Andhra HC (Pre-Telangana)
K. Manjula vs Chief Secretary To The Government Of ... on 26 December, 1997
Equivalent citations: 1998(2)ALD174, 1998(1)ALD(CRI)267, 1998(1)ALT170, 1998CRILJ2741
Author: T. Ranga Rao
Bench: T. Ranga Rao
ORDER Motilal B. Naik, J.
1. Petitioner is one Smt. K. Manjula, wife of Kalakonda Buchaiah. She approached this Court under Article 226 of the Constitution of India seeking a prerogative writ of Habeas Corpus directing the production of her husband Sri Kalakonda Buchaiah, S/o Chandrasekharaiah of Madanapuram village, Kothakota Mandal, Mahaboobnagar district from Musheerabad Jail, Secunderabad. A further direction is also sought to release her husband and set him at liberty forthwith by declaring the order of detention dated 8-8-1997 made in Ref.No.D2/ 4971/97 by the second respondent as confirmed in Memo No.915/L&O-II/97-12 and G.O.Rt. No.5213, dated 24-9-97 and 25-9-97 respectively by the first respondent as illegal, void and violative of the fundamental rights guaranteed under Article 22 of the Constitution of India.
2. Few facts which have culminated in filing this writ petition are as under :
According to the petitioner, her husband was doing business in wholesale kerosene in House No.3/25/1, Madanapuram of Kothakota Mandal, vide licence No.23/WNP81 in the name of M/s Venkateswara Petroleum Agency and is authorised to distribute the subsidised kerosene oil in various villages of Kodak Mandal to Fair Price shop dealers under Public Distribution System by drawing supplies of kerosene allotted from time to time from HPCL Depot. Petitioner submits that the Inspector of Police, Vigilance Cell has taken her husband into custody on 9-8-1997 and sent for detention to Central Jail, Musheerabad on 11-8-97 as a result of the Order of detention passed by the second respondent on 8-8-97, Petitioner claims that the order of detention appears to have been passed on the allegation that her husband has been indulging in unauthorised purchase of subsidised kerosene oil over and above the quota allotted to him by the Collector (CS), Mahaboobnagar from H.P.C. Oil Depot at Guntakal and has been diverting the same into blackmarket for illegal gains. Petitioner further alleged that the detention order passed by the second respondent is based on the two cases registered against her husband in Cr.Nos. 64/VC/MBNR/93 and 53/VC-MBNR/95 for the offences under Clauses 3,12,13,24, 27 of A.P. Petroleum Products (Licensing and Regulation of Supplies) Order, 1980 read with Sections 7 and 8 of the E.C.Act, 1955 and under Clause 3(2), 4(1), 4(1)00, 4(1)(c), 4(2) of the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 and other clauses of A.P. Petroleum Products (Licensing and Regulation) Order, 1980 respectively.
3. Petitioner further alleges that the detention order was passed on 8-8-1997 which was served on the detenu on 10-8-97 along with the grounds of detention wherein the detenu has been given a right to make representation against the order of detention to the first respondent, the Secretary to the Government of India, Ministry of Civil Supplies, New Delhi and Advisory Board duly constituted by the Government of Andhra Pradesh. According to the petitioner, the detenu has made a representation on 9-9-97 to the above authorities. The first respondent without applying his mind and in a routine manner without taking into consideration the relevant material furnished by the detenu, passed an order on 24-9-97 rejecting the representation. The Advisory Board constituted under Section 9 of the Act also failed to consider the representation of the detenu and confirmed the order passed by the second respondent on the basis of the opinion of the first respondent confirming the detention vide his order dated 25-9-97 in G.O.Rt.No.5213 and directed that the detention of the detenu be confirmed for the whole period of six months from 10-8-1997. Petitioner states that the representation made to the Secretary, Government of India, Ministry of Civil Supplies, New Delhi has also been rejected without any valid reasons.
4. In the background of the detention order passed by the second respondent as confirmed by the first respondent, petitioner has raised objections on the detention order detaining her husband for a period of six months with effect from 10-8-97 on various grounds and sought a direction from this Court to set aside the order of detention by declaring the same as illegal, violative of the principles of natural justice and to set the detenu at liberty forthwith.
5. On behalf of the respondents, detailed counters have been filed, inter alia, justifying the order of detention by contending that the detenu has been indulging in black marketing of the subsidised kerosene oil while drawing the quota over and above the permissible quantity with the active connivance of the officials of Bharat Petroleum Company as well as the officials of Civil Supplies Department. According to the respondents, on the basis of a news item appearing in 'Vaarta' telugu daily in the month of February, 1997 to the effect that the petitioner's husband was indulging in diverting the kerosene oil meant for distribution among the card holders under the public distribution system, to black-market and therefore, investigation was conducted in which it was revealed that the detenu was indulging in black-marketing.
6. The respondents have traced the background of the case and have estimated that the detenu has diverted the kerosene worth about 565 kilo litres which was meant for public distribution system, amountingtoRs.62,15,000/ - from January, 1996 to March, 1997 to the black-market for monetary gain. Respondents have also stated in the counter that the detenu is a habitual offender against whom cases have been registered in the years 1993 and 1995 and if the activities of the detenu are not stopped by detaining him forthwith, the interests of the society would suffer and therefore, justified the order of detention passed by the second respondent.
7. Sri C. Malla Reddy, learned senior Counsel appearing on behalf of the petitioner attacked the order of detention by contending that when an order of detention is to be passed, the detaining authority has to satisfy before ordering detention and such satisfaction should be subjective satisfaction and not objective satisfaction. Learned Counsel contended that there were no circumstances warranting the order of detention but the second respondent has passed an order in routine and mechanical manner without applying his mind. It is secondly contended that in the grounds supplied to the detenu along with the order of detention, it has been indicated that on the basis of the incidents which have taken place in the years 1993 and 1995, the detaining authority - second respondent has passed the order impugned even though there is no proximity between the offences committed in the year 1993 and 1995 to the present order impugned. Learned Counsel submitted that the primary consideration for ordering the detention shall be that of the proximity between the offences to the date of ordering the detention. For ordering the detention of the detenu, the incidents of the years 1993 and 1995 have been shown as primary reasons and thus, there is no proximity between the offences relating to the years 1993 and 1995 to the order of detention dated 8-8-1997. It is thirdly contended that on the basis of the report appeared in 'Vaarta' Telugu dailyin the month of February, 1997 raids on the business premises of the detenu were conducted on 4-3-1997 by the Inspector of Vigilance (Civil Supplies) and F.I.R. was registered on 5-3-1997. The detenu was arrested on 22-3-97 and the order of detention was passed only in the month of August, 1997 i.e., after a lapse of more than five months from the date of raids and as such the inordinate delay in passing the order of detention in fatal to the detention. It is argued that there is no plausible explanation about the inordinate delay. It is fourthly contended that in the grounds of detention, the respondents have mentioned that the fair price dealers to whom the detenu stated to have released supplies and issued bills were later on examined by the Judicial First Class Magistrate under Section 164 Cr P.C. and they deposed that though bills were issued to them, kerosene was not supplied to them. Counsel states that the copies of the bills forming part of the deposition and indents placed by the fair price shop dealers have not been supplied to the detenu for filing necessary representation before the appropriate authonty and therefore, non-supply of such crucial material to the detenu vitiates the order of detention. It is fifthly argued that the detenu had been enlarged on bail on 27-3-1997 by a competent Court and on the date of passing of the order of detention i.e., 8-8-97 though the detaining authority is aware of the said bail order in favour of the detenu, it has failed to advert to the said aspect andpassed the order of detention. In this regard, Counsel contends that this lapse on the part of the detaining authority is fatal to the order of detention. It is finally argued that the order of detention is a deterrent punishment hampering the liberty of a citizen as guaranteed under Article 22 of the Constitution of India. Counsel contended that the licence of the detenu was cancelled by the competent authority and no supplies were made available to him from 4-4-1997. When the supply of kerosene is stopped to the detenu from 4-4-1997, there is no justifying reason to hold that the detenu would be indulging in black-marketing of kerosene detrimental to the interests of the society. Counsel, under these circumstances, contends that Article 22(5) of the Constitution provides for following certain procedure before ordering detention and in this case no such procedure is followed and as such, for all the above reasons, the order of detention cannot be sustained and the same has to be set aside and the detenu has to be set at liberty forthwith.
8. In support of his contentions, learned senior Counsel has taken us to the decisions reported in Biram Chand v. Slate of Uttar Pradesh, , Lakshman Khatikv. State of West Bengal, , Pradip Nilakanth Paturkar v. S. Ramamitrthi, 1993 Supp. (2) SCC 61, Pinjari Hussain Sab. Rep. by Chinna Vannurappav. District Collector, Anantapur, (FB), K. Ramatnohan Reddy v. Chief Secretary to Govt. ofAndhra Pradesh, Hyderabad, 1997 (2) ALD (Crl.) 762 (AP), Rangineni Chencliama Papaiah Naidu v. Collector andDistrictMagistrate, Chittoor, 1989 (3) ALT 593, and in Moti Lal Jain v. State of Bihar, .
9. The learned Government Pleader, on the contrary, justified the action of the respondents in ordering the detention by contending that the detaining authority was posted with all the material before him and after satisfying himself and in order to safeguard the interests of the society, the order of detention is passed preventing the detenu from indulging in the activities which are detnmental to the society. Learned Government Pleader justified the reasons on the grounds shown in the detention order by stating that the detention order is based only on the incidents taken place in the year 1997 when the Inspector of Vigilance (Civil Supplies) raided the premises of the detenu on 4-3-97 and found the diversion of kerosene meant for public distribution system to black-market. It was found during investigation that huge quantities of kerosene worth lakhs of rupees were lifted by the detenu with the active connivance of the officials of the Civil Supplies Department and also the authorities of the Bharat Petroleum Oil Company. Learned Government Pleader contended that in the grounds supplied along with the detention order, the detaining authority has only made a passing observation about the past incidents of the years 1993 and 1995 and the detention order is passed only on the basis of the events in the year 1997. Learned Government Pleader further contended that though the raid took place on 4-3-1997 in the premises of the detenu, in the process of investigations, the authorities have examined the officials of Civil Supplies Department, Bharat Petroleum Company and other fair price shop dealers of Kodair mandal and sometime is consumed and there is no abnormal delay in passing the order of detention.
10. On the allegation of non-supply of the relevant material along with the grounds of detention and also not considering the issue of the detenu being enlarged on bail as on the date of passing the detention order and the fact of suspension of the licence of the detenu on 4-4-97, the learned Government Pleader contended that all the documents relied on by the detaining authority have been supplied to the detenu. Tt is also contended that the detaining authority has also considered the fact of the detenu being enlarged on bail as on the date of passing the order of detention and after taking into consideration all the relevant factors, has passed the order of detention.
11. In support of his submissions, the learned Government Pleader has taken us to the following decisions reported in District Magistrate, Nowgong v. SamtMudoi, , Smt. Hemlata Kantilal Shah v. State of Maharashtra, , and in Chakinam Venkatesam v. Govt. of A. P. repby Chief Secretary, 1994 (1) An. WR 385.
12. We have heard the learned Counsel for the petitioner and the learned Government Pleader for respondents, extensively. Though the submissions are extensive, we are of the view, the scope of this writ petition is limited only to the extent of examining the question as to whether the second respondent has applied his mind whileordering the detention?
13. Article 22 of the Constitution of India deals with the personal liberty ofa citizen which is guaranteed to him. Sub-clause (5) of Article 22 provides that when a person is detained in pursuance of an order made under any law providing for preventive detention, the authorities, making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The Constitution of India attaches special importance to the conditions contained in this Article as the curtailment of personal liberty and failure to comply with the procedure contemplated will make the detention illegal.
14. The detaining authority, must therefore, before passing the order of detention, necessarily have sufficient reasons which are of subjective satisfaction to him and apply his mind on the facts of the allegations and pass the order of detention. The paramount requirement is subjective satisfaction but not objective satisfaction, failing which the detention is vitiated.
15. The decisions cited by the learned senior Counsel for the petitioner, lay down the proposition that if the subjective satisfaction is conspicuous by its absence, the order of detention shall be declared as null and void. Courts have further held that if the detaining authority has failed to apply his mind while taking note of the relevant facts such as the detenu is on bail as on the date of ordering his detention, such facts vitiate the order of detention. In cases of inordinate delay in passing the order of detention from thedate of incidents would also vitiate the order of detention. Non-supply of relevant material to the detenu, Courts haveheld, vitiates the order of detention,
16. Applying the above propositions, we are called upon to examine whether the order of detention passed by the second respondent dated 8-8-97 has fulfilled the requirement laid down under Article 22 of the Constitution of India?
17. The first paragraph of the order of detenti on passed by the second respondent dated 8-8-1997 reads as under :
"Whereas the information is placed before me to prove that Sri Knlakonda Buchaiah S/o Chandrasekharaiah, Age 30 years, R/o Madanapuram of Kothakot Mandal, Mahabubnagar District has been indulging habitually in the unauthorised purchase of subsidised kerosene oil which is meant for Public Distribution System over and above the quota allotted by the Collector (CS) Mahabubnagar from B.P.C. Oil Depot at Guntakal in his own Tankers and diverted the entire quantity lifted unauthorisedly on the strength of additional allotment letter issued by the District Supply officer who connived with him and thereby diverted 565 K.L. worth Rs.62,15,000/- from the months of January '96 to March '97 into black-market for his monetary gain and thus maintenance of supplies of petroleum products to the bona fide card holders in Mahabubnagar District, thus contravened Clause 12(1)(ii)(iii) and Clause 28 of A.P. Petroleum Products (Licensing and Regulation of Supplies) Order, 1980 and Clause 3(2) of the Kerosene (Restriction on Use and Fixation of Ceiling Prices) Oder, 1993 read with Sections 7 and 8 of Essential Commodities Act, 1955."
The second paragraph of the same order reads thus :
"Whereas the information is placed before me about his indulgence in such malpractices as diversion of subsidized Kerosene Oil into blackmarket for which two cases have been registered in Cr.No.64/VC-MBNR/93 and 53/VC-MBNR/95,proving that he has been in the habit of doing this in the past and that he would connive to indulge in such malpractices in future also if not prevented."
In the first paragraph of the grounds of detention supplied to the detenu, itis mentioned thus :
"...... .Your application for renewal of licence had not been considered in the Collectorate, as you came to adverse notice for diversion of subsidized Kerosene Oil vide Cr.No.64/ VC-MBNR/93 and 53/VC-MBNR/95 However, pending finalisation of the criminal proceedings in these cases, the supplies had been continued to you."
18. A careful reading of the detention order along with the grounds of detention gives the irresistible impression that the order of delation is only based on the incidents occurred in the years 1993 and 1995. In our considered view, pendency of criminal cases in Crime Nos.64/VC-MBNR/93 and 53-VC-MBNR/95 has significantly influenced the detaining authority for ordering the detention of the husband of the petitioner. It is interesting to note that though the authorities have denied renewal of licence to the detenu, pending finalisation of the criminal proceedings, supplies had been continued to the detenu. In this context, learned senior Counsel for the petitioner contends that the detaining authority has only referred to pendency of the two cases against the petitioner's husband and there is no proximity between the offences relating to the years 1993 and 1995 for passing the impugned order of detention. Incur considered view, there is much force in this contention. The detaining authority has not applied his mind and there was no subjective satisfaction on this aspect as he passed the impugned detention order only on the basis of the incidents occurred in the years 1993 and 1995. The paragraphs extracted above from the order of detention and the grounds of detention give credence to the facts that the second respondent has only taken into consideration the pendency of two criminal cases against the detenu which relate to the years 1993 and 1995 and held that the detenu has been in the habit of doing malpractices in the past and he would indulge in doing such malpractices in future also if not prevented. Therefore, we are of the view, having regard to the above, the detaining authority - second respondent has not applied his mind while passing the order of detention.
19. A Division Bench of this Court in K. Ramamohan Reddy's case (supra) held that without considering the fact of the detenu being released on bail if the order of detention is passed, such an order is liable to be set aside on the ground of non-application of mind by the detaining authority.
20. In the present case, the detenu was enlarged on bail on 27-3-1997 and the order of detention was passed on 8-8-97. Though the detaining authority was aware of the fact that the detenu was on bail, the order of detention does not reflect that the detaining authority has applied his mind while passing the order of detention. However, awareness of a fact is totally different from considering the said fact. Only in the process of consideration, application of mind will be involved. Awareness of a fact does not amount to consideration. It is therefore, manifest from the order of detention that the second respondent while passing the order of detention dated 8-8-1997 has not considered the fact of the detenu being on bail by applying his mind and therefore, on this ground alone, the order of detention dated 8-8-1997 is liable to be set aside.
21. In view of the above discussion with regard to the two grounds alone, we are of the view that the detaining authority has not applied his mind while passing the impugned order of detention. Law on this aspect is very clear. The order of detention could be quashed if one ground out of several grounds which form the basis for ordering detention is found to be defective. We are, therefore, inclined to hold that on the two grounds indicated above, the order of detention passed by the second respondent is Ref.No.D2/4971/97 dated 8-8-1997 is found to be defective. Since we have found that the two grounds, as indicated above, which form part of the grounds for passing the order cf detention dated 8-8-1997 as defective on which basis alone the order of detention dated 8-8-1997 is liable to be setaside, it is not necessary for us to examine the other grounds raised in the writ petition.
22. Having regard to the above discussion, the order of detention passed by the second respondent in Ref.No.D2/4971/97 dated 8-8-1997 is set aside. Consequently, the detenu-Kalakonda Buchaiah, S/o. Chandrctsekharaiah, resident of Madanapuram village, Kothakota Mandal, Mahaboobnagar district, presently lodged in Musheerabad Central Jail, is set at liberty forthwith.
23. The writ petition is allowed accordingly. No costs.