WP/22222/2004 of M.Somasekhar Vs The District Collector and Magistrate on 30 December 2004

1. This writ petition is filed by the nephew of the detenu BoyaMaraganakunta Gangulappa seeking to issue a writ of Habeas Corpusdirecting the respondents to cause production of the detenu before thiscourt and to release him forthwith after declaring his detention as illegaland void.

2. On 18-9-2004 the Collector and District Magistrate, Anantapur,who is the first respondent herein, passed an order of detention underSection 3 (2) of the Andhra Pradesh Prevention of Dangerous Activities ofBootleggers, Dacoits, Drug offenders, Goondas, Immoral Traffic offendersand Land Grabbers Act, 1986 (Act 1 of 1986) (hereinafter referred to as‘the Act’ for the sake of brevity) on satisfying that the detenu is habituatedto commit dangerous offences like ‘goonda’ activities in violation of lawsas defined under Section 2 (g) of the Act and it is necessary to make anorder invoking powers under Section 3 (2) of the Act directing the detenuto be detained in Central Prison, Chenchalguda, Hyderabad to prevent himfrom acting in any manner prejudicial to the maintenance of public order.Accordingly, the detenu was kept in detention w.e.f. 18-9-2004. The firstrespondent passed the order of detention on the basis of seven grounds.The learned Senior Advocate, Sri C. Padmanabha Reddy, contended that the first respondent passed the detention order on vague, irrelevant andnon-existing grounds and in violation of the provisions of the Constitution,therefore, the order of detention is liable to be set aside. The learnedcounsel challenged the detention order on four grounds viz., 1) incidents 1and 2 referred occurred in the year 1992 are not proximate and they areremote; 2) incidents 3 and 4 are of the year 2001. They are also staleincidents and cannot be said to be proximate to the date of the detentionorder passed in September 2004; 3) incident No.5 is also a stale incidentas it occurred in November 2002, as such it cannot be said to beproximate for passing the order of detention; and 4) under incident No.7the detenu was released on bail. He submitted that the facts regarding thestage of the cases covered by incident Nos.1 to 5 were not placed beforethe detaining authority before passing the detention order. The learnedsenior counsel further submitted that even if one ground is vague,irrelevant or not existing, the entire detention order has to go, therefore,requested to pass appropriate orders setting aside the detention order andto release the detenu forthwith.

3. The learned Advocate General, on the other hand, submitted thatthe detenu is habituated to commit series of offences and the instancesmentioned in the grounds of detention clearly indicate that the detenu is a“goonda” and the detaining authority after taking into considering theinstances mentioned in the grounds of detention arrived at a conclusionthat this is a fit case for ordering detention of the detenu under the Act.The learned Advocate General further submitted that since the detenu is a“goonda”, it does not matter even if two or three remote and staleincidents are included in the grounds. They will not affect the othergrounds, therefore, the order passed by the first respondent is sustainableunder law.

4. Before adverting to the merits of the case, we wish to refer to therelevant provisions of the Act. Section 2 (g) of the Act defines “goonda”and it reads as follows:

“goonda” means a person, who either by himself or as a member of or leader of agang, habitually commits, or attempts to commit or abets the commission ofoffences punishable under Chapter XVI or Chapter XVII or Chapter XXII of theIndian Penal Code.

5. Since the allegation is that the detenu was a “goonda”, it has to beseen whether he can be brought within the definition of ‘goonda’.

6. Section 3 of the Act empowers the Government to make ordersdetaining certain persons and it reads as follows:

3. Power to make orders detaining certain persons:

1. The Government may, if satisfied with respect to any bootlegger, dacoit,drug offender, goonda, immoral traffic offender or land grabber that witha view to preventing him from acting in any manner prejudicial to themaintenance of public order, it is necessary so to do, make an orderdirecting that such person be detained.drug offender, goonda, immoral traffic offender or land grabber that witha view to preventing him from acting in any manner prejudicial to themaintenance of public order, it is necessary so to do, make an orderdirecting that such person be detained.

2. If, having regard to the circumstances prevailing or likely to prevail in anyarea within the local limits of the jurisdiction of a District Magistrate or aCommissioner of Police, the Government are satisfied that it isnecessary so to do, they may, by order in writing, direct that duringsuch period as may be specified in the order, such District Magistrate orCommissioner of Police may also, if satisfied as provided in sub-section (1) exercise the powers conferred by the said sub-section.area within the local limits of the jurisdiction of a District Magistrate or aCommissioner of Police, the Government are satisfied that it isnecessary so to do, they may, by order in writing, direct that duringsuch period as may be specified in the order, such District Magistrate orCommissioner of Police may also, if satisfied as provided in sub-section (1) exercise the powers conferred by the said sub-section.

Provided that the period specified in the order made by the Government under thissub-section shall not in the first instance, exceed three months, but the Governmentmay, if satisfied as aforesaid that it is necessary so to do, amend such order toextend such period, from time to time by, any period not exceeding three months atany one time.

3.

When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the Government togetherwith the grounds on which the order has been made and such otherparticulars as in his opinion, have a bearing on the matter, and no suchorder shall remain in force for more than twelve days after the makingthereof, unless, in the meantime, it has been approved by theGovernment.section (2), he shall forthwith report the fact to the Government togetherwith the grounds on which the order has been made and such otherparticulars as in his opinion, have a bearing on the matter, and no suchorder shall remain in force for more than twelve days after the makingthereof, unless, in the meantime, it has been approved by theGovernment.

7. I n Kamalakar Prasad v. State of M.P. the detaining authoritypassed a detention order wherein some of the grounds were found to betoo remote and not proximate to the order of detention. The SupremeCourt while holding that such detention order is not sustainable observed as follows:

12. The first two incidents which are of 1978 and 1980 are mentioned as grounds ofdetention in the order dated 6-5-1983. There can be no doubt that these groundsespecially ground No. 1 relating to an incident of 1978 are too remote and not proximate to the order of detention. It is not open to the Detaining Authority to pick upan old and stale incident and hold it as the basis of an order of detention underSection 3 (2) of the Act. Nor it is open to the Detaining Authority to contend that ithas been mentioned only to show that the detenu has a tendency to createproblems resulting in disturbance to public order, for as a matter of fact it has beenmentioned as a ground of detention. Now there is no provision in the NationalSecurity Act, 1980 similar to Section 5-A of the Conservation of Foreign Exchangeand prevention of Smuggling Activities Act, 1974 which says that where a personhas been detained in pursuance of an order of detention under sub-section (1) ofSec. 3 which has been made on two or more grounds, such order of detention shallbe deemed to have been made separately on each of such grounds and accordingly(a) such order shall not be deemed to be invalid or inoperative merely because oneor some of the grounds is or are vague, non-existent, non-relevant, not connected ornot proximately connected with such persons or invalid for any other reason and it isnot therefore possible to hold that the Government or officer making such orderwould have been satisfied as provided in sub-section (1) of S. 3 with reference to theremaining ground or grounds and made the order of detention and (b) theGovernment or officer making the order of detention shall be deemed to have madethe order of detention under the said sub-section (1) after being satisfied as providedin that sub-section with reference to the remaining ground or grounds. Therefore inthe present case it cannot be postulated what view would have been taken by theDetaining Authority about the need to detain the petitioner under Section 3(2) of theAct if he had not taken into account the stale and not proximate grounds 1 and 2 intoconsideration in arriving at the subjective satisfaction. We are, therefore, of theopinion that the petitioner's detention is unsustainable in law.

8. Following the above decision in Kamalakar Prasad (1 supra), aDivision Bench (presided by Bilal Nazki, J) delivered a judgment inM.Ashok Goud v. Collector and Dist. Magistrate, Nizamabad. In thecase covered by the above judgment, the order of detention was passedin September 2001. Out of four grounds on which the detention was made,grounds 1 and 2 relate to crimes of October 1998 and January 1999. TheDivision Bench therefore held as follows:

6. In view of the position of law laid down by the Supreme Court and having foundthat two of the grounds are too remote, it cannot be assumed or postulated whatview could have been taken by the District Magistrate had he not considered thesetwo grounds before ordering the detention. The detention cannot be upheld.

9. From the above pronouncements of the Supreme Court and thisCourt, it is clear that if any of the grounds mentioned in the order ofdetention are not proximate, vague, irrelevant, remote or stale, then suchdetention order cannot sustain.

10. The first respondent passed the detention order basing on thefollowing incidents:

1. Incident No.1 relates to Crime No.39 of 1992 of GorantlaP.S registered for the offence committed on of 5/6-5-1992.P.S registered for the offence committed on of 5/6-5-1992.

2. Incident No.2 relates to Crime No.36 of 1992 registeredunder Section 397 IPC of Bukkapatnam P.S. for theoffence committed on 3/4-6-1992.under Section 397 IPC of Bukkapatnam P.S. for theoffence committed on 3/4-6-1992.

3. Incident No.3 relates to Crime No.250 of 2001 registeredunder Section 379 IPC of Bagepalli P.S. alleging thatthe offence was committed on 17-12-2001.under Section 379 IPC of Bagepalli P.S. alleging thatthe offence was committed on 17-12-2001.

4. Incident No.4 relates to Crime No.6 of 2002 registeredunder Sections 379 and 411 IPC of Chilamathur P.S. on26-12-2001.under Sections 379 and 411 IPC of Chilamathur P.S. on26-12-2001.

5. Incident No.5 relates to Crime No.170 of 2002 registeredunder Section 379 IPC of Vijayapuri P.S., KarnatakaState for the offence committed on 13-11-2002under Section 379 IPC of Vijayapuri P.S., KarnatakaState for the offence committed on 13-11-2002

6. Incident No.6 relates to Crime No.92 of 2003 registered forthe offenes committed on 13-11-2003 under Sections302 and 201 read with 34 IPC of Gorantla P.S.the offenes committed on 13-11-2003 under Sections302 and 201 read with 34 IPC of Gorantla P.S.

7. Incident No.7 relates to Crime No.87 of 2004 registered forthe offence committed under Sections 457 and 380 IPCof Gorantla P.S. on 1/2-8-2004.the offence committed under Sections 457 and 380 IPCof Gorantla P.S. on 1/2-8-2004.

11. The learned senior counsel appearing on behalf of the petitionerargued that since all the grounds were taken into consideration by thedetaining authority, the first five grounds being stale and ground No.7irrelevant, it will not be appropriate for this court to come to a conclusion

12.

13. as to what weighed with the detaining authority to satisfy that the detenuis liable to be detained under the Act.

But there is a latest development in the Law through the latestpronouncement of the Supreme Court. In Collector and DistrictMagistrate, W.G. District, Eluru, Andhra Pradesh and others v.Sangala Kondamma, which was delivered on 9-12-2004 in Criminal Appeal No.1451 of 2004 arising out of S.L.P.(Cri)No.5341 of 2003, the Supreme Court while dealing with the provisions ofAct 1 of 1986 held that if the incidents are proximate to each other, thefact that initial few incidents are not proximate to the order of detentionwould not make the order of detention bad. The Supreme Court furtherheld as follows:

The detention order being one based on subjective satisfaction of thedetaining authority, it will not be possible for a Court to find out how far the staleincident influenced the mind of the detaining authority, hence the consideration ofsuch a stale incident along with some other proximate incidents certainly will vitiatethe subjective satisfaction of the detaining authority. From the preamble, statementsand objects of the Act it is noticed that it aims to prevent a person from indulging incertain illegal activities enumerated therein by his preventive detention. For thispurpose, the detaining authority must be satisfied that the proposed detenu is likelyto indulge in such illegal activities in future also. If the facts placed before thedetaining authority are proximate to each other, and the last of the fact mentioned inproximate to the order of detention, then the early incidents cannot be treated asstale and the detention order cannot be set aside.

In the case covered by the above decision, the detenu was involved in fiveincidents of “bootlegging” from 10-1-2001 to 25-10-2002 which are reasonably proximate to each other and the last of theincidents being proximate to the order of detention. The High Court was not justifiedin treating the two incidents of 17-1-2000 and 10-1-2000 as stale by taking them in isolation. The five incidents recorded in theorder of detention being proximate enough to each other shows the continuity of theacts of the detenu. In such a fact situation, the High Court erred in coming to theconclusion that two of the five grounds being not proximate to the order of detention,the detention order was passed on stale grounds.

The Supreme Court further observed that while it can be statedthat the incidents of 17-1-2000 and 10-1-2001 could not by themselves

14.

15. have been sufficient grounds to detain the detenu, but would certainlybecome a relevant material along with other three grounds dated 3-2-2002, 6-10-2002 and 25-10-2002 to come to the conclusion that there is aneed for detaining the detenu to prevent him from indulging in similaractivities in future.

The above judgment of the Supreme Court is giving a furtherdirection that if the incidents are proximate to each other and the lastbeing proximate to the order of detention, the early incidents cannot betreated as stale and detention order cannot be set aside.

In the case on hand, the detaining authority relied on sevenincidents. Incident Nos.1 and 2 are of the year 1992. Incident Nos.3 and 4are of the year 2001, incident No.5 of 2002. Incident No.6 of 2003 andincident No.7 is of the year 2004. Though incident No.7 is proximate to thedate of the order of detention, and incidents 3 to 7 are proximate to eachother, the incidents 1 and 2 are not proximate to incident No.3. The latestlaw is that if one of the incidents mentioned in the grounds of detention isnot proximate to the dates of other incidents or the detention order, theorder of detention cannot sustain. The order of detention passed by thefirst respondent indicates that all the grounds were taken intoconsideration at the time of satisfying that there are sufficient grounds forordering detention. Had the incidents 1 and 2 not been incorporated in thegrounds of detention, the detaining authority would have arrived at adifferent conclusion. But, in view of the inclusion of incidents 1 and 2 inthe grounds of detention, the detaining authority came to a conclusion thatthis is a fit case for detention. We therefore hold that the order ofdetention is not sustainable in the eye of law. The writ petition isaccordingly allowed. The order of detention dated 18-9-2004 is quashed.The concerned authorities are directed to release the detenu forthwith ifhe is not required in any other crime.

____________

(BILAL NAZKI, J)

_______________________

(Dr.G. YETHIRAJULU, J)

30[th] December 2004.

Note:

L.R. copy be marked.

Svs

To

1 The District Collector and Magistrate Anantapur.

2 The Government of Andhra Pradesh represented by its Chief Secretary, Secretariat, Hyderabad.

3 The Superintendent Central Prison, Cherlapally, R.R.District.

4. 2 CCs to the Advocate General, High Court Buildings, Hyderabad.