Bachhu Prameela, Nalgonda Dist. v. Secretary, (Home) Hyd And Another

THE HON'BLE SRI JUSTICE SANJAY KUMAR AND THE HON'BLE SRI JUSTICE T.AMARNATH GOUD WRIT PETITION NO.15516 OF 2017

O R D E R

(Per Hon'ble Sri Justice Sanjay Kumar) The petitioner seeks a writ of habeas corpus quashing the order of preventive detention dated 07.02.2017 passed by the Commissioner of Police, Rachakonda Commissionerate, Ranga Reddy District, against her son, Bachhu Nagaraju, and to direct the authorities to set him free.

In the affidavit filed in support of the writ petition, the petitioner stated that the order of preventive detention was passed against her son on the ground that he was involved in 9 criminal cases linked to atrocities committed by the deceased gangster, Nayeem. She asserted that her son was in no way connected with the gangster and assailed his preventive detention on five grounds. The first ground taken by her is that the impugned order is contrary to law and the settled legal position that pendency of criminal cases does not, by itself, constitute a valid basis for passing such an order. She contended that unless the even tempo of society is affected, a preventive detention order cannot be passed just because criminal cases are pending.

She pointed out that the alleged incidents cited in the order are 8 to 10 years old though the complaints emanating therefrom were given only in August, 2016. She asserted that the grounds for detention were vague and were not liable to be considered at all owing to lack of proximity of the alleged incidents with the dates of the complaints.

during the life time of Nayeem, they could not be taken to be genuine. Thirdly, she contended that the normal law, i.e., the Indian Penal Code 1860, would take care of the criminal cases lodged against her son and mere pendency of such cases could not be taken as the basis for passing of an order of preventive detention. She complained that no compelling reasons justifying such an order were forthcoming therefrom. As a fourth ground, she asserted that the deceased gangster was shown as A1 along with others in the crimes registered after his death and contended that when he was no more, charges of kidnapping, extortion, threatening with dire consequences could not be leveled or proved against him.

Lastly, she stated that her son was a law-abiding citizen and except for the cases which were referred to in the order of detention, he had no other criminal record. The pending cases were all connected with the alleged gangster, Nayeem, and without looking into his own antecedents, an order of preventive detention ought not to have been passed against her son. Refuting the petitioner's claims, the Commissioner of Police, Rachakonda, stated in his counter-affidavit as under: The records revealed that the detenu, Bachhu Nagaraju, is habitually engaging in unlawful activities as a member of the gang of slain gangster, Nayeem, who died on 08.08.2016. The detenu was engaging in acts of kidnapping, criminal trespass, damage to properties, criminal intimidation, criminal conspiracy, wrongful restraint, extortions, etc.

, in an organized manner affecting public order adversely. He was involved in as many as 9 cases, all arising under Chapters XVII and XXII of the Indian Penal Code, 1860 apart from the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 and the Arms Act, 1959.

'Goonda' and a 'Land Grabber' within the definitions of these terms under Section 2 of the Telangana Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for brevity, 'the Act of 1986'). The grave and gruesome unlawful activities of the detenu committed in an organized manner in the limits of Bhongir Town Police Station of Rachakonda Police Commissionerate affected public order adversely as they created large scale fear and insecurity in the minds of the general public as to their lives and properties. The activities of the detenu were prejudicial to the maintenance of public order and in order to prevent him from further indulging in such unlawful activities, the impugned order of detention was passed by him.

Detailing the 9 criminal cases in which the detenu was involved and which were cited as the grounds for detention, the Commissioner stated that despite registration of several crimes and consequential arrests, the detenu was coming out on bail in one case after the other and there was every likelihood of his resorting to similar offences which were prejudicial to the maintenance of public order. He stated that in these circumstances, the order of detention was passed by him in exercise of power under Section 3(2) of the Act of 1986. He further stated that all mandatory provisions of the Act of 1986 were strictly followed and as such, there was no illegality or violation of any provision of the Act of 1986 in the impugned detention order.

Dealing with the specific grounds urged by the petitioner, he stated that though the incidents in question occurred before August 2016, the cases were registered only in that month upon the complaints being presented by the victims of the deceased gangster and his associates.

and properties at the hands of slain gangster, Nayeem, and his associates, such as the detenu, neither the victims nor the public in the area came forward to complain against them earlier and only after his death on 08.08.2016, the victims started coming forward and lodged several complaints. The Government of Telangana constituted a Special Investigation Team to look into the offences committed by the slain gangster and his associates, whereby they collected crores of rupees from the public by putting them under constant life threat and grabbed their lands. Being the Detaining Authority, he stated that he considered the entire material on record and having satisfied himself that the cases registered against the detenu under the ordinary law did not have the desired effect, he passed the impugned order.

Adverting to the 9 criminal cases involving the detenu which were taken into account, the Commissioner stated that there were 174 crimes registered against Nayeem and his associates as on the date of filing of the counter, involving 1,00,000 square yards of land. He pointed out that the essence of preventive detention was not to 'punish' but to 'prevent' and contended that the facts of the case clearly justified exercise of power under the Act of 1986 to achieve such 'prevention'. As regards the contention that the criminal cases would abate on the death of the gangster, the Commissioner explained that as he was a coaccused in such cases, the prosecution against the detenu would continue. He further stated that in any event, such a circumstance would not bar him from exercising power under the Act of 1986.

gangster. He therefore justified the subjective satisfaction on the strength of which he had passed the detention order and prayed for dismissal of the writ petition.

No reply affidavit was filed rebutting the aforestated counteraffidavit averments. At this stage, it may be noted that the order of detention dated 07.02.2017 passed under Section 3(2) of the Act of 1986 was approved by the Government of Telangana vide G.O.Rt.No.452 dated 16.02.2017. The matter was then referred to the Advisory Board constituted under Section 9 of the Act of 1986. Upon hearing the detenu and his mother, the petitioner herein, along with his wife, and upon considering the material placed before it, the Advisory Board submitted its report to the Government on 17.03.2017. After considering the same, the Government of Telangana confirmed the detention for 12 months vide G.O.Rt.No.889 dated 07.04.2017. Sri Vedula Venkataramana, learned senior counsel representing M/s.

Bharadwaj Associates, counsel for the petitioner, would submit that the State is not handicapped from proceeding against the detenu under ordinary criminal law in relation to the 9 cases registered against him. He would point out that exercise of power under the Act of 1986 must be exceptional and not frequent. He would state that every follower of the gangster, Nayeem, cannot be brought within the ambit of the Act of 1986, and by doing so, the State was skirting the valuable fundamental right of life and liberty of the individual by short-circuiting the same under an order of preventive detention.

threat or disturbance. He would point out that in such a situation, the gravity stands diluted and does not entail the authorities exercising the power of preventive detention for 12 months. He would further point out that there was no threat to the general public by the alleged activities of the detenu as a member of Nayeem's gang. He would state that isolated cases of ransom or extortion do not suffice to construe that maintenance of public order is under threat, whereby his preventive detention can be justified. He would state that a selected few were targeted by such acts of ransom or extortion or land grabbing and therefore, public order does not come into the picture at all and the situation, at best, could be categorized as a 'law and order' problem.

He would further state that after the death of the gangster, the so-called victims came forward with full-fledged information, including the names of all the followers of the gangster, which, on the face of it, is improbable. He would further point out that the counter demonstrates that a Special Investigation Team has been constituted by the Government to look into the alleged atrocities committed by Nayeem along with his associates and without even waiting for the report to be submitted, exercise of power under Section 3(2) of the Act of 1986 is unlawful. Learned senior counsel would point out that it would be open to this Court to review the subjective satisfaction arrived at by the Detaining Authority and in this regard, a Section 161 CrPC statement cannot be taken to be sufficient basis.

He would submit that irrationality on the part of the Detaining Authority would be reason enough for this Court to interfere with the order of preventive detention.

more recent origin, all the others date long back in the past and do not constitute live-links to justify such an order of detention being passed at this late point of time.

Per contra, the learned Government Pleader for Home, would contend that as on date, 224 cases have been registered against the dreaded gangster, Nayeem, and his associates. He would submit that the activities of the gang were such that they invariably impacted maintenance of public order. He would state that merely because a section of society is targeted and not all sections, it would not mean that the problem relates to 'law and order' alone and not to 'public order'. He would point out that the cited cases reflect that the gang targeted people across the board if they had money or property and therefore, it could not be said that 'public order' was not at stake. He would rely on case law to state that the order of detention does not suffer on the ground of staleness or lack of proximity or vagueness.

In reply, Sri Vedula Venkataramana, learned senior counsel, would argue that even if one of the grounds which formed the basis for the impugned order of preventive detention failed, the order would have to go, and that it is not open to the Detaining Authority to supplement grounds for his subjective satisfaction by way of his counter. He would further state that the authorities must endeavour to reform the errant members of society and use of the power of preventive detention is not the answer after the death of the gangster. He would further submit that inability of the legal system to deal with the proclivities of witnesses turning hostile cannot be the basis for a preventive detention order. He would reiterate the grounds urged by him earlier and pray that the order of detention be set aside.

It is well settled that this Court, while considering an order of preventive detention, does not sit in appeal over the subjective satisfaction of the Detaining Authority while exercising such power nor does this Court weigh the adequacy of the material which formed the basis for such subjective satisfaction. Limited grounds, identified and upheld time and again by case law, would demarcate the ambit of the power of this Court to interfere with an order of detention. It would be apposite at this stage to refer to the precedential edicts pressed into service by both sides in abundance. In GOLAM HUSSAIN ALIAS GAMA V/s. THE COMMISSIONER OF POLICE, CALCUTTA1, the Supreme Court observed that there must be a live-link between the grounds of criminal activity alleged and the purpose of detention.

This credible chain is snapped if there is too long and unexplained an interval between the offending acts and the detention. No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because, long ago, the detenu had done something evil. The Court however cautioned that no mechanical test by counting the months of the interval is sound and it would depend on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of investigation. The causal connection must be investigated to see whether it has been broken in the circumstances of each case. In PRAKASH CHANDRA MEHTA V/s.

detention in Article 22(5) of the Constitution has to receive an interpretation which will keep it meaningfully in tune with contemporary notions. The Supreme Court observed that though such power of preventive detention must be cautiously exercised so as to not undermine the fundamental freedoms guaranteed to our people and the procedural safeguards have to be ensured, yet these must be looked at from a pragmatic and commonsense point of view. The exercise of the power of preventive detention must be strictly within the safeguards provided.

In GAUTAM JAIN V/s. UNION OF INDIA3, the Supreme Court observed that if the detention order is based on more than one ground and the grounds are independent of each other, then the detention order will still survive if one of the grounds is found nonexisting or legally unsustainable. On the other hand, if the detention order is founded on one composite ground, though containing various species or sub-heads, the detention order would be vitiated if even one such ground is found fault with.

In SAMA ARUNA V/s. STATE OF TELANGANA4, the Supreme Court was considering the order of preventive detention passed against another member of Nayeem's gang. The order of detention, which was confirmed by this Court, was set aside by the Supreme Court on the ground that it took into account incidents so far back in the past as would have no bearing on the immediate need to detain without a trial. Significantly, the order of preventive detention in that case mentioned six criminal cases, of which two were proximate in point of time, but reliance was placed by the Detaining Authority only 3 (2017) 3 SCC 133 4 2017 SCC OnLine SC 592

upon the remaining four cases which were about 9 to 14 years before the order of detention.

In PRALHAD KESHAV ATRE V/s. THE COMMISSIONER OF POLICE5, a Division Bench of the Bombay High Court observed that if any one ground is irrelevant or vague, the Court must come to the conclusion that the detenu has been deprived of his constitutional safeguards and must hold the detention order to be invalid. However, as to how to determine whether a particular ground is irrelevant or not, the Bombay High Court opined that such a ground must not be looked at in isolation but along with the other grounds compositely.

In UNION OF INDIA V/s. ARVIND SHERGILL6, the Supreme Court observed that the Court can only examine whether the grounds for detention are relevant to the object and cannot act as a Court of appeal.

In ARUN GHOSH V/s. STATE OF WEST BENGAL7, the Supreme Court observed that it is always a question of degree of the harm and its affect upon the community. The question to ask is : 'Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of society undisturbed?' This question has to be faced in every case on facts, as there is no formula and one case can be distinguished from the other. In T.A.ABDUL RAHMAN V/s. STATE OF KERALA8, the Supreme Court pointed out that there is no hard and fast rule that merely because there is a time lag between the offending acts and the 5 1956 (58) BOMLR 602 6 (2000) 7 SCC 601 7 1970 (1) SCC 98 8 AIR 1990 SC 225

date of the order of detention, the causal link might be taken to be snapped and the satisfaction reached by the Detaining Authority should be regarded as unreal, as it all depends upon the facts and circumstances of each case and the nature of the explanation offered by the Detaining Authority as to the delay that had occurred in passing of the order. The Supreme Court observed as under: 'The conspectus of the above decisions can be summarised thus : The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case.

No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case.' In L.M.S.UMMU SALEEMA V/s. B.B.

GUJARAL9, the Supreme Court indicated that the counter-affidavit may be taken into account to assess the subjective satisfaction of the Detaining Authority. In MERUGU SATYANARAYANA V/s.

RAMESHWAR SHAW V/s. D.M.BURDWAN11, observed that the Detaining Authority must show awareness of the fact that the person in respect of whom the detention order is being made is already in jail and if that is the case, it must explain as to why the detention order is still a compelling necessity. This awareness must appear on the face of the record as being set out in the detention order or at least in the affidavit in opposition.

In G.REDDEIAH V/s.

GOVERNMENT OF ANDHRA PRADESH12, the Supreme Court observed that the law is clear that as far as subjective satisfaction is concerned, it should either be reflected in the detention order or in the affidavit justifying the detention order.

In COLLECTOR & DISTRICT MAGISTRATE, W.G.DISTRICT, ELURU, A.P. V/s. SANGALA KONDAMMA13, the Supreme Court observed as under:

'We notice from the preamble and statement of objects and reasons of the Act that it aims to prevent a person from indulging in certain illegal activities enumerated therein by his preventive detention. For the said purpose, the detaining authority must be satisfied that the proposed detenu is likely to indulge in such illegal activities in future also. This is a satisfaction that could be reasonably arrived at by the detaining authority only by examining the material that is produced by the authority proposing his detention. In such a process, a detaining authority may not always take into consideration a stray or solitary incident which may not give rise to a reasonable apprehension or satisfaction as to such future act of the proposed detenu. Therefore, it is necessary for the authority proposing the detention of a person under the Act to produce such material which shows the continuous previous 11 AIR 1964 SC 334 12 (2012) 2 SCC 389 13 (2005) 3 SCC 666

illegal activities of the proposed detenu which would satisfy the detaining authority of the need for detaining such a person. In other words, the material produced by the authority proposing the detention should form a chain of incidents last of which will have to be proximate to the date of proposed detention while other acts must be proximate to each other. Thus, if the facts placed before the detaining authority are proximate to each other and the last of the facts mentioned is proximate to the order of detention then the early incidents cannot be treated as stale and detention order cannot be set aside.' In ASHOK KUMAR V/s. DELHI ADMINISTRATION14, the Supreme Court while dealing with 'public order' as opposed to 'law and order' stated as under:

'13. The true distinction between the areas of 'public order' and 'law and order' lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of 'law and order' and 'public order' is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. That test is clearly fulfilled in the facts and circumstances of the present case.'

In E.SUBBULAKSHMI V/s. SECRETARY TO GOVERNMENT15, the Supreme Court observed that an unsigned voluntary confessional statement of the detenu may also be taken into account by the Detaining Authority to arrive at its subjective satisfaction, if it is not 14 (1982) 2 SCC 403 15 2016 SCC OnLine SC 1313

the solitary document or circumstance considered by such Detaining Authority.

In RAM BALI RAJBHAR V/s. THE STATE OF WEST BENGAL16, the Supreme Court observed that on a habeas corpus petition, what has to be considered by the Court is whether the detention is prima facie legal or not, and not whether the detaining authority has wrongly or rightly reached satisfaction on every question of fact. It was further observed that Courts have, no doubt, to zealously guard the personal liberty of the citizen and ensure that the case of a detenu is justly and impartially considered, but that does not mean that they have to or can rightly and properly assume either the duties cast upon the detaining authorities and Advisory Boards or function as Courts of appeal on questions of fact. In COMMISSIONER OF POLICE V/s. C.ANITA17, the Supreme Court observed as under:

'Preventive detention is an anticipatory measure and does not relate to an offence, while criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the law concerned. The action of the executive in detaining a person being only precautionary, normally the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner, the failure to conform to which should lead to detention. The satisfaction of the detaining authority, therefore, is considered to be of primary 16 (1975) 4 SCC 47 17 (2004) 7 SCC 467

importance, with great latitude in the exercise of its discretion. The detaining authority may act on any material and on any information that it may have before it. Such material and information may merely afford basis for a sufficiently strong suspicion to take action, but may not satisfy the tests of legal proof on which alone a conviction for offence will be tenable. The compulsions of the primordial need to maintain order in the society without which the enjoyment of all rights, including the right to personal liberty of citizens would lose all their meanings provide the justification for the laws of preventive detention.

Laws that provide for preventive detention posit that an individual's conduct prejudicial to the maintenance of public order or to the security of State or corroding financial base provides grounds for satisfaction for a reasonable prognostication of possible future manifestations of similar propensities on the part of the offender. This jurisdiction has at times been even called a jurisdiction of suspicion. The compulsions of the very preservation of the values of freedom of democratic society and of social order might compel a curtailment for individual liberty. "To lose our country by a scrupulous adherence to the written law" said Thomas Jefferson "would be to lose the law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end of the needs".

This, no doubt, is the theoretical jurisdictional justification for the law enabling preventive detention. But the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by striking the right balance between individual liberty on the one hand and the needs of an orderly society on the other. These aspects were highlighted in UNION OF INDIA V/s. AMRIT LAL MANCHANDA18.'

It is clear from an overview of the aforestated case law that no straitjacketed rule can be applied across the board to hold one way or the other on the validity of the order of preventive detention which is 18 (2004) 3 SCC 75

under challenge. Each case would invariably have to turn upon its own individual facts, in the backdrop of settled legal principles. The grounds of attack urged by the petitioner are mainly that the order of detention is liable to be set aside because: (1) it is based on stale incidents and (2) it is in relation to a 'law and order' problem and not a 'public order' problem. It is however to be noticed that out of the 9 criminal cases cited as the grounds for detention, the first case, being Crime No.232/2016 under Sections 363, 346, 386, 120B and 201 IPC on the file of Bhongir Town Police Station, relates to an incident that occurred between 28.01.2016 and 20.02.2016. The fourth case, being Crime No.

270/2017 under Sections 363, 346, 386, 120B IPC read with Section 25(1B)(A) of the Arms Act on the file of Bhongir Town Police Station, relates to an incident that occurred on 05.01.2014. No doubt, the other crimes mentioned in the grounds relate to incidents that occurred long prior to June/August/ September, 2016. The 9th case dates back to the year 2005, while the 7th case dates back to 2008, but seems to have continued up to March, 2016. It is however brought out that the activities of the gang led by the deceased gangster, Nayeem, instilled widespread fear amongst the denizens of the area in which their reign of terror held sway during his lifetime.

Once the pattern of their unlawful activities is established over a period of time and the last of such activities is reasonably proximate to the order of detention, such an order would not be liable to be set aside only on the ground that some of the cases cited as the grounds for detention are far removed in point of time from the date of the detention order. This Court finds this to be so in the case on hand.

proximate to the order of detention passed in February, 2017. Given the fact that the dreaded gangster was killed only in August, 2016, and as there is no getting away from the fact that it was only after his death that victims came forward in droves to register complaints of the unlawful activities of the gang victimizing them, under threat to their lives and properties. It cannot therefore be said that the grounds for detention cited in the impugned order are either stale or suffer from lack of proximity.

Be it noted that in the case of SAMA ARUNA4, a more recent case was not taken into account by the Detaining Authority though mentioned in the order of detention and only the earlier cases were cited as the grounds for detention. Further, it was not brought to the notice of the Supreme Court that there was an established pattern of unlawful activities on the part of the associates of the dreaded gangster, which justified the Detaining Authority relying upon the earlier incidents which came to light recently after complaints were registered by victims upon the death of the gangster. The contention urged by Sri Vedula Venkataramana, learned senior counsel, in this regard therefore does not merit acceptance and is rejected.

As regards the contention of Sri Vedula Venkataramana, learned senior counsel, that there is no basis to surmise that the socalled unlawful activities of the gang would continue even after the death of the gangster, this ground does not find reflection in the pleadings, but this Court finds that the Detaining Authority, on the strength of the material placed before him, formed an opinion that it would be so.

the death of the gangster, Nayeem, cannot be said to be unreal or without basis.

Further, we find no merit in the submission of the learned senior counsel that the unlawful activities attributed to the detenu as a member of Nayeem's gang do not impact public order. A large section of society was targeted by the gang, as people with money or land or both were subjected to criminal intimidation, etc., by them. Merely because those without land and money, forming perhaps a large section of Indian society, were not targeted by the gang, it would not mean that their activities did not prejudicially affect 'public order' and should be treated as a mere 'law and order' problem. In terms of the law laid down by the Supreme Court in ASHOK KUMAR14, once the even tempo of life in society was disturbed, such activity would invariably be taken to impact 'public order' and not just 'law and order'.

We therefore find no merit in the contention of the learned senior counsel that the impugned order of detention was based on irrelevant material or was in any manner irrational. On the above analysis, we find that no interference is warranted with the order of detention dated 07.02.2017. The writ petition is devoid of merit and is accordingly dismissed. Pending miscellaneous petitions, if any, shall also stand dismissed. No order as to costs.

______________________ SANJAY KUMAR, J _________________________ T.AMARNATH GOUD, J 17th NOVEMBER, 2017 Svv