Andhra HC (Pre-Telangana)
K. Ramanamma vs Govt. Of A.P. & Others on 9 March, 1998
Equivalent citations: 1998(3)ALD86, 1998(2)ALT709, 1998CRILJ2469
Author: T. Meena Kumari
Bench: T. Meena Kumari
ORDER N.Y. Hanumanthappa, J.
1. This Writ Petition is filed challenging the order of detention passed by the Commissioner of Police & Additional District Magistrate, Visakhapatnam, 2nd respondent herein, by exercising the powers conferred under Section 3(2) read with Section 2(a) and (g) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short 'Act 1 of 1986'), by which the husband of the petitioner, Kandula Trinath Rao, was detained in Central Prison at Visakhapatnam, on the ground that he is involved in committing the offences of violent and 'goonda' acts very frequently in violation of the laws of the land and doing clandestine business and creating terror in the minds of the public and that his 'goonda acts' are affecting adversely the maintenance of public order in the area of Railway Yards, National Alluminium Company, Central Ware House Godown, Hindusthan Shipyard, Visakhapatnam Port Trust and in all the abutting areas. The said order of detention dated 26-12-1997 passed by the 2nd respondent was approved by the Government of Andhra Pradesh, 1st respondent herein, in G.O. Rt. No.44, General Administration (Law & Order-II) Department, dated 5-1-1998.
2. The detenu, Kandula Trinadha Rao, was supplied with a copy of grounds of detention, which referred to 20 incidents alleged to have been committed by him on different dates ranging between 21st August, 1988 to 29-11-1997 for the offences punishable under the Indian Penal Code and the Railway Property (Unlawful Possession) Act regarding which independent crimes were registered. The grounds of detention reveal that the detenu was convicted in some cases, acquitted in some cases and some cases arc still pending before the Courts at Visakhapatnam and Vijayawada. It is the above criminal activities of the detenu which has led to the passing of the order of detention.
3. After service of notice the 2nd respondent filed a counter-affidavit supporting the detention order passed by him. He stated in his counter-affidavit that the offences under RP (UP) Act were shown in the grounds of detention only to show the conduct and antecedents of the detenu to commit the crimes again and again. According to him, the activities of the detenu squarely falls under the definition 'goonda' as defined under Section 2(g) of Act 1 of 1986. He further stated that in some of the cases referred to in the grounds of detention, the detenu was acquitted due to lack of evidence.
4. Mr. C. Padmanabha Reddy, learned Senior Counsel appearing for the petitioner attacked the said order of detention on several grounds. According to him, Act 1 of 1986 cannot be attracted to the case of the detenu. He further contends that the detenu cannot be brought within the definition of 'goonda' as defined under Section 2(g) of Act 1 of 1986, that the grounds of detention are stale and irrelevant; that most of the cases referred to in the grounds of detention were ended in acquittal, as such it is not proper to make use the same allegations as the grounds for detention of the detenu, that when some grounds are irrelevant the detention should not have been ordered on the basis of other grounds, that the order of detention is illegal as the authority who passed the said order failed to notice that the reference made to several incidents do not come within the definition of disturbance of 'public order' and that, therefore, the order of detention is a resultant of non-application of mind to the Laws of public safety, decisions rendered by this Court and the Supreme Court under similar circumstances, including the improper understanding of the word 'goonda' as defined under Section 2(g) of Act 1 of 1986. To support his contentions, he relied on the decisions of this Court and the Supreme Court, which will be referred later.
5. Smt. K. Vijaya Lakshmi, the learned Government Pleader appearing on behalf of the learned Advocate-General, supported the order of detention. According to her, the order of detention is a just one. She submitted that even though some cases ended in acquittal, the same was not done after full trial and contest, but they ended in acquittal due to lack of cooperation of the witnesses, that it is incorrect to state that all the grounds referred to in the grounds of detention are stale, vague, irrelevant and non-existent and they do not warrant detention of the detenu and that it is sufficient if a few incidents arc existent to warrant detention of the detenu. She further submits that the earlier incidents have been referred to in the grounds of detention only to explain the conduct of the detenu and none of the said incidents are stale, irrelevant or docs not tend to disturb the public order and that the order of detention need not be an elaborate one and that it is sufficient if there is a mention in the order that the same has been passed by making a reference to the grounds of detention, that too, after satisfying that the grounds are sufficient to invoke the provisions of the Preventive Detention Act. She further submits that the various anti-social activities, referred to in the grounds of detention, are sufficient to bring the detenu within the definition of Section 2(g) of Act 1 of 1986. To support her contentions, she placed reliance on the decision of the Supreme Court in Hemalata vs. State of Maharashtra, , wherein the Supreme Court held as follows:
"The past conduct or antecedent history of a person can appropriately be taken into account in making the detention order. It is indeed largely from prior events showing tendencies or inclinations of a person that an inference can be drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of supplies and services essential to the community or his act of violation of foreign exchange regulations and his smuggling activities are likely to have deleterious effect on the national economy".
Thus contending, the learned Government Pleader prayed for dismissal of the Writ Petition.
6. In the background of the rival contentions, 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 Section 2(g), the word 'goonda' is defined as follows :
"Sec.2(g): '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".
In A. Raja Reddy vs. Collector & District Magistrate, 1996(2) ALD (Crl.) 947 a division Bench of this Court while interpreting the word 'goonda' held as follows :
"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 abcts the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code. The expression 'habitually' mentioned in Section 29(G) of the Act postulates a thread of continuity in the commission of offences repeatedly and persistently, and the alleged complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude that a particular person is a 'Goonda' unless there is material suggesting his complicity in such cases which lead to a reasonable conclusion that he is an habitual criminal. In order to bring a person within the expression 'Goonda' as defined in Section 2(g) of the Act, there should be positive material to indicate that such person is habitually committing or attempting to commit the offences punishable under Chapter XVI, XVII or XXII of the Indian Penal Code. The provisions of the Act are intended to deal with sub habitual criminals who are so hardened and incorrigible that the ordinary provisions of the penal laws and fear of punishment for crime are not sufficient deterrents for them. In the present case, as already stated above, out of the six instances cited in the grounds of detention, the detenu is not even an accused in three of those cases and out of the remaining three cases, he is already acquitted in one case while the other two cases alone are still pending trial before the Courts. One of the cases, which is in Cr.NO.5/91, docs not even relate to any offence under Chapter XVI, XVII or XXII as contemplated in Section 2(g) of the Act. Under such circumstances, the detaining authority is not justified in forming the opinion that the detenu is to be considered as a 'Goonda' as defined in Section 2(g) of the Act which is the primary requisite for resorting to the provisions of Section 3(2) r/w. Section 3(1) of the Act to pass the order of detention".
The Division Bench also held that a person cannot be detained on a mere ground that he is a 'goonda'. His activities must be found to be prejudicial to the maintenance of public order disturbing the peace and tranquility of the locality. The activities of the detenu directed against particular individuals cannot be said to be affecting the maintenance of 'public order'. While interpreting the scope of Section 3(2) of Act I of 1986, the Division Bench observed that the detaining authority recited in its order the three criminal cases in which the detenu is said to be involved, that the said cases related to the period 3 to 9 years prior to the date of order and that, therefore, there is no rational connection with the conclusion that the detention was necessary for maintenance of public order. Hence, the Division Bench held that the detention is not valid.
7. In Writ Petition No.4149 of 1998 decided on 18-2-1998 a Division Bench of this Court, of which one of us - N.Y. Hanumanthappa, J., - was a member, while dealing with the scope of Section 2(g) of Act 1 of 1986 observed that "in order to pass an order of detention, the authority shall first satisfy that the grounds referred to and relied upon have disturbed the public order and not the law and order".
8. Article 21 of the Constitution of India is one of the important Articles in the Constitution as it has put the persons' liberty at high pedestal and its deprival should be only in accordance with law, that too, for the reasons to be recorded, In Ramsharan v. Union of India, 1989 SC 549 the Supreme Court held that "in order to constitute the 'deprivation' there must be some direct, overt and tangible act which threatens the fullness of the life of a person or members of the community, as distinguished from vague or remote acts threatening the quality of life of people at large''. This protection extends to all persons, whether he is a free citizen or a person imprisoned in jail. Any detention order must be reasonable, fair and just. Before arresting, the detenu shall be informed about the grounds of arrest. The object behind ordering detention is to prevent the person from acting in a manner prejudicial to public order, the security of the State or the like. In some cases his past conduct and antecedents may form the basis of an order of detention if they reveal a tendency to do such acts and it is not necessary for the State to establish actual breach of public order etc. having been caused by his acts as held by the Supreme Court in Nishikanta v. State of West Bengal, . The reason why the authorities shall be more cautious and careful in ordering detention is because curtailing of citizen's liberty by resorting to the provisions of Preventive Detention Act shall be under extraordinary circumstances and the acts referred therein shall be the rarest of rare incidents which warrant the detention of a person. Since the citizen's personal liberty as per our Constitution is fundamental, the authority before passing the order shall satisfy itself first that the acts referred to are not possible to be dealt with by the laws other than the laws of public safety. The grounds must have proximity and must be relevant but shall not suffer from any vagueness and shall not be irrelevant.
9. In Pilli Yeteswari v. Government of A.P., 1997 (1) ALT (Crl.) 184 a Division Bench of this Court found that any order made shall be definite and the reasons given must be acceptable and there shall not be any scope for inclusion or cannot be tried to improve it by additional reasons subsequently. In this connection reliance is made on the Division Bench to the decision of the Supreme Court in Mohinder Singh v. Chief Election Commr., .
"..when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it conies to Court on account of a challenge, get validated by additional grounds later brought out".
In the said decision, the Division Bench, while referring to the right of personal liberty, further observed as fellows:
"Of all the fundamental rights conceded to the citizens under our Constitution, the right of personal liberty is the most cherished one. A person is not to be deprived of the right except in accordance with the procedure laid down by law even if he may be a man of the most desparate character. The law relating to preventive detention has hence always been very strictly interpreted so as to uphold the concept of individual freedom and the courts have always acted to safeguard the purity of such right which is available to be interfered with only under the most stringent and rigorous conditions. It is for such reason it has been the consensus that while the interest of the society is paramount, yet the rights of individuals so far as their personal liberty is concerned, is to be equally balanced vis-a-vis those rights of the society and that the right of the individual in that regard is not to be made either a scapegoat or a martyr for the cause of the society unless duly sanctioned by law".
Time and again Courts have held that deprival of personal liberty is not for the reason that the person's presence or his activities tend to disturb 'law and order' but it shall be only when it disturbed the 'public order'. In other words, no action becomes one as affecting 'public order' unless it affects the even tempo of public life, the life of the community, even though it may create a situation of 'law and order'. What is 'public order' and what is 'law and order' has been elaborately dealt with by a Division Bench of this Court in Moganti Srihari Rao v. The Commissioner of Police, 1997 (1) ALT (Crl.) 755, by relying upon the various decisions of the Supreme Court and observed thus:
"The principle laid down in the judgments of the Supreme Court shows that there are three circles one within each other: The law and order represents the largest circle, the next circle represents public order and the smallest circle represents the security of the State; and whether law and order is affected or public order is affected or security of the State is affected has to be decided as per the facts and circumstances of each case. There is vast distinction between public order and law and order. Every incident of law and order cannot be said to be incident of public order. Therefore, the Court has to decide taking the facts and circumstances of each case whether there is threat to maintenance of public order or not".
While referring to the right of 'personal liberty' the Division Bench observed as follows :
"In a Constitutional Democratic Republic where Life and Liberty of the Citizens are guaranteed as one of the Fundamental Rights, the Court has to always regard Personal Liberty as the most precious possession of the Citizens and whenever any order of illegal detention is brought to the notice of the Court, it has to be scrutinised with utmost care and the case has to be decided with utmost top priority. In this context, it is relevant to quote the observations of Rhagawati J., in Ichudevi v. Union of India (AIR 1980 SC 1983) :
'...The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade. This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirements of law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention..' "..... Personal liberty of a citizen is sacrosanct and the approach to the curtailment of the personal liberty is an idealistic one, as the loss of personal liberty deprives a man of all that is worth living for and builds up deep resentments. Therefore, the Courts have to scrutinize the cases giving paramount importance to the personal liberty".
To invoke the order of detention there shall exist disturbance of peace. If the grounds of detention are more than one, such grounds shall be definite and must be relevant. Among many grounds referred, if one or two grounds are stale, vague or irrelevant or not amounting to disturbance of public order, then the entire order of detention shall have to be declared as illegal as held by the Supreme Court in Shibban Lal v. State of U.P. , which reads as follows:
"Where however the Government itself while confirming the detention is exercise of its power under Section 11 admits that one of the two grounds mentioned in the original order is unsubstantial or nonexistent, to say that the other ground, which still remains, is quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as whole".
In Shiv Prasad v. State of M.P., the Supreme Court held that "Grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, stateness and vagueness are vices, any single one of which is sufficient to vitiate a ground of detention. And a single vicious ground is sufficient to vitiate an order of detention".
10. In the case of P. Mukherjee v. State of W.B. the Supreme Court while explaining the scope of 'public order' held that the detention can be ordered to prevent subversion of 'public order' but not in aid of maintenance of 'law and order'. It also held that if one of the grounds are extremely vague and not giving sufficient particulars, the same shall not be a basis for detention.
11. If we examine the grounds of detention and the order of detention passed by the 2nd respondent as approved by the 1st respondent in G.O.Rt.No.44 dated 5-1-1998 in the light of the law laid down by the Supreme Court and this court in the decisions set forth supra, the irresistible conclusion will be that the 2nd respondent passed the impugned order of detention without understanding the difference between 'law and order' and 'public order' and how the acts of thefts of the detenu are prejudicial to the interest of the society or they affected the even tempo of the public life in the localities. The said incidents cannot form the basis for detention of the detenu. Some of the incidents mentioned in the grounds of detention were death with by the competent Criminal Courts and they ended in acquittal. The remaining incidents can very well be tried before the competent Criminal Courts. Invoking the provisions of Preventive Detention Act will prevent the citizens' liberty. It shall be used sparingly and only when the authority passing the order is satisfied that the free movement of such a person in the society will disturb the 'public order' and the even tempo of public life. In other words, his presence for the time being is not in the safety or interest of the society. In our view, the order of detention, which is under challenge, is against the all well established principles of law. Therefore, the same is liable to be quashed. Accordingly, it is quashed.
12. In the result, the Writ Petition is allowed and the impuged order of detention is quashed. The respondents are directed to set to liberty the detenu Kandula Trinadha Rao, who is now detained in Central Prison, Visakhapatnam, forthwith. No costs.