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Judgment
A. Gopal Reddy, J.—By means of filing this writ petition under Article 226 of the Constitution, the petitioner-alleged detenu, Mohammed Fayaz All @ Fayaz, has challenged the order of detention dt. 20-10-2008 made under Sub-section (2) of Section 3 of Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short "the Act No. 1 of 1986) by the Commissioner of Police, Hyderabad City by directing the respondents to produce him and order for his release.
Briefly stated the alleged activities of the detenu-petitioner as set out in the grounds of detention dt. 20-10-2008 are that the petitioner was habitually committing and abetting the commission of offences like attempt to murder, hurt cases using dangerous weapons, criminal intimidation, property offences and acting in a manner prejudicial to the maintenance of public order. It has been alleged that the detenu has been indulged in several unlawful activities and committed as many as 70 offences since 1996 and recently in 2008, he had indulged in unlawful acts affecting public order, in Cr. No. 34/2008 under Sections 352, 506 IPC of Police Station, Shahalibanda; Cr. No. 35/2008 u/s 384, 506 r/w 34 IPC of P.S. Shahalibanda; Cr.No.57/2008 under Sections 143, 144, 448, 506, 392 r/w 149 IPC of Police Station, Nampally; Cr. No. 99/2008 under Sections 143, 144, 447, 506, 384 r/w 149 IPC and 25 Arms Act of Police Station, Kachiguda; Cr. No. 72/2008 u/s 120B r/w Section 379, 411, 384 IPC, Section 25(1)(a)(b) of Arms Act, Section 20(b) of NDPS Act of Police Station, Market; Cr. No. 44/2008 under Sections 452, 506 r/w 34 IPC of Police Station, Moghalpura; Cr. No. 55/2009 u/s 307, 353 r/w 34 IPC & Section 25(1)(a) of Indian Arms Act of P.S., Shahalibanda; Cr. No. 235/2008 u/s 394 r/w 34 IPC of Police Station, Langar House; and Cr. No. 188/2008 u/s 25(1B)(b) of Indian Arms Act of Police Station, Market. On the basis of the aforementioned cases the detaining authority came to the conclusion that the petitioner is a "goonda" within the definition of Clause (g) of Section 2 of the Act 1 of 1986, who is habitually engaged in committing and attempting to commit violent activities and with a view to preventing the petitioner from acting in a manner prejudicial to the maintenance of public order passed impugned order of detention dt. 20-10-2008. The Government in their order in G.O.Rt. No. 6179, General Administration (Law & Order.II) Department dt. 24-10-2008 in exercise of power under Sub-section (3) of Section 3 of the Act 1 of 1986 accorded approval to the order of detention passed by the Commissioner of Police. Thereafter, the Government referred the matter to the Advisory Board constituted u/s 9 of the Act 1 of 1986, which, after hearing the detenu, the investigating officers and after perusing the connected records made available to it, opined that there is sufficient cause for the detention of the detenu Mohammed Fayaz Ali @ Fayaz. The Government after taking into consideration the report of the Advisory Board and the material available on record, in exercise of the powers conferred under Sub-section (1) of Section 12 read with Section 13 the Act 1 of 1986 through G.O.Rt. No. 46, General Administration (Law & Order.II) Department dt. 2-1-2009 confirmed the order of detention and directed that the detention of the alleged detenu be continued for a maximum period of 12 months from the date of his detention i.e., 13-12-2008.
The petitioner assails the detention order under various grounds among the other that the order of detention was passed by the Commissioner of Police, Hyderabad City, mechanically and without application of mind on vague, irrelevant and non-existing grounds and in violation of Article 22 of the Constitution of India. In order to attract the definition of "goonda", the detenu must have been habitually committing offences punishable under Chapter XVI, XVII or XXII of the Indian Penal Code, and the last incident referred to in the grounds of detention, which is subject matter of Cr. No. 186/2008, was registered by Market Police Station u/s 25(1B)(b) of Indian Arms Act, and it is an irrelevant ground and this ground alone is sufficient to set aside the detention order. The Act 1 of 1986 has defined "goonda" in Clause (g) of Section 2 to mean "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, XVII and XXII of the Indian Penal Code and the incident in Cr. No. 186/2008 does not fall within the meaning of "goonda" as defined under the Act 1 of 1986, and if the same is irrelevant, the whole detention order must go. In the first four incidents, the report was given on 10-4-2008, the first incident i.e., Cr. No. 34/2008 has taken place at 4-00 PM whereas 4th incident has taken place at 8 PM at Kachiguda, and they are created for the purpose of passing the order of detention. Similarly, 2nd and 3rd incidents are alleged to have taken place on 9-4-2008 at 9 PM and 8 PM at two different places and four incidents are vague and they do not in any way incriminate the detenu with the crime.
A counter affidavit has been filed by the Commissioner of Police & Additional District Magistrate (Executive), Hyderabad City reiterating the grounds as mentioned the grounds for detention. In the counter-affidavit, it is specifically stated that he made a mention about the involvement of 70 offences since 1996 and he has not taken them into consideration for passing the detention order except nine crimes as detailed in the detention order and the relevant material was served on the detenu by complying with the statutory mandate as required under Article 22 of the Constitution.
Sri C. Padmanabha Reddy, learned Senior Counsel for the petitioner contended that out of nine crimes mentioned in the ground of detention, Cr. No. 186/2008 was registered for the offence punishable u/s 25(1B)(b) of Indian Arms Act, which is an irrelevant ground since the same is not separable with other crimes, therefore the detention order should be set-aside. For the said proposition, reliance is placed on the judgment of the Supreme Court in Mustakmiya Jabarmiya Shaikh v. M.M. Mehta 1995 SCC 454 : (1995) 3 SCC 357.
Learned Special Government Pleader representing the Advocate General fairly conceded that offence under Indian Arms Act has not been included in the definition of "goonda" and same is an irrelevant ground, which would vitiate the detention order.
In the background of the contention of the learned Senior Counsel, we have to see whether the activities of the detenu, referred to in the grounds of detention, be brought within the definition of ''goonda'' u/s 2(g) of Act 1 of 1986.
Under Clause (g) of Section 2, the word ''goonda'' is defined as follows: ''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.
From the above definition, it is clear that a person can be considered as a ''goonda'' only when it is proved that 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.
In the case on hand, 9th incident, which forms a basis for satisfaction of the detaining authority that the petitioner is a habitual offence, relates to the offence under Indian Arms Act i.e., Section 25(1B)(b).
The Supreme Court in Mustakmiya Jabbarmiya Shaikh (1 supra) while considering the definition of "dangerous person" as defined u/s 2(c) of Gujarat Prevention of Anti-Social Activities Act, 1955, which is akin to the definition of "goonda" as defined under Clause (g) of Section 2 of the Act 1 of 1986, where offences punishable under Chapter V of the Arms Act are not included except Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code held that "in order to bring a person within the definition of Section 2(c) of the Act it is essential to show that such person either by himself or as a member of or a leader of a gang habitually commits or attempts to commit or abets the commission of offences punishable under Ch. XVI or Ch. XVII or Ch. XXII of the Indian Penal Code or any of the offences punishable under Ch. V of the Arms Act. But as pointed out earlier the offence registered against petitioner under FIR of CR No. 7 of 1994 of DCB dated 11/4/1994 is one u/s 212/214 of the Indian Penal Code which falls under Ch. XI of the Indian Penal Code and not under any of the Ch. XVI or XVII which is the requirement of Section 2(c) of the Act. This incident, therefore, cannot be made a basis for satisfaction of the detaining authority that petitioner is a habitual offender, so as to sustain the order of detention.
(emphasis supplied)
In Dwarika Prasad Sahu Vs. The State of Bihar and Others, , the detention order was made under Maintenance of Internal Security Act, 1971. In the said case, detention order was passed on five grounds and Ground No. 5 was found to be wholly misconceived, and unfounded. In those circumstances, it was held that even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is non-existent or misconceived or irrelevant, the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmity, because it can never be predicted to what extent the bad grounds or reasons operated on the mind of the detaining authority or whether the detention order would have been made at all if the bad ground or reason were excluded and the good grounds or reasons alone were before the detaining authority. After referring to the various earlier judgments of it, the Apex Court further held that the conclusion is therefore, inescapable that since ground No. 5 was wholly misconceived, non-existent and not available under the law, the order of detention must be held to be invalid.
It is well settled that if some of the grounds are irrelevant in a writ of habeas corpus, the court can declare that the detention order is bad and vitiated, because of irrelevant or vague grounds there would not be any effective representation to the detention order.
In the light of the law laid down by the Supreme Court, we have no hesitation to hold that the detention order passed by the Commissioner of Police is liable to be set-aside on the ground that the ground No. 9 i.e., Cr.No. 186/2008 does not fall under the definition of "goonda", which is an irrelevant ground and cannot be made a basis of satisfaction of the detaining authority that the petitioner is a habitual offender.
In the result, the writ: petition is allowed and the order of detention in S.B.(1) No. 97/PD-DG/S/2008 dt. 20-10-2008 passed by the Commissioner of Police, Hyderabad City, as approved by the Government inG.O.RT.No.6179 General Administration (Law & Order.II) Department dt. 24-10-2008 and confirmed through G.O.Rt.No.46, General Administration (Law & Order.II) Department dt. 2-1-2.009, is set aside, and the detenu, namely, Mohammed Fayaz Ali @ Fayaz is set at liberty forthwith if he is not required in any other case.
That Rule Nisi has been made absolute as above. Witness the Hon''ble Sri Anil R.Dave, The Chief Justice on this Wednesday the Twenty Fifth day of Febrary. Two Thousand and Nine.