Austin William Luis Pinto Vs the Commissioner of Police Greater Mumbai and Ors.

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AJN

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.1724 OF 2003

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Austin William Luis Pinto, aged	)
about 23 years, residing at Khurd )
Mehal Chawl, Room No.A/1, Mohili )
Village Sakinaka, Mumbai - 400 072 ) at present detained at Nashik Road )
Central Prison, Nashik.	) ... Petitioner
Versus
1. The Commissioner of Police, Greater Mumbai, Mumbai.	) )
2. The State of Maharashtra,	)
3. The Superintendent,	)
Thane Central Prison, Thane.	)
4. The Superintendent,
Nashik Road Central Prison,	)
Nashik.	) ... Respondents

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Mr. Nitin Sejpal for the petitioner.

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Mr. D.S. Mhaispurkar, A.P.P. for the State.

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CORAM: SMT. RANJANA DESAI &

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A.S. OKA, JJ.

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DATED: 10TH SEPTEMBER, 2004.

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ORAL JUDGMENT :- ( Per Smt. Ranjana Desai, J. )

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1.	The		petition	er (fo	r con	venience	, "the	deten	u") is
detained	under		the	order	of	dete	ntion	dated	30/9/2003
issued	by	the		Commis	sioner	of	Police,	Brihan	Mumbai,
under	section		3(1)	of	the	M	aharashtra	Preven	tion of
Dangerous	Activ	ities		of	Slum	Lords	,	Bootleggers,	Drug
Offenders	and		Dang	erous	Persons	Act,	1981	(for	short,
"the	said Ac	t").		The	order	of	detention,	the	grounds of

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detention and the material in support thereof were served

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on the detenu on 30/9/2003. In this petition, the detenu has challenged the said detention order.

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2.	The ord	er of	detention is	based on a	case	being	C.R.
No.119	of 2003	registered	at Mu	lund Police	Station	and	on
two	in-camera	statements	of witnesse	s "A" and	"B".		Mr.
Sejpal,	the	learned	counsel	for the		petitione	r/detenu
contended	that	the	first incide	nt does not		affect	public

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order and the detaining authority could not have included

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it in the grounds of detention.

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3.	The	first c	ase	is registere	d on the	basi	s of	the
complaint	lodged	by one	Aja	y Ramdas	Joshi,	who	was at	the
relevant	time,	working		as a	detection		officer.	On
1/5/2003,	at	about	8.30	hours,	he along	with	his	staff
reported	for	duty as	usua	l. PN	5983 and	PC	27268	were
sent for	patrollin	g Mulund	c	olony area.	Wh	en	PN 5938	and
PC	272268	were on	patr	olling duty	in Mu	lund	colony	area
and	when	they reac	hed	near a	tea stall	n	ear A	marnagar
Dargah,	they	noticed	the	detenu	and	assoc	iates w	hispering
among	themselves.	W	hen	they	listened	to	their d	iscussion
carefully,	they	learnt	that	the	detenu	and	his	associates
had	hatched	a plan	to	commit a	n offence	of	dacoity	at
"Kamal	Art	Jewellers"		in Mulund	colony	area	and	the
detenu’s	associates	were	wai	ting for	the	detenu	and	other
associates.	PN	5938	info	rmed PSI	Joshi	and	requested	for
additional	police	help	.	Acco	rdingly, at		about	16.20
hours,	the	police t	eam	reached n	ear Amar		Nagar	Dargah

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Road.	: 3 : The police team left its vehicles at	some
distance	from Kamal Art Jewellers and walked	towards
the	jewellers shop separately by forming two groups.	PN
5938	pointed out two associates of the detenu	and
informed	that they were the people discussing	about
committing	dacoity and they were waiting for the	detenu
and	his other associates. API Kale, who was in the	team
informed	and asked the other members to take positions	in
different	directions and places around Kamal	Art
Jewellers.	At about 17.30 hours one autorikshaw	arrived
there	from Mulund colony side and halted near those	two
associates.	The detenu and his two associates came	out
from	the autorikshaw and the autorikshaw left the	place.
The	detenu and two of his associates went near the	other
two	associates, who were waiting for the detenu.	They
were	discussing something amongst themselves. After	few
minutes,	the detenu and his four associates	started
walking	towards Kamal Art Jewellers. Immediately	both
the	police team rushed towards the detenu and	his
associates	and surrounded them. The detenu and	his
associates	sensed the police presence and started	running
away.	The police team chased and caught the detenu	and
his	three associates. However, one associate of	the
detenu	managed to escape. The detenu and three of	his
associates	were searched in the presence of two	panchas
on	the spot. The detenu was found in possession of	a
country	made revolver loaded with one live catridge	and
one recovered	live catridge in his pant pocket. Weapons were from his associates. On the basis of this,	also a

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case	under	sections	399,	402	of	IPC	read		with		sectio	ns 3,
25	of	Indian	Arm	s Act	read	with	section		37(A)		of	the
Bombay		Police	Act	came	to be	regis	tered	at		the		Mulund

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Police Station vide C.R. No.119 of 2003 against the

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detenu and his associates.

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4.	It	is	stated	in the	grounds	of deten	tion	that	the
detenu	and		his as	sociates	admitted	that	they	belonged	to
Chotta	Rajan		Gang.	Duri	ng the	course	of	invest	igation,
statements	of		five	persons	from the	police		force	were
recorded.		The	detenu	was	ordered	to be	rel	eased on	bail

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on 2/7/2003 and he availed of the bail facility on

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5/7/2003.

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5.	We are	inclined to agree	with the		learn	ed cou	nsel for
the	petitioner	/detenu that	this incident		can	not	affect
the	public	order. The deten	u and his		a	ssociates	were
nabbed	even	before the dacoity	was committed.			There	is
no mate	rial on	record to indica	te that on		ac	count	of this
incident	a	reign of terror	was created		in	the	vicinity
and	the eve	n tempo of life	of the s	o	ciety	was	disturbed.
The	detainin	g authority has	referred to			five	statements.
Significantly,		they are stateme	nts of pe	o	ple,	who	belong
to	the polic	e force. Admitt	edly, there w	a	s	no	material
before	the	detaining authority	in the	fo	rm	of	statements
of	independent	persons stating	that on	ac	count	of	this
incident,	there	was a reign	of terror c	re	ated	in	the
vicinity	and	the even tempo	of life of		the	society	was
disturbed.		It is true that	the detaining			authority	has

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stated	that	the	detenu	bel	ongs to	Cho	tta	Rajan Gang	but
barring	a		reference	to	this	in	the	remand	application,
there	is	no	material	to	bear out	this	case	also.	The
learned	APP	was	unable	to	point	out	any	other ma	terial in
support	of	this	statement.		In	our	op	inion, the	detaining

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authority erred in relying on this incident as one

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affecting public order.

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6.	It appears	that	after	the	d	et	enu was releas	ed on	bail
in	C.R.	No.119	of	2003	on		5/7/2003, the	police	recorded
two	in-camera	statem	ents.	State	ment		of "A" came	to	be
recorded	on	12/7/2003	and	statem	ent		of "B" came	to	be
recorded	on	14/7/2003.		Both	of		them referred	to	the
incidents	which	had	taken	place		i	n April, 2003	where	the
detenu	and h	is	associates	a	re		alleged to	have	been
involved.	Those	incid	ents	pertain	t	o	demands of	hafta	by
giving	threats	at	the	point	of		deadly weapons.		Charge

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sheet in CR No.119 of 2003 came to be filed on 11/8/2003.

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7. Mr.		Sejpal, the learned	counsel	appearing for the
petitioner/detenu,	relyi	ng on a dec	ision of	the Supreme
Court in Pra	deep	Nilkanth Paturkar v.	S.	Ramamurthi &
Ors. 1993	SCC	(Cri) 392 ,	contended	that there is
unexplained and	in	ordinate delay i	n issu	ing the detention
order and on	that	count the deten	tion ord	er should be set
aside. He	conten	ded that in the	first	case, the incident
had taken	place	on 1/5/2003 and	the dete	nu was nabbed
immediately on	the	very day. He	was	released on bail on
2/7/2003 and		he availed the	bail faci	lity on 5/7/2003.

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				: 6 :
Confidential		enquiry	was	started	by	the	police.
Thereafter	stat	ements	of	witnesses	"A" and	"B"	were
recorded	on	12/7/200	3 an	d 14/7/2	003 respectively	in	which
they	spoke	about	the in	cidents wh	ich had taken	place	in
April	2003.	Th	ereafter	proposal	was sub	mitted	on
26/7/2003	and	th	e detent	ion order	came to be	issued	on
30/9/2003.		The	learned	counsel	submitted	that	the
in-camera		statements	were	merely	recorded to	fill in	the

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gap between 1/5/2003 and the date of submission of the

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proposal i.e. 26/7/2003.

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8.	In	Pradeep Nilkanth Paturkar’s case (supra)	the
Supreme	Court	was dealing with some what similar	fact
situation.		In that case, the detention order was	passed
after	five m	onths and eight days from the date	of
registration	of	the last case and more than four	months
from	submission	of the proposal, and the	in-camera
statements	of	witnesses were obtained only after	the
detenu	became	successful in getting bail in all	the
prohibition	cas	es registered against him.	Those
statements	were	very much referred to in the grounds	of
detention	and	relied upon by the detaining	authority
along	with	the registration of the cases under the	said
Act.	In	that case, while setting aside the	detention
order	on the	ground of delay, the Supreme Court	expressed
its	anguish	about the fact that the statements of	the
witnesses	were	recorded only after the detenu	became
successful	in	getting the bail. Here also,	the
statements	of	witnesses have been recorded after	the

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detenu	availed	of the	bail facility	on		2/7/2003	.	There
is no	explanation	as	to why the	i	n-	camera	statements	were
not	recorded	even tho	ugh the detenu	wa	s	in	custody	from
1/5/2003	to	2/7/2003.	Considering	the		fact	that	an
incident	clearly	affect	ing the law	and		order	has	been
cited	as the	first	ground, in the	fac	ts	of	this cas	e, in
our	opinion,	these	delayed statement	s	ha	ve	an	adverse
impact	on the	detention	order. Moreo	ver,		we	find that	the
proposal	was	submitted	on 26/7/2003	and		even	the	period
between	26/7/2003	and	30/9/2003	has		also	not	been
properly	explained	.	The cumulative	effe	ct	of	this	is
that	the dete	ntion or	der is also	vitiate	d	on	account	of
delay	in issuing	of	the order.	In		the	result,	therefore,