Supreme Court of India
G H KHAJA BILAL AHMEDversusSTATE OF TELANGANA & ORS.
- Citation
- 2019 INSC 1404
- Decided
- 18 December 2019
- Disposal
- Appeal(s) allowed
Holding
A preventive detention order under the Telangana Offenders Act is invalid if predicated on stale, irrelevant antecedent cases without a live link, and a confirmation order not properly made or served within the statutory period renders the detention unlawful, leading to its quashment.
Summary
Khaja Bilal Ahmed was detained under the Telangana Prevention of Dangerous Activities Act, 1986 on 25 October 2018, with the order citing fourteen prior criminal cases from 2007‑2016 as his antecedent background. The appellant challenged the detention, arguing that the cited cases were stale, irrelevant, and that there was no live nexus to justify preventive detention, and also contended that the government’s confirmation order under Section 12 was not properly made or served within the statutory period. The Supreme Court examined whether the detaining authority’s satisfaction could be based on such stale material and whether procedural requirements for confirmation were complied with. It held that the detention order lacked a valid, contemporaneous basis and that the confirmation order’s late and undocumented emergence cast serious doubt on its existence. Consequently, the Court quashed the detention order and set aside the High Court’s judgment, allowing the appeal.
Issues considered
- The validity of a preventive detention order when based on stale antecedent criminal cases lacking a live nexus with the present threat.
- Whether the detaining authority’s satisfaction under Section 3 of the Telangana Offenders Act can be founded on past cases without current relevance.
- Whether the confirmation order under Section 12 was validly issued and served within the statutory three‑month period.
- Whether the failure to file a charge‑sheet and the grant of bail justify continued preventive detention.
- Whether procedural requirements of the Telangana Offenders Act, including advisory board reporting and confirmation, were complied with.
Legislation cited
- Code of Criminal Procedure, 1973s. 167
- Indian Penal Code, 1860
- 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, 1986s. 11, s. 12, s. 13, s. 3(2), s. 3(3)
Subjects
preventive detentionstale evidenceconfirmation orderTelangana Offenders Actbailadvisory boardpublic orderprocedural lapse
Judgment
1174 [2019] REPORTS
SUPREME COURT 18 S.C.R. 1174 [2019] 18 S.C.R.
A KHAJA BILAL AHMED
v.
STATE OF TELANGANA & ORS.
(Criminal Appeal No. 1876 of 2019)
B DECEMBER 18, 2019
[DR. DHANANJAYA Y. CHANDRACHUD AND
HRISHIKESH ROY, JJ.]
Telangana Prevention of Dangerous Activities of Boot-
Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic
C
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
D White Collar or Financial Offenders Act 1986 – ss. 3(2), 12, 13 –
Detention order against appellant since he has been habitually and
continuously engaging himself in unlawful acts and indulging in
the acts of goondaism and committed gruesome and heinous offences
– Reference to fourteen cases registered against the appellant under
various heads of crime between 2007 and 2016 – Also reference to
E
criminal case of 2018 – Meanwhile appellant had got bail in the
criminal case of 2018 and when bail was granted, detention order
dated 25 October 2018 served on the appellant while he was still in
jail custody – On 02 November 2018, the said detention order was
confirmed – Challenge to, to the detention order dated 25 October
F 2018 and the confirmation order dated 02 November 2018 –
Dismissed by the High Court – On appeal, held: Ground stated by
the detaining authority in the detention order were stale and
irrelevant grounds and did not provide a live link with the detention
order – Manner in which the order of confirmation was presented
before this Court, casts doubt on the existence of the order of
G
confirmation – As regards the registration of the criminal case of
2018, the appellant was released on bail consequent upon the failure
of the investigating authority to file a charge-sheet within ninety
days which till date has not been filed – There was no reasonable
basis on which the detaining authority could have come to a
H
1174
KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS. 1175
conclusion that on being released on bail, the appellant would in A
all probability indulge in prejudicial activity and it was necessary
to detain him – Thus, the order passed by the High Court is set
aside and detention order is quashed.
Allowing the appeal, the Court
HELD: 1.1 In the instant case, the order of detention states B
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 C
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 D
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 E
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 F
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 G
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
H
1176 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 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,
B
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
C 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,
D 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]
E
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
F 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
G 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
H
KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS. 1177
counter affidavit filed before this Court casts serious doubt on A
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 B
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 C
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 D
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 E
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 F
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.
Case Law Reference G
(2018) 12 SCC 150 referred to Para 9
(1974) 4 SCC 1 referred to Para 9
H
1178 SUPREME COURT REPORTS [2019] 18 S.C.R.
A AIR 1964 SC 334 referred to Para 9
(2012) 2 SCC 176 referred to Para 9
(1978) 2 SCC 508 referred to Para 9
(2015) 13 SCC 722 referred to Para 9
B
(1991) 1 SCC 128 referred to Para 9
(2015) 16 SCC 253 referred to Para 9
(2012) 4 SCC 699 referred to Para 10
C (1974) 3 SCC 50 referred to Para 16
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1876 of 2019.
From the Judgment and Order dated 13.06.2019 of the High
Court for the State of Telangana at Hyderabad in W.P. No. 43814 of
D
2018.
Ms Divya Adepu, Ms. Shubhangi Jain, Ms. Ayushi Kazangchi,
Dr. J. P. Dhanda, Mrs. Raj Rani Dhanda, Vineet Dhanda, Dr. A.K.
Vasishtha, N.A. Usmani, Gopi Chand, Advs. for the Appellant.
E Ms. Bina Madhavan, S. Udaya Kumar Sagar, Ms. Swati Bhardwaj,
Advs. for the Respondents.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
F 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
G 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
H
KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS. 1179
[DR DHANANJAYA Y CHANDRACHUD, J.]
Offenders, Arms Offenders, Cyber Crime Offenders and White Collar A
or Financial Offenders Act 19861. 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 B
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
C
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 D
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 E
341 of the Indian Penal Code 18602 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 Team3, Hyderabad City for further investigation and four
cases are pending trial. The order of detention states that:
F
“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.” G
The order of detention thereafter proceeds to state that in 2018,
the appellant was implicated in Crime no 178 of 2018 under Sections
1
“Telangana Offenders Act 1986”
2
“IPC”
3
“SIT” H
1180 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 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
B
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
C 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
D General Public and thus disturbing peace and tranquility in society
and acting in a manner prejudicial to maintenance of Public Order.
He is a habitual offender and a ‘Goonda’ as defined in clause (g)
of Section (2) of the Telengana Offenders Act 1986 (Act no. 13
of 2018)”
E 3. On 26 October 2018, the appellant filed an application for bail 4
in Crime no 178 of 2018. The application for bail was allowed by the 14th
Additional Metropolitan Magistrate on 26 October 2018 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 19735. On 26 October 2018, when bail was granted
F by the 14th Additional Metropolitan Magistrate in Crime no 178 of 2018,
an order of detention dated 25 October 2018 is stated to have been
served on the appellant at 7:45 pm while he was still in jail custody.
4. On 2 November 2018, the brother of the appellant filed a Writ
Petition6 challenging the order of detention on the ground that it had not
G
been confirmed within twelve days as contemplated under Section 3(3)
of the Telangana Offenders Act 1986. On 2 November 2018, a copy of
4
Cr.M.P. 1645 of 2018
5
“CrPC”
H 6
Writ petition no 41187 of 2018
KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS. 1181
[DR DHANANJAYA Y CHANDRACHUD, J.]
the order of the State government confirming the order of detention was A
served on the appellant. On 30 November 2018, a petition7 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.
B
8
5. On an interlocutory application filed in the Writ Petition, the
High Court by an order dated 27 February 2019 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 by the 14th
Additional Metropolitan Magistrate for the grant of bail on 26 October C
2018 in Crime no 178 of 2018. By a judgment dated 13 June 2019, the
High Court dismissed the Writ Petition challenging the order of detention,
which gave rise to the proceedings before this Court under Article 136
of the Constitution.
6. Before dealing with the rival submissions, it is necessary to set D
out the position of the fourteen criminal cases against the appellant which
have been adverted to in the order of detention. This has been summarised
in a tabular chart which was submitted to this Court by Ms Bina
Madhavan, learned Counsel appearing on behalf of the State of
Telangana. The chart is extracted below : E
S CASE NO UNDER SECTION CURRENT STATUS
NO
1 305/2012 147,148,188,153 r/w Section 149 of IPC & Section Transferred to SIT. Still
7 of Criminal Law Amendment Act, 1932 under investigation
2 306/2012 147,148,332,188,153(A) R/W 149 of IPC Transferred to SIT. Still F
under investigation
3 307/2012 147,148,332,307,188,153(A) r/w 149 of IPC & Transferred to SIT. Still
Section 7 of Criminal Law Amendment Act, 1932 under investigation
4 308/2012 147,148,382 r/w 149 of IPC Transferred to SIT. Still
under investigation
5 309/2012 147, 148, 427 r/w 149 of IPC Transferred to SIT. Still
under investigation
6 41/2007 147,148,324,506,153(A),159 of IPC Pending trial G
7 42/2007 147,148,506,427,153(A),159 of IPC Pending trial
8 44/2007 147,148,324,506,153(A) r/w 149 of IPC Pending trial
9 43/2007 147,148,448,427,506,153(A) r/w 149 of IPC Pending trial
7
Writ petition no 43814 of 2018
8
IA 1 of 2019 H
1182 SUPREME COURT REPORTS [2019] 18 S.C.R.
A CASES IN WHICH ACQUITTED:
S NO CASE NO UNDER SECTION CURRENT STATUS
10 283/2012 149 , 353, 427 r/w 34 of IPC Acquitted
11 257/2009 147, 353, 427, 332 r/w 149 of IPC & Section 7 of Acquitted
Criminal Law Amendment Act, 1932 & Section 4 of
PDPP Act of Reinbazar PS. Hyderabad city
12 47/2011 447,353,427 and 506 of IPC Acquitted
B 13 14/2009 147,148,324,307,427, 506 r/w 149 of IPC & Section Acquitted
27 of Indian Arms Act
CASE WHICH IS COMPROMISED:
S NO CASE NO UNDER SECTION CURRENT STATUS
14 272/2016 341 and 323 of IPC Compromised in Lok
C Adalat vide order dated
08.09.2017
7. During the course of the proceedings before the High Court, a
counter affidavit was filed by the Commissioner of Police stating that:
“4. ... the records revealed that the since 2009 to 2016 as
D many as (15) cases were registered against the detenu, for
engaging himself in unlawful and dangerous activities.
Among them (4) cases were in acquittal. The said cases
are referred by way of his criminal background that the same
are not relied upon. In the recent past during the year 2018 the
detenu was involved in Cr.No 178/2018, u/s Sections 374, 302,
E
120-B, 506 r/w 34 IPC, Abdullapurmet P.S. of Rachakonda Police
Commissionerate., wherein the detenu and his associates
kidnapped the deceased to an isolated area of Majeedpur village
in the limits of Abdullapumet P.S., and stabbed him to death brutally,
thereby created terror and a feeling of insecurity in the minds of
F general public, apart from disturbing peace and tranquility in the
area. Thus the activities of the detenu are prejudicial to
maintenance of public order, affecting the public order
adversely. The said case has been considered as ground
for his detention.”
G (Emphasis supplied)
The above statement was reiterated in another part of the same
counter affidavit in the following terms:
“However, the cases registered against him during the period
2009 to 2016 are not at all considered for passing the detention
H
KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS. 1183
[DR DHANANJAYA Y CHANDRACHUD, J.]
order. The same are referred by way of his criminal back A
ground only.”
(Emphasis supplied)
In other words, the order of detention was sought to be justified
solely on the basis of Crime no 178 of 2018 registered against the appellant
under Sections 364, 302, 120B and 506 read with Section 34 of the IPC. B
The genesis of the criminal case was spelt out in the counter affidavit
filed before the High Court thus:
“A-1 Khaja Bilal Ahmed was active member in AIMIM Party
and elected as Corporator for GHMC Ward No: 29 in 2009
Elections and later joined in TPCC and now working as Telangana C
State Minority Vice President. The marriage of A-1 was
solemnized in 2006 with Smt Rafath Sultana and due to some
disputes, they got separated in March, 2018 in the presence of
their community elders. The deceased Syed Aqeel, who was
working with the detenu and residing nearby his house. Later, the D
deceased Aqeel got married to A-1’s divorced wife Smt Rafath
Sultana. As such, the A-1 felt shame in his community and bore
grudge on deceased. The Detenu developed grudge against the
deceased that the deceased defamed him after marrying his
divorced wife. Up on which, the detenu along with his associates
(A2 to A8) hatched a plan to eliminate the deceased and in execution E
of his plan, the detenu and his associates kidnapped the deceased
in the early hours on 03-06-208, took him to an isolated area of
Majeedpur village of Abdullapurmet Police station limits, where
the detenu and his associates stabbed him to death brutally. The
case is under investigation for apprehension of absconding accused F
and collection of further evidence.”
8. It was in the above case that the appellant was released on bail
on 26 October 2018 on the failure to file a charge-sheet within a period
of ninety days. No charge-sheet has been filed till date.
9. In this backdrop, the following submissions have been urged on G
behalf of the appellant by Mr Sidharth Luthra, learned Senior Counsel:
I The grounds relied upon by the Commissioner of the
Police, Rachakonda Commissionerate in the detention
order dated 25 October 2018 are stale and have no
proximate or live link between the antecedent activities H
1184 SUPREME COURT REPORTS [2019] 18 S.C.R.
A and the detention order as they are of the years 2007
and 2012 except for Crime no 178 of 2018:
(i) The order of detention mentioned fifteen cases, but
reliance is placed only on a single case bearing Crime no
178 of 2018 for crimes under Sections 302 and 364;
B (ii) Out of the fifteen cases, the detenu has been acquitted
in six cases; eight cases are pending trial out of which
four cases date back to 2007, and four to 2012 and only
Crime no 178 of 2018 under Sections 302 and 364 is
pending investigation;
C (iii) Until date no charge-sheet has been filed in Crime no
178 of 2018 dated 3 June 2018;
(iv) By the admission of the respondents, the order of
detention has been passed on one solitary case; and
D (v) In support of the submission that the order of detention
was invalid, reliance has been placed on the decisions of
this Court in Sama Aruna v State of Telangana9 ,
Lakshman Khatik v State of West Bengal 10 ,
Rameshwar Shaw v District Magistrate Burdwan11
and Yumman Ongbi Lembi Leima v State of
E Manipur12.
II Non-confirmation of the detention order within three
months would result in its automatic revocation.
(i) The appellant was in detention from 25 October 2018
until 27 February 2019, for a period of four months without
F
confirmation by the government under Section 12;
(ii) In response to a Right to Information13 query dated 2
July 2019 lodged by the appellant’s brother with the
Superintendent, Central Prison, Cherlapalli, Medchal
district, it was stated that the prison authorities had not
G received any confirmation or revocation of the detention
order pertaining to the appellant;
9
(2018) 12 SCC 150
10
(1974) 4 SCC 1
11
AIR 1964 SC 334
12
H (2012) 2 SCC 176
KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS. 1185
[DR DHANANJAYA Y CHANDRACHUD, J.]
(iii) The confirmation order dated 28 December 2018 was A
placed on the record for the first time during the course
of the present proceedings in the additional grounds filed
in the Special Leave Petition;
(iv) The confirmation order dated 28 December 2018 found
no mention either in the High Court or in the first counter B
affidavit which was filed before this Court on 18 July
2019;
(v) The confirmation order clearly stated that the
Superintendent of Jails, Central Prison “should serve
the order on the detenu immediately”; and C
(vi) It is a sine qua non for the continuation of the detention
order beyond the period of three months that the
appropriate government must confirm it within three
months. In support of the argument, reliance has been
placed on the decisions of this Court in Nirmal Kumar D
Khandelwal v Union of India14 and Cherukuri Mani
v Chief Secretary, Govt of AP15.
III The detention order dated 25 October 2018
categorically states that the appellant will be granted
mandatory bail under Section 167 of the CrPC and E
therefore, has been passed only on the apprehension
of bail being granted:
(i) The detention order has been passed apprehending the
grant of bail without following the criteria laid down by
this Court in Kamarunnissa v Union of India16, in which F
it was held:
“13. In case of a person in custody a detention order can validly
be passed (1) if the authority passing the order is aware of the
fact that he is actually in custody; (2) if he has reason believe on
the basis of reliable material placed before him (a) that there is a
G
real possibility of his being released on bail, and (b) that on being
13
“RTI”
14
(1978) 2 SCC 508
15
(2015) 13 SCC 722
16
(1991) 1 SCC 128 [Also followed in Champion R Sangma v State of Meghalaya
(2015) 16 SCC 253.] H
1186 SUPREME COURT REPORTS [2019] 18 S.C.R.
A so released he would in all probability indulge in prejudicial activity
and (3) if it is felt essential to detain him to prevent him from so
doing.”
IV Adequate measures and remedies were available under
ordinary law and hence there was no necessity to issue
B an order of preventive detention;
V The detention order dated 25 October 2018 was
confirmed under Section 3(2) after a delay of eight days;
and
VII The appellant was arrested in Crime no 178 of 2018
C and was granted statutory bail under Section 167 CrPC
on 26 October 2018. The order of detention was served
on the appellant while he was in custody. The appellant
was in custody until 27 February 2019 when an interim
order of release was passed, which continued to remain
D in force until the High Court dismissed the petition on
13 June 2019. Aggrieved by the order of the High Court,
the appellant moved the Vacation Bench of this Court
which adjourned the proceedings on 25 June 2019. The
Special Leave Petition was listed on 1 July 2019 when
a notice was issued returnable in two weeks. The
E proceedings were listed on various dates and arguments
were heard for final disposal.
10. On the other hand, Ms Bina Madhavan, learned Counsel
appearing on behalf of the State of Telangana submitted thus:
F (i) In ordinary circumstances, the courts do not interfere with
the subjective satisfaction of the detaining authority. Reliance
has been placed upon the decision of this Court in
Subramanian v State of T N17;
(ii) A single offence can legitimately form the subject matter
of an order of detention;
G
(iii) The order of detention dated 25 October 2018 was approved
on 2 November 2018 as stipulated under Section 3(3) of
the Telangana Offenders Act 1986. Accordingly, there was
no delay in confirming the order;
17
H (2012) 4 SCC 699
KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS. 1187
[DR DHANANJAYA Y CHANDRACHUD, J.]
(iv) The order of the Advisory Board was duly passed on 12 A
December 2018, and the State Government confirmed the
detention on 28 December 2018;
(v) The reference to the antecedent criminal cases in the order
of detention was only to indicate the background of the
appellant who had been implicated in the past in several B
cases involving rioting of a communal nature; and
(vi) The appellant was implicated in a case involving the brutal
murder of a person who had married his former wife and,
having regard to the nature of the offence, it was open to
the detaining authority to arrive at the satisfaction that there C
was a real possibility of the appellant indulging in prejudicial
activity if he were to be released on bail.
11. The rival submissions fall for consideration.
12. The expression “goonda” is defined in the Telangana Offenders
Act 1986 in the following terms: D
“(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” E
Section 3 contains the power to make orders of preventive
detention:
“3. (1) The Government may, if satisfied with respect to any boot-
legger, dacoit, drug-offender, goonda, immoral traffic offender
F
[Land-Grabber, Spurious Seed Offender, Insecticide Offender,
Fertilizer Offender, Food Adulteration Offender, Fake Document
Offender, Scheduled Commodities Offender, Forest Offender,
Gaming Offender, Sexual Offender, Explosive Substances
Offender, Arms Offender, Cyber Crime Offender and White Collar
or Financial Offender] that with a view to preventing him from G
acting in any manner prejudicial to the maintenance of public order,
it is necessary so to do, make an order directing that such person
be detained.
(2) If, having regard to the circumstances prevailing or likely to
prevail in any area within the local limits of the jurisdiction of a H
1188 SUPREME COURT REPORTS [2019] 18 S.C.R.
A District Magistrate or a Commissioner of Police, the Government
are satisfied that it is necessary so to do, they may, by order in
writing, direct that during such period as may be specified in the
order, such District Magistrate or Commissioner of Police may
also, if satisfied as provided in sub-section (1), exercise the powers
conferred by the said sub-section:
B
Provided that the period specified in the order made by the
Government under this sub-section shall not in the first instance,
exceed three months, but the Government may, if satisfied as
aforesaid that it is necessary so to do, amend such order to extend
such period from time to time by any period not exceeding three
C months at any one time.
(3) When any order is made under this section by an officer
mentioned in sub-section (2), he shall forthwith report the fact to
the Government together with the grounds on which the order
has been made and such other particulars as in his opinion, have a
D bearing on the matter, and no such order shall remain in force for
more than twelve days after the making thereof, unless, in the
mean time, it has been approved by the Government.”
Section 11 deals with the procedure before the Advisory Board:
E “11. (1) The Advisory Board shall, after considering the materials
placed before it and, after calling for such further information as
it may deem necessary from the Government or from any person
called for the purpose through the Government or from the person
concerned, and if, in any particular case, the Advisory Board
considers it essential so to do or if the person concerned desires
F to be heard, after hearing him in person, submit its report to the
Government within seven weeks from the date of detention of
the person concerned.
(2) The report of the Advisory Board shall specify in a separate
part thereof the opinion of the Advisory Board as to whether or
G not there is sufficient cause for the detention of the person
concerned.
(3) When there is a difference of opinion among the members
forming the Advisory Board, the opinion of the majority of such
members shall be deemed to be the opinion of the Board.
H
KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS. 1189
[DR DHANANJAYA Y CHANDRACHUD, J.]
(4) The proceedings of the Advisory Board and its report, A
excepting that part of the report in which the opinion of the
Advisory Board is specified, shall be confidential.
(5) Nothing in this section shall entitle any person against whom a
detention order has been made to appear by any legal practitioner
in any matter connected with the reference to the Advisory Board.” B
Section 12 provides for the action to be taken on the receipt of the
report of the Advisory Board:
“12. (1) In any case where the Advisory Board has reported that
there is, in its opinion, sufficient cause for the detention of a person,
the Government may confirm the detention order and continue C
the detention of the person concerned for such period, not
exceeding the maximum period specified in section 13 as they
think fit.
(2) In any case, where the Advisory Board has reported that there
is, in its opinion, no sufficient cause for the detention of the person D
concerned, the Government shall revoke the detention order and
cause the person to be released forthwith.”
Section 13 provides for the maximum period of detention:
“13. The maximum period for which any person may be detained,
E
in pursuance of any detention order made under this Act which
has been confirmed under section 12, shall be twelve months from
the date of detention.”
13. The order of detention in the present case contains a reference
to fourteen cases which were instituted against the appellant between
F
2007 and 2016. The chart provided on behalf of the State Government
which has been extracted earlier indicates that out of the fourteen cases,
five cases which pertain to 2012 were transferred to the SIT for
investigation; there being no change in that position. Four cases pertaining
to 2007 are pending trial. The appellant has been acquitted in four cases
of 2009, 2011, and 2012. The case of 2016 was compromised in a Lok G
Adalat on 8 September 2017.
14. In Sama Aruna v State of Telangana18, this Court while
construing the provisions of the Telangana Offenders Act 1986 held:
18
(2018) 12 SCC 150 H
1190 SUPREME COURT REPORTS [2019] 18 S.C.R.
A “16. Obviously, therefore, the power to detain, under the 1986
Act can be exercised only for preventing a person from engaging
in, or pursuing or taking some action which adversely affects or is
likely to affect adversely the maintenance of public order; or for
preventing him from making preparations for engaging in such
activities. There is little doubt that the conduct or activities
B
of the detenu in the past must be taken into account for
coming to the conclusion that he is going to engage in or
make preparations for engaging in such activities, for many
such persons follow a pattern of criminal activities. But the
question is how far back? There is no doubt that only
C activities so far back can be considered as furnish a cause
for preventive detention in the present. That is, only those
activities so far back in the past which lead to the conclusion
that he is likely to engage in or prepare to engage in such
activities in the immediate future can be taken into account.
In Golam Hussain v. State of W.B. [Golam Hussain v. State of
D
W.B., (1974) 4 SCC 530 : 1974 SCC (Cri) 566] this Court observed
as follows: (SCC p. 535, para 5)
“5. No authority, acting rationally, can be satisfied,
subjectively or otherwise, of future mischief merely because long
ago the detenu had done something evil. To rule otherwise is to
E sanction a simulacrum of a statutory requirement. But no
mechanical test by counting the months of the interval is sound. It
all depends 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
F information of participation being available only in the course of
an investigation. We have to investigate whether the causal
connection has been broken in the circumstances of each case.”
Suffice it to say that in any case, incidents which are said to
have taken place nine to fourteen years earlier, cannot form
G the basis for being satisfied in the present that the detenu
is going to engage in, or make preparation for engaging in
such activities.”
(Emphasis supplied)
In the facts of that case, the Court held that the order of detention
H was passed on stale grounds, which could not have been considered as
KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS. 1191
[DR DHANANJAYA Y CHANDRACHUD, J.]
relevant for arriving at the subjective satisfaction that the detenu must A
be detained. This Court held thus:
“17. The detention order must be based on a reasonable
prognosis of the future behaviour of a person based on his
past conduct in light of the surrounding circumstances. The
live and proximate link that must exist between the past B
conduct of a person and the imperative need to detain him
must be taken to have been snapped in this case. A detention
order which is founded on stale incidents, must be regarded as an
order of punishment for a crime, passed without a trial, though
purporting to be an order of preventive detention. The essential
concept of preventive detention is that the detention of a C
person is not to punish him for something he has done but
to prevent him from doing it. See G. Reddeiah v. State of A.P.
[G. Reddeiah v. State of A.P., (2012) 2 SCC 389 : (2012) 1 SCC
(Cri) 881] and P.U. Iqbal v. Union of India [P.U. Iqbal v. Union
of India, (1992) 1 SCC 434 : 1992 SCC (Cri) 184]. D
(Emphasis supplied)
15. In the present case, the order of detention states that the
fourteen cases 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 E
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 F
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 G
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 H
1192 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 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
B
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.
C 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
D
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.
16. Apart from the above position, Section 12 of the Telangana
E 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
F has the discretion whether or not to confirm the detention upon receipt
of the report of the Advisory Board recording sufficient cause for
detention. The relevance of the action of the government upon the report
of the Advisory Board has been discussed in a three-judge Bench decision
of this Court in Shibapada Mukherjee v State of W B19, where a
similarly worded Section 12 of the West Bengal (Prevention of Violent
G Activities) Act 1970 was discussed. Justice J M Shelat speaking for the
Bench held thus:
“6. Section 10 of the present Act requires the State Government
to refer the case to the Board within 30 days from the date of
19
H (1974) 3 SCC 50
KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS. 1193
[DR DHANANJAYA Y CHANDRACHUD, J.]
detention, and Section 11 requires the Board to submit its report A
within ten weeks from such date. The reason for prescribing
these periods is obvious, that is to enable the State
Government to decide, in the event of the Board reporting
that there is sufficient cause for detention to confirm the
detention order and to continue the detention thereunder
B
“for such period as it thinks fit”. [Section 12(1).] The
significant words in Section 12 are the words “confirm” the
detention order and “continue” the detention thereunder,
“for such period as” the State Government thinks fit. The
order passed or the decision made under Section 12(1) by
the State Government, thus, falls into two parts: (a) C
confirming the detention order upon the report of the Board
as to the sufficiency of the cause for detention, and (b)
deciding to continue the detention under that order... If on
receipt of the Advisory Board’s report, Government wants
to continue the detention for a further period, it has got to
D
make an order or a decision to confirm that order and
continue the detention, for without such an order or decision
the detention would not validly subsist beyond the period
of three months. Though, therefore, Section 12 does not in
express terms lay down that the decision to confirm the detention
order and to continue thereunder the detention is to be made before E
the expiry of three months, such a time-limit is implicit in the section.
The reason is plain. As aforesaid, Government cannot keep a
person under detention for a day longer than three months
if the report of the Board does not justify the detention.
The continuation of detention beyond three months can only
F
be made upon the Government obtaining a report showing
sufficiency of cause before the expiry of the period of three
months... If there is no such decision to confirm the order and to
continue the detention thereunder, detention has to come to an
end on the expiry of three months from the date of detention.
Such an order or decision has therefore, to be made before the G
period of three months, for without such an order the detention
would otherwise cease to be valid.”
(Emphasis supplied)
H
1194 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 17. In the present 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
query and the response provided are in the following terms:
S No Particulars Information Provided
B 1 While my brother was in detention under the This institution has not received any
detention order dated 25-10-2018 till 28-02- Confirmation or Revocation order
2019, did the Prison authorities received any pertaining to the Detenu Prisoner
confirmation/ revocation of the detention No.723, Kha ja Bilal Ahmed, S/o
order by the Government u/s 12 of the “1986 Khaja Hassan, from the date of
Act” pursuant to appearance before the production of said detenu prisoner
C Advisory Board on 03-11- 2018? before the Advisory Board of
Preventive Detention to the date of
release of the said detenu from this
institution, viz., from 03-12-2019 to
28-02-2019.
2 If any such confirmation/ revocation was Since no such Confirmation or
D
received in the case of Khaja Bilal Ahmed, Revocation order pertaining to the
Detenu no 723, was a copy of the same Detenu Prisoner no 723, Kha ja Bilal
served to him? Ahmed, S/o Kha ja Hassan, was
received in this institution, a copy of
the order was not served to the said
detenu prisoner.
E
18. 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 said order
F
contains the following endorsement:
“The Superintendent of Jails, Central Prison, Cheriapally, Medhal-
Malajgiri Dist. (he should serve the Order on the detenu
immediately under proper dated acknowledgment and
arrange to read over and explain the contents of the same in the
G language known to the detenu and report compliance to the
Government forthwith).”
(Emphasis supplied)
19. The order of confirmation found no mention either during the
H proceedings before the High Court or in the first counter affidavit which
KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS. 1195
[DR DHANANJAYA Y CHANDRACHUD, J.]
was filed before this Court on 18 July 2019. The record indicates that no A
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
B
was at all in existence on the relevant date.
20. The detention order dated 25 October 2018 has to be set
aside on the following grounds: (i) reference to stale and irrelevant grounds
in the detention order by the detaining authority; and (ii) 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 C
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, as has been pointed earlier, has not been filed till date. There was
no reasonable basis on which the detaining authority could have come to D
a conclusion that:
(i) On being released on bail, the appellant would in all
probability indulge in prejudicial activity; and
(ii) It was necessary to detain him, to prevent him from
engaging in prejudicial activity. (See in this context E
Kamarunnissa v Union of India20).
21. We accordingly allow the appeal and set aside the impugned
judgment and order of the High Court dated 13 June 2019. The order of
detention accordingly stands quashed.
F
22. Pending application(s), if any, shall stands disposed of.
Nidhi Jain Appeal allowed.
G
20
(1991) 1 SCC 128 H
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