MOHAMMAD SHARIF FARID Vs. SATISH SAHNEY

JUDGEMENT

(1.) BY the present habeas corpus petition, petitioner seeks to impugn an order of detention dated 30th November, 1994 bearing D.O.No.95/PCB/Zone-VI/1994 passed by Shri. Satish Sahney, Commissioner of Police, Greater Bombay under Section 3 (2) of the National Security Act. Incidents which gave rise to the passing of the said order took place on the 26th of June, 1994 and 23rd of September, 1994. The said incidents have been described by the Detaining Authority in the grounds of detention, as under:- "3(a) Mulund Police Station C.R.No.369/94 U/Sec.452, 395, 397, 427, 34 I.P.c. r/w 3, 25 Arms Act, r/w 37(1) (a) -135 B.P.Act. On 26.6.1994, at about 21.45 hours, Shri Kailashchand Shoblal Bohara H/22 yrs., Salesman working in Monika Jewellers, situated at 16, Shankar Smruti Bldg., Opp. Dena Bank, Mahatma Gandhi Road, Mulund (West), Bombay -80, called at the Mulund Police Station and complained as under: "Shri Kailashchand Bohara stated that on 26.6.1994 at about 21.15 hours he was standing near the cash counter and the show case of gold ornaments in the said jewellery shop. At the same time Shri Ravindrakumar Ratanlal Chaudhari, owner of the said Jewellery shop was standing near gold ornaments show case, kept in the inner side of the shop. so also customers, police constable Dnyandeo Appa Kahtal H/34 yrs., attached Mulund Police Station alongwith his wife and two children and one gujarati couple were present in the shop. At about 21, 20 hrs. you alongwith your associates Pappu, Saeed, Kumud and Ahmedulla entered the said jewellery shop and whipped out revolvers, choppers and threatened Shri Kailashchand Bohara, Ravindrakumar Chaudhari and the customers present in the shop saying "In Hindi chalo andar nahi to marega". Therefore, the occupants of the shop entered the small room inside the shop and stood inside the room. Thereafter, you and your associates broke open the show case and removed gold bars, ornaments and cash of Rs.35,000/- (collectively valued at Rs.11,47,500/-) and started to get away. However, your associate Pappu was caught by Ravindrakumar Chaudhari. therefore, you and your other associates assaulted Shri Ravindrakumar Chaudhari and Pappu was freed by you. Due to assault Ravindrakumar had sustained bleeding injuries. You and your associate then ran away from the place. Injured Ravindrakumar Chaudhari was removed to Raj Orthopaedic Hospital, Devidayal Road, Mulund (West), Bombay where he was admitted for treatment. "3(a-i) In this connection a case U/Sec.452, 395, 397, 427, 34 IPC r/w 3,25 Arms Act r/w 37(1)(a)-135 B.P.Act, was registered at Mulund Police Station vide C.R.No.369/94. "3(a-iii) You and your associates Saeed, Kumud and Ahmedulla were arrested in connection with subsequent dacoity case known as `Yamuna Jewellers' case registered at Mulund Police Station vide C.R.No.587/94. You confessed that you alongwith your other associates Pappu @ Wasim Shabbir Siddiqui, Nafis Ahmed, Hasan Mustakin Shaikh and Vahidali, had committed dacoity at Monika Jewellers shop on the day in question. Therefore, you and your above mentioned three associates were shown arrested in the said case on 11-10-1994."... ... "3(b) Mulund Police Station C.R.No.587/94 U/Sec. 395, 397, 452, 341, 120(B) IPC. On 23-9-1994, at about 21.05 hours, Sr.P.I. Naik of Mulund Police Station received a telephonic information from an unknown person that a jeweller's shop named and styled as 'Yamuna Jewellers', situated at Nehru Road, Mulund (West), has been robbed and that one of the robbers is caught on the spot. On receipt of the information, Sr.P.I. Naik, PI Garje, API. Panaskar, S.H.O. PSI. Jawalkar and posse of policemen rushed to the spot and contacted Shri Babulal Nanhelal Jain, H/42 yrs., owner of Yamuna Jewellers, shop No.7, Gajanan Apartment, Jawaharlal Nehru Road, Mulund (West), Bombay -80. Shri Babulal Jain informed the police party that you alongwith your associates armed with deadly weapons entered his jewellery shop and robbed gold ornaments and cash. While doing so he (Babulal Jain) and witnesses were assaulted as a result of which they sustained injuries. However, Shri. Babulal Jain and other witnesses succeeded in apprehending your associate Rahul Sonawane, who was in possession of the country made revolver (Katta) of which he was disarmed. Injured Shri Babulal Jain, witnesses and your associate Rahul Sonawane, who had also sustained injuries, were removed to Mulund General Hospital (West) for treatment. Shri Babulal Jain and witnesses instead of taking treatment in Mulund General Hospital decided to take treatment in private nursing home and went to Laxmi Nursing Home, situated at Jawaharlal Nehru Road, Mulund (W), Shri Babulal Jain and witnesses after treatment were allowed to go. "3(b-i) Shri Babulal Nanhelal Jain in his complaint narrated the following facts. On 23-09-1994, at about 20.30 hours, Shri Babulal Nanhelal Jain was standing at the counter of his jewellery shop and Ramesh Jain (his son), Prakash Jain (his brother) and servants Rasik and Shrikrishna were present in t he shop. At that time your associate Phiroz @ Hasarat Akbarali Pathan entered the said jewellery shop and asked Shri Babulal Jain saying "In Hindi mujhe sone ki anguthi batau". On this Shri Babulal Jain pointed out a tray containing various designs of rings which was in the show case. Your associate Phiroz pointed out one of the rings and asked Babulal saying "In Hindi yah anguthi chahiye" On this Shri Babulal Jain was took out the keys of the show cases from the drawer. At the time you and your other associates viz. Saeed Ahmed Farid Khan, Kumud Narsingh Panigrahi, Ahmedulla Rafiulla shaikh, Vijay Kanhai Kuswah, Rahul Ankush Sonawane and Gulam Hussein Hakikulla Khan and forcibly brought in Shri Rambhavan Mangru Prasad, the security guard standing out sid e the said jewellery shop. Your associates Rahul Sonawane and Gulam were armed with revolvers (country made revolvers-kattas). Your associates Ahmedulla and Vijay Kanhai Kuswah were carrying choppers in their hands. You and your associates threatened Shri Babulal Jain, his son Ramesh, his brother Prakash, servants Rasik and Shrikrishna and watchman Rambhavar and directed them not to move their places. You were standing at the door of jewellery shop at that time and was smoking. Your associates Saeed Ahmed Farid Khan and Kumud Narsingh Panigrahi jumped over the counter and opened the show case cupboard and removed gold bangles, mangalsutras, chains, bracelets, ear ring sets and handed over to your associate Aslam, who took the ornaments in a gunny bag. At the same time your associates Ahmedulla and Vijay Kanhai Kuswah, who were armed with Choppers removed necklaces and zumke (ear rings) and put the same in their pockets. You and your associates armed with weapons were constantly threatening Shri Babulal Jain and his son, brother and servants. Thereafter, you and your all associates, except Sonawane slipped out of the jewellery shop. However, when your associate Sonawane was leaving, Shri Babulal's brother Prakash and son Ramesh pounced upon him (your associate Sonawane) and pulled him inside. Shri Babulal joined them and your associate pulled down on the ground with the result his (your associate Sonawane's) country made revolver and two rounds dropped on the ground. Your associate Sonawane then tried to run away and in that process he (your associate Sonawane) broke the show case glass and assaulted with the piece of it on Babulal's left ear and Ramesh's head. Your associate Sonawane was thereafter overpowered and in that scuffle he (your associate Sonawane) also sustained injuries. Shri Babulal's servant Shri Rasik informed Mulund Police Station on phone, whereas Shri Babulal requested Shri Rajesh of the next door plywood shop to inform police control room. On hearing commotion number of people from the vicinity collected there but none dared to intervene. Shri Babulal after examining his jewellery shop found that gold ornaments like `Kudya, Patlya, Chains, Bangles, Zumke (ear rings), bracelets, rings, necklaces, pendents and mangalsutras' etc., and cash of Rs.35,000/- (collectively valued at Rs.32,03,000/-) were robbed. Your associate Sonawane who was apprehended on the spot, was put under arrest and country made revolver with three live cartridges were seized under a panchanama on the spot." "3(b-ii) In this connection a case under Section 395, 397, 452, 427, 341, 120 (B) IPC r/w 3,25 Arms Act was registered at Mulund Police Station vide C.R.No.587/94."

(2.) IN connection with the aforesaid offences Petitioner and his associates were arrested on 27th of September, 1994. On 29th of November, 1994 application was filed on behalf of the petitioner and his co-accused for bail and by an order passed on the very same day the accused were directed to be released on bail with a direction that they will attend police station from 6.00 p.m. to 7.00 p.m. from the date of release until further orders. On the very next day i.e. on 30th of November 1994 the impugned order of detention was issued and the same was served upon the petitioner and his associates before they could avail of the bail and they were taken in detention.

(3.) WE have on record, an affidavit dated the 11th of July, 1995, sworn by the Commissioner of Police. In para 6 of the affidavit he has averred that at the time of executing the order of detention statement of the petitioner was recorded by A.P.I. Jagtap of Mulund Police Station in which the Petitioner stated that he knows Hindi language very well and, therefore, all the documents were served on the petitioner in Hindi. He has further gone on to deny that the petitioner's right to make an effective representation has been affected. In addition to the aforesaid affidavit, we have a further affidavit dated the 26th of June, 1995 sworn by Shri S.B.Jagtap who has served the order of detention on the petitioner. In para 2 of the affidavit he has averred that the detention order, grounds of detention and material in support thereof were served on the detenu in the language in which they were recorded alongwith their Hindi translation on 1st of December, 1994 at Mulund Police Station. All the documents were explained to the detenu in Hindi on the same day and the detenu has put his left hand thumb impression on copies thereof, in token of having served the documents and having explained the contents thereof to him in Hindi. the left thumb impression has been counter-signed by Shri. Jagtap. Shri Jagtap has further stated that in his statement recorded on the same day the detenu has stated that he knows Hindi language very well and hence all the documents were served on him in Hindi.