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2004 DIGILAW 298 (AP)

Fatima Munawar Hussain v. Government Of A. P.

2004-03-11

DEVENDER GUPTA, G.ROHINI

body2004
G. ROHLNI, J. ( 1 ) THIS writ petition has been filed challenging the order dated 2. 9. 2003 passed by the Commissioner of police, Hyderabad, wherein the son of the petitioner by name Khalid Munawar @ Stick baba @ Baba was detained in exercise of the powers conferred under sub-section (2) of Section 3 of the Andhra Pradesh prevention of Dangerous Activities of Boot leggers, Dacoits, Drug Offenders, Goondas, immoral Traffic Offenders and Land grabbers Act, 1986 (for short, the Act ). ( 2 ) IN the affidavit filed in support of the writ petition, it is stated that on 1. 9. 2003 the Inspector of Task Force, South Zone, hyderabad along with his constables forcibly entered into the house of the petitioner and took away her son. It is alleged that the said Inspector of Police is the maternal uncle of one Mannan Gouri and due to personal grudge, the son of the petitioner was kept in illegal detention in Kalapather police Station. It is stated that when the petitioner made enquiries about her son and went to Kalapather Police Station, the next day, she was informed that her son was sent to Central Prison, Chenchalguda, hyderabad, in pursuance of the impugned order of detention dated 2. 9. 2003. ( 3 ) THE petitioner initially filed W. P. No. 19502 of 2003 on 15. 9. 2003 challenging the impugned order of detention dated 2. 9. 2003. The case of the petitioner was that though a rowdy-sheet was pending against her son (hereinafter referred to as the detenu), on the basis of the grounds of detention, he could not be termed as "goonda" as defined under Section 2 (g) of the Act. It was further contended that the impugned order of detention was not in accordance with the provisions of Section 3 (1) of the Act and that there was absolutely no material before the detaining authority for arriving at a conclusion that an issue of public order is involved. It is also contended that the impugned order of detention on the solitary stale incident cited in the order of detention i. e. , involvement of the detenu in cr. No. 77 of 2003 of Bahadurpura Police station is not sustainable and at any rate even the alleged offences which led to registering Cr. It is also contended that the impugned order of detention on the solitary stale incident cited in the order of detention i. e. , involvement of the detenu in cr. No. 77 of 2003 of Bahadurpura Police station is not sustainable and at any rate even the alleged offences which led to registering Cr. No. 77 of 2003 are all bailable offences and do not attract the provisions of the Act. Yet, another contention raised was that the grounds of detention communicated were not in the language known to the detenu and that the documents upon which reliance was placed by the detaining authority were not communicated to him. Thus, according to the petitioner, the order of detention was in violation of Article 22 (5) of the Constitution of India and liable to be set aside. ( 4 ) WHEN the said writ petition came up for consideration, this Court having noticed that the detenu was served with material papers containing 22 + 32 pages together with translated copies, which were enclosed to the order of detention, but the petitioner failed to place the said papers on record, adjourned the matter to enable the petitioner to supplement the petition by filing material papers supplied to the detenu at the time of his detention. On the adjourned date, it was noticed that the petitioner failed to supplement the petition and therefore the petitioner was granted further time. However, even on the next date of adjournment i. e. , 15. 10. 2003 it was found that the petition was not supplemented and there was also no representation for the petitioner. In the circumstances, on 15. 10. 2003 W. P. No. 19502 of 2003 was dismissed for non-prosecution. Thereafter, the petitioner filed Review wpmp No. 28554 of 2003 seeking to set aside the order dated 15. 10. 2003. Having heard both the parties, the said petition was dismissed on 20. 11. 2003 observing that the dismissal of the writ petition in default does not prevent the petitioner from filing the petition seeking quashing of the detention order on all grounds available to him in law including one taken in the writ petition, that was dismissed for default. The petitioner was accordingly granted leave and liberty to file a fresh writ petition. ( 5 ) THUS, the petitioner filed the present writ petition challenging the impugned order of detention, dated 2. 9. The petitioner was accordingly granted leave and liberty to file a fresh writ petition. ( 5 ) THUS, the petitioner filed the present writ petition challenging the impugned order of detention, dated 2. 9. 2003 on the very same grounds that were raised in w,p. No. 19502 of 2003. ( 6 ) ON behalf of the Commissioner of police, Hyderabad, the detaining authority, counter-affidavit dated 8. 1. 2004 has been filed stating that the order of detention was passed on 2. 9. 2003 and the detenu has been lodged in Central Prison, Chenchalguda, hyderabad. It is also stated that the order of detention was served on the detenu in english and Urdu at his residence on 2. 9. 2003 and the same was acknowledged by him in Urdu. It is further stated that all the documents relied on for passing the order of detention were served on the detenu at Central Prison, Chenchalguda on 4. 9. 2003 and the receipt of the same was acknowledged by him in Urdu. The fact of detention together with the grounds on which the order of detention was made was also communicated to the State government forthwith and that the State government confirmed the order of detention on 10. 9. 2003 vide G. O. Rt. No. 4247. The order of confirmation was communicated to the detenu on 11. 9. 2003. It is further stated that the detenu is a rowdy-sheeter of Kalapather Police Station where the rowdy-sheet was opened on 26. 6. 1999, and that the detention order cannot said to be passed on the solitary stale incident. It is clarified that Cr. No. 77 of 2003 was registered for the offences punishable under sections 448, 506 read with Section 34 of the Indian Penal Code and also Section 365 of the Indian Penal Code, however section 365, IPC. was mistakenly not mentioned in the First Information Report, but later on, the same was also added even before the detention order was passed. The allegation that Cr. No. 77 of 2003 does not involve law and order problem was denied and it is contended that the details of the said offences clearly show that the incident affected the tranquility of the locality and the life of the people and undoubtedly disturbed the public order. The allegation that Cr. No. 77 of 2003 does not involve law and order problem was denied and it is contended that the details of the said offences clearly show that the incident affected the tranquility of the locality and the life of the people and undoubtedly disturbed the public order. It is also stated that the entire material was placed before the detaining authority and the impugned order was passed on his being satisfied that the proceedings under the ordinary criminal law have no effect in curbing the prejudicial activities which were disturbing the public order and that it was necessary to pass the order of detention under section 3 (2) of the Act. It is further stated that the detenu was also an accused in sessions Case No. 222 of 2003, pending on the file of Metropolitan Sessions Judge, nampally, Hyderabad for the offence of murder of an advocate by name Mannan gouri. However, the allegation that the detenu was taken into custody by the inspector of Task Force on 1. 9. 2003 itself was denied and it is stated that he was actually arrested on 2. 9. 2003 by the Inspector of Police, Chandrayanagutta Police Station, hyderabad and sent to Central Prison, chenchalguda, Hyderabad. It is further stated that the detenu was also informed of his right to appear before the Advisory board and to avail assistance of person other than a lawyer and that the required material was forwarded by the Government to the Advisory Board. The case of the detenu was reviewed by the Advisory Board on 1. 10. 2003 and it was opined that there was sufficient cause for the detention of the detenu. ( 7 ) WE have heard the learned Counsel for the petitioner as well as the learned government Pleader who appeared for the learned Advocate-General and perused the entire material on record. ( 8 ) THE learned Counsel for the petitioner while reiterating the contentions raised in the writ petition, submitted that since the period of detention is not specified, the impugned order of detention is vitiated and liable to be set aside on that ground also. In support of his contention, the learned Counsel for the petitioner has placed reliance upon Commissioner of Police v. Gurbux A. Bhiryani, 1988 (Supp) SCC 568. In support of his contention, the learned Counsel for the petitioner has placed reliance upon Commissioner of Police v. Gurbux A. Bhiryani, 1988 (Supp) SCC 568. The learned Counsel for the petitioner has also cited the decision of the Supreme court in Darpan Kumar Sharma v. State of tamil Nadu, AIR 2003 SC 971 , to substantiate his contention that the impugned order of detention on the basis of the solitary stale instance as mentioned in the grounds of detention is not sustainable. ( 9 ) ON the other hand, the learned government Pleader contended that all the allegations made by the petitioner are factually incorrect and that the impugned order of detention has been passed following due process of law and absolutely no case is made out warranting interference of this court. ( 10 ) THE law is well settled that there is no prohibition as such to pass an order of detention on a solitary incident. What is required is the potentiality of the offence alleged and whether the same is sufficient to disturb the normal life of the community in the locality or disturb the general peace and tranquility or create sense of alarm and insecurity in the locality. On the basis of the material available, if the detaining authority is satisfied that such situation exists, the order of detention cannot be said to be vitiated merely on the ground that it is based on a solitary incident. ( 11 ) IN the case on hand, as can be seen from the grounds of detention as well as the documents relied on by the detaining authority, Cr. No. 77 of 2003 was registered on a complaint made by one Syed Younus, s/o. Syed Amin stating that on 17. 4. 2003 he was dragged out of his Car by the associates of the detenu, who abused him in filthy language and threatened with dire consequences, if he did not follow them to criminal Court situated at Nampally, hyderabad, where their leader by name ayub Khan was waiting for him. Since the complainant refused to follow them, he was kidnapped to the Court premises at nampally, where the detenu and other gang members armed with deadly weapons were present together with their leader ayub Khan who was brought thereunder police escort for being produced before the Court in connection with a case. Since the complainant refused to follow them, he was kidnapped to the Court premises at nampally, where the detenu and other gang members armed with deadly weapons were present together with their leader ayub Khan who was brought thereunder police escort for being produced before the Court in connection with a case. It was also alleged in the complaint that the detenu, his associates and their gang leader attacked and beat the complainant syed Younus, threatened him to withdraw his complaint against Ayub Khan and also to pay a sum of Rs. 1,00,000/- to Ayub Khan. The Complainant Syed Younus could be saved only on the intervention of the escort police and the members of the public and that the said incident created panic in the minds of the persons who were present there at that time. On the same day, the detenu was remanded to judicial custody and later he was released on bail and the said case was under investigation. The statement of Syed Younus, dated 18. 4. 2003 as well as the statement of one Mohammad rasheed recorded in Cr. No. 77 of 2003 were also furnished along with the grounds of detention. ( 12 ) ON a perusal of the grounds of detention and the enclosed material, it is clear that the potentiality of the said incident is sufficient to arrive at a conclusion that the normal life of the community in the locality was disturbed and sense of insecurity was created in the locality. There is no plea that the offence alleged against the detenu in Cr. No. 77 of 2003 is false nor any mala fides are attributed on the part of the detaining authority. The fact that a rowdy- sheet is pending against the detenu is also not in dispute. In the circumstances, it cannot be said that there was no sufficient material for subjective satisfaction of the detaining authority that the detenu acted in a manner prejudicial to the maintenance of the public order. ( 13 ) IN this context, it is apt to refer to the following observations made by the supreme Court in Babulal Das v. State of w. B. , (1975) 1 SCC 311 :". . . . . . . . . ( 13 ) IN this context, it is apt to refer to the following observations made by the supreme Court in Babulal Das v. State of w. B. , (1975) 1 SCC 311 :". . . . . . . . . THERE is one exceptional category of cases where a solitary dangerous activity may itself demonstrate its potentiality for continuing criminality and indicate previous practice, experiment and expertise. In such a narrow category of cases it is difficult to predicate abuse of power or absence of application of mind by the authority if preventive detention is directed solely on one specialized crime. " ( 14 ) WE also do not find any merit in the contention of the learned Counsel for the petitioner that the impugned order of detention is vitiated on the ground of non- mention of the period of detention. It is relevant to note that the decision in commissioner of Police v. Gurbux A. Bhiryani (supra), wherein it was held that unless the period of detention was indicated, the order of detention would be vitiated was overruled in a later decision in T. Devaid v. Government of Tamil Nadu, AIR 1990 sc 1086 . In the said case, the Supreme Court while considering the scope of an identical provision under Tamil Nadu Prevention of dangerous Activities of Boot Leggers, Drug offenders, Forest Offenders, Immoral Traffic offenders and Slum Grabbers Act, 1982 held that the Act nowhere requires the detaining authority to specify the period for which the detenu is required to be detained. It is further held as under:"the expression "the State 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" occurring in sub-section (2) of Section 3 relates to the period for which the order of delegation issued by the State Government is to remain in force and it has no relevance to the period of detention. " ( 15 ) THE allegation of the petitioner that the documents relied upon by the detaining authority were not communicated to the detenu is also found to be incorrect and without any basis. The grounds of detention dated 2. 9. 2003 itself contains a specific note that the material papers containing 22 + 32 pages and their translated copies are enclosed. The grounds of detention dated 2. 9. 2003 itself contains a specific note that the material papers containing 22 + 32 pages and their translated copies are enclosed. It is the specific case of the detaining authority that all the said papers were served on the detenu and the same were acknowledged by him in urdu. Though WP No. 19502 of 2003 was filed initially without enclosing the said documents, it is brought to our notice by the learned Government Pleader that the petitioner furnished copies of all the said documents by way of additional set of material papers which contain all the relevant documents together with translated copies. It is clear from the material on record that all the necessary particulars together with the material relied upon were communicated to the detenu without any delay. ( 16 ) FOR the aforesaid reasons, we do not find any substance in the writ petition. All the contentions raised by the petitioner are devoid of any merit. It is also relevant to note that the impugned order of detention was affirmed by the Government on 10. 9. 2003 itself i. e. , within eight days from the date of detention. Moreover the matter has already been reviewed by the Advisory board which met 1. 10. 2003 and it was opined that there is sufficient cause for the detention. ( 17 ) IN the circumstances, we do not see any reason to interfere with the impugned order of detention. ( 18 ) ACCORDINGLY, writ petition is dismissed. No costs.