1 cri-wp-3167-09 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3167 OF 2009 Shri Jaidev @ Rajubhai @ J.D.Ramji Mishra, age 32 years, residing at Chagan Patel Chawl, Near Hanuman Tekdi, Hari Nagar, Jogeshwari (East), Mumbai 400 060. .. Petitioner Vs. 1. Shri D. Shivananadan, Commissioner of Police, Mumbai 2. The State of Maharashtra (Through the Secretary, Home Department (Spl.), Mantalaya, Mumbai. 3. The Superindent Nashik Road Central Prison Nashik 4. The Superintendent, Thane Central Prison, Thane .. Respondents 2 cri-wp-3167-09 Mr. U. N. Tripathi for petitioner. Mr. J. P. Yagnik, APP for State. CORAM: B. H. MARLAPALLE & ANOOP V. MOHTA, JJ. RESERVED ON : JULY 01, 2010 PRONOUNCED ON : JULY 22, 2010 JUDGMENT (Per B. H. Marlapalle,J.): 1. In this petition, filed under Article 226 of the Constitution of India, praying for a writ of habeas corpus against the order of detention passed on 8/10/2009 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 MPDA Act) has been challenged by the father of the detenu - Shri Jaidev @ Raju Bhai @ J.D. Ramji Mishra. The detention order was served on the detenu on 9/10/2009. It was approved by the State Government on 15/10/2009 and was thereafter confirmed on 17/11/2009, for a period of one year from the date of its execution i.e. from 9/10/2009. 3 cri-wp-3167-09 2. The detention order was based on C.R. No. 261 of 2009 registered with the Borivali Police Station. In addition, there were two in- camera statements recorded on 29/8/2009 and 1/9/2009, which referred to the incidents of fourth week of June 2009 and first week of July, 2009 respectively. Along with the detention order, the grounds of detention and a list of documents along with their translation in Marathi, was provided to the detenu. Though a host of grounds have been set out, the learned counsel for the petitioner has pressed for the following ground only, “(d) The petitioner says and submits that the detaining authority has issued the order of detentionon 8th October 2009, while the detenu was already in judicial custody having not been granted bail by Court. The petitioner says and submits that there was no necessity to detain a person passing order of detention. Moreover, there was no cogent material before the detaining authority to come to the conclusion that the detenu will be released on bail and there is imminent possibility of his release near future nor any compelling reason. It is, therefore, not warranted and 4 cri-wp-3167-09 justified to detain a person who is already in custody. This shows total non-application of mind of the detaining authority. No averment is made to that effect nor there is any material to show that if released again the detenu will indulge in similar prejudicial activities in future. The order of detention is illegal and bad in law, ought to be quashed and set aside.” 3. In C.R. No. 261 of 2009, registered with the Borivali Police Station, it was alleged that on 20/7/2009 the complainant in C.r.No.261 of 2009 had attending his duty at Chamunda Petrol Pump and started his work of iflling petrol in the vehicles of customers and collegected the amount. At 8.00 hrs. the Manager Ketan Mehta called and asked him to count the amount collected on 18/7/2009 and 19/7/2009 and to make bundles of hundred notes. Accordingly the complainant with the help of manager Shri Ketan Mehta separated the cash and made bundles in the denominations of Rs.1000/- x 200= 2,00,000/- (two bundles), Rs.500/- x 7 = Rs.3,50,000/- (seven bundles), Rs.100/- x 6 = Rs.60,000/- (six bundles), Rs.50/- x 150 = Rs.15,000/- (two bundles) and Rs.10/- x 1600 = Rs.16,000/- (16 bundles). 5 cri-wp-3167-09 Rs.1000/-, Rs.500/-, Rs.100/-, Rs.50/-, Rs.20/- and Rs.10/- = Rs.1,35,270/- (two bundles). The said Ketan Mehta directed the complainant and his colleagues to deposit the amount in the near by branch of Oriental Bank of Commerce, Borivali (W), Mumbai. At 8.55 hrs. the Manager Ketan Meha, complainant and his colleagues left the petrol pump. The complainant was carrying the bag containing cash in his right hand. The manager and the complainant crossed the Rambaug Lane to deposit the money in the bank. The aid colleagues were walking behind and as soon as the manager and the complainant crossed the lane to go inside the bank, they turned around to go back to the petrol pump. At 9.00 hrs. the associates of the detenu Santosh Zhagade and Jiven Patidar came from opposite direction and went behind the complainant. The said associate of the detenu Santosh hit the complainant’s neck with a heavy object viz. Stump as a result of which the complainant collapsed on the road. The Manager came forward to help the complainant when the associate of the detenu Jivan Patidar hit on his left cheek and made him fall down. Thereafter the associate of the detenu Santosh snatched the rexin bag containing cash bundles from the hand of the complainant. The associate of the detenu started running away with the said bag. The associate threw the stump and two knives on the spot. There was commotion from the Manager and other people on the road and they started 6 cri-wp-3167-09 chasing the associate of the detenu. The detenu and his associate Vikram Thapa who were standing near the tea stall and pan stall rushed towards the assocaite Santosh and Jivan Patidar and shouted that they should run away and they would manage the people who had gathered. Thereafter, the detenu threatened the manager and other people by weapon and shouted that if any one would proceed further they would be done to death. The manager and other people got scared and ran away helter skelter. The other associate Mohan Patidar who was waiting with the motor cycle, the pillion seat of the said motorcycle was occupied by Jivan Patidar and Santosh Zhagade and they left the place. The detenu and his associate Vikram Thapa got into the auto rickshaw threatened the driver and speeded from the place. In pursuane of the said incident C.R.No.261 of 2009 was registered under Sections 394, 395, 398 read with Section 34, 120-B of IPC read with Sections 4, 25 of the Arms Act read with Section 37(1)(a) of the Bombay Police Act. 4. As per the Statement of witness “A”, the incident had taken place in the fourth week of June 2009 at about 18.45 hours, when the witness was attending to his customers at his stall when the detenu and two unknown associates were there and the detenu asked the witness that nowadays he was making lot of income and had forgotten them. The 7 cri-wp-3167-09 witness informed the detenu that it was not so but without paying any heed to the say of the witness the detenue demanded Rs.2000/-. When the witness expressed his helplessness, the detenu got annoyed and took out a gupti from inside the pant and held the same at the stomach of the witness and threatened him that if the amount is not paid the gupti would be pierced. Seeing the gupti and the angry mood of the detenu and his associates, the customers started running away and the passers got scared and ran helter skelter. Hawkers left behind their wares and belongings and ran away. One of the assocaites of the detenu caught hold of the collar of the witness and terrorized him. The witness then took out Rs.500/- for giving to the detenu pleading that he had just paid the amount of the material and that much only was left with him. Not being satisfied with the amount and the say of the witness, the detenue orders his associate to carry out search. The detenu’s assocaite inserted his hand in the pockets of pand and shirt of the witness and ultimately removed Rs.2500/- which was kept by the wintess for buying the material. The associate of the detenu also snatched away Rs.500/- from the hand of the witness. While leaving, the detenu further threatened the wtiness saying that if the matter is reported to the police of anybody else, he would be done to death. Due to the fear of retaliation the witness did not complaint to the police. As per the statement of Witness “B”, in the evening 8 cri-wp-3167-09 of the July 2009 at about 18.15 hours, when the witness and his servant were atending to his customers in his shop, the detenu and his two unknown associates werent there. One associate stood at the entrance of the shop and the detenu and other associate reached the counter and the detenu took out a revolver from inside his pant and aimed the revolver at the ear of the witness and threatened him stating him to keep quiet, else he would fire in the brain. Associate of the detenu took out a chopper from inside his pant and pointed out the same at the servant of the witness and also the customers and threatened them not to move from their place. He threatened the witness and demanding an amount of Rs.20,000/-. When the witness pleaded that he was a small businessman and does not have so much money, the detenu opened the counter drawer by force and took away Rs.5000/- from the same. When one customer started running away from the scene, one associate of the detenu slapped him and pushed him to a corner. Due to the commotion, passers by started crowding in front of the shop when the detenu aimed the revolved at those people and threatened them. Seeing the revolver in your hand and hearing the threatening utterances, passers by got scared and ran helter-skelter and the nearby shopkeepers hurriedly pulled down their shutters. The detenu then threatened the witness and his worker saying that if the incident is reported to the police, the would lose their lives. Due to the 9 cri-wp-3167-09 fear of reprisal, the witness did not complaint to the police. 5. Mr. Tripathi, the learned counsel for the petitioner, referred to para 7 of the reasoned order and submitted that the detaining authority failed to apply her mind to the fact that the detenu was already in jail and he had not been granted bail in C.R.No.261/09. The said para reads as under:- “7. I have carefully gone through the material placed before me and I am subjectively satisfied that you are acting in a manner prejudicial to the maintenance of public order. I am aware that you have not been granted bail in connection with Borivali Police Station C.R.No.261 /99 as yet. However, you may be granted bail in the said case under the normal law of the land as the offence is not compulsorily punishable with death or life imprisonment. In view of your tendencies and inclinations reflected in the offences committed by you as stated above, I am further satisfied that after your release on bail you became a free person and remaining at large, being a criminal, are likely to indulge in activities prejudicial to the maintenance of public order in 10 cri-wp-3167-09 future, it is necessary to detain you 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) (Mah. Ord. X of 2009).” Mr. Tripathi, in support of his arguments, has placed reliance on the following decisions of the Supreme Court:- (a) Dharmendra Suganchand Chelawat and anr. vs. Union of India and ors. [AIR 1990 SC 1196]. (b) Kamarunnissa vs. Union of India [AIR 1991 SC 1640]. (c) Veeramani vs. State of Tamil Nadu [(1994) 2 SCC 337]. (d) Amritlal and other vs. Union Government through Secretary, Ministry of Finance and others [AIR 2000 SC 3675]. 6. Mr. Yagnik the learned APP has opposed the petition and submitted that para 7 of the reasoned detention order clearly makes out a case that the detaining authority was aware that the detenu was already in jail when the detention order was passed, the detaining authority was aware 11 cri-wp-3167-09 of the material placed along with the charge-sheet filed in the court, it had applied its mind to the material and reached to a conclusion that there was a likelihood of the detenu being released on bail and he was likely to revert to the similar criminal activities prejudicial to the maintenance of public order in future and that it was necessary to detain him under the MPDA Act so as to prevent him from acting in any such prejudicial manner in future. Mr. Yagnik relied upon the very same decisions of the Supreme Court, as were cited by Mr. Tripathi, and yet other decisions of the Supreme Court in the case of A Geetha vs. State of T.N. and anr. [(2006) 7 SCC 603], Smt. Phulwari Jagdambaprasad Pathak vs. Shri R.H. Mendonca and ors. [JT 2000 (8) SC 209] and the following decisions of this court, as well: (a) Akhil Ahmed Shaikh v/s. State of Maharashtra [2002 BCR (Cri) 253]. (b) Shahid Mohd. Yusuf v/s. State of Maharashtra [Cri.W.P. No. 856 of 2002 decided on 26/2/2003 – unreported] (c) Vinod @ Vinu Bhupat Lakhoon v/s. State of Maharashtra [1997 ALL M.R. (Cri) 403]. (d) Harun Shaikh v/s. State of Maharashtra [1997 Cri.L.J. 12 cri-wp-3167-09 2085] 7. The very same issue has been elaborately dealt with by us in Writ Petition No.2775 of 2009 decided on 21/7/10 and in para 12 of our judgment in the said petition we have laid down the following requirements to uphold the order of detention passed when the detenu is already under arrest, (i) The detaining authority is aware of the fact that the detenu is actually in custody. (ii) The detaining authority has reasons to believe, on the basis of reliable material placed before him/her, that there is every likelihood or an imminent possibility of the detenu being released on bail, on the prima facie assessment of the said material. (iii) The detaining authority has reasons to believe, on the basis of the reliable material placed before him/her, that on being so released, the detenu shall in all probability indulge in prejudicial activities. (iv) The detaining authority feels it essential to detain him to prevent him from doing so. 13 cri-wp-3167-09 8. Both the parties have relied upon the reasons set out in para 7 of the detention order. It is clear from the same that the detaining authority was aware that the detenu was in custody, he was not granted bail in Borivali Police Station C.R.No.261/2009. The detaining authority was further of the view that detenu may be granted bail in the said case as the offence was not compulsorily punishable with death or life imprisonment. The detaining authority was also satisfied that the tendencies and inclination reflected in the offences committed by the detenu and on his being free on bail, he was likely to revert to the similar criminal activities prejudicial to the maintenance of public order in future and it was necessary to prevent him from doing so by passing a detention order. We are satisfied that the detaining authority had considered the material on record, applied its mind to the nature of charges levelled against the detenu and on prima facie considerations of the material, recorded that there was every likelihood of the detenu being released on bail in the pending bail application. It is a different matter that the said bail application was scheduled to be heard on 9/10/2009. Hence the impugned detention order does not call for any interference and it is required to be upheld. 14 cri-wp-3167-09 9. In the premises, this petition fails and the same is hereby dismissed. Rule is discharged. (ANOOP V. MOHTA,J.) (B. H. MARLAPALLE, J.)