HON'BLE SRI JUSTICE K.C.BHANU AND HON'BLE SRI JUSTICE CHALLA KODANDA RAM WRIT PETITION No.11371 OF2013dated:10-07-2013 Chirrboina Krishna... Petitioner 1. Government of Andhra Pradesh, rep. by its Chief Secretary, Hyderabad 2. Commissioner of Police, Hyderabad City, Hyderabad....RESPONDENTS Counsel for the petitioner:Sri P. Gangaiah Naidu and Sri N. Bharat Babu. Counsel for respondents :Advocate General. : ?.Cases referred:
1. (1988) 1 SCC287 1988 SCC (Cri) 107 (2) 2 (1990) 2 Supreme Court Cases 1 3 1992 SCC Supl.(1) 496 4 2012(7) SCC5335 1990(1)SCC3286 (1998) 8 SCC402HON'BLE SRI JUSTICE K.C.BHANU AND HON'BLE SRI JUSTICE CHALLA KODANDA RAM WRIT PETITION No.11371 OF2013
ORDER:- (per Hon'ble Sri Justice Challa Kodanda Ram) This Writ Petition is filed by the petitioner under Article 226 of the Constitution of India seeking to issue a writ of Mandamus declaring the order of preventive detention passed by the 2nd respondent vide proceedings S.B.(I).No.26/PD-DG/S-1/2013 dated 22.3.2013 and its approval by the 1st respondent vide its G.O.Rt.No.1509 GAD (Law & Order.II) Department dated 2.4.2013 as illegal, unsustainable and contrary to the statutory provisions of The Andhra Pradesh Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short, ".the Act".) and judgments of this Court and Apex Court and consequently to set aside the same.
2. The brief facts of the case as per the affidavit filed in support of the writ petition are that the petitioner is a resident of Marredpally, Secunderabad and doing real estate business. He is also actively participating in political activities being conducted by the Congress Party. His sister Smt Saritha Yadav is a sitting Corporator of Marredpally Constituency; that he was implicated in false cases by his political rivalries with the help of police and a rowdy sheet was also opened against the petitioner. He states that he is a law abiding citizen and not involved in any criminal cases. There are three criminal cases registered against the petitioner which are as follows: a) Crime No.132 of 2012 under Sections 384, 511, 447, 506 IPC by the Tukaramgate Police Station. b) Crime No.164 of 2012 under Sections 420, 384, 506 IPC of Marredpally Police Station c) Crime No.194 of 2012 under Sections 302, 147, 148, 307, 120(b) read with 149 IPC of Marredpally Police Station At the instance of the Inspector of Police, Marredpally Police Station, the 2nd respondent herein had passed the impugned detention order dated 22.3.2013 under the Act 1 of 1986.
3. The petitioner further alleges that he is not a 'Goonda' as defined in the provisions of the Act and there was no subjective satisfaction arrived by the 2nd respondent to order preventive detention by invoking the provisions of the Act 1 of 1986. The 1st respondent even without applying his mind on the facts of the case, issued a G.O.Rt.No.1509 dated 2.4.2013 approving the impugned detention order. The main grounds assailed in the detention order are as follows: i) The impugned order was passed without application of mind. ii) All the three criminal cases were foisted against the petitioner for the purpose of passing the impugned detention order under the Act. iii) The impugned detention order was passed on vague and untenable grounds, which does not tend to disturbance of public order. iv) The impugned detention order suffers from serious lapse of not specifying the period of detention as specified in Section 3 of the Act. v) Even though bail orders granted by the competent Criminal Courts had placed before the detaining authority, the same were not considered while passing the impugned detention order and as such it is a fatal to the detention proceedings. vi) The impugned detention order was passed in a casual and routine manner violating the provisions of Article 21 of the Constitution of India. vii) The impugned detention order was not passed basing on any sufficient grounds as the alleged offences can be tried and dealt with under the provisions of Indian Penal Code. viii) Passing of the impugned detention order is not a substitute for the ordinary laws and absolve the investigating authorities of their normal functions to investigate crimes which the detenu may be committed. ix) For non consideration of bails granted by the competent criminal courts in respect of the offences cited in the detention order was declared as illegal and consequently set aside the same by the Apex Court in State of U.P vs. Kamal Kishore Saini1 and M. Ahamedkutty vs. Union of India and another2.
4. A detailed counter-affidavit has been filed by the 2nd respondent denying the averments made in the writ petition and stating that the petitioner has been involved in 28 offences since the year 1989 and in last 9 months, he was involved in 3 crimes viz.,:- a) Crime No.132 of 2012 registered for the offences punishable under Sections 384, 511, 447, 506 IPC of Tukaramgate Police Station: On 17.9.2012, petitioner with his associates D. Narendar, N. Anjaiah, Shyam Sunder Reddy and Deepak entered into the premises of Plot No.10-3-160, SD Road, Near Rail Nilayam and obstructed the building construction for extortion of money as ".Goonda Mamools". from the complainant Narayana Rao, Dy. GM of NCL India Limited and threatened the complainant with dire consequences. In this case he was arrested through PT Warrant and released from Jail on bail on 19.2.2013. The case is under investigation. b) Crime No.164 of 2012 registered for the offences punishable under Sections 420, 384, 506 IPC of Tukaramgate Police Station: The complainant Gone Dayakar, S/o. late Atchaiah, R/o. H.No.219, Picket, near Santoshimatha Temple, Secunderabad lodged a complaint stating that he gave an amount of Rs.8.5 lakhs to one Smt Dayamani, W/o. Venugopal on 8.3.2008 as hand loan by taking 5 blank cheques. But she failed to pay the amount back. When he approached the Rowdy sheeter Golla Krishna Yadav @ Golla Kittu for settlement, the petitioner along with his associate Narendar forcibly took 5 blank cheques and extorted Rs.95,000/- from him. They neither settled the issue nor returned the blank cheques. In this case C. Krishna Yadav @ Golla Kittu @ Kittu was arrested and remanded to judicial on 7.11.2012 and released from Jail on bail on 19.2.2013. The case is under investigation. c) Crime No.194 of 2012 registered for the offences punishable under Sections 302, 147, 148, 307, 120(b) IPC r/w 149 IPC of Marredpally Police Station: On 8.11.2012, Madanuri Ramesh, S/o. Narasimha lodged a complaint stating that he received information that his brother M. Sekhar, Auto driver was stabbed on the road of Rajivnagar Society by some persons, upon which he came to the spot and found that his brother is a pool of blood and his mother Smt Narasamma with bleeding injuries crying beside the dead body. Later he asked his mother about the incident, she informed that (1) Narsing, (2) C. Sai Yadav, (3) R. Mallesh, (4) C. Raju Yadav, (5) Eshwar Yadav, (6) Pandu Yadav, (7) Sreenu @ Kotiguda Srinu beat his brother with stocks and knives and also they tried to murder her. Due to previous enmity in the murder case of Byagari Raju, Krishna Yadav @ Golla Kittur promised his brother M. Sekhar an amount of Rs.10 lakhs and one flat, but after the murder of Byagari Raju, Krishna Yadav cheated his brother and did not give the flat nor the amount. Further Golla Kittu forced to sell the flat of his brother to him, but they refused. Due to which Krishna Yadav @ Golla Kittu hatched a plan and murdered his brother M. Sekhar with his associates. On the complaint, a case was registered against Krishna Yadav @ Golla Kittu and he was remanded to judicial custody on 7.11.2012 in Crime No.164 of 2012 of Marredpally P.S. Before sending him to jail, he hatched a plan along with his associates to eliminate Sekhar permannetly. In this case Krishna Yadav @ Golla Kittu was remanded on 23.11.2012 through P.T warrant and released from Jail on bail on 19.2.2013. The case is under investigation. It is further stated in the counter that after considering the material placed before him, the 2nd respondent had passed the impugned detention order on 22.3.2013 and the Government has approved the same in the impugned G.O. Since from the date of passing of the impugned detention order, the petitioner has been absconding, the impugned detention order could not be served on him. The present writ petition has been filed by the petitioner even without serving the copy of the impugned detention order on him and as such the same is premature and it is liable to be dismissed at the threshold. The impugned detention order has been passed against the petitioner to protect the public order. The allegation of non specifying of the detention period in the detention order does not vitiate the detention order. In view of the provisions of Section 3 of the Act, the impugned detention order is valid for a period of 12 days and thereafter it is for the Government to approve the same, which in fact has been done in this case. Allowing of the petitioner to move freely in the society is not safe in the interest of general public as the illegal activities of the petitioner are being caused disturbance to the public order and hence it is required to pass the impugned detention order to maintain the public peace and tranquility.
5. Sri Gangaiah Naidu, learned Senior Counsel appearing for the petitioner would urge that the Crime No.194 of 2012 which was registered for the offences punishable under Sections 302, 147, 148, 307, 120-B read with 149 IPC by the Marredpally Police Station on 08.11.2012 against the petitioner does not fall under the Chapters 17 or 22 of IPC and as such the same cannot be basis for passing the impugned detention order. Further, in all the three crimes mentioned in the impugned detention order, the competent Criminal Courts had granted bails to the petitioner and the same were not appraised to the detaining authority while passing the impugned detention order. This aspect of not placing the bail orders granted to the petitioner before the detaining authority vitiates the impugned detention order in view of the law laid down by the Apex Court in the judgments reported in Kamal Kishore Saini's case (1 supra) and M. Ahamedkutty's case (2 supra) and in V. Murugesh Vs. The District Collector (W.P.No.28654 of 2012 dated 17.10.2012) and Durgam Subrahmanyam Vs. State of A.P (W.P. No.28281 of 2012 dated 20.12.2012) of this Court.
6. Further, he would urge that in view of the provisions of Section 3 of the Act, it is a mandatory on the part of the detaining authority to specify the period of detention of the petitioner in the impugned detention order itself and failure to do so, totally it vitiates the detention order. He would also submits that the detention order necessarily should contain an allegation to the effect that the detenu cannot be controlled unless he is detained as per the provisions of the Act.
7. Supporting the detention order, Smt Mohana Reddy, learned Special Government Pleader appearing on behalf of the learned Advocate General would submit that at the out set the contention of the learned counsel for the petitioner that the Crime No.194 of 2012 does not fall under the Act is not tenable. The Crime No.194 of 2012 was registered for the offences punishable under Sections 302, 147, 148, 307, 120-B read with 149 IPC by the Marredpally Police Station against the petitioner would squarely fall under the Chapter 17 or Chapter 22 of IPC and the provisions of the Act are applicable. She further submits that the petitioner could not be served with the detention order on account of his becoming scarce and as such the petitioner is not in the knowledge of contents of the detention order, grounds of detention and the material accompanying the detention order. The allegation that the detaining authority was not appraised of the bail orders is denied by contending that the very detention order refers the details of the bail orders. After service of copies on the counsel for the petitioner, the learned Government Pleader had placed on record written arguments along with the set of documents which include detention order, grounds for detention and bail orders etc.
8. At the out set, the contention of the learned counsel for the petitioner with respect to detaining authority not being appraised of the bail orders granted by the competent criminal courts is factually not correct. With respect to each of the crime, the particulars of arrest, release on bail were specifically mentioned in the detention order. In that view of the matter, the contentions of not considering the bail orders by the detaining authority has to be rejected.
9. Likewise, the contention of the learned senior counsel that the Crime No.194 of 2012 is outside the purview of the Act and is misconceived inasmuch as the definition of 'Goonda' as defined in Section 2(g) of the Act takes in its sweep the offences alleged in Crime No.194 of 2012. Section 2 ".(g) ".goonda". means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXVII of the Indian Penal Code.". makes it very clear.
10. With regard to submission of the learned senior counsel that there is no objective consideration of the material before consideration subject to satisfaction to invoke the Provisions of the Act, it would become necessary to refer the incidents mentioned by the detaining authority before the detention order has been passed. The details of which have already been set out in para No.4. (a) The allegations in Crime No.132 of 2012 are to the effect that the petitioner along with his associates have entered into the premises of Plot No.10-3-160, SD Road, Near Rail Nilayam and obstructed the building construction for extortion of money as 'Goonda Mamools' from the complainant Narayana Rao, Dy. General Manager of NCL India Limited and threatened the complainant with dire consequences. The nature of allegation is such that the petitioner is involving himself along with his associates in an organized manner seeking to collect 'Goonda Mamools' or protection money from the builder. If the allegations are to be true, the acts would certainly create panic and fear in the minds of other builders and even it may extend to the individuals who are engaged in the filed of construction activities. The acts of the petitioner as alleged in the petition cannot be said to create panic and fear in the minds of the builders' community. In that view of the matter, prima facie, it cannot be said that the acts complained do not involve an element of disturbance of the public order. Infact this type of case squarely fall within the explanation to the definition in Section 2(a) of the Act. (b) With respect to Crime No.164 of 2012, the allegations would reveal that the petitioner was involved in making the settlements and acting as a collection agent by using intimidation and threats. Inasmuch as making of settlements by use of intimidation and threats being an extra legal activity, the same also would fall under disturbing the public order as more and more people particularly financiers, private financial institutions and money lenders would be encouraged to avail of such extra legal methods for settlement of their affairs which cannot be countenanced or encouraged in a society governed by rule of law. (c ) The incident in Crime No.194 of 2012 is again one involving the allegations of murder and attempt to murder by the petitioner and his associates in connection with a particular property. This case cannot be viewed in isolation as per the detention order. The petitioner is habitually involved in various crimes and has been indulging in several unlawful activities committing as many as 28 offences since 1989. Infact a rowdy sheet was also opened. There were also extornment orders passed against the petitioner. Viewed from all the above incidents together and considering the nature of crimes registered against the petitioner, it cannot be said that there is no prima facie material before the detaining authority and it cannot be said that the detaining authority had not considered objectively before passing the impugned detention order.
11. It would be useful to notice the judgment of the Supreme Court reported in Additional Secretary to the Government of India and others vs. Smt Alka Subhash Gadia and another3 (hereinafter referred to as 'Alka's case) wherein the Apex Court had laid down the grounds of interference in preventive detention cases at pre-execution stage as 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.
12. Further, in the judgment reported in Subhash Popatlal Dave Vs. Union of India (3 Judges Bench)4 while concurring with the conclusion of Alka's case, the Apex Court had further stated that prima facie the conditions mentioned in Alka's case are not restricted to the five examples set out above, and the final opinion with regard to what other grounds would be available are not yet pronounced. As per the information available in the Supreme Court Website is that the matter is reserved for orders in the month of April, 2013 and final orders are yet to be pronounced. It may be noted that even in Subash Popatal Dave case there is a consensus so far as the 5 grounds mentioned above.
13. It is useful to analyze certain provisions of the Act hereunder: As per the Preamble of the Act, the purpose of the Act is to provide for preventive detention of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers for preventing their dangerous activities prejudicial to the maintenance of Public Order. a) Section 2(a) of the Act refers that 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. b) Section 2(d) of the Act refers that ".detention order". means an order made under Section 3. c) Section 2(g) of the Act refers that ".goonda". means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code; d) Section 3 of the Act refers that the power to make orders detaining certain persons:- (1)The Government may, if satisfied with respect to any boot legger, dacoit, drug offender, goonda, immoral traffic offender or land grabber that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. (2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Government are satisfied that it is necessary so to do, they may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner 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 this 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. e) Section 8 of the Act refers that the grounds of order of detention to be disclosed to persons affected by the order:- (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the Government. (2) Nothing in sub section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. f) Section 9 of the Act refers that the Constitution of Advisory Boards:- (1) The Government shall whenever necessary, constitute one or more Advisory Boards for the purposes of this Act. (2) Every such Board shall consist of Chairman and two other members, who are, or have been Judges or are qualified to be appointed as Judges of a High Court. g) Section 10 of the Act refers that the Reference to Advisory Board:- In every case where a detention order has been made under this Act, the Government shall within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by them under Section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in the case where the order has been made by an officer, also the report by such officer under sub section (3) of Section 3. h) Section 12 of the Act refers that action upon report of Advisory Board:- (1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period specified in Section 13 as they think fit. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith. i) Section 13 of the Act refers that maximum period of detention orders:- The maximum period for which any person may be detained, in pursuance of any detention order made under this act which has been confirmed under Section 12 shall be twelve months from the date of detention. j) Section 14 of the Act refers that the Revocation of detention orders:- (1) Without prejudice to the provisions of Section 15 of the Andhra Pradesh General Clauses Act, 1891 a detention order may at any time, be revoked or modified by the Government, notwithstanding that the order has been made by an officer mentioned in sub section (2) of Section 3. (2) 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 or is satisfied that such an order should be made.
14. Section 2(a) read with explanation would make it clear if any of the activities of any person referred to in the said clause either 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 of widespread danger to life or public health, also fall within the scope of disturbance to the maintenance of public order. (emphasis supplied).
15. The grounds of challenge which have been laid in the present case in our considered opinion do not fall in any one of the five exceptions as set out above. In such circumstances, the contention of the learned Government Pleader that the challenge of the detention order even before serving a copy of the same is premature is acceptable. As a matter of fact, in Alka's case, it has been held: ".This only emphasizes the fact that the courts have power to interfere with the detention orders even at the pre-execution stage but they are not obliged to do so nor will it be proper for them to do so save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well settled principles.".
16. While laying down the law, as a matter of fact, the earlier view of the Supreme Court in S.M.D Kiran Pasha vs. Government of A.P5 to the effect that the writ petition is maintainable even though the detenu was not served with the copy of the detention order, was overruled.
17. It is also useful to notice the observations of the Supreme Court in the case of Union of India vs. Parasmal Rampuria6 that when the writ petition was filed, the respondent had not surrendered. ".Under the circumstances, the proper order which was required to be passed was to call upon the respondent 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 of India"..
18. Yet one another ground, which has been urged by the learned counsel with respect to invalidity of the detention order for non specification of the period of detention in the detention order. Section 2(d) of the Act defines that the ".detention order". means an order made under Section 3 of the Act. Section 3(1) of the Act vests the power to make the detention order with the Government. Section 3(2) of the Act deals with that the Government to delegate the powers under Section 3(1) of the Act to the District Magistrates or Commissioners of Police of the area concerned.
19. In the present case, it is not in dispute that by G.O.Ms.No.1254 dated 14.3.2013 the Government had delegated powers to the 2nd respondent to pass the detention orders and the same is valid till 20.6.2013. Sub Section (3) of Section 3 of the Act imposes a restriction that any order passed under Section 3(2) of the Act by the delegate would be valid only for 12 days unless the same is approved by the Government.
20. In the present case, it is also not in dispute that by G.O.Ms.No.1509 dated 2.4.2013 the detention order has been approved by the Government. It is true that in the G.O.Ms.No.1509 dated 2.4.2013 the period of detention has not been set out. A reading of the Section 3 of the Act would make it clear that there is no requirement of Government specifying the detention period. It is not disclosed any requirements of Government specifying the detention period. However, in view of Section 13 of the Act, the detenu cannot be detained for the period exceeding 12 months from the date of passing of the detention order. Further, Section 10 of the Act casts a duty on the Government to place the detention order made under Section 3 of the Act before the Advisory Board constituted under Section 9 of the Act, the grounds on which the detention order has been made and the representation, if any, made by the detenu. The Advisory Board is required to consider all the material placed before it and may also call for any further information required from the Government or from any person including the detenu and submit a report to the Government. Section 11 of the Act also provides opportunity of hearing to be given to the detenu if he/she desires. The report of the Advisory Board shall be submitted within a period of 7 weeks from the date of detention of the person concerned. The report shall specify the opinion of the Advisory Board as to whether there is sufficient cause or not for the detention of the person concerned. Based on the report of the Advisory Board, the Government may confirm the detention and continue the detention of the concerned person for such period not exceeding the maximum period of 12 months.
21. In the light of the statutory provisions referred to above, the very scheme of the Act is such that the period of detention would be spelt out after considering the report of the Advisory Board. The Advisory Board comes into picture after a detenu making his representation which obviously only after the execution of the detention order. It may be noted here that based on the Advisory Board's report, the Government may consider even revocation of the detention order. Therefore, in view of the above said provisions, it cannot be said that the detention order is invalid merely on account of non specifying the detention period in the detention order itself. In that view of the matter, the contention of the learned Senior counsel appearing for the petitioner cannot be countenanced and liable to be rejected.
22. In the light of the above discussion, the contention of the learned Senior counsel appearing for the petitioner with respect to the detention order that was passed without application of mind on a vague and untenable grounds, in a causal and routine manner cannot be accepted and thus rejected.
23. In the result, the Writ Petition is dismissed with costs of Rs.25,000/- (Rupees twenty five thousand only). Miscellaneous Petitions, if any, pending in this writ petition shall stand closed. ______________________ JUSTICE K.C.BHANU __________________________ JUSTICE CHALLA KODANDA RAM Date:10.07.2013