Decided on March 11,1992



Sivaraman Nair, J. - (1.)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. 153-A and S. 153-B 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 2/10/1991 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(5) 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.
(2.)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, 153-A, IPC and Sections 3, 2(ii) of TADA. A copy of the charge sheet was supplied to the detenu to show that he was charged under S. 153-A 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.
(3.)The first question to be considered is whether the detaining authority 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. 153-A 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. 153-A. Such a person falls squarely within the definition of communal offender under S. 2(b) of the Act.

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