G H KHAJA BILAL AHMED versus STATE OF TELANGANA & ORS. on 18 December 2019

[2019] 18 S.C.R. 1174

SUPREME COURT REPORTS

[2019] 18 S.C.R.

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KHAJA BILAL AHMED

v.

STATE OF TELANGANA & ORS.

(Criminal Appeal No. 1876 of 2019)

BDECEMBER 18, 2019

[DR. DHANANJAYA Y. CHANDRACHUD ANDHRISHIKESH ROY, JJ.]

Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral TrafficCOffenders Land–Grabbers, Spurious Seed Offenders, InsecticideOffenders, Fertiliser Offenders, Food Adulteration Offenders, FakeDocument Offenders, Scheduled Commodities Offenders, ForestOffenders, Gaming Offenders, Sexual Offenders, ExplosiveSubstances Offenders, Arms Offenders, Cyber Crime Offenders andDWhite Collar or Financial Offenders Act 1986 – ss. 3(2), 12, 13 –Detention order against appellant since he has been habitually andcontinuously engaging himself in unlawful acts and indulging inthe acts of goondaism and committed gruesome and heinous offences– Reference to fourteen cases registered against the appellant undervarious heads of crime between 2007 and 2016 – Also reference toEcriminal case of 2018 – Meanwhile appellant had got bail in thecriminal case of 2018 and when bail was granted, detention orderdated 25 October 2018 served on the appellant while he was still injail custody – On 02 November 2018, the said detention order wasconfirmed – Challenge to, to the detention order dated 25 OctoberF2018 and the confirmation order dated 02 November 2018 –Dismissed by the High Court – On appeal, held: Ground stated bythe detaining authority in the detention order were stale andirrelevant grounds and did not provide a live link with the detentionorder – Manner in which the order of confirmation was presentedbefore this Court, casts doubt on the existence of the order ofGconfirmation – As regards the registration of the criminal case of2018, the appellant was released on bail consequent upon the failureof the investigating authority to file a charge-sheet within ninetydays which till date has not been filed – There was no reasonablebasis on which the detaining authority could have come to a H

conclusion that on being released on bail, the appellant would inall probability indulge in prejudicial activity and it was necessaryto detain him – Thus, the order passed by the High Court is setaside and detention order is quashed.

Allowing the appeal, the Court

Conclusion

HELD: 1.1 In the instant case, the order of detention statesthat the fourteen cases instituted against the appellant between2007 and 2016 were referred to demonstrate the “antecedentcriminal history and conduct of the appellant”. The order ofdetention records that a “rowdy sheet” is being maintained at PSRain Bazar of Hyderabad City and the appellant “could not mendhis criminal way of life” and continued to indulge in similar offencesafter being released on bail. In the counter affidavit filed beforethe High Court, the detaining authority recorded that these caseswere “referred by way of his criminal background… (and) arenot relied upon”. The detaining authority stated that the caseswhich were registered against the appellant between 2009 and2016 “are not at all considered for passing the detention order”and were “referred by way of his criminal background only”. Thisaverment is plainly contradictory. The order of detention does,as a matter of fact, refer to the criminal cases which were institutedbetween 2007 and 2016. In order to overcome the objection thatthese cases are stale and do not provide a live link with the orderof detention, it was contended that they were not relied on butwere referred to only to indicate the antecedent background ofthe detenu. If the pending cases were not considered for passingthe order of detention, it defies logic as to why they were referredto in the first place in the order of detention. The purpose of theTelangana Offenders Act 1986 is to prevent any person from actingin a manner prejudicial to the maintenance of public order. Forthis purpose, Section 3 prescribes that the detaining authoritymust be satisfied that the person to be detained is likely to indulgein illegal activities in the future and act in a manner prejudicial tothe maintenance of public order. The satisfaction to be arrived atby the detaining authority must not be based on irrelevant orinvalid grounds. It must be arrived at on the basis of relevantmaterial; material which is not stale and has a live link with thesatisfaction of the detaining authority. The order of detention may A

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Arefer to the previous criminal antecedents only if they have adirect nexus or link with the immediate need to detain anindividual. If the previous criminal activities of the appellant couldindicate his tendency or inclination to act in a manner prejudicialto the maintenance of public order, then it may have a bearing onthe subjective satisfaction of the detaining authority. However,Bin the absence of a clear indication of a causal connection, a merereference to the pending criminal cases cannot account for therequirements of Section 3. It is not open to the detaining authorityto simply refer to stale incidents and hold them as the basis of anorder of detention. Such stale material will have no bearing onCthe probability of the detenu engaging in prejudicial activities inthe future. [Para 15][1191-E-H; 1192-A-D]

1.2 Section 12 of the Telangana Offenders Act 1986 providesthat the government, upon the report of the Advisory Boardstating that there is sufficient cause for the detention of a person,Dmay confirm the order of detention and continue the detentionfor such period not exceeding the maximum period specified inSection 13 “as they think fit”. Consequently, under Section 12,the government has the discretion whether or not to confirm thedetention upon receipt of the report of the Advisory Boardrecording sufficient cause for detention. [Para 16][1192-E-F]

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1.3 In the instant case, the detenu was in detention between25 October 2018 until 27 February 2019. The brother of thedetenu submitted an RTI application to the Superintendent,Central Prison Cherlapalli.The order of confirmationpurported to have been passed by the State Government wasFannexed for the first time on 30 September 2019 to the additionalcounter affidavit filed in the proceedings before this Court by theCommissioner of Police, Rachakonda. The order of confirmationfound no mention either during the proceedings before the HighCourt or in the first counter affidavit which was filed before thisGCourt on 18 July 2019. The record indicates that no order ofconfirmation was served on the detenu between 28 December2018 (the date on which it was purportedly passed) till the detenucontinued to be in detention until 27 February 2019. The mannerin which the order has surfaced, for the first time, in an additional H

counter affidavit filed before this Court casts serious doubt onwhether such an order was at all in existence on the relevantdate. [Para 17–19][1194-A, F, H; 1195-A-B]

1.4 The detention order has to be set aside on the groundsof reference to stale and irrelevant grounds in the detention orderby the detaining authority; and the manner in which the order ofconfirmation dated 28 December 2018 was presented before thisCourt, casts doubt on the existence of the order of confirmationin the first place. As regards the registration of Crime no 178 of2018, the appellant was released on bail consequent upon thefailure of the investigating authority to file a charge–sheet withinninety days. A charge–sheet, has not been filed till date. Therewas no reasonable basis on which the detaining authority couldhave come to a conclusion that on being released on bail, theappellant would in all probability indulge in prejudicial activity;and it was necessary to detain him, to prevent him from engagingin prejudicial activity. Thus, the impugned judgment and order ofthe High Court is set aside and the order of detention is quashed.[Paras 20–21][1195-C-F]

Sama Aruna v. State of Telangana (2018) 12 SCC 150;Lakshman Khatik v. State of West Bengal (1974) 4 SCC1; Rameshwar Shaw v. District Magistrate BurdwanAIR 1964 SC 334 : [1964] 4 SCR 921; Yumman OngbiLembi Leima v. State of Manipur (2012) 2 SCC 176;Nirmal Kumar Khandelwal v. Union of India (1978) 2SCC 508; Cherukuri Mani v. Chief Secretary, Govt ofAP (2015) 13 SCC 722; Kamarunnissa v. Union of India(1991) 1 SCC 128; Champion R Sangma v. State ofMeghalaya (2015) 16 SCC 253; Subramanian v. Stateof T N (2012) 4 SCC 699; Shibapada Mukherjee v.State of W B (1974) 3 SCC 50; Kamarunnissa v. Unionof India (1991) 1 SCC 128 – referred to.

Case Law Reference

(2018) 12 SCC 150(1974) 4 SCC 1

referred toreferred to

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1876 of 2019.

From the Judgment and Order dated 13.06.2019 of the HighCourt for the State of Telangana at Hyderabad in W.P. No. 43814 ofD2018.

Ms Divya Adepu, Ms. Shubhangi Jain, Ms. Ayushi Kazangchi,Dr. J. P. Dhanda, Mrs. Raj Rani Dhanda, Vineet Dhanda, Dr. A.K.Vasishtha, N.A. Usmani, Gopi Chand, Advs. for the Appellant.

EMs. Bina Madhavan, S. Udaya Kumar Sagar, Ms. Swati Bhardwaj,Advs. for the Respondents.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.F

1. The Division Bench of the High Court for the State of Telanganaby its judgment dated 13 June 2019, dismissed a challenge to an order ofdetention dated 25 October 2018.

2. The appellant was detained under the provisions of sub-section2 of Section 3 of the Telangana Prevention of Dangerous Activities ofGBoot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral TrafficOffenders Land-Grabbers, Spurious Seed Offenders, InsecticideOffenders, Fertiliser Offenders, Food Adulteration Offenders, FakeDocument Offenders, Scheduled Commodities Offenders, ForestOffenders, Gaming Offenders, Sexual Offenders, Explosive Substances H

Offenders, Arms Offenders, Cyber Crime Offenders and White Collaror Financial Offenders Act 1986[1]. The order of detention was issued on2 November 2018 by the Commissioner of Police, Rachakonda,Commissionerate and contained the following recitals:

“WHEREAS, information has been placed before me that theoffender Khaja Bilal Ahmed, S/o Khaja Hassan, age 41 yrs. OccBusiness, Charminar, Hyderabad is a “Goonda” and has beenhabitually and continuously engaging himself in unlawful acts andindulging in the acts of goondaism by acting as a leader/memberof criminal gang and committed gruesome and heinous offenceslike Murder/Attempt to Murder/ Rioting/Criminal trespass andAssault on Public Servants in the Police Station limits of HyderabadCity and Rachakonda Commissionerate and thereby caused harm,panic and terror among the innocent general public of the areaand on account of his criminal activities, his presence in the localityis adversely affecting the public order and thus he has acting in amanner prejudicial to maintenance of public order apart fromdisturbing the peace, tranquility, social harmony in the society.”

The order then sets out a reference to fourteen cases which wereregistered against the appellant under various heads of crime within thelimits of Hyderabad City. These cases were registered between 2007and 2016. One of the cases against the appellant under Sections 323 and341 of the Indian Penal Code 1860[2] is stated to have been compromisedin a Lok Adalat; in four cases, the appellant is stated to have beenacquitted; five cases are stated to have been transferred to the SpecialInvestigation Team[3], Hyderabad City for further investigation and fourcases are pending trial. The order of detention states that:

“The above cases are referred as his antecedent, criminal historyand conduct. Though, cases were registered, arrested by Policeand a Rowdy sheet is being maintained at PS Rain Bazar ofHyderabad City, he could not mend his criminal way of life andcontinued to indulge in similar offences soon after coming out onbail.”

The order of detention thereafter proceeds to state that in 2018,the appellant was implicated in Crime no 178 of 2018 under Sections 1 “Telangana Offenders Act 1986”2 “IPC”3 “SIT”

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A364, 302, 120B and 506 read with Section 34 of the IPC at PSAbdullapurmet of Rachakonda Commissionerate which is underinvestigation. The “dangerous activities of the offender and his associates”are stated to have caused panic and a feeling of insecurity in the mindsof the general public living within the limits of Hyderabad City andRachakonda Police Commissionerate, thereby disturbing the peace andBtranquillity of the area in a manner prejudicial to the maintenance ofpublic order. The order of detention was passed by the Commissioner ofPolice on the basis of the following satisfaction:

“WHEREAS. I, Mahesh M. Bhagwat, IPS, Commissioner ofPolice, Rachakonda, am satisfied on examination of the materialCplaced before me that the offender Khaja Bilal Ahmed has beenrepeatedly indulging himself in the manner of goondaism by actinga leader/member of criminal gang and committed gruesomeoffences such as Murder/Attempt Murders/ Rioting in an organizedfashion, creating a feeling of insecurity to their life in the minds ofDGeneral Public and thus disturbing peace and tranquility in societyand acting in a manner prejudicial to maintenance of Public Order.He is a habitual offender and a ‘Goonda’ as defined in clause (g)of Section (2) of the Telengana Offenders Act 1986 (Act no. 13of 2018)”

E3. On 26 October 2018, the appellant filed an application for bail[4]in Crime no 178 of 2018. The application for bail was allowed by the 14[th]Additional Metropolitan Magistrate on 26 October 2018 on the groundthat the investigating agency had failed to complete the investigationwithin the period allowed by the proviso to Section 167(2) of the Code ofCriminal Procedure 1973[5]. On 26 October 2018, when bail was grantedFby the 14[th] Additional Metropolitan Magistrate in Crime no 178 of 2018,an order of detention dated 25 October 2018 is stated to have beenserved on the appellant at 7:45 pm while he was still in jail custody.

4. On 2 November 2018, the brother of the appellant filed a WritPetition[6] challenging the order of detention on the ground that it had notGbeen confirmed within twelve days as contemplated under Section 3(3)of the Telangana Offenders Act 1986. On 2 November 2018, a copy of 4 Cr.M.P. 1645 of 2018

5 “CrPC”H6 Writ petition no 41187 of 2018

KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS.[DR DHANANJAYA Y CHANDRACHUD, J.]

the order of the State government confirming the order of detention wasserved on the appellant. On 30 November 2018, a petition[7] seeking awrit of habeas corpus was instituted by the brother of the appellantbefore the High Court challenging the order of detention dated 25 October2018 and the order of the State government dated 2 November 2018confirming the detention.

5. On an interlocutory application[8] filed in the Writ Petition, theHigh Court by an order dated 27 February 2019 issued a direction forthe release of the appellant from preventive detention on the conditionthat he would continue to abide by the terms imposed by the 14[th]Additional Metropolitan Magistrate for the grant of bail on 26 October2018 in Crime no 178 of 2018. By a judgment dated 13 June 2019, theHigh Court dismissed the Writ Petition challenging the order of detention,which gave rise to the proceedings before this Court under Article 136of the Constitution.

6. Before dealing with the rival submissions, it is necessary to setout the position of the fourteen criminal cases against the appellant whichhave been adverted to in the order of detention. This has been summarisedin a tabular chart which was submitted to this Court by Ms BinaMadhavan, learned Counsel appearing on behalf of the State ofTelangana. The chart is extracted below :

S CASE NO UNDER SECTION CURRENT STATUS NO 1305/2012147,148,188,153 r/w Section 149 of IPC & Section Transferred to SIT. Still 7 of Criminal Law Amendment Act, 1932 under investigation 2306/2012147,148,332,188,153(A) R/W 149 of IPCTransferred to SIT. Still under investigation 3307/2012147,148,332,307,188,153(A) r/w 149 of IPC & Transferred to SIT. Still Section 7 of Criminal Law Amendment Act, 1932 under investigation 4308/2012147,148,382 r/w 149 of IPCTransferred to SIT. Still under investigation 5309/2012147, 148, 427 r/w 149 of IPCTransferred to SIT. Still under investigation 641/2007147,148,324,506,153(A),159 of IPCPending trial742/2007147,148,506,427,153(A),159 of IPCPending trial844/2007147,148,324,506,153(A) r/w 149 of IPCPending trial943/2007147,148,448,427,506,153(A) r/w 149 of IPCPending trial 7 Writ petition no 43814 of 2018

8 IA 1 of 2019

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ACASES IN WHICH ACQUITTED:

7. During the course of the proceedings before the High Court, acounter affidavit was filed by the Commissioner of Police stating that:

“4. ... the records revealed that the since 2009 to 2016 asDmany as (15) cases were registered against the detenu, forengaging himself in unlawful and dangerous activities.Among them (4) cases were in acquittal. The said casesare referred by way of his criminal background that the sameare not relied upon. In the recent past during the year 2018 thedetenu was involved in Cr.No 178/2018, u/s Sections 374, 302,E120-B, 506 r/w 34 IPC, Abdullapurmet P.S. of Rachakonda PoliceCommissionerate., wherein the detenu and his associateskidnapped the deceased to an isolated area of Majeedpur villagein the limits of Abdullapumet P.S., and stabbed him to death brutally,thereby created terror and a feeling of insecurity in the minds ofFgeneral public, apart from disturbing peace and tranquility in thearea. Thus the activities of the detenu are prejudicial tomaintenance of public order, affecting the public orderadversely. The said case has been considered as groundfor his detention.”

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The above statement was reiterated in another part of the samecounter affidavit in the following terms:

“However, the cases registered against him during the period2009 to 2016 are not at all considered for passing the detentionH

order. The same are referred by way of his criminal background only.”

(Emphasis supplied)

In other words, the order of detention was sought to be justifiedsolely on the basis of Crime no 178 of 2018 registered against the appellantunder Sections 364, 302, 120B and 506 read with Section 34 of the IPC.The genesis of the criminal case was spelt out in the counter affidavitfiled before the High Court thus:

“A-1 Khaja Bilal Ahmed was active member in AIMIM Partyand elected as Corporator for GHMC Ward No: 29 in 2009Elections and later joined in TPCC and now working as TelanganaState Minority Vice President. The marriage of A-1 wassolemnized in 2006 with Smt Rafath Sultana and due to somedisputes, they got separated in March, 2018 in the presence oftheir community elders. The deceased Syed Aqeel, who wasworking with the detenu and residing nearby his house. Later, thedeceased Aqeel got married to A-1’s divorced wife Smt RafathSultana. As such, the A-1 felt shame in his community and boregrudge on deceased. The Detenu developed grudge against thedeceased that the deceased defamed him after marrying hisdivorced wife. Up on which, the detenu along with his associates(A2 to A8) hatched a plan to eliminate the deceased and in executionof his plan, the detenu and his associates kidnapped the deceasedin the early hours on 03-06-208, took him to an isolated area ofMajeedpur village of Abdullapurmet Police station limits, wherethe detenu and his associates stabbed him to death brutally. Thecase is under investigation for apprehension of absconding accusedand collection of further evidence.”

8. It was in the above case that the appellant was released on bailon 26 October 2018 on the failure to file a charge-sheet within a periodof ninety days. No charge-sheet has been filed till date.

9. In this backdrop, the following submissions have been urged onbehalf of the appellant by Mr Sidharth Luthra, learned Senior Counsel:

I The grounds relied upon by the Commissioner of thePolice, Rachakonda Commissionerate in the detentionorder dated 25 October 2018 are stale and have noproximate or live link between the antecedent activities A

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1184SUPREME COURT REPORTS

Aand the detention order as they are of the years 2007and 2012 except for Crime no 178 of 2018:

(i) The order of detention mentioned fifteen cases, butreliance is placed only on a single case bearing Crime no178 of 2018 for crimes under Sections 302 and 364; B

(ii) Out of the fifteen cases, the detenu has been acquittedin six cases; eight cases are pending trial out of whichfour cases date back to 2007, and four to 2012 and onlyCrime no 178 of 2018 under Sections 302 and 364 ispending investigation; C(iii)Until date no charge-sheet has been filed in Crime no178 of 2018 dated 3 June 2018;

(iv) By the admission of the respondents, the order ofdetention has been passed on one solitary case; and D(v)In support of the submission that the order of detentionwas invalid, reliance has been placed on the decisions ofthis Court in Sama Aruna v State of Telangana[9],Lakshman Khatik v State of West Bengal[10],Rameshwar Shaw v District Magistrate Burdwan[11]and Yumman Ongbi Lembi Leima v State ofEManipur[12].

II Non-confirmation of the detention order within threemonths would result in its automatic revocation.

(i) The appellant was in detention from 25 October 2018until 27 February 2019, for a period of four months withoutFconfirmation by the government under Section 12;

(ii) In response to a Right to Information[13] query dated 2July 2019 lodged by the appellant’s brother with theSuperintendent, Central Prison, Cherlapalli, Medchaldistrict, it was stated that the prison authorities had notGreceived any confirmation or revocation of the detentionorder pertaining to the appellant; 9 (2018) 12 SCC 15010 (1974) 4 SCC 111 AIR 1964 SC 334H12 (2012) 2 SCC 176

(iii) The confirmation order dated 28 December 2018 wasAplaced on the record for the first time during the courseof the present proceedings in the additional grounds filedin the Special Leave Petition;

(iv) The confirmation order dated 28 December 2018 foundno mention either in the High Court or in the first counterBaffidavit which was filed before this Court on 18 July2019;

(v) The confirmation order clearly stated that theSuperintendent of Jails, Central Prison “should servethe order on the detenu immediately”; and C

(vi) It is a sine qua non for the continuation of the detentionorder beyond the period of three months that theappropriate government must confirm it within threemonths. In support of the argument, reliance has beenplaced on the decisions of this Court in Nirmal KumarKhandelwal v Union of India[14] and Cherukuri Maniv Chief Secretary, Govt of AP[15].

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III The detention order dated 25 October 2018categorically states that the appellant will be grantedmandatory bail under Section 167 of the CrPC andtherefore, has been passed only on the apprehensionof bail being granted:

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(i) The detention order has been passed apprehending thegrant of bail without following the criteria laid down bythis Court in Kamarunnissa v Union of India[16], in whichit was held:

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“13. In case of a person in custody a detention order can validlybe passed (1) if the authority passing the order is aware of thefact that he is actually in custody; (2) if he has reason believe onthe basis of reliable material placed before him (a) that there is areal possibility of his being released on bail, and (b) that on being G

13 “RTI”14 (1978) 2 SCC 50815 (2015) 13 SCC 72216 (1991) 1 SCC 128 [Also followed in Champion R Sangma v State of Meghalaya(2015) 16 SCC 253.]

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Aso released he would in all probability indulge in prejudicial activityand (3) if it is felt essential to detain him to prevent him from sodoing.”

IV Adequate measures and remedies were available underordinary law and hence there was no necessity to issueBan order of preventive detention; VThe detention order dated 25 October 2018 wasconfirmed under Section 3(2) after a delay of eight days;and

VII The appellant was arrested in Crime no 178 of 2018Cand was granted statutory bail under Section 167 CrPCon 26 October 2018. The order of detention was servedon the appellant while he was in custody. The appellantwas in custody until 27 February 2019 when an interimorder of release was passed, which continued to remainDin force until the High Court dismissed the petition on13 June 2019. Aggrieved by the order of the High Court,the appellant moved the Vacation Bench of this Courtwhich adjourned the proceedings on 25 June 2019. TheSpecial Leave Petition was listed on 1 July 2019 whena notice was issued returnable in two weeks. TheEproceedings were listed on various dates and argumentswere heard for final disposal.

10. On the other hand, Ms Bina Madhavan, learned Counselappearing on behalf of the State of Telangana submitted thus:

(i) In ordinary circumstances, the courts do not interfere withFthe subjective satisfaction of the detaining authority. Reliancehas been placed upon the decision of this Court inSubramanian v State of T N[17];

(ii) A single offence can legitimately form the subject matterof an order of detention;G

(iii) The order of detention dated 25 October 2018 was approvedon 2 November 2018 as stipulated under Section 3(3) ofthe Telangana Offenders Act 1986. Accordingly, there wasno delay in confirming the order; H17 (2012) 4 SCC 699

(iv) The order of the Advisory Board was duly passed on 12ADecember 2018, and the State Government confirmed thedetention on 28 December 2018;

(v) The reference to the antecedent criminal cases in the orderof detention was only to indicate the background of theappellant who had been implicated in the past in severalBcases involving rioting of a communal nature; and

(vi) The appellant was implicated in a case involving the brutalmurder of a person who had married his former wife and,having regard to the nature of the offence, it was open tothe detaining authority to arrive at the satisfaction that therewas a real possibility of the appellant indulging in prejudicialactivity if he were to be released on bail.

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11. The rival submissions fall for consideration.

12. The expression “goonda” is defined in the Telangana OffendersAct 1986 in the following terms:

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“(g) “goonda” means a person, who either by himself or as amember of or leader of a gang, habitually commits, or attempts tocommit or abets the commission of offences punishable underChapter XVI or Chapter XVII or Chapter XXII of the IndianPenal Code”

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Section 3 contains the power to make orders of preventivedetention:

“3. (1) The Government may, if satisfied with respect to any boot-legger, dacoit, drug-offender, goonda, immoral traffic offender[Land-Grabber, Spurious Seed Offender, Insecticide Offender,Fertilizer Offender, Food Adulteration Offender, Fake DocumentOffender, Scheduled Commodities Offender, Forest Offender,Gaming Offender, Sexual Offender, Explosive SubstancesOffender, Arms Offender, Cyber Crime Offender and White Collaror Financial Offender] that with a view to preventing him fromacting in any manner prejudicial to the maintenance of public order,it is necessary so to do, make an order directing that such personbe detained.

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(2) If, having regard to the circumstances prevailing or likely toprevail in any area within the local limits of the jurisdiction of a H

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District Magistrate or a Commissioner of Police, the Governmentare satisfied that it is necessary so to do, they may, by order inwriting, direct that during such period as may be specified in theorder, such District Magistrate or Commissioner of Police mayalso, if satisfied as provided in sub-section (1), exercise the powersconferred by the said sub-section:

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Provided that the period specified in the order made by theGovernment under this sub-section shall not in the first instance,exceed three months, but the Government may, if satisfied asaforesaid that it is necessary so to do, amend such order to extendsuch period from time to time by any period not exceeding threemonths at any one time.

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(3) When any order is made under this section by an officermentioned in sub-section (2), he shall forthwith report the fact tothe Government together with the grounds on which the orderhas been made and such other particulars as in his opinion, have abearing on the matter, and no such order shall remain in force formore than twelve days after the making thereof, unless, in themean time, it has been approved by the Government.”

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Section 11 deals with the procedure before the Advisory Board:

E“11. (1) The Advisory Board shall, after considering the materialsplaced before it and, after calling for such further information asit may deem necessary from the Government or from any personcalled for the purpose through the Government or from the personconcerned, and if, in any particular case, the Advisory Boardconsiders it essential so to do or if the person concerned desiresFto be heard, after hearing him in person, submit its report to theGovernment within seven weeks from the date of detention ofthe person concerned.

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(2) The report of the Advisory Board shall specify in a separatepart thereof the opinion of the Advisory Board as to whether ornot there is sufficient cause for the detention of the personconcerned.

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(3) When there is a difference of opinion among the membersforming the Advisory Board, the opinion of the majority of suchmembers shall be deemed to be the opinion of the Board.

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(4) The proceedings of the Advisory Board and its report,excepting that part of the report in which the opinion of theAdvisory Board is specified, shall be confidential.

(5) Nothing in this section shall entitle any person against whom adetention order has been made to appear by any legal practitionerin any matter connected with the reference to the Advisory Board.”

Section 12 provides for the action to be taken on the receipt of thereport of the Advisory Board:

“12. (1) In any case where the Advisory Board has reported thatthere is, in its opinion, sufficient cause for the detention of a person,the Government may confirm the detention order and continuethe detention of the person concerned for such period, notexceeding the maximum period specified in section 13 as theythink fit.

(2) In any case, where the Advisory Board has reported that thereis, in its opinion, no sufficient cause for the detention of the personconcerned, the Government shall revoke the detention order andcause the person to be released forthwith.”

Section 13 provides for the maximum period of detention:

“13. The maximum period for which any person may be detained,in pursuance of any detention order made under this Act whichhas been confirmed under section 12, shall be twelve months fromthe date of detention.”

13. The order of detention in the present case contains a referenceto fourteen cases which were instituted against the appellant between2007 and 2016. The chart provided on behalf of the State Governmentwhich has been extracted earlier indicates that out of the fourteen cases,five cases which pertain to 2012 were transferred to the SIT forinvestigation; there being no change in that position. Four cases pertainingto 2007 are pending trial. The appellant has been acquitted in four casesof 2009, 2011, and 2012. The case of 2016 was compromised in a LokAdalat on 8 September 2017.

14. In Sama Aruna v State of Telangana[18], this Court whileconstruing the provisions of the Telangana Offenders Act 1986 held:

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A“16. Obviously, therefore, the power to detain, under the 1986Act can be exercised only for preventing a person from engagingin, or pursuing or taking some action which adversely affects or islikely to affect adversely the maintenance of public order; or forpreventing him from making preparations for engaging in suchactivities. There is little doubt that the conduct or activitiesBof the detenu in the past must be taken into account forcoming to the conclusion that he is going to engage in ormake preparations for engaging in such activities, for manysuch persons follow a pattern of criminal activities. But thequestion is how far back? There is no doubt that onlyCactivities so far back can be considered as furnish a causefor preventive detention in the present. That is, only thoseactivities so far back in the past which lead to the conclusionthat he is likely to engage in or prepare to engage in suchactivities in the immediate future can be taken into account.In Golam Hussain v. State of W.B. [Golam Hussain v. State ofDW.B., (1974) 4 SCC 530 : 1974 SCC (Cri) 566] this Court observedas follows: (SCC p. 535, para 5)

“5. No authority, acting rationally, can be satisfied,subjectively or otherwise, of future mischief merely because longago the detenu had done something evil. To rule otherwise is toEsanction a simulacrum of a statutory requirement. But nomechanical test by counting the months of the interval is sound. Itall depends on the nature of the acts relied on, grave and determinedor less serious and corrigible, on the length of the gap, short orlong, on the reason for the delay in taking preventive action, likeFinformation of participation being available only in the course ofan investigation. We have to investigate whether the causalconnection has been broken in the circumstances of each case.”

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Suffice it to say that in any case, incidents which are said tohave taken place nine to fourteen years earlier, cannot formGthe basis for being satisfied in the present that the detenuis going to engage in, or make preparation for engaging insuch activities.”

In the facts of that case, the Court held that the order of detentionHwas passed on stale grounds, which could not have been considered as relevant for arriving at the subjective satisfaction that the detenu mustbe detained. This Court held thus:

“17. The detention order must be based on a reasonableprognosis of the future behaviour of a person based on hispast conduct in light of the surrounding circumstances. Thelive and proximate link that must exist between the pastconduct of a person and the imperative need to detain himmust be taken to have been snapped in this case. A detentionorder which is founded on stale incidents, must be regarded as anorder of punishment for a crime, passed without a trial, thoughpurporting to be an order of preventive detention. The essentialconcept of preventive detention is that the detention of aperson is not to punish him for something he has done butto prevent him from doing it. See G. Reddeiah v. State of A.P.[G. Reddeiah v. State of A.P., (2012) 2 SCC 389 : (2012) 1 SCC(Cri) 881] and P.U. Iqbal v. Union of India [P.U. Iqbal v. Unionof India, (1992) 1 SCC 434 : 1992 SCC (Cri) 184].

15. In the present case, the order of detention states that thefourteen cases were referred to demonstrate the “antecedent criminalhistory and conduct of the appellant”. The order of detention recordsthat a “rowdy sheet” is being maintained at PS Rain Bazar of HyderabadCity and the appellant “could not mend his criminal way of life” andcontinued to indulge in similar offences after being released on bail. Inthe counter affidavit filed before the High Court, the detaining authorityrecorded that these cases were “referred by way of his criminalbackground… (and) are not relied upon”. The detaining authority statedthat the cases which were registered against the appellant between 2009and 2016 “are not at all considered for passing the detention order” andwere “referred by way of his criminal background only”. This avermentis plainly contradictory. The order of detention does, as a matter of fact,refer to the criminal cases which were instituted between 2007 and2016. In order to overcome the objection that these cases are stale anddo not provide a live link with the order of detention, it was contendedthat they were not relied on but were referred to only to indicate theantecedent background of the detenu. If the pending cases were notconsidered for passing the order of detention, it defies logic as to whythey were referred to in the first place in the order of detention. The A

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Apurpose of the Telangana Offenders Act 1986 is to prevent any personfrom acting in a manner prejudicial to the maintenance of public order.For this purpose, Section 3 prescribes that the detaining authority mustbe satisfied that the person to be detained is likely to indulge in illegalactivities in the future and act in a manner prejudicial to the maintenanceof public order. The satisfaction to be arrived at by the detaining authorityBmust not be based on irrelevant or invalid grounds. It must be arrived aton the basis of relevant material; material which is not stale and has alive link with the satisfaction of the detaining authority. The order ofdetention may refer to the previous criminal antecedents only if theyhave a direct nexus or link with the immediate need to detain an individual.CIf the previous criminal activities of the appellant could indicate histendency or inclination to act in a manner prejudicial to the maintenanceof public order, then it may have a bearing on the subjective satisfactionof the detaining authority. However, in the absence of a clear indicationof a causal connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to theDdetaining authority to simply refer to stale incidents and hold them as thebasis of an order of detention. Such stale material will have no bearingon the probability of the detenu engaging in prejudicial activities in thefuture.

16. Apart from the above position, Section 12 of the TelanganaEOffenders Act 1986 provides that the government, upon the report ofthe Advisory Board stating that there is sufficient cause for the detentionof a person, mayconfirm the order of detention and continue the detentionfor such period not exceeding the maximum period specified in Section13 “as they think fit”. Consequently, under Section 12, the governmentFhas the discretion whether or not to confirm the detention upon receiptof the report of the Advisory Board recording sufficient cause fordetention. The relevance of the action of the government upon the reportof the Advisory Board has been discussed in a three-judge Bench decisionof this Court in Shibapada Mukherjee v State of W B[19], where asimilarly worded Section 12 of the West Bengal (Prevention of ViolentGActivities) Act 1970 was discussed. Justice J M Shelat speaking for theBench held thus:

“6. Section 10 of the present Act requires the State Governmentto refer the case to the Board within 30 days from the date of H19 (1974) 3 SCC 50

detention, and Section 11 requires the Board to submit its reportwithin ten weeks from such date. The reason for prescribingthese periods is obvious, that is to enable the StateGovernment to decide, in the event of the Board reportingthat there is sufficient cause for detention to confirm thedetention order and to continue the detention thereunder“for such period as it thinks fit”. [Section 12(1).] Thesignificant words in Section 12 are the words “confirm” thedetention order and “continue” the detention thereunder,“for such period as” the State Government thinks fit. Theorder passed or the decision made under Section 12(1) bythe State Government, thus, falls into two parts: (a)confirming the detention order upon the report of the Boardas to the sufficiency of the cause for detention, and (b)deciding to continue the detention under that order... If onreceipt of the Advisory Board’s report, Government wantsto continue the detention for a further period, it has got tomake an order or a decision to confirm that order andcontinue the detention, for without such an order or decisionthe detention would not validly subsist beyond the periodof three months. Though, therefore, Section 12 does not inexpress terms lay down that the decision to confirm the detentionorder and to continue thereunder the detention is to be made beforethe expiry of three months, such a time-limit is implicit in the section.The reason is plain. As aforesaid, Government cannot keep aperson under detention for a day longer than three monthsif the report of the Board does not justify the detention.The continuation of detention beyond three months can onlybe made upon the Government obtaining a report showingsufficiency of cause before the expiry of the period of threemonths... If there is no such decision to confirm the order and tocontinue the detention thereunder, detention has to come to anend on the expiry of three months from the date of detention.Such an order or decision has therefore, to be made before theperiod of three months, for without such an order the detentionwould otherwise cease to be valid.”

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A17. In the present case, the detenu was in detention between 25October 2018 until 27 February 2019. The brother of the detenu submittedan RTI application to the Superintendent, Central Prison Cherlapalli. Thequery and the response provided are in the following terms:

S No Particulars Information Provided B1While my brother was in detention under the This institution has not received any detention order dated 25-10-2018 till 28-02-Confirmation or Revocation order 2019, did the Prison authorities received any pertaining to the Detenu Prisoner confirmation/ revocation of the detention No.723, Khaja Bilal Ahmed, S/o order by the Government u/s 12 of the “1986 Khaja Hassan, from the date of Act” pursuant to appearance before the production of said detenu prisoner CAdvisory Board on 03-11-2018? before the Advisory Board of Preventive Detention to the date of release of the said detenu from this institution, viz., from 03-12-2019 to 28-02-2019. 2If any such confirmation/ revocation was Since no such Confirmation or Dreceived in the case of Khaja Bilal Ahmed, Revocation order pertaining to the Detenu no 723, was a copy of the same Detenu Prisoner no 723, Khaja Bilal served to him? Ahmed, S/o Khaja Hassan, was received in this institution, a copy of the order was not served to the said Edetenu prisoner.

18. The order of confirmation purported to have been passed bythe State Government was annexed for the first time on 30 September2019 to the additional counter affidavit filed in the proceedings beforethis Court by the Commissioner of Police, Rachakonda. The said orderFcontains the following endorsement:

“The Superintendent of Jails, Central Prison, Cheriapally, Medhal-Malajgiri Dist. (he should serve the Order on the detenuimmediately under proper dated acknowledgment andarrange to read over and explain the contents of the same in theGlanguage known to the detenu and report compliance to theGovernment forthwith).”

19. The order of confirmation found no mention either during theHproceedings before the High Court or in the first counter affidavit which was filed before this Court on 18 July 2019. The record indicates that noorder of confirmation was served on the detenu between 28 December2018 (the date on which it was purportedly passed) till the detenucontinued to be in detention until 27 February 2019. The manner in whichthe order has surfaced, for the first time, in an additional counter affidavitfiled before this Court casts serious doubt on whether such an orderwas at all in existence on the relevant date.

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20. The detention order dated 25 October 2018 has to be setaside on the following grounds: (i) reference to stale and irrelevant groundsin the detention order by the detaining authority; and (ii) the manner inwhich the order of confirmation dated 28 December 2018 was presentedbefore this Court, casts doubt on the existence of the order of confirmationin the first place. As regards the registration of Crime no 178 of 2018,the appellant was released on bail consequent upon the failure of theinvestigating authority to file a charge-sheet within ninety days. A charge-sheet, as has been pointed earlier, has not been filed till date. There wasno reasonable basis on which the detaining authority could have come toa conclusion that:

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(i) On being released on bail, the appellant would in allprobability indulge in prejudicial activity; and

(ii) It was necessary to detain him, to prevent him fromengaging in prejudicial activity. (See in this contextEKamarunnissa v Union of India[20]).

21. We accordingly allow the appeal and set aside the impugnedjudgment and order of the High Court dated 13 June 2019. The order ofdetention accordingly stands quashed.

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22. Pending application(s), if any, shall stands disposed of.

Nidhi Jain

Appeal allowed.

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20 (1991) 1 SCC 128

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