S. Prasad Reddy v. The Collector and District Magistrate, Anantapur

(per G. Bikshapathy J)

Common questions of law are raised in these Writ Petitions and hence they are being disposed of by a common judgment, however, keeping in view the incidents in each individual case.

The Collector and the District Magistrate, Anantapur by virtue of the powers vested in him under Section 3 of A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act (1 of 1986) (for brief the ‘Act’), passed Orders of detention. Consequently, writs of habeas corpus came to be filed by the petitioners on behalf of detenus seeking production and release of the detenus after holding the Order of detention as illegal and invalid.

The learned Senior Counsel appearing for the petitioners and the learned Advocate General have elaborately and minutously argued most of the general issues arising out of preventive detention Orders. Therefore, it became inevitable for us to deal with each and every contention in extenso.

The learned Senior Counsel appearing for the petitioners Mr. C. Padmanabha Reddy advanced the following common submissions in the Writ Petitions:

The grounds referred to in the detention Order are stale and not proximate to the Order of detention. There is also no rationale nexus to the conclusions drawn in the detention Order. The detention orders were issued on vague, irrelevant and extraneous grounds. The acts alleged to have been committed by the detenu would not fall within the wider spectrum of “Public Order”, but they are merely “Law and Order” for which preventive detention measures cannot be invoked. Detenu did not fit in the definition of “Goonda” as defined under Section 2(g) of the Act, since the offence alleged to have been committed by the detenu would not fall within the Chapter XVI, XVII and XXII of the I.P.C. The grounds of detention were issued on the ground of political rivalry, unless it falls within the mischief of public Order, the detention based on political rivalry and consequential illegal acts cannot be taken into consideration. He refers to number of decisions, which would be discussed infra.

5. Per contra, the learned Advocate General tracing the genesis of the Act submits that the very intention of the Act is to prevent the person from acting in any manner prejudicial to the maintenance of public order. In such a situation, the Order of detention cannot be attacked on the premise of stale and irrelevant grounds in the Order of detention. These grounds are only taken into consideration for assessing the propensity of the detenu and the mere reference would not invalidate the Order of detention. Making submission on the expression “Public Order” and “Law and Order”, the learned Advocate General, however, submits that even though there is marked difference between these two expressions, yet, they have to be interpreted keeping in view the nature of activities of the detenu and its affect on the community at large. He submits that the issue relating to “Law and Order” at times takes the colour of “Public Order” also and therefore, each case has to be decided on its own merits. Submitting the contentions with regard to the definition of the expression “Goonda”, the learned counsel would submit that even though the offences punishable under Chapter XVI, XVII and XXII of IPC are sine qua non for bringing a person within the definition of “Goonda”, but reference to any ancillary act, being an offence under the other provisions of Indian Penal Code or the other enactment is not a bar and mere reference would not vitiate the detention Order. The definition does not totally prohibit from taking into consideration the illegal activities of the detenu, which fall within the category of offences under other provisions of Indian Penal Code or other enactments. Reacting to the ground of political rivalry, the learned Advocate General submits that large-scale horror and looting and damage to the property of the citizens are being resorted to by the political rivalries and when once it is found that their act falls within the parameters of the public Order, it is immaterial whether act was done on account of the political rivalry or otherwise, it is always open for the detaining authority to invoke the provisions of the Act to maintain the peace and harmony in the area. He also refers to the decisions of the Supreme Court, which are discussed hereinafter.

After having heard the learned Senior Counsel for the petitioners and also the learned Advocate General at length, we are inclined to deal with each contention individually and thereafter apply the principles to the facts of each case with regard to the sustainability of the Orders of detention.

Before dwelling into the respective contentions, we feel it appropriate to refer to the provisions of the Act. The Act entered into force with effect from 28.2.1986. It is an Act to provide for preventive detention of Bootleggers, Dacoit, Drug-offender, Goonda, Immoral Traffic Offender or Land-grabber for preventing dangerous activities prejudicial to the maintenance of the public Order. The Preamble of the Act reads thus:

Whereas public order is adversely affected every now and then by the dangerous activities of certain persons, who are known as bootleggers, dacoits, drug offenders goondas, immoral traffic offenders and land grabbers. And whereas having regard to the resources and influence of the persons by whom, the large scale on which, and the manner in which the dangerous activities are being clandestinely organised and carried on in violation of law by them, as bootleggers, dacoits, drug offenders, goondas, immoral traffic offenders or land grabbers in the State of Andhra Pradesh and particularly in its urban areas, it is necessary to have a special law in the State of Andhra Pradesh to provide for preventive detention of these six classes of persons and for matters connected therewith

Six classes of persons were defined in the Act.

sub section shall not in the first instance, exceed three months, but the Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any 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 together with the grounds on which the order has been made and such other particulars as in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the Government.” The expression “acting in any manner prejudicial to the public order” is defined in Section 2(a) of the Act, which reads thus: "Acting in any manner prejudicial to the maintenance of public order" means when a boot legger, a dacoit, a drug offender, a goonda, an immoral traffic offender or a land grabber is engaged or is making preparations for engaging in any of his activities as such, which affect adversely, or are likely to affect adversely, the maintenance of public order. 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, is 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 or widespread danger to life or public health.” Therefore, in order to invoke the provisions of the Act, it is necessary that the person or persons concerned shall not only fall within the six categories referred to above, but also answer to the expression acting in any manner prejudicial to the maintenance of the public order.

Tracing out the necessity for preventive detention and its basic concepts, the Supreme Court in HARADHAN SAHA Vs. STATE OF WEST BENGAL while dealing with the constitutional validity of the Maintenance of Internal Security Act, 1991 observed thus:

The essential concept of preventive detention is that detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove (sic) (on proof of) his quite and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in Section 3 of the Act to prevent.

The prosecution and detention are different.

In THE DISTRICT MAGISTRATE, NOWGONG Vs. SARAT MUDOI, the Supreme Court observed thus:

The basis for an order of preventive detention is the reasonable prognosis of the future behaviour of the person based upon his past conduct. It is open to the detaining authority to take note of the past conduct of a detenu and apprehending repetition of such conduct in future an order of detention can be made with a view to preventing such action.

In UNION OF INDIA Vs. AMRIT LAL MANCHANDA, the Supreme Court observed in para 9 thus: “Before dealing with rival submissions, it would be appropriate to deal with the purpose and intent of preventive detention. Preventive detention is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the concerned law. The action of Executive in detaining a person being only precautionary, normally the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner, the failure to conform to which should lead to detention.

Again in THE COMMISSIONER OF POLICE Vs. SMT. C. ANITA, the Supreme Court reiterated the same principles.

The Supreme Court has also highlighted the area of interference under Article 226 and also 32 of Constitution of India in respect of the preventive detention Orders. One of the leading judgments on the subject is ADDITIONAL SECRETARY TO THE GOVT. OF INDIA AND OTHERS. V. SMT. ALKA SUBHASH GADIA. In para 12 of the said judgment it was observed by the Supreme Court as under: "12. This is not to say that the jurisdiction of the High Court and the Supreme Court under Articles 226 and 32 respectively has no role to play once the detention - punitive or preventive - is shown to have been made under the law so made for the purpose. This is to point out the limitations, which the High Court and the Supreme Court have to observe while excising their respective jurisdiction in such cases. These limitations are normal and well known and are self-imposed as a matter of prudence, propriety, policy and practice and are observed while dealing with cases under all laws.

In SAYED TAHER BAWAMIYA Vs. JOINT SECRETARY TO GOINVERMENT OF INDIA, it was observed by the Supreme Court as follows: "This Court in ADDITIONAL SECRETARY TO THE GOVT. OF INDIA AND OTHERS. V. SMT. ALKA SUBHASH GADIA (1992 Supp.1 S.C.C. 496) was also concerned with a matter where the detention order had not been served, but the High Court had entertained the petition under Article 226 of the Constitution. This Court held that equitable jurisdiction under Article 226 and Article 32 which is discretionary in nature would not be exercised in a case where the proposed detenu successfully evades the service of the order. The Court, however, noted that the Courts have the necessary power in appropriate case to interfere with the detention order at the pre-execution stage but the scope for interference is very limited. It was held that the Courts will interfere at the pre-execution stage with the detention orders only after they are prima facie satisfied : (i) that the impugned order is not passed under the Act 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. As we see it, the present case does not fall under any of the aforesaid five exceptions for the Court to interfere. It was contended that these exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash's case (supra) shows that it is only in these five types of instances that the Court may exercise its discretionary jurisdiction under Article 226 or Article 32 at the pre-execution stage. The appellant had sought to contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for making such an averment for the simple reason that the order of detention and the grounds on which the said order is passed has not been placed on record inasmuch as the order has not yet been executed. The appellant does not have a copy on the same, and therefore, it is not open to the appellant to contend that the non-existent order was passed on vague extraneous or on irrelevant grounds. "

Having stated the necessity, purpose, objectives of the Act vis-à-vis the area of interference by the Supreme Court and High Court under Article 32 and 226 of Constitution of India respectively, let us consider the grounds of attack. 1) Stale Grounds:

A reference is made to decision of the Supreme Court reported in MUSTAKMIYA JABBARMIYA SHAIKH Vs. M.M. MEHTA, COMMISSIONER OF POLICE. The detention Order was issued on 19.8.1994 on the ground that the detenu was indulging in criminal and anti-social activities in the areas of Shahpur, Patwasheri area of Teen Darwaza and Sardar Garden area of Ahmedabad city by keeping firearms, beating and assaulting innocent citizens in public and creating an atmosphere of fear and terror in the said areas. It is also stated that the persons, who made a complaint requested the authorities not to reveal their names and identity for fear of retaliation by the detenu. The petitioner was detained on the ground that he is anti-social element and dangerous person within the meaning of Section 2© of Gujarat Prevention of Anti-Social Activities Act, 1985. The expression “dangerous person” was defined as follows: “Section 2© ‘dangerous person’ means a person, who either by himself or as a member or leader of a gang habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act,

1959.” Five incidents were referred to in the Order of detention and the incident No.1 was on dated: 24.4.1993 and the four other incidents are from April, 1994 to August,

1994. The Supreme Court while referring to the Act, observed that the object of the Act is to prevent the crime and protect the Society from the anti-social elements and dangerous characters. The Act is intended to deal with habitual criminal dangerous and desperate outlaws who are so hardened and incorrigible that the ordinary provisions of the penal laws and the mortal fear of punishment for crime are not sufficient deterrents for them. However, the Supreme Court cautioned that the power under the Act to detain a person should be exercised with restrain and great caution. Referring to the incident that had taken place on 24.4.1993 with reference to other incidents that the incident, which occurred on 24.4.1993 and the detention Order was passed on 19.8.1994 after a lapse of 16 months, the Supreme Court held that this long lapse of time he detention orders looses its significance because the said prejudicial conduct was not approximate in point of time and had no rational connection with the conclusion that the detention was necessary for maintenance of pubic Order and such a stale incident cannot be construed as justifiable ground for passing an Order of detention.

A Full Bench of this High Court in which myself (GBJ) was also a party, was required to answer the following reference in S. JAYAMMA Vs. COLLECTOR & DISTRICT MAGISTRATE, CUDDAPAH, while dealing with the provisions of A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drugs Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers At (1 of 1986): “Can the detaining authority refer past events of the detenu for the purpose of ascertaining the propensity of the detenu of his involvement while passing the detention Order?” The Full Bench referred to the decision of the Supreme Court reported in SMT. SHALINI SONI Vs. UNION OF INDIA, wherein the Supreme Court held thus:

It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.

A reference was also made to the decision of the Supreme Court reported in JAGAN NATH BISWAS Vs.

Therefore, referring to the decisions of the Supreme Court, the Full Bench observed that the relevancy and proximity of time are sine qua non for successfully sustaining the Order of detention. No hard and fast rule can be fixed and each case has to be decided on its own merits. The Supreme Court considered the gap of 16 months, the detention Order as stale ground and set aside the Order of dismissal. CONCLUSIONS:

The proximity in time should be guiding factor to provide a rationale nexus between the incident relied on and the satisfaction arrived at, except when the offences alleged to have been committed by the detenu are so interlinked and continuous and are of such a nature that they affect the community at large continuously in case of supply of essential commodities or jeopardising the security of the State or maintenance of public order. Staleness can neither form a ground by itself nor can be referred to for arriving at a subjective satisfaction. VAGUE, IRRELEVANT AND EXTRANEOUS GROUNDS:

On this aspect of the matter, there are number of decisions of the Supreme Court with reference to similar provisions in Gujarat Prevention of Anti-Social Activities Act, 1985. In PIYUSH KANTILAL MEHTA Vs. COMMISSIONER OF POLICE, the allegations against the detenu were that he, his servants and his associates were indulging in the sale of foreign liquor in certain areas in Ahmedabad city, indulging in use of force and violence and also beating innocent citizens by which an atmosphere of fear was created and thereby causing hindrance to the maintenance of public order. It was also alleged that he was showing dangerous weapons to the citizens and creating an atmosphere of fear while carrying illegal liquor business and that consequently, the people in the respective areas were feeling insecure for their lives and their properties. It was also alleged that when action was taken against him under an ordinary law, he was released on bail and after that also he continued his illegal and antisocial activities. A two Judges Bench of the Supreme Court held that the allegations against the detenu in that case were very general in character without reference to any particular incident or incidents. After referring to PUSHKAR MUKHERJEE Vs. STATE OF WEST BENGAL (1969) 1 S.C.C. 10), the Supreme Court held as follows:

………..It is true some incidents of beating by the petitioner had taken place, as alleged by the witnesses. But, such incidents, in our view, do not have any bearing on the maintenance of public order. The petitioner may be punished for the alleged offences committed by him, but, surely, the acts constituting the offences cannot be said to have affected the even tempo of the life of the community. It may be that the petitioner is a boot legger………….but merely because he is a bootlegger he cannot be preventively detained under the provisions of the Act unless…………..his activities as a boot-legger affect adversely or are likely to affect adversely the maintenance of public order……………

RASHIDMIYA Vs. POLICE COMMISSIONER also arose under the Gujarat Prevention of Anti-Social Activities Act, 1985. After referring to various provisions of that Act, which are similar to the provisions of the Act, the Supreme Court held as follows: “………………A conjoint reading of Section 2(b) and Section 3(4) with the explanation annexed thereto clearly spells out that in order to clamp an Order of detention upon a “bootlegger” under Section 3 of the Act, the detaining authority must not only be satisfied that the person is a bootlegger within the meaning of Section 2(b) but also that the activities of the said bootlegger affect adversely or are likely to affect adversely the maintenance of pubic Order. Reverting to the facts of this case, the vague allegations in the grounds of detention that the detenu is the main member of the gang of Abdul Latif, Abdul Wahab Shaikh indulging in bootlegging activities and that the detenu is taking active part in such dangerous activities, are not sufficient for holding that his activities affected adversely or were likely to affect adversely the maintenance of public Order in compliance with sub-section (4) of Section 3 of the Act that the activities of the detenu have caused harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health as per the explanation to Section 3(4).”

To the same effect is the definition of the Supreme Court in OMPRAKASH Vs. COMMISSIONER OF POLICE, which also arose under that Act. The allegation against the detenu in that case was that he has a bootlegger

was engaged in unlawfully storing and selling the country made and foreign liquor at Dhabawali Chawl, Saraspur, Ahmedabad through himself and his associates and was also causing injuries to innocent persons of that locality by using lethal weapons thereby unleashing a reign of terror in the said area……………………….

The Supreme Court held that the material available on record was not sufficient and adequate for holding that the alleged prejudicial activities of the detenu affected adversely or were likely to affect adversely the maintenance of public order within the meaning of Section 4(3) of that Act.

The two cases in which the Supreme Court refused to interfere and upheld the detention are also relevant because they illustrate the activities which amount to a conduct prejudicial to the maintenance of public Order. The first case is HARPREET KAUR Vs. STATE OF MAHARASHTRA, which arose under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981, which contained provisions similar to those of the At. After referring to the substance of the grounds of detention of the petitioner in that case, a two Judges Bench of the Supreme Court held as follows: “The substance of the grounds on which detention has been ordered is that the detenu is a bootlegger and in furtherance of his activities and to escape from the clutches of law, he even tried to run over, by his speeding vehicle, the police party, which tried to signal him to a stop, exhorting all the time that he would kill anyone who would come in his way.

In DHANANJOY DAS Vs. DISTRICT MAGISTRATE, the detention Order was passed under National Security Act. Two grounds were raised, which are extracted below:

The order of detention was challenged by the appellant on two grounds: (1) that the grounds of detention were vague, and (2) that the facts narrated in the grounds related to law and order situation and not to public order. The High Court repelled both the grounds and dismissed writ petition by its order dated 23rd of February, 1982. The High Court, however, granted a certificate for leave to appeal to this Court.

Among other grounds of detention, the 1st ground reads thus: “3(1). Sri Dhananjoy Das, aged about 50 is the President of Purbanchalia Lok Parishad, Tezpur Unit. He is a contractor by profession. Sri Das has been playing a leading part in the current agitation on foreigners issue in collaboration with other active agitators who are leaders of AASU, Karmachari Parishad and Gana Sangram Parishad by organising bundhs, non-co- operation programme inciting people to violate law from time to time.

As observed earlier it is on account of the second right that it becomes necessary to give facts on which the conclusion is based. By now it is well settled that the grounds of detention constitute the facts also on which the conclusion has been drawn.

The learned counsel for the appellant cited various cases by way of example in which in. somewhat similar situation the grounds of detention were branded as vague. In Chaju Ram v. State of J. and K., (1970) 1 SCC 536: (AIR 1971 SC 263) the grounds charged the detenu with having conspired with some leaders of Democratic Conference and having incited landless people of R. S. Pura Tehsil to forcibly occupy the land comprised in Nandpur Mechanised Farm and to have persuaded them to resist violently any attempt to evict them. No details of the leaders of the conference or of the persons incited or the dates on which he conspired or incited the squatters or the time when such conference took place were mentioned. In the facts and circumstances of the case it was held by this Court (para 10): "It would be impossible for anybody to make a representation against such grounds. These grounds, on the authorities of this Court, too numerous to be cited here, must be held to be vague. "

The next case cited was that of Gopal Bauri v. District Magistrate,