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TMI Blog2019 (12) TMI 1548X X X X Extracts X X X X X X X X Extracts X X X X ..... Police, Rachakonda, Commissionerate and contained the following recitals: WHEREAS, information has been placed before me that the offender Khaja Bilal Ahmed, S/o Khaja Hassan, age 41 yrs. Occ Business, Charminar, Hyderabad is a "Goonda" and has been habitually and continuously engaging himself in unlawful acts and indulging in the acts of goondaism by acting as a leader/member of criminal gang and committed gruesome and heinous offences like Murder/Attempt to Murder/Rioting/Criminal trespass and Assault on Public Servants in the Police Station limits of Hyderabad City and Rachakonda Commissionerate and thereby caused harm, panic and terror among the innocent general public of the area and on account of his criminal activities, his presence in the locality is adversely affecting the public order and thus he has acting in a manner prejudicial to maintenance of public order apart from disturbing the peace, tranquility, social harmony in the society. The order then sets out a reference to fourteen cases which were registered against the Appellant under various heads of crime within the limits of Hyderabad City. These cases were registered between 2007 and 2016. One of the cases agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 on the ground that the investigating agency had failed to complete the investigation within the period allowed by the proviso to Section 167(2) of the Code of Criminal Procedure 1973 [CrPC]. On 26 October 2018, when bail was granted by the 14th Additional Metropolitan Magistrate in Crime No. 178 of 2018, an order of detention dated 25 October 2018 is stated to have been served 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 Writ Petition [Writ petition No. 41187 of 2018] challenging the order of detention on the ground that it had not been confirmed within twelve days as contemplated Under Section 3(3) of the Telangana Offenders Act 1986. On 2 November 2018, a copy of the order of the State government confirming the order of detention was served on the Appellant. On 30 November 2018, a petition [Writ petition No. 43814 of 2018] seeking a writ of habeas corpus was instituted by the brother of the Appellant before the High Court challenging the order of detention dated 25 October 2018 and the order of the State government dated 2 November 2018 confirming the detention. 5. On an interlocutory application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, 148, 324, 307, 427, 506 r/w 149 of Indian Penal Code & Section 27 of Indian Arms Act Acquitted CASE WHICH IS COMPROMISED: S. No. CASE NO UNDER SECTION CURRENT STATUS 14 272/2016 341 and 323 of Indian Penal Code Compromised in Lok Adalat vide order dated 08.09.2017 7. During the course of the proceedings before the High Court, a counter affidavit was filed by the Commissioner of Police stating that: 4.... the records revealed that the since 2009 to 2016 as many as (15) cases were registered against the detenu, for engaging himself in unlawful and dangerous activities. Among them (4) cases were in acquittal. The said cases are referred by way of his criminal background that the same are not relied upon. In the recent past during the year 2018 the detenu was involved in Cr. No. 178/2018, Under Sections 374, 302, 120-B, 506 r/w 34 Indian Penal Code, Abdullapurmet P.S. of Rachakonda Police Commissionerate., wherein the detenu and his associates kidnapped the deceased to an isolated area of Majeedpur village in the limits of Abdullapumet P.S., and stabbed him to death brutally, thereby created terror and a feeling of insecurity in the minds of general public, apart from di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Appellant by Mr. Sidharth Luthra, learned Senior Counsel: I. The grounds relied upon by the Commissioner of the Police, Rachakonda Commissionerate in the detention order dated 25 October 2018 are stale and have no proximate or live link between the antecedent activities and the detention order as they are of the years 2007 and 2012 except for Crime No. 178 of 2018: (i) The order of detention mentioned fifteen cases, but reliance is placed only on a single case bearing Crime No. 178 of 2018 for crimes Under Sections 302 and 364; (ii) Out of the fifteen cases, the detenu has been acquitted in six cases; eight cases are pending trial out of which four cases date back to 2007, and four to 2012 and only Crime No. 178 of 2018 Under Sections 302 and 364 is pending investigation; (iii) Until date no charge-sheet has been filed in Crime No. 178 of 2018 dated 3 June 2018; (iv) By the admission of the Respondents, the order of detention has been passed on one solitary case; and (v) In support of the submission that the order of detention was invalid, reliance has been placed on the decisions of this Court in Sama Aruna v. State of Telangana (2018) 12 SCC 150, Lakshman Khatik v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. IV. Adequate measures and remedies were available under ordinary law and hence there was no necessity to issue an order of preventive detention; V. The detention order dated 25 October 2018 was confirmed Under Section 3(2) after a delay of eight days; and VII. The Appellant was arrested in Crime No. 178 of 2018 and was granted statutory bail Under Section 167 Code of Criminal Procedure on 26 October 2018. The order of detention was served on the Appellant while he was in custody. The Appellant was in custody until 27 February 2019 when an interim order of release was passed, which continued to remain in force until the High Court dismissed the petition on 13 June 2019. Aggrieved by the order of the High Court, the Appellant moved the Vacation Bench of this Court which adjourned the proceedings on 25 June 2019. The Special Leave Petition was listed on 1 July 2019 when a notice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollar or Financial Offender] that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. (2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Government are satisfied that it is necessary so to do, they may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in Sub-section (1), exercise the powers conferred by the said Sub-section: Provided that the period specified in the order made by the Government under this Sub-section shall not in the first instance, exceed three months, but the Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. (3) When any order is made under this Section by an officer mentioned in Sub-section (2), he shall forthwith report the fact to the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed Under Section 12, shall be twelve months from the date of detention. 13. The order of detention in the present case contains a reference to fourteen cases which were instituted against the Appellant between 2007 and 2016. The chart provided on behalf of the State Government which has been extracted earlier indicates that out of the fourteen cases, five cases which pertain to 2012 were transferred to the SIT for investigation; there being no change in that position. Four cases pertaining to 2007 are pending trial. The Appellant has been acquitted in four cases of 2009, 2011, and 2012. The case of 2016 was compromised in a Lok Adalat on 8 September 2017. 14. In Sama Aruna v. State of Telangana (2018) 12 SCC 150, this Court while construing the provisions of the Telangana Offenders Act 1986 held: 16. Obviously, therefore, the power to detain, under the 1986 Act can be exercised only for preventing a person from engaging in, or pursuing or taking some action which adversely affects or is likely to affect adversely the maintenance of public order; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to 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. Union of India (1992) 1 SCC 434 : 1992 SCC (Cri.) 184]. (Emphasis supplied) 15. In the present case, the order of detention states that the fourteen cases were referred to demonstrate the "antecedent criminal history and conduct of the Appellant". The order of detention records that a "rowdy sheet" is being maintained at PS Rain Bazar of Hyderabad City and the Appellant "could not mend his criminal way of life" and continued to indulge in similar offences after being released on bail. In the counter affidavit filed before the High Court, the detaining authority recorded that these cases were "referred by way of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Telangana Offenders Act 1986 provides that the government, upon the report of the Advisory Board stating that there is sufficient cause for the detention of a person, may confirm the order of detention and continue the detention for such period not exceeding the maximum period specified in Section 13 "as they think fit". Consequently, Under Section 12, the government has the discretion whether or not to confirm the detention upon receipt of the report of the Advisory Board recording sufficient cause for detention. The relevance of the action of the government upon the report of the Advisory Board has been discussed in a three-judge Bench decision of this Court in Shibapada Mukherjee v. State of WB (1974) 3 SCC 50, where a similarly worded Section 12 of the West Bengal (Prevention of Violent Activities) Act 1970 was discussed. Justice J M Shelat speaking for the Bench held thus: 6. Section 10 of the present Act requires the State Government to refer the case to the Board within 30 days from the date of detention, and Section 11 requires the Board to submit its report within ten weeks from such date. The reason for prescribing these periods is obvious, that is to enable the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19, did the Prison authorities received a n y confirmation/revocation of the detention order by the Government Under Section 12 of the "1986 Act" pursuant to appearance before the Advisory Board on 03-11-2018? This institution has not received any Confirmation or Revocation order pertaining to the Detenu Prisoner No. 723, Khaja Bilal Ahmed, S/o Khaja Hassan, from the date of production of said detenu prisoner 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. 2 If any such confirmation/revocation was received in the case of KhajaBilal Ahmed, Detenu No. 723, was a copy of the same served to him? Since no such Confirmation or Revocation order pertaining to the Detenu Prisoner No. 723, Khaja Bilal Ahmed, S/o Khaja Hassan, was received in this institution, a copy of the order was not served to the said detenu prisoner. 18. The order of confirmation purported to have been passed by the State Government was annexed for the first time on 30 September 2019 to the additional counter affidavit filed in the proceedings before this Court by the Commissioner of Police, Rachakonda. The said ..... 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