Andhra Pradesh High Court - Amravati
P Khadeer Khatun vs The State Of Ap on 26 September, 2023
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
AND
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No.10323 of 2023
ORDER:(Per Hon'ble Sri Justice Tarlada Rajasekhar Rao) The present Writ of habeas corpus is filed to produce the detenu by name Pathan Imran Khan S/o. Late Nazeer before this court, on such production, that the detenu may be ordered to be released forthwith by declaring the detention order dated 28.11.2022 and the confirmation order dated 27.01.2023 as illegal and unconstitutional.
2. The District Collector/Magistrate vide proceedings dated 28.11.2022, on the recommendation of the Sponsoring Authority i.e. 3rd respondent herein, has exercised the jurisdiction under Section 3(1) and (2) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (hereinafter called "the Act"), has passed the detention order as the detenue was involved in as many as 17 crimes, which are referred hereunder:
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1) Cr.No.40/2014 u/s 457, 380 IPC of Kurnool II Town Police Station.
2) Cr.No.310/2015 u/s 257, 380 IPC of Kurnool III Town Police Station.
3) Cr.No.33/2016 u/s 454, 380 IPC of Ulindakonda Police Station.
4) Cr.No.113/2016 u/s 392 IPC of Ulindakonda Police Station.
5) Cr.No.190/2016 u/s 395 IPC of Ulindakonda Police Station.
6) Cr.No.452/2016 u/s 392 IPC of Ulindakonda Police Station.
7) Cr.No.310/2016 u/s 394 IPC of Kurnool Urban Police Station.
8) Cr.No.431/2017 u/s 20(i)(b)(b) r/w 8(c) of NDPS Act of Kurnool IV Town Police Station.
9) Cr.No.346/2018 u/s 324 IPC of Kurnool IV Town Police Station.
10) Cr.No.410/2019 u/s 506 r/w 34 IPC and Section 3 (1) (X) of S.C.s and S.T.s (PoA) Act, 1989, of Kurnool Police Station.
11) Cr.No.418/2019 u/s 457, 380 IPC of Kurnool IV Town Police Station.
12) Cr.No.6/2020 u/s 379 IPC of Kurnool IV Town Police Station.
13) Cr.No.642/2020 u/s 307 IPC of Kurnool IV Town Police Station.
14) Cr.No.1/2020 u/s 457, 380 IPC of Kurnool III Town Police Station.
15) Cr.No.119/2022 u/s 160 IPC of Kurnool IV Town Police Station.
16) Cr.No.103/2022 u/s 7 A r/w 8 (e) of the Andhra Pradesh Prohibition Act, 1995 of Kurnool III town Police Station.
17) Cr.No.369/2022 u/s 20 (p) (1) r/w 8 (c) NDPS Act of Kurnool IV Town Police Station.3
3. In the detention order it is stated that the detenu indulged himself unabatedly in Bootlegger activities under Section 2(b), Dacoit activities under Section 2 (c) and Goonda activities under Section 2(g) and his activities are prejudicially affecting the maintenance of public order. Out of 17 crimes, 14 crimes are pertaining to Chapter XVI and XVII of the Indian Penal Code, 2 crimes are relating to Narcotic Drugs and Psychotropic Substances Act, 1985 and 1 crime is relating to Andhra Pradesh Prohibition Act, 1995. The activities in which the detenu has been engaged, causing disturbance to public life, peace and tranquility and therefore on arrival of the satisfaction, the District Collector has passed the said detention Order.
4. Aggrieved by the said detention order dated 28.11.2022, the present Writ Petition came to be filed by the mother of the detenu.
5. Heard learned counsel for the petitioner and Sri Syed Khadir Masthan, learned Assistant Government Pleader attached to the office of learned Additional Advocate General, appearing for respondents.
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6. The detention order dated 28.11.2022 was assailed in the present Writ Petition on the ground that invoking of the provisions of the Act are completely unnecessary. In all the cases, the detenu was granted bail and the sponsoring authority deliberately suppressed the information relating to the grant of bails by the concerned Courts and failure of the sponsoring authority to place the information before the detaining authority vitiates the entire order of preventive detention. Therefore, due to non furnishing of the bail orders and other material to the detenu, he lost an opportunity to submit an effective representation before the authorities as prescribed under the Act, namely the Detaining Authority, Advisory Board and to the Government. If the same were placed before the Detaining Authority, the Detaining Authority would have taken a different stand. Non placing of the bail orders would vitiate the detention order and it is in violation of Article 22 clause (5) of the Constitution of India and he has not committed any offences and the detention order was passed on the basis of the statements made by some unknown persons who are not even known to him.
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7. Learned counsel for the petitioner has relied on the order of this Court in W.P. No.9555 of 2023 dated 17.07.2023 for the proposition that mere pendency of crimes cannot be a ground for detaining the detenu or to record satisfaction by the detaining authority. He also relied on another order in W.P. No.12946 of 2022 dated 01.08.2022 for the proposition that the authorities are required to be highly careful and cautious and such power conferred by the statute cannot be exercised in a routine and mechanical manner.
8. Learned counsel for the respondents would contend that the petitioner is involved in as many as 17 crimes and the detaining authority has rightly arrived at his satisfaction after considering the material placed before him and the acts committed by the detenu are highly dangerous and affects the maintenance of the public order, peace and tranquility as contemplated under Section 2 of the Act. He also contended that the detenu has been engaging in dangerous activities and causing disturbance to public life, peace and tranquility. The detenu is convicted with imprisonment and fine in 1 case, acquitted in 9 cases, 4 cases are pending trial and 3 other 6 cases are under investigation and his activities are highly dangerous. Therefore, prayed to dismiss the Writ Petition.
9. On perusal of the detention order as well as grounds of detention order and the counter affidavit filed by the detaining authority, it appears that the detaining authority has picked up old and stale incidents and those incidents are taken as basis to pass an order of detention under Section 3(2) of the Act.
10. The Apex Court was pleased to quash detention order observing that it is not open to the Detaining Authority to pick up old and stale incidents to pass an order of detention under Section 3 (2) of the Act, nor it is open to the detaining authority to contend that it has been mentioned only to show that the detenu has a tendency to create problems resulting in disturbance to public order and this Court is fortified with the following judgments on the above said proposition of law.
11. In recent judgment in Mallada K Sri Ram Vs. State of Telangana1 : while referring to its earlier decisions in Banka Sneha Sheela's case2 it is held as follows:
1 2022 SCC OnLine SC 424 7 In Mallada K. Sri Ram referred supra: the Apex Court was pleased to quash detention order as it is not open to the Detaining Authority to pick up an old and stale incident and hold it as the basis of an order of detention under Section 3(2) of the Act. Nor it is open to the detaining authority to contend that it has been mentioned only to show that the detenu has a tendency to create problems resulting in disturbance to public order, for as a matter of fact it has been mentioned as a ground of detention that said detention order was passed nearly 7 months after the 1st FIR and 5 months after the 2nd FIR, and was therefore based on stale material and demonstrated as non-application of mind.
12. In the case on hand, the detenu was detained as he was indulged in 17 cases. The first crime was registered as Crime No 40/2014 on 24.01.2014 and the 17th crime was registered as crime no.369/2022 on 25.07.2022. The detention order was passed almost after 9 years from the registration of 1st crime in the year 2014. The order of detentions is passed after four months from the last crime which is registered on 25.07.2022. It is not open to the Detaining Authority to pick up an old and stale incident and hold it as the basis to pass an order of detention under S 3(2) of the Act. In this case, the 2 (2021) 9 SCC 415) 8 apprehension of a disturbance to public order owing to a crime that was reported over four months prior to the detention order has no basis in fact. Hence the above judgment is squarely applicable to the facts of this case. The detention order dated 28.11.2022 is liable to be quashed.
13. In Shalini Soni v. Union of India3, Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta, Commr. of Police4, and in Jagan Nath Biswas v. State of W.B.5, the Hon'ble Supreme Court quashed the detention order holding that the incidents themselves look rather serious but also stale, having regard to the long gap between the occurrences and the order of detention. One should have expected some proximity in time to provide a rational nexus between the incidents relied on and the satisfaction arrived at." This Court has repeatedly pointed out that unexplained and long delay will be fatal to the plea of subjective satisfaction.
14. In Mohd. Sahabuddin v. Distt. Magistrate, 24 Parganas6, the Hon'ble Supeme Court quashed the order of preventive detention on the sole ground that the order of preventive 3 (1980) 4 SCC 544 = AIR 1981 SC 431 4 (1995) 3 SCC 237 5 (1975) 4 SCC 115 6 (1975) 4 SCC 114 9 detention was passed nearly seven months after the criminal incident. Subjective satisfaction has no proximate rational nexus with prejudicial act.
15. In view of the supra discussion, as the detention order was passed after long gap between the date of occurrence and the order of detention, it is liable to be set aside.
16. Resultantly, the Writ Petition is allowed and the detention order dated 28.11.2022 and the consequential confirmation order dated 27.01.2023 are hereby set aside. The respondents are hereby directed to set the detenu at liberty forthwith, if he is not required in any other cases. There shall be no order as to costs.
As a sequel, interlocutory applications, if any pending in this Writ Petition shall stand closed.
_______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY ________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 26.09.2023 Harin 10 THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY AND THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO 5 W.P.No. 10323 OF 2023 Date: 26.09.2023 Harin