Andhra Pradesh High Court - Amravati
Daphne Gertrude Briggs, vs The State Of Andhra Pradesh on 13 August, 2020
Author: C.Praveen Kumar
Bench: C. Praveen Kumar
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
W.P. No.10837 of 2020
ORDER :(Per Hon'ble Sri Justice C.Praveen Kumar)
1. The present Writ Petition came to be filed seeking issuance of a writ of Habeas Corpus by one, Daphne Gertrude Briggs seeking production of her son Glain Domenic Brigs, son of Octave Brigs (for short, 'detenu') now detained in Central Prison, Kadapa, vide proceedings dated 9.3.2020 in RC.No.MC1/888/2020, by the 2nd respondent herein, as confirmed by the 1st Respondent-State vide G.O.Rt.No.761, dated 1.5.2020, and set him free after declaring his detention as illegal, improper and incorrect.
2. By an order date 9.3.2020, the Collector & District Magistrate, Ananthapuramu District, ordered the detention of the detenu under Section 3 (2) read with Section 2 (f) & (g) of the A.P. Prevention of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short, 'the Act') on the ground that he is a 'DRUG OFFENCER' and 'GOONDA' within the meaning of the Act and with a view to prevent him from acting in a manner prejudicial to the maintenance of the public order. In exercise of powers conferred under Sub-Section (3) of Section 3 of the Act, the Government approved the order of detention vide G.O.Rt.No.594, dated 19.3.2020. As required under 2 Section 10 of the Act, the detenu was produced before the Advisory Board constituted under Section 9 of the Act. The case was reviewed by the Advisory Board through Video Conference on 28.4.2020. After perusing the representation of the mother of the detenu and the grounds along with the record, the Advisory Board opined that there is sufficient case for detention of the detenu. After due consideration of the opinion of the Advisory Board and the material available on record, the Government, in exercise of its power under Sub- Section (1) of Section 12 read with Section 13 of the Act, confirmed the order of detention, dated 9.3.2020, passed by the Collector and ordered detention of the detenu for a period of 12 months. It is to be noted here that as on the date of passing of the detention order, the detenu was in judicial custody.
3. The grounds of detention served on the detenu refer to the following twelve incidents :
The first incident relates to crime No.134 of 1997 of Guntakal I Town Police Station, registered for the offences punishable under Sections 468, 471, 472, 473, 474, 420, 120-B read with Section 109 I.P.C. In the said case, the detenu was arrested on 15.12.1997 and released on bail. At present, the case is pending trial vide CC.No.196 of 2015 before the Hon'ble Special Judicial magistrate of First Class, Prohibition & Excise Court, Ananthapuramu.3
The second incident relates to crime No.79 of 1998 of Guntakal I Town Police Station, registered for the offences punishable under Sections 468, 471, 472, 473, 474, 420, 120-B read with Section 109 I.P.C. In the said case, the detenu was arrested on 8.9.1998. The case is pending trial vide C.C.No.196 of 2015 before the Hon'ble Special Judicial Magistrate of First Class, Prohibition & Excise Court, Ananthapuramu.
The third incident relates to crime No.23 of 2009 of Guntakal I Town Police Station, registered for the offence punishable under Section 20(1) of NDPS Act. In the said case, the detenu was arrested on 11.3.2009. The case was ended in acquittal under Section 232(1) Cr.P.C. before the Hon'ble District & Sessions Judge, Ananthapuramu vide S.C.No.360 of 2009.
The fourth incident relates to crime No.24 of 2011 of Guntakal I Town Police Station, registered for the offences punishable under Sections 324, 506, 289, 353, 290 red with Section 34 I.P.C. and Section 3(e) of T.N. Act. On 20.7.2017, the case was ended in acquittal under Section 248(1) Cr.P.C.
vide C.C.No.311 of 2011 before the Hon'ble Judicial Magistrate of First Class, Guntakal.
The fifth incident relates to crime No.28 of 2011 of Guntakal I Town Police Station, registered for the offences punishable under Sections 420, 465, 468 and 474 read with Section 34 I.P.C. In the said case, the detenu was arrested on 4 21.3.2011. The case was ended in acquittal under Section 248(1) Cr.P.C. before the Hon'ble Judicial Magistrate of First Class, Guntakal vide C.C.No.504 of 2011 on 17.11.2015.
The sixth incident relates to crime No.59 of 2012 of Guntakal I Town Police Station, registered for the offences punishable under Sections 420, 465, 468 and 474 I.P.C. read with Section 34 I.P.C. In the said case, the detenu was arrested on 18.6.2012. The case was ended in acquittal under Section 248(1) Cr.P.C. before the Hon'ble Judicial Magistrate of First Class, Guntakal vide C.C.No.162 of 2014 on 5.10.2018.
The seventh incident relates to crime No.54 of 2013 of Rapthadu Police Station, registered for the offences punishable under Sections 417 and 420 I.P.C. The case is pending trial vide C.C.No.4 of 2019 before the Hon'ble Special Mobile Court, Ananthapuramu.
The eighth incident relates to crime No.125 of 2015 of Ananthapuramu II Town Police Station, registered for the offences punishable under Sections 420, 468, 471 I.P.C. read with Section 34 I.P.C. In the said case, the detenu was arrested on 1.2.2020. The case is pending trial vide C.C. No.1242 of 2017 before the Hon'ble Judicial magistrate of First Class, Ananthapuramu.
The ninth incident relates to crime No.18 of 2020 of Peddavaduguru Police Station, registered for the offences punishable under Sections 419, 420, 467, 468, 472, 473, 5 120(B) and 109 I.P.C. In the said case, the detenu was arrested on 1.2.2020. The case is under investigation.
The tenth incident relates to crime No.46 of 2020 of Pamidi Police Station, registered for the offences punishable under Sections 420, 467, 468, 120(B) I.P.C. In the said case, the detenu was yet to be arrested. The case is under investigation.
The eleventh incident relates to crime No.55 of 2020 of Tadipatri Rural UPS, registered for the offences punishable under Sections 420, 467, 468, 120(B), 506 read with Section 34 I.P.C. In the said case, the detenu is yet to be arrested. The case is under investigation.
The twelfth incident relates to crime No.73 of 2020 of Gooty Police Station, registered for the offences punishable under Sections 420, 467, 468, 471, 472, 473, 474, 483, 484, 485, 486, 506, 201, 120(B) I.P.C. In the said case, the detenu is yet to be arrested. The case is under investigation.
4. The grounds of detention show that the detenu is hard core criminal indulging in violent and unlawful activities having no respect towards law. It is further stated that number of cases are registered against him. It is pleaded that preventive detention is only the precautionary measure to avert the situation and this preventive detention is always the precautionary measure and it is based on reasonable prognosis of future behaviour of the accused based on his past conduct found in the light of the above circumstances. 6 From the nature of the incidents, an inference can reasonably be drawn that the detenu would be likely to repeat such acts unless detained under preventive detention.
5. The material on record further indicates that on 16.6.2020 i.e., after the order of detention passed by the Collector was approved by the Government, the petitioner is said to have made a representation to the Chief Secretary of the Government of Andhra Pradesh seeking his release, but the same was neither considered nor rejected till date.
6. Having regard to the above, the learned counsel for the writ petitioner would contend that the detention order is liable to be set aside mainly on the ground that the detention order being passed while the accused is in jail.
7. In the counter-affidavit filed by the Collector, the 2nd respondent herein, it is stated that, in the order of detention the detaining authority has recorded his satisfaction about the necessity to pass the order of detention against the detenu stating that the detenu was involved in twelve crimes, which disturbed even tempo of public life and the detenu had become prejudicial to the maintenance of public order.
8. As stated above, the main ground urged by the learned counsel for the petitioner is that the detaining authority erred in passing the detention order when the detenu was in jail. He further submits that though there is no bar for passing such order, but it should satisfy the triple test laid down by 7 the Apex Court in Champion R. Sangma v. State of Meghalaya 1.
9. The same is opposed by the learned Government Pleader stating that when there is no bar for passing an order of detention while the detenu is in jail, the same cannot be found fault with, since the detenu is continuously involving in offences of similar nature, thereby disturbing the even tempo of life.
10. In order to appreciate the rival contentions advanced, it would be useful to refer to the judgment of the Apex Court on this aspect.
11. In Champion R. Sangma's case (1 supra) the Apex Court took note of the principles laid down by it earlier in Kamarunnissa v. Union of India 2 to the following effect :
"13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this Court stated in Rameash Yadav 3 was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even 1 (2015) 16 SCC 253 2 (1991) 1 SCC 128 3 (1985) 4 SCC 232 8 in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody."
Applying the aforestated triple requirement test, the Apex Court invalidated the order of detention as no satisfaction was recorded by the detaining authority and that no reliable material was placed before him on the basis of which he had reason to believe that there was a real possibility of release of the detenu on bail.
12. Further, in N.Meera Rani v. Government of Tamil Nadu 4 the Apex Court held as under :
"Applying the above settled principle to the facts of the present case we have no doubt that the detention order, in the present case, must be quashed for this reason alone. The detention order read with its annexure indicates the detaining authority's awareness of the fact of detenu's jail custody at the time of the making of the detention order. However, there is no indication therein that the detaining authority considered it likely that the detenu could be released on bail. In fact, the contents of the order, particularly, the above quoted para 18 show the satisfaction of the detaining authority that there was ample material to prove the detenu's complicity in the Bank dacoity including sharing of the booty in spite of absence of his name in the F.I.R. as one of the dacoits. On these facts, the order of detention passed in the present case on 7.9.1988 and its confirmation by the State Government on 25.10.1988 is clearly invalid since the same was made when the detenu was already in jail custody for the offence of bank dacoity with no prospect of his release. It does not satisfy the test indicated by the Constitution Bench in Rameshwar Shaw's case (supra). We hold the detention order to be invalid for this reason alone and express no opinion on merits about the grounds of detention."4
(1989) 4 SCC 418 9
13. The learned Additional Advocate General submitted that though the detaining authority in the impugned order has not formally referred to his satisfaction that the detenu is likely to be released on bail, but in his counter he averred in this regard We are afraid, we cannot accept this submission. Preventive detention being an exception to Articles 21 and 22(1) and (2) of the Constitution of India, the detaining authority must record its satisfaction, basing on the material available on record, as on the date of passing of the detention order. In fact, if the argument of the learned Additional Advocate General is to be accepted, every detention order would pass muster based on the subsequent pleadings of the detaining authority filed in support of the detention order. We feel that such a course cannot be permitted against a person whose personal liberty is sought to be curtained by the State.
14. In Commissioner of Police, Bombay v. Gordhandas Bhanji 5, the Supreme Court held that the order of a public authority must be only supported by the reasons contained therein and not on the reasons supplemented by way of subsequent pleadings. In this context, the following part of the said judgment is relevant.
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are 5 AIR 1952 SC 16 10 meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
This view was reiterated by the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner6.
15. Keeping in view the law laid down by the judgments referred to above, it is to be seen whether the authority passing the order has passed the triple test. A perusal of the grounds of detention, nowhere indicate that the detaining authority was aware of the fact that the detenu was in judicial custody. Neither the grounds of detention nor the order of detention positively indicate the awareness of the detaining authority with regard to detenu being in judicial custody as on the date of passing of the detention order.
16. Be that as it may, the next aspect being as to whether there is any real possibility of detenu being released on bail. Not even an iota of material has been placed before the detaining authority to show that efforts were being made by the detenu to get himself released on bail. Things would have been different had any bail application filed is pending consideration before a competent criminal court. When the grounds of detention is silent on the said aspect, apprehension that the petitioner is likely to be released on bail cannot be accepted. Though there is no bar for passing a detention order, while detenu was in custody, but, as held by the Supreme Court in Champion R. Sangma's case (1 6 1978 AIR 851 11 supra), it should satisfy the triple test while passing the order of detention when the detenu is in custody. We feel that in the instant case, the detaining authority failed to satisfy the requirements of the law as laid down in Champion R. Sangma's case (1 supra).
17. Accordingly, the Writ Petition is allowed directing the respondent authorities to release the detenu viz., Glain Domenic Brigs, son of Octave Brigs, if he is not required in any other crime. There shall be no order as to costs.
Miscellaneous applications, pending, if any, shall stand closed.
Before parting, we bring to the notice of the concerned that though several writ petitions are allowed, either on the ground of delay in considering the representation or that the detention order does not satisfy the requirements of triple test as laid down in Champion R. Sangma's case (1 supra), but, still, the same mistake is being done by the detaining authority. It's time that the authorities concerned shall take up the issue and bring to the notice of the detaining authorities and the sponsoring authorities the law laid down by the Hon'ble Supreme Court in Champion R. Sangma's case (1 supra) and the consequences thereof.
______________________________ JUSTICE C. PRAVEEN KUMAR ________________________________ JUSTICE LALITHA KANNEGANTI Date : 13.8.2020 SKMR