Judgment:
A.A. Kumbhkoni, J.
1. This is a habeas corpus petition filed under Article 226 of the Constitution of India by a detenu who is presently detained at Central Prison Thane. This petition questions validity of order of detention being D.O. No. 123/PCB/DP/Zone -II/2007 dated 23 rd October 2007 (hereinafter referred to as ''the impugned order '' for the sake of brevity), issued under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as ''the said Act'' for the sake of brevity), passed against the detenu by the Commissioner of Police, Brihan Mumbai.
2. On 7th September 2007 Senior Inspector of Police of Pydhonie Police Station, Mumbai submitted a proposal for detention of the detenu under the said Act. The detaining authorities considered and scrutinized the material placed before it and upon its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of the public order and that the detenu was dangerous person within the meaning of the said Act and further that it was necessary to detain the detenu under the said Act with a view to prevent him from acting in any manner, prejudicial to the maintenance of public order, has issued the impugned order dated 23 rd October 2007. The impugned order has been served on the detenu on 8th December 2007. The State Government was pleased to issue an order communicating the approval of the impugned order, on 26th October 2007 and was further pleased to confirm the impugned order on 25th January 2008.
3. The impugned order has been issued by the Detaining Authority, on the basis of material placed before it, which pertained to in camera statements of two witnesses dated 26th August and 28th August 2007 as also following two C.R.s
(i) C.R. No. 107 of 2007 registered at Colaba Police Station against the detenu and his associates, under Section 399 of I.P.C., read with Section 3, 25, 27 of Arms Act, read with Section 37(1) of the Bombay Police Act.
(ii) C.R. No. 143/2007 registered with Pydhonie Police Station against the detenu and his associates under Section 394 read with Section 34 of Indian Penal Code.
4. Instead of collectively setting out herein the arguments advanced on behalf of the petitioner and replied by the respondents, we will prefer to deal with the same point wise as set out hereunder.
5. In as much as C.R. No. 143 of 2007 aforesaid is concerned, though the FIR in that regard has been registered on 24th July, 2007, the incident involved therein occurred on 17th July, 2007. It is the case of the complainant therein that due to the fear of retaliation at the hands of the detenu and his associates, the complainant did not report the matter to the police. According to the complainant therein, a newspaper dated 23rd July, 2007 carried the news of the fact that the detenu and his associates were arrested by Colaba Police Station, in relation to an incident that occurred on 25th July, 2007. After the fact of arrest of the detenu became known to the complainant therein, the complainant mustered the courage and decided to lodge the complaint in relation to the incident that occurred on 17th July, 2007. Accordingly, the complaint has been registered on 24th July, 2007 as C.R. No. 143 of 2007.
6. The narration of incident by the complainant who has filed the aforesaid complaint dated 24th July, 2007 in short as is set out in the impugned order itself, which is relevant for our purpose is as under.
The complainant has a godown-cum -office at Pydhonie. On 17th July, 2007 a motor tempo bearing registration No. MH-04 C 0231 had come to the godown of the Complainant from Kurla with iron pipes which were required for the purpose of the business of the complainant. The complainant with the help of his workers was unloading these iron pipes from the motor tempo in his godown. At 20.00 Hrs., when the motor tempo was about to be driven back to Kurla, it was found that the engine thereof was not starting. Therefore the complainant and his servants started pushing the motor tempo in an attempt to start its engine. In the process, the motor tempo pushed a motor cycle which was parked by the side of the road. Resultantly, the motor cycle fell down. The complainant went near the motor cycle to lift the same and to place it back as it was before the motor tempo knocked it down, while the same was being pushed by the complainant and his servants. At that time, the person who had parked the said motor cycle abused the petitioner and his associates. Hearing these abuses the detenu along with his associates rushed at the complainant. The associates of the detenu were armed with stick and chopper. One of the associates of the detenu assaulted the complainant with stick on his right side ear and the complainant sustained injuries and also started bleeding. The detenu snatched the gold chain of the complainant, weighing 4.5 Tolas, valued at Rs. 50,000/-from the neck of the complainant.
The father of the complainant after hearing the commotion came out of his office and questioned the complainant and his associates. The associates of the complainant at the point of chopper threatened the father of the complainant and assaulted him with fist blows on his left ear. The father of the complainant also sustained injuries and started bleeding.
The complainant and his father shouted loudly for help when the detenu and his associates at the pointed of weapons threatened the public not to come forward to help the complainant and his father. Therefore, the people ran helter-skelter. Shop keepers pulled down the shutters of their shops and an atmosphere of fear and terror was created by the detenu and his associates, who then went away.
7. The detenu with the permission of the Court on 1st August 2007 along with his associate was taken charge by Pydhonie Police Station and was arrested in this C. R. No. 143 of 2007 on transfer warrant and was thereafter produced before the learned Additional Chief Metropolitan Magistrate, 2nd Court Mazgaon from time to time, on 2nd August 2007, 9th August 2007 and 13th August 2007. On each of these dates the remand applications were filed on behalf of the police.
8. In the grounds set out in the impugned order, after quoting the nature of the aforesaid complaint, it is stated thus -
5(a)(xi) On 02.08.2007, when you were placed for remand before the Ld. Addl. Ch. M.M. 2nd Court, Mazgaon, you were remanded into police custody until 09-08-2007. On 09-08-2007 you were produced before the Ld. Court for remand, you were remanded in to police custody until 13.08.2007. On 13.08.2007 you were produced before the Ld. Court you were remanded into judicial custody till 27.08.2007. Thereafter your judicial custody remand was extended from time to time.
9. Admittedly, alongwith the order of detention, grounds of detention and documents/papers with Hindi translation of said papers were served on the detenu on 8th December 2007. The copies of the aforesaid remand applications were handed over to the detenu along with their Hindi translation at page numbers 419 to 470 as part of compilation of documents which was served on the detenu alongwith grounds of detention on 1st December 2007.
10. The learned Counsel appearing on behalf of the Petitioner brought to our notice the original compilation of documents served on the petitioner and particularly pages number 454 an 455 of these papers which was a part of the copies of the aforesaid remand applications and demonstrated that large portions thereof were illegible. On perusal of these documents we are satisfied that the grievance made out by the detenu in this regard is true and correct.
11. In the submission of the learned Counsel of the Petitioner non -supply of the legible copies of these documents has hampered the right of the Petitioner to make effective representation in terms of the Article 22(5) of the Constitution and that therefore the impugned order is unsustainable.
12. In as much as illegible portion of the remand applications are concerned, it was contended by the learned APP that reference to the remand application in the impugned order was made, only to complete the narration of events and that remand applications were not the basic documents on which the Detaining Authority had arrived at its subjective satisfaction for issuance of the impugned order. On this ground also, it is contended that even if illegible portions of the remand applications were there in the documents supplied to the detenu, the same has not caused any prejudice, whatsoever, to the rights of the detenu in any manner whatever.
13. In this regard, the learned APP relied on the observations ma d e by the Division Bench of this Court in the case of Rekha Umesh Shetti v. State of Maharashtra and Ors. 2007 (2) Bom.C.R. (Cri.) 663, the relevant portion of which reads thus:
8. So far as the remand proceedings are concerned, Mr. Mhaispurkar submitted that the remand proceedings cannot be called vital and material documents. He submitted that remand proceedings only contain the allegations against the detenu. In the facts of the case where the other relevant material was before the Detaining Authority indicating the nature of the prejudicial activity in which the detenu is involved, the remand proceedings cannot be called vital and material documents.18. In our opinion, in the circumstances of the case remand application cannot be called a vital document because in the grounds of detention the Detaining Authority has given the gist of the case against the detenu. The Detaining Authority has obviously culled it out from the statements and documents placed before her, copies of which have been given to the detenu. It is common knowledge that remand application contains the gist of the prosecution case and seeks custody of the accused. Whether a case for bail exists or not can be made out from the made out from the material placed before the Detaining Authority. Therefore, non placement of remand application before the Detaining Authority and non supply thereof to the detenu does not vitiate the detention order.
14. It is pertinent to note that the aforesaid extracts of the judgment and the observations made by the Division Bench itself clearly demonstrates that the facts of our case and the case dealt with by the Division Bench are distinguishable, in much as in the case with which the Division Bench had occasion to deal with, the remand applications were not placed before the Detaining Authority itself and where additionally not supplied to the detenu. As against this in our present case the remand applications, were not only very much there before the Detaining Authority but the copies thereof were even supplied to the detenu along with the impugned order and the grounds of detention. Obviously therefore, in our view the aforesaid judgment of the Division Bench is not applicable to our case.
15. In our view non supply of legible document or part thereof amounts to non supply of such document itself or non -supply of such part of the document which is not legible as the case may be. In other words, non supply of a legible copy of the concerned document is same as non supply of the concerned document itself. Consequently, whatever consequences follow on account of non supply of the concerned document will also follow in those cases where illegible copies of such documents in full or in part are supplied to the detenu. In our view, supply of document has to be meaningful enabling the detenu to read the entire document and understand contents therefore.
16. Obviously, the consequences of supply of illegible document(s) in full or part will depend upon the question as to whether such non supply has adversely affected right of detenu to make an effective representation against the order of detention under Art. 22(5) of the Constitution of India.
17. In as much illegible portion of remand applications are concerned, the aforesaid extracted portion of the grounds of detention will demonstrate that the Detaining Authority in the grounds of detention has only stated that after such remand applications were filed, the judicial custody remand of the detenu was extended immediately by the learned Additional Chief Metropolitan Magistrate, 2nd Court, Mazgaon. It further states that the bail application filed on behalf of the detenu was also rejected on 1 st December 2007 and that the bail was granted to the detenu much thereafter on 28th September 2007, which was availed by the detenu only on 6th October, 2007.
18. Thus, from the facts and circumstances of the case, it is clear that contents of the remand applications were not at all considered by the Detaining Authority, as one of the basis for issuing the impugned order. These documents have not in any manner influenced the subjective satisfaction of the detaining authority in issuance of the impugned order. If that be so, certainly the detenu was not really entitled to the copy of these documents i.e. remand applications, which were enclosed along with compilation of documents at page 419 to 470 supplied to the detenu along with the impugned order. Therefore non -supply of legible copies of such remand applications or part thereof in the facts and circumstances of this case, has not at all adversely affected the rights of the detenu in any manner whatsoever, much less in making an effective representation contemplated by Article 22(5) of the Constitution.
19. In this regard the learned Counsel for the petitioner relied on the judgment delivered by the Supreme Court reported in 1990 (Supp) Supreme Court Cases the relevant portion of which reads thus
3. It appears that the appellant had asked for certain copies of the documents which admittedly were there with the respondent-Union of India. Copies of the documents were supplied, but the same were not legible. This position is also apparent. It is not necessary in the facts of this case to go into the question whether these documents were relevant or material.
4. In view of the fact that the copies of the document were, in fact, supplied at the request of the appellant, but the copies supplied were illegible we are of the opinion, that the safeguards provided by the Constitution have not been followed....
20. In view of our conclusion that in view of the facts and circumstances of this case the remand applications were not or are not relevant documents, the aforesaid judgment of the Supreme Court can be of no assistance to the petitioner in furthering his case. Moreover even on facts the same is clearly distinguishable.
21. In the grounds set out in the impugned detention order, after quoting the nature of the aforesaid complaint, it is stated thus
The complainant then took treatment in Kothari Hospital, C. P. Tank, Mumbai. His father went to E.N.T. Specialist Dr. Parekh at Andheri for treatment. Due to fear of retaliation at the hands of you and your associates, he did not report the matter at police station
5(a)(x) The medical certificate dated 17.07.2007 of the injured complainant Shri Sanjay Pitambarlal Danania indicating the injuries caused to him, issued by Dr. Parekh was obtained by police.
22. A copy of medical certificate dated 17th July, 2007 (along with its Hindi translation), in regard to the aforesaid complainant, Mr. Sanjay Pitambarlal Danania was included in these papers. However, admittedly, medico legal certificate in regard to the father of the complainant form C.R. No. 143 of 2007 showing that the father of the complainant went to E.N.T. Specialist Dr. Parekh, at Andheri for treatment, was not supplied to the detenu.
23. The lerned counsel appearing on behalf of the Petitioner contended that the detenu was admittedly not supplied with the copy of medico legal certificate in respect of the father of the complainant who is supposed to have taken treatment from E.N.T. Specialist Dr. Parekh at Andheri. In his submission the non supply of such a medico legal certificate has adversely affected the detenu's right to make an effective representation against the impugned order of detention, under Article 22(5) of the Constitution of India.
24. He further pointed out that in as much as the medico legal certificate relating to the complainant is concerned, only part of the same along with its Hindi translation has been supplied to the detenu. He brought to our notice that the said medico legal certificate dated 17th July, 2007 is written on one piece of paper but on both sides of paper. What has been supplied to the detenu is only front page along with its Hindi translation. In other words, the rear side of the certificate along with its translation has not been supplied to the detenu. He therefore, submitted that this amounts to non supply of crucial document, and therefore, fatal to the case of Respondent.
25. The learned Counsel in support of his submissions relied on the judgments of the Supreme Court, delivered in the following cases -
i Powa n amma l v. State of T.N. and Anr. 199 9 SCC (Cri) 231;
ii Manjit Singh Grewal @ Gogi v. Union of India .
26. On the contrary , the learned Assistant Publ ic Prosector contended that though the copy of medical certificate in respect of the injuries suffered by the father of the complainant were not forwarded to the Detaining Authority by the sponsoring authority, there was ample material available before the Detaining Authority to satisfy itself about the truthfulness of the incident dated 17th July, 2007, as well as involvement of the detenu therein. It was therefore, contended that the medico legal certificate in relation to the father of the complainant from C.R. No. 143 of 2007 was not a vital document and that it cannot be said that for want of supply of its copy to the detenu, the detenu was deprived from making effective representation under Art. 22(5) of the Constitution of India.
27. It is further contended by the learned APP that in as much as the medico legal certificate pertaining to the complainant is concerned, the portion of the same which dealt with injuries caused to the complainant by the detenu and his associates was supplied to the detenu along with its Hindi translation. In his submission the rear side of this certificate contained only the treatment that was prescribed to the complainant, and therefore this rear part of the certificate was not vital portion of the medico legal certificate. According to him therefore for non supply of such rear portion it can be said that the detenu was deprived from making effective representation under Art. 22(5) of the Constitution of India.
28. The learned Counsel appearing on behalf of the petitioner relied on the judgment of the Supreme Court in the case of Powanammal v. State of T.N. and Anr. 1999 SCC (Cri) 231, paragraph 9 thereof, which is relevant for our purpose, reads thus
9. However, this Court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas the non-supply of a copy of the document relied upon in the grounds of detention has been held to be fatal to continue detention, the detenu need not show that any prejudice is caused to him. This is because the non supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order. But it would not be so where the document merely finds a reference in the order of detention or among the grounds thereof. In such a case, the detenu's complaint of non-supply of document has to be supp0orted by prejudice caused to him in making an effective representation. What applies to a document would equally apply to furnishing a translated copy of the document in the language known to and understood by the detenu, should the document be in a different language.
29. The learned APP relied on another decision of the Supreme Court in the case of J. Abdul Hakeem v. State of T. N. and Ors. : 2005CriLJ3745 , relevant portion of which reads thus
8. The principle of supply of material documents to the detenu was considered by this Court in the matter of Radhakrishnan Prabhakaran v. State of T.N. In para 8, this Court said (SCC p.173).
8. We make it clear that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventing detention of the detenu is necessary shall be supplied to him.From the aforesaid authorities it is clear that the detenu has a right to be supplied with the material documents on which reliance is placed by the detaining authority for passing the detention order but the detention order will not be vitiated, if the document although referred to in the order is not supplied which is not relied upon by the detaining authority for forming of its opinion or was made the basis for passing the order of detention. The crux of the matter lies in whether the detenu 's right to make a representation against the order of detention is hampered by non supply of the particular document
30. The learned APP also placed reliance on another decision of Division Bench of this Court delivered in the case of Khwaza Babasahab Chaudhary v. Shri S. Chakravarty and Ors. in Criminal Writ Petition No. 1207 of 2004, the relevant portion of which reads thus
20. We have already noted that in this case, we find the errors in translation to be totally inconsequential and innocuous. In the light of the above judgments, we feel that a total non-supply of a translation of a medical certificate in a given case may amount to violation of the detenu' s right under Article 22(5) of the Constitution of India. In a given case, if a vital portion of the injury certificate is not translated at all or omitted it may be a violation of detenu's right under Article 22(5) of the Constitution of India. In yet another case if a vital portion is wrongly translated that may again be a case of violation of detenu' s right to make an effective representation under Article 22(5) of Constitution of India. However, if there are minor mistakes in translation that will not amount to violation of detenu' s right under Article 22(5) of the Constitution of India. It all depends on the facts and circumstances of each case. We feel that in this case the mistakes are inconsequential. The first submission of Mr. Tripathi must fail.
It is contended by the learned APP on the basis of this decision that non supply of portion of medico legal certificate of the complainant and/or minor mistake that has occurred in supplying any part thereof is not vital.
31. In as much as non supply of the medico legal certificate of the father of the complainant from C.R. No. 143 of 2007 is concerned, it is specifically stated in the aforesaid grounds of detention that having heard the commotion, the complainant's father came out of his office and questioned the detenu and his associates. It is further stated therein that the associates of the detenu threatened the father of the complainant at the point of chopper and assaulted him with fist blows on his left ear. It is also further stated therein that resultantly the father of the petitioner sustained injury and started bleeding. The father of the complainant thereafter is alleged to have gone to E.N.T. Specialist Dr. Parekh at Andheri for treatment.
32. Obviously the Detaining Authority has relied on this incident, wherein father of the complainant sustained injuries at the hands of the associates of the detenu, in an incident in which the detenu was also involved.We have extracted hereinabove the relevant portion of the grounds of detention. The extracted portion forms part of the ground 5(a)(i) of the grounds of detention, supplied to the detenu along with the order of detention also deals with this aspect of the matter.
33. In our view therefore, the detenu was certainly entitled to the copies of this medico-legal certificate as the detenu has right to be supplied with the material documents, in regard to the specific incident which was relied by the Detaining Authority for passing the detention orders. In our view it cannot be said that the medico legal certificate in relation to the injury sustained by the father of the complainant was not relied upon by the Detaining Authority or that it was not relevant for forming its opinion and that therefore, the detenu was not entitled to have a copy thereof.
34. In as much as the medico legal certificate pertaining to the injuries suffered by the complainant from the aforesaid C.R. No. 143 of 2007 is concerned, admittedly, only a part of such certificate along with its Hindi translation has been supplied to the detenu. Admittedly, rear side of this medico legal certificate dated 17th July, 2007 along with its Hindi translation has not been supplied to the detenu though this entire medico legal certificate was relied upon by the Detaining Authority while passing the detention order. The contention of the respondent that non -supplied portion of this medico legal certificate related only to the treatment part and therefore, was not vital portion of this document, cannot be accepted, as the detenu was entitled to the entire i.e. whole document along with its Hindi translation which was relied upon by the Detaining Authority and which formed the basis of the impugned order.
35. In our view the decision of the Supreme Court in the case of J. Abdul Hakeem (supra) will have no application to the facts of the present case in as much as we have already held that the medico legal certificate in regard to the father of the complainant and the medico legal certificate in full relating to the complainant are not only relevant but also vital documents and non supply thereof has hampered the right of the detenu to make an effective representation against the order of detention.
36. The other C.R., which is relevant for our consideration and which forms the basis of the impugned order is C.R. No. 107 of 2007. The incident relating to this C.R. No. 107 of 2007, in short, as set out by the impugned order is as under -
On 21 st July, 2007 the complainant -PSI Police Sub Inspector received information from his credible sources that six persons had planned to commit an armed dacoity in jewelery shop at Colaba market. This information was passed over to the Dy. Commissioner of Police, Zone-I who immediately deployed police along with the complainant PSI to work out on the said information.
A trap was accordingly laid at about 16.00 Hrs., on footpath. The complainant -PSI took position along with others near the spot. At about 16.00 Hrs., the detenu along with his associates arrived at the scene in a Honda City Car. After getting down from the car, the detenu along with the associates stood at a close distance from the complainant PSI, where two other unknown associates of the detenu came on a motor cycle and parked their vehicle near the Honda City Motor and joined the detenu and his associates. The complainant also heard instructions being given to the detenu and his accomplices as to the armed robbery to be conducted in the jewelery shop in the Colaba Market.
It is the case of the complainant PSI that after hearing such conversation among the detenu and his associates, the complainant signaled his colleagues and all of them rushed at the detenu and his associates and in fact surrounded them. Sensing the police officers were surrounding the detenu and his associates started running away, when they were chased and detained. On the forcible search of the detenu he was found possessing a factory made revolver, loaded with three cartridges, tucked at left side of his waist below the shirt. The associates of the detenu were also found in possession of weapons, such as revolver, chopper, nylon rope, cloth tape roll, etc. Search of the Honda City Car has resulted in seizure of ten cartridges.
Consequently, in connection with this incident of 31st July 2007, the complainant filed a complaint with Colaba police station, which was registered as C. R. No. 107 of 2007, against the detenu and his associates under Section 399 of I.P. Code, read with Section 3, 25, 27 of Arms Act, read with Section 37(i) of Bombay Police Act.
37. In as much as this incident of 21 st July, 2007 is concerned, the contention of the learned Counsel appearing on behalf of the petitioner is that mere possession of an illegal weapon(s), such as factory made revolver with cartridges, by itself could not have provided a ground for the detaining authority to come to the conclusion that the detenu was acting in a manner which was prejudicial to the maintenance of public order. In his submission, in the absence of any overt act on the part of the detenu, mere possession of such an illegal arme/weapon was not sufficient to attract the concept of breach of public order. The learned Counsel for the petition in this regard relied on the following two decisions of Division Benches of this Court.
(i) Dilip alias Jogya v. State of Maharashtra and Anr. : 1993(1)BomCR141 ;
(ii) Sudarshan Tukaram Mhatre v. R. D. Tyagi, Commissioner of Police, Thane and Ors. 990 Cri.L.J. 1964.
38. On the other hand, learned APP relied on the affidavit of the Detaining Authority, the relevant portion of which reads thus
I state that detenu and his associates were planning to commit the dacoity in the busy locality at broad day light but by the intervention of the Police, they were apprehended and the weapons were recovered at their instance. I state that one factory made revolver loaded with 3 cartridges was recovered from the detenu and one pistol and one factory made six chambered revolver were recovered from the associates of the detenu. I state that the act of the detenu and his associates to commit dacoity in the busy place at the eve hours of the day was certainly prejudicial to the maintenance of public order and it is only after the intervention of the Police, they were arrested, hence, it cannot be said that the public order was not disturbed due to the said incident.
39. The learned APP further relying on the decision of the Supreme Court in the case of State of U.P. and Anr. v. Sanjai Pratap Gupta alias Pappu and Ors. : 2004CriLJ4600 , contended that from the point of view of public order, the true test in such cases is not the kind of act alleged but the potentiality of the act in issue.
40. The narration of the aforesaid incident resulting into registration of C.R. No. 107 of 2007 will demonstrate that the detenu was apprehended before alleged planed action of dacoity could be taken by the detenu and his associates. It is true that according to the complainant, detenu was found in possession of the factory made revolver loaded with three cartridges. However, as observed by two Division Benches of this Court, mere illegal possession of a fire arm or weapon at a public place by itself, in the absence of any overt act on the part of the detenu cannot result into breach of public order. The relevant portion of the aforesaid judgments are as under
4. Examined closely, it is difficult to sustain the order of detention. The event of 19-4-1989 in one in which the detenu is said to have master minded the killing of Parshuram Kane. The Additional Sessions Judge of Thane has granted bail unto the petitioner. The two incidents in which the petitioner was found possessed of a sword and a fire-arm can by no stretch of imagination be said to be a breach of public order. A desperado with a concealed fire-arm on his person, albeit, in a public place, is not a menace to public order, unless of course he flourishes the fire-arm or by word or gesture indicates that it is with him and he will not stop at using it.... : 1993(1)BomCR141 13. The fourth round is merely an invovlment of the Petitioner under Section 135 of the Bombay Police Act, he having violated the prohibitory order issued under Section 37 (1) of that Act, the allegation being that the Petitioner created commotion by carrying a knife in the particular area. In the absence of any overt act, the ground can be prescribed as vague and also evasive. It is not sufficient either by itself or cumulatively with the other grounds to attract the concept of public order.
41. Moreover, the following sentences from the affidavit of the Detaining Authority is very relevant as the same gives an impression as if the detenu and his associates were successful in committing the dacoity at a busy place at the eve hours of the day -
I say that the act of the detenue and his associates to commit dacoity in the busy place at the eve hours of the day was certainly prejudicial to the maintenance of public order and it is only after the intervention of the Police, they were arrested, hence, it cannot be said that the public order was not disturbed due to the said incident.
As a matter of fact, admittedly the detenu and his associates were apprehended well before they could even make an attempt of actual commission of such an offence.
42. The judgment of the Supreme Court reported in : 2004CriLJ4600 relied upon by the learned APP has no application to the facts of this case. However even in that judgment in paragraph 13 it is observed thus
3. The two concepts have well-defined contours, it being well established that stray and unorganized crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. Law and order represents the largest scale within which the next circle representing public order and the smallest circle represents the security of State. ''Law and order'' just as ''public order'' comprehends disorders of less gravity than those affecting ''security of State. (See Kuso Sah V. State of Bihar, Harpret Kaur V. State of Maharashtra, T.K. Gopal v. State of Karnataka and State of Maharashtra v. Mohd. Yakub.
43. It is thus clear that merely because the detenu was found in possession of weapons or arms illegally, that by itself cannot result into public disorder justifying a ground for detention. Mere possession of illegal arms even at a public place does not necessarily result into breach of public order, unless such a person possessing fire-arm by words or gesture indicates that it is with him and that he will not stop at using it, creating commotion in the public making the public run hilter -skelter.
44. Admittedly, nothing of this kind is alleged in regard to the incident in issue dated 21 st July, 2007. Therefore, the Detaining Authority was not justified at all in relying on the incident that resulted into C.R. No. 107 of 2007 as a ground for detention.
45. The learned Counsel appearing on behalf of the petitioner initially contended that substantial delay has occurred in execution of the detention order and that on this ground also the order of detention was liable to be set aside. However, in rejoinder the learned Counsel appearing for the petitioner clarified that the petitioner was not pressing this ground. We may not therefore, deal with the same.
46. No other ground than the one which we have dealt with hereinabove was raised on behalf of the petitioner, in support of the petition.
47. In the result, the impugned order of detention being D.O. No. 123/PCB/DP/Zone -II/2007 dated 23 rd October 2007, issued under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (Mah. Act No. LV of 1981) (Amendment 1996) against the petitioner/detenu by the Commissioner of Police, Brihan Mumbai is hereby quashed and set aside.
48. The petitioner/detenu be released forth with unless wanted in connection with some other case. Rule is made absolute accordingly.