Cases referred :
1995 (1) AD(SC)(Cr) 261 [ 6 ]
1993 SCC ( Cri ) 1126 [ 6 ]
1994 Cri.L.J. 2095 [ 7 ]
Advocates appeared :
Shri . Raja Thakare A.M.Chimalkar for the Petitioner- Detenu
Shri . S.R.Borulkar A.P.P. for the State Government.
Shri . J.C.Satpute for Union of India .
VAIDYANATHA, J. - This is a Writ Petition filed by the detenu -Petitioner challenging the detention order dated 11-8-195 passed by the first Respondent. Rule was issued. The State Government and the Central Government have entered appearance and they have filed their affidavits-in-reply. We have heard Shri Raja Thakare A.M. Chimalkar , learned Counsel for the Petitioner, Shri S.R.Borulkar, A.P.P. for the State of Maharashtra and Shri J.C. Satpute , learned Counsel for the Central Government.
2. The first Respondent, the then Commissioner of Police, Greater Mumbai, passed the impugned detention order under Sec. 3 of the National Security Act, 1860. The grounds of detention are in annexure C to the Petition. A perusal of the grounds of detention show that according to the detaining authority, the Petitioner has criminal record and he is in the habit of going to hotel keepers and shop keepers and extorting money by show of force, by threatening. It also shows that the Petitioner has been involved in some criminal cases which are registered against him. Some in camera statements have been recorded which show that the Petitioner has been threatening people by show of force. In view of these allegations as mentioned in the grounds of detention, the detaining authority formed an opinion that the Petitioner is indulging in prejudicial activities to the maintenance of public order and therefore issued the impugned order for detaining the Petitioner under the National Security Act.
Being aggrieved by the order of detention, the Petitioner has filed the present petition.
The learned Counsel for the Petitioner raised three contentions in support of the Petition and contended that the order of detention is illegal and liable to be set aside. On the other hand, the learned Counsel appearing for the State Government and the Central Government supported the impugned Order of detention. We will consider the three contentions urged on behalf of the Petitioner one by one.
3. The first contention urged on behalf of the Petitioner is that there was inordinate delay in considering the representation made by the Petitioner. Few dates are necessary for deciding this point.
The representation of the detenu is dated 5-9-1995. It came to be rejected on 6-10-1995. The question is whether there is a delay in the disposal of the representation and if there is delay whether it has been satisfactorily explained by the Central Government. It may be stated that the time lag of one month in disposing of the representation shows that there was some delay. But we must see whether in the facts and circumstances of the case the delay has been explained by the concerned authority.
4. The affidavit has been filed by one Ishwar Singh, Desk Officer, Minister of Home Affairs, Government of India, New Delhi. In paragraph 6 of his affidavit it is stated that the representation dated 5-9-1995 sent by the detenu was received by the Central Government on 13-9-1995. On the same day Crash Wireless message was sent to State Government and the Commissioner of Police, Greater Mumbai for sending parawise remarks. Then reply was received from the Commissioner on 29-9-1995. As to what happened between 13-9-1995 and 29-9-1995 we have to gather from the affidavit of Shri R.D.Tyagi, the present Commissioner of Police, Greater Mumbai.
The learned Additional Public Prosecutor has produced the case file where it is mentioned that the copy of the representation sent by the Central Government was received by the Commissioner of Police on 18-9-1995. It is, therefore, seen that the Central Government sent a Crash Wireless message on 13-9-1995 and sent a copy of the representation separately by post which has been received in the office of the Commissioner of Police on 18-9-1995. The learned Additional Public Prosecutor also pointed out from the file that on the same day, the matter was sent to the concerned Inspector. it is also noticed that later it was sent to the Police Prosecutor on 26-9-1995, the matter was placed before the Commissioner of Police who sent a reply on 27-9-1995. It is also seen that 23rd September and 24th September were holidays. If we exclude these two holidays and take into consideration the time spent in getting the reports from the jurisdictional Senior Inspector and then papers passing through the Special Public Prosecutor, then through the Inspector and final report by the Commissioner of Police sent on 27-9-1995, we do not find any undue delay or inordinate delay in submitting the parawise remarks by the Commissioner of Police which were forwarded on 27-9-1995.
5. Then it is seen that the parawise remarks were received by the Central Government on 29-9-1995. The matter was placed before the Desk Officer of the Home Department on 4-10-1995. After his scrutiny, the matter was placed before the Joint Secretary, Ministry of Home Affairs on 5-10-1995. Then, after his consideration, the papers were placed before the Special Secretary on 5-10-1995. Then ultimately, the matter was placed before the Home Minister who passed an order rejecting the representation on 6-10-1995. It is also brought to the notice of the Court that out of this one week between 29-9-1995 and 6-10-1995 there were four holidays viz., 30-9-1995, 1-10-1995, 2-10-1995 and 3-10-1995. if we exclude these holidays, the time taken by the Central Government for rejecting the representation was about 3/4 days after the receipt of the parawise remarks. The papers have been passed from the Desk Officer, Joint Secretary, Special Secretary and then were ultimately placed before the Home Minister. hence in these circumstances we final that there was no delay. Even if there is some delay, in our view, the delay has been properly explained and therefore, the argument on behalf of the Petitioner that in view of the delay in the disposal of the representation, the continued detention of the Petitioner has become illegal cannot be accepted. hence, the first contention is rejected.
6. The second contention urged by the learned Counsel for the Petitioner is that in the grounds of detention, the detaining authority has not intimated the detenu that he can make representation to the detaining authority about the detention. A perusal of the grounds of detention show that the detaining authority has informed the detenu that he has a right to make representation to the Central Government, he has a right to make a representation to the state Government and he has also a right to make a representation to the Advisory Board. But there is no mention that the detenu can also make a representation to the detaining authority. It was, therefore, argued that since the detaining authority has not intimated the detenu that he has a right to make representation to the detaining authority, the order of detention is bad. Strong reliance was placed on a decision of the Supreme Court reported in 1995 1 Apex Decision (S.C.) (Cr.) 261 ( Kamlesh Kumar Ishwardas Patel Vs. Union of India). No doubt this decision supports the argument of the learned Counsel of the Petitioner that the detaining authority must inform the detenu that he has a right of representation to himself (i.e. the detaining authority) but the decision was rendered in cases arising under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act) and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short PIT NDPS Act). The Supreme Court has referred to several provisions of the two Acts and came to the conclusion that the detaining authority who passed the order of detention must inform the detenu that he has a right of representation to the detaining authority himself. In fact the Apex Court has made a distinction about the National Security Act in para 34 of the reported JUDGMENT. They pointed out that in the National Security Act there is an express provision in respect of the Orders of the detaining authority to forthwith submit report to the State Government and then the State Government has to pass orders within twelve days approving the same. They also referred to Section 8 and observed that is why the Legislature has provided that the representation against the order of detention has to be made to the State Government. Then they distinguished the other two acts viz., COFEPOSA Act and PIT NDPS Act where there is no provision for approval of the order of detention by the State Government. It is further pointed out that the Order passed by an officer under these two acts operate on its own force. When the learned Additional Solicitor General invited the attention of the Apex Court to John Martins case in paragraph 37 of the reported JUDGMENT, the Apex Court observed that decision cannot be applied since it arose from an Order of detention made under the Maintenance of Internal Security Act, 1971 which contained an express provision that the representation against detention should be made to the appropriate Government. Therefore, they observed that the decision cannot be applied to the COFEPOSA ACT or PIT NDPS Act which do not contain such a provision. In this connection we may point out that wording of Section 8 of Maintenance of Internal Security Act is in par materia with Section 8 of the National Security Act with which we are concerned. Hence in our view, the above decision has no application to a case under the National Security Act where the provisions are different. The learned Counsel for the Petitioner invited our attention to 1993 SCC ( Cri ) 1126 ( Navalshankar I. Dave V. State of Gujarat). That was a case arising from an order of detention under the Gujarat Prevention of Anti-Social Activities Act, 1985. The question before the Apex Court was whether the detention order will be in force beyond 12 days if it is not approved by the State Government or not. In that context the Apex Court pointed out that the Order of detention will be in force only for 12 days unless it is approved by the State Government. The question whether the detaining authority has to inform the detenu that he has a right to make a representation to himself w as neither raised nor decided by the Apex Court in this case. Hence this decision has no bearing on the point under consideration in our present case.
7. On the other hand, the learned Public Prosecutor brought to our notice a recent decision of the Apex Court reported in 1994 Cri. L.J. 2095 ( A.M.Qureshi Vs. Commr. of Police, Bombay). The exact question which is now raised by the learned Counsel of the Petitioner was raised in the said case. The Apex Court rejected the contention with the following observations :
Therefore, the detaining authority is not under an obligation to tell the detenu that he can make representation to it also.
When the Apex Court has decided the point directly raised under the National Security Act, 1980 in our view, the Petitioners contention that in the grounds of detention, the detaining authority has not informed the detenu about his right of representation to be made to the detaining authority and therefore, the order is illegal has no merit and is hereby rejected.
8. The third and the last contention urged on behalf of the Petitioner is that the grounds of detention do not make out a case of Petitioners conduct affecting the breach of public order and further the conclusions drawn by the detaining authority are not sustainable.
In the grounds of detention we find that number of instances are given to show the conduct of the Petitioner. We will briefly refer to some of the allegations in the grounds of detention.
It is mentioned that the Petitioner has no ostensible means of subsistence and he has taken to crime for the sake of easy money. It is also alleged that he is an active member of notorious gang formed by Shahaji Bhosale. It is alleged that the Petitioner has been indulging in terrorising activities and he has become a potential danger to the safety of the law abiding and peace loving citizens in the concerned locality. Then there is a reference to an assault on Mohan Shivaji Gorad on 27-4-1995 on public road near Hanuman Krida Mandal, Chunabhatti. In that connection a case has been registered against the Petitioner in C.R.No.136/95 in Nehru Nagar Police Station.
Then there is an allegation that on 12-4-1995 at about 1-00 p.m., the Petitioner and his associates went and questioned Sonu Tambe who was standing in front of Swadeshi Mill Godown No.3 Chunabhatti and asked him emphatically to start paying Hafta (forced payment every month) and forcibly collected Rs.1,000/- and further threatened him to stop the work of his contract if the Petitioners demand was not met with.
Then two more instances are shown when the Petitioner was not present and his associates are said to have used threatened to Sonu Tambe. Then on 29-4-1995 Sonu Tambe filed a complaint against the Petitioner and others for extortion and it has been registered in C.R.No.138 of 1995 at Nehru Nagar Police Station.
Then it is stated that number of persons in the locality have suffered at the hands of the Petitioner. But none of them are coming openly to give statement since they are mortally afraid to do so. However, on assurance given by the police that the witnesses will not be called upon to give evidence in Court and their names will not be disclosed some of them came forward and gave statements.
9. Then there is reference to the statements of Witness A, Witness B and Witness C which show the dangerous activities of the Petitioner and his associates in attacking the shop keepers, businessmen, hotel keepers and demanding money etc.
10. A careful scrutiny of the allegations of the grounds of detention gives us clear picture that the alleged activities of the Petitioner concerns the maintenance of public order. They do not concern mere private disputes or private assaults on individual persons. The entire allegations should be read as a whole. In this connection we may also make a reference to the statement of witness A where it is mentioned that on 15-3-1995 the Petitioner and his associates went to his hotel and took food and drink and when the bill was presented by the waiter, the Petitioner and his associates questioned him as to what authority he has to give such a bill and they went to the counter and attacked the person who was at the counter and used threatening words. There was dreadful scene in the hotel and the customers who were in the hotel got frightened and hurriedly left the hotel. It is also alleged that the Petitioner and his associates forcibly removed a cash of Rs.2,000/- from the cash counter and left the hotel by again using threatening words. Similar statements are made by witnesses B and C.
11. It is well settled that the detention order has to be passed on the subjective satisfaction of the detaining authority. The subjective satisfaction of the authority is not subject to judicial scrutiny unless it could be said that all the material produced by the detaining authority, even if believed, will not make out a case of breach of public order or the finding of the detaining authority is otherwise perverse, the sufficiency or otherwise of material cannot be gone into by a Court in a Writ Petition under Article 226 of the Constitution of India.
12. After carefully analysing the allegations in the Petition we are satisfied that the grounds of detention and the other material on record were sufficient for the detaining authority to form an opinion about the dangerous activities of the Petitioner which affected the maintenance of public order.
In our view, none of the three contentions urged on behalf of the Petitioner merit acceptance. No other grounds were urged. Hence, the Petition has to fail.
13. In the result, the Writ Petition is dismissed. Rule discharged.
At this stage, the learned Counsel of the Petitioner seeks certificate of leave to appeal to the Supreme Court. heard. In our view, no ground is made out for grant of certificate of leave. Refused.
Petition dismissed.