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1998 DIGILAW 547 (BOM)

Sherkhan @ Sheru Kadar Khan v. R. H. Mendonca & others

1998-10-09

N.ARUMUGHAM, VISHNU SAHAI

body1998
JUDGMENT - ARUMUGHAM N., J.:-This writ petition has been filed by the detenu himself under Article 226 of the Constitution of India, impugning the order of detention passed by Mr. R.H. Mendonca, Commissioner of Police, the first respondent by virute of section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-Offenders Act, 1981 as amended in 1996 as well as section 8 of the said Act and to quash the same. The impugned order as well as the grounds of detention was served contemporaneously upon the detenu on 4-12-1997 which has been referred in Annexures A and B respectively of the petition. 2. The detention order above referred has been passed for the following prejudicial activities of the detenu:- Ganpat Vasant Kharat aged 19 years is resident of Saibaba Nagar, Behind Himalaya Hotel, 90 Feet Road, Dharavi, Bombay. On 4-5-1997, night at 23.30 hours after playing carrom at social nagar, he was returning to his house along Macchi galli, 90 Feet Road, Dharavi. At that time, the detenu armed with a sword, and his associate Sannu Pir Mohammed armed with a sickle and Lawrence armed with a bamboo stick accosted him. The detenu and his associates started abusing Ganpat Vasant Kharat and the detenu dealt a blow with sword on his person. Ganpat Kharat sustained an injury on his right hand near the wrist. At this juncture, Shri Allauddin Abdul Sakur Shaikh, aged 19 years who was proceeding along Macchi galli witnessed incident, who asked the detenu about the assault on Ganpat Kharat, when the detenu's associate Sannu Pir Mohammed gave a blow with sickle on the wrist of the right hand of Allauddin Abdul Sakur Shaikh. The detenu dealt repeated blows with sword on the head of Allauddin and the detenu's associate Lawrence who was armed with a bamboo stick gave blows with it on the person of Allauddin. Due to the said assault, Allauddin collapsed on the ground. While he was removed to LTMG Hospital Sion, in Ward No. 16 for medical treatment, Ganpat Kharat was also treated at the hospital. In this connection, a complaint of Allauddin Abdul Sakur Shaikh was registered at Dharavi Police Station as C.R. No. 222/97 under sections 326, 114, Indian Penal Code. The associate of the detenu by name Sannu Peer Mohammed and Lawrence Francis D'Souza were arrested on 6-5-1997 and 7-5-1997 respectively. In this connection, a complaint of Allauddin Abdul Sakur Shaikh was registered at Dharavi Police Station as C.R. No. 222/97 under sections 326, 114, Indian Penal Code. The associate of the detenu by name Sannu Peer Mohammed and Lawrence Francis D'Souza were arrested on 6-5-1997 and 7-5-1997 respectively. The detenu's associates admitted their complicity in this offence in their statements recorded by the police. On 16-5-1997 at the instance of the detenu's associates Sannu Pir Mohammed Sayyed and Lawrence D'Souza the sickle and bamboo stick used by them respectively in the commission of offence were seized under a memorandum of panchanama. The detenu was arrested on 19-8-1997 and that he admitted his complicity in this case in the statement recorded by the police. The detenu has also stated to the police that the detenu were arrested by the Dharavi Police in the past in connection with the cases of assault, criminal intimidation and possession of lethal weapons. He was remanded to judicial custody and then he was taken to police custody and then the detenu was enlarged on bail. One Hanif Mohammed Shaikh is doing the business of vegetable and residing at New Social Nagar, Swaraj Chawl, Room No. 45, 90 feet Road, Dharavi, Mumbai-17. He has also a factory manufacturing leather bags on the mezanine floor of his resident place. There are two workers in his factory whose names are Kalim and Mohammed Shabbir. Hanif Mohammed knows the detenu and his associates Salavoo alias Salauddin, Lawrence and Verghese as goondas roaming in the localities armed with lethal weapons and extorting money form residents and hawkers. On 21-9-1997, at about 22.00 hours, when Hanif Mohammed Shaikh was in his bag factory with his workers, when the detenu and his associates Salavoo alias Salauddin, Lawrence and Verghese went there. The detenu was armed with a knife, and his associate Lawrence was armed with a sickle, Salauddin was armed with chopper and Verghese was armed with a sword. The detenu's associate Lawrence demanded Rs. 2,000/- from Hanif Shaikh. When Hanif expressed his helplessness, the detenu threatened him at the point of knife and the detenu's associate Verghese started throwing the articles in the factory. The workers got scared and ran away. The detenu and his associate Lawrence further threatened Hanif Shaikh with dire consequences. Due to fear, Hanif Shaikh handed over an amount of Rs. 1,000/- to the detenu. The workers got scared and ran away. The detenu and his associate Lawrence further threatened Hanif Shaikh with dire consequences. Due to fear, Hanif Shaikh handed over an amount of Rs. 1,000/- to the detenu. While leaving the detenu and his associates threatened him not to report the incident to police else he would be killed. As the detenu was leaving, the place, brandishing the weapons nobody came for his rescue. Hanif Shaikh was terribly frightened and he did not report the incident immediately to the police. On 30-9-1997, he called at Dharavi Police Station and reported the matter. In this connection, an offence under sections 386, 34, Indian Penal Code was registered against the detenu and his associates vide C.R. No. 506/97. The detenu's associates were arrested on 1-10-1997 and they had admitted their complicity in their statements so recorded. The weapons of offence has also been recorded on 6-10-1997 and the detenu in this case was arrested on 13-10-1997, and they were remanded to judicial custody. Then police took custody of the said persons and subsequently they were released on bail. 3. Confidential enquiries were made into the detenu's criminal activities which disclosed that he had victimised number of people from the areas of Dharavi. As the detenu was a weapon wielding dangerous person, the victims and witnesses to his activities were afraid to complain and make statements against them openly due to fear of retaliation. On getting the assurance that their names and identity particulars would not be disclosed to the detenu and that they would not be called to depose against him in the Court of law or any other open forum, some of the witnesses gave their statements, depicting the atrocious acts of the detenu. The statements recorded from witness A an electrician would reveal that he knows the detenu and his associates, as goondas collecting haftas from the factory owners, residents and businessmen. The detenu and his associates have created terror due to which people live under terrorism and nobody dares to complain against him. It would further reveal that in the third week of July 1997, one night at 22.00 hours, when this witness was returning home, the detenu's associates chased him, caught him and brought him to the detenu as per his direction. The detenu's associate Lawrence threatened him and the detenu showed a knife to terrorise him. It would further reveal that in the third week of July 1997, one night at 22.00 hours, when this witness was returning home, the detenu's associates chased him, caught him and brought him to the detenu as per his direction. The detenu's associate Lawrence threatened him and the detenu showed a knife to terrorise him. The detenu's associates took his personal search and forcibly removed Rs. 2,400/- and further assaulted him by fist blows. Witnessing this, people who were going to the toilet got scared and ran away. The detenu and his associates further threatened and went away. Likewise Witness B is a footwear maker and seller form 90 feet Road, Dharavi. In his statement dated 24-10-1997, he has stated that he knows the detenu and his associates Lawrence as goondas roaming in the areas of social nagar, Dharavi terrorising the public, the detenu and his associates are moving about armed with chopper, sword, knife threatening people and collecting hafta. The detenu has spread panic and due to it, people are unwilling to complain against him. It was further revealed that in the second week of August, 1997 at about 13.30 hours, when this witness and his servants were engaged in their work, the detenu and his associates Lawrence and two others, entered his factory armed with sword and choppers respectively. The detenu hit the sword on the wooden table in the factory and the detenu's associates brandished the choppers in the air and created terror. The servants sat on a corner out of fear. The detenu held the sword on the stomach of the witness and demanded Rs. 1,000/- as hafta and threatened him to assault. The witness pleaded for mercy. The detenu's associate Lawrence attacked the witness by the blunt side of chopper and threatened him. Due to mortal fear, the witness immediately parted with an amount of Rs. 700/- the detenu and his associates then threatened him not to report the incident to police and went away. At that time, out of the detenu's fear nobody came for his rescue. 4. Due to mortal fear, the witness immediately parted with an amount of Rs. 700/- the detenu and his associates then threatened him not to report the incident to police and went away. At that time, out of the detenu's fear nobody came for his rescue. 4. Placing reliance on the above prejudicial activities, placed by the sponsoring authority, the first respondent the Detaining Authority had gone through each and every aspect of the same meticulously and arrived at the subjective satisfaction that the prejudicial activities of the detenu and his associates would demonstrate that the detenu is a dangerous person and having taken to the life of a criminal for easy money and unleased a reign of terror and have perpetual danger to the society at large within the jurisdiction of Dharavi Police Station and arrived at a conclusion that the detenu is dangerous person and therefore passed the impugned order of detention dated 4-12-1997 against the detenu and thus clamped him in detention by passing the detention order and the detenu being aggrieved by the same, has filed this writ petition challenging the same and to quash the same. 5. The Detaining Authority Mr. R.H. Mendonca, Commissioner of Police, Mumbai filed a sworn affidavit reiterating the grounds of clamping the detention order against the detenu and by Mr. V.S. Sankhe, under Secretary to the Government of Maharashtra, Home Department (Special) Mantralaya, Mumbai filed a sworn affidavit in support of the affidavit filed by Mr. R.H. Mendonca. 6. We have heard the rival submissions. In the above context by the bar for the respective parties. 7. Mr. U.N. Tripathi learned Counsel appearing for the petitioner confined his argument only to ground (b) in para 6 of the writ petition, though several other grounds were taken that two cases registered by the police in C.R. No. 222/97 and 506/97 the incidents narrated in the grounds of detention pertaining to the alleged activities of the petitioner, does not amount to public order at all and that if at all it would come under the category of law and order problem between the individuals and that therefore, the very activities referred to above in the above cases, would not come under the concept of public order and that therefore, for the abovesaid reasoning, the impugned order would become vitiated null and void. 8. We have heard Mr. 8. We have heard Mr. R.L. Patil, Additional Public Prosecutor for the respondents who resisted the contentions made by and on behalf of the petitioner, Mr. U.N. Tripathi. Before we proceed further, it has become relevant for us to advert to the relevant definitions provided by the statute namely the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders Act, 1981 as modified upto September, 1981 amended by M.A. No. 24/88 and No. 29/96 as stated hereunder:- Definition 4 in section 2(b) reads as under:- "dangerous person" means a person who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959." 9. The explanations provided to the above section has become pertinent at this stage, to refer to the parties for proper adjudication of the case which is as follows:- For the purpose of Clause (a) pubic order shall be deemed to have affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any of the persons referred to in this clause directly or indirectly is based or calculated to cause any harm, danger or alarm or filing of any or the general public or any section thereof. 10. We have carefully and meticulously gone into the incidents as grounds passed by the Detaining Authority for clamping the order of detention on the detenu in the instant case. With regard to the first incident, in which a case was registered under C.R. No. 222/97, we feel that substance of the said allegation would definitely be and by one and single person and the detenu and his associates which activities whatever it may be, is a matter definitely comes under the law and order category for which the culprits have to be booked under the relevant provisions of law. Therefore, after having gone through the same, in the context of sections and explanations quoted above, for the facts of the instant case, we are able to see some force in the argument advanced by Mr. Tripathi learned Counsel appearing for the petitioner. Hence we accept the same. 11. Therefore, after having gone through the same, in the context of sections and explanations quoted above, for the facts of the instant case, we are able to see some force in the argument advanced by Mr. Tripathi learned Counsel appearing for the petitioner. Hence we accept the same. 11. But, however coming to the subsequent incident which resulted in the registering of a case in C.R. No. 506/97 and recording of the statement from witnesses A and B in-camera by the police, would clearly go to show that not only individual persons like the owner of a small factory and the other individual but also workers who are part and parcel of the segment of the society of the said area, have been scared away and threatened by the activities of the detenu and his associates directly if not so, indirectly. There are clinching materials made available in-camera statement recorded by the police from the persons of the locality with regard to the very prejudicial activities of the detenu and his close associates throughout the day and night during which the very normal tempo and life of the society if not a whole but a segment of the working class of the area or meek persons of the said locality were put on actual threats by brandishing lethal weapons and they were put under a constant fear of their life even such prejudicial activities of the detenu and his associates would clearly come within the teeth of the definition "public order" as given in the section of law itself. 12. It is not in controversy among the bar that if the activities of a single person or persons, which affects the even tempo of life of the society or affect of which will terribly affect the even segment of the society in a particular area, then it would undoubtedly come under the definition of "public order" and that in order to prevent such prejudicial activities by virute of sub-section 1(3) of the Act, it would be proper to clamp the order of detention against such a person. In the light of the above settled judicial pronouncements, we are not inclined to refer to the decided case-laws which are voluminous in this regard and it is for the said reasons, we are of the considered opinion that even the first incident fails to come within the ambit of ''public order'' of the rest of the activities committed by the detenu along with his associates and particularly the incidents happened in the second case registered in C.R. No. 506/97, clamping of the detention order on the detenu by the first respondent, does not become vitiated and thus has become valid in law, and that failure of one ground may not affect the very availability of other grounds as found in the grounds of detention by virtue of section 5(a) of the M.P.D.A. Act, 1981. 13. No other substantial point has been placed before us for our consideration. As such, we do not find any merit in this writ petition. 14. In the result, for the aforesaid reasons and findings, the writ petition must fail and accordingly, it is dismissed. Rule issued earlier is discharged. Petition dismissed. -----