Vaishali Pramod Pisal v. Commissioner of Police, Brihan Mumbai & others
2000-03-10
P.V.KAKADE, VISHNU SAHAI
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JUDGMENT - VISHNU SAHAI, J.:---Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner who styles herself as the sister-in-law of the detenu Vinod Sakpal @ Vinod Gulab Pisal, has impugned the detention order dated 29th May, 1999 passed by the 1st respondent Mr. R.H. Mendonca, Commissioner of Police, Brihan Mumbai, detaining the detenu under sub-section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. L.V. of 1981) (Amendment-1996) (hereinafter referred to as the M.P.D.A. Act.). The detention order along with grounds of detention which are also dated 29th May, 1999 was served on the detenu on 31st May, 1999 and their true copies are annexed as Exhibits 'A' and 'C' respectively to this petition. 2. The prejudicial activities of the detenu warranting issuance of the impugned detention order are contained in the grounds of detention (Exhibit 'C'). Their perusal shows that the impugned detention order is founded on one C.R. and three in-camera statements. The C.R. which is referred to in para 4(a-iv) of the grounds of detention is C.R. No. 447/98, under sections 353, 307, 506(ii), 34 of the I.P.C. r/w 3, 25 and 27 of the Arms Act registered at Mulund Police Station against the detenu and his associates on the complaint filed by P.C. Sanjay Manchekar on 16th November, 1998. The details relating to the said C.R. are contained in paragraphs 4(a) to 4(a-iii) of the grounds of detention. In short, they are as under:- Informant Sanjay Manchekar is a resident of Shivshankar Apartment, R. No. 13, Sector-18, Nerul, New Mumbai. One Suresh Sahagal, owner of hotel Hot Plate, situated at Mulund (West), was receiving threatening telephone calls from the last 15 days (prior to 16-11-1998) from an unknown person for 'Khandani' money. He complained to the Additional Commissioner of Police, North-East Region and was provided with police protection. On 16th November, 1998 from 9.30 a.m. Police Constable Sanjay Manchekar in plain clothes was on protection duty at the hotel Hot Plate. At about 2.50 p.m. he noticed the detenu's associates Nilesh Kadam and Raju Gaikwad approaching hotel Hot Plate in a very suspicious manner. He told Nilesh Kadam that he was a policeman and asked him and Raju Gaikwad to halt there. They, however, turned back and started hurriedly going away. On this, Sanjay Manchekar followed them.
At about 2.50 p.m. he noticed the detenu's associates Nilesh Kadam and Raju Gaikwad approaching hotel Hot Plate in a very suspicious manner. He told Nilesh Kadam that he was a policeman and asked him and Raju Gaikwad to halt there. They, however, turned back and started hurriedly going away. On this, Sanjay Manchekar followed them. He noticed that the detenu and his associate Anant Tukaram Durgawale also joined Nilesh Kadam at Devidayal Cross Road Junction and started running away towards Devidayal Road. One of the associates of the detenu fired two rounds from his revolver towards Sanjay Manchekar. The latter in self-defence fired four rounds from his service pistol. On this, the detenu and his associates at the point of revolver and chopper threatened autorickshaw driver Baban Dhondiba More and sat in his autorickshaw and forced him to drive the same very fast. The said autorickshaw sped along the Devidayal Road. Sanjay Manchekar engaged another rickshaw and started chasing the rickshaw of the detenu and his associates. On the way the detenu's associate Nilesh Kadam fired one round towards Sanjay Manchekar's rickshaw. Sanjay Manchekar in turn fired two rounds from his service pistol. At P.K. Road and Goshala Road Junction the autorickshaw in which the detenu and others were going, collided with the compound wall of Pushpanjali Building and halted there. Sanjay Manchekar alighted from his rickshaw and started walking towards detenu and his associates. On this, the detenu's associate Raju Harishchandra Gaikwad pointed a revolver towards him. Hence, Sanjay Manchekar fired one round from his service pistol towards him. When he reached near the detenu's autorickshaw, the detenu's associate Anant Tukaram Durgawale raised a chopper at him. Sanjay Manchekar at the point of service pistol warned them not to move. The detenu and his associate Nilesh Kadam were arrested on the spot and Nilesh Kadam was moved to Mulund General Hospital where he was pronounced dead. 2-A. The three in-camera statements are of witnesses A, B and C respectively and are dated 11th February, 1999, 12th February, 1999 and 14th February, 1999. Statement of Witness A: Witness A in his statement stated that he knew the detenu and his associates Nilesh Kadam, Raju Gaikwad and Anant Durgawale as notorious goondas who moved about armed with lethal weapons and collected hafta monies from shopkeepers and businessmen in areas of Bhandup and Mulund.
Statement of Witness A: Witness A in his statement stated that he knew the detenu and his associates Nilesh Kadam, Raju Gaikwad and Anant Durgawale as notorious goondas who moved about armed with lethal weapons and collected hafta monies from shopkeepers and businessmen in areas of Bhandup and Mulund. One day in the last week of October, 1998, at about 8.00 p.m. while he was present at his business place, the detenu and his associates Nilesh Kadam, Anant Durgawale and Raju Gaikwad came there. On seeing the detenu he got frightened. Nilesh Kadam demanded four months hafta monies in advance and when he showed his inability and requested for time, he whipped out a revolver and gave a fist blow on his stomach due to which he sat down. At this juncture Anant Durgawale kicked him and Raju Gaikwad ransacked the material in the shop. On seeing this incident the customers present in the shop ran away helter-skelter without paying money for the material they had purchased and the nearby shopkeepers downed their shutter. On account of fright he did not report the incident. Statement of Witness B: Witness B in his statement stated that he knew the detenu and his associates Nilesh Kadam, Anant Durgawale and Raju Gaikwad as notorious goondas who moved about armed with deadly weapons such as revolver, chopper, sword and forcibly collected haftas from the shopkeepers and businessmen on threats of assault. One day in the first week of November, 1998, while he and his servants were loading goods in the tempo in order to distribute the same to other businessmen, the detenu along with his said associates came, threatened him to take out hafta money and further told him that he would not be allowed to take his tempo. When he told the detenu and his associates that he would pay the money later, Nilesh Kadam whipped out a chopper and put the same on his neck. The detenu whipped out a rampuri knife and put the same at his stomach and assaulted him and Anant Durgawale and Raju Gaikwad started assaulting him with kicks and fists. On seeing this the servants of the witness and the pedestrians started running away. Anant Durgawale forcibly removed Rs. 2,360/- from his pocket and threatened him not to inform the police and as a consequence thereof he did not inform it.
On seeing this the servants of the witness and the pedestrians started running away. Anant Durgawale forcibly removed Rs. 2,360/- from his pocket and threatened him not to inform the police and as a consequence thereof he did not inform it. Statement of Witness C: Witness C in his statement stated that he knew the detenu and his associates Nilesh Kadam, Anant Durgawale and Raju Gaikwad as notorious goondas from Bhandup and Mulund areas, who on the point of deadly weapons used to collect monies from the shopkeepers and businessmen on threats of assault. He stated that one day in the second week of November, 1998, the detenu and his associates came to the place of his business. Nilesh Kadam whipped out a revolver and held it on his head. The detenu whipped out a chopper and put on his stomach. Anant Durgawale took out a rampuri knife and stood there. He got frightened and implored the detenu and his associates to come later on and take the money. On this Nilesh Kadam pulled out table drawer and Raju Gaikwad removed Rs. 7,000/-. Nilesh Kadam also assaulted him with fists and kicks. Thereafter the detenu and his associates ran away. On seeing the above incident the witness's servants ran away. On account of fright the witness did not report the incident to the police. 2-B. A perusal of paragraph 5 of the grounds of detention would show that the detenu has been detained as a dangerous person under the M.P.D.A. Act. 3. We have heard learned Counsel for the parties. Although in this writ petition a large number of pleas have been raised by Mr. A.P. Gupte, learned Counsel for the petitioner but as he has only pressed two pleas before us namely:- (a) the plea in paragraphs 5 and 8 of the petition which in substance is that even if the prejudicial acts, committed by the detenu, enumerated in the grounds of detention are treated to be gospel-truth they disclose violation of law and order and not public order; and (b) the in-camera statements of witnesses A, B and C are false. 4. The first plea which is mentioned in paragraphs 5 and 8 of the petition has been replied to in paragraph 14 of the return of the Detaining Authority.
4. The first plea which is mentioned in paragraphs 5 and 8 of the petition has been replied to in paragraph 14 of the return of the Detaining Authority. The Detaining Authority has candidly stated in the said paragraph that C.R. No. 447/98 of Mulund Police Station under sections 353, 307, 506(ii) r/w 34 of the I.P.C. r/w sections 3, 25 and 27 of the Arms Act, coupled with the in camera statements of witnesses A, B and C disclose that the detenu's activities were prejudicial to the maintenance of public order. 5. We have considered the averments made in paragraphs 5 and 8 of the petition and paragraph 14 of the affidavit of the Detaining Authority wherein the said averments are replied. We are constrained to observe that the prejudicial activities of the detenu referred to in the said C.R. and the in-camera statements of witnesses A, B and C respectively, involve violation of public order and not law and order simpliciter. 6. Way back in the year 1970 in the oft-quoted case of (Arun Ghosh v. State of West Bengal)1, A.I.R. 1970 S.C. 1228 . Hidayatulla, C.J., drew the distinction between concepts of law and order and public order. The distinction drawn by His Lordship, as we comprehend, is that where on account of acts the even tempo of life of individuals or of a few individuals is affected, the Act would be classified as violation of law and order but if as a consequence of the act the even tempo of life of community as a whole or a segment of community is affected it would amount to violation of public order. 7. When, both in the background of the ratio laid down in A.I.R. 1970 S.C. 1228 (supra) and in the sense in which the expression acting in any manner prejudicial to the maintenance of public order as used in section 2(a) of the M.P.D.A. Act, the prejudicial activities of the detenu are examined there can be no getting away from the fact that they demonstrate breach of public order and not law and order simpliciter. Section 2 of the M.P.D.A. Act reads thus:--- “2. In this Act, unless the context otherwise requires--- (a) “acting in any manner prejudicial to the maintenance of public order” means- (i) ............................. (ii) ............................. (iii) .............................
Section 2 of the M.P.D.A. Act reads thus:--- “2. In this Act, unless the context otherwise requires--- (a) “acting in any manner prejudicial to the maintenance of public order” means- (i) ............................. (ii) ............................. (iii) ............................. (iv) in the case of a dangerous person, when he is engaged, or is making preparation for engaging, in any of his activities as a dangerous person, which affect adversely, or are likely to affect adversely, the maintenance of public order. Explanation.---For the purpose of this Clause (a), public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely inter alia, if any of the activities or any of the persons referred to in this clause directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof, or a grave or widespread danger to life or public health." 8. A persual of section 2 of the M.P.D.A. Act would show that acting in manner prejudicial to the maintenance of public order in case of a dangerous person means when the activities of the said person as a dangerous person affect adversely or are likely to affect adversely, the maintenance of public order. The explanation would show that public order would be deemed to have been affected adversely, if any of the activities of any of the persons referred to in this clause (which would include dangerous person) directly or indirectly cause or are calculated to cause any harm, danger or alarm or feeling of insecurity amongst the general public or any section thereof. 9. A perusal of the said C.R. and the in-camera statements, which we have extracted in some detail earlier, would show that the activities of the detenu as a dangerous person directly caused alarm and feeling of insecurity amongst a section of public. For instance, a perusal of paragraph 4(aii) of the grounds of detention would show that on account of the incident referred to in C.R. No. 447/98 there was hue and cry in the area and pedestrains ran away helter-skelter. Again the statement of witness 'A' would show that on seeing the incident the customers present in the shop ran helter-skelter and the nearby shopkeepers downed their shutters.
Again the statement of witness 'A' would show that on seeing the incident the customers present in the shop ran helter-skelter and the nearby shopkeepers downed their shutters. Again the statement of witness 'B' would show that on seeing the incident the servants of witness 'B' and the pedestrains started running way. Again the statement of witness 'C' would show that on seeing the incident the witness's servants ran away. 10. For the aforesaid reasons, we find no merit in the plea raised in paragraphs 5 and 8 of the petition, namely, that even if the prejudicial acts of the detenu are assumed to be gospel-truth they amount to violation of law and order simpliciter and not public order. We accordingly reject it. 11. The second plea on which learned Counsel for the petitioner has assailed the impugned detention order, is pleaded as ground 9(ix) in the petition. The short and long of the said ground is that the in-camera statements are false and manufactured and the reason for reaching this conclusion has been set out in the ground itself and that is, in the report filed by the Mulund Police Station in the Court of Sessions, Mumbai for opposing the application for bail on behalf of the detenu (M.C.R. No. 447/98), there is no reference to the in-camera statements. 12. Ground 9(ix) has been replied to in paragraph 26 of the return of the detaining authority and the substance of his reply therein is that on account of the dread of the detenu and his associates, no one was prepared to speak against them. The witnesses were given assurance that they would not be called in a Court of law or before any forum and their names would be kept secret. Hence there is no reference to the in-camera statements in the report given by the police at the time of opposing the bail application. 13. We have examined ground 9(ix) and paragraph 14 of the return of the Detaining Authority. We make no bones in observing that High Court in its jurisdiction under Article 226 of the Constitution of India does not ordinarily enter into the question whether the averments in a certain statement are true or false.
13. We have examined ground 9(ix) and paragraph 14 of the return of the Detaining Authority. We make no bones in observing that High Court in its jurisdiction under Article 226 of the Constitution of India does not ordinarily enter into the question whether the averments in a certain statement are true or false. Bearing this in mind, as also the reply of the Detaining Authority to ground 9(ix) of the petition, referred to above, we are of the judgment that there is no merit in this ground. 14. No other ground was pressed before us by Mr. A.P. Gupte, learned Counsel for the petitioner. 15. In the result, this petition fails and is dismissed. Rule is discharged. Petition dismissed. -----