ORDER
N. Arumugham, J.
1. The present writ of habeas corpus is directed against an order of detention passed by the 1st respondent Mr. O.P. Bali, the Commissioner of Police, Thane dated 20th February 1998 detaining the detenu by name Arun Hiraman Bhoir by virtue of sub-section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (Man. Act No. LV of 1981), as amended upto date. The petitioner herein who is the father of the detenu has impugned the said detention order. Both the order of detention shown in Annexure 'A' and the committal order shown in Annexure 'B' along with the grounds of detention shown in Annexure 'C' were contemporaneously served upon the detenu on 22nd February 1998.
2. The prejudicial activities of the detenu as culled out from the grounds of detention against the detenu are as stated hereunder:
On 14-4-1996 at about 11.00 hours, the detenu along with his father Hiraman Bhoir and others went to the place which belong to one Pratap Murlidhar Narvade at Chitalsar Manpada where fencing work was going on. Although the detenu was not concerned with the said property of Shri Narvade, the detenu along with his father and associates broke down and demolished the fencing and caused damage to the fencing. Due to the terror no one resisted but later on an offence was registered at Kapurbavdi Police Station vide C.R. No. 1-100/96 for the offence under sections 447, 427, 34 I.P.C. since such activities were found to be disturbing public peace and tranquillity and chapter proceedings were proceeded against the detenu vide Chapter Case No. 1/96 on 26-4-1996 at the instance of Kapurbavdi Police Station and the detenu was ordered by the Special Executive Magistrate to execute the bond and sureties of Rs. 5000/- on 9-8-1996 for keeping good behaviour for the period of six months.
However, on the expiry of the bond period the detenu continued to indulge in similar activities in the area of Manorma Nagar, and continued disturbing the public order. The continued involvement of the detenu showed his tendencies and inclination towards crime as a 'Dangerous Person' in utter disregard of the existing law of the land.
The following incidents were quoted in the ground of detention.
One Shri Pandurang Kashinath Mane is staying at the Dhohali, Manorama Nagar, Ganeshwadi, Thane in the hutment colony which was unauthorisedly constructed by detenu's brother Ashok Bhoir. He lodged a complaint that on 12-3-97 when he was filling water from the tap, in front of detenu's brother's house detenu's brother Ashok Bhoir and watchman objected him and detenu's brother slapped and threatened him with dire consequences. Therefore, on the complaint of Shri Pandurang Mane, a non-cognizable case against detenu's brother Ashok Bhoir vide N.C. No. 191/97 under sections 323, 504 I.P.C. was registered at Kapurbavdi Police Station and the complainant was advised to file the case in the Court and get his grievances redressed. On this action by Shri Pandurang Mane the detenu was shocked and got very angry and on 12-3-97 at about 23.55 hours detenu along with his brothers and 25/26 men/women went to the Kapurbavdi Police Station and approached Police Sub-Inspector Sayyed who was holding Station House Charge and in a threatening tone told Sub-Inspector Sayyed that he was registering false complaint against them. The detenu and detenu's brother thereafter threatened the said Sub-Inspector Sayyed that they would complaint against him to the higher authorities and shouted loudly and grossly misbehaved at the Police Station. Thereafter the detenu along with his brother and his associates accompanying him manhandled the Police Staff present at the Police Station and abused and assaulted PSI. Gayake who fell on the ground. During the said assault PSI Gayake, P.Cs-Mahale and Pawar sustained minor injuries, P.S.I. Sayyed, Bhamare and other policemen immediately intervened and by using necessary force brought the detenu and his accomplices under control. Thus the detenu and his accomplices formed an unlawful assembly, misbehaved with police staff on duty, abused, threatened and even obstructed them from discharging their lawful duties and created terror and fear amongst the Police Staff. An offence vide C.R. No. 1-62-97 under sections 353, 332, 147 I.P.C. was registered on 13-3-97 at 00.35 hours at Kapurbavdi Police Station. In the said case the detenu and his 26 associates were arrested on the same day and produced before the J.M.F.C. Court, Thane, and was released each on P.R. bond of Rs. 1000/ - and surety of the equal amount. After due investigation the detenu and his associates were charge-sheeted on 9-4-97 and the said case is still pending disposal before the Court of law.
On 3-8-1997 at about 4-10 hours Police Sub-Inspector Bhamare alongwith Police Staff went to Manorama Nagar to execute the detention order issued under the provisions of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (Mah. Act No. LV of 1981), as amended upto-date. At that time the detenu and his brother Ashok joined together and unmindful of the purpose for which the police came threatened the police party. Then the detenu and his another brother by name Nandu along with his father and mother assaulted the police party with spade and a wooden stick. The brother of the detenu Ashok along with his wife Bharati and servant Suresh Punde came out of the house and along with their associates intentionally tried to drag P.S.I. Sunil Bhamare into the house. Since the police party intervened the detenu and his brother simply abused and manhandled the police party. An attempt was also made to kill PSI Bhamare by throwing a big stone on him. Fortunately Police Constable Patil obstructed and spoiled the attempt. P.C. Patil was hit on the head with a spade who became unconscious. In the meanwhile additional police force came on the spot and by using necessary force the detenu and his associates were brought under control and arrested on the spot the detenu and his two brothers and father, but detenu's other associates fled away. Police Sub-Inspector Bhamare and Police Constable Patil were admitted in Thane Civil Hospital. After necessary treatment PSI Bhamare was discharged. Since the detenu and his associates formed an unlawful assembly with deadly weapons like big stone, thick wooden stick, spade misbehaved and attacked police party on duty and threatened and obstructed them from doing their lawful duties and created terror and fear among the Police Staff and the entire locality an offence vide C.R. No. 1-185/97 under sections 307, 353, 332, 147, 148, 149 of I.P.C was registered on 3-8-97 on the complaint of PSI Sunil Bhamare at Kapurbavdi Police Station. All the assailants were arrested and subsequently produced before the J.M.F.C. Court, Thane on 3-8-97 and were remanded in judicial custody. On an application for bail High Court vide order dated 16-10-97 observed that the incident is no doubt serious. However, after hearing the detenu and his associates were released on bail with the directions to attend the Kapurbavdi Police Station every Sunday. After due investigation chargesheet was filed in the Court of law on 29-10-97 which is pending disposal.
While the detenu and others were on bail the detenu started his terrorising activities which were reported in the local newspapers on 4-11-97 stating that the detenue has created a regime of terrorism demanding 'Khandani' from businessmen and residents of Manorama Nagar and also demanded legal action against the detenu. Barring this an anonymous application dated 3-11-1997 addressed to the Commissioner of Police containing the allegations of atrocities on citizens of Manorama Nagar and nearby area and requesting to institute urgent enquiry against the detenu and his associates who were demanding money and collecting ransom regularly so that the members of public may be saved from their atrocities, was received by the police. On receipt of the said application it was sent to Kapurbavdi Police Station for necessary action and report and consequently materials were collected for necessary action by the inspector of Police, Kapurbavdi Police Station regarding the allegations from the residents of Manorama Nagar area. Since the detenu was residing nearby and brother of detenu Ashok Hiraman Bhoir was residing in Manorama Nagar, who is himself a notorious goonda and was detained under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, as 'Slumlord' there was a tremendous tension among the residents of the locality and nobody came forward to depose the truth. However, the Senior Police Inspector of Kapurbavdi Police Station restored confidence among the people and assured them that their names and other identifying particulars will not be disclosed to the detenu and only two persons showed their willingness to depose against the detenu and accordingly their statements were recorded and that too-in-camera.
Witnesses 'A' and 'B' were examined and their respective statements were recorded on 22-12-1997 as well as on 4-1-1998 respectively. A perusal of their statements referred to in the grounds of detention would disclose and provide ample corroboration on the several overt acts committed by the detenu and his associates during the relevant period which would affect the public order. As the same has been detailed in the grounds of detention from paragraphs 4(c) (i) to 4 (c) (ii) we are not adverting to the same by replica of every line and the wordings.
3. Having perused and placed reliance upon the materials and prejudicial activities referred to above more carefully the 1st respondent arrived at a subjective satisfaction that the violent character and the criminal activities of the detenu adversely affects the maintenance of public order and the detenu is a dangerous person within the meaning of section 2(b-1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootteggers, Drug Offenders and Dangerous Persons Act, 1981 (as amended 1996) (hereinafter referred to as 'the Act') has passed the impugned detention order against the detenu which along with the annexures mentioned above were served on the detenu and aggrieved at this the father of the detenu who is the petitioner herein has filed this petition challenging the same.
4. Controverting the various grounds adverted to in the grounds of writ petition Mr. Bhujang Shankarrao Mohite, Commissioner of Police, Thane, has filed a sworn return to the writ petition on 12th October 1998, so also another return was filed by Mr. V.B. Sankhe, Under Secretary to the Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai, pertaining to the confirmation of the detention order by virtue of section 8(1) of the Act and the other details contained in the said return. Mr. J.N. Gawande, Jailor Group I, Yerwada Central Prison, Pune has also filed a sworn return which also forms part of the file of this case.
5. We have heard the rival submissions in the context of the pleadings of the respective parties as above referred.
6. Though several grounds have been specifically taken up on behalf of the detenue in challenging the impugned order of detention, Mr. S. R. Chitnis, learned Counsel appearing for the petitioner first dealt with his attack on the impugned order that the same became vitiated on the ground of non-application of mind by the detaining authority while passing the impugned order of detention. Secondly the impugned order of detention passed against the detenu according to the learned Counsel is mala fide and thirdly when the order of detention was executed the details of the victim of the detenu and the place where the detenu has been confined and the other particulars have not been communicated to the detenu or his relatives and therefore it has become violative of Article 22(5) of the Constitution of India. Lastly the learned Counsel contended that the incidents referred to in the grounds of detention would at the most amounts only to breach of law and order situation and not at all amounts to public order at any point of time and as such the impugned order of detention has become totally violative of section 2 of the said Act.
7. Per contra Mr. R.L. Patil, A.P.P. controverted and resisted each andevery one of the contentions of Mr. Chitnis by taking us to the actual factumthat there was no non-application of mind at all by the detaining authorityin the instant case and that secondly there was no mala fide for the detaining authority at any point of time and that when the order of detention inthe instant case was executed it has been fully communicated to the motherand maternal uncle of the detenu who were with the detenu at that time asis evident from the various statements recorded from the detenue himself.Subsequently the wife of the detenu was also informed. The above factumwas narrated by the learned A.P.P. from the original file which he had withhim during the course of argument. With regard to the last contention thelearned A. P. P. suggestively contented that the incident referred to in the grounds of detention in paras 4(a), 4(b), 4(c), 4(c)(i) and 4(c)(ii) of the grounds completely amounts to public order and that therefore the impugned order of detention was passed promptly in consonance with section 2 of the Act and that therefore the writ petition lacks in merits.
8. In the context of the above arguments and contentions made by Mr. Chitnis, learned Counsel for the petitioner on the contra and that of Mr. R.L. Patil A.P.P., appearing for the respondents we have meticulously and carefully perused the grounds and the contentions as well as the reply and the response to the various grounds made in the respective returns filed by the respondents. With regard to the last point viz. the public order is concerned we would like to say that the incidents quoted and referred to in paras 4(a) to 4(c)(ii) of the grounds of detention clearly amounts to public order for the reasons that the detenu not only along with his brothers, father, mother but with 26 of his associates had been to the police station and indulged in abusing the law and order enforcement authorities, threatened them, particularly the Police Sub Inspector and the constable was attacked with stones and sticks and on the arrival of the additional force they were rescued; but however both of them sustained injuries for which they were hospitalized and treated. If the above incident with the detenu at the command of his class associates, who are more in number, indulged in these criminal activities in a public place like the police station and in front of it, it then has revolved in the grounds of detention, the indulging of such activities by the detenu and his associates would clearly be carried to a segment of the society in that locality and therefore, it created panic and terror in the people of the area and sensitivity in the police who is supposed to implement law and order in the locality. Moreover the police personnel were also attacked and abused and were taken into task in the police station itself by the detenu and their family members and associates. We fail to understand as to how and what the people of that locality would have in their mind about the law and order problem. Therefore, in our considered opinion the incidents referred to in paras 4(a) to 4(c) (ii) of the grounds of detention would clearly come within the concept of public order and that therefore we are not in a position to accept the contentions raised by Mr. Chitnis, learned Counsel appearing for the petitioner.
9. With regard to the third ground viz. neither the detenu nor their relatives were not communicated with the details of the execution of the detention order and place where the detenu was to be lodged and other particulars we do not find any merit in the same for the reasoning that the materials placed by the learned Additional Public Prosecutor from the original files that the maternal uncle of the detenu and his mother were present at the time of execution of the detention order and subsequently the wife of the detenu was also communicated about the execution of the detention order. Therefore in the context of the above factum we do not find any violation of the mandates of Article 22(5) of the Constitution of India.
10. Coming to the first and second grounds which Mr. Chitnis, learned Counsel for the petitioner projected already in attacking the impugned order are concerned it has become necessary for us to advert to what has been described and adverted to in para 4 and 5 of the grounds of detention which are stated as here under :
'4. In the recent past, your involvement in the following incidents shows continuance of your tendencies and inclination towards crime as a 'Dangerous Person' in utter disregard of the existing law of the land'.
'5. I am subjectively satisfied that you are criminal goonda of violent character on the record of Kapurbavdi Police Station and as such a dangerous person within the meaning of section 2(b-1) of the Maharashtra Prevention of Dangerous Activities of Slumlords; Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (as amended 1996) as you are engaged and habitually involved in criminal activities and assaulting Police which affects adversely or likely to affect adversely the maintenance of Public Order.'
A casual perusal of the above two passages which finds place in paras 4 and 5 of the grounds of detention would clearly indicate that the detaining authority while arriving at a subjective satisfaction of the prejudicial activities of the detenu has described the detenu as one of the category mentioned in section 2 of the Act as a 'Dangerous Person'. Thus it is seen that the grounds of detention which was served along with the order of detention which formed part as annexures A, B and C consists the very categorization of the detenu as 'a Dangerous Person'.
11. Recently in an unreported case in Criminal Writ Petition No. 1118 of 1997 delivered by this very Division Bench on 29th and 31st August 1998 between (Smt. Asha Arun Gawli and the State of Maharashtra and others), had occasion to come across with similar and identical facts for consideration and while disposing off the same it was observed as under :
'It was then the contention made by the Bar for the petitioner that the category of the detenu under the amended Act of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. IV of 1981 Amendment 1996) has not been adverted to. Non-categorising of the detenu in the order of detention as a dangerous person or some other category will be a fatal blow to the detention order. It was the response on the other hand given by the learned Counsel for the respondent that the grounds of detention is the main and pivotal document and since on this basis the detention order has been passed, though the detention order does not contain the category of the person, it does not affect the order of detention impugned in this case because in the grounds it has been mentioned. We have gone through carefully the grounds of detention. In the last but one paragraph of the grounds of detention, after referring the introduction and preamble and the grounds of detention and after arriving at a conclusion that it has become imperative on the part of the sponsoring as well as detaining authorities to propose to detain the detenu, he has been described as a dangerous person in the grounds of detention. Since the detention order is based on the grounds of detention we feel with every respect to the Bar that for the above reasoning not mentioning of words 'dangerous person' in the detention order is only an inadvertent omission but however neither affects the detention order nor vitiates the detention order, for the grounds contain the full description.'
12. In the light of the above after having gone through the very gamut of the contentions we are not impressed by the contentions raised by the learned Counsel for the petitioners that the very non-categorization of the detenu within the limits of section 2 of the Act is clearly violative and that therefore the impugned order has become vitiated. But on the other hand in our considered view the grounds of detention which is the sheet anchor of the old case consist the very categorization in any form and upon which the detaining authority has arrived at a subjective satisfaction, then the mere non-mentioning of the category in the detention order, in our respectful view, is only an omission and it makes no difference or matter much to whatever extent possible. If at all it can be described as an omission inadvertently happened, except the same nothing can be attributed either by way of right or by way of procedure and therefore we are totally unable to persuade us to accept this contention also.
13. Having heard the rival contentions on the ground of mala fide we do not find any force at all in the alleged ground of mala fide, for the very reasoning that the Writ Petition No. 828 of 1997 filed on behalf of the brother of the detenu at an earlier occasion challenging the detention order passed against him was allowed by a Division Bench of this Court; however the same would not amount to a relevant document to be taken into consideration for the purpose of agitating the matter in hand. As rightly and justifiably pointed out by the learned A.P.P. Criminal Writ Petition No. 828 of 1997 was filed by the brother of the detenu in this Court purely on a different ground. Conscientiously neither of these grounds were taken and projected before the Division Bench of this Court while disposing off the Writ Petition No. 828/1997.
14. After hearing the arguments from the Bar for the respective parties we have come across the fact that the detention order passed against the detenu was totally and distinctly on a different ground with that of the present one for in the earlier writ petition the brother of the detenu was described as a slum lord and the classification of the detenu in the present case is 'a dangerous person'. Though the description of the detenu under the four limits of section 2 of the Act the basic ingredients required in all the four is the prejudicial activities affecting the public order. The overt acts by the slum lord as the dangerous person are not on the same footing as the same are two and are distinctively different from the present one. We are thus totally unable to accept the contention of Mr. Chitnis, learned Counsel for the petitioner. If the detaining authority in the instant case has passed the impugned order of detention purely on the prejudicial activities affecting the public order as a dangerous person and the previous writ petition relates to a slum lord we are not impressed by the very strenuous efforts projected by Mr. Chitnis, learned Counsel for the petitioner to interfere with the order of detention in the present case.
15. With regard to the mala fide ground we would like to refer to the judgment delivered by a Division Bench of this Court in Criminal Writ Petition No. 256 of 1996 dated 10th October 1996 held between Kashinath@Kashya Tukaram Lad v. R.D. Tyagi, Commissioner of Police and other, reported in 1997 Bom.C.R.(Cr.) 768 to which one of us, Vishnu Sahai, J., was a party, had the occasion to deal with the following:
'9. The question of mala fide is always a thorny one to decide. Whether in a given case an order is mala fide or not has to be decided in the context of facts and circumstances of that case. The existence of absence of mala fides in a given case is a matter of inference and that inference is to be deduced from the peculiar facts of that case. We are fortified in our view by the observations of the Supreme Court in the decision reported in A.I.R. 1955 S.C. 651 Thakur Prasad Bania v. State of Bihar. In para 2, Their Lordships have observed thus:--
'The question of mala fides has got to be decided as one of fact with reference to all the circumstances of an individual case.'
When we examine the said contention of Mr. Chitnis in the light of the said guidelines given by the Apex Court, we find it to be without merit.'
16. Mr. Chitnis, learned Counsel for the petitioner then referred to a judgment of the Supreme Court held in between A.K. Roy v. Union of India and others, reported in : 1982CriLJ340 particularly to para 19, wherein it was held that the procedure prescribed by an Ordinance cannot be equated with the procedure established by law is equally unsound and that the word 'established' is used in Article 21 in order to denote and ensure that the procedure prescribed by law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation.
17. The learned Counsel also referred to a decision held by the Bench of this Court in a case held between Jyoti@Jude Wilson Patel v. R.H. Mendonca, Commissioner of Police and others, : 1999(5)BomCR91 , to which one of us (N. Arumugham, J.) was a party, in which it was observed that non categorisation of the detenu in the order of detention on grounds would clearly go to the root of the matter and therefore the impugned order has to be quashed. The learned Counsel also referred to a decision by the Supreme Court of India reported in : AIR1991SC397 in a case between Abhay Shridhar Ambulkar v. S.V.Bhave, Commissioner of Police and others. The above authorities for the reasonings given above would not come to the rescue or help to improve the case of the petitioner for the very reasoning that the order of detention contains not only the grounds in detail but also the categorisation of the detenu as a dangerous person at the end at one place and in the middle in another place and as such the mandatory requirements clearly spelt out by the judicial pronouncements, as shown by us in the above cited case laws has been made available to a very large extent and that therefore we are totally constrained to hold that there is nothing found in the instant case to allow this writ petition. No other point has been placed before us.
18. In the result for the aforesaid reasonings and findings this writ petition fails and accordingly it is dismissed and the rule is discharged.
19. Certified copy expedited.
20. Petition dismissed.