on the petitioner along with the grounds of detention were placed before the Detaining Authority who had considered the same while examining the detention proposal. Accordingly, even this argument will have to be stated to be rejected. 9. The last submission canvassed by the amicus curiae is that the material on record clearly goes to show that the petitioner along with ten other colleagues was indulging in prejudicial activities, which allegedly affected the maintenance of public order in the locality. However, the action of detention has been proceeded selectively against the petitioner and no other person. Even this clearly affects the subjective satisfaction recorded by the Detaining Authority and the same is vitiated on the ground of non- application of mind. This argument is countered by the learned A.P.P. In the first place, she contends that the action of detention was proceeded against the petitioner in his capacity as leader of the gang operating in the area. By detaining the petitioner, prejudicial activities of the said gang 11 2099.11 could be curtailed, as the kingpin would be behind the bars. Further, the Detaining Authority was well informed from the material on record placed before him that as regards the colleagues of the petitioner indulging in prejudicial activities in the locality, the action of externment was proceeded with. It is not as if no action whatsoever was taken against the members of the gang of which the petitioner was a leader. As regards the petitioner, in the past, he was externed from the locality for two years but inspite of that, he did not show any improvements. Thus, necessitating order of detention against him. 10. Having given our anxious thought, we have no hesitation in accepting this argument of the learned A.P.P. The same is reinforced from the record which is part of the compilation served on the petitioner along with the grounds of detention. The detention proposal refers to the externment action initiated against the other members of the gang and the necessity to detain the petitioner to prevent him from indulging in prejudicial activities in future. Assuming that the grievance of the petitioner needs to be examined seriously, it is well established position that merely because no action is taken against the other persons, that by itself, cannot be the basis to hold that it results in discrimination. Suffice it to observe that 12 2099.11 the argument of the petitioner that no detention order has been passed against other members of the gang, does not impact the detention order passed by the Detaining Authority, which is founded on specific, extant, relevant grounds which are not only connected but proximately connected with the petitioner and in particular, because of the subjective satisifcation recorded by the Detaining Authority of the likelihood of petitioner indulging in such prejudicial activity in future, necessitating his detention. 11. Taking over all view of the matter, therefore, the Petition is devoid of merits. The same is dismissed. 12. The Court expresses word of gratitude for the able assistance rendered by the learned amicus curiae to espouse the cause of the petitioner. 13. Copy of the Judgment be forwarded to the petitioner, who is in jail. (R.G.KETKAR, J.) (A.M.KHANWILKAR, J.)