THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR
W.P. NO. 25090 OF 2014
Date of Judgment: 13.11.2014 Between:
G. Subba Reddy …Petitioner And The Government of Andhra Pradesh and others ..Respondents
THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR
W.P. NO. 25090 OF 2014
ORDER:
This writ petition is filed challenging an order of detention dated 15.6.2014 passed by the second respondent, as confirmed by the first respondent under G.O.Rt.No. 2447, G.A. (L & O) Dept., dt. 25.6.2014 and consequently to set aside the same and release the detenu.
The detention order is passed under Section 3 (1) (2) read with Section 2 (a) and 2 (g) of the Andhra Pradesh Prevention of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act 1 of 1986) (Hereinafter referred to as “the AP Act No. 1/86”). The impugned detention order also refers to involvement of the detenu in various offences which are in the nature of illegal cutting, storing and transportation of red sandal wood and also he is a habitual offender.
The facts, as set out in the affidavit of the petitioner, state that prior to the impugned detention order the detenu was earlier detained under a detention order dated 6.12.2012, which was impugned in W.P.No. 3917 of 2013 and this Court, by order dated 26.3.2013, quashed the said detention order. It is stated that the present impugned detention order dated 15.6.2014 was passed by the second respondent and approved by the first respondent under G.O.Rt.No. 2447, G.A. (L & O) Dept., dt. 25.6.2014. The said order of detention was, however, considered by the Advisory Board which met on 11.7.2014 and having been satisfied with the detention order, based on the report of the said Advisory Board, the first respondent issued G.O.Rt.No. 2743, G.A. ( L & O) Department, dated 31.7.2014 and directed that the detenu be detained for a period of 12 months from the date of his detention.
Learned counsel for the petitioner has made three specific submissions questioning the detention order. He submits that the impugned detention order refers to grounds of detention wherein various crimes are listed and discussed, in brief, at Sl.Nos. 1 to 6 and all the said crimes refer to theft of red sandal wood, illegal cutting and transporting of red sandal wood. The said crimes refer to various provisions of Andhra Pradesh Forest Act, 1967, Rules of Red Sandal wood and RS Transits Rules, 1970, Wild Life Protection Act, 1972, Biological Diverting Act, 2002 read with Sections 379, 353 and 307 of the Indian Penal Code.
Firstly, the learned counsel for the petitioner contends that the first ground i.e., Cr.No. 142 of 2009 mentioned at Sl.No.1 in the grounds of detention is said to have occurred on 23.7.2009 which is five years prior to the impugned detention order and as such on the face of it, it is a stale ground. He submits that the said ground has no proximity to the detention order which was passed five years after the said crime was registered. He also submits that the said ground was not taken into consideration when the previous detention order was passed against the same detenu on 6.12.2012 which was subject matter of earlier WP No. 3917 of 2013 and was quashed. The learned counsel for the petitioner, therefore, submits that the said ground relating to Cr.No. 142 of 2009, though available at the time of passing of the previous detention order, having not been referred to and not relied upon earlier, cannot form basis of the present detention order. In support of this contention, the learned counsel placed reliance upon a decision of the Supreme Court reported in Kamlakar Prasad Chaturvedi Vs. The State of M.P. and another wherein it is held in paragraphs 10 and 11 that the grounds of detention must bear proximity to the detention order and the incident which occurred more than five years cannot be said to be proximity to the detention order. The learned counsel for the petitioner, therefore, submits that based on the ratio of the aforesaid decision, the first ground mentioned in the grounds of detention relating to Cr.No. 142 of 2009 is too stale and remote and it is not open for the detaining authority to pick up an old and stale incident and pass the detention order based thereon.
The second ground urged by the learned counsel for the petitioner is based on Section 14 (2) of the AP Act 1/86 which provides, “The revocation or expiry of a detention order shall not bar the making of a fresh detention order under Section 3 against the same person, in any case, where fresh facts have arisen after the date of revocation or expiry, on which the Government or an Officer, as the case may be, are/is satisfied that such an order should be made.”
The learned counsel for the petitioner submits that the previous detention order was quashed by this Court by order dated 26.3.2013 in W.P.No. 3917 of 2013, whereas the present detention order was passed on 15.6.2014. He contends that while passing the impugned detention order, the previous detention order and the order of this Court quashing the same, were not considered by the detaining authority and he points out that while narrating the brief history of the detenu, it is only referred to in brief sentence that the detenu had been detained earlier by the order of the District Collector and Magistrate, Kadapa, dated 6.12.2012. He submits that it was imperative for the detaining authority to take into consideration all the relevant circumstances including the documents which are in favour of the detenu and as also fresh facts, to justify the fresh detention order passed after quashing of the earlier detention order. Reliance is placed by him on a decision of the Supreme Court reported in Har Jas Dev Singh Vs. State of Punjab and others wherein it is held in paragraph-6 as follows, “There may be facts which are not germane or are not relevant to the grounds justifying the detention and when Section 14 refers to fresh facts it does not refer to facts which are not relevant, but to such fresh facts on which the detaining authority is satisfied that an order of detention should be made. If the fresh facts cannot form the basis for a conclusion on which the detention order can be made, then those facts are not fresh facts which will justify the detaining authority to make an order of detention. If the contention of the learned Advocate for the State that the release on bail of the petitioner by the District & Sessions Judge, constitutes fresh facts which would furnish an opportunity to the detenu to act in a manner prejudicial to the security of the State or the maintenance of public order, then the same argument can be availed of for any subsequent detention on the same facts and grounds after the detenu has been released on the expiry of the period for which he was detained or after the earlier order of detention has been revoked, because in both the cases, namely, where the Government has refused to confirm the order of detention as well as on the expiry of the period for which the detenu has been detained and the detention order has expired, the likelihood of the detenu continuing to act in any manner prejudicial to the security of the State etc. can be said to exist and those would furnish a cause for making a fresh detention order. A fresh order of detention can only be made if fresh grounds come into existence, after the expiry of revocation of the earlier order of detention. No such fresh order could be made on the ground which existed prior to the revocation or expiry of the earlier order of detention. In order to prevent such a contingency Parliament has enacted Section 14 of the Act and this Court dealing with such a contingency in Masood Alam's (supra) case already referred to observed;
"It is to effectuate this restriction on the maximum period and to ensure that it is not rendered nugatory or ineffective by resorting to the camouflage of making a fresh order operative soon after the expiry of the period of detention, as also to minimise resort to detention orders that Section 14 restricts the detention of a person on given set of facts to the original order and does not permit a fresh order to be made on the same grounds which were in existence when the original order was made".
We do not think that the release of the detenu on bail by the Sessions Court would constitute fresh facts as would justify the impugned detention order, nor is there any substance in the contention that since in the first order of detention the security of the State and the maintenance of public order were mentioned and in the second order merely the security of the State was mentioned, they can be considered as fresh facts. Both the detention orders are passed under Section 3(1)(a)(ii) which set out the prejudicial acts under which the suspected actions of the detenu will fall and for which the detention is made. It is immaterial whether the detaining authority is satisfied that the grounds on which the detention is being made for preventing the detenu from acting in any manner prejudicial to the security of the State or the maintenance of public order, or for preventing him from acting in a manner prejudicial to the security of the State alone, because in either case, one of the objects is to prevent the detenu from acting in a manner prejudicial to the security of the State. The variation in the enumeration of the prejudicial acts have nothing to do with fresh facts.”
The learned counsel for the petitioner contends that a fresh order could be made only on the ground which existed after the quashing of the earlier order and therefore, the crucial aspect as to earlier detention order having been quashed by this Court was required to be taken into consideration by the detaining authority while passing the detention order.
The learned counsel for the petitioner has also placed reliance upon another decision of the Supreme Court reported in Kamleshkumar Ishwardas Patel Vs. Union of India & others wherein it is held in paragraph-49 as follows, “At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenues have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti-national activities which are very harmful to the nature of the activities of the detenues the cases do not justify interference with the orders of detention made against them. We are not unmindful of the harmful consequences of the activities in which the detenues are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "jealously watched and enforced by the Court". Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by this court while rejecting a similar submission:
“May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of Preventive Detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenues.”
On the facts of the present case and the contentions raised, the said decision is not relevant in that context.
Reliance is also placed by the learned counsel for the petitioner on a decision of the Supreme Court reported in Union of India Vs. Ranu Bhandari and in paragraphs 26 and 31 it is held as follows, “26. We have indicated hereinbefore that the consistent view expressed by this Court in matters relating to preventive detention is that while issuing an order of detention, the Detaining Authority must be provided with all the materials available against the individual concerned, both against him and in his favour, to enable it to reach a just conclusion that the detention of such individual is necessary in the interest of the State and the general public.
31. Of course, in Radhakrishnan Prabhakar's case (2000) 9 SCC 170) it was also made clear that there is no legal requirement that a copy of every document mentioned in the order has to be supplied to the detenu. What is, therefore, imperative is that copies of such documents which had been relied upon by the Detaining Authority for reaching the satisfaction that in the interest of the State and its citizens the preventive detention of the detenu is necessary, have to be supplied to him. Furthermore, if in this case, the detenu's representation and writ petition had been placed before the Detaining Authority, which according to the detenu contained his entire defence to the allegations made against him, the same may have weighed with the Detaining Authority as to the necessity of issuing the order of detention at all.”
Based on the above, the learned counsel for the petitioner submits that the previous detention order which was quashed by this Court in the earlier writ petition, in any case, should have been considered by the detaining authority, as the materials which are both against the detenu and in his favour are required to be considered and the said omission is fatal to the impugned detention order.
On the other hand, learned Advocate General appearing for the State submits the impugned detention order is based upon fresh grounds without relying upon the first ground. He submits that as set out in the grounds of detention, all the crimes, particularly under Sl.Nos. 2 to 6, in which the detenu is involved, relate to subsequent to his release after the earlier detention order was quashed. He submits that the earlier detention order was quashed by this Court in W.P.No. 3917 of 2013 on 26.3.2013 and all the crimes mentioned at Sl.Nos. 2 to 6 relate to the period after 17.11.2013. He draws the attention of the Court to paragraph-8 of the counter-affidavit filed by the second respondent which states that the quashing of the earlier detention order by this Court does not in any way influence the mind of the detaining authority, inasmuch as the detenu after release had again indulged in theft of red sander logs, thus necessitated another detention order against him in order to curb his illegal activities. It is further stated that the ordinary penal laws failed to curb the illegal activities of the detenu and the detenu did not mend himself and based on the five crimes which have occurred after his release from jail, the present detention order was passed.
So far as the grounds raised by the learned counsel for the petitioner with regard to Cr.No. 142 of 2009 is concerned, the learned Advocate General submits that in paragraph-9 of the counter-affidavit of the second respondent that it is replied that the first ground in the order of detention pertains to the year 2009, but the subsequent incidents all relate to 2013 and 2014 and it is stated that based on the said subsequent grounds, subjective satisfaction was arrived at terming the detenu as ‘goonda’ and thereafter the detention order was passed on 15.6.2014. He submits that the first ground relating to Cr.No. 142 of 2009 is only mentioned as an antecedent of the detenu while passing the detention order and it is in the nature of chain of incidents and in support of the said contention, reliance is placed upon a decision of the Supreme Court reported in Collector and District Magistrate, Eluru, A.P. and others Vs. Sangala Kondamma wherein it is held in paragraph-9 as follows, “……….the material produced by the authority proposing the detention should form a chain of incidents last of which will have to be proximate to the date of proposed detention while other acts must be proximate to each other. Thus, if the facts placed before the detaining authority are proximate to each other and the last of the fact mentioned in proximate to the order of detention then the early incidents can not be treated as stale and detention order cannot be set aside.
................................................................In our opinion, the court should have considered the proximity of the incidents between themselves which indicates the possibility of the proposed detenue continuing to indulge in the illegal activities which requires his preventive detention.”
The learned Advocate General placed strong reliance upon the aforesaid decision to contend that while the first incident relates to theft of red sandal wood, the same is relevant for considering other five incidents which occurred between 2013 and 2014 and as such the first contention raised by the learned counsel for the petitioner cannot be accepted that a stale ground is relied upon while five incidents were registered against the detenu after his release on quashing of the earlier detention order.
So far as other grounds are concerned, strong reliance is placed upon the decision of a co-ordinate Bench of this Court in W.P.No. 22820 of 2014 and batch, dated 13.10.2014 wherein similar contentions with respect to the detention orders were considered including the decisions cited by the learned counsel for the petitioner in this writ petition In the aforesaid decision, the Court noticed that the detenu was released after his criminal appeal was allowed and he was set free and thereafter it was found that he was involved in as many as five criminal cases which were taken into consideration by the detaining authority and they were recent cases registered against the detenu after his release. Then the Court concluded that, “The narration of the two previous instances was only intended to convey the unabated tendency of the detenu to take to crime as an avocation. The three instances which occurred in the post release period are closely followed one after the other and they bear proximateness to the order of detention.”
Accordingly the Court upheld the detention order on finding that that ordinary course of law is inadequate to deal with the offending activities alleged against the detenu and hence the extraordinary provisions of preventive detention were invoked against the detenu and dismissed the writ petition. It was mentioned across the bar that an appeal against the aforesaid order was preferred and there is no stay against the said order.
In the present case also, as noticed from the above, though Cr.No. 142 of 2009 is referred to as first incident, that only appears as one of the incidents in the chain of five subsequent incidents in which the detenu was involved after his release was ordered on 26.3.2013 and the said five incidents are clearly proximate to the impugned order of detention. I am, therefore, unable to accept the contention of the learned counsel for the petitioner that a stale ground is relied upon by the detaining authority in support of the impugned order of detention nor I am able to accept his contention that the detention order otherwise suffers from violation of Section 14 (2) of the A.P. Act 1 /86 . In my view, the detaining authority has rightly taken into consideration the five subsequent incidents which are listed at Sl.Nos. 2 to 6 showing various crimes in which the detenu is alleged to have been involved after his release and they formed the basis of detention order.
For the reasons given hereinabove, the writ petition fails and it is accordingly dismissed. Miscellaneous applications, if any, shall stand dismissed. No order as to costs.
VILAS V. AFZULPURKAR, J Dt. 13.11.2014 KR Note:-
Issue C.C. in three days.
/BO/ prv