PHULWARI JAGDAMBAPRASAD PATHAK Vs. R.H. MENDONCA

JUDGEMENT

(1.) THROUGH this Petition, preferred under Article 226 of the Constitution of India, the Petitioner who styles herself as the mother of the detune Shyamsunder @ Navin @ Amar @ Mahesh Jagdambaprasad Pathak, has impugned the detention order dated 19.6.1999 passed by the First Respondent Mr. R.H. Mendonea, Commissioner of Police, Brihan Murnbai, 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. LV of 1981)(Amendment 1996). (The said Act hereinafter is also referred to as the M.P.D.A. Act). The detention order along with the grounds of detention, also dated 19.6.1999, was served on the detenu on 20.6.1999. True copies of the detention order and the grounds of detention are annexed as Annexures A and C respectively to the Petition.

(2.) THE prejudicial activities of the detenu warranting the issuance of the impugned detention order are contained in the grounds of detention. Their perusal would show that the impugned detention order is founded on one C.R. and two in -camera statement. The C.R. is referred to in ground No. 4 (a)(iii). The said C.R. which is C.R. No. 101 /1999, registered on 16.4.1999, at the Nirmal Nagar police station on the basis of the complaint lodged by one Sursen Bandu Jadhav under Section 384, 387, 34 of the I.P.C. arises out of the facts mentioned in ground no. 4 (a) to 4 (a)(ii). The said facts are as under: - Sursen Jadhav is a resident of Teen Bungalow Tenant's Association, Room No. 83/3/7, J.P. Road, Khar (East) Mumbai - 51. He lives there along with his family. In December, 1996, his wife Swati and some others started a finance agency named M/s Gold Strips Finstocks Pvt. Ltd., having Telephone No. 6456007 at Topiwala chawl, Jaihind Nagar, Pipe line Road, Khar (East) Mumbai - 51. He was helping Swati and others in their work. On 10.3.1999, Sursen Jadhav received threatening calls at his residence telephone Nos. 6456007 and 6513338 from the detenu under the nick name of Sikandar demanding money. Consequently, on 5.4.1999, he lodged a N.C. complaint bearing No. 62/1999 at the Nirmal Nagar police station. Thereafter, his telephone was kept under observation through the Bandra Telephone Exchange by the police. On 6.4.1999, he again received threatening calls from the detenu demanding Rs. 3,00,000/ -. He expressed his inability to pay such a staggering amount and on that the detenu threatened him saying that in case he did not pay the money, he would not remain alive. Again, he received threatening calls on 7.4.99, 8.4.99, 11.4.99 and 11.4.99 from the detenu. On 15.4.1999, at 8.45 p.m. Sursen Jadhav received a telephone call from the detenu. The detenu threatened him saying that he was a dangerous person and associate of Chota Shakil and insisted that he should give a part of the ransom amount otherwise, he would be killed. Consequently, Sursen Jadhav got terribly frightened and showed his inability. The detenu insisted and demanded Rs. 25.000/ -. Sursen Jadhav agreed to pay Rs. 15,000/ - and asked for a day to arrange for the said money. Thereafter, the detenu gave him the description of two of his associates and asked him to meet them in front of Sion Hospital, Gate No. 4 Near Tripti Hotel, Mumbai, from where his associates would collect the money, on 16.4.1999 at 6 p.m. He also threatened him not to report the matter to the police. On 16.4.1999, Sursen Jadhav lodged the F.I.R. under Sections 384, 387, 34 of the I.P.C. referred to above. 2A. The an -camera statements are of two witnesses namely A and B and have been referred to in grounds No. 4 (b) to 4 (b)(ii) of the grounds of detention. Witness A in his in -camera statement recorded on 29.4.1999, stated that he was having a bakery and residing at Kherwadi Road, and knew the detenu and his associate as goonda of his locality who moved in the areas of Khar (East) armed with weapons and collect monies from the traders, businessmen and residents of the said locality. He stated that one day in the second week of March, 1999 at about 7.30 p.m. when he was present in his bakery the detenu and his two associates approached him. The detenu pointed a revolver towards him and abusing him demanded his hafta (weekly share) of Rs. 2000/ -. When he showed his inability to pay the said amount, the detenu and his associates started assaulting him and his servants and damaging the material in the bakery. Seeing this, the shopkeepers closed their shops and the pedestrians and hawkers started running batter - skelter. The detenu put a revolver on his head and he and his associates again abused him and told him to pay Rs. 5000/ - otherwise his brain matter would be taken out. On account of fear, he paid Rs. 5000/ - to the detenu. While leaving, the detenu threatened him saying that in case he reported the matter to the police, his hands and legs would be broken. Thereafter, he went away. Witness B is having a Garment factory at Kherwadi Road, Bandra (East) and in his statement recorded on 29.4.1999 stated that he knew the detenu and his associates as notorious goondas creating terror in the locality. He stated that one day in the third week of March, 1999, at about 11.30. a.m. when he was working in his factory along with his workers, the detenu and his associates approached him. The detenu whipped out a revolver and threatened him to give Rs. 10.000/ -. His associate whipped out a chopper and threatened the servants not to move. Seeing this, the nearby shopkeepers closed their shops and the pedestrians and hawkers on the road started running helter skelter. The witness expressed his inability to pay such a big amount on which, the detenu assaulted him, abused him and took out Rs. 7.900/ - from his cash box. While leaving he threatened the witness saying that in case every month the hafta amount (the weekly demand) was not met, he would be rendered in a hapless state. Thereafter, the detenu went away.

(3.) THE argument canvassed by Mr. Chitnis is that a perusal of the grounds of detention shows that the detenu was detained as a 'dangerous person within the meaning of Section 2(b -i) of the MPDA Act and the material famished in the grounds of detention does not warrant inference that he is a 'dangerous person' under the said provision. Mr. Chitnis urged that the detenu would not fall within the definition of 'dangerous person ' used in the said provison. To appreciate Mr. Chitnis's submission, it would be necessary to extract Section 2(b - i) of the M.P.D.A. Act. It reads thus: - 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. A perusal of the said provision, in the contention of Mr. Chitnis shows that a person can be only detained as a dangerous person there under, if either individually 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 Chapters XVI of XVII of the Indian Penal Code or Chapter V of the Arms Act, 1959. Mr. Chitnis's submission is that the impugned detention order is founded on one C.R. and two in - camera statement, namely of witnesses A and B. His submission is that the expression 'commission of any of the offences' used in Section 2(b - i) of M.P.D.A. Act, would not include in -camera statements because, on the basis of the in -camera statements, no complaint or F.I.R. has been registered. He urged that if the in -camera statements are excluded then a solitary C.R. would remain against the detenu and if a solitary C.R. remains against him, then the detenu cannot be said to be habitually committing or attempting to commit or abetting the commission of acts, either under Chapter XVI or XVII of the Indian Penal Code or Chapter V of the Arms Act, 1959. Mr. Chitnis invited our attention to Section 2(n) of the Cr. P.C. wherein the word 'offence' has been defined thus: - 'offence' means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871 (1 of 1871) To fortify his submission that the expression 'any of the offences' used in Section 2(b - i) of the M.P.D.A. Act, would not include in - camera statement, Mr. Chitnis placed reliance on the following decisions of the Supreme Court: - (i) Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad and Anr. (1989) 4 SJabhar -MiyaCC 43. (ii) Rashidmiya @ Chhaya Ahmedmiya Shaikh, v. Police Commissioner, Ahmedabad and Anr. AIR 1989 SC 1703 (iii) Ayub alias Pappu Khan Nawabkhan Pathan v. S.N. Sinha and Anr. : 1990CriLJ2232 . (iv) Mustakmiya Jabhar -Miya Shaikh v. M.M. Mehta, Commissioner of Police, and Ors. : (1995)3SCC237