Andhra HC (Pre-Telangana)
Vallabhaneni Rama Chowdary vs Govt. Of A.P. on 29 October, 1997
Equivalent citations: 1998(3)ALD191
Author: K.B. Siddappa
Bench: K.B. Siddappa
ORDER K.B. Siddappa, J.
1. The wife of detenu Sri Vallabhaneni Venkataiah Chawdary, R/o. P&T Colony, Visakhapatnam who is detained in Central Jail, Visakhapatnam in pursuance of the order passed in C.N0.178/MC/97, dated 20-7-1997 by the 2nd respondent, has filed this writ petition questioning the order of detention.
2. The 2nd respondent in the grounds of detention enumerated the instance of various offences committed by the detenu : Crime No.181/96 is registered under Sections 407 and 420 I.P.C. Crime No.11/97 is registered under Sections 407 and 420 I.P.C., Crime No.28/97 is registered under Sections 468, 471, 407 and 420 I.P.C., Crime No.41/97 is registered under Sections 468, 469, 471, and 407 and 420IPC, Crime No. 100/97 is registered under Sections 407, 420, 468, 469 and 471 I.P.C., Crime No.102/97 is registered under Sections 407, 420, 468, 469 and 471 I.P.C. and Crime No.103/97 is registered under Sections 407, 420, 468, 469 and 471 I.P.C. The said Crimes were registered by Malkapuram Law and Order Police Station, Visakhapatnam.
3. In Crime No. 181/97 it is alleged that the detenu was entrusted to transport 10.200 Metric Tonnes of Bulk Bitumen to the consignee i.e., Junior Engineer, Bhanjnagar, R&B Section-1, Orissa. The Bitumen entrusted was worth about Rs.54,000/-. It is alleged that the detenu sold away the same to one Ramana Murthy, Director of Harshal Roofing Private Limited. It is also stated that the detenu obtained anticipatory bail in Crl.M.P.No.19/97 from the I Additional Metropolitan Sessions Judge, Visakhapatnam and he did not comply with the conditions imposed in the bail order.
In Crime No, 11/97, the allegations arc that Indian Oil Corporation entrusted 165.540 M.Ts. of Bulk Bitumen worth about Rs.8,71,323/- between 5-12-1995 and 18-3-1996 to deliver the same to the Executive Engineer, R&B, Parlikhedmundi Division, Orissa. However, the detenu diverted the same to various places and sold and got illegal sale proceeds for personal benefit. It is alleged that he obtained anticipatory bail in Crl.M.P.No.42/97, dated 27-2-1997 from the Court of I Additional Metropolitan Sessions Judge, Visakhapatnam and he did not comply with the conditions imposed in the bail order.
In Crime No.28/97 it is alleged that between 18-4-1996 and 23-10-1996 the detenu diverted 168.335 M.Ts. of Bulk Bitumen worth about Rs.9,58,43 6/- to various places in 17 trucks. He sold and misappropriated the value. In this Crime also the detenu obtained anticipatory bail in Crl.M.P.No.342/97, dated 17-6-1997 from the Court of I Additional Metropolitan Sessions Judge, Visakhapatnam and did not comply with the conditions imposed in the bail order.
In Crime No.41/97 it is alleged that the detenu diverted 111.70 M.Ts. of Bulk Bitumen meant for Junior Engineer, R&B Stores, Rayagada, Orissa, to various other places and- sold and misappropriated the sale proceeds.
In Crime No. 100/97 it is alleged that the detenu was entrusted with 160.170 M.Ts. of Bulk Bitumen worth Rs.7,97,201/- to be supplied to the Executive Engineer, PW Division No.1, Raipur. However, he diverted it to some other places and made good of the amount.
In Crime No. 101/97 it is alleged that the detenu diverted 41.060 M.Ts. of Bulk Bitumen worth Rs.2,31,343/- meant for Junior Engineer, R&B Jeypore, Orissa and sold the same at various places and misappropriated the sale proceeds;
In Crime No.102/97 it is alleged that a quantity of 92.030 M.Ts. of Bulk Bitumen worth about Rs.5,04,356/- was illegally diverted by the detenu to some other places and misappropriated the same.
In Crime No.103/97 it is alleged that the detenu diverted 38.560 M.Ts. of Bulk Bitumen worth about Rs.2,77,863/- to some other places and misappropriated the sale proceeds.
4. The 2nd respondent took into consideration the fact that the above Crimes were registered within a short span of seven months, and that the activities of the detenu are prejudicial to the maintenance of supplies of essential commodities like Bulk Bitumen belonging to the Indian Oil Corporation, affecting the Public Distribution System. The illegal acts of the detenu caused huge losses to the Indian Oil Corporation. The ordinary provisions of Penal Law will not have the immediate desired effect of preventing the detenu from further acting in a manner prejudicial to the maintenance of public order, as the procedural requirements of Penal Law takes considerably long time. The detenu all the times got anticipatory bail and avoided arrest by the Police. He also continued committing similar offences without fear of Law. The activities of the detenu attract the provisions of Preventive Detention Act i.e., Act 1 of 1986. If the activities of the detenu are not prevented those would cause imminent danger to the maintenance of supplies of essential commodities of Public Sector Undertakings and also in the interest of maintenance of Public order. Therefore, it is .opined that the conduct of the detenu falls under the category of "goonda" as defined under Section 2(g) of Act 1 of 1986 and he was ordered to be detained by virtue of Section 3(2) of the A.P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 and the detenu was detained in Central Prison, Visakhapamam.
5. The learned Counsel appearing for the petitioner submitted that the allegations made in various Crimes mentioned above do not fall under the category to describe the detenu as a "goonda". Further, Sections 468, 469 and 471 I.P.C. do not fall under Chapters XVI, XW or XXII of Indian Penal Code. Only two Sections viz., Sections 407 and 420 IPC fall under the above Chapters. Therefore, the detention of the detenu for the alleged offences under Sections 468, 469 and 471 I.P.C. is illegal. Moreover, the charges are not definite. This ground alone is sufficient to set-aside the order of detention.
6. The learned Counsel further submitted that the activities enumerated do not in any way constitute the acts in any manner prejudicial to the maintenance of "public order" as defined under Section 2(a) of the Act I of 1986 and in the explanation thereto. They do not cause directly or indirectly any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave of widespread danger to life or public health. Further, all the documents were not supplied. There is no indication ia the order that the detenu is likely to be released in criminal cases on bail and that he would continue his illegal activities after his release. What is more is that on the date of detention i.e., on 29-7-1997, the detenu was in the custody of Police as he was already arrested on 19-7-1997 at 5 p.m. Therefore, there is no question of his committing any offences.
7. For all these reasons, the learned Counsel submitted that the impugned order is illegal and the detenu is entitled to be set at liberty.
8. We see considerable force in the submission made by the learned Counsel for the petitioner. In this case, the personal liberty of the detenu is involved. A person can be deprived of his personal liberty only in accordance with law. The life and liberty of a citizen are guaranteed as fundamental rights. Personal liberty of an individual is the most precious possession of a citizen. The deprivation of persona) liberty of a person is to be scrutinised by the Court with utmost care and to be decided with top most priority. In Ichudevi v. Union of India, AIR 1980 1983, Justice Bhagwati observed as follows :
"..... The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade. This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirements of law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention....."
The concept of personal liberty is very dear to the American Judges and Jurists. It is worth to quote a passage from Columbia Law Review, Volume 59, page 232 which is as follows :
"Faith in America is faith in her free institutions or it is nothing. The Constitution we adopted launched a daring and bold experiment. Under that compact, we agreed to tolerate even ideas we despise. We also agreed never to prosecute people merely for their ideas and beliefs....."
9. The concept of personal liberty is no less dearer to the Judges and Jurists of India also. Justice Venkatachalaiah in Ayya alias Ayub v. State of U.P., observed as under :
"As to the approach to such laws which deprive personal liberty without trial, the libertatrian judicial faith has made its choice between pragmatic view and the idealistic or doctrinaire view. The approach to the curtailment of personal liberty which is an axiom of democratic faith and of all civilized life is an idealistic one for, loss of personal liberty deprives a man of all that is worth living for and builds up deep resentments. Liberty belongs what correspond to man's inmost self."
10. Therefore, we have to see whether the activities of the detenu in this case constitute him to be a 'goonda' and if the personal liberty of the detenu was deprived for violation of the Law in force.
11. "Goonda" is defined under Section 2(g) of tbe Act 1 of 1986 as follows :
"goonda" means a person, who cither by himself or as a member of or leader of a grant, habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of Indian , Penal Code.
At once it is evident that Sections 468, 469 and 471 IPC do not fall under the above Chapters. Taking these Sections into consideration, to place the detenu in this case, in the slot of "goonda" is irrelevant and unwarranted. Therefore, the argument of the learned Counsel for the petitioner that the authority took into consideration the irrelevant matter for ordering detention and that itself is a sufficient ground to set-aside the impugned order, is not without force. Moreover, if we scan through the impugned order, nowhere it is mentioned that the detenu is likely to be released on bail in the Crimes in which he could not get bail, either regular or anticipatory. This also constitutes a ground for setting aside the impugned order.
12. In this case, it is admitted that the detenu was arrested on 19-7-1997 at 5 p.m. The impugned order was made on 29-7-1997. On the day when the detention was ordered, the detenu was already in the custody of the Police. It is not known how he would commit the activities which constitute him to be described as a "goonda". The impugned order is silent on this aspect. In B. Srinivasa Rao v. Commissioner of Police and Additional District Magistrate, Visakhapatnam City and others, , it was held as follows :
"11. There is force in this submission. The order of detention says that it was necessary to make an order invoking the power under Section 3(2) of the Act directing the detenu, who was then remand prisoner, with a view to prevent him from acting in a prejudicial manner to the "Public Order". The grounds of detention also mentions that the detenu was order judicial custody as a remand prisoner. The purpose of the order was therefore to prevent him from engaging in his activities, which were harmful to the society. At this stage it should be noticed that the detenu's bail application has been already dismissed before the Court below and normally, in cases of rape the High Court will not grant bail to the accused. Then if he was already under custody, there is no justification for the authority to exercise his power, unless he was satisfied that there was likelihood of his being released on bail or for any other such reason. A person is detained by preventive detention without conducting any trial. Such a power, therefore, should be exercised only in exceptional cases and with great circumspection. There must be awareness on the part of the authorities that the detenu's release was imminent, in view of the fact that he might be released on bail and thereby continue his illicit acts. Without such satisfaction indicated in the order, since person was already under judicial custody, the order directing preventive detention should be struck down as an improper exercise of power."
Therefore, this infirmity also should go to the benefit of the detenu.
13. The impugned order was passed with a view to prevent the detenu from acting in a prejudicial manner to the "Public Order". The phrase "Public Order" is amply explained in the explanation to Section 2(a) of the Act. It is as follows :
"Explanation : For the purpose of this clause public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly, in causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave of widespread danger of life or public health."
Further, the difference between ' 'public order'' and "law and order" was the subject-matter of a number of decisions of the Supreme Court (, , and 1997 (3) ALD 215).
14. In Pilli Yeteswari and another v. Govt. of A.P., Hyderabad and others, 1996 (2) ALD (Crt.) 805 = 1997(1) ALT (Cri) 184 (DB) (AP) a Bench of this Court observed:
"... 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."
The Bench also relied upon the Judgments , AIR 1988 SC 474, and .
15. In the present case, the instances enumerated are similar in nature. The allegation is that the detenu was diverting the Bitumen meant to various authorities to some other places and was misappropriating. There are eight such instances in this case. They may constitute offences under Sections 420 and 407 IPC and they can be effectively dealt with under the Penal Law. In our considered view, the instances alleged do not constitute as acting in a manner prejudicial to the maintenance of public order. It is only the Indian Oil Corporation that is affected. The general public is no way affected. Therefore, the activities of detenu fall short of the requirements of the definition under Section 2(a) and Explanation thereto, of the Act 1 of 1986. Therefore, the detenu is entitled to be set at liberty and accordingly we set him at liberty.
16. The writ petition is accordingly allowed and in the circumstances without costs.