Criminal Writ Petition No. 332 of 1994. Case: Smt. Kailas Laxman Joshi Vs B. Akashi Commissioner of Police Thane and others. High Court of Bombay (India)
| Case Number | Criminal Writ Petition No. 332 of 1994 |
| Counsel | For Petitioner: S. R. Chitnis, Adv.and For Respondents: Mrs. B. B. Desai, A.P.P. (for No. 1 to 3); J. C. Satpute (for No. 4) |
| Judges | M. S. Rane and V. Sahai , JJ. |
| Issue | National Security Act (65 of 1980) - Sections 3(2), 3; Constitution of India - Article 22(5) |
| Citation | 1995 CriLJ 231 |
| Judgement Date | June 16, 1994 |
| Court | High Court of Bombay (India) |
Judgment:
Rane, J.
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The petitioner in this petition has challenged the detention order dated 8-21994 issued and served by the 1st respondent, Commissioner of Police, Thane in exercise of the powers conferred under Sub-Section (2) of Section 3 of the National Security Act, (hereinafter referred to as the 'Said Act') read with Government Order, Home Department (Special) No. NSA. 2394/2/SPL. 3(B) dated 28-1-1994 with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order.
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The detaining authority has relied upon the material normally called as grounds for detention which consists of (i) a case registered against the petitioner for the offence punishable u/s. 363, 384 read with Section 34 of the Indian Penal Code i.e. for abduction of a businessman and a builder; (ii) an anonymous written complaint about the prejudicial activities of the petitioner and his associates of the activities of indulging in extorting ransom amounts under threat of deadly weapons from the businessmen; (iii) in-camera statements recorded by the concerned police agency which as will be pointed out hereinbelow also mentions the incidents of ransom demands made by the petitioner and his associates upon the businessmen who have made the said statements.
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Before we proceed to note the grounds of detention relied upon by the detaining authority while passing the impugned detention order it will be convenient to spell out the precise grounds of challenges levelled by the petitioner in assailing the detention order. At the outset it may be stated that while advancing submissions the reference is made and reliance is placed on various decisions of the Apex Court so also of this Court. Points with considerable significance have also been urged and agitated in the background and in the context of ratios of the judicial pronouncements on the subject. These aspects will be dealt with in details in the course of judgment. The grounds upon which the impugned order is challenged by the petitioner may be neatly summarised as under:
(i) Delay in issuance and execution of the impugned order of detention;
(ii) Inordinate and unjustified delay in consideration of his representation submitted before the Central Government-respondent No. 4 herein;
(iii) The alleged activities attributed to the petitioner and relied upon as grounds in support of detention order do not pertain to public order; and
(iv) Placing reliance upon the material obtained in the form of "in-camera statements of the witnesses" as a ground of detention is illegal and malafide exercise of the powers.
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Before we consider the submissions on the aforesaid points in the light of the facts and circumstances as obtained in the matter herein and the various decisions referred to by both the parties it is thought necessary to notice the grounds of detention furnished alongwith the detention order by the detaining authority. The same are reproduced in verbatim because of the nature of challenge as referred to above.
"3(a). Complainant Lalchand Mohandas Gangwani aged 30 years dealing in Embroidery Work is residing at 103, Kala Mandir Apartment, Ist floor, Vasansha Bazar, Ulhasnagar, Camp No. 5 alongwith his brother Ishwarlal. He owns room No. 11 and 12 in Barrack No. 1840 of Section 38. He does the business of Embroidery at the said rooms. He started constructing bungalow at the said place. On 18-11-1993 at 9.00 a.m. he attended his business as usual. On that day at about 10 a.m., you alongwith your two associates (1) Baliram Damu Bhoir, (2) Ganesh Kundalik Mhatre came in autorickshaw No. MWU/6610 to the above said business place and asked complainant whether his name was Lalchand. On confirming the name, you enticed him to accompany you on the pretext that you wanted to have some talks with him. Therefore, complainant's workers Prakash Mangalmal Motha and Jaipal Vishnudas Jariayani also followed him. When all of you came near Anantpuri Ashram you asked the complainant, "YE BUILDING KA KAM KISKE CHALU HAI". Over this complainant replied as, "HAMARA HAI". You forced the complainant and his two colleagues to sit in the rickshaw on the pretext that you wanted to converse with him. You and your associates sat on their laps. Thereafter, you brought them in the said rickshaw to Samata Nagar. You and your associates compelled them to walk. When all of you went across the Nallah, you told him, "TUM BUILDING BANATA HAI. HAMKO DO LAKH RUPYE DO". Complainant expressed that he had no money. Over this you and your associates took out knives and razor and threatened them that if they failed to pay the ransom amount within an hour, they would be finished. Complainant asked his colleague Prakash to arrange amount of Rs. 40/50 thousand from anybody. You and your associates allowed Prakash to go for bringing money. You took the complainant near a Zopadi where you and your colleagues consumed Beer. The colleague of complainant sought money from Ghanshyam Chandwani, Giridhar Ramchand and Mukesh Bubudas Mata collectively Rs. 50,000/- and paid the said amount to you and on receipt of this amount you allowed the complainant and his colleagues to go. This news was spread in the locality and in the business community resulting fear and panic in their mind and thus public order was disturbed. One Shri Manik Gangwani informed this on telephone to Hill Line Police Station whereupon Police arrived on the spot, visited the scene of offence and a Criminal case vide Hill Line Police Station C.R. No. I-154' 1993 under Section 363, 384, 34 I.P.C. came to be registered. During the course of investigation, the concerned rickshaw driver was traced and you were arrested in this case on 19-11-1993. Your other associate Baliram Damu Bhoir and Lakhu Ramchandra Kamdar were arrested on 29-11-1993 and 4-1-94 respectively. One of your associates Ganesh Kundalik Mhatre has been arrested on 9-1-94. A knife used in the commission of offence was recovered at your instance on 31-11-1993. You were produced in the court of M.F.C. Ulhasnagar on 22-11-1993 and you were released on bail of Rs. 2000/- on the same day. The case is under investigation.
(b) An anonymous application dated 18-111993, addressed to Police Inspector Hill Line Police Station was received by P.I. Hill Line Police Station. It is alleged in the said application that you and your associates take recourse to assault and thereby extort ransom money. Due to fear and reprisal from you and your associates nobody comes forward to lodge complaint against you and your associates. You and your associates have created a reign of terror in camp No. 5. One month prior to this application, you entered a shop of businessman and forcibly took Rs. 1200/- to Rs. 1300/- from cash box and while leaving the shop, you threatened the shop owner that if he complained to police against you, his shop would be burnt. The applicant requested confidential enquiry and preventive action. Police inspector Hill Line Police Station conducted confidential enquiry into the application, but due to fear and reprisal of you and your associates no person came forward to give evidence or to make statement against you and your associates openly. However, on the assurance that their names and identities will not be disclosed and that they will not be called to give evidence against you in any court, the Police Inspector Hill Line Police Station could record statement of four witnesses, which were recorded 'in-camera'. The gist of their statements is as under:-
(i) 'A' states that he is a Dealer in whole-sale grains. He knows you as bad character and that you and your associates indulge in extortion at the point of deadly weapons, you and your associates always move with knives, Gupti and Swords. You have created a reign of terror in the locality. Nobody comes forward to lodge complaints against you openly. On 9-11-1993 at about 20.00 hours when Shri 'A' was closing his shop, you and your 4/5 associates came with deadly weapons and took out Rs. 2000/- forcibly from cash box. Further you asked him to pay Rs. 500/- p.m. by way of 'Hapta'. You warned Shri 'A' that he would be dealt with severely if he lodged complaint against you or failed to pay monthly Hapta. Due to fear of reprisal from you, Shri 'A' did not lodge his complaint at the Police Station and he is also not willing to depose against you openly and requested to keep his name secret.
(ii) Shri 'B' states that he is having a Kirana Shop. He earns his livelihood on this business. He knows you as a goonda and gang leader indulging in extortion. You move alongwith your associates in Camp No. 1 to 5 and collect 'Hapta'. On 15-11-1993 at 1500 hours, you and your 8/10 associates went to his shop, took out Rampuri knife from pant pocket and put it on table and took away Rs. 800/- to 900/- forcibly and asked him to pay Rs. 400/- per month as a 'Hapta' else he would not survive and his shop would not exist. Due to fear of you and your associates, he has not lodged any complaint at the Police Station. He requested to keep his statement confidential. He is also unwilling to depose against you openly.
(iii) Shri 'C' states that he is having his whole sale readymade cloth shop. On 5-12-1993, you and your 3/4 associates of goonda nature went to his shop and questioned him whether he knew them and so saying took out Rs. 700/- from his person by putting a knife on his chest. Like others, Shri 'C' is also unwilling to lodge complaint against you for fear of reprisal from you and your associates.
(iv) Shri 'D' states that he is a Goldsmith by profession and earns his livelihood on that business. He knows that you are a resident of village Manera and gangster creating reign of terror in the locality, hence nobody complains to the Police against your terrorism. On 11-12-93 at about 20.00 hours, you went to him and asked for 'Hapta' of Rs. 300/- per month and threatened with murder if demand was not fulfilled...
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