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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 ..... ed to indulge in similar offences after being released on bail - The order of detention may refer to the previous criminal antecedents only if they have a direct nexus or link with the immediate need to detain an individual. If the previous criminal activities of the Appellant could indicate his tendency or inclination to act in a manner prejudicial to the maintenance of public order, then it may have a bearing on the subjective satisfaction of the detaining authority. However, in the absence of a clear indication of a causal connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future. The detention order dated 25 October 2018 has to be set aside on the following grounds: (i) reference to stale and irrelevant grounds in the detention order by the detaining authority; and (ii) the manner in which the order of confirmation dated 28 December 2018 was presented before this Court, casts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various heads of crime within the limits of Hyderabad City. These cases were registered between 2007 and 2016. One of the cases against the Appellant Under Sections 323 and 341 of the Indian Penal Code 1860 [IPC] is stated to have been compromised in a Lok Adalat; in four cases, the Appellant is stated to have been acquitted; five cases are stated to have been transferred to the Special Investigation Team [SIT] Hyderabad City for further investigation and four cases are pending trial. The order of detention states that: The above cases are referred as his antecedent, criminal history and conduct. Though, cases were registered, arrested by Police and a Rowdy sheet is being maintained at PS Rain Bazar of Hyderabad City, he could not mend his criminal way of life and continued to indulge in similar offences soon after coming out on bail. The order of detention thereafter proceeds to state that in 2018, the Appellant was implicated in Crime No. 178 of 2018 Under Sections 364, 302, 120B and 506 read with Section 34 of the Indian Penal Code at PS Abdullapurmet of Rachakonda Commissionerate which is under investigation. The dangerous activities of the offender and his assoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [IA 1 of 2019] filed in the Writ Petition, the High Court by an order dated 27 February 2019 issued a direction for the release of the Appellant from preventive detention on the condition that he would continue to abide by the terms imposed by the 14th Additional Metropolitan Magistrate for the grant of bail on 26 October 2018 in Crime No. 178 of 2018. By a judgment dated 13 June 2019, the High Court dismissed the Writ Petition challenging the order of detention, which gave rise to the proceedings before this Court Under Article 136 of the Constitution. 6. Before dealing with the rival submissions, it is necessary to set out the position of the fourteen criminal cases against the Appellant which have been adverted to in the order of detention. This has been summarised in a tabular chart which was submitted to this Court by Ms. Bina Madhavan, learned Counsel appearing on behalf of the State of Telangana. The chart is extracted below: S. No. CASE NO UNDER S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of ninety days. No charge-sheet has been filed till date. 9. In this backdrop, the following submissions have been urged on behalf 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 dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has 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 H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dulteration Offender, Fake Document Offender, Scheduled Commodities Offender, Forest Offender, Gaming Offender, Sexual Offender, Explosive Substances Offender, Arms Offender, Cyber Crime Offender and White Collar 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause 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 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. Obviousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on order must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future. 16. Apart from the above position, Section 12 of the 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 requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an RTI application to the Superintendent, Central Prison Cherlapalli. The query and the response provided are in the following terms: S. No. Particulars Information Provided 1 While my brother was in detention under the detention order dated 25-10- 2018 till 28-02-2019, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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