Dismissed

Rubina Nasir Mujawar v. the State of Maharashtra and Anr.

Bombay HC19 Jan 2017WP/3449/2016

Case brief

AI extract

What is this about?

Challenge by a detenu's wife to his preventive detention under the MPDA Act. The court rejected grounds of a belated Advisory Board report, non-consideration of a representation addressed only to the Advisory Board, and delay in deciding and communicating rejection. Non-supply of CCTV footage and an alleged complaint did not vitiate the order; extortion incidents disturbed public order.

What the court decided

AI extract

Rubina Nasir Mujawar Vs the State of… — Constitutional and Fundamental Rights | Bombay HC (2017)

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 3449 OF 2016

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Rubina Nasir Mujawar

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Age - 43 Years, An Indian Inhabitant, residing at Aayasha Bee Shaikh Chawl, Room No. 12, Near Janseva Committee, Gundavali Hill, Andheri (E), Mumbai - 400 069.

.. Petitioner

(Wife of the detenu)

Versus

1. The State of Maharashtra

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through the Secretary to the Government of Maharashtra (Preventive Detention), Home Department (Special), Mantralaya, Mumai 400 032.

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2. Datta Padsalgikar

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The Commissioner of Police, Brihan Mumbai.

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3. The Superintendent of Prison,

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Nasik Road Central Prison, Nasik.

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.. Respondents

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Appearances:-
Mrs. A.M.Z. Ansari	Advocate for the Petitioner
Mrs. M.H. Mhatre	APP for the State

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CORAM : SMT. V.K. TAHILRAMANI & REVATI MOHITE DERE, JJ.

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DATE : JANUARY 19, 2017.

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ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :

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Heard learned Counsel for the petitioner and learned APP for the State.

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The petitioner who is the wife of the detenu - Nasir

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Ismail Mujawar has preferred this petition questioning the preventive detention order passed against the detenu on 16.5.2016 by respondent No. 2 - The Commissioner of Police, Brihan Mumbai. The said detention order has been passed in exercise of the powers under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons, Video Pirates, Sand Smugglers and persons engaged in Blackmarketing of Essential Commodities Act, 1981 ('MPDA Act' for short) as the detenu is a dangerous person whose activities are prejudicial to the maintenance of public order. The said order of detention is based on one C.R. i.e C.R. No.

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639/2015 of Andheri Police Station, Mumbai and two incamera statements. The order of detention, grounds of detention along with accompanying documents were served

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on the detenu on 20.5.2016.

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On the last date i.e on 16.12.2016, two grounds were argued before this Court. The said two grounds were dealt with in detail by this Court in its order dated 16.12.2016 and the contention of the petitioner in both the grounds have been negated. For the sake of convenience, we reproduce

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the said paragraphs from the order dated 16.12.2016 as

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under:-

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" 3(a). The first ground which has been raised by the learned counsel for the petitioner is to be found in ground (xv) of the petition. The said ground briefly states that the detention order and grounds of detention and other documents were served on the detenu on 20.5.2016 i.e the order of detention was executed on 20.5.2016, however, the

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Advisory Board has not submitted its report within seven weeks to the State Government as visualized under Section 11 of the MPDA Act. Mrs. Ansari submitted that the report was submitted by the Advisory Board to the State Government on 8.7.2016 i.e on 50th day from the date of

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detention and not within 49 days as stated in Section 11 of the MPDA Act. In support of her contention, Mrs. Ansari has relied on three decisions of the Supreme Court. The first decision is in the case of Ashok Kumar Binny Vs State of Jammu & Kashmir & Ors.¹ . Mrs. Ansari pointed out that in the said case, as the Advisory Board failed to submit its report to the Government within eight weeks from the date

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of detention of detenu, under J & K Public Safety Act, 1978, the detention order was quashed. She pointed out that under J & K Public Safety Act, 1978, the report had to be submitted by the Advisory Board within eight weeks and as the report was not submitted within the said period, the detention order was quashed.

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3(b). The second decision on which reliance is placed

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by Mrs. Ansari is in the case of Mritunjoy Pramanik Vs.

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The State of W.B.² . In the said decision, the detenu was detained under Maintenance of Internal Security Act, 1971.

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The order was executed on the detenu on 10.11.1971. In the

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1 (1982) 1 SCC 174

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2 (1972) 2 SCC 586

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said case, on account of failure of the Advisory Board to submit the report to the Government within the time prescribed by Section 11 of the Maintenance of Internal Security Act, the detention order came to be quashed. Under the Maintenance of Internal Security Act, it is provided that the report has to be submitted within ten weeks from the date of detention. The date of detention was 10.11.1971

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and the Advisory Board submitted its report only on 20.1.1972. The Supreme Court held that the report was not submitted to the Government within ten weeks as enjoined by Section 11 of the Act, hence, the detention order came to be quashed.

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3(c). The third decision on which Mrs. Ansari placed reliance is in the case of Dharam Singh Rathi Vs. State of Punjab & Ors.³ . This case was under the Preventive Detention Act. Under the said Act, it was necessary for the Advisory Board to submit its report within ten weeks from the

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date of detention. Mrs. Ansari pointed out that in the said

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3 AIR 1958 SC 152

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case, the detenu was detained on 18.8.1957. Ten weeks time within which the report of the Advisory Board was to be submitted to the State Government expired on 27.10.1957, however, the report was not submitted till 8.11.1957 on which date, the petition was filed. Looking to the fact that the report was not submitted within the time limit of ten weeks, the detention order was held to be illegal and it was quashed. Mrs. Ansari submitted that as in the present case, the report was not submitted by the Advisory Board to the Government within a period of seven weeks as stated in Section 11 of the MPDA Act, the detention order is illegal and would thus, have to be quashed.

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3(d). In reply, the learned APP has stated that no doubt,

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the detention order and accompanying documents were served on the detenu on 20.5.2016 and the report was submitted by the Advisory Board on 8.7.2016, however, according to her it was submitted within the time frame as enjoined in Section 11 of the MPDA Act. In support of her

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submission, she has placed reliance on Section 10 of the Maharashtra General Clauses Act i.e Act No. I of 1904.

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Section 10 reads thus:-

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"10. (1) In any Bombay Act [or Maharashtra Act] made after the commencement of this Act it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word "from" and, for the purpose of including the last in a series of days or any other period of time, to use the word "to".

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(2) This section applies also to all Bombay Acts made

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before the commencement of this Act."

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Mrs. Mhatre pointed out that in view of Section 1B of

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the Maharashtra General Clauses Act, it would be applicable to the MPDA ACT as it is an act of the State of Maharashtra.

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Section 1B of the Maharashtra General Clauses Act reads as

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under:-

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1B. The provisions of this Act which relate to Bombay Acts, Regulations and Ordinances shall apply also in relation to Acts, Regulations and Ordinances of the State of Maharashtra passed, made or promulgated on or after the 1st day of May 1960 and such provisions of this Act as relate to any notification, order, scheme, rule, by-law or form shall apply also in relation to any notification, order, scheme, rule, by-law, or form issued or made under any Act, Regulation or Ordinance passed, made or

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promulgated on or after that date :

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Provided that where any such Act, Regulation, Ordinance, notification, order, scheme, rule, by-law or form passed, made or promulgated on or after that date amends any Act, Regulation, Ordinance, notification, order, scheme, rule, by-law or form passed, made or promulgated in relation to any territory of the State of Maharashtra, not being the Bombay area of that State, the law in force in those territories in the interpretation of the law so amended shall apply to the amending law, and not the provisions hereinafter of this Act.

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Reliance is also placed on the General Clauses Act, 1897. Section 9 of the General Clauses Act, 1897 is pari materia to Section 10 of the Maharashtra General Clauses Act. Mrs. Mhatre pointed out that in view of Section 9 of the General Clauses Act and Section 10 of the Maharashtra General Clauses Act, the first date would have to be excluded i.e the date when the detenu was detained i.e 20.5.2016 would have to be excluded and if this period is excluded, the report has been submitted by the Advisory Board within seven weeks.

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3(e). At this stage, Mrs. Ansari stated that in the General Clauses Act, the word used are "from" and "to" and not "within" as stated in Section 11 of the MPDA Act. In reply, Mrs. Mhatre pointed out a decision of the Supreme Court in

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the case of Tarun Prasad Chatterjee Vs. Dinanath Sharma⁴ . The said decision was under the Representation of the People Act, 1951. Section 81(1) of the Representation

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of the People Act, 1951 states that election petition may be presented "within" 45 days "from" the date of election but not earlier than the date of election of the returned candidate. Section 81(1) of the Representation of the People

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Act, 1951 reads as under:-

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" 81. Presentation of petitions :- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 of the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidates at the election and dates of their election are different, the later of those two dates.

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Explanation:- In this sub-section, 'elector' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.

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4 (2000) 8 SCC 649

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Thus, it is seen that similar wording is used in Section 8(1) of the Representation of the People Act as is used in Section 11 of the MPDA Act. In Section 8(1) same wordings "from" & "within" are used as are used in Section 11 of the MPDA Act. In the case of Tarun Chatterjee, it was contended that the petition was not filed within 45 days from the date of election. The Supreme Court took into consideration Section

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9 of the General Clauses Act and observed as under :

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Section 9 says that in any Central Act or Regulation made after the commencement of the General Clauses Act, 1897, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word 'from', and, for the purpose of including the last in a series of days or any period of time, to use the word 'to'. The principle is that when a period is delimited by statute or rule, which has both a beginning and an end and the word 'from' is used indicating the beginning, the opening day is to be excluded and if the last day is to be excluded the word 'to' is to be used. .........

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It was argued that the language used in Section 81(1) that 'within forty-five days from, but not earlier than the date of election of the returned candidate' expresses a different intention and Section 9 of the General Clauses Act has no application. We do not find any force in this contention. In order to apply Section 9, the first condition to be fulfilled is whether a prescribed period is fixed 'from' a particular point. When the period is marked by

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terminus a quo and terminus ad quem, the canon of interpretation envisaged and Section 9 of the General Clauses Act, 1897 require to exclude the first day. The words 'from' and 'within' used in Section 81(1) of the R.P. Act, 1951 do not express any contrary intention.

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3(f). Mrs. Ansari then submitted that the decision relied upon by her in the case of Dharam Singh Rathi (supra) is in a case of preventive detention whereas the decision in the case of Tarun Prasad Chatterjee is under the Representation of the People Act, 1951. No doubt, this is true, however, it is noticed that in the case of Dharam Singh Rathi, Section 9 of the General Clauses Act was not pointed out to the Court and hence, this submission did not come up for consideration before the said Court at the time when the decision in the case of Dharam Singh Rathi was rendered. Had the submission in relation to Section 9 of the General Clauses Act been made before the Supreme Court in the case of Dharam, the Supreme Court would have definitely taken the same into consideration and a different view would have been taken. As stated earlier, the wording as used in Section 81(1) of the Representation of the People Act is similar to the

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one used in Section 11 of the MPDA Act. From Section 9 of

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the General Clauses Act and the decision in the case of Tarun Chatterjee, it is clear that if the word "from" is used, the first day has to be excluded. Section 9 of the General Clauses Act and Section 81(1) of the Representation of the People Act was considered in the case of Tarun Prasad Chatterjee which is a decision by three Judges of the Supreme Court. In our view, it would squarely apply to the facts of the present case, hence, it would have to be held that the Advisory Board submitted its report within time.

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3(g). The next ground raised by Mrs. Ansari is ground (xiv) of the petition. In the said ground, it is stated that the representation dated 7.7.2016 was filed by the detenu

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before the Advisory Board on 7.7.2016. The State Government was called upon to disclose whether the representation submitted by the detenu to the Advisory Board on 7.7.2016 was considered by the State Government without being influenced by the report of the Advisory Board

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and the result of consideration of the representation by the State Government has been sent to the detenu without any delay and loss of time. On failure of the State Government in so satisfying the Court on the aforesaid count, continued detention of the detenu will be illegal.

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3(h). In relation to ground (xiv), Mrs. Ansari submitted

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that the representation dated 7.7.2016 filed by the detenu before the Advisory Board was not at all considered by the State Government, hence, the continued detention of the detenu would be illegal. She submitted that even if the representation is submitted to the Advisory Board, it has to be considered by the State Government and non consideration by the State Government of the representation submitted by the detenu to the Advisory Board, would vitiate the further detention of the detenu.

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3(i). Learned APP, in reply, submitted that the Advisory

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Board did not forward the representation to the State

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Government along with its report, hence, there was no question of the State Government considering the representation submitted by the detenu before the Advisory Board.

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3(j). In support of her contention, Mrs. Ansari placed reliance

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on the decision of the Supreme Court in the case of K.M.

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Abdulla Kunhi & B.L. Abdul Khader Vs Union of India &

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Ors.⁵ . Mrs. Ansari placed reliance on paragraph 11 of the said decision. Mrs. Ansari pointed out that in the said case, the representation which was addressed to the Advisory Board was not considered by the State Government and the Supreme Court held that the State Government has to consider the representation on its own without being influenced by any such view of the Advisory Board.

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On carefully going through the said decision, it is seen that the representation in the said case was sent by the detenu to the State Government. The State Government referred the case of the detenu along with the representation

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5 (1991) 1 SCC 476

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to the Advisory Board to enable it to form its opinion and send a report to the Government. In such case, it was held that the State Government cannot depend upon the views of the Advisory Board on such representation and it has to consider the representation on its own without being influenced by any such view of the Advisory Board. It was further observed that consideration by Board is an additional

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safeguard and not substitute for consideration of the representation of the Government. The right to have the representation considered by the Government is safeguarded by Clause (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under Clause (4) of Article 22.

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3(k). The decision in the case of K.M. Abdulla would not

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be applicable to the facts of the present case. In the said case, the representation was sent to the State Government. The State Government had forwarded it to the Advisory

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Board, hence, in such circumstances, it was held that it was not enough that the Advisory Board considered the representation but the State Government has to independently consider the representation. However, in the present case, the representation was not at all forwarded to the State Government. It was only handed over to the Advisory Board in the meeting held by the Advisory Board on

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7.7.2016. The Advisory Board did not forward this representation to the State Government, hence, there was no question of the State Government considering the representation.

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3(l). Thereafter, Mrs. Ansari relied on the decision of

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the Supreme Court in the case of Smt. Gracy Vs. State of

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Kerala & Anr.⁶ . Mrs. Ansari pointed out that the facts in the said decision are identical to those in the present case. She placed reliance on paragraphs 2, 3, 4, 6 and 8 of the said decision. From paragraph 2, Mrs. Ansari pointed out that in the case of Gracy, during pendency of reference

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6 AIR 1991 SC 1090

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before the Advisory Board, the detenu made his representation on 24.3.1990 and addressed it to the Advisory Board. The Advisory Board considered the reference relating to the detenu made by the Central Government and also the detenu's representation submitted to it. The Advisory Board gave the opinion that there was sufficient cause to justify his preventive detention.

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In the case of Gracy, it is not disputed that the Central Government did not at any time independently consider the detenu's representation addressed to and given to the Advisory Board. Mrs. Ansari pointed out that in the said case, similar stand was taken by the Solicitor General as taken in the present case by the learned APP i.e detenu's representation being addressed to the Advisory Board to which it was submitted during pendency of the reference before the Advisory Board, there was no obligation on the Government also to consider the same independently since the representation was not addressed to the Government. Mrs. Ansari pointed out that in the case of Gracy, the

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Supreme Court in paragraph 8 observed thus:-

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" 8....................... The question, therefore, is : Whether one of the requirement of consideration by Government is dispensed with when the detenu's representation instead of being addressed to the Government or also to the Government is addressed only to the Advisory Board and submitted to the Advisory Board instead of the Government? On principle, we find it difficult to uphold the learned Solicitor General's contention................"

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3(m). Lastly, Mrs. Ansari pointed out that in the case of

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Gracy, it was held in paragraph 10 that there has been a breach by the Central Government of its duty under Article 22(5) of the Constitution of India to consider and decide the representation independently of the Advisory Board's opinion and by observing thus, the Supreme Court quashed the

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detention order.

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3(n). In reply, learned APP placed reliance on the decision of the Supreme Court in the case of R. Keshava

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Vs. M.B. Prakash & Ors.⁷ . Learned APP pointed out that

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the decision in the case of Gracy was considered in the case

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7 (2001) 2 SCC 145

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of R. Keshava which is a decision by a Bench of three Judges.

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In the said case, in paragraph 8 it was observed as under:-

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" 8. On facts we find that in that case the detenu had made a representation to the Advisory Board who considered it before sending its opinion to the Central Government along with the entire record including the representation submitted by the detenu. The Central Government confirmed the order of detention without independent consideration of the detenu's representation sent to it by the Advisory Board. On the above facts the court formulated the point of law for its consideration as under:

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"Whether there has been any infraction of the guarantee under Article 22(5) of the Constitution as a result of Central Government's omission to consider the detenu's representation independent of its consideration by the Advisory Board. The Central Government's stand is that the detenu's representation being addressed to the Advisory Board to which it was submitted during pendency of the reference before the Advisory Board, there was no obligation on the Central Government also to consider the same independently since the representation was not addressed to the Central Government."

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In paragraph 11, the Supreme Court observed that it

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was not impressed with the submission on behalf of the

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detenu that duty was cast upon the Advisory Board to submit

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all records including the representation given to the Advisory

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Board to the appropriate Government. Thereafter, in

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paragraph 12 of the said decision, it was observed as under:-

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"12. A perusal of the aforesaid Section and other relevant provisions of the Act makes it abundantly clear that no duty is cast upon the Advisory Board to furnish the whole of the record and the representation addressed to it only to the Government along with its report prepared under Section 8(c) of the Act. It may be appropriate for the Board to transmit the whole record along with the report, if deemed expedient but omission to send such record or report would not render the detention illegal or cast an obligation upon the appropriate government to make inquiries for finding out as to whether the detenu has made any representation, to any person or authority, against his detention or not. We are of the opinion that in Gracy's case (supra) it was not held that any such duty was cast upon the Board but even if the observations are stretched to that extent, we feel that those observations were uncalled for in view of the scheme of the Act and the mandate of the Constitution.

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Thus, the legal position is that the Advisory Board is not

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under an obligation to send the representation received by it

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to the Government and if no such representation is sent to

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the Government by the Advisory Board, there is no question of considering the same independently by the State Government. Moreover, in view of R. Keshava, it is clear that

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even if the Advisory Board forwards the representation

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addressed to it, to the Central Government, the Central Government is not under any obligation to consider such representation which is addressed only to the Advisory Board. Thus no obligation is cast on the Government to consider the representation given to the Advisory Board. Thus, this ground too fails."

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Thereafter Mrs. Ansari has argued four grounds before

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us. The first ground is that there is delay by the State Government in considering the representation of the petitioner. This ground is raised in Ground (xiii) and (xiiiA). In this ground, it is stated that the representation of the detenu was sent to the State Government on 8.10.2016 and it was rejected on 29.10.2016. Mrs. Ansari submitted that on account of the delay in considering the representation of the petitioner, the valuable right of the petitioner to have his representation decided as expeditiously as possible is violated and as such the order of detention cannot be continued.

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5. Learned APP on the other hand contended that the

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representation was decided expeditiously. The learned APP on the basis of the affidavit filed by the Jailor & Home Department stated the dates regarding how the representation of the detenu was dealt with, which is as

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under:-

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08/10/16	Representation submitted to the jailor at 6.30 p.m.
09.10.16	Sunday
10.10.16	Sent by jail authorities to the Registry of Mantralaya, Mumbai.
10.10.16	Received by Central Registry of Mantralaya and Marked to Special Branch 10.
11.10.16	Holiday
12.10.16	Holiday
13.10.16	Sent to Special Branch 10
14.10.16	Returned back by Special Branch 10 as wrongly marked.
15.10.16	Marked to Visha 3B (MPDA Desk)
16.10.16	Holiday i.e Sunday
17.10.16	Representation received by MPDA Desk
17.10.16	Parawise remarks called.

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27.10.16	Parawise remarks were received.
28.10.16	Section Officer endorsed it and forwarded it to the Dy. Secretary,.
28.10.16	Dy. Secretary forwarded it to the Addl. Chief Secretary
29.10.16	Considered and rejected by Addl. Chief Secretary

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As far as the gap between 17.10.16 to 27.10.16 is

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concerned, the same is explained in the affidavit filed on behalf of P.C.B., C.I.D. as under:-

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17.10.16	Communication calling for parawise remarks received by P.C.B., C.I.D. office.
17.10.16	Forwarded to the Sponsoring Authority
20.10.16	Parawise remarks received.
21.10.16	Dy. Commissioner of Police (Preventive) made corrections.
22.10.16	Holiday
23.10.16	Holiday
24.10.16	Dy. Commissioner of Police put signature on parawise remarks.
25.10.16 26.10.16	Heavy Bandobast due to security reasons.
27.10.16	Parawise remarks submitted to Home Department.

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From the affidavit filed by the Home Department, Mrs.

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Ansari pointed out that the representation of the petitioner was received by Mantralaya on 10.10.2016, however, it was received by the concerned desk i.e MPDA desk on 17.10.2016. She submitted that this delay occurred because on 10.10.2016, the representation was wrongly marked to Special Branch - 10. On 14.10.2016, the representation was returned back from Special Branch - 10 and thereafter, it was marked to Visha 3B i.e MPDA desk. On 16.10.2016, it was a holiday being Sunday and on 17.10.2016, the representation was received by MPDA Desk. Mrs. Ansari submitted that on account this wrong marking, six days were lost i.e from 11.10.2016 to 16.10.2016. However, we find that this contention is incorrect. On 10.10.2016, when the Central Registry received the representation, it would make entry in inward register and mark it to the concerned department. Hundreds of letters are received in the Central registry every day. It has been so observed by this Court in the case of Viki

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Baban Galte Vs. The Commissioner of Police & Ors. in

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Criminal Writ Petition No. 2980 of 2016 decided on

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18.1.2017. As hundreds of letters are received, hence, it takes some time to segregate the letters and mark to the concerned department. Thereafter, entry is taken in outward

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register. Thereafter the letter is sent to despatch section from where it is sent to concerned department. All this takes some time i.e about a day or so. Thereafter, on 11.10.2016

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and 12.10.2016, there were holidays. From the decision of the Supreme Court in the case of Noor Salman Makani Vs.

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Union of India⁸ , it is clear that while computing delay, holidays would be excluded. This is also clear from the decision of the Supreme Court in the case of State of

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Tamilnadu Vs. C. Subramani⁹ In the case of Subramani, the representation was dated 25.11.1991 and it was rejected

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on 21.12.1991 and it was communicated to the detenu on 27.12.1991. In the said case, it was contended before the

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High Court that there was delay of two periods i.e one delay of six days from 28.11.1991 to 5.12.1991 and the second of

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8 days from 13.12.1991 to 21.12.1991 in the office of the

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8 (1994) 1 SCC 381

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9 AIR 1992 SC 2161

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Chief Minister. The Supreme Court has taken into consideration the chronology of the dates and observed that

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there was no delay in considering the representation. The

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chronology of the dates is as under:-

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28.11.1991	Parawise remarks called for from the District Magistrate and Collector, Salem District by the State Government.
29.11.1991	Representation of the detenu received by the District Magistrate and Collector, Salem District, from the Central Prison.
29.11.1991	Remarks of the sponsoring authority called for by the District Magistrate and Collector, Salem District.
30.11.1991	Remarks sent by the sponsoring authority to the District Magistarte and Collector, Salem District
03.12.1991	Report sent by the District Magistrate and Collector, Salem District on the basis of the parawise remarks to the State Government.
05.12.1991	Report of the District Magistrate and Collector, Salem District received by the State Government.
10.12.1991	File put up to the officers (07.12.1991 and 08.12.1991 being holidays)
10.12.1991	File dealt by the Under Secretary
11.12.1991	File dealt by the Deputy Secretary
12.12.1991	File approved by the Secretary
13.12.1991	(Friday) File received by the office of the Chief Minister
14.12.1991	Saturday
15.12.1991	Sunday
16.12.1991 & 17.12.1991	Statewide Collectors and Superintendents of Police conference presided over and participated by the Chief Minister
19.12.1991	Chief Minister participated in the official University function.
21.12.1991	(Saturday) Orders passed by the Chief Minister rejecting the representation of the detenu
22.12.1991	(Sunday)
23.12.1991	Orders issued by the Government

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It may be noted that the Constitution Bench of the Supreme Court in K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India, State of Karnataka¹⁰ has dealt with the question of the time taken in dealing with the representation and the words "as soon as may be" occurring in Clause 5 of Article 21 of the Constitution. It was observed in paragraph 12 as under:-

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" The words "as soon as may be" occurring in Clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. "

¶211

Thus, the question of any period taken in dealing with

¶212

the representation has to be decided in the particular facts

¶213

and circumstances of each case and it cannot be determined

¶214

on the basis of any rigid period of time uniformly applicable

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to all cases.

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10 (1991) 1 SCC 476 : AIR 1971 SC 574

¶217

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In the present case, on 11.10.2016 and 12.10.2016, there

¶220

were holidays. On 13.10.2016, representation of the detenu was sent to Special Branch-10, however, it was returned back by the Special Branch-10 on 14.10.2016 as it was wrongly marked to that department. On 15.10.2016, the representation was marked to Visha 3B (MPDA Desk). On 16.10.2016, it was a Sunday, hence,

¶221

the MPDA Desk received the representation on 17.10.2016. Thereafter, it was dealt with by that department. Thus, it is seen that from 10.10.2016 when the representation was received in the Central Registry at Mantralaya till 17.10.2016 after excluding

¶222

three days holidays, there is delay of only two days i.e 13.10.2016 and 14.10.2016 on account of wrongly marking the representation to another department. This is the first pocket of delay of two days. On 17.10.2016, it was received by MPDA Desk. Parawise remarks were called on the very same day and the parawise remarks were received on 27.10.2016. Thereafter, the representation has been dealt with by the Dy. Secretary on 28.10.2016 and on 29.10.2016, it came to be rejected by the Addl.

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Chief Secretary. Thus, as discussed by us above that except the

¶224

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delay of 13.10.2016 and 14.10.2016, the delay in considering the

¶227

representation has been satisfactorily explained. On account of this delay of two days, it cannot be said that the delay is so inordinate so as to quash the detention order.

¶228

Mrs. Ansari thereafter submitted that there is another

¶229

pocket of delay after the parawise comments were called for on

¶230

17.10.2016 and till the parawise were received on 27.10.2016. As

¶231

far as this period is concerned, it is seen that the letter calling for parawise remarks was received by PCB, CID on 17.10.2016. On the very same day, it was forwarded to the Sponsoring Authority for sending parawise remarks. The parawise remarks were sent on 20.10.2016. Thus by the time, office of the PCB, CID received the communication and forwarded it to

¶232

the Sponsoring Authority, it would be evening, hence, only two days were taken by the Sponsoring Authority to prepare parawise i.e 18.10.2016 and 19.10.2016. The parawise remarks were then forwarded by PCB, CID which were received on 20.10.2016. For preparation of parawise

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remarks, period of two days is the least time that is expected. On 21.10.2016, Dy. Commissioner of Police (Preventive) made corrections. On 22.10.2016 and 23.10.2016, there were holidays. Dy. Commissioner of Police (Preventive) went through and signed the corrected parawise remarks on 24.10.2016. Mrs. Ansari vehemently contended that the letter forwarding parawise remarks is dated 24.10.2016, however, it was received by the Home Department on 27.10.2016. She submitted that the explanation for delay given by the Sponsoring Authority that on 25.10.2016 and 26.10.2016, there was heavy bandobast due to security reason cannot be accepted. In this connection, we may state that the first and foremost duty of the police is security of

¶236

the State and its citizens, hence, if in the affidavit, it is stated that there is heavy bandobast on 25.10.2016 and 26.10.2016 due to security reasons, we find that sufficient explanation has been given for these two days. After the parawise comments were received don 27.10.2016, the Dy. Secretary dealt with the representation on 28.10.2016. On the very

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same day, Dy. Secretary forwarded the representation to the Addl. Chief Secretary and on the very next day i.e 29.10.2016, the Addl. Chief Secretary rejected the representation. Thus, at the most it can be said that there is unexplained delay of 13.10.2016 and 14.10.2016 when the representation was marked to the wrong department. On account of the representation being marked to the wrong Department, only two days time was lost. The Supreme Court in the case of Noor Salaman Makani (supra) has observed that after excluding holidays, the delay comes to only five days which cannot be said to be undue. Thus, if the first pocket of delay of two days i.e 13.10.2016 and 14.20.2016 is taken into consideration, it cannot be said that the delay is such as would vitiate the order of detention.

¶240

In support of her contention that delay in considering

¶241

the representation would vitiate the order of detention, Mrs. Ansari relied on the decision of this Court in the case of

¶242

Shakuntala Motiram Patil Vs. K.S. Shinde,

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Commissioner of Police & Ors.¹¹ . She pointed out that in

¶246

the said case, ten days were lost as the representation went

¶247

to the Central Registry on 10.1.1996 and the representation was received by the concerned desk in the Home Department on 20.1.1996. Mrs. Ansari pointed out that on account of this delay. the detention order was set aside. We have carefully perused the said decision. From paragraph 7 of the said decision, it is seen that the detenu therein was specifically informed that if he wanted to make a representation to the State Government against the order of detention, he should address it to the Principal Secretary

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(Preventive Detention) , Government of Maharashtra, Home Department, Mantralaya, Mumbai. In view of what was informed to the detenu, the detenu in the said decision specifically addressed his representation to the Principal Secretary (Preventive Detention), Government of Maharashtra, Home Department, Mantralaya, Mumbai 32. In view of the fact that it was specifically informed to the

¶249

detenu that he should address it to the Principal Secretary

¶250

11 Judgment dated 11.4.1996 in Criminal Writ Petition No. 9 of 1996 ( Coram : V.P. Tipnis & J.N. Patel, JJ)

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(Preventive Detention), it was observed that when the representation is addressed to the Principal Secretary (Preventive Detention), it was sufficient indication that it relates to detention and therefore, the contention cannot be accepted that unless and until the correspondence and letters are opened, it is difficult to ascertain whether such correspondence contains the representation against the

¶254

order of detention or not which needs to be attended on priority basis. However, in the present case in the grounds of detention, it is mentioned that the detenu is informed that he has a right to make a representation to the State Government against the detention order and if he wishes to make a representation, he should address it to the Additional Chief Secretary, Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai - 32. As the detenu has addressed the representation to the Additional Chief Secretary, Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai, it went to the Central Registry. There all the correspondence is opened.

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Thereafter, it is marked to the concerned department. Hundreds of letters are received in the Central Registry everyday. Thus, it takes sometime for the person in the registry to make inward entry and to open the correspondence and mark it to the concerned department. Thereafter, it is sent to the clerk to mark it in the Outward register. Thereafter, it is sent to dispatch section which sends it to the concerned department. The representation of the detenu was received on 10.10.2016 in the Central Registry. On 10.10.2016 itself, it was marked to Special Branch - 10, however, it was marked to the wrong department i.e. Special Branch 10 as the correct department is Visha 3B i.e MPDA Desk. In the case of Shakuntala, the representation was addressed to the Principal Secretary (Preventive Detention), hence, it was not necessary to open the representation and it could be directly sent to the concerned department, hence, there was no question of time being lost in forwarding it to the concerned department. However, such are not the facts in the present case. Thus,

¶258

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on this point alone, the decision in the case of Shakuntala

¶261

Patil can be distinguished.

¶262

The second decision on which Mrs. Ansari placed

¶263

reliance is the decision of this Court in the case of Sutar Pramod Somnath Vs. The State of Maharashtra & Ors.

¶264

She placed reliance on paragraph 10 of the said decision.

¶265

In the said case, the representation was dated 18.12.2006

¶266

and it was rejected on 8.1.2007. The representation was made to the Detaining Authority. In the affidavit of Detaining Authority, it was stated that the Detaining Authority could not consider the representation on 23.12.2006, 24.12.2006, 25.12.2006, 30.12.2006 and on 1.1.2007 because there were holidays. It was observed that the approach of the Detaining

¶267

Authority is casual and the representation of a person cannot be considered in such a light hearted and callous manner. As far as this observation is concerned, we have already

¶268

observed that there are many decisions of the Supreme

¶269

Court which state that while computing delay, holidays have

¶270

12 Judgment dated 15.6.2007 in Criminal W.P. No. 2505 of 2006 (Coram : Ranjana Desai & V.C. Daga, JJ)

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to be excluded. We are respectfully bound by these decisions, hence, we regretfully say that in view of the decisions of the Supreme Court, we cannot subscribe to the view taken in the case of Sutar Somnath. Moreover, in the

¶274

case of Sutar Somnath, it is observed that excluding the holidays also, the Detaining Authority was on leave from 24.12.2006 to 28.12.2006. On 28.12.2006 and 29.12.2006,

¶275

the Detaining Authority was busy in a meeting, hence, it was argued that even if the Detaining Authority took leave from 24.12.2006 to 28.12.2006, thereafter when the Detaining Authority resumed duty, the Detaining Authority ought to have dealt with the representation with utmost expedition. Even after joining the duty, the Detaining Authority did not deal with the representation promptly and the representation

¶276

was rejected on 8.1.2007 i.e 10 days after the Detaining Authority joined duty. Thus, in the facts and circumstances of that case, it was observed that the time taken to consider

¶277

the representation was not properly explained by the Detaining Authority, however, such are not the facts in the

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present case. Except for the pocket of delay of 13.10.2016 and 14.10.2016, we are of the opinion that the delay in considering the representation has been adequately explained.

¶281

Thereafter, Mrs. Ansari again placed reliance on paragraph 10 of the decision in case of Sutar Somnath

¶282

(supra) to contend that if there is delay in communicating rejection of the representation, the detention order is liable to be quashed. She submitted that in the present case,

¶283

there is delay in communicating rejection of the representation to the detenu. She submitted that the representation was rejected by order dated 29.10.2016 and it was communicated to the detenu on 6.11.2016. She

¶284

submitted that this delay in communicating the rejection order to the detenu would also vitiate the order of detention. The law enjoins that the representation of the detenu has to be considered expeditiously. There is no legal provision that it has been communicated to the detenu expeditiously or

¶285

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within a particular time frame. No doubt, it has to be communicated to the detenu as soon as possible but the delay of few days here and there in communicating the result of rejection of the representation would not vitiate the order of detention. In any event, we are of the opinion that the reliance placed on the decision in the case of Sutar Somnath to contend that if there is delay in communicating rejection of the representation, the detention order is liable to be quashed, is erroneous. In fact, in paragraph 10 of the said decision, after observing that the rejection reply was issued on 10.1.2007 and it was served on 12.1.2007, by way of passing reference, it was observed that there is a delay even in communicating the rejection order, however, from the last sentence of paragraph 10, it is clear that the detention order was not quashed on the ground that there was delay in communicating but it was quashed on the ground that there was delay in considering the representation of the detenu. For the sake of convenience, we reproduce the last sentence in paragraph 10 of the said

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decision which clearly shows that the detention order was quashed on the ground that there was delay in considering the representation. The last sentence reads thus:-

¶291

" ..... In the facts of this case, we are satisfied that the time taken to consider the representation has not been properly explained by the detaining authority. The continued detention of the detenu is therefore rendered illegal."

¶292

Thus, from this sentence, it is clear that the detention

¶293

order was not quashed on the ground that there was delay in communicating the rejection of the representation of the detenu but it was quashed on the ground that the delay in

¶294

considering the representation was not properly explained. In any event, as far as the delay in communication of the rejection of the representation is concerned, the learned APP placed reliance on the decision of the Supreme Court in the

¶295

case of Safiya Vs. Government of Kerala & Ors.¹³ . In the

¶296

said case, the communication regarding the rejection of representation was issued on 18.10.2002 and the same was

¶297

received by the detenu through the jail authorities on

¶298

21.10.2002. The Supreme Court observed that there has

¶299

13 2003(7) SCC 46

¶300

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been no undue or unexplained delay in the case. As far as

¶303

the delay in communicating the rejection order in present case is concerned, the representation was rejected on 29.10.2016. The rejection letter was prepared on 29.10.2016. On 30.10.2016, there was holiday being a

¶304

Sunday. On 31.10.2016 and on 01.11.2016, there were holidays being Dipawali and Bhaubeej, hence, the letter was dispatched to the registry on 2.11.2016. The letter was received by the Nasik Road Central Prison on 4.11.2016 and it was handed over to the detenu and the contents therein were explained to him in a language known to him on 6.11.2016. Thus, it is seen that there is gap of only one day.

¶305

The same is not as such that to vitiate the order of detention. In any event, gap of 8-10 days in communicating the

¶306

rejection order to the detenu would not vitiate the order of detention. We may also add that the delay in communicating the rejection of the representation to the detenu would not cause any prejudice to the detenu because

¶307

it is not as if the detenu can appeal against the said order

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and try to get the detention quashed. Once, the representation is rejected, the detenu has no further remedy against the same.

¶311

Thereafter, Mrs. Ansari placed reliance on the decision

¶312

of the Supreme Court in the case of Harish Pahwa Vs. State of U.P.¹⁴ . In the said case, it was observed that there was no explanation for 4.6.1980, 5.6.1980, 25.6.1980 and 13.06.1980 to 16.06.1980, hence, the detention order was quashed. However, in the present case, it is seen that there is only unexplained delay of 13th and 14th October. Thus, delay of two days cannot be said to be such as would vitiate the order of detention.

¶313

There is one other aspect to this contention that there

¶314

was delay by the State in considering the representation. The learned APP pointed out that the representation sent to the State Government is a copy of the Writ Petition as it was

¶315

earlier filed on 28.9.2016. Rule was granted in the Writ

¶316

14 AIR 1981 SC 1126

¶317

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Petition on 14.10.2016. This fact was informed by the APP to

¶320

the concerned authorities immediately. The representation was received in the MPDA Desk on 17.10.2016. Thus, when the representation was received, the matter was already subjudice, hence, in such case, it would not be proper for the authorities to consider the representation. The learned APP placed reliance on a decision by a bench of three Judges of

¶321

the Supreme Court in the case of David Patrick Ward &

¶322

Anr. Vs. UOI¹⁵ . In paragraph 23 of the said decision, it is observed that the representation was a copy of the Writ Petition filed before the court and the Representation was received on 5.5.1992. While steps were taken by the Government to process the same, the Writ Petition was filed. Notice regarding the Writ Petition was received on 13.5.1992. Therefore, a stand was taken by the Government

¶323

that consideration of the representation on a matter which is

¶324

subjudice did not arise. The Supreme Court observed that in

¶325

such case, decisions of the Supreme Court wherein the need

¶326

for expeditious consideration of representation is

¶327

15 (1992) 4 SCC 154

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emphasized cannot be of any help. In any event, at the cost of repetition, we say that the delay in the present case in considering the representation is not such that it would render the continued detention of the detenu illegal.

¶331

The next ground raised by Mrs. Ansari is Ground No. (iv) of the petition in which it is stated that only incident considered by the Detaining Authority was dated 17.11.2015 and statements of six witnesses were placed before the Detaining Authority one of which was that of Hiten Chandrana who was CCTV engineer. Hiten Chandrana has stated that he prepared compact disk of the footage relating to the incident and gave it to the Sponsoring Authority. It is contended that the CD ought to have been placed before the Detaining Authority as it is vital material and the copy of the same ought to have been furnished to the detenu and not doing so would vitiate the order of detention.

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As far as the above ground is concerned, it is wrongly contended that the Detaining Authority while issuing the detention order had relied on only one incident dated 17.11.2015 which pertains to C.R. No. 639/2015 as the detention order is based on this C.R. as well as two statements of in-camera witnesses A and B.

¶335

Mrs. Ansari placed reliance on the decision of the Delhi

¶336

High Court in the case of Smitha Gireesh Vs. Union of

¶337

India & Ors.¹⁶ . She pointed out that in the said case, it was observed that it would not be sufficient to communicate to the detenu a bare recital of the grounds of detention but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time. Mrs. Ansari submitted that the Detaining Authority has relied on the CD to issue the order of detention, hence, the CD ought

¶338

to have been furnished to the detenu. As far as the

¶339

contention of Mrs. Ansari is concerned, in the very same 16 Judgment dated 2.6.2016 in W.P. (Cri) 1060/2016 (Coram : G.S. Sistani & Sangita Dhingra Sehgal, JJ)

¶340

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decision, it is observed in paragraph 57 that the Detaining Authority heavily relied upon the CDs in the grounds of detention and thus, was duty bound to show the entire contents of the same to the detenu as a matter of right. In

¶343

the present case, it is seen that the Detaining Authority has not relied on the CDs, in fact, the Detaining Authority has not even made a passing reference to the CD's in the grounds of

¶344

detention. It is well settled that only the copies of documents which are relied upon by the Detaining Authority have to be furnished to the detenu. Useful reference may be made to a decision of the Supreme Court in the case of Abdul Sathar

¶345

Ibrahim Manik Vs. Union of India¹⁷ . In this decision, the Apex Court has held that if a document is not referred to or relied upon by the Detaining Authority, there is no need to

¶346

supply the same to the detenu.

¶347

As far as C.R. No. 639/2015 is concerned, the Detaining

¶348

Authority has relied on the incident dated 17.11.2015 as

¶349

stated by the complainant in the said case. The complainant

¶350

17 AIR 1991 SC 2261

¶351

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has stated that on 17.11.2015 at about 3.00 p.m., the detenu and his associates came to the spot. The detenu brandished a sword and assaulted the complainant. On hearing the shouts of the complainant, workers rushed forward to rescue the complainant but the detenu brandished the sword in their direction and rushed towards them. Seeing the sword and violent mood of the detenu and his associates, the workers on the construction site got scared and ran helterskelter. The detenu then dealt a blow with sword on the complainant. Thus, it is seen that the Detaining Authority has relied on the FIR of the complainant and not the CD and as observed earlier by us, if a document is not relied upon, copy of the same need not be furnished to the detenu. Thereupon, Mrs. Ansari submitted that the CD ought to have been placed before the Detaining Authority as it was a vital document and it ought to have been considered by the Detaining Authority and copies thereof ought to have been furnished to the detenu. As far as this CCTV footage is concerned, the Detaining Authority in his affidavit has stated

¶354

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that the photographs of the CCTV footage were placed before the Detaining Authority by the sponsoring authority along with the statement of CCTV engineer, the copies of which are at page numbers 215 and 207 of the compilation given to the detenu. The CCTV engineer has stated in his statement that he has verified the presence of the detenu in the said footage. It is not disputed that these photographs have been furnished to the detenu as well as the copy of the statement of CCTV engineer has been furnished to the detenu. The sponsoring authority in paragraph 7 of its affidavit has stated that the footage of the CCTV in the form of photographs has been furnished to the detenu. As the photographs of CCTV footage were placed before the Detaining Authority and also furnished to the detenu, it cannot be said that the detention order is vitiated on any count. In the case of Smitha Gireesh, the Detaining Authority had heavily relied on the CDs which can be clearly seen after perusing the said decision, hence, it was observed that when

¶357

the Detaining Authority had heavily relied upon the CDs in

¶358

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¶359

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the grounds of detention, it was duty bound to show the contents of the same to the detenu as a matter of right. Such are not the facts in the present case, hence, this decision cannot be made applicable to the facts of the present case.

¶361

The next ground raised by Mrs. Ansari is ground (iii) of

¶362

the petition. In this ground, it is stated that the incident which has taken place on 17.11.2015 is a false complaint filed by the employee of M/s. Joy and Sayala Construction Company and therefore on 19.11.2015, the petitioner i.e the wife of the detenu filed a complaint dated 19.11.2015 before the Commissioner of Police, Mumbai. It is contended that it was incumbent upon the sponsoring authority to have placed

¶363

this complaint before the Detaining Authority and furnish the copy of the same to the detenu as it was a vital document which could have changed the mind of the Detaining Authority. The alleged complaint has been annexed by the petitioner to the petition at Exh. E colly which is at Page 54.

¶364

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We have minutely gone through the said document. This document is dated 19.11.2015. The incident which pertains to C.R. No. 639 of 2015 has taken place on 17.11.2015. However, in this document dated 19.11.2015, we find that there is no mention at all of the FIR dated 17.11.2015 or incident pertaining thereto though the said C.R. was lodged two days prior to the incident. In this document, there is not

¶367

even a whisper of the detenu being falsely involved in C.R. No. 639/2015. So also, in the statement of the wife of the detenu dated 28.11.2015 which was recorded by the Police Inspector of Andheri Police Station, there is no reference at all that the detenu has been falsely implicated in C.R. No. 639/2015. There is no reference at all to the incident dated 17.11.2015 in both these documents. In fact, when the statement of the wife of the detenu was recorded on 28.11.2015, the detenu had been arrested much prior to that, despite this fact, there is no reference at all to the incident dated 17.11.2015 which pertains to C.R. No. 639/2015 in any of these documents. This shows that these

¶368

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two documents have no connection with the incident dated

¶371

17.11.2015. As there was no reference in these documents to the incident dated 17.11.2015, it was not necessary for the sponsoring authority to place the same before the Detaining Authority. Looking to the contents of these two documents, it cannot be said that they are vital documents and ought to have been placed before the Detaining Authority and copy thereof ought to have been furnished to the detenu.

¶372

The next ground raised by Mrs. Ansari is Ground (ix) of

¶373

the petition. In the said ground, briefly stated, it is contended that the incident relating to C.R. No. 639/2015

¶374

does not affect the maintenance of public order and it relates only to an individual and hence, the detention order cannot be sustained. As far as C.R. No. 639/2015 is concerned, the Detaining Authority has relied on the incident dated 17.11.2015. The complainant has stated that on 17.11.2015

¶375

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at about 3.00 p.m., the detenu and his associates came to the spot. The detenu brandished a sword and assaulted the complainant. On hearing the shouts of the complainant, workers rushed forward to rescue the complainant but the detenu brandished the sword in their direction and rushed towards them. Seeing the sword and violent mood of the detenu and his associates, the workers on the construction

¶378

site got scared and ran helter-skelter. Thus, it is seen that the act of the detenu did not affect just one individual but it affected many persons i.e it affected the workers at the site

¶379

who got scared and ran helter-skelter. Thereafter, the detenu put a sword on the neck of the complainant and told him that the complainant should gave him Rs. 10,000/- just now, otherwise, he would kill him. Saying so, the detenu dealt a blow with sword on the complainant. Thereafter, the complainant somehow managed to run away. Thus, it is seen that the activities of the detenu did not affect just one individual but it affected many persons, hence, it would amount to disturbance of public order. This incident also

¶380

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¶381

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pertains to an act of extortion. This Court in the case of

¶383

Zebunnisa Vs. M.N. Singh¹⁸ has observed that acts of extortion disturb public order. In the decision in the case of

¶384

Amin Mohammed Qureshi Vs. Commissioner of Police,

¶385

Bombay¹⁹ , the detenu was indulging in crimes like robbery, extortion and criminal intimidation. The Supreme Court held that these activities affected the maintenance of public order. Similar view was taken in Prabhakar Shetty Vs. S. Ramamurthy²⁰ and Sunil Patil Vs. Satish Sahney & Ors.²¹ . Thus, we find no merit in the submission of Mrs. Ansari that the activities of the detenu relating to this incident did not disturb the maintenance of public order.

¶386

As stated earlier, the detention order is not based only

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on C.R. No. 639/2015 but it also based on two incidents relating to witnesses A & B. Witness A has stated that he used to do business of selling tea. He knew the detenu as a

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violent type of criminal. The detenu always possesses

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18 2001(3) Mh.L.J. 365

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19 1994 Cri.L.J. 2095

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20 1993 (2) B.C.R. 3

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21 1996(3) All M.R. 426

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jfoanz vkacsjdj 52

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weapon like knife, chopper, sword etc. The detenu had unleashed a reign of terror and he used to threaten businessmen, shopkeepers, traders, hawkers and also common people in the localities and extort money from them. Witness A has stated that the detenu along with his associates came to the tea stall of Witness A. The detenu was armed with a knife. The detenu stated that Witness A

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was not paying him hafta. The associates of the detenu started destroying the materials of Witness A and his tea stall. On seeing the act of the detenu, the customers of this witness got scared and ran away. Witness A shouted loudly for help. The passerby and vehicle drivers stopped there and started watching the incident. The detenu then brandished a knife and rushed towards those people. On seeing this, the

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people got scared and ran helter-skelter and drivers sped away in their vehicles. Thus, it is seen that the incident relating to Witness A had nothing to do with the complainant in C.R. No. 639/2015 who was working in M/s. Joy and Sayala Construction Company. This is a totally separate and

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jfoanz vkacsjdj 53

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unconnected incident which has nothing to do with the said construction company. This incident also is not limited to only one individual but it affected the general section of public who had gathered at the spot which is seen from the fact that people got scared and ran helter-skelter and drivers sped away in their vehicles.

¶401

As far as Witness B is concerned, this incident also has

¶402

nothing to do with M/s. Joy and Sayala Construction Company. Witness B has stated that he knew the detenu as he is a notorious criminal in that locality. The detenu, at the point of weapons, was forcibly collecting hafta from hawkers, shopkeepers and ordinary citizens. Witness B has stated that at about 8.30 p.m., when he was returning back to his house, the detenu and his associates all of a sudden accosted him. The detenu abused this witness by saying that he is not paying hafta and all the people in the area were paying him hafta. The detenu then took out a chopper and placed it on the stomach of the witness. The witness

¶403

jfoanz vkacsjdj

¶404

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1. cri wp 3449-16.doc

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told the detenu that he did not have money and he would

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take a loan from someone and pay the detenu, however, the detenu said that he wanted money just now. The detenu then forcibly took out money from the rear side pant pocket of Witness B. The Witness B pleaded that there was no earning member in the house and on that day itself, Witness B had taken advance from his company as he wanted to get

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the monthly groceries for his house, hence, the detenu should have sympathy. However, the detenu and his associates assaulted Witness B who fell on the road and started shouting loudly for help. On hearing the shouts, passersby stopped there. The detenu then brandished the chopper in the air in their direction whereupon they got scared and ran away. Thus, it is seen that the act of the detenu did not affect only Witness B but it affected a section of public who had gathered at the spot. Thus, it is seen that this incident also affected the public order.

¶409

Thus, it is seen that in all the three incidents, the

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jfoanz vkacsjdj 55

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detenu has demanded hafta i.e the detenu was trying to extort money from the witnesses. We have already observed in paragraph 20 that the Supreme Court as well as this Court in various decisions have held that acts of extortion affect public order. In cases of extortion, anyone

¶413

can be a victim. Hence, any person, shopkeeper, hawker, businessman can be a victim. Such acts would cause a

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feeling of insecurity in the minds of the people in that area. Such acts certainly affect public order, thus, this ground too fails.

¶415