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Judgment
Syed Shah Mohammed Quadri, J.—On 7-8-91 seven persons including the petitioners in the above two writ petitions are said to have way-laid and assaulted one Sri Mohd. Ikramuddin S/o Late Mohd. Ismail on public road near Liaquat Hotel Gulshan Nagar at about 22-00 hours, put him under threat at the point of knives and robbed an amount of Rs. 2,500/- from his person. On the complaint of the said Mohd. Ikramuddin a case in Crl.No. 210 as against the petitioner in W.P. 15829/91 and a case in Cr.No. 219/91 as against the petitioner in W.P.15826/91 u/s 386 read with Section 34 of I.P.C. were registered by the S.I. of Police, Musheerabad Police Station on 8-8-91 at 18-30 hours. Some of the gang members were arrested while they were distributing the booty and were produced before the XVII Metropolitan Magistrate who remanded them to judicial custody on 9-8-91. They were subsequently released on bail on 12-8-91. On the basis of this incident the Commissioner of Police, Hyderabad City, the second respondent herein passed orders u/s 3(2) of the A.P. Prevention of Dangerous Activities of Boot leggars Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short Act 1 of 1986) in proceedings No. SB(I) No. 2/DGA/S7/91 as against the petitioner in W.P. 15826/91 and in proceedings No. SB(I) No. 1/DGA/S7/91 as against the petitioner in W.P.15829/91, dated 3-9-91 directing there detention. The petitioners were detained and lodged in the Central Prison, Chanchalguda, Hyderabad. In G.O.Rt.No. 4323 dated 11-9-91 the Government of Andhra Pradesh, the first respondent herein, approved the said order of the second respondent. The petitioners were produced before the Advisory Board on 15-10-91. The Advisory Board has opined that there is sufficient reason for detaining the petitioners. Thereafter, the order of the second respondent was confirmed by the Government. Subsequently in G.O.Rt.No. 4962, General Administration (G.A.) Department dated 26-10-91, the first respondent extended the order of detention passed by the second respondent for a period of 12 months from the date of detention. The said orders of detention passed by the second respondent are assailed in these writ petitions of habeas corpus praying to declare them as illegal and to set the petitioners at liberty.
The learned counsel for the petitioners raised various contentions of which we need refer to only one contention. For the purpose of exercising power u/s 3(2) of Act 1 of 1986, the second respondent without the application of mind named the petitioners as ''Goondas'' with a view to bring them under the purview of the Act and that having regard to the grounds of detention, the petitioners cannot be treated as ''Goondas''. To appreciate this contention of the learned counsel for the petitioner it would be appropriate to refer to Section 3(1). of the Act under which the order of detention was passed which reads as follows:
"The Government may, if satisfied with respect to any Boot legger, Dacoit, Drug-Offender, Goonda, Immoral Traffic Offender or Land Grabber with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained."
From a perusal of Sub-section (1) of Section 3, extracted above, it is evident that before an order of detention could be issued the Government have to be satisfied with respect to any person that he falls within the meaning of any one of the categories mentioned therein. It would be useful to read the order of detention. We may refer to the order of detention in W.P.No. 15826/91. The order in W.P.15829/91 is also similar, which is as follows:
"Whereas, IM.V. Bhaskara Rao, IPS., Commissioner of Police, Hyderabad, am satisfied from the material placed before me that Mohd. Naseer @ Attu S/o Mohd. Jahangir age 22 years, R/o H.No. 1-4-22, Ranga Nagar, Musheerabad, Hyderabad is a goonda within the meaning of Section 2(g) of the Anclhra Pradesh Prevention of Dangerous Activities of the Andhra Pradesh Prevention of Dangerious Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 and that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order, it is necessary to make an order directing that the said Mohd. Naseer be detained.
Now, therefore, in exercise of powers conferred upon me by Sub-section (2) of Section 3 of Andhra Pradesh Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, read with the order of the Government of Andhra Pradesh issued in G.O.Rt.No. 2432, General Administration (General-A) Department, dt. 4-6-91, I do hereby direct that the said Mohd. Naseer shall be detained under the said Act and lodged in the Central Prison, Chanchalguda, Hyderabad."
From a perusal of the Paragraph of the order extracted above, it is evident that the petitioner is categorised as ''Goonto'' within the meaning of Section 2(g) of Act 1 of 1986. Section 2(g) defined the term ''Goonda'' 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 commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the IPC"
The term ''Goonda'' came up for consideration before a Bench of this Court of which one of us (Justice Syed Shah Mohammed Quadri) was a member, which is reported in P.R. Mohan v. Govt. of A.P, 1987 (2) A.L.T. 518. The Bench held that unless the requirements of definition of ''Goonda'' are shown to be present, no person can be detained as such u/s 3 of the Act. After referring to the judgment of the Supreme Court reported in Vijay Narain Singh Vs. State of Bihar and Others, and the judgment of the Madras High Court reported in Lakshmi v. Commissioner of Police, Egmore, Madras, 1986 Crl.L.J. Mad 401 the Bench observed that the habitual involvement of the detenu in the commission of offence was nexus to bring him within the definition of ''Goonda''.
In the instant case the grounds for detention mentioned only one incident that occurred on 8-9-91 referred to above. From that one incident it cannot be said that the detenue habitually commits or attempts to commit or abets the commission of offence as mentioned in Section 3(1) of the Act.
However, the learned Advocate General placed reliance on the following decisions reported in Dharua Kanu Vs. State of West Bengal, ; Israil Sk. Vs. The District Magistrate of West Dinajpur and Others, ; Mrs Saraswathi Seshagiri Vs. State of Kerala and Another, ; Alijan Mian Vs. District Magistrate, Dhanbad and Others, and contends that even a single incident is sufficient to invoke the power of detention provided the incident is grave enough to lead to the conclusion that the person is likely to repeat the same and therefore detention is necessary, In the cases of Khurus Kanu, Israil Sk. and Alijan Mian, (cited supra), orders of detention were passed under Maintenance of Internal Security Act and in the case of Saraswathi Seshagiri the order of detention was passed under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. In none of these cases the question before the Court was whether the person has habitually committed the offence. Therefore in those cases having regard to the nature of the incident referred to, the Court held that even a single incident was enough to justify the order of detention. But under Act. 1 of 1986, to bring a person within the definition of ''Goonda'', as stated above, it is necessary to show that he habitually commits the offence named therein. Mere one incident does not amount to habitual commission of the offence.
The learned Advocate General neat contends that along with the grounds of their detention material was supplied to the detenue about his involvement in other cases, the grounds, the order and the material appended to the grounds should be read together and should be treated as sufficient reference to the other offences committed by the detenue. We are afraid, we cannot accept the contention of the learned Advocate General. Article 22(5) of the Constitution of India vests very valuable right is the detenue of making a representation against the order of detention. If the grounds do not mention all the incidents now sought to be relied open the petitioner is deprived of the valuable right to make a representation. Therefore, the order as supported by the grounds cannot be sustained. Section 8 of Act 1 of 1986 enjoins the authority making an order of detention to communicate to the detenue the grounds on which the order has been made and to afford him the earliest opportunity of making a representation against the order of detention. The detenue has to make a representation against the order in view of the grounds supplied to him. The representation is not against the material; it is against the order supported by the grounds. If the facts or incidents are not mentioned in the grounds, there is nothing against which the detenue can make a representation. He cannot be expected to make a representation against the material supplied to him without there being any basis for the material in the grounds. In the absence of any reference to the material in the grounds to show that the detenus were involved in more than one incident and committed offences mentioned in Section 2(g) of the Act, in our view, it cannot be said that the petitioners are ''Goondas'' within the meaning of the Act.
The learned Advocate General emphasises that it is necessary to ensure that preventive detention laws are not rendered useless by hypertechnical interpretations. This contention though appealing at first sight, lacks merit on examination. It must be remembered that personal liberty is the most valuable of the rights and is rightly regarded as sacrosanct. The High Courts as also the, Supreme Court are entrusted with the duty to safeguard the fundamental rights of the citizens against any illegal interference by the executive or legislature. Wherever the right of personal liberty is sought to be taken away by preventive detention, the authorities have to exercise the power within the four corners of the provisions of the Act to sustain the, orders passed there under. Non-compliance of the statutory provisions cannot be met by saying that holding the orders of detention as illegal would render the detention laws useless. Merely because the strict compliance of provisions of the detention laws would render the application of detention laws useless, by liberal construction of the orders of detention, the Courts cannot allow the constitutional guarantees to be rendered useless. As the impugned orders and the grounds of detention do not justify the categorising of the detenus as ''Goonda'', we have no option but to come to the conclusion, even though reluctantly, that the orders of detention are illegal. We, accordingly, declare the impugned orders of detention as illegal and direct the respondents to set the petitioners at liberty forthwith unless they are required to be detained in any other cause.
The writ petitions are accordingly allowed. No costs.