Andhra HC (Pre-Telangana)
V. Muragesh vs The Collector & District ... on 17 October, 2012
Bench: N.V.Ramana, P.Durga Prasad
THE HON'BLE SRI JUSTICE N.V.RAMANA AND THE HON'BLE SRI JUSTICE P.DURGA PRASAD
WRIT PETITION No.28654 of 2012
17.10.2012
V. Muragesh
The Collector & District Magistrate,Chittoor, Chittoor District, and two
others.
Counsel for the Petitioner: MR.C. Masthan Naidu
Counsel for the Respondents: The Advocate General
>HEAD NOTE:
? Cases referred
1 (1988) 1 SCC 287
2 (1990) 2 SCC 1
O r d e r: (Per Sri. N.V. Ramana, J.)
The petitioner, who claims to be the son of the detenu, namely Vepagunta
Nagaiah, who is now detained in Central Prison, Cherlapally, has filed this writ
petition praying the Court to issue a Writ of Habeas Corpus, directing the
respondents to produce the detenu before this Court and set him at liberty
forthwith.
The Divisional Forest Officer, Wild Life Management Division, Tiruputi,
informed respondent No.1, namely the Collector and District Magistrate, Chittoor
(hereinafter referred to as 'the Detaining Authority') that the detenu since
last seven years has been committing forest offences, namely illicit felling of
red sanders, smuggling them to secret and unknown places in India and abroad.
He is involved in eight forest offences, namely in O.R.
Nos. 177/2010-11, dated 14.02.2010; 126/2009-10, dated 26.02.2010; 217/2010-11,
dated 31.03.2010 and 20/2012-13, dated 20.04.2012 of Flying Squad Division,
Tirupati - O.R. Nos. 17/2011-12, dated 25.04.2010; 26/2011-12, dated 02.05.2011;
108/2011-12, dated 05.10.2011 and 249/2011-12, dated 24.03.2011 of S.V. National
Park Range, Wild Life Management, Tirupati. The said cases were registered
against the detenu for the offences punishable under Sections 20, 29 and 44 of
the A.P. Forest Act, 1967 and Rule 3 of the A.P. Sandal Wood and Red Sander Wood
Transit Rules, 1969 and the provisions of Sections 378 and 379 I.P.C. While the
said cases are pending trial, considering the fact that the illegal activities
of the detenu, is resulting in willful destruction of red sanders trees, which
is an endangered species; damage to public property, resulting in depletion of
green cover and loss of national wealth; prejudicial to the maintenance of
public order; disturbing the peace, tranquility and social harmony in the
society, and as the forest laws and ordinary law under which the detenu is being
prosecuted are not sufficient in the ordinary course to deal with him firmly,
respondent No.1-Detaining Authority') in exercise of the powers conferred on him
under Section 3(1) and (2) of the A.P. Prevention of Dangerous Activities of
Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and
Land Grabbing Act, 1986 (hereinafter referred to as 'the Preventive Detention
Act'), with a view to prevent the detenu from commission of similar such
activities, which is resulting in plundering of national wealth, vide order
dated 28.05.2012, ordered the detention of the detenu in prison. Pursuant to
the said order of detention, the detenu was lodged in Central Prison,
Cherlapally. The said order of detention, passed by respondent No.1-Detaining
Authority, was confirmed by respondent No.2, namely the Government, by orders
issued in G.O. Rt. No. 2950, General Administration (Law and Order - II)
Department, dated 26.06.2012. Hence, questioning the said order of detention,
passed by respondent No.1-Detaining Authority, for detention of the detenu in
prison, as confirmed by respondent No.2-Government, the petitioner filed the
present writ petition.
The learned counsel for the petitioner submitted that the eight cases registered
against the detenu for the offences punishable under the A.P. Forest Act and the
Indian Penal Code, which formed the basis for passing the order of detention by
respondent No.1-Detaining Authority, are false. Out of the said eight cases, he
was arrested and released on bail in five cases, while in three cases, he has
not been arrested. Respondent No.1-Detaining Authority, in the order of
detention, except stating that the detenu was arrested and released on bail in
five cases, has not considered the bail applications filed by the detenu and the
effect of the bail orders passed therein, because they were not placed before
him by the Sponsoring Authority. Therefore, he contends that the order of
detention suffers from subjective satisfaction of and non-application of mind by
respondent No.1-Detaining Authority. He further submitted that if one of the
grounds of detention is found to be irrelevant, then the order of detention is
liable to be set aside. He thus prayed that the writ petition be allowed and
the order of detention passed by respondent No.1-Detaining Authority against the
detenu, as approved by respondent No.2-Government, be set aside.
On behalf of the respondents, respondent No.1-Detaining Authority, namely the
Collector and District Magistrate filed counter. The learned Assistant
Government Pleader representing the learned Advocate General for the
respondents, reiterating the stand taken by the respondents in their counter
submitted that the detenu is habitually indulging in illicit felling of red
sanders trees by trespassing into forest area, smuggling and transporting them
out of the reserved forest owned by the State. Further, his activities are
dangerous to the rare species of red sanders; resulting in damage to the
pristine forest wealth; prejudicial to the maintenance of public order. For
such of his illegal activities, the detenu is punishable under the provisions of
the A.P. Forest Act and the Rules made thereunder and the provisions of the
Indian Penal Code. The detenu has committed as many as eight offences in a span
of two years, and as the ordinary laws under which he is being prosecuted are
not sufficient to deal with his activities, respondent No.1-Detaining Authority,
with a view to prevent the detenu from indulging in commission of similar such
crimes, has passed the order of detention by invoking the Preventive Detention
Law, which was approved by respondent No.2-the Government. Even though he
admitted that the bail applications filed by the detenu and the bail orders
granted to the detenu in the five cases were not placed before respondent No.1-
Detaining Authority, but contended that since respondent No.1-Detaining
Authority in the order of detention, had noted that the detenu was arrested in
five cases and was released on bail, it cannot be said that he has passed the
order of detention without application of mind or it suffers from his subjective
satisfaction.
Heard the learned counsel for the petitioner and the learned Assistant
Government Pleader representing the learned Advocate General for the
respondents.
In the light of the arguments advanced by the respective parties, the only issue
that arises for consideration, in this writ petition:
1. Whether the order of detention passed by respondent No.1-Detaining Authority,
as confirmed by respondent No.2-Government, suffers from lack of subjective
satisfaction of the Detaining Authority, because the bail applications filed by
the detenu and the bail orders granted there in, were not placed before the
Detaining Authority?
Preventive Detention, the law is well settled, that it is not punitive, but only
preventive, and therefore, before passing an order of detention against a
person, which takes away his liberty, the Detaining Authority, has to satisfy
for itself whether there is sufficient material placed before him, to prevent
the person from acting in a manner prejudicial to public order or the like, in
the near future. The law is also equally well settled that if any of the
grounds of detention is found to be irrelevant, which formed the basis for
passing the order of detention, then the order of detention is liable to be
quashed.
Therefore, we shall examine whether there was sufficient material placed before
respondent No.1-Detaining Authority, to satisfy for him that it was necessary to
pass the order of detention against the detenu.
The detenu is involved in eight forest offences. The said eight forest
offences, which formed the basis for respondent No.1-Detaining Authority, to
pass the order of detention against the detenu, are as follows:
Sl. No.
Case No. Date: Name of the Section/Station
Particulars of seizure
Involvement of the accused
1.
O.R.No.177/2010-11 dt. 14/2/2010, Flying Squad Division, Tirupati
70 Red Sander logs - 2357 Kgs - three persons arrested on the spot along with
stock
Sri Vepagunta Nagaiah is noted as A-4 in this case and escaped from the scene of
offence. A PT warrant was issued against the accused in the Court of IV
Additional I Class Magistrate, Tirupati, he was arrested on 7-5-2012 and sent
for remand, later he was released on conditional bail on 15-5-2012.
2.
O.R.No.126/2009-10 dt. 26/2/2010, Flying Squad Division, Tirupati
4 Red Sander logs 110 Kgs - 4 persons arrested on the spot
Sri Vepagunta Nagaiah is noted as A1 was arrested on the spot along with three
others on 26-2-2010, produced before the Addl. Junior Civil Judge, Tirupati, and
sent for remand. In this case, charge sheet was also filed before the II Addl.
Judicial I Class Magistrate, Tirupati
3.
O.R.No.217/2010-11 dt. 31/3/2010, Flying Squad Division, Tirupati
15 Red Sander logs - 436 Kgs. - Two other persons arrested on the spot
Sri Vepagunta Nagaiah is noted as A3 in this case and escaped from the scene of
offence. A PT warrant was issued against him on the file of IV Additional
Junior Civil Judge, Tirupati, hence he was arrested on 7-5-2012 and sent for
remand. Later he was released on conditional bail on 15-5-2012
4.
O.R.No.17/2011-12, dt. 25/4/2010, S.V. National Park Range, Wild Life Management
Division, Tirupati
23 Red Sander logs - 699 Kgs. 3 persons arrested on the spot
Sri Vepagunta Nagaiah is noted as A4 in this case, escaped from the scene of
offence when the forest staff tried to catch hold of him along with stock. The
present stage of the case is under investigation
5.
O.R.No.26/2011-12, dt.2/5/2011, S.V. National Park Range, Wild Life Management
Division, Tirupati
1 Red sander log - 23 kgs. One person arrested on the spot
Sri Vepagunta Nagaiah is noted as A2 in this case, escaped from the scene of
offence when the forest staff tried to catch hold of him along with stock. The
present stage of the case is under investigation.
6.
O.R.No.108/2011-12, dt. 5/10/2011, S.V. National Park Range, Wild Life
Management Division, Tirupati
5 Red Sander logs - 105 kgs.
Sri Vepagunta Nagaiah is noted as A1, arrested on the spot on 5-10-2011,
produced before the III Addl. Munsif Magistrate, Tirupati and sent for remand
7.
O.R.No.249/2011-12 dt. 24-3-2011, S.V. National Park Range, Wild Life Management
Division, Tirupati
17 Red Sander logs - 315 Kgs - one person arrested on the spot - 2 vehicles -
Ambassador car bearing No.TN05 R0 5139 and Hyundai Accent Car bearing
No. AP 36 K 1234
Sri Vepagunta Nagaiah is noted as A2 in this case, escaped from the scene of
offence when the forest staff tried to catch hold of him along with stock. The
present stage of the case is under investigation
8.
O.R.No.20/2012-12, dt.20/4/2012 Flying Squad Division, Tirupati
15 Red Sander logs - 402 Kgs - 4 persons arrested on the spot. 2 vehicles - (1)
Indica Car No. AP 02-TV-237 and TVS XL No. AP 03 - AM nil
Sri Vepagunta Nagaiah is noted as A2 was arrested on 19/4/2012 on the spot along
with 3 others and produced before the III Addl. District Junior Civil Judge,
Tirupati, later sent for remand for 15 days up to 4-5-2012. In the meantime, he
was arrested on PT warrant on 1/5/2012 and 7/5/2012 in other cases and released
on conditional bail on 15-5-2012 in all cases.
As can be seen from the above table, respondent No.1-Detaining Authority, as
against O.R. No. 177/2010-11, dated 14.02.2010, Flying Squad Division, Tirupati,
noted that the detenu is shown as accused No.4 and that he has escaped from the
scene of offence and in execution of PT warrant issued by IV Additional First
Class Magistrate, Tirupati, he was arrested on 07.05.2012 and sent for remand
and later was released on conditional bail on 15.05.2012. The order of
detention, neither reflects the number of the bail application moved by the
detenu nor the details of the conditional bail order dated 15.05.2012; As
against O.R. No. 126/2009-10, dated 26.02.2010, Flying Squad Division, Tirupati,
it is mentioned that the detenu, who is accused No.1 was arrested on the spot
along with three others on 26.10.2010 and was produced before the Additional
Junior Civil Judge, Tirupati, who sent him for remand, and that charge sheet was
filed before the II Additional Judicial First Class Magistrate, Tirupati. The
order of detention does not reflect whether the detenu who was arrested was
granted bail. Though it is the case of the petitioner that the detenu was
enlarged on bail, but the order of detention, neither reflects the details of
the bail application moved by the detenu nor the date of bail order nor the
conditions of bail are mentioned. As against O.R. No. 217/2010-11, dated
31.03.2010, Flying Squad Division, Tirupati, it is mentioned that the detenu is
accused No.3 and that he escaped from the scene of offence, and that in
pursuance of PT warrant issued by the IV Additional Junior Civil Judge, he was
arrested on 07.05.2012 and sent for judicial remand and later released on
conditional bail on 15.05.2012. The order of detention, does not reflect the
number of the bail application moved by the detenu nor the details of the
conditional bail granted to the detenu. As against O.R.
No. 17/2011-12, dated 25.04.2010; 26/2011-12, dated 02.05.2011; and 249/2011-12,
dated 24.03.2011, S.V. National Park Range, Wild Life Management Division,
Tirupati, it is stated that the detenu is accused No.4 and accused No.2
respectively, and that he escaped from the scene of offence when the forest
officials tried to apprehend him along with the case and that the cases are at
the stage of investigation. As against O.R. No. 108/2011-12, dated 05.10.2011,
S.V. National Park Range, Wild Life Management Division, Tirupati, it is stated
that the detenu, who is accused No.1 was arrested on 05.10.2011 and produced
before the III Additional Munsif Magistrate, Tirupati and sent for remand.
However, the order of detention does not reflect whether the detenu was released
on bail. It is the case of the detenu that he was released on bail in the said
case, but neither the details of the bail application moved by the detenu nor
the bail order nor the conditions of bail granted to the detenu are reflected in
the order of detention. As against O.R. No. 20/2012-12, dated 20.04.2012,
Flying Squad Division, Tirupati, it is mentioned that the detenu, who is accused
No.2 was arrested on 19.04.2012 on the spot along with three others and produced
before the III Additional Junior Civil Judge, who remanded him to judicial
custody, and in the meantime, he was arrested in execution of PT warrants on
01.05.2012 and 07.05.2012 and was released on conditional bail on all the cases.
However, the order does not reflect the details of the cases of the PT warrants
in execution of which, the detenu was arrested, and though it is mentioned that
the detenu was released on bail in all the cases, it does not refer to the
numbers of the bail applications moved by the detenu and the bail orders and the
conditions on which the detenu was released on bail.
Thus from the above, it is evident that out of the eight forest offences
registered against the detenu, he was arrested and released on bail in five
cases, while in three cases, he was not even arrested. But curiously, in the
order of detention, respondent No.1-Detaining Authority has recorded that the
detenu was released on bail in all the cases. This shows that respondent No.1-
Detaining Authority, has not applied his mind to the facts of the case.
Respondent No.1-Detaining Authority, did not even bother to refer to the details
of the bail applications moved by the detenu, nor the details of the bail orders
nor the conditions on which bail was granted to the detenu. Obviously, he could
not have recorded the details of the bail applications moved by the detenu and
the bail orders granted and the conditions on which the bail was granted,
because it is the admitted case of the learned Assistant Government Pleader
representing the respondents that they were not placed before respondent No.1-
Detaining Authority. In State of U.P. v. Kamal Kishore Saini1, the Apex Court
held that it is incumbent to place all the vital materials before the detaining
authority to enable him to come to a subjective satisfaction as to the passing
of the order of detention as mandatorily required under the Act. In Ahmedkutty
v. Union of India2, the Apex Court held bail application and bail order were
vital materials for consideration and if those were not considered the
satisfaction of the detaining authority itself would have been impaired.
There is no doubt that the offences in which the detenu is said to be involved
are serious in nature, but it is unfortunate to note that the Sponsoring
Authority has not placed the relevant materials, particularly the bail
applications moved by the detenu and the bail orders granted and the conditions
on which bail was granted, before respondent No.1-Detaining Authority, to enable
him to arrive at subjective satisfaction. Inasmuch as the bail applications and
the bail orders, which are vital documents, were not placed by the Sponsoring
Authority before respondent No.1-Detaining Authority, to arrive at subjective
satisfaction whether or not to pass order of detention under the Preventive
Detention Law, and having regard to the settled law that if one of the grounds
of detention, which formed the basis for passing the order of detention, is
found to be bad, the order of detention is liable to be set aside, we are of the
considered opinion that the order of detention passed by respondent No.1-
Detaining Authority, as confirmed by respondent No.2-Government, cannot be
sustained and is liable to be set aside.
In the result, the writ petition is allowed. Consequently, the order of
detention dated 28.05.2012, passed by respondent No.1-Detaining Authority, as
confirmed by respondent No.2-Government by orders issued in G.O. Rt. No. 2950,
dated 26.06.2012, is set aside. The detenu shall be released forthwith if he is
not required in any other case. No costs.
________________
N.V. RAMANA, J.
_____________________ P. DURGA PRASAD, J. Dated: 17th October, 2012