Andhra HC (Pre-Telangana)
B. Venkata Ramana S/O Basaiah Residing ... vs The Government Of Andhra Pradesh Rep. By ... on 13 October, 2014
Author: Nooty Ramamohana Rao
Bench: Nooty Ramamohana Rao
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITON Nos.22820 of 2014 13-10-2014 B. Venkata Ramana S/o Basaiah Residing at Guttalapai, Nuthan Kalva Village K.V. Palli Mandal, Chittoor District Petitioner The Government of Andhra Pradesh Rep. by its Chief Secretary General Administration (Law & Order) Dept.Secretariat Buildings, Hyderabad and 2 others .. Respondents Counsel for the petitioner : M/s T.Nagarjuna Reddy Counsel for the respondents : 1. Learned Government Pleader for Home (AP) <GIST: >HEAD NOTE: ? Cases referred 1. AIR 1966 SC 740 2. (1970) 1 SCC 98 3. (1970) 3 SCC 746 4. (1972) 3 SCC 831 5. AIR (1963) SC 946 6. AIR 1945 PC 48 7. AIR 1972 SC 1487 8. (1972) 1 Supreme Court Cases 199 9. (1992) 2 Supreme Court Cases 177 10. AIR 2014 SC (Criminal) 1309 11. AIR 1953 SUPREME COURT 318 12. AIR 1984 SUPREME COURT 211 13. AIR 1973 SUPREME COURT 2469 14. 2005 CRI.L.J.689 15. AIR 1974 SUPREME COURT 2154 16. (2012) 2 Supreme Court Cases 72 17. (2006) 3 Supreme Court Cases 321 18. (2011) 5 Supreme Court Cases 244 19. (2012) 2 Supreme Court Cases 386 20. AIR 1966 SC 740 21. (1970) 1 SCC 98 22. (1970) 3 SCC 746 23. (1982 ) 2 SCC 403 THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITON Nos.22820, 23564 and 23236 of 2014 COMMON ORDER:
These three writ petitions are heard together as they are directed against the orders of Preventive Detention passed at the first instance by the Collector and District Magistrate, which were subsequently approved and confirmed by the State Government of Andhra Pradesh.
The detention orders are passed essentially for the reason that each of the detenues is notoriously involved in one crime or the other relating to illicit felling of red sanders trees in various pockets of reserve forest of Seshachalam forest range. Seshachalam forest range is the naturally suited area for growth of red sanders trees. The Collector and District Magistrate has recorded reasons as to why and how he was satisfied that the detention of each of the detenues is called for. The detention orders are placed before the Advisory Committee and based upon the opinion tendered by it, orders of confirmation have been accorded by the State Government. I shall advert in detail to the various contentions canvassed in each of the cases, a little later.
Heard Sri T.Niranjan Reddy, Sri H.Prahlada Reddy and Sri Vedula Srinivas, learned senior counsel on behalf of the detenues and Sri P.Venu Gopal, learned Advocate General assisted by learned Special Government Pleader and Special Assistant Government Pleader on behalf of the respondents.
Sri T.Niranjan Reddy, learned senior counsel, who led the arguments, would contend that the Collector has not passed distinct and separate orders of detention and the grounds for detention. The Collector has passed one single order containing his decision to detain preventively the individuals and also the grounds for such detention. In W.P.No.22820 of 2014, the detenue was granted bail in all the criminal cases, but this fact was not appraised to the Collector and consequently it was not within the knowledge of the detaining authority, therefore, the detention order is vitiated. It was also contended that in some of the offences mentioned in the detention order, the specific involvement of the detenue was not even mentioned. Thus, the order of detention was vitiated as it was passed mechanically and without considering the relevant material.
Sri H.Prahlada Reddy, learned senior counsel, would contend that certain instances which formed part of a preventive detention order passed earlier were once again repeated even though the Supreme Court has intervened in the matter and set aside the preventive Detention order on the previous occasion. Thus the order of preventive detention was passed taking events of remote past thus reflecting lack of serious application of mind.
Sri Vedula Srinivas, learned senior counsel, would contend that the order of preventive detention could not have been passed for a period of more than three months at the outset whereas it has been passed for a longer period of 12 months and hence for that reason the impugned order stands vitiated for sheer violation of the proviso to sub-section 2 of Section 3 of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug- Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986.
It is a common ground urged in all the cases that for the involvement of the respective detenues in various criminal cases, ordinary law of the land is adequate enough to deal with them and hence the extraordinary measure of preventively detaining the detenues need not be resorted to. Further, there was no material that is brought forth showing the direct involvement of the detenues. Statements, said to have been made by other accused persons is made the basis behind the various offences noted against the detenues. Any such attempt to implicate persons would have been frowned upon by the Criminal Courts. Therefore, the detention orders deserve to be set-aside for the failure to be based upon a legally admissible evidence. It is also urged that the preventive detention order must be tested for its strict compliance with that of the provisions of the Act and Article 22 of the Constitution of India and any breach of the provisions of law and other fundamental procedural safeguards must be construed very strictly as any such breach is fatal to the order of detention.
Learned Advocate-General would counter that every preventive detention order is the result of subjective satisfaction of the detaining authority. The necessary safeguards are adopted and the extreme step of preventive detention has been resorted to as there is no other alternative left to tackle the menace of illegal felling of precious red sanders trees and then smuggling them. Learned Advocate General would contend that if the order of detention clearly brings out the grounds which formed the subjective satisfaction of the detaining authority, then there is no necessity to supply separately distinct grounds of detention. What is relevant is that the detenue must be made aware of the grounds and reasons for his preventive detention and hence if the detention order itself brings out the same in clear terms, the detention order need not be interdicted only on the ground that two separate orders i.e. one of detention and the other containing the grounds for detention are not passed.
Learned Advocate General would also contend that if a bail order, if it contained relevant conditions is not taken into account by the detaining authority perhaps one can legitimately make out a case, but where the competent criminal court grants bail as a matter of course and routine, the fact that such a bail order has not been taken into account by the detaining authority would not make any difference to the detention order. Learned Advocate-General pointed out that the detention order brought out the propensity of involvement of the individuals in various crimes and only for purpose of bringing it out the trait of the detenue to get attracted to the crime, the past events have been narrated. The repeated involvement in one crime or the other by the detenue gives an indication as to how his activities are taking the proportion of dangerous activities.
Dealing with the contention that the events of remote past have been taken into account, the learned Advocate-General contends that a chain of events, which run through a long span of time is what has been narrated in the preventive detention order only for purpose of satisfying that the involvement of the detenue in crimes in recent times is not sporadic or accidental, but is the result of a well laid out plan of action undertaken by him.
The learned Advocate-General would lay a great emphasis on the environmental impact, the dangerous activities of illegal felling of trees in the reserve forest would normally cause and hence would urge that these cases be dismissed.
Before one embarks upon a study of the dynamics of the States power to preventively detain any person without being subjected to ordinary course of law, the principles set at rest firmly by the Supreme Court on the subject should be kept in view.
In Ram Manohar Lohia v. State of Bihar , speaking for Justice Bachawat also, Justice Hidayatullah (as the learned Chief Justice then was) pointed out the distinction between public order and law order in the following words:
43. The subject of preventive detention has been discussed almost threadbare and one can hardly venture in any direction without coming face to face with rulings of courts. These cases are now legion. It may be taken as settled that the satisfaction of the detaining authority cannot be subjected to objective tests, that the courts are not to exercise appellate powers over such authorities and that an order proper on its face, passed by a competent authority in good faith is a complete answer to a petition such as this..
44. ..When the liberty of the citizen is put within the reach of authority and the scrutiny from courts is barred, the action must comply not only with the substantive requirements of the law but also with those forms which alone can indicate that the substance has been complied with.
51. ..The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(l)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
52. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.
65. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State...
In Arun Ghosh v. State of West Bengal. again Hidayatullah, J. speaking for the Court, pointed out that what in a given situation may be a matter covered by law and order, on account of its impact on the society may really turn out to be one of public order. It was observed:
Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chambermaids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its effect upon the public tranquillity there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies.
A Seven Judge Constitution Bench of the Supreme Court in Madhu Limaye v. Sub-Divisional Magistrate again dealt with the question and it was observed:
In our judgment the expression in the interest of public order in the Constitution is capable of taking within itself not only those acts which disturb the security of the State or act within ordre publique as described but also certain acts which disturb public tranquillity or are breaches of the peace. It is not necessary to give the expression a narrow meaning because, as has been observed, the expression in the interest of public order is very wide.
In Kanu Biswas v. State of West Bengal , the Supreme Court opined:
The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call ordre publique and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above case, is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of society undisturbed?
Section 3 reads as follows:
3. Power to make orders detaining certain persons.
(1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person is detained.
(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section:
Provided that the period specified in the order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
(3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government.
Now turning to the cases on hand, the State Legislature enacted the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (henceforth for short the Act) with a view to provide for preventive detention of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers and also for preventing their dangerous activities prejudicial to the maintenance of Public Order. The Legislature being aware as to how the public order is adversely getting affected every now and then by the dangerous activities of certain persons, who are known as bootleggers, dacoits, drug-offenders, goondas, immoral traffic offenders and land grabbers and with a view to authorize their preventive detention enacted the above said legislation. Section 2 of the Act defined various expressions used in the enactment. In Clause
(a) the expression acting in any manner prejudicial to the maintenance of public order is defined in the following terms.
2 (a) acting in any manner prejudicial to the maintenance of public order means when a boot-legger, a dacoit, a goonda, an immoral traffic offender or a land- grabber is engaged or is making preparations for engaging, in any of his activities as such, which affect adversely, or are like to affect adversely, the maintenance of public order The expression goonda has been defined in the following terms under Section 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.
Since Section 3 which sets out the contours of power to make orders for detaining certain persons has great relevance and bearing upon the present batch of cases, it is apt to quote the same here.
Section 3 Power to make orders detaining certain persons:
(1) The Government may, if satisfied with respect to any bootleggers, dacoit, drug-offender, goonda, immoral traffic offender or lang-grabber that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.
(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Government are satisfied that it is necessary so to do, they may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (1) exercise the powers conferred by the said sub-
section.
Provided that the period specified in the order made by the Government under this sub-section shall not in the first instance, exceed three months, but the Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period, from time to time by, any period not exceeding three months at any one time.
(3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the Government.
(Emphasis is brought out by me) Section 8 of the Act required that when a person is detained in pursuance of a detention order, the authority making such detention order shall, as soon as may be, but, not later than 5 days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the Government.
Section 9 of the Act required the State Government to constitute one or more Advisory Boards, consisting of a chairman and two other members for discharging the functions under the Act.
Section 10 of the Act declares that in every case where a detention order has been made, the Government shall within 3 weeks from the date of detention of a person, place before the Advisory Board, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case the order has been made by an officer under sub-section (2) of Section 3,the report by such an officer shall also be placed before the Advisory Board.
Section 11 of the Act has set out that the Advisory Board shall after considering the materials placed before it and if necessary after calling for such further information in the matter and after considering the representation of the detenue and if the detenue desires to be heard, and after hearing him in-person, shall submit its report to the Government within 7 weeks from the date of the detention of the person concerned. The Advisory Board shall specify in its opinion as to whether or not there is sufficient cause for the detention of the person concerned.
Section 12 of the Act provided for the follow-up action to be taken by the Government on the opinion tendered by the Advisory Board. Sub-section (1) of Section 12 sets out that if the Advisory Board opines that there was sufficient cause for the detention of a person, then the Government may confirm the detention order and continue the detention of the person concerned for such period not exceeding the maximum period specified under Section 13 of the Act, as they think fit.
Sub-Section (2) of Section 12 of the Act in clear cut language imposes an obligation on the Government to revoke the detention order and cause the person detained so far to be released forthwith where the Advisory Board has reported that there is no sufficient cause for the detention of the person.
Section 13 of the Act provided for the maximum period of detention by setting forth that the detention order made under the Act, as confirmed under Section 12 of the Act shall be 12 months from the date of detention.
Section 14 of the Act empowered the Government at any time either to revoke or modify the order of detention.
Sub-section (2) of Section 14 makes it clear that either the revocation or expiry of the detention order shall not bar the making of a fresh detention order under section 3 against the same person, in any case, where fresh facts have arisen after the date of revocation or expiry, on which the Government or an officer, as the case may be, is satisfied that such an order should be made.
Section 15 empowered temporary release of any such person detained, for any specified period with or without conditions and also at any time may cancel such a temporary release order.
Section 17 has set out that after the commencement of the Act, no order for detention under the National Security Act, 1980 shall be made by the Government or any of their officers, in respect of any bootlegger, dacoit, drug offender, goonda, immoral traffic offender or land grabber in the State.
From the definition of goonda contained in 2 (g), it emerges that he is a person who either by himself or as a member of or as a leader of a Gang, habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI or XVII or XXII of the Indian Penal Code (for short IPC).
In this context it will be relevant to note that chapter XVI of IPC dealt with offences affecting the human body and offences affecting life of human beings. While Chapter XVII of IPC dealt with offences against property while Chapter XXII of IPC dealt with criminal intimidation, insult and annoyance.
A careful analysis of Section 3 clearly discloses that under sub-section (1) thereof power is conferred upon the State Government, if satisfied, with respect to any bootlegger, dacoit, drug- offender, goonda, immoral traffic offender or land grabber to make an order directing that such person be detained so as to prevent him from acting in any manner prejudicial to maintenance of public order. Sub-section (2) conferred power on the Government, if satisfied that it is necessary to do so, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or Commissioner of Police, by order in writing direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub- section (1) of Section 3, to exercise the same powers conferred by the said sub-section. Thus, sub-section (2) of Section 3 merely authorizes delegation of power by the State Government in favour of a District Magistrate or Commissioner of Police within whose local limits of jurisdiction, the prevailing circumstances or those likely to prevail, require power of preventive detention available to the State Government under sub-section (1) to be exercised by such officers. Thus, but for this delegation of power by the State Government, no District Magistrate or Commissioner of Police can exercise on their own the power and order for preventive detention of any person. Hence, the State Government is further required to specify the period of such delegation to last during which, the District Magistrate or the Commissioner of Police as the case may be, can exercise similar functions which the State Government can exercise under sub- section (1).
The proviso added to sub-section (2) clearly referred to the order of delegation that can be passed by the State Government and then specified that it shall not in the first instance exceed 3 months, but however the Government may if satisfied may extend such order, by such period from time to time by any period of not exceeding 3 months at any one time. The proviso is incorporated by the legislature advisedly attempted to confine the delegation of power likely to be resorted to by the State Government only for a period of 3 months initially and depending upon the circumstances prevailing, the delegation of authority in favour of the District Magistrate or Commissioner of Police may get extended each time by a period of not exceeding 3 months. Clearly the legislature has intended to check the authority of delegation which the State Government is likely to resort to by conferring powers of preventive detention upon the District Magistrate or Commissioner of Police as the case be. This check would ensure that the State Government may not resort to a blanket delegation of power in favour of a District Magistrate or the Commissioner of Police for an indefinite period and on each occasion such delegation is resorted to, the State is required to have regard to the prevailing circumstances or those likely to prevail which alone can justify any such delegation. This check on delegation reflects the clear anxiety and intention of the legislature that an order of preventive should be normally passed by the State Government and in certain circumstances such powers can also be exercised by the other officers of the State named therein. But the proviso to Sub- section (2) of Section 3, never attempted to regulate the exercise of power by the delegatee. The Proviso to sub-section (2) therefore, has no connection whatsoever to the period of detention which can be passed by the delegated authority namely the District Magistrate or the Commissioner of Police. The reason is very simple Sub-section (1) while authorizing the State Government to exercise the power of preventive detention never prescribed any period of time at the first instance for which an order of detention can be made. Therefore, while delegating the powers in favour of the District Magistrate or Commissioner of Police as the case may be, Sub-section (2) also did not contemplate to confine the period of detention to be passed by such officers to any specific period of time. In fact, it is Section 13, which prescribed 12 months period as the maximum period for which any person may be detained. Thus, there is no particular embargo with regard to period of time for which detention order at the first instance can be passed under sub-section (1) or sub-section (2) of Section 3 and the limit on the period of detention has been provided only under Section 13 of the Act. Therefore, to my mind, the proviso to sub-section (2) has only imposed a limitation on power of delegation by the State Government and it is not intended to confine the period of detention initially for 3 months.
Sub-section (3) of Section 3 clearly stipulated that wherever an order is passed by the officer specified under sub-section (2), he shall forthwith report the said fact to the Government together with the grounds on which the order has been made by him. This apart the most important part of sub-section (3) spelt out that no such order, passed under Subsection (2), shall remain in force for more than 12 days after the making thereof, unless, in the meantime, it has been approved by the Government.
This later portion of sub-section (3) is a safety valve provided for by the legislature. That provides for an effective check against any possible error of judgment on the part of the delegate in ordering for detention of a person. Whereas under sub-section (1) of Section (3), it is the State Government which is required to apply its mind and then make an order of detention against any person. But however when it came to the order made by the District Magistrate or the Commissioner of Police to whom the State Government delegated such powers, the later portion of sub-section (3) compelled the State Government to apply its mind also independently and pass an order of confirmation of the detention order passed by its delegate, by specifying a tight time limit of 12 days for this confirmation. What the statute intended to achieve by this provision was where the State Government is not satisfied about the correctness or regularity of the order of preventive detention passed by its delegate, it may not confirm the same and as a consequence thereof, the order of preventive detention passed by the District Magistrate or Commissioner of Police as the case may be would not remain in force after expiry of the 12th day from the day on which the preventive detention order has been made. Therefore, if a preventive detention order passed by a District Magistrate or Commissioner of Police, had to survive beyond the 12th day of its making but not from the date of detention, it is essential that the factors which weighed with the District Magistrate or Commissioner of Police must also pass the tests and standards normally applied by the State Government when it contemplates to pass an order of preventive detention under sub- section (1) of Section 3.
In other words, even if the order of detention is made by the District Magistrate or Commissioner of Police under sub-section (2) of Section 3, specifying the period of detention for 3 months or even a larger period than it but not exceeding 12 months, if such an order does not get confirmed by the State Government within 12 days period of time from the day it is made, such an order cannot have any effect beyond the 12th day. Therefore, in my opinion, order of detention passed by the District Magistrate or the Commissioner of Police, in whose favour such powers have been delegated by the State Government, even if specifies the period of detention, let us say as for 3 months/6 months/9 months or 12 months, it makes no difference for its validity, in as much as such a preventive detention order can survive beyond the 12th days only after the State Government passes an order of confirmation independently, but not otherwise.
Further in every case where a detention order has been made, the Government shall within 3 weeks from the date of detention of a person, place before the Advisory Board constituted under Section 9 of the Act, the grounds on which the order has been made together with the representation, if any, made by the person affected by the order of detention. Therefore, orders of preventive detention passed by the State Government under sub-section (1) or orders of preventive detention passed under sub-section (2) and confirmed by the State Government under sub-section (3) of Section 3 shall both be required to be placed before the Advisory board within 3 weeks from the date of detention of the person. Under Section 11 the Advisory Board is required to make/forward its opinion within 7 weeks from the date of detention of the person concerned. Significantly, sub-section (1) of Section 11 uses the expression within 7 weeks from the date of detention of the person concerned, which in effect means, that, if the State Government utilizes completely the 3 weeks period which is available to it to place the necessary material before the Advisory Board, then the Advisory Board is only left with 4 weeks time for making available its opinion to the State Government, because the 7 weeks period is to be reckoned not from the date the State Government places the material before the Advisory Board, but the 7 weeks period is liable to be reckoned from the date of detention of the person concerned. From this, it is crystal clear that certain well laid out and tight time frame limits have been incorporated in the Act keeping an eye on the precious right to liberty of the detenue. This is a procedural safety mechanism incorporated against the orders of preventive detention. These time frames, will have significance when viewed in the backdrop of sub-section (2) of Section 12, which mandates the State Government to revoke the detention order and cause the person so detained to be released, in case where the Advisory Board has reported that there is no sufficient cause for the detention of the person concerned.
Illustratively put, in case the State Government passed an order of preventive detention under sub-section (1) of section (3) and in all cases where the delegate of the State Government namely the District Magistrate or the Commissioner of Police passes an order of preventive detention under sub-section (2), which order is confirmed within the first 12 days by the State Government, the same will have to be placed before the Advisory board together with all the material which formed the basis for the order of detention together with the representation submitted by the detenue and thereafter, within a maximum period of 4 weeks if the Advisory board tenders its opinion that there is no sufficient cause for detaining such a person, the State Government is obliged to revoke the order of detention and set free forthwith such a person. Thus, looking at the scheme of the statute, it emerges that the prospects of revocation and release from detention in 7 weeks time period from the date of detention are confined to the realm of true possibility. This could be one of the reasons why the Statute maker has not specified as to what length of period, an order of detention passed under sub-section (1) or sub- section (2) of Section 3 of the Act shall be initially confined. Therefore, in my opinion, it is not required that the order of detention passed sub-section (1) or sub-section (2) of Section 3 should invariably be confined only for a period of 3 months.
It can also be looked at from a different perspective. From the very composition of the Advisory Board as spelt out under Section 9 of the Act and the power conferred upon such a board to tender its opinion within a period of 7 weeks from the date of detention of a person, the Advisory board can also tender its opinion with regard to justifiability of the period of detention proposed in the order. There is nothing contained in Section 11 of the Act which deters or takes away from the Advisory Board from tendering an opinion with regard to the reasonable tenure of the detention upon assessing the grounds of detention. In other words, even if the State Government or the officers to whom the State Government delegated powers under sub-section (2) of Section 3 of the Act, have proposed to detain any person for a particular period, which under no circumstances can exceed 12 months limit specified under Section 13, the Advisory Board upon proper appreciation of the material can tender its opinion suggesting detention for a lesser length of period as well, let us say 3 months, 6 months, or 9 months as the case may be, depending upon the gravity of circumstances that warrant. Further, the right of the detenue to urge for confining the period of detention to a lesser period than is proposed in the detention order, also requires the Advisory Board to focus and consider the same. Therefore, the proportionality of the period of detention subject to the limits specified under Section 13 of the Act is also one area or facet of exercise of power by the Advisory board. If the Advisory board were to apply its mind and make a suggestion in that regard, it must know before hand as to what length of period of detention is proposed by the authority, while making the order of detention either under sub-section (1) or sub-section (2) of Section 3 of the Act. Otherwise, if the Board were to consider the period of detention that would be reasonable in a given case, it amounts to the Advisory board taking upon itself the mantel of determining the period of detention entirely by itself. By the very nature of the powers conferred upon the Advisory board, by the statute, in my opinion, the advisory board would not determine entirely on its own the period for which the person concerned should be detained. That was the task entrusted by the Statute to the detaining authority, by clearly indicating the maximum period as 12 months. On the other hand, the Advisory Board could apply its mind, with reference to the material available on record as to whether the proposed period or tenure of detention is reasonable and proportionate to the gravity of situation narrated in the order of detention. If in case the Advisory board is satisfied that the gravity of the situation does not justifiably warrant an excessive period of detention, it will make available its opinion even in respect thereof to the State Government.
In view of the scheme contemplated under sub-section (2) of Section 12, if the Board is of the opinion that there is no sufficient cause for detention of a person concerned beyond a particular period, such opinion of the board also binds the State Government. I am, therefore, of the opinion that sub-section (2) of Section 12 leaves appropriate scope to the Advisory Board to apply its mind even with regard to the reasonability of the period of detention. As a corollary of this discussion, in my opinion the detaining authority under sub-section (1) as well as sub-section (2) of Section 3 was required to set out as to what length of period it was proposed to detain the person. Subject of course to the limitation spelt out under Section 13 of the Act. If no such period is specified or as suggested by Sri Vedula Srinivas, the learned counsel for the petitioner, that it should not be passed for a period exceeding 3 months initially and only after the Advisory Board renders its opinion, the period of detention can be finally arrived at, such a course of action, would result in denying an effective opportunity to the detenue and also simultaneously to the Advisory Board, to consider or focus on the proportionality of period of detention that is warranted in the given facts and circumstances of each case.
Further, Subsection (1) of Section 12, authorizes the State Government to confirm the order of detention based upon the opinion of the Advisory Board holding that there is sufficient cause for the detention of the person concerned. However, the legislature used the expressions confirm the detention order and continue the detention of the person concerned for such period in Subsection (1) of Section 12. It is significant to notice the words continue the detention .. for such period found therein. Therefore, under Section 12, the State Government is not required to determine the length of the period of detention of the detenue for the first time, but, it is only required to continue the detention for such period, as is obviously proposed initially, while passing the order of detention.
Further, Subsection (1) of Section 14 conferred power on the State Government to modify or revoke, at any time, the order of detention passed by the officer mentioned in Subsection (2) of Section 3. This presupposes that the State Government may not agree entirely with the order of detention made by the officer mentioned in Subsection (2) of Section 3 of the Act or it might modify the order of detention to the extent of the period of detention proposed by such officer. Therefore, to enable the State Government to apply its mind under Subsection (1) of Section 14, one of the areas of the detention order passed by the officer should reflect the proposed period of detention. Hence, a realistic assessment as to the length of detention as called for in the matter should get reflected in the order of detention passed by the officer under Subsection (2) of Section 3.
When the language employed in a statute is plain, unambiguous and admits of only one meaning, normally, the question of construction of such a statute would not arise, for, the statute speaks for itself (see State of Uttar Pradesh v. Vijay Anand Maharaj ).
Lord Chancellor Viscount Simonds observed in Emperor v. Benoarilal Sarma :
Again and again this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used Justice Gajendragadkar (as the learned Chief Justice of India then was) has put it very crisply by observing in Senior Superintendent, R.M.S., Cochin and Anr v. K.V. Gopinath , as under:
if the words used are capable of one construction only then it would not be open to the courts to adopt any such hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.
When a plea was raised before the Supreme Court in State of West Bengal v. Ashok Dey and others that in the absence of a law made by Parliament in terms of Clause 7 of Article 22 of our Constitution, no order of detention can be made for a longer period than 3 months, it was answered as under by Justice I.D. Dua, speaking on behalf of a larger Bench, in the following words:
7. The power of the State Legislatures under Article 246 with respect to preventive detention enumerated in Entry 3 of List III is co-extensive with that of Parliament with respect to such preventive detention and it must necessarily extend to all incidental matters connected with preventive detention as contemplated by this entry, subject only to the condition that it does not come into conflict with a law made by Parliament with respect to the same matter. There is no provision of the Constitution to which our attention has been drawn nor has any principle of law or precedent been brought to our notice, which would justify a limitation on the power of the State Legislature, as suggested by the respondent, to make a valid law providing for detention under Article 22(4) for a period beyond three months on the ground of absence of a law made by Parliament permitting detention for such period. Had the Constitution intended such a result it would certainly have made an express provision to that effect. Since Article 22 covers the subject of preventive detention both under the law made by Parliament and that made by State Legislatures, if State Legislatures were intended by the Constitution to function under a limitation in respect of the period of detention one would have expected to find such a limitation expressly stated in this Article. But as we read Clause (7) of Article 22 it merely invests the Parliament with an overriding power enabling it, if the circumstances so require, to make a law, providing for preventive detention prescribing the circumstances under which a person may be detained for a period longer than three months without obtaining the opinion of an Advisory Board and, also, prescribing the maximum period for which any person may be detained under any such law and further prescribing the procedure to be followed by an Advisory Board. It does not prohibit the State Legislature from making a law either providing for preventive detention for a longer period than three months when there is a provision for securing the opinion of an Advisory Board or prescribing procedure to be followed by such Advisory Board. Such a power with the State Legislature, hedged in by effective safeguards as it is, appears to us to be necessary to enable it to deal with emergent situations necessitating enactments with respect to preventive detention for safeguarding the security of the State against violent activities secretly organised by antisocial and subversive elements with the intention of producing chaos. Security of a State, maintenance of public order and of supplies and services essential to the community demand effective safeguards in the larger interest of sustenance of peaceful democratic way of life.
Article 22, therefore, must be construed on its plain language consistently with the basic requirement of preventing anti-social subversive elements from imperiling the security of States or the maintenance of public order or of essential supplies and services therein.
In this context, it will be relevant to notice as to how an identically worded provision, as that of Subsection 2 and Subsection 3 of Section 3 of the Act arising from a legislation made by State of Maharashtra has been considered by the Supreme Court in Harpreet Kaur (Mrs) Harvinder Singh Bedi v. State of Maharashtra and another . Dealing with the contention canvassed before the Supreme Court that the proviso to Section 3(2) of the Act prohibited the State Government to make an order of detention in the first instance exceeding three months and if it is so made, the order of detention gets vitiated, the Supreme Court, has negatived the said contention emphatically in the following words of Justice Dr.A.S. Anand (as the learned Chief Justice of India then was):
32. Section 3 reads as follows:
"3. Power to make orders detaining certain persons. (1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person is detained. (2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section:
Provided that the period specified in the order made by the State Government under this sub-section shall not, in the first instance exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. (3) When any order is made under this section by an officer mentioned in sub-sec. (2), he shall forthwith report the fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless in the meantime, it has been approved by the State Government."
33. A plain reading of the Section shows that the State Government under Section3(1), if satisfied, with respect to any person that with a view to preventing him from acting in a manner prejudicial to the maintenance of "public order", it is necessary so to do, make an order of detention against the person concerned. Sub-section (2) of Section 3 deals with the delegation of powers by the State Government and provides that if the State Government is satisfied, having regard to the circumstances prevailing in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, it is necessary to empower District Magistrate or the Commissioner of Police, as the case may be to exercise the powers of the. State Government to order detention of a person as provided by sub-section (1), then the State Government may, by an order in writing direct that during such period as may be specified in the order, the District Magistrate or the Commissioner of Police may also if satisfied as provided in sub- section (1), exercise the powers of the State Government as conferred by sub-sec. (1). The proviso to subsection (2), only lays down that the period of delegation of powers, specified in the order to be made by the State Government under sub-sec. (2), delegating to the District Magistrate or the Commissioner of Police the powers under sub-section (1) shall not in the first instance exceed three months. The proviso, therefore, has nothing to do with the period of detention of a detenu. The maximum period of detention is prescribed under Section 13 of the Act which lays down that a person may be detained in pursuance of any detention order made under the Act, which has been confirmed under Section 12 of the Act. It is, therefore, futile to contend that the order of detention in the instant case was, vitiated because it was for a period of more than three months. The second argument, therefore, also fails.
However, the learned senior counsels appearing for the petitioners Sri T. Niranjan Reddy and Sri Vedula Srinivas have placed strong reliance upon the Judgment of the Supreme Court rendered in Cherukuri Mani w/o Narendra Chowdari v. Chief Secretary, Government of Andhra Pradesh & Ors , wherein in paragraph 13, it is held that the initial order of detention can be passed only for three months and hence any order of detention passed for more than three months gets vitiated. It was also urged that in Cherukuri Manis case, Section 3 of the Act has been considered and hence this Court should invariably interdict the detention orders which are not in accord with the principle set out therein. It is appropriate to notice that the Supreme Court in Cherukuri Manis case in paragraphs 13 and 14, the Supreme Court has noted as under:
9. Proviso to Sub -section (2) of Section 3 is very clear in its purport, as to the operation of the order of detention from time to time. An order of detention would in the first instance be in force for a period of three months. The Government alone is conferred with the power to extend the period, beyond three months. Such extension, however, cannot be for a period, not exceeding three months, at a time. It means that, if the Government intends to detain an individual under the Act for the maximum period of 12 months, there must be an initial order of detention for a period of three months, and at least, three orders of extension for a period not exceeding three months each. The expression "extend such period from time to time by any period not exceeding three months at any one time" assumes significance in this regard.
14. The requirement to pass order of detention from time to time in the manner referred to above, has got its own significance. It must be remembered that restriction of initial period of detention to three months, is nothing but implementation of the mandate contained in Clause (4)(a) of Article 22 of the Constitution of India. It reads as under:
Clause 4: No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless-
(a) an Advisory Board consisting of persons who are or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament Under Sub-clause (b) of Clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament Under Sub-clauses (a) and (b) of Clause (7).
Sri Vedula Srinivas, learned counsel for the petitioners would urge that the principle set out in paragraph 13 of the Judgment of the Supreme Court, quoted supra is applicable to the present set of facts in these cases and the orders of detention should be declared as vitiated.
I had carefully studied the Judgment rendered by the Supreme Court in Cherukuri Manis case. Unfortunately, as I could notice, the attention of the Supreme Court was not drawn to the Judgments rendered by it earlier in The State of West Bengal v. Ashok Deys case and Harpreet Kaurs case. The Supreme Court has understood an identically worded Maharashtra legislation as not requiring the detention order passed under Subsection (2) of Section 3 to be confined initially for a period of three months. Perhaps, if only, the earlier judgments of Supreme Court in, The State of West Bengal v. Ashok Deys case and Harpreet Kaurs case were drawn to the attention of the Supreme Court, perhaps, it would not have preferred to ignore the same while deciding Cherukuri Manis case. The reasoning assigned by a larger Bench in The State of West Bengal v. Ashok Deys case in my humble opinion, binds this Court.
Further, apart from the context and text, the analysis of various provisions of the Act have clearly spelt out that while passing the order of detention either under Subsection (1) or Subsection (2) of Section 3 setting-forth the proposed period of detention as proposed therein, would in fact provide an effective opportunity to the detenue to represent even in respect of the period of detention and simultaneously provide an opportunity to the Advisory Board to make its opinion in respect of the period of detention also. Thereafter, the State Government can further bestow its thought with regard to the tenure of detention. I, therefore, consider that the principle enunciated in The State of West Bengal v. Ashok Deys case and Harpreet Kaurs case is wholly appropriate to be followed.
The learned Senior Counsel Sri T. Niranjan Reddy has laid great emphasis upon not supplying two separate orders, one of detention and the other containing the grounds for such detention, in support of his plea that the detention order is vitiated.
Subsection (1) of Section 3 authorized the Government to make an order for detaining any of those persons mentioned therein, provided it is satisfied that it is necessary to prevent him from acting in any manner prejudicial to the maintenance of public order. Similar is the nature of power exercisable by the officers named in Subsection (2) of Section 3. It is Subsection (3) which takes of reporting to the Government by such officer of the factum of making a detention order together with the grounds on which the order is made. Similarly Section 8 mandates that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but, not later than 5 days from the date of detention communicate the grounds on which the order of detention has been made, so as to afford him an earliest opportunity of making a representation against the order of detention.
A reading of these provisions would indicate making of an order of detention and separate order containing the grounds for such detention. Unless an order of detention is made the question of its execution under Section 4 of the Act would not arise. But more importantly, it is the grounds based upon which the detention order is made that should be made available to the detenue at the earliest point of time but not later than 5 days from the date of detention. This would be in conformity with Clause (5) of Article 22 of our Constitution. Making of a representation against ones preventive detention was the only procedural safeguard against unjust and arbitrary pretrial preventive detentions. In a way it is a silver lining to the darker clouds. Therefore, keeping the constitutional mandate contained in Clause (5) of Article 22 in view, non-supply of grounds of detention and the material relied upon by the detaining authority, would be fatal to the sustainability of a detention order.
But would that be extendable in case a comprehensive detention order containing the full details of the grounds of detention and other relevant material is passed? In my opinion, the submission of the learned Advocate General in this regard deserves acceptance. It is certainly desirable that a separate detention order and grounds forming the basis for such detention order be passed but, most importantly they be communicated to the detainee simultaneously. In the instant case, a comprehensive order of detention containing the grounds that formed the basis for subjective satisfaction of the detaining authority have been included therein. Thus the requirement of law as well as the protection available under Clause (5) of Article 22 was simultaneously achieved. Hence, the same is not fatal to the detention order.
It is apt in this context to notice the principle spelt out in Dr. Ram Krishnan Bharadwaj v. The State of Delhi and others .
5 The question, however, is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed preventive detention is a serious invasion of personal liberty and such meager safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. In this case, the petitioner has the right, under Article 22 (5), is interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention sufficient to enable him to make a representation which on being considered may give relief to him. We are of opinion that this constitutional, requirement must be satisfied with ...
Sri H. Prahlad Reddy, learned Senior Counsel in support of his plea that stale grounds are taken into consideration by the detaining authority, placed strong reliance upon the majority opinion rendered in Kamalakar Prasad Chaturvedi vs. State of Madhya Pradesh , Justice Varadarajan who spoke on behalf of Justice O. Chinnappa Reddy also, in his majority opinion has set out the relevant principle in paragraphs 10 and 12 of his judgment in the following words:
10. It is not necessary to consider all the other objections raised by the petitioner in his Writ Petition as we propose to dispose of the petition on the ground of want of proximity of grounds 1 and 2, particularly ground 1 to the order of detention dated 6-5-1983. Those grounds relate to alleged incidents of 20-3-1978 and 9-8-1980 which are more than 5 years and about 2 years respectively to the date of the order of detention. This Court has taken a strict view of the law of preventive detention which deprives the citizen of his freedom with)out a trial and full-
fledged opportunity for him to prove his innocence"
The first two incidents which are of 1978 and 1980 are mentioned as grounds of detention in the order dated 6-5-1983. There can be no doubt that these grounds especially ground No. 1 relating to an incident of 1978 are too remote and not proximate to the order of detention. It is not open to the Detaining Authority to pick up an old and stale incident and hold it as the basis of an order of detention under Section 3 (2) of the Act. Nor it is open to the Detaining Authority to contend that it has been mentioned only to show that the detenu has a tendency to create problems resulting in disturbance to public order, for as a matter of fact it has been mentioned as a ground of detention... Therefore in the present case it cannot be postulated what view would have been taken by the Detaining Authority about the need to detain the petitioner under Section 3(2) of the Act if he had not taken into account the stale and not proximate grounds 1 and 2 into consideration in arriving at the subjective satisfaction. We are, therefore, of the opinion that the petitioner's detention is unsustainable in law. Accordingly, we quash the order of detention and direct that the petitioner be set at liberty forthwith.
The learned Advocate General Sri Venugopal would contend that in Kamalakar Prasad Chaturvedis case, the detaining authority passed the order of detention on 06.05.1983 relying upon the instances which took place in 1978 and 1980 and hence the Supreme Court has construed the said instances as too remote instances which can offer a reasonable basis, for deletion, whereas, the detaining authority in all the three cases has narrated all the instances one after the other. Those instances are of recent origin disclosing a well structured format of operations. Therefore, the instances noted by the detaining authority in the present cases are not remote instances, but they reflect the pattern of involvement in dangerous activities of the detenue which will have a direct bearing upon the public order.
I, see, considerable force in the submission of the learned Advocate General that the order of detention has narrated all the adverse instances that have to notice against the respective detenues in the detention order. The detention order has clearly brought out instances which are of recent origin. Therefore, the subjective satisfaction of the detaining authority is clearly based upon the recent instances also and the narration of the whole events has been resorted to project the regularity of the dangerous activities undertaken by the respective detenues and hence, it is difficult to describe the order of detention as based upon far remote and stale instances.
Learned counsel Sri H. Prahlad Reddy had pressed into service the Judgment of the Supreme Court in Har Jas Dev Singh v. State of Punjab and others in support of his plea that, in the absence of fresh facts emerging after the previous detention order has been set- aside by the Supreme Court, the present detention order gets vitiated.
It is true, Subsection (2) of Section 14 of the Act sets out that the revocation or expiry of a detention order shall not bar the making of a fresh detention order under Section 3 against the same person where fresh facts have arisen after the date of revocation or expiry of the previous detention order. It is true that, the Collector and District Magistrate, Chittoor passed orders on 30.05.2014 for the preventive detention of the detenue, upon being satisfied, that the activities indulged in by him are injurious to maintenance of public order. It is equally true that the State Government passed orders through G.O.Rt.No.2571 General Administration (Law & Order) Department dated 11.07.2014 after receiving the report of the Advisory Board dated 26.06.2014, confirming the order of detention made by the Collector & District Magistrate, Chittoor and directing the detention of the detenue for a period of 12 months from
06.06.2014, the date of his detention. It is contended by Sri H.Prahlad Reddy that, earlier the Collector and District Magistrate, Kadapa passed an order on 04.08.2011 for the preventive detention of the same detenue and the said order was confirmed by the State Government and when the matter was carried in Crl.A.No.1113 of 2012, the Supreme Court by its order dated 26.07.2012 allowed the said appeal while setting aside the judgment rendered by this Court, has quashed the detention order passed by the Collector & District Magistrate, Kadapa on 04.08.2011. The detenue was ordered to be released forthwith. Now, the present order of detention passed by the Collector & District Magistrate, Chittoor, would disclose that five offences in which the detenue was involved, have been taken into account and consideration. The first one relates to Crime No.223 of 2008 arising out of an incident that took place on 17.10.2008. The second related to Crime No. 142 of 2009 which arose out of an incident that occurred on 23.07.2009. Whereas, the third offence is Crime No.90 of 2011 which is registered from out of an incident that occurred on 24.11.2012 at about 03.00 A.M at four roads cross on Palamaner Bangalore road, National Highway No.4 at Gandrajupalli Village, Gangavaram Mandal and at Jayanthi Village, hamlet of Balijapalli, Bangarupalem Mandal, wherein two accused persons were arrested by the police as they have cut and committed theft of 10 red sanders wood logs from Seshachalam forests, Tirupati and dumped the same at the house of A-1 on the direction of A-3, who is the detenue herein and A-4 one Sadasiva Raju. Offence No.4 related to Crime No.77 of 2013 which arose out of an incident that occurred on 26.11.2013. In this crime, the detenue was A-2. Offence No.5 relates to Crime No.5 of 2014 arising out of an incident that took place on 31.01.2014. The detenue was shown as A-8 in this offence. From the narration of the above facts, it emerges that, offences 3, 4 and 5 have all occurred after 26.07.2012, the date on which the Supreme Court has quashed the earlier detention order and directed the release of the detenue. In fact, offence No.3 arose out of an incident that took place on 24.11.2012 which is less than four months time from the date of the order of the Supreme Court. Therefore, the learned Advocate General, in my opinion, is right in his submission that when fresh facts have emerged after the earlier detention order has been quashed by the Supreme Court, as a result of which the power available under Subsection (2) of Section 14 has been invoked by the detaining authority. Unlike in Har Jas Dev Singhs case, in the present case, fresh facts have emerged and hence the principle set out therein is not applicable to the facts and circumstances of the case.
The learned Advocate General has also placed reliance upon the Judgment rendered by the Supreme Court in Collector and District Magistrate, Eluru, Andhra Pradesh v. Sangala Kondamma to sustain the present detention order.
In Sangala Kondammas case, it was held by the Supreme Court as under:
9. Thus, if the facts placed before the detaining authority are proximate to each other and the last of the fact mentioned is proximate to the order of detention then the early incidents can not be treated as stale and detention order cannot be set aside. In the instant case, it is seen that between the period from 10.1.2001 and 25.10.2002 the detenue was involved in five incidents of bootlegging which are reasonably proximate to each other and the last of the incidents being proximate to the order of detention, we think the High Court was not justified in treating the two incidents of 17.1.2000 and 10.1.2001 as stale by taking them in isolation. In our opinion, the court should have considered the proximity of the incidents between themselves which indicates the possibility of the proposed detenue continuing to indulge in the illegal activities which requires his preventive detention.
(Emphasis is mine) I am, therefore, of the opinion that the instances which are reported against the detenue are instances which arose after the order of the Supreme Court dated 26.07.2012 and, in particular, the last instance took place as recently as on 31.01.2014. The narration of the two previous instances was only intended to convey the unabated tendency of the detenue to take to crime as an avocation. The three instances which occurred in the post release period are closely followed one after the other and they bear proximateness to the order of detention. I, am therefore, of the opinion that the satisfaction recorded by the detaining authority cannot be declared as vitiated.
Now turning to the plea that statements made by certain accused persons implicating the detenues, as against any direct evidence of involvement of the detenues in crimes relating to illegal felling of Red Sanders Trees, has been made the basis of the order of detention and which procedure would never have received the approval by competent court for handing out any conviction, for rejecting this plea, all I need to do was to revisit the principle enunciated in this respect by Chief Justice A.N. Ray, who spoke for a Constitution Bench of the Supreme Court in Hardhan Saha v. The State of West Bengal , which is to the following effect:
12. . The representation cannot be reasonable if the detenu has no opportunity to test the truth of the materials relied on for detention.
19. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for a act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in Section 3 of the Act to prevent.
32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.
Learned senior counsel Sri T. Niranjan Reddy would point out that in W.P.No. 22820 of 2014, the learned XI Additional Sessions Judge, Piler, granted bail to the detenue on 09.04.2014 in Crl.MP.No.575 of 2014, whereas, the detaining authority has not been posted with this information at all and consequently, the order of detention is vitiated. He places reliance, in support of the above plea, on the judgment rendered by the Supreme Court in Rushikesh Tanaji Bhoite v. State of Maharashtra and others . The Supreme Court has set out in paragraphs 8, 9 and 10 thereof as under:
8. It would be, thus, seen that the order releasing the detenu on bail in the crime registered on August 14, 2010 and the order relaxing the bail condition were passed by the Judicial Magistrate, 1st Class, Dharangaon much before the issuance of detention order dated January 10, 2011. However, the detention order or the grounds supplied to the detenu do not show that the detaining authority was aware of the bail order granted in favour of the dentenu on August 15, 2010.
9. In a case where detenu is released on bail and is enjoying his freedom under the order of the court at the time of passing the order of detention, then such order of bail, in our opinion, must be placed before the detaining authority to enable him to reach at the proper satisfaction.
10. In the present case, since the order of bail dated August 15, 2010 was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, in our view, the detention order is rendered invalid. We cannot attempt to assess in what manner and to what extent consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority but suffice it to say that non-placing and non-
consideration of the material as vital as the bail order has vitiated the subjective decision of the detaining authority.
It is true that, the XI Additional Sessions Judge, Piler may have granted bail to the detenue on 09.04.2014, which is prior to 30.05.2014, when the detention order was passed by the Collector and District Magistrate, Chittoor. But however, the learned Advocate General has pointed out that, it is not invariably required by the sponsoring authority to bring to the notice of the detaining authority that a bail has been granted. Learned Advocate General has placed reliance upon the Judgment of the Supreme Court in Sunila Jain v. Union of India and another which dealt with a similar contention as was urged now by Sri T. Niranjan Reddy, learned Senior Counsel. In paragraph 7, 13, 14, 15, 16, 18 and 19.
7. It was urged that in the instant case it is evident from the records that neither the copy of the bail application nor the order of the court granting bail to the detenu had been placed before the detaining authority. It was furthermore argued that the High Court committed a manifest error in rejecting the said contention of the appellant stating that he must have been aware of the contents of the bail application and, thus, was not prejudiced in any manner whatsoever. The constitutional mandate contained in Article 22 of the Constitution of India, Mr. Mani would argue, must be complied with where supply of relevant material is imperative. In support of the said contention reliance was placed in Mrs. Tsering Dolkar v. Administrator, Union Territory of Delhi and Ors. 1987CriLJ988 , Johney D'Couto v. State of Tamil Nadu 1988CriLJ178 and Smt. Icchu Devi Choraria v. Union of India and Ors.: [1981]1SCR640 .
13. In Abdul Sathar Ibrahim Manik v. Union of India and Ors.: 1991CriLJ3291 this Court inter alia held:
(3) If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non-
application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.
It was, however, observed:
(6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.
14. We do not think that the aforementioned enunciation of law is of universal application. We would deal with this aspect of this matter a little later.
15. In M. Ahamedkutty (supra) this Court was dealing with a case where an order of bail was passed on the condition that he would report before the Customs Authority on every Wednesday and would not change his residence without prior permission of court. This Court in the aforementioned fact situation opined that non- consideration of the order passed on the said petition for bail would amount to non-application of mind on the part of the detaining authority holding:
Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired, and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenu's right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case.
The said decision has no application to the present case.
16. In P.U. Abdul Rahiman (supra) this Court held:
The appellant had been arrested on June 4, 1988 under the Narcotic Drugs and Psychotropic Substances Act, 1985. On June 9, 1988 he had moved an application before the Judicial First Class Magistrate, Kasargod for bail. That application was rejected. On June 10, 1988 the appellant moved an application for bail, as C.M.P. No. 104 of 1988, before the District Sessions Judge, Kasargod. On June 17, 1988 the appellant was released on bail subject to certain conditions. In the two applications for bail the appellant had specifically stated that he had retracted from the statement made by him.
The co-accused, who had also made a statement, had retracted from his statement.
17. The bail petition filed by the detenu therein contained material facts which were required to be taken into consideration by the detaining authority. Such is not the case here.
18. The decisions of this Court referred to herein before must be read in their entirety. It is no doubt true that whether a detenu on the date of the passing of the order of detention was in custody or not, would be a relevant fact. It would also be a relevant fact that whether he is free on that date and if he is, whether he is subjected to certain conditions in pursuance of and in furtherance of the order of bail. If pursuant to or in furtherance of such conditions he may not be able to flee from justice, that may be held to be relevant consideration for the purpose of passing an order of detention but the converse is not true. Some such other grounds raised in the application for bail and forming the basis of passing an order of bail may also be held to be relevant. It would, however, not be correct to contend that irrespective of the nature of the application for bail or irrespective of the nature of the restrictions, if any, placed by the court of competent jurisdiction in releasing the detenu on bail, the same must invariably and mandatorily be placed before the detaining authority and the copies thereof supplied to the detenu.
19. The decisions relied upon by Mr. Mani in our opinion do not lay down as universal rule that irrespective of the facts and circumstances of the case it would be imperative to place all applications for bail as also the orders passed thereupon before the detaining authority and copies thereof supplied to the detenu. On the petitioner's own showing, only that part of the application for grant of bail that the offence in question is a bailable, was relevant. No other submission had been raised at the bar. Whether a provision of law is bailable or not is a question of law. The same is presumed to be known to courts and/or the detaining authority. It may not be necessary even to be stated in the application for bail. If a person had been released on bail on the ground that the offence is bailable, it would not be necessary to bring the said fact before the detaining authority. The detaining authority will have to satisfy himself on the basis of the materials placed on record, as to whether the order of preventive detention should be passed against the detenu or not. The constitutional mandate can be said to be violated provided: (1) the impairment has been caused to the subjective satisfaction to be arrived at by the detaining authority; and (2) if relevant facts had not been considered or the relevant or vital documents have not been placed before the detaining authority.
(Emphasis is brought out by me) It is a fundamental principle that if in a later judgment the Supreme Court has understood the judgments rendered by it on earlier occasions, in a particular manner, that is the only way, the principles enunciated on the subject should be understood by all. Hence, irrespective of the nature of conditions contained in the Bail Order and in the absence of the vital material contained therein, one cannot treat the order of detention as vitiated for sheer knowledge of grant of bail to the detenue.
From an analysis of the principle enunciated in Sunila Jains case, it emerges that, if the order of bail contains any relevant information which, if considered by the detaining authority, then he would have been satisfied that ordinary course of law is adequate enough to deal with the detenue and the power of preventive detention need not be invoked against him, in such cases the subjective satisfaction can be said to have been impaired. In the instant case, no such demonstration has been carried out to show that the Bail order contained vital material and as to how the order of bail would have made a difference in the matter of subjective satisfaction of the detaining authority. I am of the opinion, therefore, that the detention order is not vitiated for want of knowledge of granting bail by the criminal court to the detenue on 09.04.2012.
Learned counsel for the petitioners have placed reliance upon the Judgment rendered by the Supreme Court in Rekha v. State of Tamil Nadu and Munagala Yadamma v. State of Andhra Pradesh and others and would contend that where the ordinary course of law is adequate to deal with the offending activities alleged against the detenue, the extraordinary provision of preventive detention should not be invoked against the detenue.
It is true that, where the ordinary course of law is adequate and sufficient to deal with the offences indulged in, then perhaps, the preventive detention should not be resorted to. But as was pointed out by the Supreme Court in Dr. Ram Manohar Lohia v. State of Bihar , Arun Ghosh v. State of West Bengal , Madhu Limaye v. Sub Divisional Magistrate, Monghyr and Ashok Kumar v. Delhi Administration & others , if the dangerous activities of the detenue are such as to threaten the public order, the situation warrants invocation of the harsher option of preventive detention.
The distinction between the areas of public order and law and order must be constantly borne in mind. The act complained of against the detenue itself, may not be the determining factor about its gravity. But, it is the potentiality of the act which can disturb the even tempo of the life of the community that makes it prejudicial to the maintenance of public order. When red sanders trees are felled indiscriminately and illegally, by way of an organized activity in a reserve forest, the chances of the men while committing the act getting caught is too remote. The vigilance over the forest cover particularly, during the night times is a greatly restricted activity. Such vigilance is not organized by the State for variety of reasons including for availability of adequate manpower and equipment and scarce financial resources at its disposal and more importantly, to sub-serve the larger interests of not disturbing the tranquillity of night life in reserve forests.
Forests are the habitat of not only trees, but various varieties of other creatures. They would gain freedom to move about unhindered in the reserve forest when the night falls. The disturbance that can be caused by way of emission of light, sound or presence of men who can easily cause more harm to them, would greatly come in the way of all such creatures enjoying their natural activities undertaken at night times. The tranquil atmosphere that prevails during night time is ideally suited for host of creatures to go about exploring for their respective preys. These creatures need to secure food and water for their sustenance and survival. Therefore, the State is invariably caught in conflict of interests situation, when it comes to organising night vigil in deep and dense forests. It prefers, therefore to keep the night vigil in authorized areas to the basic minimum necessity. It is only intended for prevention of illegal and unauthorized entry and other activities to be undertaken in the reserve forests. This apart, the various routes that can take one into the deep forests cannot all be plugged satisfactorily by the State. This factor, is mostly capitalised by persons who have least respect and regard for law enforcement. The prospects of collection of direct evidence against them while committing one type of offence or the other unauthorized act is truly a remote prospect. It is only from the circumstantial evidence gathered or captured subsequent to the commission of offence, inferences are drawn about the occurrence of the forest offences. When red sanders logs in large quantities are detected and seized, they unerringly point out a finger to the felling of the red sander trees illegally. During the course of investigation only those who operate or abet such forest offences emerge. The red sander tree species grows essentially in Seshachalam reserve forest range. Perhaps, the climatic conditions prevailing there are ideally suited for the growth of these trees. They offer vital cover to various other organisms around the reserve forest. If the red sander trees were to be felled illegally, for purposes of making a fast buck out of it, the disastrous fall out consequences will have to be faced by the rest of the living organisms including the human beings who may have been relatively removed far away from the reserve forest. The delicate balance of the ecology when gets disturbed, it will have an impact upon the seasonal effects the mother-nature bountifully accords. I, am therefore, of the opinion that, illegal felling of red sanders trees disturbs the even tempo of living of the human beings and thus, the illegal activities concerning and connected to the illegal felling of the red sanders trees in reserve forests amounts to prejudicial activities of public order and it has to be necessarily dealt with by a firm hand, inasmuch as, the consequences of such illegal felling of trees would normally follow are mostly irreversible. Even if the State were to make every effort to raise nurseries of red sanders over vast extents of land, such trees take several decades to reach the stage at which the present trees are standing. Therefore, there is no gainsaying that every grown up tree in the reserve forest is intrinsically valuable for the human beings and the dwindling forest cover all due to illegal felling of trees will pose a potential threat for survival of several living organisms and will also lead to severe adverse climatic conditions to prevail. Most of the living organisms in forest area are incapable of being reproduced in laboratory conditions. Therefore, their loss might even remain to be a permanent one leading to extinction of certain species. In view of the various disastrous consequences, that follow the illegal felling of red sanders tree, with cascading effect, I am of the view that no lenience deserves to be shown to the cause of detenues herein.
I would place on record the enormous benefit of learning gained by me all due to high quality assistance rendered quite dispassionately by Sri T. Niranjan Reddy, Sri H. Prahlad Reddy, Sri Vedula Srinivas and Sri P. Venugopal, the learned Advocate General. May their tribe ever increase! For the aforementioned reasons, these writ petitions fail and they are dismissed, but however, without costs.
Consequently, miscellaneous applications pending if any, shall stand dismissed.
_______________________________________ JUSTICE NOOTY RAMAMOHANA RAO 13.10.2014