Andhra Pradesh High Court - Amravati

Mohammad Arif vs The State Of Ap on 25 January, 2024

Author: U.Durga Prasad Rao

Bench: U.Durga Prasad Rao

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
              (Special Original Jurisdiction)
                        PRESENT

    THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO

THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA

                 WRIT PETITION NO: 30382 OF 2023

Between:
       Mohammad Arif, S/o. Shaik Khaja @ Kaalu,
       Aged 21 years, R/o. D.No. 15-483-9,
       Gandhi Nagar, Tadipatri Town,
       Anantapuram District.
                                                                ...Petitioner

                                        And

    1. The State of Andhra Pradesh,
       Represented by its Chief Secretary,
       Secretariat Buildings,
       Amaravathi at Velagapudi, Guntur District
    2. The Collector and District Magistrate,
       Anantapuram District.
    3. The Superintendent of Police,
       Anantapuram District.
    4. The Superintendent,
       Central Prison, Kadapa.
                                                              ...Respondents

ORDER:

(Per Hon'ble Smt. Justice Kiranmayee Mandava)

This Writ Petition is filed for issuance of Habeas Corpus by

declaring the proceedings of the 2nd respondent, in detaining Shaik Khaja

@ Kaalu, S/o. Shaik Mohammad Rafi, vide order dated

25.08.2023 in RC. No.MC1/2446/2023, as confirmed by the

1st respondent in G.O.Rt.No.2115 General Administration (SPL. (LAW

AND ORDER)), Department, dated 30.10.2023, as illegal and

unconstitutional.

2. The writ petitioner is brother of the detenue, Sri Shaik Khaja

@ Kaalu, S/o. Shaik Mohammad Rafi. The petitioner submits that the

2nd respondent vide proceedings dated 25.08.2023, passed an order of

detention under Sec 3(1) & (2) read with Sec.2(f) of the A.P Prevention

of Dangerous Activities of Bootleggers and Dacoits, Drug Offenders,

Goondas, Immoral Traffic Offenders and Land Grabbers Act,1986, (Act

No.1 of 1986), placing the detenue under detention in Central Prison,

Kadapa. The said order of detention was confirmed by the 1st respondent

vide G.O.Rt.No.2115 dated 30.10.2023, treating the detenue as „Goonda‟

as defined under Sec.2(g) of the A.P Prevention of Bootleggers and

Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land

Grabbers Act,1986. The following are the cases, which have been taken

into consideration by the 2nd respondent, while placing the detenue under

detention:

S.No     Crime No.     Provision of law    Date of      Police
                                           offence      Station

   1.    323/2018      U/s.147, 143, 148, 30.12.2018    Tadipatri
                       341, 324,307, 353,               Town PS



                      436 IPC R/w.149
                      IPC
   2.    109/2021     324 IPC R/w 34 08.03.2021            Tadipatri
                      IPC                                  Town PS
   3.    108/2022     324 IPC R/w 34 29.03.2022            Tadipatri
                      IPC                                  Town PS
   4.    166/2022     160 IPC         19.05.2022           Tadipatri
                                                           Town PS
   5.    221/2022     U/s.323, 324 IPC        10.07.2022   Tadipatri
                      R/w.34 IPC                           Town PS
   6.    300/2022     U/s.324 IPC R/w.        23.09.2022   Tadipatri
                      34 IPC                               Town PS
   7.    304/2022     U/s.448, 323, 324       26.09.2022   Tadipatri
                      IPC R/w 34 IPC &                     Town PS
                      Sec 3(1)(r)(s) of SC/
                      ST (POA) Act-2015
   8.    371/2022     U/s.324 IPC R/w         18.11.2022   Tadipatri
                      34 IPC                               Town PS
   9.    29/2023      U/s.147, 148, 341,      30.01.2023   Tadipatri
                      324,    307,      IPC                Town PS
                      R/w.34 IPC
   10. 64/2023        U/s.325 IPC R/w         05.04.2023   Tadipatri
                      34 IPC                               Town PS

3. The petitioner contends that out of ten (10) cases registered

against him, in eight (8) cases, the detenue was issued with notice under

Sec.41-A of Cr.P.C. In one (1) case, the detenue was yet to be arrested.

The detaining authority did not take into consideration the said fact while

arriving at the satisfaction. Out of the said ten (10) cases, four (4) cases

were ended in compromise before Lok Adalat. The Awards passed by the

Lok Adalat in the said cases were also not furnished to the detenue

enabling him to submit his representation. He further contends that the

detaining authority while passing the order of detention has taken into

consideration certain stale cases, which lacks live link with the remaining

crimes which were registered against the detenue, before passing of the

present impugned order of detention. It is his further submission that one

of the offence alleged to have been committed would not fall under the

definition of „Goonda‟ as defined U/s. Sec.2(g) of the A.P Prevention of

Bootleggers and Dacoits, Drug Offenders, Goondas, Immoral Traffic

Offenders and Land Grabbers Act,1986.

4. The 2nd respondent filed his counter affidavit, stating that the

detenue is habitual offender and his committing offences affecting the

public order involving in murder, extortion, rioting, criminal intimidation,

cheating etc. With a view to prevent the detenue from acting in a manner

prejudicial to the public order, the order of detention was passed. The

quantum of punishment provided under regular law under which the

crimes were registered against the detenue, would not be sufficient to

deter the criminal activities of the detenue.

5. Heard, learned counsel for the petitioner,

Sri D. Purnachandra Reddy, and Special Government Pleader,

representing the learned Advocate General for the respondents.

6. The primary contention of the learned counsel for the

petitioner is that one (1) crime that is registered against the detenue in

Cr. No.166 of 2002, dated 19.05.2022 is under the provisions of Sec.160

of IPC. The alleged offence is under the provisions of IPC and the same

cannot be taken into consideration while placing the detenue as „Goonda‟.

In support of his contention, he relies on the decision of this Court in

W.P. No.27241 of 2023. He submits that though this ground has not been

specifically pleaded in the writ petition, he submits that the same can be

taken into consideration while relying on the decision of the Apex Court

in the case of Smt. Icchu Devi Choraia Vs. Union of India and others1.

The relevant portion is extracted under:

"4.It is also necessary to point out that in case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail has been sufficient to activise this Court into examining the legality of detention. This Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention. This Court has on many occasions pointed out that when a rule is issued, it is incumbent on the detaining authority to satisfy the court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the law authorising such detention: Vide Naranjan Singh v. State of Madhya Pradesh; Sheikh Hanif, Gudma Majhi & Kamal Saha v. State of West Bengal, and Dulal Roy v. The District Magistrate, Burdwan & Ors. It has also been insisted by this Court that, in answer to this rule, the detaining authority must

(1980) 4 SCC 531

place all the relevant facts before the court which would show that the detention is in accordance with the provisions of the Act. It would be no argument on the part of the detaining authority to say that a particular ground is not taken in the petition.Vide Nazamuddin v. The State of West Bengal. Once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law. Vide Mohd. Alam v. State of West Bengal and Khudiram Das v. State of West Bengal & Ors."

7. It is the further submission of the learned counsel for the

petitioner that there is no proximity between the crimes registered against

the petitioner. The first case in Cr.No.323 of 2018 was registered in the

year 2018 and the 2nd case in Cr.No.109 of 2021 was registered in the

year 2021, after a period of 2 years 2 months and third case in Cr.No.108

of 2022 was registered in the year 2022 showing a gap of almost one

year. The counsel for the petitioner submits that the detaining authority

has taken into consideration stale incidents while concluding that the

detenue is a "goonda" within the meaning of sc.2(g) of Act 1 of 1986. In

support of his submission, he relies on full bench decision of this court in

the case of S. Jayamma Vs.The Collector & District Magistrate,

Cuddapah & Anr2., wherein the relevant portion is extracted under:

"11. From the survey of hte aforesaid decisions, it is observed by the Supreme Court time and again that while it is open for the detaining

2004(2)APLJ71(HC)

authority to pass orders of detention, on the basis of subjective satisfaction, but at the same time stale incidents and events which are not proximate in time having no rationale nexus to the alleged prejudicial act would vitiates the detention order."

8. On the other hand the learned counsel for the respondents

would submit that the decision of Apex Court in the case of Smt. Icchu

Devi Choraia Vs. Union of India and others, would not be applicable to

the case of the petitioner. Moreover, if the crimes registered against the

detenue, from anterior is taken into consideration there is every proximity

between the offences having live link between one and another, which the

detaining authority has borne in mind while passing the order of detention

and accordingly prays for dismissal of the Writ Petition.

9. We have given our anxious consideration to the contentions

of the parties on either side. The definition of „Goonda‟ as defined under

Sec.2(g) of A.P Prevention of Bootleggers and Dacoits, Drug Offenders,

Goondas, Immoral Traffic Offenders and Land Grabbers Act,(Act 1 of

1986) reads as under:

"Sec.2(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."

10. Unless the offences alleged to have been committed by the

detune are punishable under the provisions of Chapter XVI or Chapter

XVII or Chapter XXII of the IPC, he would not fit into the definition of

„Goonda‟. In the facts of the present case, out of the ten (10) offences

which have been taken into consideration, while passing the order of

detention, one (1) offence i.e., Cr.No.166 of 2022 dated 19-05-2022, is

registered under Sec.160 IPC., falling under Chapter VIII of IPC.

Therefore, the said offence would not fit into the definition of „Goonda‟

as defined under Sec.2(g) of the Act. The contention of learned counsel

for the petitioner that, Cr. No.166 of 2022, registered under Section 160

of IPC, would not fall under the definition of „Goonda‟, though has not

been raised in the Writ affidavit, the same being a legal principle can be

raised during the course of oral submission as held by the Hon‟ble

Supreme Court in the case of Smt. Icchu Devi Choraia Vs. Union of

India and others..

11. In the case of M. Govindarajulu Vs State of Andhra

Pradesh, in W.P.No.27241 of 2023, to which both of us are parties to the

judgment, it has been observed as follows:

"9. Regarding the argument of learned counsel for the petitioner that irrelevant facts were taken into consideration by the 2nd

respondent, we have perused the definition of „goonda‟ mentioned in Section 2 (g) of Act, 01 of 1986. The said section reads thus:

"2. (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"

Thus, the above definition shows that if a person either by himself or as a member or leader of the gang habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or XVII or XXII of the Indian Penal Code, he can be termed as „goonda‟ and the detenu authority may pass order of detention.

10. The crux of the definition is that the detenu must be involved in any of the offences envisaged in Chapter XVI, or XVII or XXII of the I.P.C., but not others to fall within the definition of „goonda‟. In this context when the impugned detention order is perused, the 2nd respondent has taken eight crimes into consideration, out of which, except Cr.No.529 of 2021 and Cr.No.531 of 2021 of Chittor II Town Police Station, the remaining six relate to offences under the I.P.C., falling within the Chapter XVI, or XVII or XXII. Therefore, to that extent, the 2nd respondentwas right in taking into consideration those six offences as they fall within the definition of "goonda‟.

11. However, the Cr.No.529 of 2021 and Cr.No.531 of 2021 of Chittor II Town Police Station are concerned, they were an offence registered under Section 34 (1) (i) r/w. 34 (A) of A.P. Excise Act, in which, the detenu was allegedly involved. The brief facts relating to Cr.No.529 of 2021 is that, the detenu and another were illegally, stocked the branded Indian made liquor and in Cr.No.531 of 2021 of Chittor II town P.S, the detenu and four others were illegally possessed

the branded Indian made liquor.Hence, the above cases were registered against him and charge sheets were filed before the Special Judicial Magistrate of First Class for Excise, Chittor.

12. As rightly argued by the learned counsel for the petitioner, these offences do not fit into the definition of „goonda‟ as they are only Excise offences, but not offences falling within any of the three Chapters of the I.P.C. Therefore, we find force in the argument of the learned counsel for the petitioner that irrelevant facts were taken into consideration by the 2nd respondent, while branding the detenu as „goonda‟. In similar circumstances, in W.P.No.19145 of 2023, the Division Bench of this High Court considering several other cases held as follows:

"A reading of the definition of Goonda extracted above, clearly shows that it is only when a person habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVII or Chapter XXII of the Indian Penal Code, then only he can be termed as Goonda under the Act. Three crimes i.e.Crime No.36 of 2023, Crime No.33 of 2023 and Crime No.35 of 2023, no doubt pertains to the offences punishable under Chapter XVII and Chapter XXII. So, it attracts the definition of Goonda under the Act. But the other crime i.e. Crime No.23 of 2023 is registered only under Section 34(A) of the A.P. Excise Act. It has nothing to do with the offences under the Indian Penal Code much less the offences under Chapter XVII and XXII of I.P.C. It is only an offence under special enactment under the A.P. Excise Act. So, it does not attract the definition of Goonda under Section 2(g) of the Act. At best, the said crime attracts the definition of Bootlegger as defined

under Section 2(b) of the Act. Yet, this Crime No.23 of 2023 is also made basis to pass the impugned order of preventive detention terming the detenu as a Goonda. So, it clearly amounts to taking an irrelevant factor as a ground to pass the impugned order of preventive detention. When an irrelevant factor or ground is taken as basis for passing the order of preventive detention, as rightly contended by the learned Senior Counsel for the petitioner, as per settled law, it would vitiate the order of preventive detention and the same is liable to be set aside on the sole ground. The legal position in this regard is no more res nova and the same has been well settled."

12. With regard to the second contention of the petitioner that

there is no proximity between the cases registered against the petitioner,

requiring them to be taken into consideration, while passing the order of

detention. Relying on the decision of this Court in W.P. No.27241 of

2023 wherein it is observed as under:

"10(b) . In Khaja Bilal Ahmed's case (1 supra), the detention order was dated 25.10.2018. About 14 cases ranging between 2007 and 2016 were taken into consideration for ordering preventive detention. In that context, the Apex Court held that 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 a 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 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, in the absence of a clear indication of a casual 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. The detention order was accordingly set aside by the Apex Court.

(c)......

(d). Applying the above jurisprudence, in the instant case, the fact is that there was a wide gap between first three cases and the remaining two cases. Hence, such stale material, in our view, ought not to be considered for ordering detention. The citation Union of India (4 supra) placed by the learned Special Government Pleader will not improve the case of the respondents.

13. We hold that the order of detention passed by the 2nd

respondent suffers from perversity in arriving at an incorrect conclusion

that the petitioner is a „Goonda‟, within the definition of Sec.2(g) and the

same does not stand the test of law, and for having taken into account

extraneous factors i.e., stale incidents while passing the order of

detention, deserving the same to be liable, to be set aside.

14. Accordingly, the Writ Petition is allowed and the detention

order in RC.No.MC1/2446/2023 dated 25.08.2023 passed by

2nd respondent -The Collector & District Magistrate, Anantapuram

District, is hereby set aside and the detenue namely, Shaik Khaja @

Kaalu, S/o. Shaik Mohammad Rafi, is directed to be released forthwith

by the respondents, if the detenue is not required in any other cases. No