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TMI Blog1999 (10) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 16.4.1999 communicated to the petitioner found that the petitioner was a dangerous person defined under the provisions of M.P.D.A. Act of 1981 on the basis of 14 cases committed by the petitioner since the year 1989 in the jurisdiction of Sitabuldi and Sadar Police Stations. The Detaining Authority found that inspite of the arrest of the petitioner and various prosecutions launched against him in the said cases along with the three detentions under the National Security Act, 1980, the petitioner's criminal activities have increased blatantly without any remorse and he has no respect for law and that he restarts his violent criminal activities with renewed vigour once the petitioner is released from custody or from detention, thereby creating terror and a sense a insecurity in the minds of the people of the locality where the petitioner resides and operates. 4. The Detaining Authority found that the recent activities of the petitioner are such that his detention under the M.P.D.A. Act of 1951 was in the interest of the society as the petitioner was found acting in a manner prejudicial to the maintenance of public order. The grounds of the detention relied upon by the Deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had threatened the complainant and therefore police picket was deployed in front of petitioner's house to have check on him. This offence of robbery committed by the petitioner has caused apprehension in the minds of the shopkeepers of Dharampeth area of grave danger to their lives and property at the hands of the petitioner, and therefore, they submitted an application on 25.2.1 999 against the petitioner for taking stern action against him. The Detaining Authority also found that the petitioner has been continuously terrorising the people of nearby locality/local residents to deter them from going against the petitioner by threatening them with dire consequences and as the witnesses are afraid of the petitioner due to grave danger to their lives and property at the hands of the petitioner, they are not willing to come forward and lodge complaint against the petitioner. But the police with much efforts could trace out these witnesses and after taking them into confidence have recorded their statements in camera after giving them assurance that their anonymity will be maintained and they will not be called upon to give evidence in any Court of law or any other forum. The state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the petitioner under the National Security Act as well as while taking preventive action, and therefore, reconsideration of this material for passing a fresh order of detention was uncalled for. Mr. Jaiswal submitted that though in their affidavit in reply, the respondents have tried to make out a case that these old cases were not considered while passing the detention order, but it cannot be ruled out that these old cases have influenced the mind of respondent Detaining Authority on the basis of these cases and previous detention order have formed an opinion that the petitioner is a dangerous person as observed in para 3 of the grounds of detention. Mr. Jaiswal has further assailed the consideration of old cases by the respondent Detaining Authority on the ground that the respondent Detaining Authority have not bothered to verify whether any of these cases have resulted in either conviction or acquittal and hence demonstrate that the very fact that out of the old cases relied upon by the Detaining Authority the case at Sr. No. 15 of the Index Crime No. 408/92 registered against the petitioner for having committed offence under Section 307 read with Section 34 of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have filed an affidavit in reply, particularly when the detention order is challenged on the ground that there is no application of mind in the making of the preventive detention as held in the case of Mrs. Tsering Dolkar v. Administrator, Union Territory of Delhi and Ors. . Mr. Jaiswal submitted that the same view has been taken in the case of Mohinuddin v. Distt. Magistrate, Heed and followed by our High Court in the case of Rapa Dulichand Khare v. District Magistrate, Jalna and Ors. 1990 (1) Mah. L.R. 307 and the detention order came to be quashed and set aside on the ground that the affidavit is filed by the concerned District Magistrate who had not passed the order of detention and further it does not show any reason as to why the District Magistrate who passed the order cannot file affidavit. The affidavit, therefore, suffers from material irregularity and fails to explain the subjective satisfaction which is required for passing the order of detention under Section 3 of the National Security Act. In sum and substance, it is the contention of Mr. Jaiswal that the detention order deserves to be quashed and set aside for non-application of mind by the Detaining Authority in arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Detaining Authority was the offence of robbery committed by the petitioner and his associates which resulted in apprehension in the mind of shopkeepers of Dharampeth locality that they do not find safe and secure due to unlawful activities of the petitioner and the examination of the five witnesses in camera who have in terms said that the petitioner indulges in terrorising people of the locality in order to extort money and the fact that they are afraid to come forward and give evidence against the petitioner for fear of their lives and property was sufficient to arrive at a subjective satisfaction that the activities of the petitioner are prejudicial to the maintenance of public order. It is submitted that what is required to be examined is that the detenu and his associates are involved in serious crimes like robbery, extortion and assault which is bound to create fear psychosis in the minds of the residents of the locality who have been made victims of extortionate demands by the detenu and his associates and if the grounds of detention are scrutinised, they specifically attribute to the detenu his acts of robbery, extortion and assault which has a potentiality to affect th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red for passing the order of detention, the order would stand vitiated. As pointed out to us by the learned A.P.P., this view of the Apex Court in the two cases i.e. Mrs. Tsering Dolkar and Mohinuddin (cited supra) has now changed and in the recent decisions of the Hon'ble Supreme Court viz. in Madan Lal Anand v. Union of India and Smt Victoria Fernandes v. Lalmal Sawma the Apex Court is of the view that merely because the Detaining Authority has not sworn the affidavit, it will not in all circumstances be fatal to the sustenance of the order of detention and unless there are allegations that the order is tainted with mala fide or extraneous consideration, counter affidavit of authorities other than the authority passing the order of detention can be taken into consideration. Taking into consideration the subsequent view of the hon'ble Supreme Court on the point we find that the filing of the affidavit by the present Commissioner of Police in place of Shri Ulhas Joshi who had passed the detention order, though may not be fatal, but the least expected of the respondent is at least to explain to this Court as to why the affidavit of Shri Ulhas Joshi - the then Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity i.e. the case registered against the petitioner vide Crime No. 40/90 for having committed offence under Section 4/25 of the Arms Act read with Section 135 of the Bombay Police Act registered on 28.2.1994. 13. We, therefore, find that if the Detaining Authority could have examined the progress, stage arid the disposal of case if any in the lot of 14 cases, the result of the three detention orders passed under the National Security Act, 1980, probably it would have affected its subjective satisfaction in arriving at a decision that the detention of the petitioner is necessary or not. Therefore, non-examination of these cases by the respondent Detaining Authority and whether these cases were relied upon by the Detaining Authority in passing of the detention orders under the National Security Act or not, has vitiated the impugned order, when on the basis of this material, the Detaining Authority came to the conclusion that the petitioner is a dangerous person as defined under the M.P.D.A. Act. Therefore, we are of the opinion that the order passed by the Detaining Authority relying upon the past cases and the 3 detention orders considering the same as antecedents to the discredit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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