*THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR +W.P.NO.1965/2009 % Date: 25-2-2009 Between: # Mohammed Fayaz Ali @ Fayaz … Petitioner and $ 1. The Chief Secretary, Government of Andhra Pradesh, Hyderabad and two others. … Respondents ! Counsel for the petitioner: Sri C. Padmanabha Reddy, Senior Counsel for Sri C. Praveen Kumar ^ Counsel for respondents: The Advocate General < GIST: >HEAD NOTE: ? Cases referred: 1.1995 SCC (Crl) 454= (1995) 3 SCC 357 2. AIR 1975 SC 134 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE B.CHANDRA KUMAR WRIT PETITION NO : 1965 of 2009 Between: Mohammed Fayaz Ali @ Fayaz S/o. Mahammed Hussain Ali R/o. 17-3-1233, Ganga Nagar Nala Yakutpura, Hyderabad. ..... PETITIONER AND 1 The Chief Secretary Government of Andhra Pradesh Hyderabad. 2 The Commissioner of Police Hyderabad. 3 The Advisory Board, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ of Habeas Corpus Under Art. 226 of the Constitution of India directing the respondents to produce Sri Mohammed Fayaz Ali @ Fayaz now detained in Central Prison, Cherlapalli, before this Hon'ble Court and he may be ordered to be released forthwith after declaring that this detention is illegal, and void. Counsel for the Petitioner: MR.C.PRAVEEN KUMAR Counsel for the Respondent No.: THE ADVOCATE GENERAL The Court made the following : ORAL ORDER: (per Hon’ble Sri Justice A.Gopal Reddy) By means of filing this writ petition under Art. 226 of the Constitution, the petitioner-alleged detenu, Mohammed Fayaz Ali @ 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 At, 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 Sec. 352, 506 IPC of Police Station, Shahalibanda; Cr.No.35/2008 under Secs. 384, 506 r/w34 IPC of P.S. Shahalibanda; Cr.No.57/2008 under Secs. 143, 144, 448, 506, 392 r/w149IPC of Police Station, Nampally; Cr.No.99/2008 under Secs 143, 144, 447, 506, 384 r/w 149 IPC and 25 Arms Act of Police Station, Kachiguda; Cr.No.72/2008 under Sec.120-B r/w Sec.379, 411, 384 IPC, Sec. 25(1)(a)(b) of Arms Act, Sec.20(b) of NDPS Act of Police Station, Market; Cr. No.44/2008 under Secs. 452, 506 r/w34 IPC of Police Station, Moghalpura; Cr.No.55/2009 under Sec. 307, 353 r/w34IPC & Sec. 25(1)(a) of Indian Arms Act of P.S., Shahalibanda; Cr. No.235/2008 under Sec. 394 r/w 34 IPC of Police Station, Langar House; and Cr.No.188/2008 under Sec. 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 Cl.(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 Sec. 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 under Section 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 Sec. 13 of 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 ie., 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 Art. 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 under Sec. 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 ie.,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 Art. 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 under Sec. 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[1]. 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' under Section 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 ie., Sec. 25(1B)(b). The Supreme Court in MUSTAKMIYA JABBARMIYA SHAIKH (1 supra) while considering the definition of “dangerous person” as defined under Sec.2 ( c ) of Gujarat Prevention of Anti-Social Activities Act, 1955, which is akin to the definition of “goonda” as defined under Cl.(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 under 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[2], 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 ie., 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. 2-1-2009, 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. ____________________ A.GOPAL REDDY, J _______________________ B.CHANDRA KUMAR, J Dt.25–02-2009 kmr L.R. copy to be marked. [1] 1995 SCC (CRL) 454=(1995) 3 SCC 357 [2] AIR 1975 SC 134