1. Challenge to a preventive detention order issued under the Telangana Offenders Act 1986 based on past criminal antecedents and a pending investigation. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 )
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2019 Supreme(SC) 1391
SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, HRISHIKESH ROY, JJ.
Khaja Bilal Ahmed – Appellant
Versus
State of Telangana & Ors – Respondents
Criminal Appeal No. 1876 of 2019 @SLP (Crl.) No. 5487 of 2019
Decided on : 18-12-2019
Advocates Appeared:
For the Petitioner(s):Divya Adepu, Shubhangi Jain, Ayushi Kazangchi, J. P. Dhanda, Raj Rani Dhanda, Vineet Dhanda, A.K. Vasishtha, N.A. Usmani, Gopi Chand, Advocates
For the Respondent(s):Bina Madhavan, S. Udaya Kumar Sagar, Swati Bhardwaj, Advocates
For the Petitioner(s):Divya Adepu, Shubhangi Jain, Ayushi Kazangchi, J. P. Dhanda, Raj Rani Dhanda, Vineet Dhanda, A.K. Vasishtha, N.A. Usmani, Gopi Chand, Advocates
For the Respondent(s):Bina Madhavan, S. Udaya Kumar Sagar, Swati Bhardwaj, Advocates
IMPORTANT POINT
In the matter of satisfaction of detaining authority about probability of detenu engaging in prejudicial activities in the future, stale material do not have any bearing.
Headnote:
(a) Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 1986 - Section 3 - Satisfaction of detaining authority - Probability of detenu engaging in prejudicial activities in the future - Stale material not having any bearing. (Para 15)
(b) Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 1986 - Section 12, 13 - Order of confirmation by Government not served on detenue - Not filed before High Court or in first counter affidavit before Supreme Court - Filed for the first time only in second counter affidavit before Supreme Court - Existence of such order doubtful. (Para 19)
(c) Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 1986 - Section 3 - Detention order - Referring to stale and irrelevant grounds - Manner of presenting order of confirmation by Government casting serious doubt on its existence - Detention order set aside. (Para 20)
Facts of the case:
The appellant was detained under the provisions of sub-section 2 of Section 3 of the Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 1986.
On 26 October 2018, the appellant filed an application for bail, in Crime no 178 of 2018 which was allowed 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. On the same day an order of detention dated 25 October 2018 was served on the appellant at 7:45 pm while he was still in jail custody.
On 2 November 2018, the brother of the appellant filed a Writ Petition challenging the order of detention. On 30 November 2018, a petition 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.
On an interlocutory application, filed in the Writ Petition, the High Court 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 for the grant of bail on 26 October 2018 in Crime no 178 of 2018. The High Court dismissed the Writ Petition challenging the order of detention.
Finding of the Court:
Detention of appellant set aside.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Validity of detention based on stale grounds, lack of timely government confirmation, and improper reliance on the apprehension of statutory bail. (Para 9 , 10 )
3. Detention based on stale incidents lacks a live link to future conduct, and the delayed appearance of the confirmation order suggests procedural non-compliance. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 )
4. Preventive detention orders must be based on a live link between past conduct and future risk, and must be confirmed within three months. (Para 14 , 15 , 16 )
5. Appeal allowed, High Court judgment set aside, and the order of preventive detention quashed. (Para 21 )
6. Can a preventive detention order be based on criminal antecedents from several years prior?
No. Only activities with a live and proximate link to the immediate need to detain can be considered. Incidents from nine to fourteen years prior are considered stale and cannot form the basis for subjective satisfaction regarding the probability of future prejudicial activity. (Para 14 , 15 )
7. What is the time limit for the government to confirm a preventive detention order under the Telangana Offenders Act 1986?
Although not expressly stated in Section 12, there is an implicit time limit of three months. Without a decision to confirm and continue the detention before this period expires, the detention ceases to be valid. (Para 16 )
8. Under what conditions can a detention order be validly passed against a person already in custody?
A detention order is valid if the authority is aware of the custody, has reliable material showing a real possibility of release on bail, believes the person will likely indulge in prejudicial activity upon release, and deems detention essential to prevent such activity. (Para 9 , 20 )
JUDGMENT :
Dr Dhananjaya Y Chandrachud, J
1. The Division Bench of the High Court for the State of Telangana by its judgment dated 13 June 2019, dismissed a challenge to an order of detention dated 25 October 2018.
2. The appellant was detained under the provisions of sub-section 2 of Section 3 of the Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 1986, [“Telangana Offenders Act 1986”]. The order of detention was issued on 2 November 2018 by the Commissioner of 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 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 IPC at PS Abdullapurmet of Rachakonda Commissionerate which is under investigation. The “dangerous activities of the offender and his associates” are stated to have caused panic and a feeling of insecurity in the minds of the general public living within the limits of Hyderabad City and Rachakonda Police Commissionerate, thereby disturbing the peace and tranquillity of the area in a manner prejudicial to the maintenance of public order. The order of detention was passed by the Commissioner of Police on the basis of the following satisfaction:
“WHEREAS. I, Mahesh M. Bhagwat, IPS, Commissioner of Police, Rachakonda, am satisfied on examination of the material placed before me that the offender Khaja Bilal Ahmed has been repeatedly indulging himself in the manner of goondaism by acting a leader/member of criminal gang and committed gruesome offences such as Murder/Attempt Murders/ Rioting in an organized fashion, creating a feeling of insecurity to their life in the minds of General Public and thus d
