ORDER
N. Arumugham, J.
1. This Writ of Habeas Corpus by virtue of Article 226 of the Constitution of India, has been preferred by the petitioner who is the wife of the detenu by name Mr. Arun Gulab Gawali, impugning the order of detention dated 18-9-1997 passed by the Commissioner of Police, Brihan Mumbai, vide D.O. No. 77/PCB/DP/Zone-I/1997, the 2nd respondent herein, detaining Arun Gulab Gawali in the prison by virtue of section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981), as amended by virtue of the Act of 1996, and as approved by the 1st and 3rd respondents, viz. Home Department (Special) No. DDS-1397/1/SPL-3(B) dated 9-9-97 of the Government of Maharashtra and passing the same. Copies of the order above referred, as well as the grounds of detention and the approval of the same by the respondent Nos. 1 and 2, were, admittedly, served upon the detenu contemporaneously on 23-9-1997 while the detenu was in custody in connection with some other crime number.
2. Relying upon the three grounds mentioned and detailed in paragraph 4 from pages 2 to 9 of the grounds of detention which pertains to the three incidents of occurrence and were taken together as the grounds of detention which, in brief, are stated herein under :–
On 21-7-1997 at about 17.30 hours, Miss Anindita Murli Ramswami had been to Agripada Police Station and had complained to the police that as she being the reporter working in Asian Age Newspaper since 15-4-1996, at about 3.45 hours on 21-7-1997 had gone to Dagadi Chawl on Bapurao Jagtap Marg, Byculla, Mumbai for the purpose of collecting a report on Akhil Bharatiya Sena and that evening while she was within the compound of the said place, a person aged about 35 to 40 years asked her about where she had come from and she replied that she is a reporter from Asian Age Newspaper. He told her that people had read that morning a report which was published in that day’s edition of Asian Age Newspaper. He then said in threatening tone: “Jisane Aaj ke paper me likha hai uase Khatma Karenge, tab malum padega, uase bheja Dao”. Upon this, she came out of the Dagadi Chawl compound and contacted her office from nearby public phone and on instruction she again went inside Dagadi Chawl compound in front of a small temple for information about the office of Akhil Bharatiya Sena at Dadar and found that the person mentioned earlier was still there and when she asked him about the information, he had replied that the office of Akhil Bharatiya Sena was at Lalbaug and that thereafter while she was about to take a turn, a stone suddenly hit on her face and on her turning further towards the direction from where the stone came, she found four other persons standing near the water tap also stoning upon her and continuing the stoning upon her. She also found persons standing nearby the temple pelting stones on her with the result she sustained bleeding injuries on her left side face. Thereafter she got scared and ran out of the compound and then went in a car to Prabhadevi and apprised her superiors about the assault made upon her. She was then taken to Hinduja Hospital where she was treated and allowed to go. Then she had been to Agripada Police Station and lodged the complaint stating details of persons who assaulted her in conspiracy with the others in the above incident and in which she suspected that it was all done only at the instance of the detenu. Hence a case was registered under sections 143, 144, 147, 148, 149, 324, 506(II) read with section 34 of the Indian Penal Code in Agripada Police Station vide C.R. No. 193/97.
3. The news of the above incident was found published in Asian Age Newspaper on 21-7-1997 and related to the difficulties being faced by the detenu in the matter of making payments to his gang members in the headline and in big bold letters. Because of the news item, above referred, the incident of attacking the reporter of Asian Age Newspaper has emreged out and accordingly the matter has been reported. Consequently, one Mr. Suresh Dattaram Bhaskar, associate of the detenu, was arrested on the same day, while another associate by, name Raju alias Phillips was arrested on the next day on 22-7-1997. During the course of investigation the arrested persons including the detenu were produced before 15th Court, Mazgaon, Mumbai for remand. The detenu was remanded to police custody till 24-7-1997 and then subsequently the detenu was released by the Court on conditional bail.
4. On 19-8-1997 at about 16.10 hours, one Shri Ramesh Chhaganlal Shah, resident of 4-A, Takshashila Apartment, Sagar Road, Santacruz, Mumbai complained to Cuffe Parade Police Station. In his complaint, he has stated that he is a partner in Shanti Star Builders, situated at 8, Tulsiyani Chambers, Nariman Point, Mumbai and in which one Mr. Natwarlal Mohanlal Desai was also a partner and that since their company is carrying out construction work at Mira Road, Shanti Nagar (East), District-Thane and the construction project is about 500 to 600 buildings being carried out by 100 to 150 workers at the site, Mr. Natwarlal M. Desai was mainly looking after money transactions of the company. The company has its office situated at 8, Tulsiyani Chambers, Nariman Point, Mumbai, and in which the said Natwarlal Desai and Ramesh Shah were in the habit of coming together in the office in one car, as Mr. Natwarlal Desai had been staying at 25, Chetan Village, J.V.P.D. Scheme, Ville Parle, Mumbai and that there were about 30-35 employees working in the office.
5. While so, at about 14.00 hours the said Mr. Natwarlal Desai came to his residence in his Maruti Esteem car No. GJ-15-K-6464 and then he along with one Mr. Ramesh Shah arrived at their office at Nariman Point at 14.40 hours. His car was driven by one Mr. Rabha Bhaiji Kadam, the driver. While Mr. Ramesh Shah was sitting on the right side of the rear seat of the said car, on reaching near the office, it was stopped and while Mr. Natwarlal Desai alighted from the car first and proceeded towards the office, two unknown persons (who subsequently transpired were associates of the detenu, namely Ganesh Bhosle alias Vakil and Namdeo Patil) suddenly appeared in front of Mr. Natwarlal Desai and fired rounds at him from the pistols in their possession with the result Mr. Natwarlal Desai sustained bullet injuries on his face, head and neck and collapsed on the way. On seeing this, Mr. Ramesh Shah was terribly shocked and remained at his seat in the car. The killers then ran away from the western side of the building. On hearing the sound of the firing of shots, those in office in the vicinity, due to fear closed the windows and doors of their offices and raised hue and cry and the people present in the vicinity of the building ran helter and skelter. As this information was passed on to the Police Control Room by one Mr. Ulhas Shivgan, a worker in one of the offices, the injured Mr. Natwarlal Desai was then taken to the office premises by Mr. Dinesh Bhatt, a clerk, Mr. Ulhas Shivgan, a office peon. Blood was found oozing from Mr. Natwarlal Desai’s mouth, head and neck. Then he was taken to the Bombay Hospital in his Maruti Esteem car but, however, on the way it is stated that he succumed to the injuries, as confirmed by the doctor of the Bombay Hospital. In the place where Mr. Natwarlal Desai had collapsed, a handkerchief, a Gujrati News paper, a spectacle, a piece of broken teeth and empty cartridges, were found lying. This incident had taken place on account of payment of Khandani (extortion money) because 5 or 6 months ago, three persons had visited Shri Natwarlal Desai’s residence at Ville Parle and told him that they were from “Arun Gawali Gang” and they had demanded something from Mr. Natwarlal Desai. This was narrated to Mr. Ramesh Shah by deceased Mr. Natwarlal Desai. He also told Mr. Ramesh Shah that Mr. Natwarlal Desai had received threatening telephone calls from the detenu’s gang members and due to fear of his life, neither he, nor Mr. Ramesh Shah had informed the police about the threatening incident, nor asked for any police protection. For the above occurrence and complaint by Mr. Ramesh Chaganlal Shah, a case for the offences under sections 302, 34 of the Indian Penal Code read with sections 3 and 25 of the Arms Act, was registered at Cuffe Parade Police Station vide C.R. No. 382/97 and thus, the law was set in motion for the purpose of investigation and during the course of investigation, as the materials and evidence were collected, offences under sections 23 and 27 of the Arms Act were added to the crime number registered already. The statements were recorded of Mr. Rabha Baija Kadam, driver of the deceased Mr. Natwarlal Desai, Mr. Mohan Janu Nandgaonker, Security Guard at Tulsiyani Chambers, Nariman Point, Mumbai and Mr. Ulhas Devji Shivgan, Peon in Shanti Star Builders office on 19-8-1997 itself. The statements recorded by the Investigating Officer so far disclosed the fact that his Master Mr. Natwarlal Desai had visited Dagadi Chawl about 5 to 6 months back and that one day in the afternoon when he was driving the car and he had parked the car near the mandir in the vicinity of Dagadi Chawl, and thereafter his master Mr. Natwarlal Desai came back to the car after about half an hour when he was seen by the driver that his master was looking worried and in a state of fear.
6. While making the inquest panchanama of the dead body of Mr. Natwarlal Desai on 19-8-1997, itself, amongst other things from the left side saffari pocket of the deceased Mr. Natwarlal Desai, a pocket diary, with black rexin cover of ‘Eagle company of 1997’ was found and recovered. The said diary and the papers in his pocket were blood stained and thorough inspection of the same would reveal that there were some entries made in it upto 21-8-1997 and that on 14-2-1997 an entry was found to have been made by deceased Mr. Natwarlal Desai as “4.00 Kiran, Meet on 19th phone on 11-02-97”. Then on 19-2-1997 he had written “3738561 phone to Kiran, A.G. phone from Chetan A.G. discussed”. This would indicate that the deceased was in contact with the A.G., i.e. designated as Arun Gawali- detenu herein. The said diary was shown to the witnesses and they identify and handwritings of deceased Mr. Natwarlal Desai have been confirmed by all. Thus, the investigation has clearly disclosed the complicity of the detenu in the above crime. It also revealed that from the above facts and recovery of the diary from the deceased Mr. Natwarlal Desai, it is evident that the builder deceased was summoned by the detenu at Dagadi Chawl, Byculla, in February 1997 and that killing of the said builder had been mastermined by the detenu and due to the above day light brutal murder of a builder in posh locality, there has been fear amongst the general public and especially the business community all over Brihan Mumbai.
7. At about 14.40 hours on 20-8-1997, the detenu was arrested and produced before the learned Addl. Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai, for remand on 21-8-1997. He was remanded to police custody till 4-9-1997. While passing the order of remand, the learned Addl. Chief Metropolitan Magistrate, Esplanade, Mumbai, observed in his order as stated hereunder:-
“Dagadi Chawl is an empire created by the accused having his armed personalities inside the bastion who have created an aura of a fear all around the locality and also in the city of Mumbai. If this city requires tranquility and peace, the only way it can be obtained is to see that people like accused are kept away from the society. Today the situation has culminated to such an extent that it is difficult to revamp and return to a serene life. If we require a serene life then this is possible if people like this accused and his associates are not given their liberty.”
When the detenu was produced for further remand on 4-9-1997 before the learned Addl. Chief Metropolitan Magistrate, 37th Court, Esplanade Mumbai, the detenu was remanded to police custody till 18-9-1997 with No Bail Order. Accordingly the detenu was interrogated and that it was claimed that he had disclosed the involvement of his associates by name Ganesh Bhosle alias Vakil, Namdeo Patil and Sharad Badamde and his statement to this effect was recorded accordingly.
8. At about 16.50 hours, on 21-8-1997, associate of the detenu Ganesh Shankar Bhosale alias Vakil died in an encounter at Panvel Sion Road, Mankhurd Bridge, Trombay, Mumbai and in this connection a case under sections 307, 353, 332, 224 of the Indian Penal Code read with sections 3, 25 and 27 of the Arms Act was registered at Trombay Police Station against, deceased Ganesh Shankar Bhosle alias Vakil vide C.R. No. 174/97. On 22-8-1997 Shri Rabha Baija Kadam, Shri Mohan Janu Nandgaonkar, Shri Ulhas Devji Shivgan along with S.E.O. Shri Laxman Mahadeo Posha Patil were taken to J.J. Hospital Morgue where the above persons before the S.E.O. Shri Posha identified the dead body of Ganesh Shankar Bhosle alias Vakil as that of a person who killed Mr. Natwarlal Desai by firing shots on the day in question and in this respect a panchnama was also drawn. So also this fact has been stated by the witnesses in their further statements recorded on 22-8-1997. All this would show that Ganesh Shankar Bhosle alias Vakil was co-accused in one earlier case of Byculla Police Station registered vide C.R. No. 609/88 under section 302 read with 34 of the Indian Penal Code (The murder case of Shri Satish Raje) and the above facts collected would clearly indicate that deceased Ganesh Shankar Bhosle alias Vakil was the close associate of the detenu.
9. The murder of Mr. Natwarlal Desai disturbed the normal life of the Mumbai city to a great extent and feeling of fear was writ large all over the city. The public order in the city was disturbed due to this incident as it was widely published in the press and the T.V. media, reflecting the general mode of fear and disturbance of public order in the society.
10. On 23.8.1997, a case was registered in the Vartak Nagar Police Station of Thane in C.R. No. 1-244/97 for the offences under sections 143, 386, 364, 342, 506, 506(11) of the Indian Penal Code read with section 25(1-B)(A) of the Arms Act through a complaint given by one Mr. Nitin Ramesh Katekar of Thane, as he was threatened of his life and was wrongfully confined in order to extort ransom from him on account of Khandani and for which the associates of the detenu on the instigation of Shankar Thakurlal Hiraramnai were responsible. During the course of this incident which happened between 17-6-1997 to 23-8-1997, the complainant was frequently taken to Juhu, Sion and Dagadi Chawl by the detenu and his associates.
11. Placing reliance upon the three occurrences, briefly mentioned above with preamble and introduction given in the grounds of detention from paras 1 to 3 of the same, the proposal to detain the detenu was made by Senior Inspector of Police, Cuffe Parade Police Station and on perusal of the entire case records and the grounds and all the connected papers and introduction, the detaining authority has arrived at the subjective satisfaction that the detenu, by himself or through his associates has been habitually committing offences punishable under Chapter XVI and XVII of the Indian Penal Code and under Chapter V of the Arms Act, 1959 and thus the detenu was found within the purview of a dangerous person within the meaning of section 2(b-i) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) as amended by the Act No. 29 of 1996. The detaining authority has further arrived at the subjective satisfaction to claim that the detenu has become perpetual and potential danger to the society at large by creating terror in the minds of people of whole of Brihan Mumbai and the people, especially the business community in Brihan Mumbai are experiencing a sense of insecurity and are living and carrying out their daily routine under the constant shadow of fear whereby the even tempo of life of society is disturbed and thus the very activities of the detenu are found purely prejudicial to the maintenance of public order in Brihan Mumbai.
12. The detaining authority in the grounds of detention has also claimed that while he has subjectively satisfied that the detenu was acting in a manner prejudicial to the maintenance of public order, he was aware that the detenu has not been granted bail in Cuffe Parade Police Station C.R. No. 382/97 and that he is in custody but in course of time he may get an order for bail and that therefore he was fully satisfied on that date when he passed the order of detention that after having availed of the bail facilities, the detenu may become free and is likely to revert to the similar activities prejudicial to the maintenance of public order in future and that therefore felt it necessary to detain the detenu under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootlegers, Drug Offenders and Dangerous Persons Act, 1981 as amended by the Act of 29/1996. It is this detention order which is being challenged for quashing the same by filing this writ petition by virtue of Article 226 of the Constitution of India.
13. The 1st respondent, being the State of Maharashtra and the 3rd respondent being the Home Department, Department of Home Affairs, Preventive Detention, Mumbai, have filed their separate reply affidavits in this writ petition the details of which, inter alia, seem to be that the Government of Maharashtra, on perusing all the relevant documents, materials and the grounds placed before it pertaining to the proposal and detention order, has completely satisfied and that therefore they have also approved and that in which they had denied any of the averments made by and on behalf of the petitioner in order to challenge and quash the impugned order.
14. The 2nd respondent, Mr. Mendonca, Commissioner of Police, Brihan Mumbai, has filed the reply affidavit in which he has denied the entire averments made against him, being: the detaining authority and claimed that he, after having perused all the relevant materials, documents and the grounds, the cases, with the adverse remarks and applying fully his mind, he has arrived at his subjective satisfaction that the detenu has become a dangerous person as contemplated by the Act itself and that therefore since every activity of the detenu has effected the very basic fabric of the society or a segment of the same and that he is acting in a manner prejudicial to the public order, he has arrived at the satisfaction that the detenu is to be detained under the relevant provisions of the Act. While saying so, he has admitted that the proposal to put the detenu under the detention law, was made by the Senior Inspector of Police, Cuffe Parade Police Station and his perusal and examination has resulted in emerging of every danger to the public at large by the detenu in extorting Khandani with the help of his associates. He further claimed that the order of detention and committal order were furnished to the detenu on 23-9-1997 (after obtaining necessary permission from the concerned Magistrate, when the detenu was in judicial custody) which consists of translated copies of all the documents in Marathi language with every legibility to be looked into and a detailed report dated 18-9-1997 regarding detention involved in this case was submitted to the Government of Maharashtra under section 3(3) of the M.P.D.A. Act and the Government of Maharashtra was pleased to approve the order of detention wide its letter No. 1297-107/Spl-Br. 3(B), Home Department, dated 24-9-1997. He further submitted that even the representation which was the resultant outcome of all the copies of the documents in legible manner provided to the detenu, was considered by not only by himself, but also by the Advisory Board and the Government of Maharashtra but however it was found devoid of merit and was rejected and that the information regarding rejection was also duly given to the detenu. Regarding the averments made by the petitioner pertaining to the filing of the earlier writ petition by and on behalf of the detenu in Criminal Writ Petition No. 64 of 1997 before Nagpur Bench to which in the contention of petitioner’s Counsel led to the passing of the detention order, it has been averred that it has become sub judice, for, a Special Leave Petition has been filed against the said order before the Supreme Court and which is pending disposal and that, therefore, no details of reply were given with reference to the same.
15. Regarding the grounds taken in the detention order, he has stated that Senior Inspector of Police, Cuffe Parade Police Station had submitted the proposal for detention of the detenu under the M.P.D.A. Act dated 29-8-1997 which was reckoned with the proposal carefully and he was satisfied that the activities of the detenu are prejudicial to the maintenance of the public order by causing danger, harm, and alarm to the public at large by extorting Khandani with the help of his associates regarding the offences charged in the above grounds of detention which pertain to offences under section 302 r/w 120-B, 324, 143, 386, 364, 342, 506(ii) of the Indian Penal Code and thereby caused apprehension in the minds of the citizens. He has arrived at the subjective satisfaction that the detenu has potentiality and propensity to indulge or to continue to indulge in such activities in future and that therefore he considered the detenu as the dangerous person as defined under section 2(b-l) of the M.P.D.A. Act, 1981 as amended. He further avers that the order of detention and committal order were furnished to the detenu on 23-9-1997 after obtaining necessary permission from the Magistrate when the detenu was in judicial custody and as the detenu was a Marathi knowing person, all the materials and documents were translated in Marathi language and were supplied to him as contemplated and all the above were approved by the Government of Maharashtra, vide its Order No. 1297-107/Spl.Br. 3(B), Home Department, dated 24-9-1997 and the Government also confirmed the detention order on the recommendation of the Advisory Board on 7-11-1997.
16. His further response was that three incidents quoted in the grounds of detention reveal that the detenu had masterminded the said heinous offences through his dreaded criminal associates and that as such the detention order cannot be termed as mala fide and that all the copies of the documents and statements are legible and in all these cases the material collected during the investigation shows the involvement of the detenu. In Vartak Nagar Police Station, Thane District, C.R. No. 1-244/97, a case vide C.R. No. 23 of 1995 for the offences under sections 465, 468, 471, 420 and 114 of the Indian Penal Code was registered at the General Branch, Crime Branch, C.I.D. Mumbai in 1995 against Nitin Kotkar. According to the Commissioner of Police, all the three cases referred to above are still under investigation and with regard to third one, it was for the recovery of Rs. 60 lacs from one Shri Shankar Hiraramani who approached the detenu at whose instance Mr. Nitin Kotkar was taken to Dagadi Chawl on 17-6-1997 and was made to pay cash of Rs. 40,000/-, a cheque of Rs. 1,25,000/- with one pager under the threats of death by the detenu and his associates. He denied the allegation that illegible copies are furnished to him. He would claim further that on receipt of written representation sent by and on behalf of the petitioner as well as the detenu on 3-10-1997 through the Superintendent, Mumbai Central Prison along with letter dated 8-10-1997, the same was received by his office on 9-10-1997 and the entire matter along with the representation was carefully considered by him and since it was devoid of any merits, the same was rejected accordingly. The reply was sent to the detenu on 15-10-1997. His specific plea was to attribute the mala fides to the political leaders against the detenu. There was no iota of material and that therefore the alleged plea of mala fide of the present detention is totally unsustainable.
17. With regard to questioning of vires of the detention order as well as provisions of law, as amended, it was claimed in the affidavit that the matter raised by the petitioner in Criminal Writ Petition No. 786 of 1997 before this Court, and it was settled and that therefore the plea cannot be agitated again in this case. The Commissioner of Police admitted that during the passing of the detention order, an anticipatory bail application was filed on behalf of the detenu in the Court regarding the case registered in Vartak Nagar Police Station but it was dismissed and that no bait was granted. The police custody of the detenu was obtained by Thane Police and surrendered before the Court again after investigation. The above facts, according to him, need not be considered and mentioned while passing the detention order and so much so that the said criminal anticipatory bail application has no relevance with regard to the detention order passed in this case. The investigation being conducted by the police in Cuffe Parade Police Station Case and Vartak Nagar Police Station case as well as Agripada Police Station, it would clearly reveal that the detenu was behind the scene and was the mastermind behind extorting monies and conspiracy hatched out and that it was his one of the associates who was killed in an encounter by the police subsequently. Thus, the three cases relied in the grounds of detention would reveal that the detenu is a dangerous person as defined by the amended Act and whose activities are prejudicial to general public order by causing terror, harm and constant fear and that having considered the same in the said context, he has arrived at subjective satisfaction to the extent of the same and passed the detention order in question. For the said reasoning the 2nd respondent has denied each and every one of the averments made in the writ petition and he justified the detention order.
18. We have heard the rival submissions by the Bar for the respective parties.
19. Mr. Pradhan, learned Counsel appearing for the petitioner, dwelt his attack upon the impugned order of detention that the impugned order or detention was the resultant factor of pure mala fide and became vitiated and was also vitiated for total non application of mind while passing the detention order. While substantiating the said two grounds the learned Counsel for the petitioner brought to our notice that the detenu was detained previously by the Commissioner of Police, Brihan Mumbai, one Mr. Malhotra under the National Security Act which detention was, however, quashed by this Court which was followed by the subsequent detention order passed by the Commissioner of Police under the provisions of the National Security Act in Criminal Writ Petition No. 64 of 1997 which was however, quashed by the Nagpur Bench of this Court with exemplary cost, against which a Special Leave Petition was filed before the Supreme Court and it is pending for admission. However, a restraint order was passed restraining the authorities from paying compensation as directed by the High Court. In this background on 18-9-1997, the order passed by the 2nd respondent detaining the detenu under the provisions of the Maharashtra Prevention or Dangerous Activities of Slumlords. Bootleggers, Drug Offenders and Dangerous Persons Act, 1981, as amended, would clearly reveal that the intention of the detaining authority is not based on any real ground to oblige the political leaders who are now in the possession of the ruling this State. Another background which the learned Counsel for the petitioner would rely upon to substantiate his ground of mala fide is that the detenu as the President of a political organisation under the name and style of “Akhil Bharatiya Sena” and through which he has field his candidates for the then ensuing Corporation and other elections and that since his political organisation shows the rapid growth and tremendous support from the general public the leaders of the other parties who were in the forefront became envious of the same and that at whose behest the impugned order of detention was passed by the 2nd respondent and that, therefore, the impugned detention order was clearly the outcome of mala fide intention of the 2nd respondent. To substantiate the said ground of mala fide pointing out that the copies of the said documents relating to the above incidents were not furnished to him while passing the present detention order; the learned Counsel for the petitioner dwelt his attack upon the impugned order of detention that the same became vitiated on the ground of non-application of mind also. In short to say that the learned Counsel seems to have inferred the said three grounds. The first two grounds pertaining to the filing of two writ petitions and disposal of the same and the third one being a political rivalry was the main cause for mala fide. He would like to bring the same within the ambit of non-application of mind totally. To contribute further for his submission, the learned Counsel relied on a decision held by the Apex Court held between Union of India and others v. Manoharlal Narang, for the following proposition:–
“Absence of consideration or the interim order of the Supreme Court, which is an important document, amounted to non-application of mind on the part of the detaining authority rendering the detention order invalid. The order of the Court clearly indicated that the Court felt” that there was no need to detain the present respondent’s brother pending the appeal. If the detaining authority had considered this order, one cannot state with definiteness which way his subjective satisfaction could have reacted. This order could have persuaded the detaining authority to desist from passing the order of detention since the Court had allowed freedom of movement; or the detaining authority could still feel that an order of detention is necessary with reference to other materials which outweigh the effect of the Court’s order. In all these cases, non-application of mind on a vital and relevant material need not necessarily lead to the conclusion that the application of mind on such materials would always be in favour of the detenu. Application of mind in such cases is insisted upon to enable the detaining authority to consider one way or the other, as to what effect a relevant materials could have on the authority that decides the detention.”
20. To counteract the same, Mr. Bagwe, learned Additional Public Prosecutor appearing for the respondents, has contended that the impugned detention order was passed by the 2nd respondent, only on the fresh three grounds which happened during the month of July, 1997 and August 1997 pertaining to three incidents, but however not either on the basis or any of the materials or the grounds taken on the earlier occasions in the two writ petitions disposed off. Since the impugned detention order, according to him, was passed on purely on three fresh grounds arising from prejudicial acts committed by the detenu along with others, to assail the same with the vice of mala fide and non application of mind cannot be accepted for the reason that the grounds sought for in the earlier writ petitions and the present one, had no iota of interconnection or nexus with each other and that therefore there was no nexus or influencing the mind of the detaining authority on the earlier occasion and for the said reasoning alone Mr. Bagawe contended that the very argument of Mr. Pradhan has no ground to stand. In support of the said contention the learned Addl. Public Prosecutor placed reliance on a case held between the State of Punjab v. Sukhpal Singh, by the Supreme Court in for the following proposition:-
“Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing. The justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. Therefore, the question is whether a particular person is disposed to commit the prejudicial acts. The duty of deciding this question is thrown upon the State. The justification is suspicion or reasonable probability and not criminal charge. Unless it clearly appears that preventive detention is being resorted to as the line of least resistance where criminal prosecution would be the usual course, no fault can be found with it. What is to be seen is whether the detaining authority has applied its mind or no* to the question whether it was necessary to make preventive detention.
The anticipated behaviour of a person based on his past conduct in the light of surrounding circumstances may provide sufficient ground for detention. But such conduct should be reasonably proximate and should have a rational connection with the conclusion that the detention of person is necessary. The question of relation of the activities to the detention order must be carefully considered. The grounds supplied operate as an objective test for determining the question whether a nexus reasonably exists between grounds of detention and the detention order or whether some infirmities had crept in. A conjoined reading of the detention order and the grounds of detention is, therefore, necessary.
Executive can take recourse to its powers of preventive detention in those cases where the executive is genuinely satisfied that no prosecution can possibly succeed against the detenu because he has influence over witnesses and against him no one is prepared to depose. However, pusillanimity on the part of the executive has to be deprecated and pusillanimous orders avoided.”
In the instant case, it is noticed that in the Special Leave Petition the Supreme Court has passed the interim order staying payment of exemplary cost of the detaining as well as sponsoring authorities. If that be so, to pass the detention order on the fresh ground, the interim order passed by the Supreme Court in the Special Leave Petition does not become operative in any manner. Therefore the authority cited supra, above is not applicable to the facts of the instant case.
21. It is the common case of the Bar for the respective parties that while passing the impugned detention order against the detenu, neither of the grounds imported in the previous two writ petition, have been borrowed, nor looked into and that there was no controversy among them that the impugned detention order was passed purely on the fresh three incidents. If that be so, we feel with all respects that no legal exercise is necessary to say that there was no mala fide or a total non-application of mind by the detaining authority viz., the 2nd respondent while passing the impugned detention order against the detenu passed on 18-9-1997 which was purely based on three fresh grounds arising out of prejudicial activities said to have been committed by the detenu and his associates long after the two earlier writ petitions have been disposed off. In fact, we find that there was no proximity or nexus of any kind whatsoever for recording our endorsement in favour of the contention raised by Mr. Pradhan. It is therefore, in the present circumstances, we” are not impressed by the argument that the impugned detention order was the resultant factor or either mala fide or non-application of mind. But on the other hand, we find that there is every force in the contention raised by Mr. Bagawe, learned Addl. Public Prosecutor.
22. The detaining authority has not adverted the fact that the bail application for anticipatory bail filed on behalf of the detenu was pending disposal ‘in this Court and that therefore it amounts to non-application of mind. We are not able to accept the contention of the learned Counsel Mr. Pradhan to the above said effect for the simple reason that the application for anticipatory bail was ultimately refused and that therefore neither the application, nor the order passed thereon could come in the category of vital documents to make it rely while passing the detention order. In this regard, we would like to refer to a decision of the Supreme Court held in Abdul Sathar Ibrahim Manik v. Union of India & others, for the following observation:-
“If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.
“Accordingly, the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu’s right of being afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same.
“When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents may, in certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India. Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court.”
23. It was next contended by Mr. Pradhan leaned Counsel appearing for the petitioner, that the impugned detention order passed in this writ petition is vitiated firstly on extraneous consideration and that secondly by passing the detention order, by not providing the copies of the material documents is clearly violative of Article 22(5) of the Constitution of India and for the said two reasonings alone, the impugned order of detention became vitiated. In emphasizing the said ground, it was strenuously urged by Mr. Pradhan, learned Counsel appearing for the petitioner that despite the several case laws and legal ratios held by the Apex Court, the impugned detention order has been passed and to substantiate his contention reliance was placed in a case held by the Apex Court in Vashisht Narain Karwaria v. State of U.P. and another, and Kirti Kumar Chamanlal Kundaliya v. State of Gujarat and others, reported in 1981(2) Supreme Court Cases at page 438. In the earlier case, it appears that the Supreme Court has observed the legal ratio as follows: –
“An order of detention was passed against the detenu under section 3(3) of the National Security Act. The only ground of detention furnished to the detenu was that he (along with his associates) had at the time of auction of liquor shop held in the campus of Collectorate threatened the bidders that they along with their family members would be shot down if they dared to bid the shop falling within his area and that when police officials advanced towards the detenu, he fired gun shots at the police party, exploded bombs and fled away creating panic among the people and completely disturbing the public order. Along with the ground of detention four documents viz, a report of S.S.P. a report of SHO a copy of the chik of the case registered against the detenu in connection with the incident stated in the ground and a copy of general diary relating to the said offence were furnished. The averments made in the police reports unequivocally and clearly spell out that the detenu was a hardened criminal, having a gang under his control often committing heinous crimes, that many cases against the detenu were registered in various police stations and that he was in the habit of committing offences. Question was whether the sponsoring authority had placed extraneous materials which had influenced the mind of the detaining authority while passing the detention order and as such the detention order was liable to be quashed.
The Supreme Court held that the above averments which are extraneous touching the character of the detenu, though not referred to in the grounds of detention, might have influenced the mind of the detaining authority to some extent one way or other in reaching the subjective satisfaction to take the decision of directing the detention of the detenu. Had these extraneous materials not been placed before the detaining authority, he might or might not have passed this order. The detention order is suffering from the vice of consideration of extraneous materials vitiating the validity of the order.”
In the same case, at page 634 in para 12, Their Lordships of the Supreme Court observed as follows:–
“It is not the case that this impugned order has been made on two or more grounds covering various activities of the detenu, but on the other hand the order has been passed on the sole ground relatable to a single incident. The conclusion arrived at by us is only on the basis that the aforesaid extraneous materials, placed before the detaining authority might have influenced the mind of the detaining authority, but not on the ground that one of the grounds of the detention order has become invalid or inoperative for the reasons mentioned in section 5-A(a).”
The above passage or the ratio has been relied upon by the learned Addl. Public Prosecutor Mr. Bagawe to counteract the contention of Mr. Pradhan that the impugned order has become vitiated for the reasoning of the extraneous consideration. On a careful perusal of the same, the Apex Court held the above ratio where the grounds formulated for detention of the detenu was apparently only on a single ground and not on multifarious grounds. Since there was only one ground and to rely upon the same ground, it was extraneous consideration the Supreme Court probably held that the said only ground has become vitiated. However, in the case of more than one grounds, if one of the grounds has become vitiated, (even assuming) in view of section 5-A of the Act in question, the entire detention order does not become vitiated.
24. What is the matter which amounts to extraneous consideration in this matter? It was the endeavour of Mr. Pradhan, learned Counsel appearing for the petitioner, who took pains in taking us through the grounds of detention particularly with reference to para 2 of the grounds of detention which is an extraneous matter to be considered. Paras 2 and 3 of the grounds of appeal reads like this :-
“(2) Your criminal record shows that you are a notorious under world ‘Don’ and has a number of ruffians under your command. Your gang is known as “Arun Gawali Gang”. Your lieutenant is Sada Pawle alias Sadamama and you have been operating from ‘Dagadi Chawl’, the fortrees like residence, situated at Bapurao Jagtap Marg, Byculla. Your activities have created a reign of terror amongst the law-abiding and peace loving citizens, particularly the business community all over Brihan Mumbai.
(3) You have been masterminding types of dreaded crimes such as contract killings, kidnapping, extortion of money and assault by you or through your gang members. Your gang members have been undoubtedly carrying out the missions as directed and ordered by you. You have been extorting huge amounts through your musclemen and your main victims are shop-keepers, businessmen and builders from all over Brihan Mumbai. Your associates/musclemen are provided with sophisticated weapons such as revolvers, pistols, stenguns etc. which your associates/musclemen use freely while carrying out missions as directed and ordered by you. You have been leading a luxurious life by extorting ‘Khandani’ money from businessmen, shop-keepers and builders. You have been harbouring dreaded criminals involved in serious crimes like murder, contract killings. Action taken against you under the normal law of the land found to be insufficient and ineffective to deter you from continuing in such activities which are prejudicial to the maintenance of public order in Brihan Mumbai.”
The above two passages were taken as the weapon for attacking the impugned detention order by Mr. Pradhan, learned Counsel appearing for the petitioner, as having become totally vitiated on the ground of extraneous consideration. The learned Counsel has also relied upon the said passages for attacking the detention order as vitiated, as no copies of the so called record for arriving at such conclusion shown in the passages, were supplied which is totally violative of fundamental rights under Article 22(5) of the Constitution of India. To substantiate the above contention, learned Counsel for the petitioner also placed reliance on a case held between Kamla Kanyalal Khushalani v. State of Maharashtra and another, for the following :–
“It is of the utmost importance that all the necessary safeguards laid down by the Constitution under Article 21 or Article 22(5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention. The law of preventive detention has now to satisfy a two-fold test: (1) that the protection and the guarantee afforded under Article 22(5) is complied with, and (2) that the procedure is just and reasonable. If a procedure under Article 21 has to be reasonable, fair and just, then the words/ ‘effective representation’ appearing in Article 22(5) must be construed so as to provide a real and meaningful opportunity to the detenu to explain his case to the detaining authority in his representation. In this view of the matter, unless the materials and documents relied on in the order of detention are supplied to the detenu along with the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity to make a representation to the detaining authority.
Whenever a detention is struck down by the High Court or the Supreme Court, the detaining authority or the offices concerned who are associated with the preparation of the grounds of detention, must be held personally responsible and action should be taken against them for not complying with the constitutional requirements and safeguards (viz. delay in disposing of the representation, not supplying the documents and materials relied upon in the order of detention pan passu the order of detention, etc. etc.) or at any rate an explanation from the authorities concerned must be called for by the Central Government so that in future persons against whom serious acts of smuggling are alleged do not go scot-free.”
Mr. Pradhan also placed reliance on the case Mohd. Yousuf Rather v. State of Jammu and Kashmir and others, , wherein the following ratio has been held by the Apex Court:-
“The inclusion of an irrelevant or non-existent ground among other relevant grounds is an infringement of the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights. In either case, there is an invasion of the constitutional rights of the detenu entitling him to approach the Court for relief. The reason for saying that the inclusion of even a single irrelevant or obscure ground among several relevant and clear grounds is an invasion of the detenu’s constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds and it cannot substitute its objective decision for the subjective decision for the subjective satisfaction of the detaining authority.”
25. Placing reliance upon the above case law, it was the serious contention of Mr. Pradhan, learned Counsel appearing for the petitioner that what was contained in paras 2 & 3 of the grounds of detention, absolutely, indicates that the said passages are totally extraneous matter, not based on the record nor any material, nor any documents and that, therefore, on the first limb the detention order has become vitiated for extraneous consideration of irrelevant and unwanted passages found in paras 2 & 3 of the grounds of detention and under the second limb the copies of the record referred in para 2 or any other connected papers thereon have not been provided by way of copies to the detenu to make an effective representation in this regard and that therefore it has clearly come within the teeth of Article 22(5) of the Constitution of India and that, at any rate, non- supply of the copies of the said record as shown in para 2 and 3 of the grounds of detention is totally violative of Article 22(5) of the Constitution of India and that, therefore, the impugned detention order has become totally vitiated.
26. To controvert the above contention, Mr. Bagawe, learned Additional Public Prosecutor pointed out that what was contained in the grounds of detention from the beginning till the end of para 3 is not the grounds of detention at all but it was only an introduction and preamble to the grounds of detention and that, therefore, the same cannot be treated at all as the grounds of detention. To attribute the two grounds projected by the learned Counsel for the petitioner, Mr. Bagawe, learned Addl. Public Prosecutor brought to our notice that in para 3 of the first page of the grounds of detention, it has been specifically mentioned as hereunder:-
“In pursuance of section 8 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) (Amendment 1996) r/w Article 22(5) of the Constitution of India, I hereby communicate to you the grounds as mentioned in paragraph 4 below on which a detention order has been made by me on this day against you under sub-section (1) of section 3 of the said Act. Copies of the documents placed before me are enclosed.”
The wordings “I hereby communicate to you the grounds as mentioned in paragraph 4 below on which a detention order has been made by me on this day against you under sub-section (1) of section 3” would clearly and unequivocally indicate that whatever the materials relied upon by the detaining authority to pass the impugned detention order, was only on the basis of the grounds spelt out in para 4(a) to 4(c) at page 9 of the grounds and it was made clear that none of the other passages from the grounds of detention has been relied. The short ground emphasized by Mr. Pradhan, learned Counsel appearing for the petitioner, is that whatever the wordings or materials incorporated in the grounds of detention order, either as introductory or preamble or the conclusive paragraphs, since it has been mentioned in the grounds of detention, everything stated in the grounds of detention forms a part of the grounds and that therefore the grounds of detention cannot be segregated and put into two separate watertight compartments and as such it is the ground of detention and thereby- cannot put the person under the detention order.
This plea was totally negatived and resisted by the learned Additional Public Prosecutor and it was denied on the part of the Bar for the petitioner that it has been specifically spelt out and mentioned in para 2 of the grounds of detention that the grounds relied upon to pass the detention order commences from para 4 onwards. Ofcourse, it was true in the beginning of para, graph 2 in the preamble, according to the learned Additional Public Prosecutor, the wordings “criminal record shows” are there, but however that was not relied upon or taken as the basis for passing the impugned detention order.
27. In Dhananjay Das v. District Magistrate and another, , the Supreme Court has laid down the law in this regard as follows:-
“It cannot be said that there can be no preamble or introductory para in the grounds of detention. There is no bar to have introductory paragraphs in the grounds. Whether a particular paragraph in the grounds amounts only to a preamble or introduction is to be determined on the facts and circumstances of each case and it is open to the Court to come to its own conclusion whether that paragraph is only an introductory para or contains the grounds on the basis of which the detaining authority had the subjective satisfaction for passing the order of detention.
The grounds of detention read as a whole leave no room for doubt that paragraph 1 of the grounds of detention was only by way of introduction or as a preamble. In substance, it only indicates the modus operandi adopted by the various organisations to the current agitation on foreigners issue in Assam.”
28. In the light of the above legal ratio held by the Supreme Court if we consider what was stated in the grounds of detention from paras 1 to 3 in full, we have, no doubt, in our minds to say that the said passages are only an introductory and a preamble to the grounds of detention but do not form a part of the grounds of detention in any manner whatsoever. We have necessarily come to this conclusion for the specific reasoning, as pointed out by Mr. Bagawe, learned Additional Public Prosecutor, that in para 2 of the first page, of the grounds of detention, it has been specifically spelt out that in pursuance of the provisions of law, it has been communicated to the detenu the grounds, as mentioned in para 4 below and on the basis of which the detention order has been passed. If the paras mentioned from the beginning till the end of para 3 is the grounds of detention, one can fail to understand as to the specific indication given in para 2 that the grounds for the detention of the detenu have been enumerated from para 4 onwards. It is, therefore, under the said circumstances, placing reliance on the legal ratio enunciated by the Apex Court on the above case law, we are totally constrained to hold that para 1 to end of para 3 of the grounds of detention are the only introductory and preamble part of the grounds of detention and not the grounds at all and that in any event there is nothing to show that paras 1 to 3 of the grounds of detention are deemed to be part and parcel of the grounds of detention. For the said reasons, we are totally unable to accept the very contention of Mr. Pradhan, learned Counsel for the petitioner. Therefore, the ground of attack on the concept of extraneous consideration must fail, so also the other ground, viz. that mentioning of paras 1 to 3 without giving any record or copies of the record to the detenu, is totally violative of Article 22(5) of the Constitution of India. It is noticed that if at all the introductory part and the preamble part is taken and has become a precedent and also legally authorised to give it before passing the detention order, then it became unnecessary for either of the, authorities to provide the copies of the same to the detenu and that, therefore, non-supply of any copies of the record which are found and referred to in the preamble para does not violate any of the provisions of the Constitution and that, therefore, we are not prepared to accept the strenuous contention made by the learned Counsel for the petitioner on the second limb also.
29. Mr. Pradhan, learned Counsel for the petitioner, then dwelt his attack on the impugned detention order on the ground that either of the grounds specified in the detention order do not involve breach of any public order as contemplated by law. If the concept of public order is bereft of while relying upon the grounds in passing the detention order, according to him, it would automatically vitiate the detention order. The learned Counsel, in short would contend that all the three incidents of grounds specified and relied on by the detaining authority as grounds for passing the order relate purely to law and order and do not at all involve the public order and that, therefore, the detention order is against the very provision of law. To substantiate this contention, the learned Counsel has relied upon a number of case laws including Smt. Victoria Femandes v. Lalmal Sawma and others, , wherein Supreme held as follows:
“The distinction between ‘law and order’ and ‘public order’ has been explained by this Court time and again. It has been pointed out that while the expression ‘Law and Order’ is wider in scope in as much as contravention of law always affects order, while ‘public order’ has a narrower ambit and public order would be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of ‘Law and Order’ and ‘Public Order’ is one of degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise the problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular erruption of disorder that helps distinguish it as an act affecting ‘public order’ from that concerning ‘law and order’. The question to ask is: Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed? This question has to be faced in every case on its facts. The cases held in Dr. Ram Manonar Lohia v. State of Bihar, and Arun Ghosh v. State of West Bengal, , Ram Ranjan Chatterjee v. State of W.B., and Ashok Kumar v. Delhi Administration, .”
The above legal ratio is based on the legal ratio held in Arun Ghosh v. State of West Bengal, and other authorities above referred. A close perusal of the same would clearly indicate that it is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order always and distinguishes it from the law and order, if the degree or the gravity of the crime or the incident has is such that it would reach the society affecting the very tempo of life of the community or a segment of it, it would be breach of public order if not then only breach of law and order and the ratio above still holds good and that too identify the act whether an act amounts to a breach of public order or Saw and order it has to be seen that whether the propensity and potentiality of the act would affect or reach even tempo of life of a segment of the community or not. If the propensity or potentiality remains within a few individuals and does not reach even a segment of the community there is no difficulty at all to term such an act as a breach of law and order but if the propensity and potentiality of one act would affect the tempo of life of a segment of the community, one can unhesitatingly say that it affects the public order and comes within the teeth of public order as per the ratio of the Apex Court held in the above cases. Therefore, each case is to be determined on the facts and circumstances of every given case and every case has to be decided on its own merits and facts and circumstances.
30. We feel, that the above legal ratio still holds as good law being followed by the Apex Court. We are not inclined to refer any other case law in this regard for the sake of brevity. By applying the said ratio to the present case, let us consider the three incidents, viz. the grounds specified in para l(a) to para (c). On a careful consideration of the first case registered as Crime No. 193/97 in Agripada Police Station for the offences under sections 143, 144, 147, 148, 149, 324, 506(ii) read with section 32 of the Indian Penal Code, the complainant being a woman reporter of the Newsmedia, English Version, was attacked by several persons within the precincts of the detenu’s house by name Dagadi Chawl and the manner in which it has taken place against a woman of this country working as a Reporter of a Newsmedia and the publication of the said news throughout the Metropolis as well as other parts of the country, would clearly, in our minds, establish the fact that the very incident, as alleged and claimed, would come in the teeth of public order, as it would affect the segment of the community and that it is very difficult to confine the said incident in between the two individuals alone and to take it as a law and order problem.
31. Regarding the second incident of the grounds, undoubtedly, on careful consideration of the same, in the context of the legal ratio held out in Arun Ghosh case (supra) by the Apex Court, we are of the firm view that the second incident of the grounds would come within the ambit and teeth of the public order. To say so, we would rely upon the fact that a complaint was, though lodged by an individual, viz. co-passenger of deceased Natwarlal Desai, that while going to his office he was shot down by opening the fire with illegal arms in the public street in open day light which created a panic and terror in that area, as revealed from the statements recorded from several witnesses in this case. It is the backdrop of this incident, if we consider it we have no hesitation to hold that propensity and potentiality of this act would clearly reach the society as a whole in the metropolis of Mumbai particularly the builders and the business communities within the Metropolis. We do not want to say anything more with regard to the’ said incident for the reason that a case has been registered and by which law was set in motion and investigation in it is still going on. Enough for us at this stage to say that the case registered in Cuffe Parade Police Station in C.R. No. 382/97 for the offences under sections 302, 341, 120-B of the Indian Penal Code and sections 3, 25 and 27 of the Arms Act against the detenu and others would clearly come within the teeth of concept of public order and that therefore, the detaining authority has rightly come to the conclusion in passing the detention order against the detenu.
32. Coming to the third incident of the case in the grounds of detention, though we find it difficult to term that case within the concept of public order as discussed above for the reason that as individual person has come forward with lodging a complaint to Vartak Nagar Police Station at Thane for offences under sections 143, 386, 364, 342, 506, 506(ii) of the Indian Penal Code read with section 25(1-B)(A) of the Arms Act, however, which happened from 17-6-1997 to 23-8–1997. Since the complaint was given on 23-8-1997, we are notable to subscribe our view in favour of the contention made by the learned Additional Public Prosecutor Mr. Bagawe that it comes under the public order. The records made available before us would clearly indicate that this case being investigated as of today, would clearly indicate that the matter is between the authorities and few individuals and that, therefore, we are not in a position to accept the case of the learned Addl. Public Prosecutor in this regard. But, however, in view of section 5-A of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act. 1981, even if this incident fails to come within the category of public order, since the other incidents fall within its ambit; the impugned order of detention does not become vitiated.
33. Some other miscellaneous points were projected before us by the learned Counsel, Mr. Pradhan, appearing for the petitioner and which were countered by Mr. Bagawe, learned Additional Public Prosecutor. The first one, amongst others is that the incident of the third ground, since it had taken place and the case was registered at Vartak Nagar Police Station, in Thane, the detaining authority, having the jurisdiction over the Brihan Mumbai, was not competent to pass the detention order taking that case as one of the grounds to arrive at subjective satisfaction and that, therefore, this ground is in favour of the detenu. The said ground was resisted by Mr. Bagawe, learned Addl. Public Prosecutor for the State. He urged that though the case has been registered at Vartak Nagar Police Station Thane, since the major portion of the impact of the act also effected within the jurisdiction of Brihan Mumbai, the detaining authority 2nd respondent was fully justified and empowered to take cognizance of the same in placing reliance upon the said ground in passing the detention order. As we have dealt with the case law held at the beginning stage itself and after having identified the potentiality and propensity of the act reaching a segment of the community or community as a whole, we are not in a position to accept the very contention made by Mr. Pradhan, learned Counsel appearing for the petitioner. It was then the contention of Mr. Pradhan, learned Counsel for the petitioner that some indecipherable copies of documents were provided to the detenu and thereby the detenu was made unable to make effective representation to the authorities concerned at the appropriate time. For instance he has referred to few pages found in Marathi which were found indecipherable. The settled law in this regard is that if such of the documents relied on by the detaining authority while passing the detention order are considered to be vital and important document and if such copy of the same has not been provided, then it would come under the category of proper and adequate opportunity has not been given to the detenu to make an effective representation. But in this case for the above said reasoning, in our considered view, none of the copies of any vital documents were found indecipherable. 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. LV of 1981) (Amendment 1996) has not been adverted to. Non-categorising of the detenu in the order of detention either as a dangerous persons 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 paragraphs 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 non-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.
34. Before parting with our discussions, it is relevant to mention that prayer Clauses (a) to (f) in the writ petition have been given up by the learned Counsel for the petitioner and that as such he has not ventured nor submitted any of his contentions in relation to them for the reason that the legal question has already been settled in another writ petition and that therefore it is not open to him to make submissions in respect of them.
35. No other substantial point has been raised by the learned Counsel for the petitioner before us to consider in this petition.
36. In the result, for the reasons given above, the writ petition, must fail and, accordingly it is dismissed. Rule granted earlier is discharged.
Certified copy is expedited.
37. Petition dismissed.