Salari Patteda Subramanyam @ Nagari Subramanyam v. The Chief Secretary to Govt., General Administration (Law & Order.II) Department, Secretariat, Hyderabad & Ors.

18-08-2010 Between: Salari Patteda Subramanyam @ Nagari Subramanyam ..Petitioner

1. The Chief Secretary to Govt., General Administration (Law & Order.II) Department, Secretariat, Hyderabad and others ..Respondents The Court made the following order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY THE HONOURABLE SRI JUSTICE K.C.BHANU W.P.No.12166 of 2010 Oral Order : (Per Honourable Sri Justice A.Gopal Reddy )

By means of filing this writ petition under Article 226 of the Constitution of India, the petitioner seeks a Mandamus to declare the proceedings District Collector, Chittoor R.O.C.No.C2/13772/09, dated 25-01-2009, ordering detention of the petitioner under Section 3 (2) r/w Section 2(g) 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 as “Act 1/1986”) and consequential order of the 1st respondent in G.O.Rt.No.540 General Administration (Law & Order.II) Department, dated 04-02-2010, according approval of the order of detention, as illegal, arbitrary and violative of fundamental rights guaranteed under Articles 14, 21 and 22(5) of the Constitution of India.

The detention order discloses that the Detaining Authority— 2nd respondent satisfied that the petitioner is indulging in series of forest offences by entering into Government Reserve Forest without proper authorisation, severing standing red sanders trees from the earth, dressing the same in secret hideouts and trying to smuggle the highly valuable red sanders heart wood to secret destinations, causing wilful destruction of public property, besides tremendous loss to national wealth and depletion of green cover resulting in adverse ecological balance.

Various cases registered against the petitioner as enumerated in the detention order is as follows:

1. In Offence Report No.20/2005, dated

05-06-2005 of Sri Venkateswara National Park, Chamala range, the detenu was charged under penal sections of A.P. Forest Act, 1967 and Section 379 IPC.

2. In Offence Report No.84/2005-2006, dated 30-08-2005 of Forest Range Officer, Flying Squad Division, Tirupati, the detenu was charged for the offence punishable under Sections 20 (1) (c) (ii), (iii), (iv), (vi) and (x) and 29 (4) of A.P. Forest Act,

3. In Offence Report No.26/2005-2006, dated 17-11-2005 of Venkateswara National Park, Tirupati range, Tirupati, the detenu was charged for the offence punishable under Sections 20 (1) (c) (ii), (iii), (iv), (vi) and (x) and 29 (4) of A.P. Forest Act,

In Cr.No.61/2007 dated 29-05-2007 of Circle Inspector of Police, Nagari Circle, Chittoor District, the detenu was charged for the offence punishable under Sections 20 (1) (c) (ii), (iii), (iv), (vi) and (x) and 29 (4) of A.P. Forest Act, 1967.

In Offence Report No.77/PTR/2007-2008, dated 28-10-2007 of Puttur Range, Chittoor (East) Wildlife Division, the detenu was charged for the offence punishable under Sections 20 (1) (c) (ii), (iii), (iv), (vi) and (x) and 29 (4) of A.P. Forest Act,

In Cr.No.173/2009, dated 20-12- 2009 of Sub-Inspector of Police, Nagari, Chittoor District, the detenu was charged for the offence punishable under Sections 41 and 102 Cr.P.C.; Section 56 of A.P. Forest Act, 1967 and Sections 34, 107, 120B, 141, 143, 149 and 379 IPC.

4. The Government in G.O.Rt.No.540 General Administration (Law & Order.II) Department, dated 04-02-2010, accorded approval of the detention order. Questioning the same the present writ petition is filed contending that neither the District Collector nor the Government applied their mind before passing the impugned order. All the cases, referred in the detention order, are in trial stage. The petitioner was not convicted in any case by the competent court for the offences alleged; therefore, conclusion of the District Collector is erroneous. No opportunity was given to the petitioner before passing the detention order by the Detaining Authority or the Government before approves the same. All the cases pertaining to the years 2005 and 2007 except one case at Sl.No.6. Except the report of the Divisional Forest Officer (DFO), there is no other material placed before the Detaining Authority to come to such conclusion that the petitioner should be detained under the provisions of Act 1/1986 and the same is liable to be quashed.

5. The 2nd respondent filed a detailed counter raising preliminary objection about the maintainability of the writ petition on the ground that the detention order has not been executed. The petitioner is evading execution of the detention order and he is absconding. The Detaining Authority—2nd respondent passed the detention order, exercising powers under Section 3(2) r/w 2(g) of the Act 1/1986, having satisfied that the petitioner is indulging in forest offences as referred by the DFO. On the date of passing the detention order, the detenu is absconding. The prosecution of acquittal or discharge is not a bar for passing the order of detention. The detention order is passed to prevent the petitioner from indulging into such offences taking note of his past conduct. The order of the Detaining Authority has to be approved by the Government within 12 days after the meeting of the Advisory Board, basing on the recommendations made by it, the Government would issue confirmation orders fixing the period of detention. Therefore, it cannot be said that the order of detention is illegal and not issued in accordance with the provisions of the Act. The petitioner has provided ample opportunity to make his representation to the Advisory Board and also to the Government before passing the detention order and only on petitioner avails that opportunity, final order approving the detention was passed. Therefore, the present writ petition is not maintainable.

6. Sri N.Ramachander Rao, learned counsel for the petitioner contends that the petitioner is arrested in four cases; that the last offence mentioned at Sl.No.6 is nothing to do with the smuggling of red sanders and the offence is only under Section 41 and 102 Cr.P.C. and Section 56 of A.P. Forest Act r/w 34 IPC and the other five offences are of the years 2005 and 2007. Since no offence is made out within two years prior to passing the impugned order, detention order is total non- application of mind. When all the cases are pending trial, petitioner cannot be termed as habitual offender, since no charge has been proved. By placing reliance on the judgment of the Supreme Court in ADDITIONAL SECRETARY TO THE GOVERNEMNT OF INDIA v. ALKA SUBHASH GADIA[1], the learned counsel contends that the writ petition under Article 226 of the Constitution at the pre-execution stage can be maintainable, as the case falls under categories 3 and 4 enumerated in the said case.

On the other hand, Smt. Mohana Reddy, Special Government Pleader representing the learned Advocate General contends that writ petition, which was filed by the petitioner before execution of the detention order, cannot be entertained unless the petitioner surrenders in the light of detention order passed by the Detaining Authority. To buttress the said submission she placed reliance on the following judgments.

1. UNION OF INDIA v. PARASMAL RAMPURIA[2]

2. SYED TAHER BAWAMIYA v. JOINT SECRETARY[3]

3. HARE RAM PANDEY v. STATE OF BIHAR[4] She further contends that when the petitioner involved in various forest offences particularly, cutting and smuggling of red sanders from the Reserve Forest Area, which is the national property, and the ordinary laws under the Forest Act, 1967 could not prevent the petitioner in commission of such offence, the Detaining Authority after satisfying itself passed the detention order, detaining the petitioner, which needs no interference.

It is not in dispute that various crimes were registered against the petitioner under Sections 20(1) (ii), (iii), (iv), (vi) and (x) and 29 (4) of A.P. Forest Act, 1967 apart from Section 379 IPC, theft of National Property. In Cr.No.173 of 2009, dated 20-12-2009, petitioner was charged for the offence under Sections 41 and 102 Cr.P.C., Sections 20 and 56 of Forest Act, 1967 and Sections 34, 107, 120B, 141, 143, 149 and 379 IPC.

8. Section 20 of the A.P.Forest Act, 1967 specifies penalties for trespass or damage in reserved forest and prohibits certain acts in such forests. Section 26 provides power to issue notification reserving trees etc. by the Government. Section 56 gives power to prevent commission of offence by every Forest Officer and Police Officer and take necessary steps for the purpose of preventing the commission of any forest offence. In exercise of the powers conferred under Section 29 r/w 68(1) of A.P. Forest Act, 1967, Rules were made to regulate possession of red-sander wood known as “Andhra Pradesh Red-Sanders Wood Possession Rules, 1989”. Further, to regulate the transit of sandalwood and red-sanders wood in the State, Rules were made known as “Andhra Pradesh Sandalwood and Red-Sanders Wood Transit Rules, 1969”. Rule 9 of the Andhra Pradesh Sandalwood and Red-Sanders Wood Transit Rules, 1969 prescribes exemption of small quantities of sandalwood or red-sanders wood carried by a bona fide traveller.

In all the cases, red-sanders woods have been seized. In Offence Report No.20/2005, charge sheet has been filed and the case is under trial. In Cr.No.61/2007 dated 29-05-2007 the case is pending trial on laying charge sheet. The other cases are under investigation and charge sheets are yet to be filed.

The Supreme Court in ALKA SUBHASH GADIA’s case (1 supra) held that equitable jurisdiction under Article 226, which is discretionary in nature, would not be exercised in a case where the proposed detenu successfully evades the service of the order and the courts have the necessary power in appropriate cases 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 (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 learned counsel for the petitioner contends that the present case falls under categories 3 and 4, enumerated above, and all the cases are of the year 2005 and 2007, whereas Cr.No.173/2009 is only proximate to the detention order.

The Supreme Court in UNION OF INDIA v. PARASMAL RAMPURIA’s (2 supra) case held when the detenu files the writ petition without surrendering, the proper order which was required to be passed was to call upon the detenu first to surrender pursuant to the detention order and then to have all his grievances examined on merits after he had an opportunity to study the grounds of detention and to make his representation against the said grounds as required by Article 22(5) of the Constitution and accordingly set aside the interim stay of detention order granted by the Division Bench of the High Court.

The Supreme Court in HARE RAM PANDEY v. STATE OF BIHAR (4 supra) after summarizing the law laid down on pre-detention stage held that the present case does not fall under any of the exceptions laid down in ALKA SUBHASH GADIA’s case (1 supra) and dismissed the appeal filed by the detenu who was unsuccessful before the High Court in challenging the detention order.

As per the grounds of detention, referred to above, the case on hand do not fall under categories 3 and 4 enumerated in ALKA SUBAHASH GADIA’s case (1 supra), as contended by the learned counsel for the petitioner. In the Offence Report No.77/PTR/2007-208, the statement of the witness was recorded and red sanders measuring 1874 Kgs. were recovered under Mahazarnama dated 15-03-2010 and panchanama prepared discloses while red sanders were unloading from the Quallis Van, a raid was conducted; on seeing the forest officials the accused ran away from the scene of offence and later they were arrested; red sanders worth Rs.45,500/- were recovered and on arresting the accused they were produced on PT warrant. Since the detention order is not passed for wrong purpose and on vague, extraneous and irrelevant grounds, the contention of the petitioner that the writ petition at the pre-execution stage is maintainable cannot be accepted.

The Supreme Court in UNION OF INDIA v. PARASMAL RAMPURIA (2 supra) categorically held unless the detenu receives the detention order and makes any representation objecting the grounds of detention; the writ petition cannot be entertained. The same view has been reiterated in SYED TAHER BAWAMIYA v. JOINT SECRETARY and HARE RAM PANDEY v. STATE OF BIHAR (3 and 4 supra).

Having regard to the dicta laid down by the Supreme Court i n ALKA SUBHAS GADIA’s case (1 supra), the present case do not fall under any of the categories enumerated therein to issue Rule at the pre-execution stage.

The writ petition is accordingly dismissed. However, the petitioner is permitted to make his representation to the detention order within two weeks from the date of receipt of such order. It is needless to say that such representation will be placed before the Advisory Board and taking into consideration the opinion of the Board, the Government will pass necessary orders under sub-section (1) of Section 12 r/w Section 13 of Act 1/1986. ________________ A.GOPAL REDDY, J. ___________ K.C.BHANU,J. 18-08-2010 Murthy