G.Reddeiah vs Govt.Of A.P.& Anr

G. Reddeiah .... Appellant(s)

Versus

The Government of Andhra Pradesh & Anr. .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) Leave granted.

2) The appellant, who is the brother-in-law of

R. Sreenivasulu-the detenue, has filed this appeal against the

judgment and final order dated 08.04.2011 passed by the High

Court of Judicature, Andhra Pradesh at Hyderabad in a writ of

Habeas Corpus being Writ Petition No. 65 of 2011 whereby the

High Court dismissed his petition holding that the order of

detention of R. Sreenivasulu passed by the Collector and

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District Magistrate, Kadapa, Y.S.R. District, in Ref. No.

670/M/2010 dated 12.11.2010 is not illegal.

3) Brief Facts:

a) According to the prosecution, the detenue was found to

be involved in felling, transporting, smuggling of red-sanders

trees and committing theft of forest wealth in as many as eight

times within a period of one year. The cases registered against

him disclose his activities. They are:

(i) OR No. 130/2009-10- dated 22.02.2010:

On 22.02.2010, on receiving information at 06:00 a.m.,

Forest Range Officer and Deputy Range Officer Rayachoty,

alongwith other staff proceeded to Masineni Kanuma locality

of Palakonda Reserved Forest in Saraswathipalli Beat and

noticed 3 persons lifting and storing red-sanders wood and

preparing to transport the same. On seeing the Forest

officials, they ran away from the scene of offence and could not

be apprehended. Later, they were identified and one among

them was the detenue. Thereafter, the Forest officials seized

30 red-sanders logs weighing 844 kgs. worth Rs.45,576/-. An

offence was registered against them vide P.O.R. No. 6 dated

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22.02.2010 under Section 20(1)(c)(ii) of the A.P. Forest Act,

1967 (hereinafter referred to as "the A.P. Act") for trespassing

in Reserved Forest, under Section 20(1)(c)(iii) of the A.P. Act for

causing damage by willfully cutting trees and dragging the

same, under Section 20(1)(c)(vi) and (x) of the A.P. Act for

collection and removal of red-sanders timber and under

Section 29(2)(b) of the A.P. Act read with Rule 3 of the A.P.

Sandal Wood and Red Sanders Transit Rules, 1969 (in short

"the Rules") for transportation of red-sanders timber without

permit and without any Government Transit Mark and for

theft of red-sanders timber from Reserved Forest under

Section 378 of the Indian Penal Code, 1860 (in short "IPC")

and for criminal conspiracy under Section 120B IPC.

(ii) OR No. 01/2010-11 dated 01.04.2010

On 01.04.2010, on receiving information at 7.30 a.m.,

the Deputy Range Officer, Forest Beat Officers and Assistant

Beat Officer proceeded to the localities in Gudukonda and

Pathikona and noticed the movement of the detenue and two

others who escaped from the scene of the offence and later the

detenue was identified and crime was registered against him

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vide P.O.R. No. 16 dated 01.04.2010 under various sections of

the A.P. Act and the Rules and also under Sections 378 and

120B IPC.

(iii) OR No. 02/2010-11 dated 03.04.2010

On 02.04.2010, the Forest Range Officer, Rayachoty

along with other staff stopped a vehicle carrying 20 red-

sanders logs. The detenue along with two others escaped from

the vehicle but the Forest officials apprehended the driver of

the vehicle and a crime was registered vide P.O.R. No. 17

dated 03.04.2010 against them for an offence under various

sections of the A.P. Act and the Rules and also under Sections

378 and 120B IPC.

iv) OR No.13/2010-11 dated 11.05.2010 and PS Crime No.

40/10

On 08.05.2010, on receiving a complaint regarding

smuggling of red-sanders logs, while doing routine vehicle

check, the Inspector of Police, L.R. Palli along with other staff

stopped two vans and caught hold of four persons and seized

red-sanders logs from the above two vehicles and on the basis

of their information a crime was registered by Galiveedu Police

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Station in Crime No. 40/2010 for an offence under various

sections of the A.P. Act and the Rules and also under Sections

379 IPC against 14 accused persons in which detenue was

shown as 12th accused.

(v) OR No. 18/2010-11 dated 23.05.2010

On the intervening night of 22.05.2010, the Forest

Officer, Rayachoty along with other staff caught-hold of

detenue along with other persons and seized 32 red-sanders

logs weighing 794 kgs. and a crime was registered vide P.O.R.

No. 20 dated 23.05.2010 against them under various sections

of the A.P. Act and the Rules.

(vi) FIR No. 46/10 dated 27.05.2010 and OR No. 20/2010-11

dated 30.05.2010

On 27.05.2010, the Inspector of Police, Rayachoty Rural

Circle and Sub-Inspector of Police, Veeraballi P.S. along with

their staff noticed one Indica Car followed by a lorry from

Ragimannudivanpalli. On seeing them, the occupants tried to

run away and the police chased and caught-hold of two

persons while one person escaped. The lorry was found

loaded with 25 red-sanders logs. On interrogation, they

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informed that the detenue was escorting them and he ran

away from the scene. The police registered a case in FIR No.

46/10 dated 27.05.2010 under Section 379 IPC and Section

29A(1) of the A.P. Act read with Rule 3 of the Rules. The

Forest Range Officer, Rayachoty also booked a case vide POR

No. 20/2010-11 dated 30.05.2010.

(vii) FIR No. 75/10 dated 03.10.2010 and OR No. 60/2010-11

dated 04.10.2010

On 03.10.2010, the Inspector of Police, Rayachoty Rural

Circle and Sub-Inspector of Police, Veeraballi P.S. along with

forest officials proceeded to Teacher Narayana Reddy Mango

Garden located at Peddamadiga Palli Village, hamlet of

Vongimalla and found four persons removing red-sanders logs

from the bushes. On seeing them, three persons escaped and

the police could apprehend only one person who informed that

the detenue was also involved in taking away the logs three

times in his vehicle. The police registered a case in Crime No.

75/10 under Section 379 IPC and Section 29 of the A.P. Act

read with Rule 3 of the Rules and the Forest Range Officer also

booked a case vide POR No. 60/2010-11 dated 04.10.2010.

6 (viii) Crime No. 92/10 On 09.10.2010, the Sub-Inspector of Galiveedu and

Veeraballi, C.I. L.R. Palli along with staff and panchayatdars

while proceeding towards the forest found one Tata Sumo and

a Ford Ikon car carrying 36 red-sanders logs. When the

occupants tried to escape, the police caught hold of them.

One among them was the detenue. The police seized the

vehicles and registered Crime No. 92 of 2010 under Section

379 IPC and Section 29 of the A.P. Act read with Rule 3 of the

Rules.

(b) Thereafter, on 10.11.2010, the detenue was released on

bail and he was immediately arrested and order of detention

was served on 12.11.2010 by the Collector and District

Magistrate, Kadapa, Y.S.R. District under Sections 3(1) and 2

(a) and (b) of the Andhra Pradesh Prevention of Dangerous

Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas,

Immoral Traffic Offenders and Land Grabbers Act, 1986 (in

short "the 1986 Act") stating that the activities of the detenue

are dangerous to forest wealth and forest eco-system and are

prejudicial to the maintenance of public order.

7 (c) The General Administration (Law and Order II)

Department of the Government of A.P., in G.O. Rt. No. 5657,

dated 20.11.2010, approved the order of detention and he was

sent to Cherlapalli Jail on 13.11.2010. Again on 22.12.2010,

Government of A.P. confirmed the order of detention by

directing to continue the detention for a period of 12 months

from the date of detention i.e. from 13.11.2010.

(d) In January, 2011, challenging the detention order passed

by the Collector and District Magistrate, Kadapa, Y.S.R.

District, dated 12.11.2010, the appellant herein - brother-in-

law of the detenue, filed W.P. No. 65 of 20011 before the High

Court for issuance of writ of Habeas Corpus. By impugned

order dated 08.04.2011, the High Court dismissed the petition

holding that the order of detention is not illegal. Aggrieved by

the said order, the appellant has filed this appeal by way of

special leave petition before this Court.

4) Heard Mr. A.T.M. Rangaramanujam learned senior

counsel for the appellant and Mr. R. Sundaravardan, learned

senior counsel for the State.

8 5) It is the definite stand of the State that its administration

is not in a position to curb the illegal activities of the detenue

under the normal procedure, who was habitually indulging in

illicit trespass, cutting, dressing and transporting the red-

sanders wood from the Reserved Forest owned by the State

causing irreparable loss to national wealth. The Detaining

Authority, on going through all the materials and after holding

that the said detenue is a `goonda' under Section 2(g) of the

1986 Act passed the order of detention.

6) Since the said detention was challenged by his brother-

in-law before the High Court and the same has been negatived

by the High Court, let us refer certain provisions of the 1986

Act. Section 2(g) defines "goonda" which reads as under:-

2(g) "goonda" means a person, who either by himself of 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;"

Section 3 of the 1986 Act enables the Government to detain

certain persons whose activities are prejudicial to the

maintenance of public order. Section 3 reads as under:-

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"3. Power to make orders detaining certain persons:- The

Government may, if satisfied with respect to any bootlegger:

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 is 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."

If the Government/Detaining Authority is able to satisfy that a

person either by himself or in association with other members

habitually commits or attempts or abets such commission of

offence punishable under IPC, A.P. Act and the Rules subject

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to satisfying Section 3 of the 1986 Act, he can be detained in

terms of the said Act.

7) The essential concept of preventive detention is that the

detention of a person is not to punish him for something he

has done but to prevent him from doing it. Even, as early as

in 1975, the Constitution Bench of this Court considered the

procedures to be followed in view of Articles 19 and 21 of the

Constitution. In Haradhan Saha vs. State of West Bengal

& Ors. (1975) 3 SCC 198, the Constitution Bench of this

Court, on going through the order of preventive detention

under Maintenance of Internal Security Act, 1971 laid down

various principles which are as follows:-

".....First; merely because a detenue is liable to be tried in a

criminal court for the commission of a criminal offence or to

be proceeded against for preventing him from committing

offences dealt with in Chapter VIII of the Code of Criminal

Procedure would not by itself debar the Government from

taking action for his detention under the Act.

Second; the fact that the Police arrests a person and later on

enlarges him on bail and initiates steps to prosecute him

under the Code of Criminal Procedure and even lodges a first

information report may be no bar against the District

Magistrate issuing an order under the preventive detention.

Third; where the concerned person is actually in jail custody

at the time when an order of detention is passed against him

and is not likely to be released for a fair length of time, it

may be possible to contend that there could be no

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satisfaction on the part of the detaining authority as to the

likelihood of such a person indulging in activities which

would jeopardize the security of the State or the public

order.

Fourth; the mere circumstance that a detention order is

passed during the pendency of the prosecution will not

violate (sic) the order.

Fifth; the order of detention is a precautionary measure. It

is based on a reasonable prognosis of the future behaviour of

a person based on his past conduct in the light of the

surrounding circumstances."

In the light of the above principles, let us test the validity of

the detention order issued under the 1986 Act and as affirmed

by the High Court.

8) In the earlier part of our order, we have culled out and

noted 8 cases in which the detenue-R. Sreenivasulu was

involved and was habitually committing forest offences,

particularly, felling, cutting and smuggling of red-sanders

wood causing loss to national wealth. Inasmuch as we have

adverted to the details regarding all the 8 cases commencing

from 22.02.2010 ending with 09.10.2010 which is reflected in

the grounds of detention, there is no need to refer the same

once again. Mr. Rangaramanujam, learned senior counsel for

the appellant has submitted that some of the cases have been

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foisted and, according to him, the relevant details furnished in

the grounds of detention such as the date of occurrence,

commission of various offences both under the A.P. Act and

the Rules and IPC, cannot be construed that his activities are

habitual or would not affect the national forest wealth. We are

unable to accept the said contention. A reading of the

grounds of detention clearly indicate that the detenue had

been indulging in various activities in felling and smuggling

red-sanders and he was habitually committing the same and

was unmindful of wastage of national forest wealth and public

order. It also shows that it was not a solitary or stray incident

but continuously maintaining his activities commencing from

22.02.2010 till 09.10.2010 in destroying the forest wealth. It

clearly shows that he is habitually committing these offences.

On going through all the details relating to various offences,

incidents and activities, we are satisfied that the conclusion of

Detaining Authority that by invocation of normal procedure,

the activities of the detenue cannot be controlled is acceptable.

We also hold that Detaining Authority is well within its powers

in passing the impugned order of detention. Further, we are

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also in agreement with the reasoning of the High Court which,

by a detailed judgment, upheld the order of detention.

9) Mr. Rangaramanujam submitted that even though the

detenue was arrested on 09.10.2010 and was released on bail

on 10.11.2010, the detention order was passed on 12.11.2010,

the aspect that the detenue was in custody till 10.11.2010 was

neither specifically adverted to and considered in the detention

order nor the sponsoring authority placed any material

regarding the same, hence, the ultimate detention order

passed on 12.11.2010 cannot be sustained. Before

considering his objection, it is useful to refer the following

decision and principles laid down therein.

10) The incident relating to procedure to be adopted in case

the detenue is already in custody has been dealt in several

cases. In Union of India vs. Paul Manickam and Another

(2003) 8 SCC 342, this Court, has held as under:-

"14.....Where detention orders are passed in relation to

persons who are already in jail under some other laws, the

detaining authorities should apply their mind and show their

awareness in this regard in the grounds of detention, the

chances of release of such persons on bail. The necessity of

keeping such persons in detention under the preventive

detention laws has to be clearly indicated. Subsisting

custody of the detenue by itself does not invalidate an order

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of his preventive detention, and the decision in this regard

must depend on the facts of the particular case. Preventive

detention being necessary to prevent the detenue from acting

in any manner prejudicial to the security of the State or to

the maintenance of public order or economic stability etc.

ordinarily, it is not needed when the detenue is already in

custody. The detaining authority must show its awareness to

the fact of subsisting custody of the detenue and take that

factor into account while making the order. If the detaining

authority is reasonably satisfied with cogent materials that

there is likelihood of his release and in view of his

antecedent activities which are proximate in point of time, he

must be detained in order to prevent him from indulging in

such prejudicial activities, the detention order can be validly

made. Where the detention order in respect of a person

already in custody does not indicate that the detenue was

likely to be released on bail, the order would be vitiated. The

point was gone into detail in Kamarunnissa v. Union of India.

The principles were set out as follows: even in the case of a

person in custody, a detention order can be validly passed:

(1) if the authority passing the order is aware of the fact that

he is actually in custody; (2) if he has a reason to believe on

the basis of reliable material placed before him (a) that there

is a real possibility of his release on bail, and (b) that on

being released, he would in all probability indulge in

prejudicial activities; and (3) if it is felt essential to detain

him to prevent him from so doing. If an order is passed after

recording satisfaction in that regard, the order would be

valid. In the case at hand the order of detention and grounds

of detention show an awareness of custody and/or a

possibility of release on bail."

11) It is clear that if the Detaining Authority was aware of the

relevant fact, namely, that he was under custody from

09.10.2010 and he would be released or likely to be released

or as in this case released on 10.11.2010 and if an order is

passed after due satisfaction in that regard, undoubtedly, the

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order would be valid. Before answering this point, Mr. R.

Sundaravardan, learned senior counsel for the State has

brought to our notice that the said objection was neither

raised before the Advisory Board nor in the representation to

the Government and was not mentioned in the grounds of

challenge and argued before the High Court. He also pointed

out that even before this Court, this ground was not raised in

the special leave petition. It is not in dispute that such

objection was not raised anywhere except during the course of

argument. No doubt, learned senior counsel for the appellant

by drawing our attention to Crl.M.P. No. 11504 of 2011 which

was filed for permission to file additional documents submitted

that the same may be considered and in the absence of such

satisfaction by the Detaining Authority as reflected in the

detention order, the same is liable to be quashed. Non-

consideration of bail order would amount to non-application of

mind. [ vide M. Ahamedkutty vs. Union of India & Another.

(1990) 2 SCC 1 and Anant Sakharam Raut vs. State of

Maharashtra and Anr. (1986) 4 SCC 771].

1 12) As pointed out above, the said objection was not raised

anywhere. It is also not in dispute that the detenue was given

adequate opportunity of hearing before the Advisory Board

and all his grievances were addressed to by the Board and

submitted its report. The Government, on going through the

entire materials including the report of the Advisory Board as

well as the representation of the detenue, considering the

gravity of the offence alleged against him and his habituality,

confirmed the order of detention.

13) The grounds of detention running into 60 pages and the

order of detention to 5 pages clearly demonstrate various

details about the involvement of the detenue violating the

provisions of IPC, A.P. Act and the Rules. The details

furnished in the grounds of detention clearly show the

application of mind on the part of the Detaining Authority. It

is not the case of the detenue or the appellant that the

required relevant and relied on materials have not been

furnished which prevented him from making effective

representation to the Government. The detailed report of the

Inspector of Police and Sponsoring Authority clearly show that

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the detenue was a master mind in organising the felling of red-

sanders trees owned by the Government and also providing

vehicles for illegally transporting the red-sanders wood, hiring

of labourers from the fringe forest villages and responsible for

destruction of valuable governmental property. It also shows

that it was he who operated gang for destruction of the

national wealth causing deforestation leading to ecological

imbalance affecting the community as a whole. The grounds

of detention also show that the Detaining Authority, after

scrutinising all the details including various orders of arrest

and release, bail on various dates and noting that he is

habitually indulging in trespass in forest area, illicit cutting,

felling, smuggling and transporting red-sanders from the

reserved forest owned by the State, arrived at a definite

conclusion that the provisions of normal law were not

sufficient in ordinary course to deal firmly because of his

habitual nature and after satisfying all aspects including the

fact that the detenue was in jail from 09.10.2010 to

10.11.2010 and the factum of release from the jail in 4

criminal cases, passed an order of detention with a view to

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prevent him from further indulging into such offences. In a

matter of detention, the law is clear that as far as subjective

satisfaction is concerned, it should either be reflected in the

detention order or in the affidavit justifying the detention

order. Once the Detaining Authority is subjectively satisfied

about the various offences labelled against the detenue,

habituality in continuing the same, difficult to control him

under the normal circumstances, he is free to pass

appropriate order under Section 3 of the 1986 Act by fulfilling

the conditions stated therein. We have already concluded that

there is no infirmity either in the reasonings of the Detaining

Authority or procedure followed by it. We are also satisfied

that the detenue was afforded adequate opportunity at every

stage and there is no violation of any of the safeguards. In

these circumstances, we reject the contention raised by

learned senior counsel for the appellant.

14) Though an attempt was made to nullify the order of

detention by drawing our attention to the latest decision of

this Court reported in Rekha vs. State of Tamil Nadu (2011)

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5 SCC 244, on going through the factual position and orders

therein and in view of enormous activities of the detenue

violating various provisions of IPC, the A.P. Act and the Rules,

continuous and habituality in pursuing the same type of

offences, damaging the wealth of the nation and taking note of

the abundant factual details as available in the grounds of

detention and also of the fact that all the procedures and

statutory safeguards have been fully complied with by the

Detaining Authority, we are of the view that the said decision

is not applicable to the case on hand. On the other hand, we

fully agree with the reasoning of the Detaining Authority as

approved by the Government and upheld by the High Court.

2 15) In the light of the above discussion, we find no merit in

the appeal, consequently, the same is dismissed.

...........................................J.

(P. SATHASIVAM)

...........................................J.

(DR. B.S. CHAUHAN)

NEW DELHI;

SEPTEMBER 9, 2011.

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