Khaja Bilal Ahmed vs State of Telangana & Ors.

HELD: 1.1 In the instant case, the order of detention states that the fourteen cases instituted against the appellant between 2007 and 2016 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 criminal background… (and) are not relied upon”. The detaining authority stated that the cases which were registered against the appellant between 2009 and 2016 “are not at all considered for passing the detention order” and were “referred by way of his criminal background only”. This averment is plainly contradictory. The order of detention does, as a matter of fact, refer to the criminal cases which were instituted between 2007 and 2016. In order to overcome the objection that these cases are stale and do not provide a live link with the order of detention, it was contended that they were not relied on but were referred to only to indicate the antecedent background of the detenu. If the pending cases were not considered for passing the order of detention, it defies logic as to why they were referred to in the first place in the order of detention. The purpose of the Telangana Offenders Act 1986 is to prevent any person from acting in a manner prejudicial to the maintenance of public order. For this purpose, Section 3 prescribes that the detaining authority must be satisfied that the person to be detained is likely to indulge in illegal activities in the future and act in a manner prejudicial to the maintenance of public order. The satisfaction to be arrived at by the detaining authority must not be based on irrelevant or invalid grounds. It must be arrived at on the basis of relevant material; material which is not stale and has a live link with the satisfaction of the detaining authority. 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. [Para 15][1191-E-H; 1192-A-D]

1.2 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. [Para 16][1192-E-F]

1.3 In the instant case, the detenu was in detention between

25 October 2018 until 27 February 2019. The brother of the detenu submitted an RTI application to the Superintendent, Central Prison Cherlapalli. 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 order of confirmation found no mention either during the proceedings before the High Court or in the first counter affidavit which was filed before this Court on 18 July 2019. The record indicates that no order of confirmation was served on the detenu between 28 December 2018 (the date on which it was purportedly passed) till the detenu continued to be in detention until 27 February 2019. The manner in which the order has surfaced, for the first time, in an additional counter affidavit filed before this Court casts serious doubt on whether such an order was at all in existence on the relevant date. [Para 17–19][1194-A, F, H; 1195-A-B]

1.4 The detention order has to be set aside on the grounds of reference to stale and irrelevant grounds in the detention order by the detaining authority; and the manner in which the order of confirmation dated 28 December 2018 was presented before this Court, casts doubt on the existence of the order of confirmation in the first place. As regards the registration of Crime no 178 of 2018, the appellant was released on bail consequent upon the failure of the investigating authority to file a charge–sheet within ninety days. A charge–sheet, has not been filed till date. There was no reasonable basis on which the detaining authority could have come to a conclusion that on being released on bail, the appellant would in all probability indulge in prejudicial activity; and it was necessary to detain him, to prevent him from engaging in prejudicial activity. Thus, the impugned judgment and order of the High Court is set aside and the order of detention is quashed. [Paras 20–21][1195-C-F]

Sama Aruna v. State of Telangana (2018) 12 SCC 150; Lakshman Khatik v. State of West Bengal (1974) 4 SCC 1; Rameshwar Shaw v. District Magistrate Burdwan AIR 1964 SC 334 : [1964] 4 SCR 921; Yumman Ongbi Lembi Leima v. State of Manipur (2012) 2 SCC 176; Nirmal Kumar Khandelwal v. Union of India (1978) 2 SCC 508; Cherukuri Mani v. Chief Secretary, Govt of AP (2015) 13 SCC 722; Kamarunnissa v. Union of India (1991) 1 SCC 128; Champion R Sangma v. State of Meghalaya (2015) 16 SCC 253; Subramanian v. State of T N (2012) 4 SCC 699; Shibapada Mukherjee v. State of W B (1974) 3 SCC 50; Kamarunnissa v. Union of India (1991) 1 SCC 128 – referred to.