SYED JALALUDDIN Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(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 -

(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.