KHAJA BILAL AHMED v. STATE OF TELANGANA & Ors.

1.4 The detention order has to be set aside on the grounds of reference to stale and irrelevant grounds in the detention order by the detaining authority; and the manner in which the order of confirmation dated 28 December 2018 was presented before this Court, casts doubt on the existence of the order of confirmation in the first place. As regards the registration of Crime no 178 of 2018, the appellant was released on bail consequent upon the failure of the investigating authority to file a charge–sheet within ninety days. A charge–sheet, has not been filed till date. There was no reasonable basis on which the detaining authority could have come to a conclusion that on being released on bail, the appellant would in all probability indulge in prejudicial activity; and it was necessary to detain him, to prevent him from engaging in prejudicial activity. Thus, the impugned judgment and order of the High Court is set aside and the order of detention is quashed. [Paras 20–21][1195-C-F] Sama Aruna v. State of Telangana (2018) 12 SCC 150; Lakshman Khatik v. State of West Bengal (1974) 4 SCC 1; Rameshwar Shaw v. District Magistrate Burdwan AIR 1964 SC 334 : [1964] 4 SCR 921; Yumman Ongbi Lembi Leima v. State of Manipur (2012) 2 SCC 176; Nirmal Kumar Khandelwal v. Union of India (1978) 2 SCC 508; Cherukuri Mani v. Chief Secretary, Govt of AP (2015) 13 SCC 722; Kamarunnissa v. Union of India (1991) 1 SCC 128; Champion R Sangma v. State of Meghalaya (2015) 16 SCC 253; Subramanian v. State of T N (2012) 4 SCC 699; Shibapada Mukherjee v. State of W B (1974) 3 SCC 50; Kamarunnissa v. Union of India (1991) 1 SCC 128 – referred to. Case Law Reference (2018) 12 SCC 150 (1974) 4 SCC 1 referred to referred to Para 9 Para 9 A B C D E F G H 1178 SUPREME COURT REPORTS [2019] 18 S.C.R. A AIR 1964 SC 334 (2012) 2 SCC 176 (1978) 2 SCC 508 referred to referred to referred to B (2015) 13 SCC 722 referred to (1991) 1 SCC 128 referred to (2015) 16 SCC 253 referred to (2012) 4 SCC 699 C (1974) 3 SCC 50 referred to referred to Para 9 Para 9 Para 9 Para 9 Para 9 Para 9 Para 10 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 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. 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.

#1. The Division Bench of the High Court for the State of Telangana by its judgment dated 13 June 2019, dismissed a challenge to an order of detention dated 25 October 2018.

#2. The appellant was detained under the provisions of sub-section 2 of Section 3 of the Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances D E F G H KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.] 1179 Offenders, Arms Offenders, Cyber Crime Offenders and White Collar 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 Business, Charminar, Hyderabad is a “Goonda” and has been habitually and continuously engaging himself in unlawful acts and indulging in the acts of goondaism by acting as a leader/member of criminal gang and committed gruesome and heinous offences like Murder/Attempt to Murder/ Rioting/Criminal trespass and Assault on Public Servants in the Police Station limits of Hyderabad City and Rachakonda Commissionerate and thereby caused harm, panic and terror among the innocent general public of the area and on account of his criminal activities, his presence in the locality is adversely affecting the public order and thus he has acting in a manner prejudicial to maintenance of public order apart from disturbing the peace, tranquility, social harmony in the society.” The order then sets out a reference to fourteen cases which were registered against the appellant under various heads of crime within the limits of Hyderabad City. These cases were registered between 2007 and 2016. One of the cases against the appellant under Sections 323 and 341 of the Indian Penal Code 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: “The above cases are referred as his antecedent, criminal history and conduct. Though, cases were registered, arrested by Police and a Rowdy sheet is being maintained at PS Rain Bazar of Hyderabad City, he could not mend his criminal way of life and continued to indulge in similar offences soon after coming out on bail.” The order of detention thereafter proceeds to state that in 2018, the appellant was implicated in Crime no 178 of 2018 under Sections 1 “Telangana Offenders Act 1986” 2 “IPC” 3 “SIT” A B C D E F G H 1180 SUPREME COURT REPORTS [2019] 18 S.C.R. A B C D E F G 364, 302, 120B and 506 read with Section 34 of the IPC at PS Abdullapurmet of Rachakonda Commissionerate which is under investigation. The “dangerous activities of the offender and his associates” are stated to have caused panic and a feeling of insecurity in the minds of the general public living within the limits of Hyderabad City and Rachakonda Police Commissionerate, thereby disturbing the peace and tranquillity of the area in a manner prejudicial to the maintenance of public order. The order of detention was passed by the Commissioner of Police on the basis of the following satisfaction: “WHEREAS. I, Mahesh M. Bhagwat, IPS, Commissioner of Police, Rachakonda, am satisfied on examination of the material placed before me that the offender Khaja Bilal Ahmed has been repeatedly indulging himself in the manner of goondaism by acting a leader/member of criminal gang and committed gruesome offences such as Murder/Attempt Murders/ Rioting in an organized fashion, creating a feeling of insecurity to their life in the minds of General Public and thus 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)”

#3. On 26 October 2018, the appellant filed an application for bail4 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 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 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” 6 Writ petition no 41187 of 2018 H KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.] 1181 the order of the State government confirming the order of detention was 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.

#5. On an interlocutory application8 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 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 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 : S NO 1 2 3 4 5 6 7 8 9 CASE NO UNDER SECTION CURRENT STATUS 147,148,188,153 r/w Section 149 of IPC & Section 7 of Criminal Law Amendment Act, 1932 147,148,332,188,153(A) R/W 149 of IPC 147,148,332,307,188,153(A) r/w 149 of IPC & Section 7 of Criminal Law Amendment Act, 1932 147,148,382 r/w 149 of IPC 147, 148, 427 r/w 149 of IPC 147,148,324,506,153(A),159 of IPC 147,148,506,427,153(A),159 of IPC 147,148,324,506,153(A) r/w 149 of IPC 147,148,448,427,506,153(A) r/w 149 of IPC Transferred to SIT. Still under investigation Transferred to SIT. Still under investigation Transferred to SIT. Still under investigation Transferred to SIT. Still under investigation Transferred to SIT. Still under investigation Pending trial Pending trial Pending trial Pending trial 7 Writ petition no 43814 of 2018 8 IA 1 of 2019 A B C D E F G H 1182 SUPREME COURT REPORTS [2019] 18 S.C.R. A CASES IN WHICH ACQUITTED: S NO CASE NO UNDER SECTION CURRENT STATUS 10 11 12 13 149 , 353, 427 r/w 34 of IPC 147, 353, 427, 332 r/w 149 of IPC & Section 7 of Criminal Law Amendment Act, 1932 & Section 4 of PDPP Act of Reinbazar PS. Hyderabad city 447,353,427 and 506 of IPC 147,148,324,307,427, 506 r/w 149 of IPC & Section 27 of Indian Arms Act Acquitted Acquitted Acquitted Acquitted CASE WHICH IS COMPROMISED: S NO CASE NO UNDER SECTION CURRENT STATUS 14 341 and 323 of IPC Compromised in Lok 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 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, 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 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.” (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 B C D E F G H KHAJA BILAL AHMED v. STATE OF TELANGANA & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.] 1183 order. The same are referred by way of his criminal back ground only.” A (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. 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 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 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 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 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 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 B C D E F G H 1184 SUPREME COURT REPORTS [2019] 18 S.C.R. A B C D E F G H and the detention order as they are of the years 2007 and 2012 except for Crime no 178 of 2018: (i) (ii) 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; 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; (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 (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 Manipur12. II Non-confirmation of the detention order within three months would result in its automatic revocation. (i) (ii) The appellant was in detention from 25 October 2018 until 27 February 2019, for a period of four months without confirmation by the government under Section 12; 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 received any confirmation or revocation of the detention order pertaining to the appellant;