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2003 DIGILAW 1075 (BOM)

Sunil Pandurang Parkar v. M. N. Singh, Commissioner of Police & others

2003-10-03

P.V.KAKADE, RANJANA DESAI

body2003
JUDGMENT - SMT. DESAI RANJANA, J.:---The petitioner is detained under an order of detention dated 7-10-2002 issued by the Commissioner of Police, Mumbai, under the provisions of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (for short, the MPDA Act). The order of detention and grounds of detention along with the material in support thereof, were served on the petitioner on 20-11-2002. In this petition, the petitioner has challenged the said order of detention. 2. The order of detention rests on two cases and two in-camera statements. The first case is C.R. No. 171 of 2002 under sections 324 and 506(ii) read with section 34 of Indian Penal Code. The second case is C.R. No. 174 of 2002 under sections 386 and 387 read with section 34 of Indian Penal Code. The Detaining Authority has relied on in-camera statements of witnesses "A" and "B" recorded on 1-8-2002. Witness "A" has deposed about an incident which took place in the first week of July, 2002 when the petitioner and his associates threatened him with chopper and asked for Hafta. Witness "B" has deposed about an incident which took place in the fourth week of June, 2002 when the petitioner and his associates threatened him with chopper and asked for hafta. On the basis of these two cases and the two in-camera statements, the Detaining Authority has observed that he is subjectively satisfied that the petitioner is a dangerous person within the meaning of section 2(b-1) of the MPDA Act. He has further stated that the petitioner had unleased a reign of terror and has become a perpetual danger to the society at large in the localities of Kumbharwada, P.B. Marg and areas adjoining thereto in the limits of V.P. Road Police Station in Brihan Mumbai. It is further stated that the people in the above localities are experiencing a sense of insecurity and are living and carrying out their daily avocations under a constant shadow of fear, whereby the even tempo of the life of society in the above localities is badly disturbed. It is further stated that the action taken against him under the normal law of the land is found ineffective and inadequate to put a stop to his criminal activities which are prejudicial to the maintenance of the public order. It is further stated that the action taken against him under the normal law of the land is found ineffective and inadequate to put a stop to his criminal activities which are prejudicial to the maintenance of the public order. Awareness is expressed of the fact that the petitioner has availed of bail facility. Apprehension is expressed that if the petitioner is not preventively detained, he is likely to indulge in similar activities in future. 3. We have heard at some length Mr. Tripathi, the learned Counsel appearing for the petitioner. He submitted that the order of detention deserves to be set aside because the Detaining Authority has stated that the grounds of detention are mentioned in paragraph 4. In paragraph 4, he has stated that the complainant-Mr. Pradeep Dayaram Chowrasia knows the petitioner as gangster affiliated to Arun Gawali gang. Mr. Tripathi submitted that the Detaining Authority was, therefore, influenced by the fact that the petitioner is a member of Gawali gang. However, barring the statement of the complainant, there was nothing on record to suggest that the petitioner is a member of Gawali gang. No material in support of the above statement is supplied to the petitioner though he has demanded it. This averment is not based on any documentary evidence. If it is based on some extraneous material, it is not supplied to the petitioner and, therefore, the order of detention should be set aside. 4. We are unable to accept this submission of the learned Counsel. Firstly, it is clear from paragraph 4(a) that the Detaining Authority has merely reproduced what the complainant has stated in his complaint that the petitioner is affiliated to Arun Gawali gang. It, therefore, cannot be concluded from this that the entire order of detention is based on this fact or the Detaining Authority is influenced by this fact while passing the order of detention. In any event, we find that the explanation given by the Detaining Authority in his affidavit filed in response to the petition meets the submission of the learned Counsel. In any event, we find that the explanation given by the Detaining Authority in his affidavit filed in response to the petition meets the submission of the learned Counsel. The Detaining Authority has stated that the complainant in C.R. No. 174 of 2002 has specifically stated that he knows that the petitioner and his associates are affiliated to the notorious Arun Gawali gang and this fact was duly verified by the Sponsoring Authority during the course of investigation and, thereafter, the Senior Inspector of Police has forwarded the proposal to the Detaining Authority. He has further stated that he can rely upon the verification done by the officer subordinate to him. After perusing the material in support of the grounds of detention, we are satisfied that in fact such a verification seems to have been done. Moreover a remand application dated 13-7-2002 was filed by the Sponsoring Authority. In that remand application remand is sought on the ground that it was necessary to find out whether the arrested accused are members of the Arun Gawali gang or not. In the remand application filed in C.R. No. 174 of 2002 dated 16-7-2002 the Sponsoring Authority has gone a step further and stated that the accused be remanded to custody because they are connected with notorious Gawali gang. It is clear therefore that the Sponsoring Authority wanted to find out whether the petitioner is affiliated to the Gawali gang and after getting confirmation about this fact, the Sponsoring Authority has sought remand of the petitioner on the ground that the petitioner belongs to Gawali gang. It is significant to note that copies of these remand applications have been supplied to the petitioner. Therefore, the petitioner cannot be heard to say that there was no material before the Detaining Authority to come to the conclusion that the petitioner belongs to the Gawali gang and that the said material was not supplied to him. This submission of the learned Counsel must therefore fail. 5. Mr. Tripathi also urged that by the representation dated 31-1-2003 sent on behalf of the petitioner, documents in support of the averment that the petitioner belongs to the Arun Gawali gang were asked for in order to make an effective representation. The said documents were not supplied by the State Government. 5. Mr. Tripathi also urged that by the representation dated 31-1-2003 sent on behalf of the petitioner, documents in support of the averment that the petitioner belongs to the Arun Gawali gang were asked for in order to make an effective representation. The said documents were not supplied by the State Government. The State Government by its reply dated 5-2-2003 asked the Advocate for the petitioner to contact the Detaining Authority i.e. Commissioner of Police, Brihan Mumbai. Mr. Tripathi submitted that once vital documents are asked for, it is the duty of the Detaining Authority to furnish copies of those documents and the Detaining Authority cannot ask the petitioner to go from authorities to authorities. So far as his contention that vital documents must be supplied to the petitioner is concerned he relies upon (Ramchandra A. Kamat v. Union of India and others)1, A.I.R. 1980 S.C. 765 and (Vashisht Narain Karwaria v. State of U.P. and another)2, 1990 Cri.L.J. 1311. He also relied upon (Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat and others)3, 1981(2) S.C.C. 37. 6. Mr. Tripathi also urged, relying upon another decision of this Court dated 20-9-2003 in (Shri Aslam Amin Shaikh v. Shri M.N. Singh others)4, in Criminal Writ Petition No. 155 of 2003 to which one of us is a party (Smt. Ranjana Desai, J.), that when a request for vital documents is made after the order of detention is approved, the State Government becomes the Detaining Authority and, therefore, the State cannot evade its responsibility to supply the vital documents and ask the petitioner to approach the Commissioner of Police. He submitted that the right of the petitioner to make an effective representation at the earliest is affected and on that ground also the order of detention deserves to be set aside. 7. So far as the principle that the documents which are referred to and relied upon in the grounds of detention must be supplied to the petitioner is concerned there can hardly be any doubt. But, we have already noted that there was sufficient material before the Detaining Authority to indicate that the petitioner belongs to the Arun Gawali gang and copies of that material were supplied to the petitioner. But, we have already noted that there was sufficient material before the Detaining Authority to indicate that the petitioner belongs to the Arun Gawali gang and copies of that material were supplied to the petitioner. Therefore, there was no question of the State Government supplying any other documents to the petitioner in that connection, in the representation demand is also made for charge-sheets in C.R. No. 171 of 2002 and C.R. No. 174 of 2002. In this connection the Detaining Authority had, in his affidavit stated that so far charge-sheet in C.R. No. 174 of 2002 is concerned it was not filed till the issuance of the detention order. So far as charge-sheet in C.R. No. 171 of 2002 is concerned, it is stated that the documents in connection with the same are supplied to the petitioner. The grievance about non-supply of documents will have to be, therefore rejected. 8. In any case, we would like to clearify that though in Aslam's case (supra) we have stated that once a detention order is approved and if a representation is addressed to the State Government after approval of the detention order, the State Government cannot direct the detenu to go from authorities to authorities in search of documents, request for any and every document need not be complied with by the State Government. It is our experience that on a number of occasions some innocuous documents which have no relevance to the detention of a person are asked for. It is not necessary to supply such documents. Whether a particular document is vital or not would depend on facts and circumstances of each case. While examining this submission, it will be open to the Court to see the nature of the documents asked for and come to a conclusion whether non-supply of the documents has affected the detenu's right to make an effective representation or not. 9. We may take this opportunity to express our opinion on one more important aspect. It is true that no particular format of a representation is prescribed. When a representation is sent through jail by a detenu without the assistance of a lawyer strict rules of pleadings cannot be applied to it. But a representation addressed by a lawyer is expected to be in clear and unambiguous language. It is true that no particular format of a representation is prescribed. When a representation is sent through jail by a detenu without the assistance of a lawyer strict rules of pleadings cannot be applied to it. But a representation addressed by a lawyer is expected to be in clear and unambiguous language. In this case the subject of the representation is shown as "Representation for revocation of detention order-cum-request for certain vital documents of Shri Sunil Pandurang Parkar a MPDA detenu". In the representation, there is a demand for documents. But in the prayer clause there is a prayer for revocation of the detention order. There is no prayer for supply of documents. This creates confusion. Quite often the representations are sent to different desks for processing. In (Smt. Sakshi Makhija v. V.K. Saraf others)5, Cri. Writ Petition No. 1105 of 1987 decided on 27-1-1988 the representation was drafted in an ingenuous manner. It was not clear whether it was a complaint about the police or it was sent with a prayer for revocation of the detention order. The judgment of the Supreme Court in (Shalini Soni v. Union of India)6, A.I.R. 1987 S.C. 431 was cited in support of the submission that no particular format of representation is prescribed. Yet, this Court held that the document placed before it cannot be accepted as a representation. We feel that it is not necessary for us to state that the lawyers should draft the representations with a sense of responsibility. The language used and the prayers made must create no confusion. 10. Lastly, Mr. Tripathi submitted that in the in-camera statements, the localities in which the petitioner is supposed to have threatened witnesses "A" and "B" is not stated and this has affected the petitioner's right to make an effective representation. This submission also deserves to be rejected. It is important to note that in the writ petition no specific ground is taken in this behalf. However, since the petition challenges an order of preventive detention, we shall deal with this submission also. We have perused the in-camera statements. Witnesses "A" and "B" have began by saying that they know the petitioner to be a person having criminal tendencies who operates in Kumbharwada area. Thereafter, the incident in question is narrated. This in our opinion gives sufficient goes to the petitioner about the area of his operation. We have perused the in-camera statements. Witnesses "A" and "B" have began by saying that they know the petitioner to be a person having criminal tendencies who operates in Kumbharwada area. Thereafter, the incident in question is narrated. This in our opinion gives sufficient goes to the petitioner about the area of his operation. We feel that the particulars set out in in-camera statements are sufficient to enable the petitioner to make an effective representation against the order of detention. This submission is also, therefore, rejected. No other submissions have been advanced by Mr. Tripathi. 11. In the ultimate analysis, we find that there is no substance in this petition and hence the petition is rejected. Petition rejected. -----