Andhra HC (Pre-Telangana)
Smt. Pilli Yeteswari And Anr. vs The Govt. Of A.P. Rep. By Its Chief ... on 19 August, 1996
Equivalent citations: 1996(4)ALT485, 1997(1)ALT(CRI)184
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
ORDER Lingaraja Rath, J.
1. These two cases challenge the orders of preventive detention passed against the respective petitioners by the Commissioner of Police and Addl. District Magistrate, Visakhapatnam. Orders of detention were passed on 6-6-1996 under the Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act No. 1 of 1986) (hereinafter referred to as "the Act"); The representations of the two petitioners were rejected by the Government on 17-6-1996 while approving the detention and thereafter their cases were placed before the Advisory Board under the Acton 19-7-1996. The orders of detentions were confirmed by the Board for one year. Since both the detentions arise out of almost identical set of facts, both the cases are disposed of by this common order.
2. Both the cases have been filed by the respective wives of the detenus. In W.P.No. 12572 of 1996, the detenu is one Pilli Kanaka Reddy. The respondent No. 2 observed while passing the order of detention regarding him:
''And whereas having regard to the resources and influence of Pilli Kanaka Reddy who has been organising and executing dangerous activities in violation of the Laws of the land."
He observed, so far as the detenu in W.P.No. 12573 of 1996, V. Satyanarayana is concerned:
"And whereas having regard to the plenary resources and the tremendous clout of Sri Vithanaia Satyanarayana, the large scale manner in which the dangerous activities are being clandestined schemely organised and executed in gross violation of the Laws of the land by the said Sri Vithanala Satyanarayana in Visakhapatnam Metropolitan Area Police District,"
Both the orders were passed to prevent the detenus from acting in any manner prejudicial to the maintenance of public order in Visakhapatnam Metropolitan Area Police District. Both the detenus were supplied with the grounds of detention, which so far as Pilli Kanaka Reddy is concerned, were as follows:
(1) That you either by yourself or through thieves organised by you into bands of professionals are in the habit of committing or abetting the commission of thefts of cables, wires and steel materials in the limits of Visakhapatnam Metropolitan Area Police District, and (2) That you were arrested on 26-5-1996 in Cr. No. 15/96 Under Section 380 IPC of Harbour Crime P.S. in which sophisticated steel material worth Rs. 8-6 lakhs produced by Bhilai Steel Plant and slated for export to the U.S.A. were stolen from the stockyard of SAIL, Port area. The entire stolen property was recovered on your confession. The amount of Rs. 233 lakhs paid by you to the Central Industrial Security Force personnel (six) to facilitate the offence was also recovered on your confession from the concerned six CISF traitors."
The grounds of detention so far as the other detenu is concerned were as follows:
"(1) That you, Sri Vithanala Satyanarayana, either by yourself or through criminals organised by you into bands of professional thieves are in the habit of committing or abetting the commission of looting of public and private property comprising of machinery, steel materials and the like in the limits of Visakhapatnam Metropolitan Area and you (2) That on 26-5-96, you were arrested in Cr. No. 15/96 Under Section 380 IPC of Harbour Crime P.S. Visakhapatnam wherein steel sophisticated material worth Rs. 8.60 lakhs produced by Bhilai Steel Plant and slated for export to U.S. A. by Steel Authority of India was stolen from the Port Area. The entire property was recovered on your confession. The pay- off of Rs. 2.33 lakhs paid by you to win over CISF personnel guarding the property was recovered from the traitors on your confession."
3. Mr. C. Padmanabha Reddy, learned Senior Advocate appearing for the two petitioners submits the orders of detention being not for maintenance of any public order and relatable, if at all, only to a situation of law and order and further submits the orders of detention to have been the product of absolute non-application of mind. It is his submission, so far as the first detenu is concerned, that para one of the grounds of detention refers to the citation of different case numbers as extracted at the bottom of the grounds, but all those cases except Crime No. 15 /96 under Section 380 I.P.C. of Harbour Crime Police Station ended in acquittal. Since cases in which the detenu had been acquitted form substantial part of the consideration of the detaining authority to form the opinion regarding his detention, the order is vitiated. If ground No. 1 of detention is excluded as not forming a valid ground for detention, the other incident referred to in item 2 of the grounds is only a single instance of theft which would not justify the detention. Similarly, so far as the detenu - V. Satyanarayana is concerned, it is his submission that the ground No. l refers to the different crimes, the table of which has been given at the bottom of the grounds, but out of those cases the prosecution in casesreferred to from Sl. No. 8 to 34 of the table, has not been concluded and they are still pending, and that further all those cases are registered under Section 3 of the Railway Property (Unlawful Possession) Act, S1. Nos. 1,2,5,6 and 7 are offences allegedly under Sections 457 and 380 IPC or under Sections 379 and 380 IPC and thus are not offences under chapters 16,17 or 22 of the IPC. The case referred to under S1. No. 3 of the table was one under Section 65 of the A.P.C.P. Act in which the detenu was acquitted. Similarly, the detenu was also acquitted from the crime referred to at S1 . No. 4 which was an offence under Section 380 IPC. He had been also acquitted from the offence registered as Crime No. 465/91 referred to at SI. No. 5 of the table under Sections 41 and 102 Cr.P.C.
4. The submissions so made by Mr. Reddy is to establish that as the case made out in the counter-affidavit filed by respondent No. 2 is of the detenus being goondas under the definition of the Act, yet the grounds of the orders of the detentions do not make them out as such under the Act.
5. Counter-affidavits have been filed by respondent No. 2 in both the cases. It Is stated that in both the cases the detentions were ordered on the report submitted by the Asst. Commissioner of Police, Visakhapatnam dry. So far as the first detenu is concerned, the counter-affidavitstates, the report against him to have been that he was involved in nine criminal cases, the details of which are given in the grounds of detention and that due to his influence the detenu had managed to escape conviction before the Criminal Courts. It is further the submission of respondent No. 2 that in eight crimes the detenu had been acquitted due to non-co-operation of witnesses who did not depose freely before the Criminal Court due to fear of detenu. So far as ground No. 2 is concerned, the facts disclosed are that a complaint had been given by the Branch Transport and Shipping Office, Steel Authority of India Limited to the Harbour Police Station stating that mild steel plates numbering 49, weighing 72.618 M.Ts., worth Rs. 8,60,000/- were stolen from the stockyard of SAIL situated in Visakhapatnam Port Trust Area between 25-4-1996 and 8-5-19%. During the course of investigation it came to light that both the detenus and five of their associates in collusion with six CISF personnel who were on duty on 2-5-1996 had committed the theft and had sold the goods to one Akkala Durja Rao, Vijayawada who is accused No. 13 and has also been arrested. It is also stated that during the course of investigation it had come to light that both the detenus had paid Rs. 2.5 lakhs to the CISF personnel to facilitate the commission of offence. The detenu in W.P.No. 12572/96 is stated to be a very resourceful person and used to influence witnesses and terrorise them and create fear in their minds to depose against him. He is having lot of manoeuvring power to win over people which is evident from the fact that he managed to get himself admitted to King George Hospital on 4-6-1996 as in-patient for undergoing treatment and got himself allotted to special ward and enjoyed 'V class facilities. The detenu is a habitual offender and is in the habit of commit ting or abetting the commission of theft of cables, wires and steel materials in the limits of Visakhapatnam Metropolitan area.
6. So far as the second detenu is concerned, the counter-affidavit states him to have been involved in as many as 34 cases as stated in the grounds of detention and that he had managed to escape conviction due to his influence and that ordinary penal laws are not sufficient to prevent him from continuing his illegal activities. The entire record relating to all the cases against him was placed before respondent No. 2. it is stated in the counter-affidavit that the detenu was acquitted due to non-co-operation of witnesses who did not depose freely before the Criminal Courts due to fear of him. The other statements in the counter-affidavit are similar to the statements in counter-affidavit in W.P. No. l2572 of l996.
7. It is a conceded fact before us that the detention under the Act, of the detenus, has been made on reaching the conclusion that they are goondas under the Act. Goonda has been defined in the Act in Section 2(g) as follows:
"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."
It hence is apparent that to satisfy the description in the Act, a person must be one who habitually commits or attempts to commit or abets the commission of offences, either by himself or as a member or as a leader of a gang, offences punishable under Chapters XVI, XVII or XXII of IPC. Unless materials are on record to show that the detenus are persons of such habits, the description would not apply to them and apparently the detention would foil Chapters of the Indian Penal Code referred to in the definition are respectively offences affecting human body, offences against property and offences of criminal intimidation, insult and annoyance. To be "habitually guilty" of such offences, the facts must be such as to show that the person concerned is committing the offences in a manner which would indicate his habit forming conduct. It would invariably mean commission of the offence more than once, in number, to justify the conclusion to be drawn of the resort to the crime to have become almost a compulsory habit with him. A similar matter came up for consideration before the Apex Court in Mustakmiya Jabbarmiya Shaikh v. MM. Mehta, 1995 SCC (Cri.) 454 = 1995 (2) ALT (Crl.) 3 (D.N.) in connection with Gujarat Prevention of Anti-Social Activities Act, 1985(16 of 1985) wherein in Section 2 (c) a 'dangerous person' is defined as a person habitually committing offences under Chapters XVI or XVII of IPC or Chapter V of the Arms Act. Explaining the meaning of the word ''habitually", their Lordships explained, while approving the definition of the word in the Law Lexicon by P. Ramanatha Aiyar, Reprint Edn. (1987), page 499 and of the word 'habit in Aiyar's Judicial Dictionary, 10th Edn. p.485, mat complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude mat a particular person is a 'dangerous person' unless there is material suggesting his complicity in such cases which lead to a reasonable . conclusion that the person is a habitual criminal. The Court referred to its earlier decision in Vijay Narain Singh v. State of Bihar, wherein the word had been construed to mean repeatedly or persistently and observed that it implies a thread of continuity stringing together similar repetitive acts and that repeated, persistent and similar acts are necessary to justify an inference of habit. Since the detention of the detenus is purported to have been made taking them as goondas under the Act, it has to be seen whether there are materials to form such an opinion.
8. In the case of both the detenus such conclusion is purported to have been drawn from the number of cases they are respectively involved in as per the table given at the bottom of grounds of detention. So far as the first detenu is concerned, he had been acquitted in the first eight cases. The fact of acquittal in these cases was not available to be taken against him. So far as S1 No. 9, Crime No. 15 /96 under Section 380 IPC of Harbour Crime Police Station is concerned, that case is still pending. It has been explained in the counter-affidavit and indeed vigorously stressed before us that the acquittals of the detenu were only because of his goonda character and that he forced the witnesses not to depose against him which they obliged for being in fear of him. Such statement is found in the counter-affidavit. But, such an allegation against the detenu was not made in the grounds of detention supplied to him and obviously he did not have the opportunity to represent against such opinion formed against him. All that was stated in the grounds of detention was to refer to certain number of cases, including those in which he had been acquitted. The further fact that the acquittals were tainted because of the intimidation, of the witnesses was never brought to his notice which ought to have been done. Had it been brought to his notice and had he been given the opportunity to represent against it, it was another matter if the representation would have been considered and rejected. It is well known that where cases which have ended in acquittal form the basis of the detention, the order of detention is vitiated for which reference may be made to D.S. Agarwal v. Police Commissioner, and Ramesh v. State of Gujarat, . The learned Asst. Govt. Pleader for Home, Ms. J. Vijayalakshmi, attached to the Addl. Advocate General submits the case to be distinguishable, as in those cases the fact of acquittal had not been brought to the notice of the detaining authority, but that in the instant case the fact of acquittal had been brought to the notice of the detaining authority and he was conscious of the fast while passing the order. While that is so, yet the order of detention is not shown to have considered the fact of acquittals and yet to have come to the conclusion of the necessity for detention because of the nature of the acquittals being as alleged in the counter affidavit. It is too well known in law that public orders, publicly made are to ex facie show the grounds on which they are made and it is not permissible to construe the meaning of such order in the light of explanations subsequently given. The law was laid down as early in Commissioner of Police v. Gordhandas, AIR 1952 SC 15 wherein the Court observed:
"An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
In a later case, Mohinder Singh v. Chief Election Commr., the earlier decision was followed with the Court observing:
"......when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out"
9. Of all fundamental rights conceded to the citizens under our Constitution, the right of personal liberty is the most cherished one. A person is not to be deprived of the right except in accordance with the procedure laid down by law even if he may be a man of the most desparate character. The law relating to preventive detention has hence always been very strictly interpreted so as to uphold the concept of individual freedom and the Courts have always acted to safeguard the purity of such right which is available to be interfered with only under the most stringent and rigorous conditions. It is for such reason it has been the consensus that while the interest of the society is paramount, yet the rights of individuals so far as their personal liberty is concerned is to be equally balanced vis-a-vis those rights of the society and that the right of the individual in that regard is not to be made either a scapegoat or a martyr for the cause of the society unless duly sanctioned by law.
10. When we come to the second detenu, the facts of the case do not fare any better. There also, his detention was on the same ground of treating him as goonda, but however the relevant materials to reach the conclusion are hopelessly wanting as is evident from the narration of the facts made earlier. All the cases from S1.No. 8 to 34 of the table relating to his grounds of detention were offences under the Railway Property (Unlawful Possession) Act and not under either Chapters XVI, XVII and XIX, IPC Learned Asst. Govt. Pleader submits that the offences being unlawful possession of railway properties, are primarily offences relating to property covered under Chapter XVII, IPC, but that the detenu was arrested under Section 3 of the R.P.U.P. Act as it was a special Act relating to the offences of that nature. While we appreciate the submission, yet, since the definition of goonda receives strict interpretation under the Act, we are unable to extend the definition also to include the offences under the R.P.U.P. Act as there is no legislative sanction behind such extension of the meaning. That apart, all those cases are pending and the detenu has not been convicted in any of them. He has been also acquitted in the other cases as referred earlier. Similar statement has been made in the counter-affidavits of respondent No. 2 as in the other case that the acquittals were products of intimidation practised upon the witnesses. The considerations which weigh with us so far as the first detenu is concerned similarly also arise so far as This detenu is concerned, as his grounds of detention never referred to such opinion of the respondent No. 2 to have been reached while making the order of detention.
11. Because of such reason, we are to hold that the ground No. 1 in both the orders of detention were not valid grounds for the detentions.
12. If such ground is excluded, the only other remaining ground is the theft from the stock yard of SAIL, Port area. That admittedly is a single instance of theft and by no stretch of imagination touches the question of public order. A case of theft, serious though it may be, yet hardly constitutes a case affecting public order. The distinction between law and order and public order has been pointed out in a catena of decisions of the Apex Court from time to time and it is not necessary to go into detail of those cases. It is suffice to observe that no action becomes one as affecting public order unless it affects the even tempo of public life, the life of the community, even though it may create a situation of law and order. The distinction lies in the degree and reach of the offence rather than in its nature as the same action under a given circumstance may become a question of public order and yet only a situation affecting law and order in other situations a matter which was explained in Arun Ghosh v. State of W.B, Victoria Fernandes v. Lalml Sawma, Subhash v. Dist Magistrate, and Ram Manohar v. State of Bihar, . There is nothing to show, so far as the present cases are concerned, and indeed the grounds of detention also do not disclose any tangible data, to hold that the alleged theft by the two detenus in any way. became a case affecting the public order in the society. It is another matter that if the ground No. 1 in both the cases would have survived, the nature of the case might have been different, but that being not the case here, we would not like to express any opinion in that regard.
13. Because of such considerations, we are constrained to hold the orders of detentions as not being warranted under the law and are violative of fundamental rights of the detenus for which the orders must be set aside.
14. In the result, the writ petitions are allowed and the detenus are set at liberty forthwith if they are not required in connection with any other case.