Petitioner challenged detention order against cousin. Court held detention illegal due to lack of subjective satisfaction as detenu was in custody with no bail application pending. Order set aside.
The order of detention dated 16.03.2012, as confirmed by the Government, is set aside. The detenu to be released forthwith if not required in other cases.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD
W.P. No. 27538 of 2012
O r d e r: (Per Sri. N.V. Ramana, J.)
The petitioner, who claims to be the cousin of the detenu, namely T. Shanker @ Bullet Shanker, who is now detained in Central Prison, Cherlapally, has filed this writ petition to produce the detenu before this Court and set him at liberty forthwith by declaring the order of detention dated 16.03.2012 passed by respondent No.2, as being arbitrary, illegal and unconstitutional.
The Divisional Forest Officer, Kadapa, YSR District, informed respondent No.2, namely the Collector and District Magistrate (hereinafter referred to as ‘the Detaining Authority’) that the detenu since last three years is involved in illicit felling of red sanders, smuggling them to secret and unknown places in India and abroad, and that he is involved in six forest offences, namely in D.O.R. No. 56/2010-11, dated 01.08.2010 of Srikalahasti Forest Range, D.O.R. Nos. 53/2010-11, dated 18.08.2010; 68/2010-11, dated 13.10.2010 and; U.D.O.R. No. 15/2011-12, dated 10.01.2010 converted as D.O.R. No. 127/2011-12, dated 10.02.2012 of Puttur Forest Range, D.O.R. No. 104/2010-11, dated 10.10.2010 of Flying Squad Division, Tirupati and F.I.R. No. 73 of 2012, dated 31.01.2012 on the file of Uthukota Police Station, Tiruvallur District, Tamilnadu, which were registered against him for the offences punishable under Sections 20, 29 and 44 of the A.P. Forest Act, 1967 and Rule 3 of the A.P. Sandal Wood and Red Sander Wood Transit Rules, 1969 and the provisions of Sections 378 and 379 I.P.C. While the detenu is in judicial custody in
connection with one of the crimes, considering the fact that the illegal activities of the detenu, is causing willful destruction of red sanders trees, which is an endangered species, and causing damage to public property, resulting in depletion of green cover and loss of national wealth, and as his activities are prejudicial to the maintenance of public order, disturbing the peace, tranquility and social harmony in the society, and as the forest laws and ordinary law under which the detenu is being prosecuted are not sufficient in the ordinary course to deal with him firmly, respondent No.2-Detaining Authority, in exercise of the powers conferred on him under Section 3(1) and (2) of the A.P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbing Act, 1986 (hereinafter referred to as ‘the Preventive Detention Act’), with a view to prevent the detenu from commission of similar such activities, which is resulting in plundering of national wealth, vide order dated 16.03.2012, ordered the detention of the detenu in prison. Thereafter, based on the recommendations of the Advisory Board, respondent No.1-Government, by order dated 20.04.2012, confirmed the order of detention. Hence, questioning the said order of detention, passed by respondent No.2-Detaining Authority, for detention of the detenu in prison, as confirmed by respondent No.1Government, the petitioner filed the present writ petition.
The learned counsel for the petitioner submitted that the cases registered against the detenu for the offences punishable under the A.P. Forest Act and the Indian Penal Code, which formed the basis for passing the order of detention by respondent No.2-Detaining Authority, are false. At the time when the order of detention was passed by respondent No.2-Detaining Authority, the detenu was in judicial custody in connection with one of the crimes registered against him,
and he having not made any application for his release on bail, the possibility of his coming out of jail and indulging in commission of similar such activities, which are allegedly prejudicial to the maintenance of public order does not arise. Since respondent No.2Detaining Authority, without considering this aspect of the matter, has passed the order of detention, the same suffers from his lack of subjective satisfaction, and therefore, is liable to be set aside.
On behalf of the respondents, respondent No.2-Detaining Authority, namely the Collector and District Magistrate filed counter. The learned Assistant Government Pleader representing the learned Advocate General for the respondents, reiterating the stand taken by the respondents in their counter submitted that the detenu is habitually indulging in illicit felling of red sanders trees by trespassing into forest area, smuggling and transporting them out of the reserved forest owned by the State, that his activities are not only dangerous to the rare species of red sanders, but also causing damage to the pristine forest wealth. His activities are also prejudicial to the maintenance of public order, and for commission of such offences, the detenu is punishable under the provisions of the A.P. Forest Act and the Rules made thereunder and the provisions of the Indian Penal Code. The detenu has committed as many as five offences in a span of three years, and as the ordinary laws under which he is being prosecuted are not sufficient to deal with his activities, respondent No.2-Detaining Authority, with a view to prevent the detenu from indulging in commission of similar such crimes, has passed the order of detention by invoking the Preventive Detention Law, which was confirmed by respondent No.2-the Government. She further submitted that though the detenu is in judicial custody in connection with one of the crimes and has not made any application for his release on bail, but the same
by itself, does not bar the Detaining Authority, to pass an order of detention under the Preventive Detention Law, if the Detaining Authority is satisfied that there is every possibility of the detenu being released on bail in the pending cases, and upon such release, the detenu would indulge in commission of similar such offences and act in a manner breaching public order or law and order, and therefore, there is every need to detain him under the Preventive Detention Law. Hence, she prayed that the order of detention, passed by respondent No.2-Detaining Authority, as confirmed by respondent No.1-Government, be upheld and the writ petition be dismissed.
Heard the learned counsel for the petitioner and the learned Assistant Government Pleader representing the learned Advocate General for the respondents.
In the light of the arguments advanced by the respective parties, the question that arises for consideration, in this writ petition is:
Whether the order of detention passed by respondent No.2Detaining Authority, as confirmed by respondent No.1Government, suffers from lack of subjective satisfaction of the Detaining Authority, because at the time when the order of detention was passed, the detenu was in judicial custody and he did not move any application for his release on bail?
The detenu, admittedly, is involved in six forest offences, namely in D.O.R. No. 56/2010-11, dated 01.08.2010 of Srikalahasti Forest Range; D.O.R. Nos. 53/2010-11, dated 18.08.2010; 68/201011, dated 13.10.2010 and; U.D.O.R. No. 15/2011-12, dated 10.01.2010 converted as D.O.R. No. 127/2011-12, dated 10.02.2012 of Puttur Forest Range, D.O.R. No. 104/2010-11, dated 10.10.2010 of Flying Squad Division, Tirupati and F.I.R. No. 73 of 2012, dated 31.01.2012 on the file of Uthukota Police Station, Tiruvallur District, Tamilnadu. He was arrested in connection with the offence in D.O.R. No. 53/2010-11, dated 18.08.2010, on 17.04.2011 and remanded to
judicial custody, and later he was released on bail. Later, he was arrested in connection with crime in F.I.R. No. 73 of 2012, dated 31.01.2012 and produced before the Munsif-cum-Judicial Magistrate, Uthukottal, Tamilnadu, who remanded him to judicial custody. While he was in judicial custody, the forest officials obtained PT warrant from the Additional Junior Civil Judge, Srikalahasthi, in U.D.O.R. No.15/2011-12 converted as D.O.R. No. 127/2011-12, on 10.02.2012, but by the time they went to execute the same, the detenu was already released on bail. Thereafter, the detenu was arrested on 27.02.2012 and produced before the Judicial Magistrate of First Class, Srikalahasthi, who remanded him to judicial custody. Thereafter, in execution of the PT warrant in D.O.R. 104/2010-11, dated 10.10.2010, the detenu was arrested on 11.03.2012 and produced before the Judicial Magistrate of First Class, Satyaveedu, and while he was judicial custody, respondent No.2Detaining Authority, passed the order of detention.
This Court in W.P. No. 12340 of 2012, by order dated 28.09.2012, having considered the question, namely whether an order of detention can be passed by the Detaining Authority, while the detenu is in judicial custody, in the light of submissions advanced by the respective parties and the law governing the preventive detention, held as follows:
Since the order of detention was passed by respondent No.1-Detaining Authority, as confirmed by respondent No.2-Government, while the detenu was in judicial custody and that too when he did not make any application for his release on bail, and in such a situation, the possibility of his being released on bail, does not arise. And considering the fact that the validity of order of detention, passed while the detenu was in judicial custody and when no application for his release on bail was pending, was already considered by a three-Judge Bench of the Apex Court in Rekha v. State of Tamil Nadu, wherein it was held that “if no bail application is pending, there is no likelihood of the person in custody being released on bail, and therefore, the order of detention would be illegal”, and the law laid down therein, having been consistently followed by the Apex Court in its subsequent judgments in Yumman Ongbi Lembi v. State of Manipur and Munagala Yadamma v. State of A.P., and in a very recent judgment in K. Nageswara Naidu v. Collector & District Magistrate,
Y.S.R. Kadapa District, we are of the considered opinion that the order of detention passed by respondent No.1-Detaining Authority, as confirmed by respondent No.2Government, suffers from his lack of subjective satisfaction, and as such, is liable to be set aside. Accordingly, we answer issue No.1 in favour of the petitioner and against the respondents.
Respondent No.2-Detaining Authority, in the order of detention, even though noted that the detenu is under remand, but did not take into consideration the fact that the detenu, was already arrested in one crime and later released on bail, while in one case, he was arrested and remanded to judicial custody, and while in judicial custody, in execution of PT warrant, he was arrested and remanded to judicial custody, while in one of case, non-bailable warrant is pending, and in the other two cases, he is yet to be arrested. Since respondent No.2Detaining Authority, has passed the order of detention while the detenu is in judicial custody, and the detenu having not made any application for his release on bail, and as he is yet to be arrested in three cases, the possibility of his coming out on bail in the near future does not arise, and having regard to the law laid down by the Apex Court on the question, as extracted above, we hold that the order of detention passed by respondent No.2-Detaining Authority, as confirmed by respondent No.1-Government, is vitiated due to his lack of subjective satisfaction, and is therefore, liable to be set aside.
Accordingly, the writ petition is allowed. Consequently, the order of detention dated 16.03.2012, passed by respondent No.2Detaining Authority, as confirmed by respondent No.1-Government by order dated 20.04.2012, is set aside. The detenu shall be released forthwith if he is not required in any other case. No costs.
________________ N.V. RAMANA, J.
P. DURGA PRASAD, J.
Dated: 1st October, 2012 KSR
2 issues framed by the court
Whether an order of detention suffers from lack of subjective satisfaction when the detenu is in judicial custody without a pending bail application?
Whether the possibility of release on bail defeats the necessity for preventive detention?
Colour shows how this judgement treated each authority
1 provisions across 1 enactments
Cousin of detenu
Government
Collector and District Magistrate
N.V. RAMANA
P. DURGA PRASAD
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
