Criminal Writ Petition No.98 of 2004

16th July, 2004

Petitioner Counsel: Mr. BHAVESH PARMAR
Respondent Counsel: Ms. A. S. PAI

Cases Cited:
Amanulla Khan Vs. State of Gujarat, 1999 SCC (Cri) 1014 [Para 4]
Jafar Ahmed Vs. M. N. Singh, 2002 ALL MR (Cri) 788=2002 Cri.L.J. 1723 [Para 4]
Vijay Narain Singh Vs. State of Bihar, AIR 1984 SC 1334 [Para 9]
Dharmenda Chelawat Vs. Union of India, AIR 1990 SC 1196 [Para 10,13]
Nasibullah Khan Vs. M. N. Singh, 2002 ALL MR (Cri) 521=2002(1) Mh.L.J. 572 [Para 10,13]

JUDGMENT

S. S. PARKAR, J.:- This petition has been filed by the wife of the detenu, Kanakraj Pal Nadar, who was detained under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter called as "the MPDA Act"), challenging the order of detention dated 26th September, 2003 issued by the Commissioner of Police, Greater Bombay under Section 3(1) of the said Act.

2. Pursuant to the aforesaid order the detenu was detained on 30th September, 2003. In the grounds of detention two incidents in which the detenu was involved have been mentioned. The first incident was of 31st May, 2003 in respect of which the crime was registered for offences under Sections 395 and 397 of IPC read with Sections 4, 25(1-b)(a) and 35 of the Indian Arms Act and Section 135 of the Bombay Police Act at Nehru Nagar Police Station under C.R. No.129/03. That was a case where robbery was committed on Thane-Mumbai Express highway by the accused after stopping the vehicles. The second incident is dated 19the June, 2003 in which the detenu along with his associates was arrested when the accused were about to commit dacoity. The said offence was registered under C.R. No.141/03 at Nehru Nagar Police Station. While the associates of the detenu were found in possession of a toy pistol and chopper, the detenu was found in possession of chilly powder along with gold bar of 541.300 gms. valued at Rs.1,87,118/- and other articles. After the detenu and his associates were arrested on 19th June, 2003 identification parade of the accused was held by the Special Executive Magistrate at Thane Central Prison on 15th July, 2003 when the complainant and witness Bharat Shah identified the detenu and his associates and one Pandi Kandaswami Tewar. All the associates were attributed different roles by the complainant and the witnesses. In the earlier incident of 31st May, 2003 the detenu was holding sickle in his hand which has been recovered at his instance. After arrest of the detenu and others the detenu was produced before the Metropolitan Magistrate, Vikhroli on 20th June, 2003 and remanded to police custody till 3rd July, 2003. On 3rd July, 2003 the detenu applied for bail which was kept for hearing on the following day on which date his application for bail was rejected and the detenu was remanded to judicial custody. Thereafter no application for bail seems to have been filed on behalf of the detenu. The Detaining Authority having subjectively satisfied that the detenu was acting in a manner prejudicial to the maintenance of public order and that under the normal law of the land in due course he might be granted bail in which case he was likely to resort to similar activities which were prejudicial to maintenance of public order in future, the order of detention was issued against him. The said order of detention is under challenge in this petition filed by the wife of the detenu.

3. The learned Advocate for the petitioner challenged the order of detention mainly on two grounds. He firstly contended that the detenu was not a dangerous person as per the definition of a dangerous person given in section 2(b-1) of the MPDA Act. Secondly he contended that the detenu is not a habitual offender and, therefore, also the provisions of the MPDA Act were not applicable. He also contended that since the detenu was in custody there was no necessity for issuing the order of detention.

4. So far as the first point raised on behalf of the detenu is concerned, the Act defines the "dangerous person" to mean 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. It is not in dispute that the offences in respect of which the crimes have been registered against the detenu are punishable under Chapter XVII of the Indian Penal Code as well as under the provisions of Chapter V of the Arms Act. Secondly since the detenu was involved in commission of more than one crime he can be said to have habitually committed the offences which are punishable under Chapter XVII of the Indian Penal Code. Reference may be made to the decision of the Supreme Court in the case of Amanulla Khan Vs. State of Gujarat reported in 1999 SCC (Cri) 1014. The said case was under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 i.e. PASA Act. Definition of a "dangerous person" under the PASA Act is same as the one given under the provisions of the MPDA Act. Dealing with the said definition the Supreme Court has observed in para 4 of the judgment as follows :

"...In this view of the matter the question that requires adjudication is whether the satisfaction of the detaining authority in the present case is based upon the isolated incident for which the criminal case was registered or there are incidents more than one which indicate a repeated and persistent activity of the detenu..."

The aforesaid observations clearly point out that if the incidents are more than one they indicate a repeated and persistent activity of the detenu. Similar view seems to have been expressed by the Division Bench of this Court in the case of Jafar Ahmed Vs. M. N. Singh reported in 2002 Cri.L.J. 1723 : [2002 ALL MR (Cri) 788], when in para 11 of the judgment it was observed as follows :

"...Since the statements of both the witnesses show that he was habitually committing the offence of extortion (habit means more than once), punishable under Chapter XVII of the Indian Penal Code, he could have been detained as a dangerous person on the basis of the said in-camera statements."

5. The argument that from the activities of the detenu or due to the crimes which were registered against the detenu it cannot be said that the detenu was a dangerous person is devoid of any substance. The offence of robbery by itself involves a dangerous activity because while committing the robbery there is always possibility of causing danger to the life or the person of the victim. The offence of robbery involves the threat or use of force against the person who is robbed of his belongings. As per the definition of robbery given in Section 390 of the Penal Code offence of robbery involves voluntarily causing or attempting to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint. The fact that the detenu was involved in the offence of robbery makes the detenu a dangerous person within the definition of "dangerous person" given in the Act.

6. No doubt before issuing the order of detention the Detaining Authority has to be satisfied that the detenu was acting in a manner prejudicial to the maintenance of public order that is to say he should be shown to be engaged, or making preparation for engaging, in any of his activities as a dangerous person, which would affect adversely, or likely to affect adversely, the maintenance of public order as mentioned in clause (iv) of sub-section (a) of Section 2 of the Act. When the public order shall be deemed to have been adversely affected is explained in the explanation appended to clause (iv) of Section 2(a). According to the said explanation the 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 the detenu 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.

7. The contention raised on behalf of the petitioner is that the activities of the detenu did not cause any harm, or danger or alarm or feeling of insecurity among the general public or any section thereof but the detenu was involved only in two incidents of robbery which cannot be said to have caused or likely to cause any danger to the general public or any section thereof. The said submission cannot be accepted for the simple reason that it is not the requirement of law that the activities of the detenu should actually cause any harm, danger, alarm or a feeling of insecurity among the general public. It is enough if the activities of the dangerous person are even indirectly calculated or likely to cause any harm, danger or alarm or a feeling of insecurity among the general public. As observed earlier the offences of robbery in which the detenu was involved, by their very nature, endanger the person or life of the victim, which is clear from the definition of robbery given in section 390 of the Indian Penal Code. The offence of robbery may at a given time be committed against one or more individuals but such offence, by its very nature, can be or is likely to be committed against any member of the public at large and not necessarily against any specific person who, say for example, is having enmity with the offender or with whom his relations are strained. The motive or object for committing such offences is unlawful gain which can be achieved by committing robbery against any person and not against a specific individual. Thus the activities of a dangerous person like the detenu who habitually commits the offences of robbery can be said to affect adversely or can be deemed likely to affect adversely, at least indirectly, any member of the general public, as his activities may cause or are likely to cause harm, danger, alarm or a feeling of insecurity to any member of the general public.

8. Moreover so far as this case is concerned the grounds of detention mention in para 4(a)(v), as reflected in the statements of the witnesses, that when the dacoity was being committed on the highway in the incident of 31st May, 2003 several vehicle drivers, who were driving their vehicles on the other side of the road, stopped to see what was going on but the dacoits, exhibiting weapons in their hands at those drivers and passengers, threatened them that they would be dealt with in the same manner. It is further stated that because of the said threats the drivers sped away their vehicles and left the place.

9. Mr. Parmar placed reliance on the judgment of the Supreme Court in the case of Vijay Narain Singh Vs. State of Bihar reported in AIR 1984 SC 1334 and contended that the expression "habitual" means repeated or persistent or similar but not isolated, individual and dissimilar acts. The acts of the detenu in this case, however, were not dissimilar nor they can be said to be individual in nature because the object of his activities was to commit robbery, which can be committed against any person and not against any specific individual as such. The two offences in which he has been involved are similar in nature and are punishable under Chapter XVII of the Penal Code to which the provisions of the MPDA Act are applicable. Since it has been held, as pointed out earlier, that commission of two offences of similar kinds by the same person are sufficient to brand him as habitual offender, the order of detention cannot be said to be illegal or bad-in-law.

10. The learned Advocate for the petitioner, relying on the judgments of the Supreme Court in the case of Dharmenda Chelawat Vs. Union of India reported in AIR 1990 SC 1196 and of the division bench of this Court in the case of Nasibullah Khan Vs. M. N. Singh reported in 2002(1) Mh.L.J. 572 : [2002 ALL MR (Cri) 521] delivered by one of us (Parkar, J.), contended that since the detenu was in custody at the time when the order of detention was issued the impugned order is bad-in-law as there was no necessity of preventing the detenu from carrying on his activities when he was already in custody. By referring to the observations of the Supreme Court in para 19 of the judgment in Chelawat's case he submitted that there was no cogent material before the detaining authority on the basis of which he had reason to be satisfied that the detenu was likely to be released from his custody in near future and taking into account the nature of his antecedent activities, after his release from custody, he was likely to indulge in prejudicial activities.

11. In para 6 of the grounds of detention the detaining authority has stated that he was aware that the detenu was in custody as bail was not granted to him, however he might be granted bail in the two crimes under the normal law of the land in due course and that in view of his tendencies and inclination reflected in the offences committed by him he was satisfied that after having availed of the bail facilities and in the event of becoming a free person and remaining at large, being a criminal, he was likely to revert to similar activities prejudicial to the maintenance of public order in future and, therefore, it was necessary to detain him. This shows that the detaining authority was aware that the detenu was in judicial custody and bail was not granted to him in the two CRs but considering the nature of offences he felt that under the normal law of the land he might be granted bail in due course.

12. The detenu was arrested for the offence of robbery. No doubt in such cases initially the bail is not granted at least till the charge-sheet is filed. After his arrest on 19th June, 2003 the detenu had applied for bail on 3rd July, 2003 which was rejected on 4th July, 2003. The charge-sheets were filed subsequently and he had not filed any bail application after filing of the charge-sheets. In our opinion, for the offences in which the detenu was involved it cannot be said that he would not have been granted bail any time in near future. No fault, therefore, can be found with the detaining authority when he felt that the detenu might be granted bail under the normal law of the land in due course. Similarly, if the detenu had been granted bail, it cannot be said that he would not have committed offences of robbery.

13. Reliance by the learned Advocate for the petitioner on the judgment of this Court in the case of Nasibullah Khan will not be of any assistance to him. That was a case where the detenu was arrested, inter alia, for offence of gang rape coupled with robbery and his application for bail was rejected not by the Magistrate but by the Sessions Court. It is common knowledge that normally the bail is not granted to the accused who is involved in a heinous crime like gang rape. Moreover six months had passed from the date of rejection of the bail application on 17-10-2000 till the order of detention was issued in March, 2001 against the detenu in that case during which period the detenu had not made any further attempt for securing bail in the said crime. It was in that context, following the judgment of the Supreme Court in Chelawat's case (supra), it was held that the detaining authority had no reason to believe that the detenu might get bail under normal law of the land in due course, in which case he was likely to revert to the similar activities. In that case the observations of the detaining authority in the grounds of detention that he had reason to believe that the detenu might get bail under normal law of the land in due course and in the event of his release on bail the detenu was likely to revert to the similar activities was found to be without any material on record to justify his belief. In a case of that type where bail was not likely to be granted and there was less possibility of repetition of offences like gang rape the detaining authority had no reason for being subjectively satisfied that the detenu was likely to be released on bail and revert to similar activities. Thus the ratio of this decision is not applicable to the present case where the detenu might have been released on bail in which case he was likely to commit similar offences.

14. In view of the above, we find no substance in this petition and, therefore, dismiss the same. Rule is discharged.

Petition dismissed.