Andhra HC (Pre-Telangana)
M. Nirmala vs Government Of A.P. Rep. By Chief ... on 28 March, 2012
Bench: N.V. Ramana, P. Durga Prasad
THE HON'BLE SRI JUSTICE N.V. RAMANA AND THE HON'BLE SRI JUSTICE P. DURGA PRASAD WRIT PETITION No. 3856 of 2012 28-03-2012. M. Nirmala Government of A.P. rep. by Chief Secretary, General Administration (L&O.II) Dept., Secretariat, Hyderabad and 3 others. For the petitioner : Sri. N. Bharat Babu For the Respondents : The Advocate General <Gist: >Head Note: ?CITATIONS: 1. AIR 1964 SC 334 2. AIR 1990 SC 1196 3. 2011 (1) DT (SC) 11 4. 1999 (3) Supreme 448 5. (2011) 5 SCC 244 6. 2006 (4) ALT 299 7. (1992) 2 SCC 177 8. AIR 1990 SC 225 = 1989 (4) SCC 741 9. (1990) 2 SCC 1 10. AIR 1979 SC 541 11. AIR 1996 SC 70 = 1995 (5) SCC 691 12. JT 1998 (4) SC 457 = (1998) 8 SCC 343 13. (2004) 3 SCC 289 14. (2006) 7 SCC 289 O R D E R:
(Per Sri. Justice N.V. Ramana,) The petitioner, who claims to be the wife of the detenu, namely Sri. Durgam Subhramanyam S/o. Sri. Gangi Shetty, has filed this writ petition to issue a Writ of Habeas Corpus directing the respondents to produce her husband, who has been detained in Central Prison, Cherlapally, in execution of the order of detention dated 11.08.2006, passed by the Collector and District Magistrate, ordering the detention of Anantha Kishore S/o. Srinivasulu, which was approved by the Government in G.O. Rt. No. 4341, General Administration (Law and Order. II) Department, dated 21.08.2006.
On the ground that the detenu was habitually involved in the commission of forest offences, that he was involved in O.R. No. 12/2005-06, dated 04.05.2005; O.R. No. 13/2005-06, dated 27.06.2005; O.R. No. 15/2005-06, dated 07.07.2005 and; O.R. No. 04/2006-07, dated 28.04.2006, for the offences punishable under Section 20, 27, 29 and 58 of the A.P. Forest Act, 1967 and Sections, 34, 107, 120-B and 379 IPC and Rule 3 of the A.P. Sanders Wood and Red Sanders Wood Transit Rules, 1970, and that in spite of registration of crimes, the detenu is habitually committing similar such offences and the laws under which he is being prosecuted, are insufficient to control his activities, the Collector and District Magistrate, Chittoor, in exercise of the powers conferred on him under Section 3(1)(2) r/w Section 2(a) and 2(g) of the A.P. Prevention of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act 1 of 1986) (for short "the Act"), vide proceedings in Roc. C2/6483/2005, dated 11.08.2006, directed the detention of Anantha Kishore @ Subramanyam S/o Srinivasulu, aged about 36 years, with a view to prevent him from causing damage to the national wealth by trespassing, cutting, dressing and transporting red sanders wood from the forest. The said order of detention dated 11.08.2006, was approved by the Government of Andhra Pradesh in G.O. Rt. No.4341, General Administration (Law and Order.II) Department dated 21.08.2006. In execution of the order of detention, the detenu was taken into custody and detained in Central Prison, Cherlpalli. Therefore, questioning the order of detention, passed by the Collector and District Magistrate, as approved by the Government, the petitioner, who is the wife of the detenu, as stated above, filed the present writ petition, directing the respondents to release her husband, namely Durgam Subhramanyam S/o.
Sri. Gangi Shetty, forthwith.
According to the petitioner, herself and her husband, namely Sri. Durgam Subhramanyam, are residing in house bearing No.19-8-18A, Dasari Matam, Tirupati. That the person named in the order of detention is not her husband, and that her husband's name is Durgam Subramanyam S/o. Gangi Setty and not Anantha Kishore S/o. Srinivasulu, as is mentioned in the order of detention. It is her case that her husband has no aliases and that the Superintendent of Police, on coming to know that her husband was arrested in Crime No. 5 of 2012 on the file of Kallur Police Station on 27.01.2012 and was in judicial custody, with a view to execute the order of detention, which remained unexecuted for nearly five and a half years, under pressure from higher authorities, made her husband a scapegoat and by tying aliases to the name of her husband and stating that Anantha Kishore S/o. Srinivasulu, against whom order of detention is passed, is no other than Durgam Subhramanyam S/o. Gangi Shetty, sought to execute the order of detention, and accordingly, filed Crl.M.P. No.140 of 2012 before the Judicial First Class Magistrate, Pakala, praying to lodge her husband Sri. Durgam Subhramanyam S/o. Gangi Shetty, in Central Prison, Cherlapalli, which the petitioner contends is illegal and arbitrary.
The petitioner further pleaded that order of detention passed by the Collector and District Collector, is without application of mind. The order of detention lacks subjective satisfaction of the detaining authority, in that, it does not refer to the cases in which the detenu, is alleged to have been involved, much less applied its mind to the fact whether the detention of the detenu is required to be made in public interest.
Respondent No.2, namely the Collector and District Magistrate filed counter justifying the order of detention passed by him against the detenu Anantha Kishore @ Subramanyam S/o. Srinivasulu, which was confirmed by the Government. According to him, the detention order could not be executed for nearly five and a half years because the detenu was absconding or concealing his presence to avoid his detention by changing names and addresses frequently. While efforts were being made to arrest the detenu, the Superintendent of Police, came to know that the detenu was arrested in connection with Crime No. 5 of 2012 on the file of Station House Officer, Kallur Police Station, and was produced before the Judicial First Class Magistrate, Pakala, who remanded him to judicial custody. Immediately, he filed a petition in Crl.M.P. No. 140 of 2012 before the Judicial First Class Magistrate, Pakala, seeking a direction to the Jail authorities to hand over his custody and to continue him in Central Prison, Cherlapalli, Ranga Reddy District, for the purpose of executing the order of detention. The same, by order dated 09.02.2012 was allowed. He stated that the detenu, who is taken into custody, for executing the order of detention, is the very same person against whom order of detention has been passed, and to substantiate this, he relied on the remand report filed by the police in Crime No.5 of 2012 of Kallur Police Station, wherein the detenu is shown as accused No.28, and that he was being referred as Durgam Subrahmanyam @ Takku Subrahmanyam @ Club Subramanyam @ Potti Subrahmanyam @ Anantha Kishore. The Collector and District Magistrate, further to substantiate that the detenu who is taken into custody and detained in prison is the very same person against whom the order of detention is passed, relied on the fax message, said to have been sent by the petitioner, namely M.Nirmala, wife of the detenu, on 24.03.2008 to this Court alleging that her husband M. Kishore S/o. M.Ramakrishna was illegally detained by the Flying Squad of Forest Department since 22.03.2008 and he was subjected to third degree methods in the hands of the respondents therein and apprehended danger to the life of the detenu. The said fax message was taken up as W.P. No. 6512 of 2008, and in the said writ petition, the Forest Range Officer, Flying Squad Division, Forest Department, Tirupati, Chittoor District filed counter stating that the detenu herein who was accused No.1 in DOR No.279/2007- 08 for the offences of A.P. Red Sanders and Sandalwood Transit Rules, was also called as Takku Subrahmanyam. The Collector and District Magistrate, further to show that the detenu is the very same person against whom the order of detention has been passed, relied on the photograph of the detenu taken when he was arrested in connection with Crime No.12 of 2005 on the file of Yerravaripalem Police Station, Chittoor district. The said photograph tallied with the detenu and the one available on the Aadhar Card filed by the petitioner. He thus contended that the order of detention passed and executed is against the same person and there is no mistake in the identity of the detenu, who is the husband of the petitioner.
The Collector and District Magistrate further submitted that he has passed the order of detention, as approved by the Government, upon satisfying for himself that his activities were causing dangerous alarm and insecurity, and thereby causing loss to the national wealth to the endangered and endemic species of red sander wood and thereby affecting public order, and therefore, it cannot be said that the order of detention, is not based on his subjective satisfaction. The Collector and District Magistrate further sought to justify the long delay of five and a half years in executing the order of detention, by referring to the correspondence that has taken place. He contended that to execute the detention order, the Divisional Forest Officer, Wildlife Division, Rajampet addressed letter to the Forest Range Officer, Sanipaya, vide Rc.No.1784/2006/S5, dated 19.02.2007, requesting to form a special party by giving necessary instructions to the said party to detain the detenu, namely Anantha Kishore @ Subrahmanyam and search for him. That a team was constituted in search of the said person, but in vain. That reminders were given on 07.04.2008, 15.06.2008, 04.10.2008, 25.01.2009, 30.03.2009, 19.06.2009, 04.09.2009 and 16.03.2010, and that the Forest Range Officer, had addressed letter dated 19.08.2010 informing that they made all out efforts to arrest the detenu, but his whereabouts are not known, and that the Forest Range Officer, had addressed letter dated 21.05.2010 to the Superintendent of Police, Chittoor District, seeking his assistance to execute the order. That the Government by Memo No.64196/L&O.II/A1/2006-6, dated 07.07.2011 requested him to take action against the detenu under Section 7 of the Act 1 of 1986 and while same is pending consideration, the detenu was arrested on 27.01.2012 in connection with the Cr.No.5 of 2012 of Kallur police station, and at that point of time, the order of detention was executed. Hence, he prayed that the order of detention, passed by him, as approved by the Government, be confirmed and the writ petition dismissed.
The petitioner filed reply affidavit. Apart from reiterating the very same contentions as taken by her in the writ petition, she further pleaded that her husband is an agriculturist having 5-00 acres of land in Vepanapalli village, Puthalapattu Mandal, Chittoor District and taking undue advantage of his poor financial condition and social status, the respondents by showing him as Anantha Kishore, have detained him illegally. She further pleaded that no material whatsoever is placed to substantiate that her husband is involved Durgam Subhramanyam is involved in O.R.No.12/2005, 13/2005, 15/2005 and O.R.No.4/2006-07, and in fact, no charge sheets are filed in those cases till date. She further pleaded that if according to the respondents, the detenu was absconding, no reason whatsoever is given as to why they have not taken steps under Section 7(1) of the Act. She denied the averment made by the Collector and District Magistrate in his counter that she had sent a fax message dated 24.03.2008 to this Court, stating that her husband is M.Kishore S/o M. Ramakrishna was illegally detained by the Flying Squad of the Forest Department since 22.02.2008. She further pleaded that the laws under which the detenu is being prosecuted are sufficient to deal with the offences and there was no necessity to pass order of detention under the Act. She thus prayed that the writ petition be allowed, the order of detention passed by the Collector and District Magistrate, as approved by the Government, be set aside and the detenu be released forthwith.
The learned counsel for the petitioner submitted that the petitioner and her husband are residing in a house No.19-8-18A, Dasari Matam, Tirupati, and that the her husband is not the person against whom the order of detention is passed. To substantiate this, he submitted that the name of the petitioner's husband is Durgam Subramanyam and his father's name is Gangi Setty and not Srinivasulu, and that her husband was neither called "Anantha Kishore" nor her father-in-law was called as "Srinivasulu" and that the petitioner's husband has no aliases, and to implement the order of detention, the respondents have created aliases against the petitioner's husband.
The learned counsel for the petitioner further submitted that the order of detention was passed in the year 2006 and it remained unimplemented till 2012, and under pressure of higher authorities for non-implementation of the said orders for long time, the petitioner's husband has been made a scapegoat. He further submitted that assuming that the detenu is the very same person against whom order of detention has been passed, the same cannot be implemented after long lapse of five and a half years, because it vitiates the subjective satisfaction of the detaining authority. In support of his arguments, the learned counsel for the petitioner relied on the judgments of the Apex Court in Rameshwar Shaw v. District Magistrate, Burdwan1, Dharmendra Suganchand Chelawat v. Union of India2, Munagala Yadamma v. State of A.P.3, Manju Ramesh Nahar v. Union of India4 and Rekha v. State of Tamil Nadu5, and of this Court in Shivarathri Sharath Kumar v. State of A.P.6.
The learned Assistant Government Pleader representing the learned Advocate General reiterating the counter averments submitted that the detenu is the very same person against whom order of detention has been passed. This same is evident from the photograph of the detenu that was taken at the time of his arrest earlier, which tallied with the present photograph and the one available on the Aadhar card. The order of detention could not be executed because, the detenu has several aliases, and he is in the habit of changing names habitually, and he was absconding. He was called by names Anantha Kishore @ Subrahmanyam @ Takku Subramanyam @ Potti Subramanyam @ Club Subramanyam S/o Srinivasulu @ Gangi Setty.
The learned Assistant Government Pleader further submitted that on coming to know that the detenu was arrested on 27.01.2012 in connection with Crime No. 5 of 2012 on the file of Station House Officer, Kallur police station, Chittoor District, and was produced before the Judicial First Class Magistrate, Pakala, Chittoor District on 27.01.2012, the Superintendent of Police, Chittoor District filed a petition under Section 4 of the Act 1 of 1986 seeking a direction to the Jail authorities to hand over custody of the detenu to the police deputed by the 2nd respondent to continue him in Central Prison, Cherlapalli, Ranga Reddy District, and the same was allowed on 09.02.2012 and accordingly, the jail authorities handed over the custody of the detenu to the police on 12.02.2012 and the detenu was shifted to Hyderabad on 13.02.2012.
The learned Assistant Government Pleader further submitted that since the detenu was absconding, they could not execute the order of detention for all these years, and therefore, his arrest and detention in the year 2012 after lapse of five and a half years from the date of passing of order of detention, cannot be faulted, and it cannot be said that the detention order is vitiated. In support of her arguments, she placed reliance on the judgment of the Apex Court in Harpreet Kaur v. State of Maharashtra7 and of this Court in W.P. No. 16193 of 2011, dated 18.08.2011.
Heard Sri P.Gangaiah Naidu, learned senior counsel for the writ petitioner and the learned Assistant Government Pleader on behalf of the Advocate General for respondents.
In the light of the arguments advanced, the questions that arise for consideration in this writ petition are:
(1) Whether the husband of the petitioner, who is detained in prison, is the very same person against whom the order of detention is passed? (2) Whether the delay in executing the order of detention has occasioned on account of the refractory or recalcitrant conduct of the detenu or on account of the inaction on the part of the respondents-authorities?
In re question No.1:
The detenu allegedly is involved in illicit cutting, stocking and transportation of Red Sanders, thereby causing willful destruction to forest wealth besides causing tremendous loss to national wealth and depletion of green cover in the forests. Four cases on the files of Judicial Magistrate of First Class, Piler and Rayachoti, are pending trial against the detenu for the offences punishable under Sections 141, 149, 379 read with Section 34 and 120-B I.P.C., Section 27 of the A.P. Forest Act, 1967 and Rule 3 of the A.P. Sandal Wood and Red Sandal Wood Transit Rules, 1967. As the laws under which he was charged failed to curb his activities, the Collector and District Magistrate, to prevent the detenu from commission of similar such crimes, passed the order of detention against the detenu on 11.08.2006, which was approved by the Government by G.O. Rt. No. 434, dated 21.08.2006.
Though the petitioner claims that the name of her husband, detenu, is Durgam Subhramanyam S/o. Gangi Shetty, R/o. 19-8-18A, Dasari Matam, Tirupati, and not Anantha Kishore @ Subhramanyam S/o. Srinivasulu, R/o.19-18-18, Nehru Nagar, Tirupati, Chittoor district, as is mentioned in the order of detention dated 11.08.2006, passed by the Collector and District Magistrate, as approved by the Government in G.O. Rt. No. 434, dated 21.08.2006, and that there is mistaken identity of the detenu, and therefore, the order of detention cannot be executed against him, the fact remains, it is the case of the Collector and District Magistrate, that there is no mistaken identity of the detenu, and it is his specific case, as is evident from the counter filed by him that the husband of the petitioner, namely Durgam Subhramanyam S/o. Gangi Shetty, is the very same person, namely Anantha Kishore @ Subhramanyam S/o. Srinivasulu, against whom he had passed the order of detention, which was approved by the Government. According to him, the detenu namely Anantha Kishore, is also called by alias names, such as Subrahamanyam, Takku Subrahmanyam, Potti Subhramanyam, Club Subhramanyam S/o. Srinivasulu @ Gangi Shetty, and that this is evident from the remand report, filed by the police on the file of Judicial First Class Magistrate in connection with Crime No. 5 of 2012 of Kallur Police Station, where the detenu is accused No.28. Further, according to him, the detenu when he was arrested in connection with Crime No. 12 of 2005 on the file of Yerravaripalem Police Station, Chittoor, on 04.05.2005, has confessed that his name is Anantha Kishore. Thus according to the Collector and District Magistrate, the detenu is in the habit of changing names to suit his convenience and hoodwink the police authorities from arrest him. The Collector and District Magistrate, further to substantiate his stand that the detenu is no other than Anantha Kishore @ Subhramanyam, against whom order of detention is passed by him, relied on the Fax Message dated 24.03.2008, sent by the wife of the detenu, namely M. Nirmala, to the Hon'ble Chief Justice stating that her husband namely M. Kishore S/o. M. Ramakrishna, was illegally detained by the Flying Squad of Forest Department Office since 22.03.2008 and that he is being subjected to third degree methods at the hands of the Forest Range Officer, Flying Squad Division, Forest Department, Tirupati, Chittoor, and she is apprehending danger to his life. The said Fax Message, was taken up as writ petition being W.P. No. 8512 of 2008. Pursuant to the notice ordered by the Court in the said writ petition, one P. Ramakrishna, who was working as Forest Range Officer, Flying Squad Division, Forest Department, Tirupati, Chittoor District, filed detailed counter, inter alia stating in paras 4 and 5 as follows:
It is to be submitted that the alleged detenu is Accused No. 1 in DOR No. 279/2007-08 for the offence under Rule 3 of the A.P. Red Sanders and Sandal Wood Transit Rules, 1969 and under Section 29(4A)(1) of the A.P. Forest Act, 1967 of Forest Range Officer, Flying Squad Division, Tirupati. The above crime was registered on 23.03.2005 at 11.30 p.m. In connection with the above crime, the alleged detenu was arrested on 24.03.2005 at 5.pp p.m. Subsequently, on
25.03.2008, the alleged detenu was produced before the Hon'ble III Addl. District Munsif Magistrate, Tirupati for his remand. The learned Magistrate, on such production of the alleged detenu before the Court, was pleased to remand him to judicial custody. By virtue of the said remand order of the learned Magistrate, dated 25.03.2008, initially the alleged detenu was lodged in Sub- Jail, Tirupati. But, however, it appears that the alleged detenu was enlarged on bail on 27.03.2008 by the learned Magistrate. In the investigation, it came to light that the alleged detenu was also called as "Takku Subrahmanyam". Therefore, the petitioner now cannot complaint that the alleged detenu was illegally detained by the 2nd respondent since 22.03.2008. When the crime itself was registered on 23.03.2008 at 11.30 p.m. and the alleged detenu was arrested on 24.03.2008, the question of illegal detention of the alleged detenu on 22.03.2008 does not arise at all. Therefore, the allegations are false and baseless, hence denied. The copies of the Preliminary Offence Report and Remand Report are filed herewith as material papers for kind perusal of the Hon'ble Court. I crave leave of the Hon'ble Court to read the material papers as part and parcel of this affidavit.
It is to be submitted that the alleged detenu was never in any manner illegally detained by the 2nd respondent. But, however, by following due procedure, the 2nd respondent effected the arrest of the alleged detenu on 24.03.2008 and subsequently on 25.03.2008 he was produced before the Court. During the course of investigation, it came to light that the alleged detenu was also involved in as many as three (3) forest offences, vide DOR Nos. 102/2007-08 of Flying Squad Division, Tirupati, DOR No. 10/2005-06 and DOR No. 2/2006-07 of Wild Life Management Division, Tirupati. Apart from those offences, the alleged detenu was also involved in other offences relating to various Forest Divisions. In all the above offences, the alleged detenu is facing trial before the concerned Courts. The alleged detenu with a mala fide intention sent the present Fax Message through his wife to the Hon'ble Court with a view to draw adverse inference against the 2nd respondent. The Fax Message dated 24.03.2008 is a misconceived one and the same is liable to be rejected.
From the contents of the counter filed by the Forest Range Officer, Flying Squad Division, it is clear that the alleged detenu who is involved in forest offences, was also being called by name "Takku Subhramanyam". The Collector and District Magistrate, in the counter filed by him, had admitted that during the investigation of the above-said crime, it came to light that the detenu was also called by name "Takku Subhramanyam".
From the stand taken by the Collector and the District Magistrate, in the counter filed by him, as noted above, it is clear that the detenu is in the habit of changing names. The fact that the detenu is the very same person against whom the order of detention is passed is also evident from the photographs. It is the case of the Collector and District Magistrate that when the detenu was arrested in connection with Crime No. 12 of 2005 on the file of Yerravaripalem Police Station, Chittoor, his photograph was taken, and that the same tallied with present photograph of the detenu and that available on the Aadhar Card, which the petitioner filed as material papers. In view of the above, the contention of the petitioner that there is mistaken identity of the detenu, and that her husband, namely Durgam Subhramanyam, who is detained in prison, in execution of the order of detention, passed the Collector and District Magistrate, as approved by the Government, is not the person against whom the order of detention has been passed cannot be accepted. Hence, we hold that the husband of the petitioner, namely Durgam Subhramanyam S/o. Gangi Shetty, who is detained in prison, in execution of the order of detention, is the very same person against whom the impugned order of detention, is passed by the Collector and District Magistrate, as approved by the Government. In re question No.2:
Admittedly, the order of detention dated 11.08.2006, passed by the Collector and District Magistrate, as approved by the Government in G.O. Ms. No. 4341, dated 21.08.2006, was not executed for nearly five and a half years. The Superintendent of Police, Chittoor, on coming to know that the detenu was arrested on 27.01.2012 in connection with Crime No. 5 of 2012 on the file of Kallur Police Station, Chittoor District, and that on his production before the Judicial Magistrate of First Cass, Pakala, he was remanded to judicial custody and the bail application filed by him was rejected, filed a petition before the Judicial Magistrate of First Class, in Crl.M.P. No. 140 of 2012, seeking to handover the custody of the detenu and continue him in prison in execution of the order of detention. The said application was allowed on 12.02.2012, and the detenu is lodged in Central Prison, Cherlapally, since 13.02.2012.
The learned counsel for the petitioner submits that there is unexplained delay of nearly five and a half years in the execution of the order of detention, passed by the Collector and District Magistrate, as approved by the Government, and therefore, the order of detention, would not only have the effect of vitiating the order but also the subjective satisfaction of the authority that has passed that order. However, the learned Assistant Government Pleader representing the learned Advocate General contended that the delay of nearly five and a half years in execution of the order of detention, neither vitiated the order of detention nor the subjective satisfaction of the authority that has passed it, because it could not be executed as the detenu was absconding.
The law is well settled that the order of detention has to be executed forthwith, else it would have the effect of vitiating not only the order of detention but also the subjective satisfaction of the authority which has passed that order. If there is delay in execution of the order of detention, then the delay has to be satisfactorily explained, as otherwise, the order of detention would be vitiated. However, if the delay in the execution of the order of detention has been caused or occasioned due to the recalcitrant or refractory conduct on the part of the detenu in evading arrest, then the order of detention would not be vitiated.
Therefore, before proceeding to consider whether the delay in execution of the order of detention has occasioned due to the refractory or recalcitrant conduct or due to the inaction of the respondents-authorities, it would be appropriate to refer to some of the decisions of the Apex Court governing the subject.
The Apex Court in T.A. Abdul Rahman v. State of Kerala & Ors.8, having considered the effect of delay in execution of the order of detention, held as follows:
Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.
(emphasis supplied) From the above decision of the Apex Court, it is clear that if there is unsatisfactory and unexplained delay in execution of the order of detention, the same would throw doubt on the genuineness of the subjective satisfaction of the detaining authority.
In M. Ahamedkutty v. Union of India9, the Apex Court having considered the submission with respect to delay of 38 days in execution of the order of detention, and by referring to the facts of the case in Bhawarlal Ganeshmalji v. State of Tamil Nadu10, held:
Where after passing of the detention order, the passage of time is caused by the detenu himself by absconding, the satisfaction of the detaining authority cannot be doubted and the detention cannot be held to be bad on ground of delay in execution of the order. In Bhawarlal Ganeshmalji v. State of Tamil Nadu where the appellant had been evading arrest and surrendering after three years of the making of order of detention under the COFEPOSA Act, the order was held to be still effective as the detenu himself was to be blamed for the delay. This Court observed that there must be a live and proximate link between the 10 grounds of detention alleged by the detaining authority and the avowed purpose of detention, namely, the prevention of smuggling activities. In appropriate cases, it could be assumed that the link was snapped if there was a long and unexplained delay between the date of order of detention and the arrest of the detenu and in such a case the order of detention could be struck down unless the grounds indicated a fresh application of mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but also is found to be the result of the recalcitrant and refractory conduct of the detenu in evading arrest, there is warrant to consider the link not snapped but strengthened. In that case, the order of detention was made on 19.12.1974. The detenu was found to be absconding. Action was taken pursuant to S.7 of the COFEPOSA Act and he was proclaimed as a person absconding under S.82 of the Criminal Procedure Code. The proclamation was published in several leading English and local daily newspapers. Several other steps were taken despite which he could not be arrested until he surrendered himself on 1.02.1978.
(emphasis supplied) The Apex Court further having referred to the facts appearing in the case and the steps taken by the Detaining Authority to execute the order of detention, justified the delay of 38 days in the execution of the detention order, holding:
We have already noted how in the instant case the Home Secretary sent detailed instructions to the Superintendent of Police, Mallapuram on June 27, 1988 and sent the teleprinter message on July 19, 1988 and the Superintendent of Police wrote back on July 27, 1988 stating that the detenu was absconding and his whereabouts were not known and all possible efforts were being made to execute the order and on August 2, 1988 the Superintendent of Police reported that the order was served on August 2, 1988 at his residence and that he was sent to the Central Prison, Trivandrum. Though it could not be denied that the detenu was reporting before the Superintendent (Intelligence) Air Customs, Trivandrum on every Wednesday, the Superintendent of Police, Mallapuram apparently was not aware of it. Under the above facts and circumstances, we are of the view that there was no inordinate and unexplained delay in the period of 38 days between the detention order and its execution so as to snap the nexus between the two or to render the grounds stale or to indicate that the detaining authority was not satisfied as to the genuine need for detention of the detenu. This submission is accordingly rejected.
We may pause here to point out that the circumstances in the present case seem to indicate a certain degree of lack of co-ordination between the detaining authorities and those entrusted with the execution of the detention order. This is clearly seen from two circumstances in the present case. Though the detention order was sent for service on 27.06.1988, a reminder was issued only on 19.07.1988. Apparently, the Superintendent of Police was finding it difficult to trace the detenu but he did not report this immediately and mentioned this to the detaining authority only on 27.07.1988. He was obviously not aware that, under the terms of the bail order the detenu had to report every week at the customs office. If he had reported his difficulty earlier or if the detaining authorities had apprised him of the terms of the bail order, it would have been possible to have the detention order served earlier. These communication gaps should, we think, be avoided since it is of the very essence of a detention order to have it served at the earliest. While we have accepted the explanation tendered in the present case for this delay, we would like the State to ensure that such delays do not occur as, apart from giving the detenu a ground for attacking the detention order, such delay really tends to frustrate and defeat the very purpose of preventive detention.
From the above decision of the Apex Court, Bhawarlal Ganeshmalji v. State of Tamil Nadu and M. Ahamedkutty v. Union of India it is clear that if there is unexplained delay in execution of the order of detention, then would be struck down, but if the delay is adequately and satisfactorily explained and is caused due to the recalcitrant or refractory conduct of the detenu, then the order of detention would be upheld.
In P.M. Hari Kumar v. Union of India & Ors.11 and SMF Sultan Abdul Kader v. Jt. Secy. to Govt. of India & Ors.12, the Apex Court held that the unexplained delay in the execution of the order of detention was held fatal.
In Manju Ramesh Nahar v. Union of India & Ors., the order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, was passed against the detenu by the detaining authority on 03.02.1997. It was executed on 23.04.1998. Questioning the order of detention, the wife of the detenu moved the Bombay High Court, contending that the delay in execution of the order of detention without there being any explanation for the delay, vitiates the order of detention, but she was unsuccessful. Aggrieved thereby, she filed appeal before the Apex Court. The Apex Court having considering the object of preventive detention, and what would be the effect of non-execution of the order of detention immediately, held as follows:
The Act provides for preventive detention. Section 3 gives power to the Central Govt. or the State Govt. or any officer of the Central or the State Govt. of the specified status, to pass, with respect to any person with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling activities specified therein or harbouring persons engaged in smuggling activities, an order directing that such person be detained. The action under this Section can be taken only on 'satisfaction'. The further requirement is that the order should have been passed for preventing that person from carrying on the prejudicial activities. This implies that as soon as the Govt. or its officer feels satisfied that an order under this Section is necessary, it has to be passed and implemented forthwith so that the person against whom the order has been passed, may be stopped immediately or at the earliest. This object can be achieved if the order is immediately executed. If, however, the authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the 'satisfaction' of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent.
(emphasis supplied) From the above decision of the Apex Court, it is clear that the order of detention has to be executed immediately after its passing so as to prevent the person from carrying on the prejudicial activities, as otherwise, it would reflect upon the satisfaction of the detaining authority that there was no immediate necessity to detain the detenu in prison.
The Apex Court further having considered whether the Government explained the delay in execution of the order of detention held as follows:
Except making a vague allegation that the appellant was absconding and was apprehended on 23.04.1998 when the order was executed against him, the respondents have not given details of any steps that might have been taken in the meantime to execute the order against Ramesh Kumar. They could have taken appropriate steps under Section 7 of the Act or even under the provisions of Criminal Procedure Code for securing the arrest of the husband of the appellant. The detention order was passed on 3.2.1997 but it was executed on 23.4.1998. Obviously, the effect of non-execution of the order was that the authorities themselves gave liberty to the detenu to carry on his earlier activities given rise, in that process, to a question whether the activities complained of were really prejudicial activities within the meaning of Section 3 of the Act. As pointed out above, the execution of the order of detention long after it was passed would have the effect of vitiating the order as also the 'satisfaction' of the authorities who passed that order. The detention order passed under Section 3 is quashed.
(emphasis supplied) From the above decision of the Apex Court, it becomes clear that the authorities who are responsible for execution of the order of detention cannot make mere allegation that the detenu was absconding and therefore, they could not execute it. They have to take steps under Section 7 of the Act to declare the detenu as proclaimed offender and attach his properties for securing his arrest and also explain the delay in execution by giving the details of the steps taken by them to execute the order of detention.
In Hare Ram Pandey v. State of Bihar13, the Apex Court considering the dilatory conduct of the detenu justified the delay in execution of the order of detention, holding:
The case at hand shows how the appellant has tried his best in taking various dilatory tactics to deflect the course of justice. There is no doubt that personal liberty is sacrosanct and has to be protected, but a person who tries to take advantage of his own wrongs has to be sternly dealt with. It is relevant to note that the appellant had filed Cr.W.J.C. No. 702 of 1995 before the Patna High Court, which was dismissed on 16.02.1996. He filed SLP (Crl.) No. 941 of 1996 before this Court, which was withdrawn on 15.04.1996. The second writ petition Crl.W.J.C. No. 369 of 1996 was filed and the same was dismissed on 26.06.1996. The appellant was declared as absconder in terms of Section 16 of the Act by order dated 12.01.1997. Thereafter writ petition to which this case relates was filed on 21.02.1997 which came to be dismissed by the impugned judgment dated 04.03.1997.
In the above case, the Apex Court justified the delay in execution of the order of detention because the delay had occasioned due to the dilatory tactics adopted by the detenu against his arrest.
Similarly, in Vinod K. Chawla v. Union of India14, the Apex Court, having regard the dilatory tactics adopted by the detenu in evading arrest, justified the delay in execution of the order of detention holding:
... Where a person himself evades service of detention order, it is not open to him to contend that in view of the long period which has elapsed between the offending activities and the actual arrest and detention, the vital link had snapped and there was no ground for actually detaining him. An otherwise valid detention order cannot be rendered invalid on account of the own act of the detenu of evading arrest and making himself scarce...
(emphasis supplied) From the above decision of the Apex Court, it is clear that the detenu by evading service of order of detention, cannot after lapse of time, contend that the order of detention is vitiated.
We shall no proceed to consider the case on hand in the light of the settled law. In the case on hand, the order of detention was passed by the Collector and District Magistrate on 11.08.2006 and it was approved by the Government vide G.O. Rt. No. 4341, dated 21.08.2006. Even though the forest officials, are aware about the involvement of the detenu in several offences and that he was in the habit of changing names according to his convenience, and he was also being called by the name "Takku Subhramanyam", as is evident from the stand taken by the Forest Range Officer, Flying Squad Division, Tirupati, in the counter filed by him in W.P. No. 8512 of 2008, wherein he stated that the detenu was involved in three forest crimes vide DOR Nos. 102/2007-08 of Flying Squad Division, Tirupati, DOR No. 10/2005-06 and DOR No. 2/2006-07 of Wild Life Management Division, Tirupati, and that the detenu was arrested on 24.03.2008 and subsequently on 25.03.2008, he was produced before the Magistrate concerned, who remanded him to judicial custody, it is unfortunate to note that the forest officials have not taken any steps to execute the order of detention, passed by the Collector and District Magistrate, as approved by the Government, much less made any efforts to verify the records available with them or from the records of the Courts, where criminal cases are pending, whether the person arrested in the said case is the very same person against whom order of detention is passed. It is only when the detenu was arrested on 12.02.2012 in connection with Crime No. 5 of 2012 on the file of Kallur Police Station and remanded to judicial custody by the Magistrate concerned, did the Superintendent of Police, Chittoor, take steps to execute the order of detention. In view of this, the contention of the Collector and District Magistrate that as the detenu was absconding all these years, they could not execute the order of detention, cannot be accepted. Even assuming the detenu was absconding, what steps the Collector and District Magistrate, has taken to secure the arrest and detention of the detenu, may to be noticed. Under Section 7 of the Act, the Collector is empowered to take coercive steps to secure the arrest of the person against whom order of detention is passed.
Section 7 of the A.P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, which empowers the Collector and District Magistrate, to deal with absconding persons, reads as follows:
Power in relation to absconding persons. - (1) If the Government have, or an officer mentioned in sub-section (2) of Section 3, has reason to believe that a person in respect of whom, a detention order has been made has absconded or is concealing himself so that the order cannot be executed than the provisions of Section 82 to 86 (both inclusive) of the Code of Criminal Procedure, 1973 shall apply in respect of such person and his property, subject to the modifications mentioned in this sub-section and irrespective of the place where such person ordinarily resides, the detention order made against him shall be deemed to be a warrant issued by a competent Court. Where the detention order is made by the Government, an Officer not below the rank of District Magistrate or Commissioner of Police authorized by the Government in this behalf or whether the detention order is made by an officer mentioned in sub-section (2) of Section 3, such officer, as the case may be, shall irrespective of his ordinary jurisdiction be deemed to be empowered to exercise all the powers of the competent Court under Sections 82, 83, 84 and 85 of the said Code for issuing a proclamation for such person and for attachment and sale of his property situated in any part of the State and for taking any other action under the said sections. An appeal from any order made by any such officer rejecting an application for restoration of attached property shall lie to the Court of Session, having jurisdiction in the place where the said person ordinarily resides, as provided in Section 86 of the said Code.
(2) (a) Notwithstanding anything contained in sub-section (1), if the Government have, or an Officer mentioned in sub-section (2) of a detention order has been made has absconded or is concealing himself so that the order cannot be executed, the Government or the Officer, as the case may be, may by order notified in the Andhra Pradesh Gazette, direct the said person to appear before such officer, at such place and within such period as may be specified in the order.
(b) If such person fails to comply with such order, unless he proves that it was not possible for him to comply therewith, and that he had within the period specified in the order, informed the officer mentioned in the order of the reasons which rendered compliance therewith impossible and of his whereabouts, or proves that it was not possible for him to so inform the officer mentioned in the order, he shall, on conviction, be punished with imprisonment for a term which may extend to one year, or with fine, or with both.
(c) Notwithstanding anything contained in the said Code, every offence under clause (b) shall be cognizable.
Though Section 7 of the Act, states that if the person against whom detention order is passed is absconding, the order of detention shall be deemed to be a warrant, and the Collector and District Magistrate, is entitled to exercise the powers conferred under Sections 82 to 86 of the Code of Criminal Procedure, and issue proclamation that the detenu is a proclaimed offender and take steps for attachment and sale of his property, the fact remains, the Collector and District Magistrate, in the counter filed by him, except stating that the detenu is absconding, and therefore, they could not execute the order of detention, has not taken any steps as are required to be taken by him under Section 7 of the Act, to secure the arrest of the detenu, by declaring him as a proclaimed offender or attaching his properties.
The Collector and District Magistrate, without taking any such steps, such as declaring the detenu as proclaimed offender or attaching his properties for securing his arrest, as are required to be taken by him under Section 7 of the Act, in the counter filed by him, sought to justify the delay in execution of the order of detention stating, as follows:
... I humbly submit that to execute the said orders, there was a letter addressed by the Divisional Forest Officer, Wild Life Division, Rajampet, to the Forest Range Officer, Sanipaya vide Rc. No.1784/2006/S5, dated 19.02.2007 to form a special party by giving necessary instructions to the said party to detain the detenu namely Anantha Kishore @ Subhramanyam and search for him. Accordingly, a team was constituted in search of the said person, but in vain. The reminders were given on 07.04.2008, 15.06.2008, 04.10.2008, 25.01.2009, 30.03.2009, 19.06.2009, 04.09.2009 and 16.03.2010. I submit that special teams were constituted to execute the order of detention and as there was no order of compliance, the said Forest Officer addressed a letter vide OR No.13/2005-06, dated 19.08.2010 informing that they made all the efforts to trace the detenu, but his whereabouts are not known. Hence, the detenu could not be traced. I submit that in this regard, a letter is also addressed to the Superintendent of Police, Chittoor district vide letter dated 21.05.2010 seeking his assistance to execute the order. Accordingly, teams were also constituted by the police officials in search of the said person, but in vain. The Divisional Forest Officer, Wildlife Division, Rajampet, also addressed letters to all the Divisional Officers in Chittoor district vide Rc. No.1784/2006/S5, dated 16.08.2010.
From the above stand taken by the Collector and District Magistrate in the counter, it is clear that except constituting search teams and sending reminders, he has not taken any steps whatsoever, much less under Section 7 of the Act, to declare the detenu as proclaimed offender or to attach his properties, so as to secure his arrest. The Collector and District Magistrate, in the counter, sought to explain the steps that were required to be taken by him under Section 7 of the Act, which reads:
I also submit that the Government vide Memo No. 64196/ L&O.II/ A1 / 2006- 6, dated 07.07.2011 requested the Detaining Authority to take action against the detenu under Section 7 of Act 1/1986 and while the same was pending consideration, the detenu was arrested in connection with Crime No.5 of 2012 on Kallur P.S., which was registered on 23.01.2012....
Though the Government vide memo dated 07.07.2011 requested the Collector and District Magistrate to take action against the detenu, it is unfortunate to note that he has not taken steps, even though more than six months passed from the date of issuance of the said Memo, and in the meantime, the detenu was arrested in Crime No. 5 of 2012 on the file of Kallur Police Station. From the stand taken by the Collector and District Magistrate in the counter, as noticed above, it is clear that though the forest authorities have knowledge about the passing of the order of detention against the detenu on 11.08.2008, as approved by the Government vide G.O. Rt. No. 4341, dated 21.08.2006, the fact remains, they have not taken any steps to execute the order of detention, even though he was arrested in connection with crime in DOR No.279/2007-08 by the Forest Range Officer, Flying Squad Division, Tirupati, on 25.03.3008 and produced before the III Additional District Munsif Magistrate, Tiruupati, who remanded him to judicial custody, and even though the Forest Range Officer, Flying Squad Division, Tirupati, has knowledge that the detenu was involved in other offences relating to various forest divisions. In fact, they have not taken any steps under Section 7 of the Act, to declare the detenu as proclaimed offender or attach his properties to secure his arrest.
The Collector and District Magistrate having failed to explain the delay in executing the order of detention adequately, much less satisfactorily, reliance placed by the learned Assistant Government Pleader on the judgment of this Court in W.P. No. 16193 of 2011, dated 18.08.2011, in support of her contention that the order of detention can be executed any time, will not assist her in any manner. In the said case the delay of one and a half year in executing the order of detention was satisfactorily explained and the delay in execution of the order of detention had taken place because of the recalcitrant and refractory conduct of the detenu in evading the arrest, but that is not the case on hand. Here, the respondents in spite of getting opportunity to arrest the detenu, did not arrest him, and in fact, they have not taken any steps as are provided under Section 7 of the Act, to secure the arrest of the detenu by proclaiming him as an offender or attaching his properties.
In view of the above, we hold that the delay in executing the order of detention has occasioned not on account of the refractory or recalcitrant conduct of the detenu, but because of the inaction of the forest officials in executing the order of detention.
Having regard to the object of the Act, which is to execute the order of detention forthwith so as to prevent the detenu from perpetrating similar such offences, and considering the fact that the long delay of five and a half years in execution of the order of detention has occasioned on account of the callous attitude of the respondents and not because the recalcitrant and refractory conduct of the detenu in evading arrest, and the delay having not been explained adequately, we are of the considered opinion that the order of detention not only vitiated, but also reflected upon the subjective satisfaction of the detaining authority, giving rise to a legitimate inference that the detaining authority was not really and genuinely satisfied about the necessity of detaining the detenu, preventing him from acting in a prejudicial manner. Hence, the order of detention dated 11.08.2006, approved by the Government in G.O. Rt. No. 4341, dated 21.08.2006, cannot be sustained, and is liable to be set aside.
Even though the learned counsel for the petitioner submitted that the ordinary laws are sufficient to deal with the alleged offences and invoking the provisions of the Act is illegal and that the Collector and District Magistrate, has committed an error in passing the order of detention dated 11.08.2006 until further orders from the Government, which is contrary to Section 3(1) of the Act, but having regard to the findings recorded by us, as noted above, and have held that the order of detention is vitiated and cannot be sustained, we are not inclined to go into those issues and record any findings thereon. In the result, the order of detention dated 11.08.2006, passed by the Collector and District Magistrate and approved by the Government in R.O. Rt. No. 4341, dated 21.08.2006, is set aside. The detenu is directed to be set at liberty forthwith, if he is not required in any other case. No costs. Before we part with the judgment, we record our dis-pleasure about the manner in which the forest officials in spite of having knowledge about the whereabouts of the detenu have failed to execute the order of detention against the detenu for more than five and a half years. Therefore, we are of the considered opinion that the matter has to be enquired into, and action be taken against the forest officers concerned, who failed to discharge their duties in executing the order of detention. Hence, we direct the Chief Secretary to the Government, to depute a responsible officer, to conduct an enquiry into the matter and fix the responsibility on the officers concerned who failed to execute the order of detention for almost five and a half years from the date of its passing, resulting in its frustration, and take necessary action.
Accordingly, the writ petition is allowed. No costs.
________________ N.V.RAMANA, J.
____________________ P. DURGA PRASAD, J.
Dated: 28th March, 2012