Holding

The detention order is valid; in‑camera statements may be considered, and the authority's satisfaction that the detenu was a dangerous person is not vitiated.

Summary

The Commissioner of Police, Mumbai, detained Jagdambaprasad Pathak under the Maharashtra Prevention of Dangerous Activities Act, 1981, alleging that he was a "dangerous person" who repeatedly engaged in criminal activities that threatened public order. The detention order, confirmed by the State Government, was based on a series of contemporaneous incidents and in‑camera statements of witnesses who feared retaliation. The petitioner challenged the order, arguing that it relied on a single police report and that in‑camera statements could not form the basis of a preventive detention. The Supreme Court held that the Act does not prescribe a specific list of materials, and the detaining authority may rely on truthful, relevant evidence, including in‑camera statements, to form a subjective satisfaction. It further held that the petitioner’s allegations did not demonstrate any infirmity in the authority’s conclusion that the detenu was a dangerous person under Section 2(b‑1). Consequently, the detention order was upheld and the appeal dismissed.

Issues considered

Whether a detention order under the Maharashtra Prevention of Dangerous Activities Act can be based on a single police report and in‑camera statements of witnesses.
Whether statements recorded in camera are permissible material for establishing the authority's subjective satisfaction of danger.
Whether the detenu qualifies as a "dangerous person" within the meaning of Section 2(b‑1) of the Act.

Legislation cited

Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981s. 2(a)(iv), s. 2(b-1), s. 3

Subjects

preventive detentiondangerous personpublic orderin‑camera statementssubjective satisfactionMaharashtra Act

Judgment

A SMT. PHULWARI JAGDAMBAPRASAD PATHAK
v.
SHRI R.H. MENDONCA AND ORS.

JULY 26, 2000

B [A.P. MISRA AND D.P. MOHAPATRA, JJ.]

Maharashtra prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug offenders and Dangerous Persons Act, 1981: Sections
C 2(a)(iv), 2(b-I) and 3.

Preventive detention-Dangerous person-Detention order passed
against-Validity of-Subjective satisfaction of detaining authority-Judicial
review of detention order passed by Police Commissioner-Satisfaction of
detaining authority that (i) Detenu was persistently engaged in criminal
D activities (ii) Had unleashed terror in the locality (iii) victims and witnesses
mortally afraid of detenu to make complaint and statements against him-
On assurance of anonymity statements made in camera-Such statements not
assailed as untrue-Held in such circumstances conclusion arrived at by the
detaining authority that detenu was a dangerous person was not vitiated-
. Detention order held valid
E
. Preventive detention-Detention order-Statements of victims and
witnesses recorded in camera-Held such statements can form the basis of
detention order.

T.he Commissioner of Police, Brihan, Mumbai passed an order under
F Section .3 (1). of. the Maharashtra Prevention of Dangerous Activities of
Slunilords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981
.· detai~i~g th~ appi;llarit's son. The said detention order was passed with a view
to preventing ..him from acting in any manner prejudicial to the maintenance
of public order. In the grounds of detention the detaining authority recorded
·a his satisfaction that .the detenu was. a dangerous person as he has unleashed
a reign of terror and had become a perpetual danger to the society at large in
the locality; he was persistently· engaged in criminal activities; witnesses and
the victims were normally afraid of the detenu to complain and make
statements against him openly but on assurance of anonymity they expressed
their willingness to make their statements in camera. The detention order
I-I 686
SMT. P.J. PATHAK v. R.H. MENDONCA 687

passed by the Commissioner of Police was confirmed by the State Government. A
The said order was unsuccessfully challenged before the Bombay High Court

In appeal to this Court it was contended on behalf of the petitioner that
(1) the order of detention was vitiated as it was based on a single report
registered by police; (2) on the materials placed on record the detenu could
not be said to be a 'Dangerous person' within the meaning of Section 2(b-l) B
and therefore could not be detained under the provisions of Section 3 (ii); and
(3) statements of victims and witnesses recorded in camera cannot form the
basis of a detention order under the Act

Dismissing the appeal, the Court
c
HELD : 1. The detention order under challenge does not suffer from
any infirmity. For consideration of the question whether the appellant could
be said to be a dangerous person it is necessary to read the definition of the
term in Section 2(b-l) and the provisions of Section 2(a) (iv) regarding the
meaning of the term "acting in any manner prejudicial to the maintenance of D
public order". Under the explanation under Section 2 (a) (iv) it is provided
that public order shall be deemed to have been affected adversely or shall be
deemed likely to be affected adversely if any of the activities of any of the
persons referred to in the clause directly or indirectly, is causing or calculated
to cause any harm, danger or alarm or a feeling of insecurity, among the
general public or any section thereof, or a grave or widespread danger to life E
or public health. The deeming clause in the explanation widens the scope of
the provision in Section 2(aXiv). It follows that if a person found to be repeatedly
engaged in such activities as mentioned in Section 2(b-l) which affect adversely
or are likely to affect adversely the maintenance of public order he can be
detained as a dangerous person in exercise of the power under Section 3 of F
the Act. [694-8-E)

2. Preventive detention measure is harsh, but it becomes necessary in
larger interest of society. It is in the nature ofa precautionary measure taken
for preservation of public order. The power is to be used with caution and
circumspection. For the purpose of exercise of the power it is not necessary G
to prove to the hilt that the person concerned had committed any of the offences
as stated in the Act. It is sufficient if from the material available on record
the detaining authority could reasonably feel satisfied about the necessity for
detention of the person concerned in order to prevent him from indulging in
activities prejudicial to the maintenance of public order. In the absence of
a?Jy provision specifying the type of material which may or may not be taken H
688 SUPREME COURT REPORTS [2000] SUPP. l S.C.R.

A into consideration by the detaining authority and keeping in view the purpose
the statute is intended to achieve the power vested in the detaining authority
should not be unduly restricted. It is neither possible nor advisable to catalogue
the types of materials which can form the basis of a detention order under
the Act. That will depend on the facts and situation of a case. Presumably,
B that is why the Parliament did not make any provision in the Act in that regard
and left the matter to the discretion of the detaining authority. However, the
facts stated in the materials relied upon should be true and should have a
reasonable nexus with the purpose for which the order is passed.
[694-H; 695-A-B)

C 3. From the grounds of detention and the papers enclosed with it, copies
of which were served on the detenu it is clear that the detaining authority
based his subjectiv" :;.;~isfacti.Jn on a series of contemporaneous incidents in
which the detenu was involved. The satisfaction was not based on a single or
stray incident. In the in-camera statements separate incidents of criminal
activities of the detenu were stated. The assertions are not assailed as untrue
D nor can they be said to be irrelevant for the purpose of the order. On such
materials on record it cannot be said that there was no basis for the detaining
authority to feel satisfied that the detenu was either himself or as a member
or leader of a gang habitually committed or attempted to commit or abetted
the commission of any of the offences stated in Section 2(b-l ). Therefore, the
E contention raised by the petitioner that the conclusion arrived at by the
detaining authority that the detenu was a 'dangerous person' within the
meaning of Section 2 (b-1) was vitiated cannot be accepted. [695-C-E)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 577
of2000.
F
From the Judgment and Order dated 19.1.2000 of the Bombay High
Court in Crl.W.P. No. 872of1999.

S.R. Chitnis and Shivjai M. Jadhav for the Appellant.

G Altaf Ahmed, Addi. Solicitor General and S.V. Deshpande for the
Respondents.

The Judgment of the Court was delivered by

D.P. MOHAPATRA, J. Leave granted.

H In this appeal filed by the mother of Shyamsunder @ Navin @ Amar
SMT. P.J. PATHAK v. R.H. MENDONCA [D.P. MOHAPATRA, J.] 689

@ Mahesh Jagdambaprasad Pathak, the detenu, the judgment of the Bombay A
High Court in Criminal Writ Petition No. 872 of 1999, dismissing the writ
petition is sought to be assailed. In the aforementioned criminal writ petition
the appellant had challenged the order of detention dated 19-6-1999 passed
by the Commissioner of Police, Brihan Mumbai, detaining Jagdambaprasad
Pathak under sub section (I) of Section 3 of the Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and B
Dangerous Persons Act, 1981 (No. LV of 1981) (for short referred to as the
Act).

The detaining authority passed the order in exercise of the power
• conferred by sub section (I) of Section 3 of the Act read with the government C
order, Home Department (Special) No.DDS-1399/1/SPL- 3(B) dated 30th March,
1999, on being satisfied that it was necessary to make an order directing

. detention of the detenu with a view to prevent him from acting in any manner
prejudicial to the maintenance of public order. By a separate order passed on
the same day, the detenu was directed to be detained at Nasik Road Central
Prison, Nasik. The grounds on which the detention order was made were D
communicated by the detaining authority to the detenu by a separate
communication on the same day. It was specifically stated in the said
communication that copies of the documents placed before the detaining
authority were enclosed excepting the names and identifying particulars of
the witnesses/victims in connection with the grounds mentioned in paragraph E
No.4 (bX i) and 4(bXii) which could not be furnished to the detenu in public

- interest. In paragraph 2 of the communication, it was averred :

"Your criminal record shows that, you are a dangerous person of
violent character and also a weapon wielding desperado. You have
created terror in localities of Kherwadi Road, Teen Bungalow, F
Chamdewandi, J.P. Road, Khar (East) and the areas adjoining thereto
within the jurisdiction ofNirmal Nagar Police Station in Brihan Mumbai.

"You and your like-minded associates always move in the above
areas armed with dangerous weapons like Revolver and Chopper and G
do not hesitate to use the same while committing the offence like
robbery, extortion, assault, attempt to commit murder, criminal
intimidation etc. Due to your criminal activities which are prejudicial
to the maintenance of public order, the people residing in the said
areas, businessmen are living under constant show of fear. Due to
your such habitual criminal activities, the lives and properties of the H
690 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A people in the aforesaid areas are in danger.".

The recent incidents showing intensified terrorising criminal activities
on the part of the detenu and his associates, were stated in detail in paragraphs
4(a), 4(aXi) and 4(aXii). All the incidents referred to had taken place between
March and April, 1999.
B
Relevant portions of paragraphs 4(b), 4(bXi), and 4(bXii) on which much
stress has been laid by the learned counsel appearing for the appellant read
as follows:

4(b) Confidential inquiries made into your activities disclosed
c that, you have been indulging in criminal activities persistently and
have victimised number of people in the areas of Kherwadi, Teen
Bungalow, Chamdewandi, J.P. Road, Khar (East) and adjoining areas
in the jurisdiction of Nirmal Nagar Police Station in Brihan Mumbai.
However, the witnesses including the victims are mortally afraid of
you to complain and to make statements against you openly. On the
D assurance of anonymity and that they would not be called upon to
depose in the Court of Law or any other open forum to make statements
against you only then the following witnesses expressed their
willingness to make their statements and thus their statements are
recorded "IN CAMERA". The gist of their statements is as under:-
E
4(bXi) Witness "A" is having a bakery and residing at Kherwadi Road.
In his statement recorded on 29-4- 1999, he has stated that, he knows
you and your associates as goondas from his locality and move in the ..,.
areas of Khar (East) armed with weapons and collect money from
traders, businessman and residents of the said locality.
F
One day in the second week of March, 1999, at about 19.30 hours,
when the witness was present in his bakery, you and your two
associates approached him and you pointing out revolver towards the
witness threatened him saying,

When the witness showed his inability, you and your associates
G
started assaulting witness and his servants and started damaging the
material in his bakery. Seeing this scene, nearby shopkeepers closed
their shops. Pedestrians, hawkers on the road started running helter
skelter you then put your revolver on the head of the witness and
-
your associates threatened his servants to stand at the comer in
H bakery, when you exhorted him saying.
SMT. P.J. PATHAK v. R.H. MENDONCA [D.P. MOHAPATRA. J.) 691

Due to mortal fear, the witness paid Rs. 5,000 to you. While leaving A
'• you threatened the witness saying, "

Then all of you went away. Due to fear, the witness did not dare to
lodge any complaint."

4(bXii) Witness "B" is having a garment factory at Kherwadi Road, B
Bandra (East), Mumbai SI. In his statement recorded on 29-4-1999, he
has stated that he knows you and your associates as notorious and
terror creating goondas from his locality.

One day in the third week of March, 99 at about 11.30 hours, when
the witness was working in his factory along with his workers, you C
along with your two associates approached the witness and you
whipped out revolver and threatened the witness saying,

When your associates whipped out choppers and threatened his
servants not to move. Seeing this scene, nearby shopkeepers closed
their shops, pedestrians and hawkers on the road started running D
helter skelter. The witness showed his inability to pay such huge
amount and requested to give some relief you assaulted the witness
with kicks and abused in filthy language and robbed Rs. 7900 from the
cash box of the witness and while leaving, you threatened the witness
saying, 'and thereafter all of you went away. Due to your terror and
revengeful attitude, witness did not lodge the complaint." E
In paragraph 5 of the ground the detaining authority has recorded his
satisfaction that the detenu is a dangerous person within the meaning of
Section 2(b-i) of the Act; he unleashed a reign of terror; he had become a
perpetual danger to the society at large in the localities in question; and that F
the people there were experiencing a sense of insecurity and were leading and
carrying out their daily avocation under constant shadow of fear whereby the
even tempo of life of citizens was badly disturbed. The detaining authority
went on to record that the actions taken against the detenu under the ordinary
law of the land were found to be insufficient and ineffective to put a stop to
his criminal activities which were prejudicial to the maintenance of public G
order.

In paragraph 6 of the grounds, the detaining authority summed up his
conclusion in these words :

"In view of your tendencies and inclinations reflected in the H
...
692 SUPREME COURT REPORTS (2000) SUPP. I S.C.R.

A offences committed by you as stated above I am further satisfied that,
after having availed of the bail facilities and becoming free person and
being a criminal you are likely to indulge in activities prejudicial to the
maintenance of public order in future and that it is necessary to detain
you under the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggars, Drug Offenders and Dangerous Persons Act,
B 1981 (No. LV of 1981) (Amendment 1996) to prevent you from acting
in such a prejudicial manner in future."

In the grounds it was made clear that the detenu had the right to make
a representation to the State Government against the detention order and also
C to the Advisory Board.

The detention order passed by the Commissioner of Police was confirmed
by the State Government by order dated 4.8.1999 and the detenu was ordered
to be continued in detention for a period of 12 months. The said order was
challenged in the criminal writ petition filed before the High Court by the
D appellant which was dismissed by the judgment under challenge.

The principal contention raised by Shri S.R. Chitnis, learned counsel
appearing for the appellant was that the order of detention was vitiated as
it was based on a single report registered by the police and some statements
E of persons recorded in-camera. This according to the learned counsel was not
permissible under the provisions of the Act. Elucidating the contention the
learned counsel submitted that it has become a practice with the Mumbai
Police to register a single case and place on record a few in-camera statements
of witnesses in support of an order of detention under Section 3(i) of the Act.
According to the learned counsel on the materials placed on record the
F detenu cannot be said to be a 'dangerous person' within the meaning of
Section 2(b- I) and therefore could not be detained under the provisions of
Section 3(ii) of the Act. The learned counsel strenuously urged that statements
of persons/witnesses recorded in-camera cannot form the basis of a detention
order under the Act.
G
Shri Altaf Ahmad, learned Additional Solicitor General, appearing for
the respondents, on the other hand contended that on the facts and
circumstances emerging from the materials on record the order of detention
passed against the detenu is legal and justified.

H On the facts of the case and the contentions raised on behalf of the
SMT. P.J. PATHAK v. R.H. MENDONCA [D.P. MOHAPATRA, J.] 693
... parties as noted in the proceeding paragraphs the question that arises for A
detennination is whether statement of a person/witness recorded in-camera
can be used by the detaining authority for passing an order of detention
under section 3 of the Act. As noted earlier it is the contention of the learned
counsel for the appellant that such a statement cannot fonn the basis of a
detention order. In support of the contention it was urged that to bring the
detenu within the purview of the tenn "dangerous person' as defined in
B
section 2(b-1) of the Act it has to be shown that the person either himself
or as a member or leader of a gang habitually commits or attempts to commit
or abets the commission of any of the offences punishable under Chapter XVI
or under Chapter VII of the Indian Penal Code or punishable under Chapter
V-B of the Anns Act, 1959. The phrase "habitually commits" means and c
suggests persistent and repetitive involvement in incidents which fulfil the
conditions required for commission or the offence or offences or attempt at
the commission of such offence or abetment of commission of such offence.
Mere recording of some statements in camera which at best can be said to
contain certain allegations regarding involvement of the detenu, without
anything more cannot be said to fulfil the requirement of"habitually commits D
or attempts to commit or abets the commission of any of the offences".

In Section 2(b-1) of the Act the expression "dangerous person" is
defined in these tenns :

"dangerous person" means a person, who either by himself or as a E
member or leader of a gang, habitually commits, or attempts to commit
\.
::><• or abets the commission of any of the offences punishable under
Chapter XVI or Chapter XVII of the Indian Penal Code or any of the
offences punishable under Chapter V of the Anns Act, I 959".

Under Section ·2(a) the phrase "acting in any manner prejudicial to the F
maintenance of public order" means :

"XXXXXXXX

(iv)"in the case of a dangerous person, when he is engaged, or is
making preparation for engaging, in any of his activities as a dangerous G
.... person, which affect adversely, or are likely to affect adversely, the
maintenance of public order.

Explanation : For the purpose of this clause (a), public order shall be
deemed to have been affected adversely, or shall be deemed likely to
be affected adversely inter a/ia, if any of the activities of any of the H
694 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A persons referred to in this clause directly or indirectly, is causing or
calculated to cause any hann, danger or alann or a feeling of insecurity,
among the general public or any section thereof, or a grave or
widespread danger to life or public health."

The detention order against the appellant herein was passed on the
B allegations that he was persistently engaged in criminal activities which
adversely affected the maintenance of public order in the localities, and
therefore, with a view to prevent him from engaging in such activities it was
necessary to preventively detain him under the provisions of the Act. For
consideration of the question whether the appellant could be said to be a
C dangerous person it is necessary to read the definition of the tenn in section
2(b-1) and the provision of section 2(a) (iv) regarding the meaning of the tenn
"acting in any manner prejudicial to the maintenance of public order". Under
the explanation under section 2(a)(iv) it is provided that public order shall be
deemed to have been affected adversely or shall be deemed likely to be
affected adversely if any of the activities of any of the persons referred to
D in the clause directly or indirectly, is causing or calculated to cause any hann,
danger or alann or a feeling of insecurity, among the general public or any
section thereof, or a grave or widespread danger to life or public health. The
deeming clause in the explanation widens the scope of the provision in
section 2(a)(iv). It follows that if a person found to be repeatedly engaged
E in such activities as mentioned in section 2(b- I) which affect adversely or are
likely to affect adversely the maintenance of public order he can be detained
as a dangerous person in exercise of the power under section 3 of the Act.

Then comes the crucial question whether 'in-camera' statements of
persons/witnesses can be utilised for the purpose of arriving at subjective
F satisfaction of the detaining authority for passing the order of detention. Our
attention has not been drawn to any provision of the Act which expressly
or impliedly lays down the type of material which can fonn the basis of a
detention order under section 3 of the Act. Preventive detention measure is
a harsh, but it becomes necessary in larger interest of society. It is in the
G nature of a precautionary measure taken for preservation of public order. The
power is to be used with caution and circumspection. For the purpose of
exercise of the power it is not necessary to prove to the hilt that the person
concerned had committed any of the offences as stated in the Act. It is
sufficient if from the material available on record the detaining authority could
reasonably feel satisfied about the necessity for detention of the person
H concerned in order to prevent him from indulging in activities prejudicial to
SMT. P.J. PATHAK v. R.H. MENDONCA {D.P. MOHAPATRA, J.J 695

the maintenance of pqblic order. In the absence of any provision specifying A
the type of material which may or may not be taken into consideration by the
detaining authority and keeping in view the purpose the statute is intended
to achieve the power vested in the detaining authority should not be unduly
restricted. It is neither possible nor advisable to catalogue the types of
materials which can form the basis of a detention order under the Act. That
will depend on the facts and situation of a case. Presumably, that is why the B
Parliament did not make any provision in the Act in that regard and left the
matter to the discretion of the detaining authority. However, the facts stated
m the materials relied upon should be true and should have a reasonable
nexus with the purpose for which the order is passed.

From the grounds of detention and the papers enclosed with it copies
c
of which were served on the detenu it is clear that the detaining authority
based his subjective satisfaction on a series of contemporaneous incidents
in which the detenu was involved. The satisfaction was not based on a single
or stray incident. In the in-camera statements separate incidents of criminal
activities o'f the detenu were stated. The assertions are not assailed as untrue D
nor can they be said to be irrelevant for the purpose of the order. On such
materials on record it cannot be said that there was no basis for the detaining
authorify to feel satisfied that the detenu was either himself or as a member
or leader of a gang habitually committed or attempted to commit or abetted
the commission of any of the offences stated in section 2(b- l ). Therefore, the E
contention raised by learned counsel for the petitioner that the conclusion
arrived at by the detaining authority that the detenu was a 'dangerous
person' within the meaning of section 2 (b-1) was vitiated cannot be accepted.
In our view the detention order under challenge does not suffer from any
infirmity. The appeal being devoid of merit is dismissed.
F
T.N.A. Appeal dismissed.