JUDGMENT
S.S. Parkar, J.
1. By this petition the petitioner-detenu has challenged the order of detention dated 21/2/2002 passed against him under the provision of the Maharashtra Prevention of Dangerous Activities of Slumlords. Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) (Amendment-1996).
2. Pursuant to the aforesaid detention order the petitioner was taken into custody on 25/2/2002. The said order was passed on the basis of two crimes registered against the detenu and two in-camera statements. The first C.R. pertains to the incident which took place on 13/11/2001 being C.R. No. 498 of 2001 registered at Vakola Police Station on the complaint of one Rajesh Tiwari for the offences under Sections 171, 420 and 34 of IPC. The second C.R. was registered in respect of the incident which took place on 24/11/2001 being C.R. No. 510 of 2001 registered by the same police station for offences under Sections 399, 402 of IPC read with Sections 3, 4 and 25 of the Arms Act i.e. for preparation of committing dacoity. Besides the above two crimes, two in-camera statements were recorded against the detenu in which allegation is made that the detenu along with his associates collects hapta money from contractors, shop keepers and Jewellers by giving threats on the points of revolver and chopper and had also entered in the shop of a witness, abused him and demanded money by holding out threats to him.
3. On the basis of the aforesaid four incidents, the detaining authority was subjectively satisfied that the detenu was a weapon wielding desperado and had struck terror in the minds of people living in the areas of C.S.T. Road Kalina and area near R.K. Hospital of Vakola Police Station and areas of Bharat Nagar, Dnyaneshwar Nagar, Shastri Nagar of Kherwadi Police Station and adjoining areas and had become a perpetual danger to the society at large and accordingly exercised the powers under the provisions of Section 3(1) of the MPDA Act.
4. Mr. Tripathi, the learned Advocate appearing on behalf of the petitioner, raised only one contention before us and argued that it is not the case of public order but the CRs registered against the petitioner pertain to law and order and, therefore, the subjective satisfaction formed by the detaining authority on the basis of the aforesaid material is vitiated and liable to be stuck down. The said ground has been taken in paragraph 6(B) of the petition.
5. In order to substantiate his contention. Mr. Tripathi, first of all, took us through the grounds of detention mentioned in paragraph 4(a)(i) of the grounds of detention pertaining to the C.R.No. 498 of 2001 and argued that the offence under Section 171 of the IPC is not covered by or cannot be relied on for the purpose of applying the provisions of MPDA Act but only the offence of cheating will be applicable. The complaint lodged against the detenu is to the effect that the detenu posed himself as CID Officer and wanted to check the bag of the complainant which he was carrying while travelling in an autorickshaw. The bag was containing Rs. 20,000/-. The detenu inserted his hand inside the bag and took out the money and asked the complainant whether he was carrying fake notes and thereafter, pretending that he had kept back the cash in the same bag, closed it and handed it over to the complainant. But afterwards the complainant found that the cash of Rs. 20,000/- was missing and that is how the complaint of cheating was filed. In the second crime registered against the detenu the allegations were that the detenu along with his associates was nabbed by the police on the receipt of information. The detenu and his associates were noticed in a car parked on the sought side of hotel Meena on the C.S.T. Road, Kalina, Santacruz (East), Mumbai. At that time the detenu was found in possession of a chopper while his associates were found with revolver loaded with one live cartridge and one more live cartridge in pant pocket and chopper and mobile phone. So far as these two crimes registered against the petitioner are concerned, it cannot be disputed that the provisions of MPDA Act are applicable to the offences under Sections 420, 399 and 402 of IPC, but the said activities cannot be said to have created a panic in the locality or a sense of insecurity among the residents of that particular area for the applicability of the provisions of MPDA Act as held b the Supreme Court in the case of Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad and Anr. reported in 1989 SCC (Cri) 679. It is not in dispute that the provisions of Gujarat PASAA, which the apex court was considering in the above case, are on par with the provisions of MPDA Act. However, so far as the incamera statements are concerned there is material to show that a sense of insecurity was created in the area due to the activities of the detenu.
6. In the incamera statement of witness “A” it is stated that he knew the detenu and his associates named therein as goondas. The associates of the detenu frequently visited the detenu at his residence and that he had created terror in the minds of people in the areas of Bharat Nagar, Dnyaneshwar Nagar, Shastri Nagar and the areas adjoining thereto. The detenu along with his associates allegedly used to collect hapta money from contractors, shop keepers and jewellers by holding out threats to them that if anybody complains against him or his associates he would be killed by use of a revolver or a chopper. The witness had referred to the incident which took place in the third week of November, 2001 in his shop. The witness is a shop keeper and at about 12 hours, when there were many customers present in his shop the detenu and his associates named therein entered into his shop and he was asked to take out 20,000 rupees then and there. When the witness expressed inability to pay that amount, as he did not have the same, he was slapped by the associate of the detenu, then abused and threatened. On seeking the incident, the customers who were present in the shop ran away. The passers by gathered there. On seeing the people, the detenu whipped out a chopper which was concealed under his shirt and rushed towards them and threatened them to break their legs. Thereafter the people who had collected there also ran away. The associates of the detenu then took out a sum of Rs. 20,000/- from the cash box of the witness and he was told that he should not say no for giving money in future otherwise his head would be broken. The detenu also damaged the showcases of the shop with his chopper and held out threats to him that in case he reported the matter to the police his shop would be burnt. The witness did not lodge the complaint to the police about the said incident due to fear.
7. Another witness stated that the detenu and his associates used to visit his residence very often and they had created a reign of terror in the minds of people in the areas of Bharat Nagar, Dnyaneshwar Nagar and Shastri Nagar in the Kherwadi and Indira Nagar and Maratha Colony in the areas of Nirmal Nagar. It was further alleged that the detenu along with his associates used to collect hapta money from contractors, shop keepers and businessmen. The said witness is also a shop keeper and while he was attending to his customers, the detenu along with his associates had entered his shop at 4 p.m. and demanded money after holding out threats to him. When the witness tried to plead with the detenu, the latter took out revolver and pointed it at the witness and asked him to give money. On seeing this incident, the customers ran away. When the people gathered outside the shop, the associate of the detenu took out sword hidden under his shirt and rushed towards those people and held out threats to them. Due to fear this witness took out Rs. 20,000/- from his cash box and handed it over to the detenu and thereafter they left the place warning him that in case the complaint was lodged with the police his whole family would be finished. The witness thereafter closed the shop and went home. He did not report the incident to the police due to fear of retaliation.
8. On the basis of the aforesaid material, the detaining authority in para 5 of the grounds of detention stated that he was subjectively satisfied that the detenu was a dangerous person and a weapon wielding desperado and had struck terror in the minds of people living in the areas of C.S.T. road, Kalina and areas mentioned hereinabove. It was further stated that the detenu was a habitual criminal and had become a perpetual danger to the society at large.
9. Mr. Tripathi contends that the crimes registered under two CRs, to which reference is made in the grounds of detention, cannot be separated from the aforesaid two incamera statements. According to him the detaining authority had arrived at subjective satisfaction on the basis of all the four events which were mentioned in the grounds of detention and since the crimes registered under two CRs cannot be said to be relevant for the purpose of issuing detention order under the provisions of MPDA Act, it is a case of non-application of mind by the detaining authority. According to Mr Tripathi the subjective satisfaction was arrived at by the detaining authority after considering all the four events and not each event separately.
10. We do not agree with the said submission of Mr. Tripathi. In our view, if the order can be sustained on any one or more of the grounds the detention order cannot be deemed to be invalid or inoperative merely because one or some of the grounds is or are no relevant as provided by Section 5A of the Act. For the reasons already mentioned above, we are of the view that the crimes registered under two CRs may not warrant the detaining authority to pass the order of detention as there is nothing in those two complaints which can be said to have created the problem of public order. The complaints of cheating and the preparation for committing dacoity pertained only to the question of law and order which could be dealt with under the ordinary law. But merely because those two crimes registered against the detenu are not relevant, the order of detention cannot be deemed to be invalid or inoperative and the order can be justified and sustained on the basis of two incamera statements by virtue of Section 5A of the MPDA Act. The contention of Mr. Tripathi that the provisions of Section 5A cannot be applied in this case is without substance. the provisions of Section 5A are meant to be applied and we are satisfied that only because the first two grounds are not relevant, the order of detention cannot be deemed to be invalid or inoperative on the ground and the same can be sustained on the basis of incamera statements.
11. It would be relevant to refer to the judgment of the Supreme Court in the case of Sadhu Roy v. The State of W.B. reported in AIR 1975 SC 919 which was cited and placed reliance by Mr. Tripathi himself. In para 10 of the Judgment the Supreme Court laid down seven guidelines for application of preventive detention. The sixth guideline laid down in the said paragraph is as follows:
“6. More concretely, if witnesses are frightened off by a desperate criminal, the court may discharge for deficient evidence but on being convinced (on police or other materials coming within his ken) that witnesses had been scared of testifying, the District Magistrate may still invoke his preventive power to protect society.”
12. In the present case also the witnesses, who were shop keepers, were frightened off by the detenu and his associates and the detaining authority on the basis of the material produced before him was satisfied that the witnesses were scared of testifying and, therefore, the detaining authority, in our view, could invoke his preventive power under the aforesaid Act to protect society.
13. Our view is supported by the judgment of the Division Bench of this Court in the case of Jafar Ahmed alias Jafar Fantoosh Mohamad Razzak Khan v. M.N. Singh and Ors. reported in 2002 Cri.L.J. 1723. That was a case where the detention order was passed on the basis of one CR and two incamera statements. After holding that the crime registered for the offences under Sections 384, 387, 506(ii) of IPC and failed, it was held that the detention order was not vitiated, relying on the two incamera statements.
14. Mr. Tripathi, however, placed reliance on two unreported judgments of the Division Bench (Coram: D.G. Deshpande and A.S. Aguiar, JJ.) of this Court; (1) Judgment dated 10th July 2002 in Criminal Writ Petition No. 530 of 2002 in the case of Smt. Shamim Banu v. M.N. Singh and Ors. and (2) Judgment dated 16th August, 2002 in Criminal Writ Petition No. 659 of 2002 in the case of Mrs. Jainab Salo Mohammed v. M.N. Singh and Ors. In the first case the order was issued under the MDPA Act on the basis of one CR and two incamera statements. The Bench found that there was absolutely nothing to show the presence of the detenu in the crime registered against him as the FIR was registered against two unknown persons and it was not the case of the detaining authority that the detenu had actually participated in the robbery or taken any active role in the incident of robbery. So far as the two incamera statements were concerned. The Bench found that there was absolutely nothing in the grounds of detention or the reply affidavit filed by the detaining authority as to why those witnesses did not lodge any complaint for a period of five months. The Bench had also observed that there were strong reasons to suspect the genuineness of those incamera statements due t the circumstances in which they were recorded. In the present case the witnesses have given the reasons as to why the complaints were not lodged with the police. The detenu and his associates had held out threats on the points of revolver and chopper to break the head and legs of the witnesses in case they lodge any complaint with the police. The incidents in the present case had taken place in the third week of November 2001 and the incamera statements were recorded by the police on 8/1/2002 i.e. within a period of one and half month.
15. In the second judgment referred to above in Mrs. Jainab Mohammed’s case, though the Bench had held that the only crime registered against the detenu did not affect public order, it was observed that there was delay in passing of the detention order which was not explained in as much as the last incamera statement was recorded on 29/8/2001 and the order of detention was passed on 11/10/2001. Moreover, the Bench has also held that the incamera statements were themselves suspect as they were recorded after a considerable delay as the incidents had taken place in the month of May but the statement was recorded in August 2001. That is not the case here. In our view, the ratio of the decisions of the above two writ petitions i.e. Cri.W.P. Nos. 530/2002 and 659/2002 is not applicable to the present case.
16. The unreported Judgment of this Court (Coram: Vishu Sahai and Smt. Ranjana Desai, JJ.) dated 11th March, 1999 in Criminal Writ Petition No. 842 of 1998 in the case of Shantaram Balu Kasare v. R.H. Mendonca and Ors. relied on by Mr. Tripathi is not at all relevant as in that case it was held that there was violation of right under Article 22(5) of the Constitution as the vital document was either placed before the detaining authority and the copy thereof was not supplied to the detenu or the said document was not placed before the detaining authority at all. That is not the case here.
17. Reference to the Judgment of the Supreme Court in the case of Dharmdas Shamlal Agarwal v. Police Commissioner and Anr. is also not of any assistance to the petitioner. That was the case where the Supreme Court was of the clear view that either the sponsoring authority was not aware of the acquittals of the detenu in two cases or having been aware of the same had not placed that material before the detaining authority which could have influenced the mind of the detaining authority one way or the other if they were brought to his notice before passing of detention order. The detention order was, therefore, set aside on the ground that material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind were either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. In this case the detaining authority was made aware of the fact that in C.R. No. 498 of 2001 the petitioner was released on bail on 2/1/2002, whereas in C.R. No. 510 of 2001 he was granted bail but he had not availed of it. Thus, the petitioner could have been released on bail any time in the other CR also.
18. In the aforesaid circumstances, since we are of the view that the impugned detention order can be sustained by virtue of Section 5A of the Act on the basis of the two incamera statements on which also reliance is placed by the detaining authority, the detention order cannot be deemed to be invalid or inoperative only because some grounds have failed.
19. In the result, this writ petition is dismissed and rule is discharged.