Syed Jalaluddin vs Government of Andhra Pradesh and Others

Sivaraman Nair, J.—Petitioner is the father of Syed Ghousuddin who was detained in Central Prison, Chanchalguda, Hyderabad, pursuant to an order of detention passed by the 2nd respondent in order SB(1) No. 7/S7/COA/91 dt. 27-9-91. The initial period of detention was four weeks from 28-9-91. The order was passed under S. 3(3) of the A.P. Prevention of Dangerous Activities of Communal Offenders Act, 1984, hereinafter referred to as ''the Act''. The order as approved by the 1st respondent in G.O. Rt. No. 4716 G.A.D. dt. 9-10-91 and under S. 12(1) of the Act. In G.O. No. 4921 dt. 23-10-1991 the same was confirmed by the Government, continuing the detention for a period of four weeks from 28-9-1991. In G.O. 4942 dt. 24-10-1991, the 1st respondent directed that the detention of the petitioner should be continued for the maximum period of six months from the date of detention. Petitioner had in the meantime, submitted a representation against the detention order to the Advisory Board. It was therefore that Government passed orders on 26-11-1991 in Memo No. 1267/Gen. A/91-3 rejecting the representation. Petitioner submits that the order of detention and its approval and confirmation and its continuance for the full time as provided in the Act as also the rejection of the representation are illegal and unconstitutional. Petitioner submits that the Act permits detention of only communal offenders as defined in S. 2(b). ''Communal Offender'' is defined to mean - "a person who, either by himself or as a member or as leader of a gang or an organisation commits or attempts to commit or abets or incites the commission of offences punishable under S. 153A and S. 153B of the IPC. or under Chapter XV of the said Code". He submits that only such communal offenders can be detained to prevent them from acting in any manner prejudicial to the maintenance of public Order. The submission of the petitioner is that there is no finding in the order or in the grounds that the detenu was a ''communal offender'' as defined in the Act. What is stated in the grounds is that he is a dangerous fanatic and is therefore a threat to maintenance of Public Order. He also submits that only such act which is mentioned in the grounds is that a rowdy sheet was opened in respect of him on 2-3-1991. Petitioner submits even that will not justify the order of detention. Reference is also made to the FIR in crime No. 116/1990 in respect of an incident which took place on 8-12-1990, in which, it was stated that six unknown culprits came abruptly, surrounded the complainant, fisted him and one of them stoned on the back side of the complainant due to religious feeling and attempted to take away the life of the complainant. Detenu was not identified as on the assailants in the statement; nor was he mentioned as an assailant in the first Information Report which the complainant had filed. Petitioner therefore submits that the assertion contained in the grounds that on 8-12-1990 when the city was under communal tension, the detenu along with his associates armed with deadly weapons formed an unlawful assembly with a common object and intention to strike terror in the people of one section and to create communal disharmony attacked and stabbed Sri D. Satyanarayana, is untrue and unsustainable. He submits further that the police filed a final charge sheet in crime No. 116/90 on 2nd October, 1991 and that disclosed offences punishable under S. 153-A and offences under Chapters XV and XVI of the Indian Penal Code. Petitioner submits that the statements of identifying witnesses recorded by the investigating officer under S. 161, Cr.P.C. were not annexed to the grounds. He submits further that the non-supply of the application for bail and the order granting the same violates his right under Art. 22(6) of the Constitution of India. He submits finally that the single incident in crime No. 116/90 did not justify an assumption that it was necessary to detain the petitioner to prevent him from acting in any manner prejudicial to the maintenance of public order.

In the counter affidavit filed by the detaining authority, it is stated that crime No. 116/90 was against a group of persons belonging to one community who indulged in criminal activities inciting communal frenzy and the detenu was arrested along with some others immediately after the incident. He submits that communal disturbances rocked the city again in September, 1991. In the meantime, a rowdy sheet was opened in respect of the petitioner in view of his criminal activities and potentialities. In view of the antecedent history of indulging in communal frenzy, the detaining authority felt it necessary to invoke the powers under S. 3(2) of Act with a view to effectively prevent the detenu and some others from indulging in prejudicial activities. The detaining authority asserts that on the material placed before him more particularly the circumstances prevailing at the relevant time and the manner in which the detenu had committed the offences on 8-12-1990 he had satisfied (sic) for passing the order of detention. It is submitted that the period of interval between the offences committed by the detenu and the date on which the order of detention was passed cannot by itself be determinative. According to him, the situation which was prevailing in September 1991 was almost similar to that which obtained in December, 1990 when the detenu involved himself in acts of communal frenzy. He submits further that the FIR was registered as crime No. 116/90 for offences punishable under Ss. 149, 307 read with S. 149, IPC. Information received in the course of investigation provided details of the nature of the crime and therefore final charge was laid also under S. 148, 153A, IPC and Sections 3, 2(ii) of TADA. A copy of the chargesheet was supplied to the detenu to show that he was charged under S. 153A of the IPC as well. It is submitted that further that no prejudice was caused to the detenu by reason of non-supply of S. 161 statements and that it was gleaned from the investigation that the detenu was a communal offender as defined in S. 2(b) of the Act. It is further submitted that he was satisfied that disclosure of further details and the grounds was not in public interest and that such non-disclosure is covered by S. 8(2) of the Act as well as Art. 22(6) of the Constitution of India. Referring to the contention that the detaining authority did not apply its mind to the fact that the detenu was enlarged on bail in crime No. 116/90 and the alternative submission that non-supply of the bail application and the order thereon violated the provisions of Art. 22(5) of the Constitution of India, the detaining authority asserted that he had only adverted to the fact that the petitioner was on bail and had not relied upon that circumstance for the purpose of his detention. He also submitted that even assuming that the fact of his release on bail was considered as a material fact, non supply of copy of the application to the detenu for grant of bail and the order thereon did not cause any prejudice to the detenu.

The first question to be considered is whether the detaining authorty was right in considering the detenu as a communal offender as defined in S. 2(b) of the Act ? It cannot be disputed that the final charge in crime No. 116/90 has been laid, among others, for offences punishable under S. 153A of the IPC. The averments contained in the FIR and the charge in that crime clearly make out that the detenu was a member of a gang which committed or attempted to commit or abetted or incited the commission of the offence under S. 153A. Such a person falls squarely within the definition of communal offender under S. 2(b) of the Act.

The next question to be considered is whether a communal offender shall be a person who commits or attempts to commit or abets or incites to commit the specified offences repeatedly and persistently as if he is a ''habitual'' in the matter of commission or attempt to commit such offences. The definition does not require unlike in the definition of ''goonda'' in the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits Drug Offenders, Goondas Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short the A.P. Prevention of Dangerous Activities Act) that a person shall "by himself or as a member of or leader of a gang, habitually commits or attempts to commit or abets the commission of offence punishable under Chapter XVI or Chapter XVII or Charter XXII of the IPC." Even assuring that the element of ''habitual'' commission is necessary, a single incident viz., crime No. 116/90 may perhaps be sufficient to indicate the propensities of the person. The Supreme Court had occasion to consider the same question in Fitrat Raza Khan Vs. State of Uttar Pradesh and Others, in the context of communal violence which gripped Moradabad on August 13, 1980 and July 24, 1981 with an interval of one year. The Supreme Court held that -

"both the incidents show the propensities of the petitioner to instigate the members of the Muslim community to communal violence. The act on the part of the petitioner squarely fell within the realm of public order, as it was calculated to disturb public peace and tranquility." and

"The memory of the communal riots is all too recent to be a thing of the past. The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order".

The Court held that -

"It cannot be said that the prejudicial conduct or antecedent history of the petitioner was not proximate in point of time and had no rational connection with the conclusion that his detention was necessary for maintenance of public order."

In Mrs Saraswathi Seshagiri Vs. State of Kerala and Another, the question which fell for consideration was whether a single incident violating the provisions of the Conservation of Foreign Ex-change and Prevention of Smuggling Activities Act was sufficient to justify satisfaction necessary to the detaining authority to pass the order of detention on the ground that he would repeat his activity in future also. The Court held that the grounds disclosed that the detenu acted in a planned and pre-meditated manner by clever concealment of smuggled goods in several parts of his baggage and that fully justified the detaining authority in coming to the conclusion that the detenu might repeat his illegal act in future also and that his detention was necessary to prevent him from repeating the same in future.

A constitution Bench of the Supreme Court in Debu Mahato Vs. The State of West Bengal, has dealt with a similar question and held (at page 701; of Cri LJ) :

"We must of course make it clear that it is not our view that in no case can a single solitary act attributed to a person form the basis for reaching a satisfaction that he might repeat such acts in future and in order to prevent him from doing so, it is necessary to detain him. The nature of the act and the attendant circumstances may in a given case be such as to reasonably justify an inference that the person concerned, if not detained, would be likely to indulge in commission of such acts in future."

On the basis of the above pronouncements of the Supreme Court which are of a conclusive nature, it is not possible to accede to the submission that on the basis only of one single incident of an offence committed by the detenu, the detaining authority could not have satisfied that the detention of the detenu was necessary so as to prevent him from acting in any manner prejudicial to the maintenance of public order.

Section 8(2) of the Act is almost in the same terms as Article 22(6) of the Constitution of India and provides that :

"Nothing in sub-section (i) shall require the authority to disclose facts which it considers to be against public interest to disclose."

The material which would disclose viz., statements recorded from the witnesses or information received during the course of investigation provided further details of the nature of the crime, resulted in the inclusion of Section 324, 326 and 153A of the I.P.C. and Sections 32(ii) of TADA in the final charge. The Advocate General submits that such information relating to a communal offence was very sensitive in character and that was the reason why the detaining authority did not disclose further details in the context of the communal situation which was prevailing in the city. It is clear from the grounds and the documents which accompanied that including final charge that information was conveyed to the detenu about the nature of the offences which were disclosed in the final charge and the persons from whom information was gathered. Counsel for the petitioner submitted that at least before the commencement of the trial the detenu was entitled to copies of all the trial the detenu was entitled to copies of all the statements recorded from persons witnesses during the course of investigation and who are to be examined as witnesses. He submits that such statements as have to be furnished to the detenu could not be classified as sensitive material and non-disclosure of such material could not be protected by Section 8(2) of the Act or Art. 22(6) of the Constitution of India. We should remember that we are not the ultimate arbitrators of the propriety or sufficiency of the materials necessary for the detaining authority to come to the satisfaction provided u/s 3 of the Act. That is primarily for the detaining authority. We are not able to interfere with the order for the only reason that grounds were not sufficient to justify satisfaction of the detaining authority either on the need for detention or any justification for non-disclosure of some of the grounds. Non-disclosure can be relied upon as a ground vitiating the order only if the detenu is able to show that he was prejudiced by reason of such non-disclosure. We are of the opinion that in the prevailing situation of communal violence which was likely to erupt as a major conflagration, the question of sufficiency of the material which was sensitive in nature must be left to the detaining authority, and such classification can be assailed only in case where the detenu alleges and proves prejudice by reason of such classification and non-disclosure of the material.

We draw support for this view from a number of decisions of the Supreme Court. Reference need be made only to a few viz., Mst. L.M.S. Ummu Saleema Vs. Shri B.B. Gujaral and Anr, , Haridas Amarchand Shah of Bombay Vs. K.L. Verma and Others, and Madan Lal Anand Vs. Union of India and others, .

The question whether pasing reference to the effect that the detenu has been enlarged on bail will justify his submission that the application for and the order grating bail ought to have been communicated to the detenu was considered by the Supreme Court on a number of occasions. It was so considered by a Division Bench of the this Court in Rajesh Kumar v. Govt. of A.P. That decision was approved by the Supreme Court as is evident from the above report.

Non-supply of copies of the bail application filed by the detenu or on his behalf and the order passed thereon which ordinarily must be presumed to be in his possession was considered in Raj Kumar Singh Vs. State of Bihar and Others, , M. Ahamedkutty Vs. Union of India (UOI) and Another, , Dharmendra Suganchand Chelawat and another Vs. Union of India and others, , Sanjay Kumar Aggarwal Vs. Union of India (UOI) and Others, and Abdul Sathar Ibrahim Manik Vs. Union of India and others, . We do not think it necessary to multiply authorities on this point. It seems to us clear that mere advertence to the fact of the detenu being released on bail in respect of a previous offence does not obligate application of mind to the terms and conditions of the bail granted or the disclosure of the application and order granting bail. The detaining authority is bound to apply its mind to the question as to whether the detenu already enlarged on bail did have the propensities to act in a prejudical manner in future, so that his detention was necessary for maintenance of public order. We are satisfied that in the present case the detaining authority exercised his mind to this relevant what at the time when he passed the order. We are therefore not persuaded to interfere with the order of detention.

The next question which we have to consider is whether the order approving, confirming and continuing the detention are vitiated and are liable to be avoided. Petitioner submitted that the brother of the detenu had submitted a representation on 27-1-1991. In para 6 of the counter the detaining authority asserted that no such representation was received. On the other hand an un-dated representation of one Mr. Sayed Rasheeduddin was received on 11-11-1991. After considering the said representation, the Government called for remarks of the detaining authority on 15-11-1991. The detaining authority received that representation with the Government Memo. No. 1267/Gel.A/91-92 on 19-11-1991 and he submitted his remarks on 21-11-1991. Thereupon a detailed note was put up before the Chief Secretary on 23-11-1991, for his approval. It was thereafter that the Chief Secretary considered the representation and the remarks and rejected the same. That order was communicated to the detenu on 26-11-1991.

In the light of these facts we are of the opinion that there was no delay in considering the representation and passing final orders. In this view, the petitioner is not entitled to any relief in this Writ Petition.

The Writ Petition therefore fails and the same is hereby dismissed.

Petition dismissed.

>J