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PETITIONER: SMT.  PHULWARI JAGDAMBAPRASAD PATHAK

       Vs.

RESPONDENT: SHRI R.H.  MENDONCA & ORS.

DATE OF JUDGMENT:       26/07/2000

BENCH: A.P.  Misra, J.  & D.P.  Mohapatra, J.

JUDGMENT:

D.P.  MOHAPATRA,J

Leave granted.

In  this appeal filed by the mother of Shyamsunder @ Navin @ Amar @  Mahesh Jagdambaprasad Pathak, the detenu, the judgment of  the Bombay  High  Court  in Criminal Writ Petition  No.872  of  1999, dismissing  the  writ petition is sought to be assailed.  In  the aforementioned   criminal  writ  petition   the   appellant   had challenged  the order of detention dated 19-6-1999 passed by  the Commissioner  of Police, Brihan Mumbai, detaining  Jagdambaprasad Pathak  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.  LV of 1981) (for short referred to as the Act).

The detaining authority passed the order in exercise of the power conferred  by  sub section (1) of Section 3 of the Act read  with the    government    order,       Home    Department    (Special) No.DDS-1399/1/SPL-   3(B)  dated  30th   March,  1999,  on  being satisfied  that  it  was  necessary to make  an  order  directing detention of the detenu with a view to prevent him from acting in any  manner prejudicial to the maintenance of public order.  By a separate order passed on the same day, the detenu was directed to be  detained at Nasik Road Central Prison, Nasik.  The grounds on which  the  detention  order was made were  communicated  by  the detaining  authority to the detenu by a separate communication on the   same  day.   It  was   specifically  stated  in  the   said communication  that  copies  of the documents placed  before  the detaining  authority  were  enclosed   excepting  the  names  and identifying  particulars  of the witnesses/victims in  connection with  the  grounds  mentioned  in paragraph No.4  (b)(  i  )  and 4(b)(ii)  which  could not be furnished to the detenu  in  public interest.   In paragraph 2 of the communication, it was averred : "Your  criminal record shows that, you are a dangerous person  of violent character and also a weapon wielding desperado.  You have created  terror  in localities of Kherwadi Road,  Teen  Bungalow, Chamdewandi,  J.P.   Road,  Khar (East) and the  areas  adjoining thereto within the jurisdiction of Nirmal Nagar Police Station in Brihan Mumbai.

You  and  your  like-minded associates always move in  the  above areas  armed with dangerous weapons like Revolver and Chopper and do not hesitate to use the same while committing the offence like robbery,  extortion, assault, attempt to commit murder,  criminal

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intimidation  etc.   Due  to your criminal activities  which  are prejudicial  to  the  maintenance  of public  order,  the  people residing in the said areas, businessmen are living under constant show of fear.  Due to your such habitual

criminal  activities,  the lives and properties of the people  in the aforesaid areas are in danger."

criminal  The  recent incidents showing  intensified  terrorising activities  on  the part of the detenu and his  associates,  were stated  in detail in paragraphs 4(a), 4(a)(i) and 4(a)(ii).   All the  incidents  referred  to had taken place  between  March  and April, 1999.

Relevant  portions  of paragraphs 4(b), 4(b)(i), and 4(b)(ii)  on which  much stress has been laid by the learned counsel appearing for  the appellant read as follows:  4(b) Confidential  inquiries made into your activities disclosed that, you have been indulging in criminal activities persistently and have victimised number of people in the areas of Kherwadi, Teen Bungalow, Chamdewandi, J.P. Road,  Khar  (East)  and adjoining areas in the  jurisdiction  of Nirmal  Nagar  Police  Station in Brihan  Mumbai.   However,  the witnesses  including  the victims are mortally afraid of  you  to complain  and  to  make statements against you  openly.   On  the assurance  of anonymity and that they would not be called upon to depose  in  the  Court  of Law or any other open  forum  to  make statements against you only then the following witnesses

expressed  their  willingness to make their statements  and  thus their  statements  are recorded "IN CAMERA".  The gist  of  their statements is as under:-

4(b)(i)  Witness "A" is having a bakery and residing at  Kherwadi Road.   In  his statement recorded on 29-4- 1999, he  has  stated that,  he  knows  you  and your associates as  goondas  from  his locality  and move in the areas of Khar (East) armed with weapons and  collect money from traders, businessman and residents of the said locality.

One  day in the second week of March, 1999, at about 19.30 hours, when  the  witness  was present in his bakery, you and  your  two associates  approached him and you pointing out revolver  towards the witness threatened him saying,

When  the  witness showed his inability, you and your  associates started  assaulting witness and his servants and started damaging the   material  in  his  bakery.    Seeing  this  scene,   nearby shopkeepers closed their shops.  Pedestrians, hawkers on the road started  running helter skelter you then put your revolver on the hand  of the witness and your associates threatened his  servants to stand at the corner in bakery, when you exhorted him saying.

Due  to  mortal fear, the witness paid Rs.5,000/- to you.   While leaving you threatened the witness saying, "

Then all of you went away.  Due to fear, the witness did not date to lodge any complaint."

4(b)(ii)  Witness  "B"  is having a garment factory  at  Kherwadi Road,  Bandra  (East), Mumbai 51.  In his statement  recorded  on 29-4-1999, he has stated that he knows you and your associates as notorious and terror creating goondas from his locality.

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One day in the third week of March, 99 at about 11.30 hours, when the  witness  was working in his factory along with his  workers, you along with your two associates approached the witness and you whipped out revolver and threatened the witness saying,

When  your  associates  whipped out choppers and  threatened  his servants  not  to  move.  Seeing this scene,  nearby  shopkeepers closed  their shops, pedestrians and hawkers on the road  started running  helter skelter.  The witness showed his inability to pay such  huge amount and requested to give some relief you assaulted the  witness with kicks and abused in filthy language and  robbed Rs.7900/- from the cash box of the witness and while leaving, you threatened  the  witness saying, ’and thereafter all of you  went away.   Due  to your terror and revengeful attitude, witness  did not lodge the complaint."

In paragraph 5 of the ground the detaining authority has recorded his satisfaction that the detenu is a dangerous person within the meaning  of  Section 2(b-i) of the Act;  he unleashed a reign  of terror;  he had become a perpetual danger to the society at large in  the  localities in question;  and that the people there  were experiencing  a sense of insecurity and were leading and carrying out  their daily avocation under constant shadow of fear  whereby the  even  tempo  of life of citizens was badly  disturbed.   The detaining  authority  went  on to record that the  actions  taken against  the detenu under the ordinary law of the land were found to  be insufficient and ineffective to put a stop to his criminal activities  which  were prejudicial to the maintenance of  public order.

In  paragraph 6 of the grounds, the detaining authority summed up his  conclusion in these words :  "In view of your tendencies and inclinations reflected in the offences committed by you as stated above  I  am further satisfied that, after having availed of  the bail facilities and becoming free person and being a criminal you are   likely  to  indulge  in   activities  prejudicial  to   the maintenance of public order in future and that it is necessary to detain you under the Maharashtra Prevention of

Dangerous  Activities  of Slumlords, Bootleggars, Drug  Offenders and  Dangerous  Persons  Act, 1981 (No.  LV of  1981)  (Amendment 1996)  to prevent you from acting in such a prejudicial manner in future."

In the grounds it was made clear that the detenu had the right to make  a  representation  to  the  State  Government  against  the detention order and also to the Advisory Board.

The  detention  order  passed by the Commissioner of  Police  was confirmed by the State Government by order dated 4.8.1999 and the detenu  was ordered to be continued in detention for a period  of 12  months.   The said order was challenged in the criminal  writ petition  filed before the High Court by the appellant which  was dismissed by the judgment under challenge.

The  principal  contention raised by Shri S.R.  Chitnis,  learned counsel  appearing  for  the  appellant was  that  the  order  of detention  was  vitiated  as  it was based  on  a  single  report registered  by the police and some statements of persons recorded in-camera.   This  according  to  the  learned  counsel  was  not permissible  under  the provisions of the Act.   Elucidating  the contention  the  learned counsel submitted that it has  become  a practice  with  the Mumbai Police to register a single  case  and place  on  record  a  few in-camera statements  of  witnesses  in

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support  of an order of detention under Section 3(i) of the  Act. According  to  the  learned counsel on the  materials  placed  on record  the  detenu  cannot be said to be  a  ’dangerous  person’ within  the  meaning of Section 2(b-1)and therefore could not  be detained  under the provisions of Section 3(ii) of the Act.   The learned   counsel   strenuously   urged    that   statements   of persons/witnesses  recorded in-camera cannot form the basis of  a detention order under the Act.

Shri Altaf Ahmad, learned Additional Solicitor General, appearing for  the  respondents,  on the other hand contended that  on  the facts and circumstances emerging from the materials on record the order  of  detention  passed  against the  detenu  is  legal  and justified.

On  the facts of the case and the contentions raised on behalf of the  parties  as noted in the preceeding paragraphs the  question that  arises  for  determination  is   whether  statement  of   a person/witness  recorded  in-camera can be used by the  detaining authority  for  passing an order of detention under section 3  of the  Act.   As noted earlier it is the contention of the  learned counsel  for the appellant that such a statement cannot form  the basis  of a detention order.  In support of the contention it was urged  that  to bring the detenu within the purview of  the  term "dangerous person’ as defined in section 2(b-1) of the Act it has to  be  shown  that the person either 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  under Chapter VII of the Indian Penal  Code  or punishable  under Chapter V-B of the Arms Act, 1959.  The  phrase "habitually commits" means and suggests persistent and repetitive involvement in incidents which fulfil the conditions required for commission  or  the  offence  or   offences  or  attempt  at  the commission  of  such  offence or abetment of commission  of  such offence.   Mere  recording of some statements in camera which  at best  can  be  said  to  contain  certain  allegations  regarding involvement  of the detenu, without anything more cannot be  said to  fulfil the requirement of "habitually commits or attempts  to commit or abets the commission of any of the offences".

In Section 2(b-1) of the Act the expression "dangerous person" is defined  in these terms :  "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"

Under  Section 2(a) the phrase "acting in any manner  prejudicial to  the  maintenance of public order" means :  "XXXXXXXX  (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  of  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."

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The  detention  order against the appellant herein was passed  on the  allegations  that  he was persistently engaged  in  criminal activities  which  adversely affected the maintenance  of  public order  in  the localities, and therefore, with a view to  prevent him  from  engaging  in  such  activities  it  was  necessary  to preventively  detain  him under the provisions of the  Act.   For consideration of the question whether the appellant could be said to  be a dangerous person it is necessary to read the  definition of  the term in section 2(b-1) and the provision of section  2(a) (iv)  regarding  the  meaning of the term "acting in  any  manner prejudicial  to  the  maintenance of public  order".   Under  the explanation  under  section 2(a)(iv) it is provided  that  public order shall be deemed to have been affected adversely or shall be deemed  likely to be affected adversely if any of the  activities of  any  of  the persons referred to in the  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.  The deeming clause in the explanation widens the scope of the provision in section 2(a)(iv).  It follows that if a person  found  to  be repeatedly engaged in  such  activities  as mentioned  in section 2(b-1) which affect adversely or are likely to  affect  adversely the maintenance of public order he  can  be detained  as  a dangerous person in exercise of the  power  under section  3  of the Act.  Then comes the crucial question  whether ’in-camera’  statements of persons/witnesses can be utilised  for the  purpose  of  arriving  at  subjective  satisfaction  of  the detaining  authority  for  passing the order of  detention.   Our attention  has  not been drawn to any provision of the Act  which expressly  or impliedly lays down the type of material which  can form  the basis of a detention order under section 3 of the  Act. Preventive detention measure is a harsh, but it becomes necessary in  larger  interest  of  society.   It is in  the  nature  of  a precautionary  measure  taken for preservation of  public  order. The power is to be used with caution and circumspection.  For the purpose  of exercise of the power it is not necessary to prove to the  hilt  that  the person concerned had committed  any  of  the offences  as  stated  in the Act.  It is sufficient if  from  the material  available  on  record  the  detaining  authority  could reasonably  feel  satisfied about the necessity for detention  of the  person  concerned in order to prevent him from indulging  in activities  prejudicial  to the maintenance of public order.   In the  absence  of  any provision specifying the type  of  material which may or may not be taken into consideration by the detaining authority and keeping in view the purpose the statute is intended to achieve the power vested in the detaining authority should not be  unduly  restricted.  It is neither possible nor advisable  to catalogue  the  types of materials which can form the basis of  a detention order under the Act.  That will depend on the facts and situation  of a case.  Presumably, that is why the Parliament did not  make  any provision in the Act in that regard and  left  the matter  to  the discretion of the detaining authority.   However, the  facts stated in the materials relied upon should be true and should  have  a reasonable nexus with the purpose for  which  the order is passed.

From  the  grounds of detention and the papers enclosed  with  it copies  of  which were served on the detenu it is clear that  the detaining authority based his subjective satisfaction on a series of  contemporaneous  incidents in which the detenu was  involved. The satisfaction was not based on a single or stray incident.  In the   in-  camera  statements   separate  incidents  of  criminal activities  of  the detenu were stated.  The assertions  are  not assailed  as untrue nor can they be said to be irrelevant for the

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purpose  of the order.  On such materials on record it cannot  be said  that there was no basis for the detaining authority to feel satisfied  that  the detenu was either himself or as a member  or leader  of a gang habitually committed or attempted to commit  or abetted  the commission of any of the offences stated in  section 2(b-1).   Therefore, the contention raised by learned counsel for the  petitioner  that the conclusion arrived at by the  detaining authority  that  the detenu was a ’dangerous person’  within  the meaning of section 2 (b-1) was vitiated cannot be accepted.In our view the detention order under challenge does not suffer from any infirmity.  The appeal being devoid of merit is dismissed.