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STALE AND IRRELEVANT GROUNDS IN THE DETENTION ORDER BY THE DETAINING AUTHORITY IS A GROUND TO QUASH

KHAJA  BILAL  AHMED   v.  STATE  OF  TELANGANA  & ORS Criminal Appeal No. 1876 of 2019 SLP (Crl.) No. 5487 of 2019 – December 18, 2019.

The facts of the case were that the appellant was detained u/s 3 of the Telangana Prevention of Dangerous Activities Act 1986. An order of detention was issued by the Commissioner of Police, Rachakonda. This order sets out a reference to 14 cases under various heads of crime within Hyderabad City. The appellant filed an application for bail and was allowed by the Additional Metropolitan Magistrate on the ground that the investigation agency had failed to complete the investigation within the period allowed. Also an order of detention was served on the appellant while he was still in the jail custody. A writ petition was filled challenging the order of detention and order of the state government confirmed the detention. The HC dismissed the writ petition challenging the order of detention which gave rise to the proceedings before this court under Article 136 of the Constitution.

The counsels for the appellant argued that the grounds relied upon by the Commissioner of Police in the detention, are stale and have no link between the antecedent activities and detention order. The order of detention mentioned 15 cases but relied upon a single case for crimes u/s 302 and 364. Out of the 15 cases, the detenu is acquitted in 6 cases and 8 cases are pending. In Sama Arune v. State of Telangana, Lakshman Khatik v State of West Bengal, Rameshwar Shaw v District Magistrate Burdwan and Yumman Ongbi Lembi Leima v State of Manipur it was held that the order of detention was invalid. Non-confirmation of the detention order within 3 months would result in its automatic revocation. Reliance has been placed in Nirmal Kumar Khandelwal v Union of India and Cherukuri Mani v Chief Secretary, Govt of AP in arguing that the detention order beyond 3 months should be confirmed by the appropriate government. The detention order stated that the appellant would get mandatory bail u/s 167 of CrPC and has been passed on the apprehension of bail being granted. Adequate measure is available under ordinary law and hence preventive detention not required. The detention order confirmed u/s 3(2) and appellant was arrested and was granted statutory bail u/s 167 CrPC.

The counsel for the State of Telangana argued that the court do not interfere with the subjective satisfaction of the detaining authority relying on the case Subramanian v. State of TN . The counsel also argued that a single offence can legitimately form the subject matter of an order of detention and was approved u/s 3(3) of the Telangana Offenders Act 1986 and thus there was no delay in confirming the order. The order of Advisory Board was passed and State Government confirmed the detention.

The court held that; 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 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 a conclusion that:(a) On being released on bail, the appellant would in all probability indulge in prejudicial activity; and
(b) It was necessary to detain him, to prevent him from engaging in prejudicial activity. (See in this context Kamarunnissa v Union of India20).

The court after analyzing the arguments of the parties set aside the detention order on the grounds that the reference to stale grounds in the detention orders and the manner in which the order is confirmed. The court accordingly allowed the appeal and set aside the impugned judgment and order of the HC. The order of detention thus stands quashed.

–  PRIYADHARSHINI R

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