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BOMBAY HIGH COURT
V. A. MOHTA AND M. S. RANE, JJ.
Anthony alias Sandy John Nigero, Petitioner
versus
S. Ramamurthi, Commissioner of Police for Greater Bombay and others, Respondents.
Criminal Writ Petition No. 1186 of 1992,
Decided on ; 26 -11 -1992.
NATIONAL SECURITY ACT, 1980 - DETENTION - VALIDITY - GROUNDS - SUFFICIENCY - CONFESSION - ADMISSIBILITY - RIGHT TO LEGAL ASSISTANCE - HEARING BY ADVISORY BOARD - DELAY IN FRAMING DETENTION ORDER - MAINTENANCE OF PUBLIC ORDER - INDIVIDUAL DISPUTES.
Fact of the Case:
The detenu, Anthony alias Sandy John Nigero, was detained under the National Security Act, 1980, based on three incidents involving assault, grievous injuries, and murder. The detenu challenged the detention on various grounds, including lack of legal assistance, reliance on inadmissible confession, absence of independent material about terror and mental condition of residents, inordinate delay in framing the detention order, and the incidents not pertaining to the maintenance of public order.
Finding of the Court:
The court held that the detenu was informed of his right to legal assistance and representation before the Advisory Board, but he failed to exercise those rights. The court also held that the confession made by the detenu before the police officer was admissible for the purpose of reaching subjective satisfaction by the detaining authority. The court further held that there was sufficient material to conclude that the detenu's activities disturbed the even tempo of the locality and there were possibilities of recurrence in the future. The court also found that the delay in framing the detention order was properly explained and did not result in snapping the live link between the activities and the purpose of detention. Finally, the court held that the incidents involving assault, grievous injuries, and murder were prejudicial to the maintenance of public order, as they created terror in the minds of the peace-loving people of society and disturbed the even tempo of society.
Issues: 1. Whether the detenu was denied the right to legal assistance and representation before the Advisory Board. 2. Whether the confession made by the detenu before the police officer was admissible for the purpose of reaching subjective satisfaction by the detaining authority. 3. Whether there was sufficient material to conclude that the detenu's activities disturbed the even tempo of the locality and there were possibilities of recurrence in the future. 4. Whether the delay in framing the detention order was justified. 5. Whether the incidents involving assault, grievous injuries, and murder were prejudicial to the maintenance of public order.
Ratio Decidendi: 1. The right to legal assistance and representation before the Advisory Board is not mandatory under the law and can be granted only if the Board considers it necessary or if the detenu asks for it. 2. Confession made by the detenu before the police officer is admissible for the purpose of reaching subjective satisfaction by the detaining authority. 3. Some element of suspicion, anticipation, and speculation is inherent in preventive detention, and the existence of statements of residents of the locality unconnected with the actual incident to the effect that they were terrorized due to the activities of the detenu is not a must. 4. Delay in framing the detention order is justified if it is properly explained and does not result in snapping the live link between the activities and the purpose of detention. 5. Activities that create terror in the minds of the peace-loving people of society and thereby disturb the even tempo of society are prejudicial to the maintenance of public order, irrespective of the persons involved.
Final Decision: The petition challenging the detention order was dismissed.
V. A. MOHTA, J. :- This is a Habeas Corpus Petition by a detenu Anthony alias Sandy John Nigero under the National Security Act, 1980.
2. The three incidents - the gist of which is given below - formed the basis of the subjective satisfaction of the detaining authority.
(a) On 28-7-1991 at night, the detenu, his other associate including co-detenu Ninad Mayekar (Petitioner in the connected Writ Petition No. 1185 of 1992) armed with knife/choppers questioning Bala Kawathankar as to why he was reporting to the police against them, abused him and assaulted with knife and the blunt sides of choppers. When his friend Raja tried to intervene, detenu and his other associates pushed him and tried to assault Raja with choppers. Raja got scared and started running. He was chased and attacked with choppers injuring him on his left elbow. The detenu and other associates threatened Raja that his intestine will be taken out in case he reported the matter to the police. The people on the road got scared and ran helter skelter. Bala as well as Raja were taken for medical treatment. An offence under Section 324 read with Section 34 of the Indian Penal Code was registered against the detenu and other associates. They were arrested. The Magistrate released them on bail they availed of bail.
(b) On 9-10-1991 at night, Rajendra Chalke along with residents of Radha Balwant Niwas, Kelkar Road, Dadar, were witnessing a Garba dance at Kelkarwadi. The detenu and other associates rushed towards Rajendra, gave repeated blows with weapons on several parts of his body. Rajendra fell down, shouted loudly for help, but none came to his rescue due to fear of the detenu and his associates. People got scared and ran away from the place as the detenu and his associates brandished the weapons towards them to terrorise them. Rajendra was removed to K.E.M. Hospital with grievoue injuries. An offence under Section 307 read with Section 34 of the Indian Penal Code was registered against the detenu and others. The detenu and his associates were arrested. Metropolitan Magistrate ordered their release on bail. Bail facility was availed of.
(c) On 5/12/1991 at night, as many as 25 injuries on the person of Atul Khot were inflicted by the detenu and his associates. They thereafter terrorised the pedestrians by brandishing their weapons. People got scared and ran helter skelter. The motor vehicles took reverse and sped away. The assailants then caught hold of one Shantaram Vasudeo Kevat who was sleeping on the footpath and raised a knife to assault him. He resisted and in the process sustained injuries on the right hand. Realizing that Shantaram was a Bhaiyya the assailants ran away. Jadhav as returning home after viewing a drama in Shivaji Mandir, Dadar (West). He noticed people running helter skelter near Grindlay's Bank. Out of curiosity, he rushed there and noticed Atul Khot lying in a pool of blood. He rushed the injured to his house. Atul Khot was removed to the K. E. M. Hospital where he was declared dead. An offence under Sections 143 to 149, 302 of the Indian Penal Code was registered against the detenu and his associates was registered. The detenu confessed having committed the crime. The detenu and the associates were arrested. The learned Sessions Judge released them on bail. Bail facility was availed of.
3. The following five points are urged by Shri Thakare, learned Counsel for the Petitioner.
(a) The Petitioner was not informed that he had a right of legal assistance of a next friend and to adduce evidence in rebuttal before the Advisory Board. Moreover, the Advisory Board had not adjourned the hearing to enable the Petitioner to keep the next friend present for legal assistance. These failures vitiated the detention;
(b) Confession of the detenu made before the Police Officer or other similar matters inadmissible in evidence as per Evidence Act or Criminal Procedure Code cannot legally form the basis of the subjective satisfaction of the detaining authori
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