A. Raja Reddy Vs. the Collector and District Magistrate and ors. - Court Judgment

Excerpt:
- - 4. the first respondent, who is the then collector and district magistrate and who passed the impugned orders of detention, has filed his counter-affidavit stating that the entire relevant material was placed before him by the sponsoring authority who is the assistant superintendent of police, nirmal, and on the basis of such material made available before him, he was satisfied that the detenu is a 'goonda' and has been accustomed to commit various offences and act in a manner prejudicial to the maintenance of public order and that the orders of detention are, therefore, valid and legal. section 3(1) of the act authorises the detaining authority to pass orders of detention if it is satisfied that such detention orders are necessary with a view to prevent a goonda or persons of other categories enumerated therein, from acting in a manner prejudicial to the maintenance of public order. it is, therefore, to be seen whether such primary requirements for passing orders of detention are satisfied in the present case and whether the orders of dedtention can be said to be valid and legal in view of the facts and circumstances of the case. as per the proviso to sec3 of the act, the period specified in the orders of detention made by the government shall not in the first instance exceed three months even though the government may, if satisfied, subsequently amend such order to extend the period from time to time not exceeding three months at any one time.r. bayapu reddy, j.1. this writ of habeas corpus is filed by the petitioner who is the father of the detenu by name a, mallareddy r/o. madapur, nirmal mandal in adilabad district, for quashing the detention orders passed under the provisions of section 3(2) r/w. section 3(1) of a.p. prevention of dangerous activities of boot- leggers, dacoits, drug-offenders, gocndas, immoral traffic offenders and land grabbers act, 1986 (act 1 of 1986) (for short 'the act')-2. the collector and district magistrate, adilabad passed the impugned detention orders in rc.no. d3/1438/96, dated 5-8-1996 under section 3(2) r/w. section 3( 1) of the act, directing the detention of the detenu for a period of one year on the ground that he has been acting prejudicial to the maintenance of public order by 'committing offences under sections 2(a) and 2(g) of the act'. the order of detention was approved by the state government on 16-8-1996 and the detenu was arrested on 31-8-1996 and confined in the central prison, hyderabad. the said detention orders were passed on the basis of the material placed before the collector and district magistrate by the assistant superintendent of police, nirmal who is the sponsoring authority, the detention orders were passed on the ground that the detenu is a 'goonda' and is involved in committing various offences along with his associates and has been acting prejudicial to the maintenance of public order by committing such offences and as such, it is necessary to invoke the provisions of the act for detaining the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.3. the writ petition is filed seeking a writ of habeas corpus for producing the detenu in court and setting him at liberty after quashing the detraction orders contending that the orders of detention were passed in a mechanical manner without application of mind on irrelevant and non-existing grounds; that the sponsoring authority has not placed the relevant material before the detaining authority; that the detenu is not a 'goonda' and he is not acting in any manner prejudicial to the maintenance of public order and there was no material before the detaining authority to form such opinion that the detenu has been acting in a manner prejudicial to the maintenance of public order and that the orders of detention are invalid and illegal and are liable to be quashed.4. the first respondent, who is the then collector and district magistrate and who passed the impugned orders of detention, has filed his counter-affidavit stating that the entire relevant material was placed before him by the sponsoring authority who is the assistant superintendent of police, nirmal, and on the basis of such material made available before him, he was satisfied that the detenu is a 'goonda' and has been accustomed to commit various offences and act in a manner prejudicial to the maintenance of public order and that the orders of detention are, therefore, valid and legal.5. the point for consideration is whether the detention orders passed by the first respondent are not valid and legal and are liable to be quashed?6. it is seen from a perusal of the orders of detention and the grounds put forward by the first respondent for such detention, that the impugned detention orders were passed on the basis of the material said to have been supplied to him by the assistant superintendent of police, nirmal and on the ground that the detenu is a 'goonda' as defined in section 2(g) of the act and that he is acting in a manner prejudicial to the maintenance of public order as defined in section 2(a) of the act in order to appreciate the point in issue, it will be useful to refer to the relevant provisions of the act.7. section 2(a) of the act is as follows:-'2(a) 'acting in any manner prejudicial to the maintenance of public order' means when a boot-legger, a dacoit, a drug-offender, a goonda, an immoral traffic offender or a land-grabber is engaged or is making preparations for engaging in any of his activities as such, which affect adversely, or are likely to affect adversely the maintenance of public order: explanation:-for the purpose of this clause public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the genera! public or any section thereof or a grave or widespread danger to life or public health.'section 2(g) of the act which defines 'goonda' is as follows:-'(g) 'goonda' means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences punishable under chapter xvi or chapter xvii or chapter xxii of the indian penal code.'section 3(2) r/w. section 3(1) of the act authorises the detaining authority to pass orders of detention if it is satisfied that such detention orders are necessary with a view to prevent a goonda or persons of other categories enumerated therein, from acting in a manner prejudicial to the maintenance of public order. it is, therefore, to be seen whether such primary requirements for passing orders of detention are satisfied in the present case and whether the orders of dedtention can be said to be valid and legal in view of the facts and circumstances of the case.8. the detaining authority has alleged in the grounds of detention that the detenu and his associates are engaged in committing illegal activities and they are also involved in various offences, the particulars of which are enumerated in the grounds, that they are creating panic in the town by committing hazardous activities and that unless the detenu is detained under the provisions of the act, it is difficult for the police to maintain law and order. he has also enumerated six instances where the detenu and his associates are alleged to have been involved in the concerned criminal cases as per the information placed before him by the sponsoring authority. the first instance relates to the case in cr.no. 145 /93 of nirmal (t) police station for the offences under sections 302 and 120-b i.p.c. which is now pending trial before the sessions court at nizamabad. the second instance relates to the case in cr.no. 7/87 of soan police station for the alleged offences under sections 341, 323 and 506 i.p.c. it is now admitted that the detenu who was an accused in the said case was subsequently acquitted by the court as the of fence was compounded between the parties long prior to passing of the orders of detention. the third instance relates to two criminal cases. the first case refers to cr. no. 5/91 which is said to relate to an offence under explosive substances act, which is not an offence as contemplated under section 2(g) of the act in order to consider whether a person is a 'goonda' as defined therein. the second case refers to cr. no. 31 /92 of soan police station for the offences under sections 354, 307 and 448 r/w. sections 147 and 148 i.p.c. the present detenu is not an accused in the said two cases. the 4th instance relates to cr. no. 34/96 of soan police station for the offences under sections 448, 324, 290 r/w. sections 34 and 109 i.p.c. and the detenu is not an accused in that case also. the 5th instance relates to cr.no. 144/96 of nirmal (t) police station for the offences under sections 394(b) and 506 i.p.c. and section 7 of the criminal law amendment act and the detenu is said to be an accused in that case and the case is still pending before the court. the 6th instance relates to cr. no. 143/96 of nirmal (t) police station for the offences under section 290 and 506 i.p.c. and the detenu is not an accused in that case which is pending as c.c.441/96 on the file of the judicial first class magistrate, nirmal. it is clear from such circumstances revealed from the material on record that the detenu is an accused only in the cases in cr. no. 145/93 of nirmal (t) police station, cr. no. 7/87 of soan police station and cr.no. 144/96 of nirmal (t) police station and out of them, he is already acquitted in the case in cr.no. 7/87 of soan police station, though by compounding the offence. in the other cases he is not even an accused and some of those cases have already ended in acquittal after due trial.9. the detention orders under the act can be sustained only when it is established that the detenu is a 'goonda' as defined in section 2(g) of the act and when it is further proved that he is acting in a manner prejudicial to the maintenance of public order as contemplated in section 2(a) of the act. a person can be considered as a 'goonda' only when it is proved that either by himself or as a member of or leader of a gang, habitually commits or attempts to commit or abets the commission of offences punishable under chapter xvi or chapter xvii or chapter xxii of the indian penal code. the expression 'habitually' mentioned in section 2(g) of the act postulates a thread of continuity in the commission of offences repeatedly and persistently, and the alleged complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude that a particular person is a 'goonda' unless there is material suggesting his complicity in such cases which lead to a reasonable conclusion that he is an habitual criminal. in order to bring a person within the expression 'goonda' as defined in section 2(g) of the act, there should be positive material to indicate that such person is habitually committing or attempting to commit the offences punishable under chapter xvi, xvii or xxii of the indian penal code. the provisions of the act are intended to deal with such habitual criminals who are so hardened and incorrigible that the ordinary provisions of the penal laws and fear of punishment for crime are not sufficient deterrents for them. in the present case, as already stated above, out of the six instances cited in the grounds of detention, the detenu is not even an accused in three of those cases and out of the remaining three cases, he is already acquitted in one case while the other two cases alone are still pending trial before the courts. one of the cases, which is in cr. no. 5/91, does not even relate to any offence under chapter xvi, xvii or xxii as contemplated in section 2(g) of the act. under such circumstances, the detaining authority is not justified in forming the opinion that the detenu is to be considered as a 'goonda' as defined in section 2(g) of the act which is the primary requisite for resorting to the provisions of section 3(2) r/w. section 3(1) of the act to pass the orders of detention.10. it is not sufficient for passing the detention orders that the detenu is to be considered as a 'goonda'. it must further be established that he is engaged in committing activities in a manner prejudicial to the maintenance of public order as defined in section 2(a) of the act. in, the decision of the supreme court reported in mustakmiya jabbarmiya shaikh v. m.m. mehta, 1995 scc (crl.) 454 = 1995 (2) alt (crl.) 3 (d.n.) it is observed by their lordships:'in order to bring the activities of a person within the expression of 'acting in any manner prejudicial to the maintenance of public order', the fall out and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. it is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a breach of 'law and order' or it amounts to breach of 'public order'. if the activity falls within the category of disturbance of 'public order' then it becomes essential to treat such a criminal and deal with him differently than an ordinary criminal under the law as his activites would fall beyond the frontiers of law and order, disturbing the even tempo of life of the community of the specified locality.'in the case concerned in that decision, the detention orders were passed on the basis of five instances relating to different criminal cases in which the detenu was said to have been involved. their lordships referred to these particular instances one after another and observed that the criminal activities alleged in those cases were directed against particular individuals, and from the nature of such incidents alleged in those cases it is difficult to assume that they gave rise to public order disturbing the tranquility of the locality and that at the most they were only criminal acts directed against some of the individuals which have nothing to do with the question of public order. it is observed by their lordships in para-11 of the judgment:-'taking the aforesaid two incidents and the allegations on their face value as they are, it is difficult to comprehend that they were the incidents involving public order. they were incidents directed against single individuals having no adverse effects prejudicial to the maintenance of public order, disturbing the even tempo of life or the peace and tranquility of the loclaity. such casual and isolated incidents can hardly have any implications which may affect the even tempo of life or jeopardize the public order and incite people to make further breaches of the law and order which may result in subversion of the public order.'in the present case also, as already stated above, there are only three cases which are crime nos. 145/93 and 144/96 of nirmal (t) police station and cr. no. 7/87 of saon police station in which the detenu was an accused and out of which he was already acquitted though by compounding the offence in the case in cr. no. 7/87. the allegations made in those three cases against the accused reveal that the criminal activities attributed to them are directed only against particular individuals against whom the alleged offences ore said to have been committed, and such incidents directed against those particular individuals cannot be said to have any adverse affect prejudicial to the maintenance of public order disturbing the peace and tranquility of the locality. such stale and isolated incidents cannot be made a basis for the satisfaction of the detaining authority that the detenu is a habitual offender and his activities are resulting in disturbing the public peace and tranquility and are adversely affecting the maintenance of public order so as to sustain the orders of detention. therefore, the impugned orders of detention passed by the first respondent cannot be sustained.11. the main ground of attack made by the petitioner regarding the validity of the orders of detention is that the orders of detention were passed in a mechanical manner without application of mind and on irrelevant and non- existing grounds and he was not having sufficient and correct information before him for passing such orders and that the orders are therefore liable to be set aside. the contention of the learned counsel for the petitioner in this regard is that the orders of detention and the grounds of detention give the impression that the detaining authority was of the opinion that the detenu was involved as accused in all the criminal cases enumerated in the grounds and also such cases are still pending trial before the courts; that such information is, however, incorrect inasmuch as the detenu was not even an accused in most of those cases and some of those cases have already ended in acquittal and that it is, therefore, clear that the detaining authority had passed the detention orders in a mechanical manner without applying its mind and solely guided by the representations made by the sponsoring authority without having the correct picture about the various criminal cases in which the detenu is said to have been involved as an accused. it is now found, as already stated above, that the detenu is not even an accused in most of the cases enumerated in the grounds and the cases filed before the courts in some of those instances have already ended in acquittal. it is, therefore, evident that the detaining authority had no sufficient and correct information before it for passing the orders of detention after deriving the subjective satisfaction that the detenu is engaged in committing such activities so as to disturb public peace and tranquility and acting in a manner prejudicial to the maintenance of public order. the learned additional advocate general has, however, tried to contend on the basis of the averments made in the counter-affidavit filed by the first respondent that the first respondent was having correct information before him when the detention orders were passed; that it is not alleged in the grounds that the detenu was involved in all the criminal cases which are enumerated in the grounds and it is also not mentioned in the grounds that all the criminal cases are still pending before the courts and as such, it cannot be said that the detaining authority has passed the detention orders mechanically without application of mind and on the basis of incorrect and insufficient information. but such contention cannot be accepted as seen from a perusal of the grounds of detention, wherein it is specifically observed that as per the report of the assistant superintendent of police, nirmal, the detenu and his associates are involved in six criminal cases which are enumerated in the grounds. it is not mentioned in the grounds that the detenu is an accused in some of those criminal cases only and the grounds are also silent about the acquittals which had resulted in some of those criminal cases. therefore, the subsequent explanation sought to be given by the first respondent in his counter-affidavit and the contention of the learned additional advocate-general that correct and sufficient information was made available to the first respondent by the sponsoring authority and that the detention orders were passed only on the basis of such correct and complete information, cannot be accepted as there is no basis for such contention in the grounds of detention. it is evident from the grounds of detention that the first respondent was under the impression that the detenu was involved in all the six cases which are enumerated in the grounds and that such cases are still pending before the courts. the subjective satisfaction of the first respondent is, therefore, said to have been derived only on the basis of such incorrect and incomplete information made available to him by the sponsoring authority. if it is to be said that the correct and complete information was in fact made available to the first respondent by the sponsoring authority, it will then only mean that the first respondent did not in fact apply his mind to such information supplied to him before passing the orders of detention by coming to the opinion that the detenu is a 'goonda' as defined in section 2(g) of the act, that he has been acting in a manner prejudicial to the maintenance of public order and that he merely acted in a mechanical manner without applying his mind to the facts of the case and the information made available to him.12. in the case concerned in the decision of the supreme court reported in d.s. agarwal v. police commissioner, : 1989crilj1130 five criminal cases registered against the detenu in respect of which he was arrested, were taken into consideration as per the grounds of detention mentioned by the authority to draw his subjective satisfaction mat the detenu was disturbing the maintenance of public order. it was found that out of the said five cases, two cases were shown as pending trial even though the said cases had in fact ended in acquittal even prior to the passing of the orders of detention. their lordships, while dealing with the question of non-placing of material and vital fact of acquittal of the detenu in two of those cases before the detaining authority and the effect of such circumstances on the mind of the detaining authority before passing the detention orders, have observed as follows:-'the requisite subjective satisfaction the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weigh the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. it is clear to our mind that in the case on hand, at the time when the detaining authority passed the detention order this vital fact, namely, the acquittals of the detenu in cases numbers mentioned at s1. nos. 2 &3 have not been brought to his notice and on the other hand they were withheld and the detaining authority was given to understand that the trial of those cases was pending. the explanation given by the learned counsel for the respondents, as we have already pointed out, cannot be accepted for a moment. the result is that the non-placing of the material fact-namely, the acquittal of detenu in the above said two cases resulting in non-application of mind of the detaining authority to the said fact has vitiated the requisite subjective satisfaction, rendering the impugned detention order invalid.'the same view was expressed by the supreme court in another decision reported in ramesh v. state of gujarat, : air1989sc1881 in which the earlier above cited decision reported in d.s. agarwal v. police commissioner, : 1989crilj1130 was referred to and followed.13. in the present case also, the requisite subjective satisfaction of the first respondent the formation of which is condition precedent for passing of the detention orders; got vitiated inasmuch as the material and vital information regarding the non-involvement of the detenu as accused in some of those cases and the acquittal of the concerned accused in some other enumerated cases which would have bearing on the issue and weighed the satisfaction of the first respondent and influenced his mind, was either withheld or suppressed by the sponsoring authority or ignored and not considered by the first respondent before issuing the detention order. therefore, there is any amount of force and substance in the contention of the learned counsel for the petitioner that the detaining authority has passed the orders in a mechanical manner without actually applying its mind to the facts of the case and the material supplied to it in order to arrive at the requisite subjective satisfaction for passing the orders of detention. such orders cannot, therefore, be said to be valid and legal and cannot be sustained.14. it is further to be seen in this case that most of the instances relating to the criminal cases enumerated in the grounds are said to have occurred many years prior to the date of passing of the orders of detention. the criminal case referred as item-1 relates to the year 1993 while the second instance relates to the year 1987 and the two cases mentioned in item-3 relate to the years 1991 and 1992. the three criminal cases mentioned in items 4 to 6 alone relate to the year 1996 and out of them the detenu is not even an accused in the cases mentioned in items 4 and 6 as already stated above. in the case concerned in the above cited decision of the supreme court reported in mustakmiya jabbarmiya shaikh v. m.m. mehta (1 supra) the incidents alleged against the detenu were said to have taken place about one year four months prior to the passing of the detention orders. while referring to such delay in passing the detention orders and the effect of such delay, it is observed by their lordships that on account of such long lapse of time between the alleged prejudicial activity attributed to the detenu and the detention order, the detention order will lose its significance as the prejudicial conduct attributed to the detenu was not proximate in point of time and had no rational connection with the conclusion arrived at by the detaining authority that such detention was necessary for maintenance of public order. in the present case, the matter is still worse as the instances enumerated as items 1 to 3 relate to the period more than 3 to 9 years prior to the passing of the detention orders. in this view also the orders of detention cannot be sustained.15. it is further to be seen in this case that the detaining authority passed the detention orders directing the detenu to be detained for a period of one year under the provisions of the act. as per the provisions of sec3(2) r/w. section 3(1) of the act, the detaining authority has no jurisdiction to fix the period of detention. as per the proviso to sec3 of the act, the period specified in the orders of detention made by the government shall not in the first instance exceed three months even though the government may, if satisfied, subsequently amend such order to extend the period from time to time not exceeding three months at any one time. even the maximum period for which any person may be detained in pursuance of any detention order made under she act which has been formed under section 12 of the act by the government subsequent to the receipt of the report of the advisory board, is only 12 months from the date of detention as per the provisions of section 13 of the act. the first respondent, however, specified the period of detention as one year even though he has no authority and jurisdiction to fix such period for detention. in this view also the orders of detention are illegal and liable to be quashed. in view of all such circumstances, the impugned orders are not valid and legal and cannot be sustained and are, therefore, liable to be quashed.16. in the result, the writ petition is allowed with costs and the detention orders passed by the first respondent are quashed and it is ordered that the detenu shall be set at liberty forthwith if he is not required in any case.