Sama Aruna vs State Of Telangana

Corrected

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.885 OF 2017 (Arising out of SLP(Crl.) No.2568 of 2017)

SAMA ARUNA ....APPELLANT(S)

VERSUS

STATE OF TELANGANA AND ANR ....RESPONDENT(S)

O R D E R

Leave granted.

For the reasons which have been recorded separately,

we direct that the detenu shall be set at liberty

forthwith, if not required in any other case.

....................J [S. A. BOBDE]

....................J [L. NAGESWARA RAO] NEW DELHI;

MAY 03, 2017.

Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2017.05.17 09:45:18 IST Reason: 2

ITEM NO.11 COURT NO.9 SECTION II S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s).2568/2017

(Arising out of impugned final judgment and order dated 22/03/2017 in WP No.43671/2016 passed by the High Court Of Judicature At Hyderabad For The State Of Telangana And The State Of Andhra Pradesh)

SAMA ARUNA Petitioner(s) VERSUS STATE OF TELANGANA AND ANR Respondent(s)

(With appln. (s) for permission to file additional documents, exemption from filing O.T. and interim relief and office report)

Date : 03/05/2017 This petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE S.A. BOBDE HON'BLE MR. JUSTICE L. NAGESWARA RAO

For Petitioner(s) Mr. Vikas Singh, Sr. Adv.

Mr. Vedula Venkata Ramana, Sr. Adv. Mr. Anupam Lal Das, Adv.

Mr. Anirudh Singh, Adv.

Mr. Krishanu Barua, Adv.

For Respondent(s) Mr. Harin P. Raval, Sr. Adv.

Mr. H. Venugopal, Adv.

Mr. S. Udaya Kumar Sagar,Adv.

Mr. Mrityunjai Singh, Adv.

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

For the reasons which have been recorded separately, we direct

that the detenu shall be set at liberty forthwith, if not required

in any other case.

(Sanjay Kumar-II) (Indu Pokhriyal) Court Master Court Master (Signed Order is placed on the file) N.B. : Reasons to follow 3

ITEM NO.11 COURT NO.9 SECTION II

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s).2568/2017

(Arising out of impugned final judgment and order dated 22/03/2017 in WP No.43671/2016 passed by the High Court Of Judicature At Hyderabad For The State Of Telangana And The State Of Andhra Pradesh)

SAMA ARUNA Petitioner(s) VERSUS STATE OF TELANGANA AND ANR Respondent(s)

(With appln. (s) for permission to file additional documents, exemption from filing O.T. and interim relief and office report)

Date : 03/05/2017 This petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE S.A. BOBDE HON'BLE MR. JUSTICE L. NAGESWARA RAO

For Petitioner(s) Mr. Vikas Singh, Sr. Adv.

Mr. Vedula Venkata Ramana, Sr. Adv. Mr. Anupam Lal Das, Adv.

Mr. Anirudh Singh, Adv.

Mr. Krishanu Barua, Adv.

For Respondent(s) Mr. Harin P. Raval, Sr. Adv.

Mr. H. Venugopal, Adv.

Mr. S. Udaya Kumar Sagar,Adv.

Mr. Mrityunjai Singh, Adv.

UPON hearing the counsel the Court made the following O R D E R

This is in continuation of this Court's earlier order dated 03.05.2017 issued on 09.05.2017, whereby leave was granted in the matter and a direction was issued that the detenu shall be set at liberty forthwith, if not required in any other case.

The appeal is allowed and the separate reasons are recorded, in terms of the signed reportable judgment.

(Sanjay Kumar-II) (Indu Pokhriyal) Court Master Court Master

(Signed Reportable Judgment is placed on the file) 4

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 885 OF 2017

SAMA ARUNA ....APPELLANT(S)

VERSUS

STATE OF TELANGANA AND ANR ...RESPONDENT(S)

JUDGMENT

S.A.BOBDE, J.

The appellant - the wife of the detenu, has preferred this

appeal against the impugned judgment and order dated 22.03.2017

passed by the High Court of Hyderabad in Writ Petition No.43671 of

2016, whereby the High Court dismissed the writ petition

challenging the order of detention dated 23.11.2016, issued against

the detenu by Respondent No.2–Commissioner of Police,

Rachakonda Commissionerate, Rangareddy District, Telangana.

2. The detenu has been charged for various offences which

he had allegedly committed during the years 2002-2007. Four FIR’s

were registered for the said offences. He was admitted to bail in

three FIR’s. In the fourth FIR Crime No. 221 of 2016, he was

arrested on 05.09.2016. To prevent him from seeking bail, while in 5

judicial custody he was detained under the Telangana Prevention of

Dangerous Activities of Bootleggers, Dacoits, Drug Offenders,

Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986

(for short, the 'Act of 1986').

3. The Respondent No.2 - Commissioner of Police,

Rachakonda Commissionerate, Rangareddy District, Telangana,

passed an order of detention against the detenu on 23.11.2016

under section 3(2) of the Act of 1986, for a unspecified period, from

the date of service of the order on the detenu, and further directed

that the detenu be lodged in Central Prison, Chenchalguda,

Hyderabad.

4. The aforesaid detention order was accompanied by

grounds for detention of the same date. The grounds in the

detention order carried a statement informing the detenu of his right

to represent against the order of detention to (i) the detaining

authority i.e. Commissioner of Police, Rachakonda, (ii) the Chief

Secretary to Government of Telangana State, Hyderabad, (iii) the

Advisory Board.

5. The Respondent No.1 – State approved the aforesaid

detention order on 01.12.2016 under section 3(3) of the Act of

1986. The Advisory Board reviewed the case on 02.01.2017 and

opined that “there is sufficient cause for the detention of Sama

Sanjeeva Reddy”. After the report of the Advisory Board, the

respondent-State confirmed the detention order on 15.02.2017.

Being aggrieved, the appellant- the wife approached the High Court 6

by filing a writ petition which was dismissed. Hence, this appeal.

6. The main contention of Mr. Vikas Singh, learned Senior

Counsel appearing for the appellant, is that the grounds of detention

are stale. They are based on the incidents which are said to have

occurred between the period from 2002 to 2007 and are relied on by

the detaining authority while forming its opinion and recording its

satisfaction that the detenu needs to be detained on 23.11.2016.

7. The aforesaid contention of Mr. Singh, learned Senior

Counsel for the appellant, may be examined with reference to the

detention order. The detention order mentions six cases as follows:

Sl. Case No. Date of Date of Offences under IPC No. Incident Reporting the incident

1. Crime No.554/2013 26.9.2013 21.11.2013 447, 427, 506

2. Crime No.8/2014 21.11.2014 23.11.2015 447, 427

3. Crime No.361/2016 2007 13.08.2016 363, 384, 420,120B, Section 4 of AP LG Act and 25 1(B) of the Arms Act.

4. Crime No.362/2016 2007 13.08.2016 363, 384, 420,120B, Section 4 of AP LG Act and 25 1(B) of the Arms Act.

5. Crime No.367/2016 2005 17.08.2016 363, 384, 420,120B, Section 4 of AP LG Act and 25 1(B) of the Arms Act.

6. Crime No.221/2016 2002-03 05.09.2016 419, 420, 468, 363, 452, 323, 342, 386, 505 r/w 120B, Section 4 of AP LG Act and 25 1(B) of the Arms Act.

8. The first two incidents are about three to two years

before the detention order dated 23.11.2016. The other incidents 7

are about 9 to 14 years before the detention order. Peculiarly,

though the first two incidents are mentioned, the detaining authority

has not relied on them as grounds of detention. The detaining

authority has relied on the four other cases which are item nos.3 to

6 as grounds of detention. The report in these cases was apparently

lodged in the year 2016 for some reason best known to the police.

However, that is not of much consequence since the FIR is in respect

of incidents which are old, 9 to 14 years old. It is their relevance to

a grossly belated order of detention which we have to consider.

9. The detaining authority has pointedly referred to only four

offences of criminal conspiracy, cheating, kidnapping and extortion,

in the limits of Pahadishareef Police Station and Adibatla Police

Station of Rachakonda Commissionerate. In three out of these four

cases he has been granted bail. The State accepted these orders.

10. Each of them are beyond 9 years, up to 14 years, before

the detention orders. They have been considered under a

sub-heading which is as follows:

“THE FOLLOWING FACTS OF THE (4) CASES CONSIDERED AS GROUNDS FOR DETENTION WHICH WERE COMMITTED BY YOU IN THE RECENT PAST, WOULD PROVE YOUR ACTIVITY PREJUDICIAL TO THE MAINTENANCE OF PUBLIC ORDER.”

11. The detaining authority has then gone to consider those

grounds, to arrive at the satisfaction that the detenu needs to be

detained in 2016. These grounds are so stale and mildewed that the

exercise of the power of detention based on them appears mala fide 8

in law.

12. The four cases which are old and therefore, stale, pertain

to the period from 2002 to 2007. They pertain to land grabbing and

hence, we are not inclined to consider the impact of those cases on

public order etc. We are satisfied that they ought to have been

excluded from consideration on the ground that they are stale and

could not have been used to detain the detenu in the year 2016

under the Act of 1986 which empowers the detaining authority to do

so with a view to prevent a person from acting in any manner

prejudicial to the maintenance of public order.

13. We are not inclined to accept the justification offered by

Mr. Harin P. Raval, learned Senior Counsel appearing on behalf of the

respondents, that the mere reference to two other cases which are

2-3 years old should be considered as relevant and proximate

grounds of detention, though the detaining authority itself has not

done so. Every statement in the detention order must be taken to

have been made responsibly. Where the detaining authority has

detailed 4 cases and stated that these have been considered as the

grounds of detention it must be considered as true-speaking.

Moreover, those incidents appeared to be cases of ordinary criminal

trespass which would not, in any way, be of much significance since

they do not deal with the disruption of any public order which is

relevant under the law dealing with preventive detention.

14. Section 3(1) confers the power of detention in the 9

following terms:-

“3(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.”

The purpose for which a detention order may be passed is confined

to ‘preventing him from acting in any manner prejudicial to the

maintenance of public order’.

The term “acting in any manner prejudicial to the maintenance of

public order” is further defined as follows:-

“2. In this Act, unless the context otherwise requires,-

(a) “acting in any manner prejudicial to the maintenance of public order” means when a bootlegger, 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 wide spread danger to life or public health:”

A person may be detained under the Act of 1986 with a view to

prevent him from engaging in, or making preparations for engaging,

in any such activities.

15. Obviously, therefore, the power to detain, under the Act 10

of 1986 can be exercised only for preventing a person from

engaging in, or pursuing or taking some action which adversely

affects or is likely to affect adversely the maintenance of public

order; or for preventing him from making preparations for engaging

in such activities. There is little doubt that the conduct or activities

of the detenu in the past must be taken into account for coming to

the conclusion that he is going to engage in or make preparations

for engaging in such activities, for many such persons follow a

pattern of criminal activities. But the question is how far back?

There is no doubt that only activities so far back can be considered

as furnish a cause for preventive detention in the present. That is,

only those activities so far back in the past which lead to the

conclusion that he is likely to engage in or prepare to engage in such

activities in the immediate future can be taken into account. In

Golam Hussain alias Gama v. Commissioner of Police, Calcutta and

Ors.1, this Court observed as follows:-

“No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the causal connection has been broken in the circumstances of each case.”

1 (1974) 4 SCC 530 11

Suffice it to say that in any case, incidents which are said to have

taken place nine to fourteen years earlier, cannot form the basis for

being satisfied in the present that the detenu is going to engage in,

or make preparation for engaging in such activities.

16. We are, therefore, satisfied that the aforesaid detention

order was passed on grounds which are stale and which could not

have been considered as relevant for arriving at the subjective

satisfaction that the detenu must be detained. The detention order

must be based on a reasonable prognosis of the future behavior of a

person based on his past conduct in light of the surrounding

circumstances. The live and proximate link that must exist between

the past conduct of a person and the imperative need to detain him

must be taken to have been snapped in this case. A detention order

which is founded on stale incidents, must be regarded as an order of

punishment for a crime, passed without a trial, though purporting to

be an order of preventive detention. 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. See G. Reddeiah v. Government of Andhra Pradesh and

Anr.2 , and P.U. Iqbal v. Union of India and Ors.3

THE SCOPE OF JUDICIAL REVIEW

17. While reviewing a detention order, a court does not

2 (2012) 2 SCC 389 3 (1992) 1 SCC 434 12

substitute its judgment for the decision of the executive.

Nonetheless, the Court has a duty to enquire that the decision of the

executive is made upon matters laid down by the statute as relevant

for reaching such a decision. For what is at stake, is the personal

liberty of a citizen guaranteed to him by the Constitution and of

which he cannot be deprived, except for reasons laid down by the

law and for a purpose sanctioned by law. As early as in Machinder

Shivaji v. The King4, this Court observed:-

“…… and it would be a serious derogation from that responsibility if the Court were to substitute its judgment for the satisfaction of the executive authority and, to that end, undertake an investigation of the sufficiency of the materials on which such satisfaction was grounded.

The Court can, however, examine the grounds disclosed by the Government to see if they are relevant to the object which the legislation has in view, namely, the prevention of acts prejudicial to public safety and tranquility, for “satisfaction” in this connection must be grounded on material which is of rationally probative value.”

Later, in the case of Khudiram Das vs. The State of West

Bengal and Others5, while considering the judicial reviewability of

the subjective satisfaction of the detaining authority, the Court

surveyed the area within which the validity of the subjective

satisfaction can be subjected to judicial scrutiny in the following

paragraphs:-

“9. …… There are several grounds evolved by judicial decisions for saying that no subjective

4 AIR 1950 FC 129 5 (1975) 2 SCC 81 13

satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all; in such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v. Shibnath Banerji is a case in point. Then there may be a case where the power is exercised dishonestly or for an improper purpose: such a case would also negative the existence of satisfaction on the part of the authority. The existence of 'Improper purpose', that is, a purpose not contemplated by the statute, has been recognised as an independent ground of control in several decided cases. The satisfaction, moreover, must be a satisfaction of the authority itself, and therefore, if in exercising the power, the authority has acted under the dictation of another body as the Commissioner of Police did in Commissioner of Police v. Gordhandas Bhanji and the officer of the Ministry of Labour and National Service did in Simms Motor Units Ltd. v.

Minister of Labour and National Service, the exercise of the power would be bad and so also would the exercise of the power be vitiated where the authority has disabled itself from applying its mind to the facts of each individual case by self-created rules of policy or in any other manner. The satisfaction said to have been arrived at by the authority would also be bad where it is based on the application of a wrong test or the misconstruction of a statute. Where this happens, the satisfaction of the authority would not be in respect of the thing in regard to which it is required to be satisfied. Then again the satisfaction must be grounded 'on materials which are of rationally probative value'. Machinder v. King. The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad.”

18. This Court then dealt with the review of administrative 14

findings which are not supported with substantial evidence in the

following paragraphs of Khudiram Das (supra):-

“10. …… But in England and in India, the courts stop-short at merely inquiring whether the grounds on which the authority has reached its subjective satisfaction are such that any reasonable person could possibly arrive at such satisfaction. "If", to use the words of Lord Greene, M. R., in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation words which have found approval of the House of Lords in Smith v. Rest Eller Rural District Council and Fawcett Properties Ltd. v. Buckingham County Council – ‘the authority has come to a conclusion so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere". In such a case, a legitimate inference may fairly be drawn either that the authority "did not honestly form that view or that in forming it, he could not have applied his mind to the relevant facts’…….

11. This discussion is sufficient to show that there is nothing like unfettered discretion immune from judicial reviewability. The truth is that in a Government under law, there can be no such thing as unreviewable discretion. "Law has reached its finest moments", said Justice Douglas, "when it has freed man from the unlimited discretion of some ruler, some...official, some bureaucrat.... Absolute discretion is a ruthless master. It is more destructive of freedom then any of man's other inventions". United States v. Wunderlich and this is much more so in a case where personal liberty is involved. That is why the courts have devised various methods of judicial control so that power in the hands of an individual officer or authority is not misused or abused or exercised arbitrarily or without any justifiable grounds.”

19. Incidents which are old and stale and in which the detenu

has been granted bail, cannot be said to have any relevance for

detaining a citizen and depriving him of his liberty without a trial.

This Court observed the following in the case of Khudiram Das 15

(Supra):

“The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Partap Singh v. State of Punjab. If there are to be found in the statute expressly or by implication matters which the authority ought to have regard to them, in exercising the power, the authority must have regard to those matters. The authority must call its attention to the matters which it is bound to consider.”

20. We are of the view, that the detention order in this case

is vitiated by taking into account incidents so far back in the past as

would have no bearing on the immediate need to detain him without

a trial. The satisfaction of the authority is not in respect of the thing

in regard to which it is required to be satisfied. Incidents which are

stale, cease to have relevance to the subject matter of the enquiry

and must be treated as extraneous to the scope and purpose of the

statute.

21. In this case, we find the authority has come to a

conclusion so unreasonable that no reasonable authority could ever

reach. A detaining authority must be taken to know both, the

purpose and the procedure of law. It is no answer to say that the

authority was satisfied. In T.A. Abdul Rahman v. State of Kerela 16

and Ors.6, this Court observed, where the authority takes into

account stale incidents which have gone by to seed it would be safe

to infer that the satisfaction of the authority is not a genuine one.

The extent of staleness of grounds in this case compel us to

examine the aspect of malice in law. It is not necessary to say that

there was an actual malicious intent in making a wrong detention

order. In Smt. S.R. Venkataraman v. Union of India and Anr. 7, this

Court cited Shearer v. Shields8, where Viscount Haldane observed as

follows:-

“A person who inflicts an injury upon another person in contravention of law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly and in that sense innocently.”

22. This Court then went on to observe in Smt. S.R.

Venkataraman (supra) as follows:-

“6. It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith. As was stated by Lord Goddard. C.J. in Pilling v. Abergele Urban District Council where a duty to determine a question is conferred on an authority which state their reasons for the decision, and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that

6 (1989) 4 SCC 741 7 (1979) 2 SCC 491 8 (1914) AC 808 17

they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter.

7. The principle which is applicable in such cases has thus been stated by Lord Esher, M.R. in The Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras:

“If people who have to exercise a public duty by exer- cising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion.” This view has been followed in Sadler v. Sheffield Cor- poration.”

23. The influence of the stale incidents in the detention order

is too pernicious to be ignored, and the order must therefore go;

both on account of being vitiated due to malice in law and for taking

into account matters which ought not to have been taken into

account.

24. There is another reason why the detention order is

unjustified. It was passed when the accused was in jail in Crime No.

221 of 2016. His custody in jail for the said offence was converted

into custody under the impugned detention order. The incident

involved in this offence is sometime in the year 2002-2003. The

detenu could not have been detained preventively by taking this

stale incident into account, more so when he was in jail. In Ramesh

Yadav v. District Magistrate, Etah and Ors. 9, this Court observed as

follows:-

9

(1985) 4 SCC 232 18

“6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the de-

taining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehen- sion of the detaining authority was true, the bail ap- plication had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.”

25. Therefore, in the facts and circumstances of this case,

we allow this appeal, and set aside the aforesaid detention order

dated 23.11.2016 passed by the Respondent No.2 – Commissioner

of Police, Rachakonda Commissionerate, Rangareddy District,

Telangana, as also the impugned judgment and order dated

22.03.2017 passed by the High Court of Judicature at Hyderabad in

Writ Petition No.43671 of 2016.

....................J [S. A. BOBDE]

....................J [L. NAGESWARA RAO] NEW DELHI MAY 03, 2017