Andhra HC (Pre-Telangana)
Durgam Subramanyam vs 1. Government Of A.P., Represented By ... on 20 December, 2012
Bench: G. Rohini, C.Praveen Kumar
THE HONOURABLE Ms. JUSTICE G. ROHINI and THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR W.P.No.28281 of 2012 20-12-2012 Durgam Subramanyam 1. Government of A.P., represented by its Chief Secretary,Hyderabad and others. Counsel for the petitioner: Sri P.Gangaiah Naidu, Senior Counsel representing Sri N. Bharat Babu Counsel for respondents : Smt. Mohana Reddy, Counsel representing the Advocate General <Gist: >Head Note 1.(2008) 16 SCC 14=AIR 2009 SC 628 2. (2012) 7 SCC 533 3. 1992 Supp.(1) SCC 496 4. Unreported judgment of this Court in WP No.12166/2010 dt. 18-8-2010. 5. (2004) 3 SCC 289 6. 1995 Supp(4) SCC 252 7. (1988) 1 SCC 287 8. (1990) 2 SCC 1 O R D E R:
(Per C.Praveen Kumar,J) This writ petition under Art.226 of the Constitution of India has been filed seeking issuance of a writ of Mandamus to declare the proceedings dt. 25-6-2012 issued by the District Collector and Magistrate, Chittoor ordering the detention of the petitioner under section 3(1) r/w 3(2) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (hereinafter referred to "the Act 1/1986) and consequential order of the first respondent, Government of Andhra Pradesh, represented by its Chief Secretary, in approving the order of detention passed by the District Collector, Chittoor in G.O.R.t.No.3098, General Administration (Law & Order. II) Department dt. 6-7- 2012 as illegal, arbitrary and violative of Arts. 14,21 and 22(5) of the Constitution of India.
2. By his proceedings dt. 25-6-2012, the second respondent passed an order of detention under Section 3(1) r/w 3(2) of the Act 1/1986 on the ground that the petitioner is a 'goonda' within the meaning of Section 2(g) of the Act 1 of 1986 and with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.
3. The third respondent, Divisional Forest Officer, Wild Life Management Division, Tirupati, Chitoor District, has submitted proposals to the second respondent reporting that a spate of illicit red sanders felling and smuggling to Chennai and other unknown destinations had occurred in various Reserved Forest Areas of Wildlife Management Division, Tirupati in the last seven years. The petitioner was identified as one of the king pins who was responsible for financing the process of felling trees and also smuggling the same to other places. About 11 cases were registered against the petitioner for various offences under the Forest Act and also under the Indian Penal Code.
4. The order of detention, which is under challenge in the present writ petition discloses 11 cases being registered against the petitioner from the year 2006 onwards for the offences punishable under the Forest Act and also for the offences punishable under the Indian Penal Code. The order of detention further discloses that the petitioner has committed various offences by entering into Government Reserved Forest without proper authorisation, severing standing red sander trees from the earth, dressing the same in secret hideouts and trying to smuggle the highly valuable red sanders wood to secret destinations. The gist of 11 cases which are referred to in the order of detention are as under:
Sl.No. Case No. Date: Name of the Section/station Particulars of Seizure Involvement of accused.1
O.R.No.2/2006-07 dt. 12-5-2006 FRO, Tirupati 126 red sander logs-3821 kgs. Vehicle Lorry bearing No.AP 27 T 0001 Sri Durgam Subramanyam is noted as A-3 in this case.2
O.R.No.279/2007-08 dt. 24-3-2008. Flying Squad Division, Tirupati. 15 red sander logs -4381 kgs. Vehicle TATA Sumo AP 03 5322 and Maruthi Car PY01 E 6912 seized Sri Durgam Subramanyam is noted as A-1 and was arrested red handedly along with red sander stock and vehicles on 24-3-2008.3
O.R.No.14/2008-09 dt.3-10-2008. CI: Crime Station, Tirupati (355/08 of CCS, Tirupati) 169 red sander logs-4905 kgs.
Caught hold stock and A-2 and A-3 who deposed that Durgam Subramanyam-A-1 was main transporter in this case and engaged them for the work and is absconding in this case.
4O.R.No.2/2010-11 dt. 8-4-2010, FRO Tirupati 16 red sander logs-572 kgs.
A-1-Durgam Subramanyam accused in this case along with another person, escaped from the scene of offence when the forest staff tried to catch hold of them along with stock.
5O.R.No.16/2011-12 dt. 6-5-2011 FRO/DYRO, Nagapatla Section. 20 red sander logs-827 kgs.
A-1 and A-2 Durgam Subramanyam and another have escaped from the scene of ofofence when forest staff tried to catch hold of him along with stock.
6O.R.No.17/2011-12 dt. 6-5-2011 FRO, SVNP, Chamala.
186 red sander logs-666 kgs.
The persons who were caught hold along with stock of red sanders and other two persons escaped from the scene of offence. On enquiry, it is revealed that the accused Durgam Subramanyam is the main culprit behind the case who is yet to be traced out to produce before the court and to file the charge sheet.
7O.R.No.18/2011-12 dt. 28-6-2011 WLM Range, Nagapatla Section. 6 red sander logs-130 kgs.
The 6 persons who were caught hold have stated that as per instructions of Takku Subramanyam (accused) only they tried to transport the stock and they were sent for remand.
8O.R.No.52/2011-12 dt. 7-8-2011, Dy.RO, Nagapatle Selction. 52 red sander logs-1241 kgs. 4 vehicle-1. Eicher vehicle AP 02 U 2079; (2) TTA Sumo-TN 02 R 0099; (3) TVS Suzuki two wheeler TNE 5075; (4) Yamaha two wheeler without number.
The two persons who have caught hold have disclosed the name of Durgam Subramanyam and another who are main transporters in this case.
9OR No.57/2011-12 dt. 16-8-2011, Dy.RO, Nagapatle Section. 9 red sander logs-302 kgs.
The 9 persons were caught hold on the spot along with stock, and after enquiry, it is revealed that A-10 to A-14 escaped from the scene of offence and A-13 is Durgam Subramanyam 10 O.R.No.132/2011 dt/ 10-8-2011. CI, CCS. Chittoor.
38 red sander logs-840 kgs. One black colour Icon car bearing No.TN 02 R 0033- white colour Qualis car bearing No.AP 05 R 8989.
The two persons who were caught hold while transporting red sander stock in the vehicles have deposed that as per instructions of Durgam Subramanyam only they are transporting the stock to Tamilnadu.
11O.R.No.5/2012 dt. 23-1-2012, SI of Police, Kallur.
16 red sander logs-385 kgs.
27 coolies from AP and Tamilnadu States were caught hold with stocks and also arrested. They have revealed the name of Durgam Subramanyam as king pin of the case. Accordingly Sri Durgam Subramanyam was also arrested on 27-1-2012 and sent for remand.
It is apt to mention here that in all the cases, the petitioner is shown as accused and the cases were registered against him for the offences under the Forest Act and also under the provisions of the Indian Penal Code. It is also necessary to mention here that earlier an order of detention was passed on 11-8- 2006 against the petitioner. About 51/2 years later, he was arrested and after his arrest, grounds of detention were furnished to him. The said order was challenged before this Honourable Court by way of WP No.3856/2012.This Honourable Court by its order dt. 28-3-2012 allowed the writ petition holding that the authorities who are responsible for execution of the order of detention cannot escape their liability by making an allegation that the detenu was absconding. They have to take steps under Section 7 of the Act 1 of 1986 to declare the detenu as proclaimed offender and attach his properties for securing his arrest and also explain the delay in executing the order of detention. As no explanation was forthcoming from the detaining authority explaining the delay in executing the order of detention and as no steps have been taken as provided under Section 7 of the Act 1 of 1986 to secure the arrest of detenu by declaring him as a proclaimed offender, this Court was pleased to set-aside the order of detention. The Court opined that the matter has to be enquired into and action be taken against the forest officials concerned who failed to discharge their duties in executing the order of detention. Pursuant to the said order, which was passed on 28-3-2012, the present order under challenge was issued on 25-6- 2012. As stated supra, the said order of detention has not yet been executed.
5. Sri P. Gangaiah Naidu, learned Senior Counsel representing Sri N. Bharat Babu, the learned counsel appearing for the petitioner mainly contended that there was no application of mind by the detaining authority as all the relevant material was not placed before the detaining authority at the time of passing of detention order. According to him, the petitioner was granted conditional anticipatory bail in all the offences in the month of May, 2012. The said orders were not placed before the detaining authority at the time of passing of the detention order ie., on 25-6-2012. He further contended that the activities of the petitioner referred to in the order of detention does not fall within the meaning of "goonda" as defined under the Act. He would contend that since the order of detention emphatically says that the petitioner was involved in a series of forest offences, such activities do not fall within the meaning of "goonda". It is further contended that the said order of detention has been passed only with a view to wreck vengeance against the petitioner, as this Honourable Court while allowing the writ of Habeas Corpus made remarks against the officials who were responsible for the delay in executing the order of detention.
6. Per contra, Smt. Mohana Reddy, appearing for the Advocate General would contend that the present writ which has been filed at pre-execution stage itself is not maintainable. She further contended that the question of considering the material which was placed before the detaining authority would not arise as the material relied upon by the detaining authority has not yet been furnished to the petitioner since he is not yet arrested and that the subjective satisfaction of the detaining authority who has passed the order of detention cannot be questioned at this stage. She further contended that the question of passing the order with vengeance would not arise as the remarks were passed by this court against the forest officials and not against the detaining authority who passed the order of detention.
7. While answering the plea of maintainability of the writ petition, at pre execution stage, the learned counsel for the petitioner mainly relied upon the judgments of the Apex Court in DEEPAK BAJAJ V. STATE OF MAHARASHTRA1 and SUBHASH POPATLAL DAVE V. UNION OF INDIA2
8. On the other hand, the learned counsel for the respondents relied upon the judgments of the Apex Court in GOVERNMENT OF INDIA V. ALKA SUBHASH GADIA3; SALARI PATTEDA SUBRAMANYAM @ NAGARI SUBRAMANYAM V. THE CHIEF SECRETARY TO GOVT.,4 and HARE RAM PANDEY V. STATE OF BIHAR5.
8-A. Preventive detention being only preventive in nature and not punitive, Court has to be vigilant enough in safeguarding the personal freedom as no freedom is higher than it, either at pre-executive stage or thereafter.
9. In ALKA SUBHASH GADIA (3 supra) a three-Judges Bench of the Apex Court while considering the challenge to the detention order passed at pre- execution stage confined the circumstances under which the said challenge could be made. It would be appropriate to extract para 30 of the Judgment, which is as under:
"30.....The Courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and he grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed,(ii) that it is sought to be executed against a wrong person,(iii)that it is passed for a wrong purpose,(iv) that it is passed on vague, extraneous and irrelevant grounds, or(v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question."
10. The said view expressed in ALKA SUBHASH GADIA (3 supra) was affirmed by the Supreme Court in ADMINISTRATION OF THE NATIONAL CAPITAL OF DELHI LV. PREM SINGH6, whereunder it was held that interference at pre detention stage is not permissible except on the limited grounds enumerated in ALKA SUBHASH GADIA (3 supra). A similar view was expressed by the Supreme Court in HARE RAM PANDEY ( 5 supra). However in DEEPAK BAJAJ (1 supra), the Apex Court held that five grounds for entertaining such a petition at a pre-execution stage mentioned in ALKA SUBHASH GADIA (3 supra) are only illustrative but not exhaustive. The Apex Court while answering the question with regard to maintainability of writ in a case of person not legally detained held at para 21 as under:
"...what the petitioner really prays for is a writ in the nature of certiorari to quash the impugned detention order and/or a writ in the nature of mandamus for restraining the respondents from arresting him. Hence, even if the petitioner is not in detention a writ of certiorari and/or mandamus can be issued.
11. While considering the above aspect, the Apex Court in SUBHASH POPATLAL DAVE (2 supra) held as under:
"48. In such circumstances, while rejecting Mr. Rohatgi's contention regarding the right of a detenu to be provided with the grounds of detention prior to his arrest, we are of the view that the right of a detenu to challenge his detention at the pre-execution stage on grounds other than those set out in paragraph 30 of the judgment in Alka Subhash Gadia's case (supra), requires further examination. There are various pronouncements of the law by this Court, wherein detention orders have been struck down, even without the apprehension of the detenu, on the ground of absence of any live link between the incident for which the detenu was being sought to be detained and the detention order and also on grounds of staleness. These are issues which were not before the Hon'ble Judges deciding Alka Subhash Gadia's case (supra).
49. Law is never static but dynamic, and to hold otherwise, would prevent the growth of law, especially in matters involving the right of freedom guaranteed to a citizen under Article 19 of the Constitution, which is sought to be taken away by orders of preventive detention, where a citizen may be held and detained not to punish him for any offence, but to prevent him from committing such offence. As we have often repeated, the most precious right of a citizen is his right to freedom and if the same is to be interfered with, albeit in the public interest, such powers have to be exercised with extra caution and not as an alternative to the ordinary laws of the land."
12. Therefore, from the above decisions, it is clear that a writ of Mandamus or writ of certiorari can be issued even when the petitioner is not in detention. Accordingly, the objection raised by the learned counsel for the respondents with regard to the maintainability of writ petition stands over- ruled.
13. Though the writ petition was filed questioning the order of detention, the respondents along with the counter-affidavit filed the material which was placed before the detaining authority at the time of passing the order of detention ie., the grounds of detention. The said material which has been filed along with the counter-affidavit gave an opportunity to the petitioner to raise an objection with regard to non consideration of the relevant material ie., orders releasing the petitioner on conditional anticipatory bail by the detaining authority at the time of passing the detention order. In fact, it was unnecessary for the respondents to present those papers as the order under challenge was only the order of detention.
14. The Supreme Court in DEEPAK BAJAJ (1 supra) in categorical terms held that if a person against whom a preventive detention order has been passed comes to the court at the pre-execution stage and satisfies the court that the detention order is clearly illegal, there is no reason why the court should stay its hands and compel the petitioner to go to jail even though he is bound to be released subsequently.
15. It is well known that the power of preventive detention is frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilised society. The said power has to be exercised with greatest care and caution and it is the duty of the courts to see that the said power is not abused or misused. (FRANCIS CORALIE MULLIN V. UT OF DELHI=AIR 1981 SC 746).
16. Since the grounds of detention are filed along with the counter- affidavit, the writ petitioner filed a reply raising an additional ground with regard to non consideration of the relevant material by the detaining authority while passing the order of detention. His contention that the release of the petitioner on conditional anticipatory bail in all the cases in the month of May, 2012 was not brought to the notice of the detaining authority at the time of passing of the detention order appears to be correct. All the orders in which the petitioner was granted anticipatory bail were filed along with reply affidavit. The gist of one of the orders passed in Crl.M.P.No.686/2012 dt. 2-5- 2012 (OR No.16/2011-12 of FRO, S.V.National Park, Chamala Range) reads as under:
"1 to 3: x x
4. The petitioner is A-2. As per the orders of the Court, A-1 released on bail. The petitioner is a resident of Tirupati Town and he is ready to available for investigation as and when required. So, the petitioner is entitled for bail with terms.
5. In the result, the petition is allowed for anticipatory bail directing the petitioner to surrender before IV Additional Judicial Magistrate of I Class, Tirupathi within15 days from the date of this order and on such surrender the Magistrate shall release the petitioner on bail on executing a personal bond of Rs.10000/- with two sureties each for the like sum to the satisfaction the said Magistrate. Direct the petitioner to attend before the concerned SHO on every Sunday between 5 to 6 for a period of two months or filing of charge sheet whichever is earlier."
Similar orders were passed in all the cases on different dates. The fact of passing orders releasing the petitioner on anticipatory bail is not disputed by the counsel for the respondents. However, it is contended on their behalf that the petitioner failed to comply with the conditions of bail by not executing the bonds and not attending at the police station as directed. The said violation may be a ground for filing an application for cancellation of bail. But that by itself would not debar the petitioner from raising the said plea. This being a case where the life and liberty of an individual is at stake, there is nothing wrong in court looking into the material placed before it to find out as to whether all the relevant material was placed by the sponsoring authority before the detaining authority. A perusal of the grounds of detention would clearly show that in none of the cases, the fact of release of the petitioner on anticipatory bail was brought to the notice of the detaining authority. In STATE OF UP V. KAMAL KISHORE SAINI 7 the Apex Court held that it is incumbent to place all the vital material before the detaining authority to enable him to come to a subjective satisfaction as to the passing of order of detention as mandatorily required under the Act 1 of 1986. In AHMEDKUTTY V. UNION OF INDIA8 the Apex Court held bail application and bail order were vital materials for consideration and if those were not considered the satisfaction of the detaining authority itself would be impaired.
17. As seen above the sponsoring authority did not place the conditional orders granting anticipatory bail before the detaining authority. That being the vital material which would have weighed with the detaining authority at the time of passing of detention order, we feel that the relevant material was suppressed by not placing the same before the detaining authority. The order of detention is liable to be set-aside on this ground alone. As the order of detention is set-aside on the first ground alone, there is no need for us to delve into the second and third contentions raised by the learned counsel for the petitioner.
18. In the result, the writ petition is allowed. The order of detention dt. 25-6-2012 passed by the second respondent, as approved by the first respondent in G.O.Rt.No.3098 dt. 6-7-2012, is set aside. There shall be no order as to costs.
____________ G. Rohini,J _____________________ C.Praveen Kumar,J Date:20.12.2012