1. In this writ petition, the detention of Peerzada Mohd. Khan under the National Security Act 65 of 1980 is questioned. He was arrested on March 18; the grounds of detention were served on him on March 22, 1982. The detenu is the Secretary of a Society with the name - ('Our Home Weaker Sections Co-operative House Construction Society') (the Society) in-corporated under the State Act 7 of 1964. He is a close associate of Mohd. Ibrahim Khan whom we have in W.P. No. 2313/1982, today, ordered to be set at liberty from like detention. Peerzada and Mohd. Ibrahim Khan, the two it is averred with other associates are said to control numerous Societies. Their activities are to grab vacant lands and build their personal estates. Some instances are stated in the grounds of detention against peerzada.
2. In ground No. 1, it is averred, Hilay Foods and Feeds, a firm owns 8 acres of land covered by S. Nos. 73 and 74 at Saroornagar. One G. V. Krishnaiah had purchased that land on December 5, 1979. The detenu with the assistance of thirty men at his command under the leadership of Ibrahim Khan, forcibly occupied that land. A civil litigation followed in Munsif Magistrate's Court at Hyderabad East. An injunction was ordered by that Court on April 1, 1980 restraining the Society and Khamrunnisa Begum from entering the land. When dispute increased, the detenu and his associates raided the land, attacked with deadly weapons, P. Ramaiah and Ziauddin who were supervising a construction work at the land and bolted away. The incident was recorded in Crime No. 53/1980 under Sections 147, 324, I.P.C. of Police Station, Saroornagar. The raid and the attack on persons it is averred created panic in the minds of land-holders in the vicinity.
3. The 2nd ground related to Brig. G. M. Sayeed (Retd.) who complained to the Police Inspector, Nampally on January 23, 1981 as respects two premises 10-2-287/1 and 10-2-287/A in Shantinagar divided in 'A' and 'B' portions. The former was purchased by P. Priyaswamy : the Portion 'B' was in the possession of Brig. Sayeed. Priyaswamy, pending the suits, alienated 'under agreement' for rupees five lakhs. On the strength of that 'agreement', the detenu and his 'rowdies' forcibly occupied the portion 'B' of the house. Brig. Sayeed sought assistance of the police in two incidents referred : One of January 22, 1981 is the subject in Crime No. 11/1981 under Sections 448 and 504, I.P.C.; the second on January 25, 1981 is the subject in Crime No. 13/1981 of Nampally Police Station. The two incidents it is averred created 'panic', disturbed even tempo of Nampally area and public order, was disturbed. The 3rd ground relates to a representation made by a Committee with the name of Citizens Welfare Committee on March 7 and 8 of 1982 to the Police Commissioner and also to the Chief Minister, respectively. In the representation, the detenu is referred as one of the muscle men of the 'notorious' landgraber, Mohd. Ibrahim Khan whose acts of violence, lawlessness and murders, created horror in the minds of city citizens. The detenu is described as a dangerous and desperate character. These are the three grounds on which Peerzada was detained.
4. These grounds are attacked in the writ petition, especially, with reference to Crimes Nos. 53/1980, 11 and 13/1981 and the incidents of prosecution in civil courts. It is argued, if these incidents are grounds for detention, anomalous situation arises. The anomaly, it is argued, on one hand, the detained is prosecuted in the crimes; on the other, Peerzada, if detained on the same incidents, he is expected to submit explanation, Does not the prosecution stand in accepting the explanation is the question asked. In this stride, the next question is asked. Does it not embarrass the detained Would it not be a case where he is prosecuted because the prosecuting agencies consider the cases are true, therefore, he is prosecuted. In which case, the Police Commissioner representing the police administration prosecutes him and when explanation is submitted, would he accept the explanation. Is it not a case, it is so argued, the explanation has no chance of acceptance in the hands of the Police Commissioner. The embarrassment is expressed in what is now called catch 22 situation or a case where damned if he does; damned if he does not. This anomaly, it is argued, is the result of the abuse of the process of power under Act 65 of 1980 and Courts should come to the aid of the citizen in protection of liberty, in such circumstances.
5. The anomaly was the subject of varying decisions in the Supreme Court. The earliest case was in Biram Chand v. State of U.P., : 1974CriLJ817 . In that, it was held, if the same incident in prosecution, forms the ground of detention, the detention is 'totally barred'. In Golam Hussain v. Police Commissioner, Calcutta, : 1974CriLJ938 was case of a desperate character of exceptional category who was discharged or acquitted for want of evidence in criminal prosecution because witnesses were afraid to depose against him. The Supreme Court made volte-face of their earlier decision and stated, the acquittal or the discharge of the person is not a bar when the same incident formed part of the ground for detention. When, again the issue was raised in Smt. H. K. Shah v. State of Maharashtra, : 1982CriLJ150 the Court cautioned, criminal process is not to be 'circumvented or short-circulated' by preventive detention. A criminal prosecution, however, is held not a bar to preventive detention. The detaining authority, so it was laid, must satisfy 'the question (too) was borne in mind before the order of detention was made. If the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind, the Court would be justified.' If mind is not applied to the vital question (anomaly), detention was held unjustified. A golden mean, thus, was achieved in Shah's case supra. Therefore, in cases where same incidents, the subject of prosecution, are grounds of detention, the rule requires whether detaining authorities had considered the 'anomaly' referred.
6. In this regard, paras 6 and 10 of the counter of the Police Commissioner were relied on : 'The nature and process of the activities of the detenu, their magnitude, their impact on public generally and the incidents of evil on the law-abiding citizens are the factors which I took into consideration in arriving at my subjective satisfaction that the detenu should be detained.' The above passage and what is contained in para 6, it is argued, be considered satisfying the requirements of the rules in Shah's case.
7. We see, in a case of this nature, the Commissioner of Police, on one hand, is performing a difficult task; on the other, we cannot overlook, the liberty of the citizen is involved. This court cannot read the order or the counter of the Police Commissioner to measure up to judicial exactitude, keeping the above factors in mind, we are unable to hold, in the instant case, there is application of mind on the aspect of anomaly. It is needless, therefore to dilate on the grounds except to state the incidents as respects portion 'B' which is in possession of Brig. Sayeed, raises a mere question of law and order and not of public order.
8. For all the aforesaid reasons, the detention of Peerzada Mohd. Khan is unsustainable. This writ petition is allowed. Peerzada Mohd. Khan is directed to be set at liberty forthwith. No costs. Advocate's fee Rs. 250/-.
9. Petition allowed.