Research › Browse › Judgment

Bombay High Court · body

1999 DIGILAW 542 (BOM)

Segar @ Sekar K. Nadar v. R. H. Mendonca & others

1999-08-12

T.K.CHANDRASHEKHARA DAS, VISHNU SAHAI

body1999
JUDGMENT - CHANDRASHEKHARA DAS T.K., J.:---The petitioner is the brother of detenu Shri Segar alias Sekar Kasalingam Nadar residing at Vishnu Chawl, Lucky Kirana Stores, Dhobighat, Sion, Koliwada, Mumbai-400037, who has been detained as a dangerous person by the first respondent, Shri R.H. Mendonca, Commissioner of Police, Brihan Mumbai by an order of detention dated 14-12-1998 passed under section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981. The order of detention was served on the detenu on 15-12-1998. Along with the detention order the grounds of detention also dated 14-12-1998 were served on the detenu. The detention order and the grounds of detention are exhibited in the writ petition as Annexures 'A' and 'B' respectively. 2. Though several grounds have been pleaded by the writ petitioner, at the time of hearing, the learned counsel for the petitioner pressed only one ground, i.e. there is no material for the detaining authority to come to his subjective satisfaction that the prejudicial activities of the detenu caused disturbance to the public order, and his activities effected only the law and order. In order to fortify his argument, the learned counsel for the petitioner invited our attention to ground 4(a), 4(b) and 4(b)(II). In 4(a)(i) it is alleged that on 18-9-1998 at about 20.15 hours one Francis Nadar, who was having his hawking business, were returning home with his brother Segar Rayappan Nadar and his brother-in-law Murgan Gopal Nadar and when they reached near G.T.B. Nagar railway station, detenu called him, but suspecting some foul play he did not respond. Annoyed over this, the detenu rushed behind him, pulled out a knife and dealt blows with it on the person of Francis Nadar. Francis Nadar shouted for help when his brother Segar rushed for his rescue, the detenu also assaulted him with the said knife. His brother-in-law Murgan Gopal Nadar rushed there to their rescue but the detenu attempted to catch hold of him and he too sustained injuries from the detenu. A crime has been registered as C.R. No. 329/98 under section 307, Indian Penal Code against the detenu. 3. In ground 4(b) there is mention about in-camera statement recorded of witness 'A'. His brother-in-law Murgan Gopal Nadar rushed there to their rescue but the detenu attempted to catch hold of him and he too sustained injuries from the detenu. A crime has been registered as C.R. No. 329/98 under section 307, Indian Penal Code against the detenu. 3. In ground 4(b) there is mention about in-camera statement recorded of witness 'A'. According to him, in the first week of July, 1998 at about 10.30 hours when witness 'A' was going to Kokari Agar to deliver the gold ornaments to the jewellers at that time he noticed that people were running helter skelter. Some of them were saying Bhago Sekar aya, Sekar aya and the shop keepers were downing their shutters and hawkers also started running away leaving their articles behind. Witness 'A' saw 2/3 persons were coming from opposite direction. One of them was armed with chopper and was showing it to the people. All of them came near this witness and detenu kept the chopper on the neck of this witness and said chalo, paisa nikal naahi tho gardhan kat dalunga. Due to this, this witness was frightened. The witness identified the detenu. The witness pleaded that mere pas paise nahi hai, mujhe chod dho. On this one of the detenu caught hold of this witness and said Sekar bhai mar saleko. On this one of the detenu assaulted this witness due to which he fell down. When the detenu and his associates smelt the arrival of police, hence at the point of chopper he said to the witness aaj baj gaya, saying that the detenu and his associates went away. The witness again stated that he was scared of the detenu and his associates and hence he did not report the matter to the police. 4. Witness 'B' in his statement recorded on 8-10-1998 has stated as follows: One day in the first week of September, 1998 at about 4.30 p.m. 2/3 persons entered into his shop. One of them banged the chopper on the counter and said ye manager chupchap baito, nahi to khadam karunga. Seeing the same two servants and customers ran away from the shop. Other two persons started breaking the glass jars and also ransacked the articles of the shop. You were armed with chopper said to this witness as mujhe Sekar bolthe hai, chal dus hajar rupaye nikal, nahi to kat dalunga. Seeing the same two servants and customers ran away from the shop. Other two persons started breaking the glass jars and also ransacked the articles of the shop. You were armed with chopper said to this witness as mujhe Sekar bolthe hai, chal dus hajar rupaye nikal, nahi to kat dalunga. On this witness was frightened and due to fear this witness handed over cash of Rs. 1000/- and Rs. 1200 from the cash box to you. Afterwards at the point of chopper threatened this witness as baki ka paise phir aake lunga, lekin police mai complaint ki tho jinda nahi rakhoonga, police mujhe kutch nahi kar sakthi. Afterwards you and your associates left the place. This witness was scared of you and your associates and hence did not report the matter to the police. 5. The learned counsel for the petitioner tried to argue that necessary materials to clamp detention order against the detenu was not present in any of the grounds extracted above. He submits that as far as the C.R. is concerned, it is only an individual act and for that an offence has been registered under section 307, Indian Penal Code. We are unable to agree to this contention. Though it may be correct that in the C.R. there are no enough material to show that the offence committed has created a reign of terror in the locality, the statements made by the witnesses 'A' and 'B' will clearly show that the detenu's activities has disturbed the peace and tranquility of the locality. Therefore it effected the public order. 6. Then the learned counsel for the petitioner tried to argue that the in-camera statement has been recorded subsequent to the C.R. and at the same time it revealed the offences said to have been committed earlier to the offence shown in C.R. Therefore he submits that incamera statements cannot be relied on as it was concocted for the purpose of detention. 7. We cannot subscribe to the submission made by the learned counsel because we cannot enter into that controversy in this proceedings, particularly when the learned public prosecutor Mrs. Tahilramani submitted from the file relating to this case that incamera statements of witness 'A' and 'B' has been verified by the Assistant Commissioner of Police. 7. We cannot subscribe to the submission made by the learned counsel because we cannot enter into that controversy in this proceedings, particularly when the learned public prosecutor Mrs. Tahilramani submitted from the file relating to this case that incamera statements of witness 'A' and 'B' has been verified by the Assistant Commissioner of Police. She also brought to our notice a decision of this Court reported in 1994(4) Bom.C.R. 147 in (Smt. Kailas Laxman Joshi v. B. Akash, Commissioner of Police, Thane)1. A Division Bench of this Court to which one of us (Vishnu Sahai, J.) was a party has stated in para 35 as under :- Therefore in view of the clear provisions of the Statute the detaining authority is entitled to and justified to rely upon the material of the nature viz., as contained in the incamera statements of the witnesses. The Court was informed by the learned Assistant Government Pleader that when such statements are recorded keeping the identity of the witnesses confidential or secret, the senior officer in the rank of Assistant Commissioner of Police, who is a Gazetted Officer also verifies and ascertains the correctness or otherwise of such statements. 8. The learned P.P. Mrs. Tahilramani made available the relevant papers to us and we find that the Assistant Commissioner of Police, Matunga Division has verified the veracity of the statement made by the witness 'A' and 'B'. 9. The learned counsel for the petitioner cited before us (Piyush Kantilal Shah v. Commissioner of Police, Ahmedabad)2, 1989 Supp(1) S.C.C. 322 in which the Supreme Court has found in that case that in case of allegation that the alleged detenu was caught with foreign liquor without any pass, permit or licence or that such act alone will not effect public order unless the act has a direct bearing on the question of maintenance of public order. As far as the facts of this case is concerned, we find that this decision has no relevance with the facts of the case before the Supreme Court. As we pointed out earlier the statement of witness 'A' and 'B' clearly show that the activities of the detenu has effected, even tempo of the society and people were scared to even come forward to complaint publicly. In such circumstances the detaining authority is justified in issuing the detention order. As we pointed out earlier the statement of witness 'A' and 'B' clearly show that the activities of the detenu has effected, even tempo of the society and people were scared to even come forward to complaint publicly. In such circumstances the detaining authority is justified in issuing the detention order. The learned counsel for the petitioner also relied on a decision of the Supreme Court reported in 1992(3) S.C.C. 498 , (Lallan Prasad Chunnilal Yadav v. B. Ramamurthi and others)3, which according to us has no relevancy as far as this case is concerned, because the Supreme Court on facts found that materials contains therein does not constitute break of public order unlike in this case. 10. As discussed above, though the C.R. does not contain any element of public order being effected, we see that there are materials in incamera statement made by witness 'A' and 'B' to invoke the provisions of the M.P.D.A. against the detenu. 11. In view of this we do not find any ground to interfere in this writ petition. The writ petition therefore fails and it is dismissed. The Rule discharged accordingly. Writ petition dismissed. -----