JUDGMENT
Deshpande, J.
1. Heard the learned advocate for the detenu and the learned A.P.P. for the State.
2. The order of detention in this case is dated 30.5.2002. It was served and executed on the detenu on 11.2.2002. It is under Section 3(1) of M.P.D.A. Act, 1981. One C.R. No. 57 of 2002 and two in-camera statements dated 29.4.2002 and 31.4.2002 are the basis for grounds of detention.
3. The petitioner has raised number of contentions in this petition, however, Mr. Tripathi, the learned counsel for the petitioner restricted himself to grounds 9-B, 9-D & 9-F.
4. So far as ground 9-B is concerned, his contention was that C.R. No. 57/2002 under Section 384 read with 34 of I.P.C. registered at Deonar Police Station did not disclose any offence under Section 387. In that regard he relied upon the bail order passed by the Magistrate which is Annexure-D of this petition. He drew my attention to the portion of the order wherein the Magistrate has observed –
“So also, it is brought to my notice that both the parties were known to each other and there were previous transactions. Demand of own money cannot amount to extortion. The fact that the accused demanded money on 12.3.2002, 15.3.2002 and F.I.R. is lodged on 20.3.2002 reveals that delay and intention on the part of the complainant. Normally, when an amount of extortion is to be recovered, it is recovered through unknown persons so that the identity of the person who demands the amount should not be disclosed. Considering the fact of this case that the accused were themselves involved in demanding their own money, bail can granted.”
We find that all the aforesaid observations of the Magistrate are without any basis. These observations are perverse because what was before the Magistrate was the application for bail and police papers. In the C.R. there is absolutely no mention by the complainant that the accused detenues had gone to him to demand back their own money. We do not see from where the Magistrate made the aforesaid observations and, therefore, even if the Magistrate had made these observations, it cannot be said that the accused had gone there to demand their own money, but the detaining authority was justified in coming to the conclusion that it was observed on the basis of allegations made in the F.I.R. Whatever be the defence of the accused at the time of submissions made on behalf of him at the time of bail, it cannot be made a basis for challenging the detention order, particularly when neither in the F.I.R. nor in the grounds of detention there is a mention of the accused demanding their own money. We do not find any merit in this submission.
5. The second contention raised by Mr. Tripathi was regarding ground 9-D. According to him, statements of co-detenues were not placed before the detaining authority nor copies were supplied to the detaining authority. This has therefore affected the right of the detenu to make an effective representation in violation of his right guaranteed under Article 22(5) of the Constitution. He also submitted that this ground is without any basis and substance. Nothing is brought to our notice by Mr. Tripathi that the statements of detenue’s were recorded and the same were not supplied. It is an admitted fact that statements of the detenue’s were not recorded. There is no reference to the statements of the detenu in the detention order nor in the documents supplied to the petitioner.
6. Mr. Tripathi contended that, if the detenues were arrested, then it was the duty of the police to record their statements. We are afraid we cannot accept this argument. The question in the detention matter is of supply of vital and material documents relied upon by the detaining authority to the detenu. When admittedly a particular document does not exists at all, the question of supply of the said to the detenues does not arise and no grievance can be made for supply of non-existed document. This ground is also to be rejected.
7. The third ground raised by Mr. Tripathi is 9-F challenging the detention. According to him, he made representation to the State Government and in the representation he made two prayers, namely, (1) Copy of a suit filed by garage owners in Bombay High Court as referred to in para 4(a)(i) of the grounds detention; (ii) Proposal of the case; (iii) chargesheet in C.R. No. 57/2002; (iv) statements of two co-accused Akram and Kutubuddin; and (v) History sheet of the detenu.
8. Mr. Tripathi drew our attention to the detention order wherein in para 4(a)(i), the detaining authority has referred to a suit. What is alleged in para 4(a)(i) is as under:-
“On 18.1.2002 Mumbai Municipal Corporation had demolished the garages of Shri Tahirali and others as they were adjacent to the road, so Shri Tahirali and others garage owners have filed a suit against the Municipal Corporation in the Hon’ble High Court, Mumbai. Shri Tahirali Siddiqui knows you and your associates Kutubuddin Shaikh and Mohd. Javed @ Halim as you used to visit at the garage of Shri Hasin Khan. There is a open plot in front of garage of Shri Tahirali.”
Perusal of the above para 4(a)(i) shows that the suit was filed by the garage owners against the demolition of their garages. Nothing is said in the said para that the detenu was a party to the said suit or any relief was claimed or that detenu had any right, title and interest in the said suit. Even in his representation the detenu has not claimed any right in the said suit and nor he has stated that he was a party nor he has given any reasons how filing of the suit affects his rights in the property. Therefore, non-supply of the copy of the suit does not at all affect the representation.
9. So far as prayer (ii) is concerned, there is a reference to four documents claiming proposal of the case, chargesheet in C.R. No. 57 of 2002, statements of two co-accused and history sheet of the detenu.
10. So far as the proposal of the case is concerned, our attention was drawn by Mr. Tripathi to para 4(b) of the grounds of detention wherein the detaining authority has in the last four lines stated that, “On going through the proposal and finding the verifications done by the Sr.P.I. and the Divisional A.C.P. I believe the contents of the in-camera statements to be true. The gist of the in-camera statements are as under.”
11. From the aforesaid averments in para 4(b), Mr. Tripathi contended that reference to the proposal is reference to the proposal of detention and if the proposal of detention was there, it was necessary for the detaining authority to supply copy thereof to the detenu. This interpretation putforth by Mr. Tripathi cannot be accepted because the aforesaid averments made in para 4(b) cannot be isolated from the context. In para 4(b) whatever is stated is regarding recording of in-camera statements. The assurance was given to the witnesses that their names will not be disclosed and, therefore, their statements were recorded in-camera. In that back ground of the matter and considering the contentions and the reference in which the aforesaid averments are used, the explanation given by the leaned A.P.P. that the proposal referred to herein is regarding proposal to record the in-camera statements. This explanation has to be accepted if the entire para 4(b) is considered. Use of the word “proposal” does not refer to proposal for detention because nowhere in para 4(b) there is any reference to such detention or emphasis on detention.
12. So far as chargesheet, statements of two co-accused and history sheet of the detenu is concerned, there was no question of supplying the aforesaid copy of the petitioner as there is no reference to the chargesheet in C.R. No. 57/2000 in the grounds of detention. Statements of co-accused were recorded and, therefore, supplying the statements to the co-accused was not necessary and vital. So far as history sheet of the detenu is concerned, our attention is drawn by Mr. Tripathi to para 2 of the grounds of detention wherein it is stated that –
“Your criminal record shows that you are a dangerous person of violent character and a weapon wielding desperado indulging in terrorizing activities. Your criminal activities have created a reign of terror in the minds of public in the areas of Gautam Nagar, Baiganwadi, Bhimwadi, Lotus Colony and areas adjoining thereto within the jurisdiction of Deonar Police Station in Brihan Mumbai.”
Mr. Tripathi contended that if there is a reference to the criminal record of the detenu, then it must be presumed that the detaining authority had before whom the history sheet of the detenu produced, then in that case it was obligatory upon the detaining authority to supply copy of the history sheet or the criminal record to the detenu. Mr. Tripathi also relied upon a judgment of Supreme Court reported in AIR (1981) 2 SCC 437, between Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat and Ors. In this case, it was the contention of the petitioner that two documents referred to in the order of detention were not supplied to the detenu. The High Court rejected the contention of the detenu on the ground that the documents were merely referred to and not relied upon by the detaining authority. It appears that the High Court went ahead in examining the documents and found that the documents were not relevant. Supreme Court did not agree with this approach and the view taken and it is in that context and back ground that the Supreme Court held that it was not open to the High court to wade through the confidential file of the government in order to fish out a point against the detenu. Secondly, the Supreme Court also held that the question of relevance is not to be decided by the Court but by the detenu on merits and then come to the conclusion whether it should be accepted or rejected. In our opinion, the aforesaid case is of no help to the detenu because in para 2 of the detention order i.e. Annexure-B, wherein there is reference to the criminal record it is a preamble of the detention order. It is clarified that the unnumbered para 1 of the detention order itself shows that the grounds of detention are to be found in para 4(b)(i) & para 4(b)(ii). If at all the detaining authority had referred to some criminal record in any way in para 4 of the case, then the attempt of the detenu to get the copies of those documents would have been justified but what is stated in para 2 is merely a preamble regarding the activities of the detenu. It is, therefore, clear from the aforesaid paras that the said allegations are of general nature and they do not require the detaining authority to supply the copy of the criminal record or history sheet.
13. We do not find any merits in this petition and stands dismissed.
Rule discharged.