2000 ALL MR (Cri) 177


Abdul Rehman Mohd. Shaban Khan Vs. Shri. R. H. Mendonca & Ors.,

Cri. Writ Petition No. 81 of 1999

19th August, 1999

Petitioner Counsel: Mr. PRAKASH NAIK
Respondent Counsel: Mr. RAJIV PATIL

Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act (1981), S.3 - Detention under - Delay of three months in passing detention order - Activities of detenu disclosed in C.R. and incamera statement showing propensity and potentiality of a very grave nature - Held live link between prejudicial activities and rationale of passing the order was not snapped on account of delay. (Para 4)


T. K. CHANDRASHEKHARA DAS, J.:- This writ petition arises out of a challenge made by the petitioner, assailing his detention by order dated 8-9-98 passed by the first respondent Mr. R. H. Mendonca, Commissioner of Police, Greater Bombay, under section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act. The grounds of detention, also dated 8-9-98, was served on the petitioner on 10-9-98 along with the detention order.

2. Though several grounds have been pleaded in order to challenge the impugned detention order, Mr. Prakash Naik the learned counsel for the petitioner pressed before us at the time of hearing only one ground, namely, that there was an undue delay in passing the detention order from the last prejudicial activities and therefore the live link is snapped between the prejudicial activities and the rationale of passing the detention order. According to him the last prejudicial activities was disclosed through the statement from witness 'B' on 1-6-98 and the detention order was passed only on 8-9-98. This delay of three months has not been explained as alleged by him in ground 6(3) of the writ petition.

3. A reply has been filed by Mr. R. H. Mendonca, Commissioner of Police, on 10-8-99 wherein no satisfactory explanation has been shown for the delay. In that context when the matter came up for hearing on 12-8-99 Mr. Rajiv Patil the learned A.P.P. sought time for filing the additional affidavit stating that the files relating to the case does contain necessary explanation for the delay. We had in that context granted time till 16-8-99 for filing the reply. Accordingly Mr. R. H. Mendonca filed an additional reply dated 16-8-99 and paragraph 2 contains the details of explanation for the delay of three months. On a reading of this affidavit, we find that there is a delay of one month for initiating the proposal from the last prejudicial activities. The proposal was initiated only on 2-7-99 when the last prejudicial activities was reported only on 1-6-98. Another stage of delay has occurred in moving of files through the hierarchy of the officers and that after obtaining the legal opinion of the Assistant Director and Public Prosecutor on 21-7-98, the proposal forwarded to the Assistant Commissioner of Police (Crime Branch) and he recommended the proposal on 22-7-98 and forwarded the same to the Deputy Commissioner of Police (Crime Branch) Preventive Detention CID and he could recommend the proposal only on 8-8-98. Consequently we could see a delay of 15 days which has not been explained. After the Joint Commissioner of Police Crime Branch considered the proposal on 19-8-98 and he was satisfied prima facie that it is a fit case for consideration of the proposal for detention under MPDA, he directed the office PCB CID to prepare compilation and translation if any and PCB CID complied with the directions on 3-9-98 and the proposal was submitted through the Additional Commissioner of Police (Crime Branch) on 4-9-98 and after scrutiny and examination of all the material the detaining authority passed the detention order on 8-9-98. As we have observed earlier, the delay in three laps first was of one month and second and third of two weeks each were noticed. Mr. Prakash Naik strenuously argued that this delay in passing the detention order after the last prejudicial activities snapped the live link between the prejudicial activities and the rationale for passing the detention order. We have closely perused the prejudicial activities reported in C. R. No. 145/98 and also incamera statement. A very serious and shocking and grave prejudicial activities was disclosed in the grounds of detention. The C.R. amply demonstrates and bringing out the gravity of the offence effecting on the public life. The offence alleged to have been committed by the detenu in C. R. No. 145/98 is stated in paragraph 4(a)(i) which is as follows :

4(a)(i) "On 19-03-98 at about 20.39 hours Shri Sajid Abdul Wahid Mujawar came out of his house and was standing in front of his house. At about 20.45 hours, he noticed you and your associates Wasim, Sameer and Karim going towards the lane leading to Mustafa Provision Stores. You were holding a button knife, your associate Sameer was holding a sword, Wasim and Karim were holding knives used for cutting mutton. You and your said associates went to the house of Shaikh Khaja Pasha Wahibuddin who is the brother-in-law of Shri Sayyed Farooque (now deceased) and called Shaikh Khaja to come out. Having failed to see Shaikh Khaja, you and your associates walked towards Shivprasad hotel and hereafter hid some where behind Jasmine oil Depot. Your associate Fayyaz Mohammed Hanif Qureshi also joined you. After you and your associates returned from the house of Shaikh Khaja. Shri Sayyad Farooque (now deceased) reached Tashkhand Bakery and started searching you and your associates. Sajid Abdul started pacifying him and asked him to go home as you and your associates were armed with deadly weapons. Sayyad Farooque then informed Sajid Mujawar that he was going to meet social worker to settle the dispute between his brother-in-law and you and your associates. Therefore Sajid Mujawar also accompanied Sayyad Farooque. At about 21.15 hours or so, when Sayyad Farooque and Sajid Mujawar reached in front of Marleshvar Mandir, you and your associates Sameer, Wasim, Karim and Fayyaz emerged from your hiding and rushed towards Sayyad Farooque armed with weapons described above. Your associate Fayyaz instigated you and your above associates to assault and finished Sayyad Farooque. Your associate Karim gave a blow with mutton cutting knife on the neck of Sayyad Farooque. Your other associate Sameer assaulted Sayyad Farooque with a sword. Wasim assaulted Sayyed Farooque with a mutton cutting knife and you assaulted Sayyad Farooque with a button knife. Your associate Fayyaz was shouting all along instigating you and your associates. Due to assault by you and your associates Sayyad Farooque sustained multiple bleeding injuries and he collapsed on the ground. You and your associates also threatened people who were witnessing the gruesome assault not to come forward or else they would also be assaulted in the same way. Due to fear of their own lives, nobody dared to come forward to rescue Sayyad Farooque. On the other hand people took to their heels, shopkeepers in the vicinity hurriedly closed their shops and residents closed their doors and windows. Tension mounted and even tempo of life of citizens was disturbed. Thereafter, you and your associates went away challenging and threatening the public."

4. Similar activities also were disclosed by the witnesses 'A' and 'B' in the incamera statement. Taking into account the gravity of the offences and its vulnarability to effect on the public, even though there is a gap of three months in the light of the facts disclosed in the C. R. and incamera statement, and passing of the detention order, we are of the opinion that live link of prejudicial activities and the rationale of passing the order would not have snapped as contended by the learned counsel for the petitioner, because potentiality and propensity to commit the offence in grave nature is writ large in the grounds of detention. In view of this, we are not satisfied that any ground has been made out by the petitioner on account of the delay.

5. For the reasons stated above the writ petition fails and it is dismissed.

Petition dismissed