Judgment:
Vishnu Sahai, J.
1. Through this writ petition, preferred under Article 226 of Constitution of India, the petitioner, who styles himself as the father of the detenue Anil B. Menon has impugned the detention order dated 11-3-2000 passed by respondent No. 1 Mr. R.H. Mendonca, Commissioner of Police, Brihan Mumbai detaining the detenu under sub-section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slum Lords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) (Amendment 1996).
2. The detention order alongwith the grounds of detention, which are also dated 11-3-2000, was served on the detenue on 26-4-2000. Their true copies are annexed as annexures A & B respectively to the affidavit.
3. The prejudicial activities of the detenu necessitating the issuance of the impugned detention order are contained in the grounds of detention (Annexure B). Their perusal shows that the impugned detention order is founded on one C.R., namely, C.R. No. 694 of 1999 under section 387/34 of I.P.C. (subsequently 3 and 25 of the Arms Act were added) registered at Mulund Police Station on the basis of complaint filed by one Pratap Chapsi on 28-12-1999 and in-camera statements of three witnesses, namely, A, B and C.
4. The facts relevant to C.R. No. 694 of 1999 have been mentioned in paragraph 4(a) to 4(a-5) of the grounds of detention. In short, they are as under :
4(A) The complainant Pratap Chapsi is a builder by profession and was doing his business alongwith Mulchand Khona and other family members since 15 days prior to 28-12-1999. He was carrying out his construction of Paarshwa Darshan, Plot No. 125, Ambedkar Road and Kasturba Road Junction, Mulund (West), Mumbai 80. On 23-12-1999 at about 11 a.m., while he was present at the site, the associates of the detenu Suresh Jadhav and Ritesh Rathod approached him and demanded Rs. 5 lacs as Khandani (extortion money) from him or to close the work. They left the place after taking mobile phone number of the complainant. On 24-12-1999 at about 11 a.m. Suresh Jadhav phoned the complainant on his mobile and enquired about the Khandani money and asked him as to why he had not closed the work. They told him that they would be coming the next day. On 28-12-1999 at about 3 p.m. while the complainant alongwith his workers was present at the worksite, the detenu came alongwith his associates. Suresh Jadhav told the complainant that Ritesh Rathod and Anna Deoras are his gang members; reminded him of the telephonic call dated 24-12-1999; and demanded from him Rs. 5 lacs. When the informant expressed his inability to pay the amount, Ritesh Rathod whipped out a revolver; abused him and told that even his father would have to pay the money or close the work. Thereafter, the complainant started bargaining and finally, it was agreed that he would pay only Rs. 100001/-. On this, Suresh Jadhav told the complainant to keep the money ready by 5 o'clock at which time he would collect the same. While leaving, Suresh Jadhav threatened the complainant not to inform the police lest he and his family would be killed.
4(B) The averments contained in in-camera statements of witnesses A, B and C respectively, in short are as under :
Witness A in his statement recorded on 6-1-2000, stated that he knew the detenu and his associates Ritesh Rathod, Anna Deoras and Suresh Jadhav as notorious gundas of the area where he stays and in which he conducts his business. He stated that one day, at about 9.35 p.m. in the last week of November, 1999, when after closing his business he was returning home, the detenu and his associates waylaid him. The detenu Ritesh Rathod caught hold of him and Anna Deoras whipped out a knife and put the same on his stomach. Thereafter, Suresh Jadhav demanded Rs. 5,000/- from him and when he expressed his inability to pay the said amount, the detenue slapped him and forcibly removed Rs. 1,235/- from his pant pocket. Thereafter, the detenu threatened him not to tell anybody or complain to the police.
Witness B in his statement recorded on 7-1-2000 stated that he knew the detenu and his associates Anna Deroas, Ritesh Rathod and Suresh Jadhav. One day at about 9.30 p.m. in the first week of December, 1999, when after closing his shop, he was waiting at Vaishali Nagar bus stop, the detenu and the said associates approached him. Suresh Jadhav caught him by his collar and demanded Rs. 2,000/- from him and when he expressed his inability to pay the amount, the detenu whipped out a chopper and his associates Anna Deoras forcibly snatched Rs. 720/- from his pant pocket. While leaving, Suresh Jadhav and Ritesh Rathod threatened him not to lodge any F.I.R. otherwise he would be killed.
Witness C in his statement recorded on 10-1-2000 stated that he knew the detenu and his associates Anna Deoras, Ritesh Rathod and Suresh Jadhav as persons who used to collect Khandani (extortion money) at the point of deadly weapons. One day, at about 10.30 p.m. in the second week of December, 1999, while he was proceeding along Zaver Road, Ritesh Rathod caught his hand; Suresh Jadhav whipped out a revolver and put it on the stomach; and thereafter Suresh Jadhav forcibly removed Rs. 3,000/- from his pocket. The detenu also came there and threatened to kill him if he disclosed the incident to anyone.
5. We have heard Mr. Tripathi for the petitioner and Mrs. V.K. Tahilramani for the respondents. Although, in this writ petition, Mr. Tripathi, has pleaded a large number of grounds running from grounds 10(A) to 10(K), he has pressed before us only two grounds, namely those pleaded as ground Nos. 10(B) and 10(F).
We propose examining the said grounds.
6. We would first take up ground 10(B).
The said ground, in short, is that the detenue is a native of the State of Kerala; his mother-tongue is Malayalam; he has studied in English medium upto standard III at Wees High School, Thana ; and the only language with which he is well conversant in English. It has been averred in the said ground that he is unable to understand Marathi and Hindi. It has also been averred therein that he has been furnished with the original documents and the grounds of detention in English and Marathi alongwith Hindi translation and since he was unable to understand Marathi and Hindi, his right to make an effective representation at the earliest opportunity has been violated rendering his continued detention as illegal.
7. Ground No. 10(B) has been replied to in paragraph 10 of the return dated 19-9-2000 filed by Mr. M.N. Singh, Commissioner of Police, Brihan Mumbai. (On that date, Mr. R.H. Mendonca, the Detaining Authority had been transferred and was not available for swearing the affidavit). In the said paragraph, the deponent had emphatically repudiated the fact that the detenu was only conversant with Malayalam language. Therein, he has categorically asserted that he is conversant with Hindi and Marathi languages and can read and write Hindi language. It has also been averred therein that, when on 26-4-2000 the detention order was served on the detenue, he clearly stated that he was conversant with those languages and he signed the statement to the said effect which has been recorded on 26-4-2000 itself.
8. We have examined ground 10(B) and paragraph 10 of the return of Mr. M.N. Singh. In our view, since at the time of service of the detention order, i.e., on 26-4-2000, the detenu had signed that he fully understood Hindi and Marathi languages, and it is manifest from a perusal of ground 10(B) that the grounds of the detention and detention order alongwith relevant documents were supplied to him in Marathi and English alongwith Hindi translation, the said ground is devoid of substance.
Another reason as to why in our view, ground 10(B) is devoid of substance is that nowhere in the said ground, it has been mentioned that the detenue did not know English. As a matter of fact, what has been only mentioned in the Ground 10(B) is that the detenue was unable to understand Marathi and Hindi. In fact it has been mentioned in ground 10(B) that the detenu had studied English upto class III. Since in ground 10(B), it has been mentioned that the original documents and the grounds of detention were given in English and since in our view, the detenu knew English, there is no merit in this ground.
9. For the aforesaid reasons, in our view, ground 10(B) is devoid of substance.
10. We now take up ground 10(F).
In short the said ground is that the detaining authority has referred to and relied upon one C.R. and three in-camera statements in arriving at his subjective satisfaction. It has been averred in the said ground that the averments made by the three witnesses in the in-camera statements are not true and genuine. It has further been averred therein that the in-camera statements were recorded by Inspector of Police and were verified by Assistant Commissioner of Police, who were subordinate authorities to the Detaining Authority.
The main grievance voiced in the said ground is that the Detaining Authority has neither verified the truthfulness of the incidents narrated in the in-camera statements nor anywhere recorded any satisfaction to the effect that the statements are verified by him and found to be true as required by Supreme Court and the Bombay High Court. Hence, it has been urged in the ground that the order of detention has been rendered illegal and bad-in-law.
11. Ground No. 10(F) has been replied to in two returns, sworn on 16-12-2000 by Mr. M.N. Singh, the then Commissioner of Police and Mr. R.H. Mendonca, the Detaining Authority. The latter as the Commissioner of Police has passed the detention order.
The return of Mr. M.N. Singh was filed because Mr. R.H. Mendonca was not available and when he also became available on the said date, his return was also filed.
In the return of Mr. M.N. Singh, it has been replied to in paragraph 6 and in that of Mr. R.H. Mendonca in paragraph 5. The reply to the said ground in both the returns is identical.
Since Mr. R.H. Mendonca is the Detaining Authority, we are setting out the reply contained in paragraph 5 of his return. A perusal of the said paragraph shows that the Detaining Authority has averred therein that he placed reliance on four incidents, namely, C.R. No. 694 of 1999 and in-camera statements of three witnesses, namely, A, B & C. Its perusal further shows that therein the Detaining Authority has emphatically denied that the incidents deposed to by the three witnesses in the in-camera statements are not true and genuine. Its perusal further shows that he has mentioned therein that he was satisfied on the basis of the material placed before him that the incidents were true and genuine and the witnesses in the in-camera statements have given a truthful and cogent account of atrocities they have suffered at the hands of the detenu and his associates. It has also been mentioned therein that the said statements were recorded by a responsible officer of the sponsoring police station and verified by Assistant Commissioner of Police. It has further been mentioned therein that the Detaining Authority has not only considered the said statements on their face value but he had carefully gone through them and the relevant material and was convinced of their veracity and it was not incumbent on him to personally record and verify the said statements and the necessary verification was done by the Assistant Commissioner of Police and there was no infirmity in law in the same being done.
12. Mr. U.N. Tripathi, the learned Counsel for the petitioner to lend force to the submission pleaded by him in ground 10(F), placed reliance on two decisions, namely, those reported in :
(i) : 2000CriLJ3944 .
rendered by the Supreme Court in the case of Smt. Phulwari Jagdambaprasad Pathak v. Shri R.H. Mendonca & others, and
(ii) 2001 All.M.R.48
rendered by a Division Bench of this Court in the case of Smt. Vijaya Raju Gupta v. Shri R.H. Mendonca & others.
13. Mr. Tripathi specifically invited our attention to paragraph 16 of the decision reported in : 2000CriLJ3944 , which reads thus :
'Then comes the crucial question whether in-camera statements of persons/witnesses can be utilised for the purpose of arriving at subjective satisfaction of the Detaining Authority for passing the order of detention. Our attention has not been drawn to any provision of the Act which expressly or impliedly lays down the type of material which can form the basis of a detention order under section 3 of the Act. Preventive detention measure is a harsh, but it becomes necessary in larger interest of society. It is in the nature of a precautionary measure taken for preservation of public order. The power is to be used with caution and circumspection. For the purpose of exercise of the power it is not necessary to prove to the hilt that the person concerned had committed any of the offences as stated in the Act. It is sufficient if from the material available on record the Detaining Authority could reasonably feel satisfied about the necessity for detention of the persons concerned in order to prevent him from indulging in activities prejudicial to the maintenance of public order. In the absence of any provision specifying the type of material which may or may not be taken into consideration by the Detaining Authority and keeping in view the purpose the statue is intended to achieve the power vested in the Detaining Authority should not be unduly restricted. It is neither possible nor advisable to catalogue the type of materials which can form the basis of a detention order under the Act. That will depend on the facts and situation of a case. Presumably, that is why the Parliament did not make any provision in the Act in that regard and left the matter to the discretion of the Detaining Authority. However, the facts stated in the materials relied upon should be true and should have a reasonable nexus with the purpose with which the order is passed.'
14.In the decision reported in 2000 All.M.R. 48, Mr. Tripathi, invited our attention to paragraph 6, wherein the passage extracted from Phulwari Pathak's case (supra) by us has been extracted by the Division Bench of this Court. Paragraph 6 reads thus :
'There remains no doubt in the light of the law laid down by the Apex Court that in-camera statement of person/witness can be utilised by the Detaining Authority for the purpose of arriving at subjective satisfaction for passing the order of detention. However, the Apex Court made it clear that the facts stated in the materials relied upon should be true and have a reasonable nexus with the purpose for which the order is passed. Necessary corollary, therefore is that the Detaining Authority must be satisfied about the truthfulness of the statements made in the in-camera statements. Testing it from this touch stone, we find that neither in the detention order nor in the grounds of detention, the Detaining Authority has stated anything that he was satisfied about the truthfulness of the statements made in the in-camera statements. In the present case, the petitioner has set up specific case that in-camera statements were false and fabricated after the detenu was released on bail. The Detaining Authority in his first affidavit filed on 13-4-2000 has only denied that false and fabricated statements were recorded after the detenu was released on 3-7-1999. While denying that the documents were fabricated, the Detaining Authority in his aforesaid affidavit has further stated that the in-camera statements were verified by the higher grade Police Officer of the rank of A.C.P. As a matter of fact, in two subsequent affidavits, this stand has been reiterated and further statement has been made that he was subjectively satisfied that the contents of the in-camera statements were true and genuine since it was verified by the Assistant Commissioner of Police. The English translation of the verification made by the Assistant Commissioner of Police below the in-camera statement reads, 'my statement was translated to me in Hindi which is in accordance with what I stated.' This means that the Assistant Commissioner of Police has only verified that the statement made by the witness was recorded as actually made by him. Therefore, on the basis of mere verification, without there being something more by way of contemporaneous document of material moreover when no such statement is made in the grounds of detention that the statements made in the in-camera statement were believed to be true, it is very difficult to hold that the Detaining Authority was in fact subjectively satisfied that the assertions made in-camera statements were true. The Detaining Authority has to apply his mind about the truthfulness of the assertions made in camera statement which in the facts of the present case seems to have not been done which in our opinion vitiates the detention order.'
15.We have examined the averments made in ground 10(F), the reply to the said ground furnished in the returns of Mr. M.N. Singh and the Detaining Authority and the two decisions cited by Mr. Tripathi. We make no bones in observing that the averment in ground 10(F) to the effect that the Supreme Court has laid down that the Detaining Authority is under an obligation to verify the truthfulness of the incidents as narrated in the in-camera statement and to record his satisfaction to that effect is not the ratio, which has been laid down by the Apex Court in Phulwari Pathak's case (supra). What has been laid down by the Apex Court therein is that the material relied upon the detaining authority should be true and should have a reasonable nexus with the purpose for which the order is passed. In the instant case, we have set out in some detail the averments contained in paragraph 5 of the return of the Detaining Authority wherein, ground 10(F) has been replied to. Although, as a general rule, repetition should be avoided, but sometimes it becomes necessary, as is the case here. In paragraph 5, the Detaining Authority has not only emphatically denied that the in-camera statements are not true and genuine but has categorically asserted that he placed reliance on them as he was satisfied on the basis of the material placed before him that the incidents were true and genuine and the witnesses in the said statement had given a truthful and cogent account of the atrocities they had suffered at the hands of the detenu and his associates. In the said paragraph, the Detaining Authority has also mentioned that he has not examined the in-camera statements on their face value but has carefully gone through them and was convinced of their veracity.
In our view, the averments made in paragraph 5 of the return of the Detaining Authority make it crystal clear that he was satisfied that the averments in the in-camera statement were true and had a reasonable nexus with the purpose for which the impugned detention order was passed.
16.In the circumstances, in our view, the paragraph 5 of the return of Detaining Authority is in consonance with the ratio laid down by the Supreme Court in Phulwari Pathak's case (supra).
17.We now come to the Division Bench decision of this Court cited by Mr. Tripathi rendered in Vijaya Gupta's case (supra).
We have earlier extracted paragraph 6 of the said decision wherein, explaining Phulwari Pathak's case, the Division Bench had held that in-camera statements can be utilised for passing a detention order, provided the caution given by Supreme Court in that case in terms 'however, the facts stated in the materials relied upon should be true and should have a reasonable nexus with the purpose for which the order is passed' is borne in mind.
After extracting the said passage from Phulwari Pathak's case, the Division Bench has held that the necessary corollary which flows therefrom is that the Detaining Authority must be satisfied about the truthfulness of the statement made in the in-camera statement. This corollary, in our view, is the ratio laid down in the said decision of the Division Bench.
The said corollary, in our judgment, does not suggest as has been pleaded in ground 10(F), that the Detaining Authority has to verify truthfulness of the incident as narrated in the in-camera statements and record a satisfaction to the effect that the said statements verified by him are true.
We have earlier referred to paragraph 5 of the return of the Detaining Authority wherein, he in no uncertain terms, has stated that he was satisfied on the basis of the material produced before him that the incidents contained in the in-camera statement were true and genuine; and the witnesses in the in-camera statements had given a truthful and cogent account of the atrocities to which they were subjected at the hands of the detenu and his associates. He has further averred therein that he had not considered the statements on the face value but had gone through them carefully and was convinced of their veracity. The said averments contained in the return of the Detaining Authority make it amply clear that the Detaining Authority was satisfied about the truthfulness of the statements contained in the in-camera statements and that being so, in our view, the said averments are in consonance with the ratio contained in the corollary of the Division Bench judgment of this Court in Vijaya Gupta's case (supra).
18.Mrs. Tahilramani, the learned Public Prosecutor strenuously urged that Vijaya Gupta's case was a decision on its own facts and the submission that the said decision was fully applicable to the instant case is misconceived. She urged that in Vijaya Gupta's case, as is evident from a perusal of the said decision, three affidavits had been filed by the Detaining Authority. In the first affidavit, it was only denied that the in-camera statements were false and fabricated and there was no averment therein by the Detaining Authority that he was satisfied about the truthfulness of the averments contained therein. She also urged that in the second and third affidavits, in addition to the said averment, what was mentioned was that since the Assistant Commissioner of Police had verified the said statements, the averments were true. Mrs. Tahilramani urged this was an instance of putting the cart before the horse.
19.Mrs. Tahilramani pointed out that in the instant case, both the Detaining Authority in paragraph 5 of his return and Mr. M.N. Singh in paragraph 6 of his return, have not only categorically stated that it is wrong to say that the averments contained in the in-camera statements are false, but have also stated that the incidents described therein were true and genuine and they had given a truthful and cogent account of the atrocities they have suffered at the hands of the detenu and his associates. Mrs. Tahilramani urged that a perusal of the said paragraph of the said returns shows that the inference of truthfulness in the present case was drawn by the Detaining Authority himself and was not based on the inference of the Assistant Commissioner of Police.
For the said reasons, in our view, there is merit in the submission of Mrs. Tahilramani that Vijaya Gupta's case was rendered on its peculiar facts and would have no application so far as the instant case is concerned.
20.For the said reasons, ground 10(F) also fails.
21.No other ground was placed before us by Mrs. Tahilramani.
22.In the result, we dismiss this petition and discharge the rule.
Certified copy expedited.