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Tuesday, May 20, 2014

PD Act sec.3 - Detention order more than 3 months and for 12 months at a stretch - not valid - when habeas corpus writ filed - High court dismissed the same with cryptic order with out going into the merits of the case - Apex court held that Undisputedly, the detenu was detained on 5th October, 2013 which means that he remained under detention for about seven months at a stretch without any periodical review as envisaged by law. We are, therefore, of the considered opinion that the detention order passed by the Government of Andhra Pradesh in this case is in contravention to the provisions of law. On this ground alone, without going into other issues, we thought this appeal has to be allowed and the order of detention has to be quashed. We accordingly allow the appeal quashing the detention order issued by the Government of Andhra Pradesh and setting aside the impugned judgment of the High Court. The detenu shall be set at liberty forthwith.= CHERUKURI MANI … APPELLANT W/O NARENDRA CHOWDARI VERSUS THE CHIEF SECRETARY, GOVERNMENT OF … RESPONDENTS ANDHRA PRADESH & ORS.= 2014(May. Part ) http://judis.nic.in/supremecourt/filename=41522

 PD Act sec.3 - Detention order more than 3 months and for 12 months at a stretch - not valid - when habeas corpus writ filed - High court dismissed the same with cryptic order with out going into the merits of the case - Apex court held that  Undisputedly, the detenu was detained on 5th October,  2013 which means that he remained under detention for about  seven  months  at  a stretch  without  any  periodical  review  as  envisaged  by  law.  We  are, therefore, of the considered opinion that the detention order passed by  the Government of Andhra Pradesh  in  this  case  is  in  contravention  to  the provisions of law. On this ground alone, without going  into  other  issues, we thought this appeal has to be allowed and the order of detention  has  to be quashed. We accordingly allow the  appeal  quashing the detention order issued by the Government of Andhra Pradesh  and  setting aside the impugned judgment of the High Court. The detenu shall  be  set  at liberty forthwith.=

The writ petition was dismissed by the  High
Court by the impugned order dated 28th October, 2013 stating that until  and
unless the competent Court of law decides the order of detention as  illegal
and invalid, it cannot be said that it is unauthorized detention.=

When the appellant challenged the detention of her husband before  the
High Court in a habeas corpus Writ Petition, the High  Court  dismissed  the
same with a cryptic order. In our considered view, when habeas  corpus  writ
petition is filed, even though the petitioner has not  properly  framed  the
petition and not sought appropriate relief, it is expected  from  the  Court
to at least go into the issue  and  decide  on  merits.  Normally,  in  such
matters where liberty of a person is at  stake,  the  Courts  would  take  a
liberal approach  in  the  procedural  aspects.  But  unfortunately  in  the
instant case, the  High  Court  has  dismissed  the  writ  petition  at  the
threshold itself.

whether  the  State
Government has the power to pass a detention order to detain a person  at  a
stretch for a period of 12 months under the provisions of the Act.
 Section 3: Power to make orders detaining certain persons  :
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.=

Undisputedly, the detenu was detained on 5th October,  2013
which means that he remained under detention for about  seven  months  at  a
stretch  without  any  periodical  review  as  envisaged  by  law.  We  are,
therefore, of the considered opinion that the detention order passed by  the
Government of Andhra Pradesh  in  this  case  is  in  contravention  to  the
provisions of law. On this ground alone, without going  into  other  issues,
we thought this appeal has to be allowed and the order of detention  has  to
be quashed.                
18.    We accordingly allow the  appeal  quashing
the detention order issued by the Government of Andhra Pradesh  and  setting
aside the impugned judgment of the High Court. The detenu shall  be  set  at
liberty forthwith.
2014(May. Part ) http://judis.nic.in/supremecourt/filename=41522
RANJANA PRAKASH DESAI, N.V. RAMANA

                                                            REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.1133  OF 2014
                               ARISING OUT OF
                SPECIAL LEAVE PETITION (CRL) NO. 2531 OF 2014


CHERUKURI MANI                                … APPELLANT
W/O NARENDRA CHOWDARI

VERSUS

THE CHIEF SECRETARY, GOVERNMENT OF  … RESPONDENTS
ANDHRA PRADESH & ORS.


                                  JUDGMENT

N.V. RAMANA, J.

      Leave granted.
2.     The  appellant,  who  is  the  wife   of   one   Cherukuri   Narendra
Chowdari—detenu,  filed  a  writ   petition  under  Article   226   of   the
Constitution before the High Court  of  Andhra  Pradesh  alleging  that  her
husband has been unauthorisedly detained and the detention order passed  was
illegal and sought his release. The writ petition was dismissed by the  High
Court by the impugned order dated 28th October, 2013 stating that until  and
unless the competent Court of law decides the order of detention as  illegal
and invalid, it cannot be said that it is unauthorized detention.  Aggrieved
by the said order, the appellant has filed this appeal by special leave.
3.    The facts which are necessary for the  disposal  of  this  appeal  are
that the Collector & District Magistrate,  East  Godavari  District,  Andhra
Pradesh (Respondent No. 2) issued  a  preventive  detention  order  on  30th
September,  2013,  under  the  Andhra  Pradesh   Prevention   of   Dangerous
Activities  of  Bootleggers,  Dacoits,  Drug  Offenders,  Goondas,   Immoral
Traffic Offenders and Land Grabbers Act, 1986 (for short “the Act”)  stating
that the husband of the appellant (detenu)  has got all  the  attributes  to
be called as a ‘goonda’ as envisaged under Section 2(g)  of the Act.  It  is
also mentioned that he was involved in several cases of theft of  Government
and private properties as well as cases of destruction of public  properties
and his antisocial activities are harmful to the society and general  public
and referred 11 cases registered against him.
4.    It is significant to note that while passing the detention order,  the
Collector  made  it  clear  that  the  detenu  has  a  right   to   make   a
representation to the Government under Section 8(1) of the Act and the  case
will be referred to the Advisory Board for review and opinion under  Section
10 of the Act and the detenu can be heard personally by the Advisory  Board.
The Collector also indicated that the Government, on the  basis  of  opinion
of the Advisory Board, may confirm and continue the detention for  a  period
not exceeding 12 months from the date of detention.
5.    After having served with a copy of the detention order along with  the
grounds of detention, the husband of the appellant was  taken  into  custody
by Respondent No. 3 and from 5th  October,  2013  he  was  detained  in  the
Central Prison, Rajahmundry till date.
6.    It appears that on the basis of the recommendation  of  the  Collector
and after obtaining a report from the  Advisory  Board,  the  Government  of
Andhra Pradesh issued  G.O.Rt.  No.  4803,  dated  6th  November,  2013  and
directed detention of the detenu for a period  of  twelve  months  from  the
date on which he was detained i.e. 5th October, 2013.
7.    When the appellant challenged the detention of her husband before  the
High Court in a habeas corpus Writ Petition, the High  Court  dismissed  the
same with a cryptic order. In our considered view, when habeas  corpus  writ
petition is filed, even though the petitioner has not  properly  framed  the
petition and not sought appropriate relief, it is expected  from  the  Court
to at least go into the issue  and  decide  on  merits.  Normally,  in  such
matters where liberty of a person is at  stake,  the  Courts  would  take  a
liberal approach  in  the  procedural  aspects.  But  unfortunately  in  the
instant case, the  High  Court  has  dismissed  the  writ  petition  at  the
threshold itself.
8.    Before us, learned counsel for the appellant mainly contended that  as
per the provisions of  the  Act,  the  period  of  detention  in  the  first
instance shall not exceed more than three months and a person cannot be  put
under detention without facing trial for a long period. When the husband  of
the appellant—detenu is already facing charges under various  provisions  of
the Indian Penal Code in around 11 cases, the invocation of  detention  laws
against him and not permitting him to face the trial is bad in  law  and  it
is also contrary to Clause (4)(a) of  Article  22  of  the  Constitution  of
India.  He further contended that the Government Order  directing  detention
of the detenu for a period of 12 months is contrary to the proviso  to  sub-
Section (2) of Section 3 of the Act, and on this ground alone, the order  of
detention is liable to be set aside. To support his arguments,  he  strongly
relied on decisions of this Court in Rekha Vs. State of Tamil Nadu (2011)  5
SCC 244 and Munagala Yadamma Vs. State of Andhra Pradesh  &  Ors.  (2012)  2
SCC 386.
9.    On behalf of the State,  Mr.  A.T.M.  Rangaramanujam,  learned  senior
counsel supported the detention order and  sought  time  till  after  summer
vacation.
10.   Now the issue  for  consideration  before  us  is  whether  the  State
Government has the power to pass a detention order to detain a person  at  a
stretch for a period of 12 months under the provisions of the Act.
11.   To answer the above issue, it is necessary  to  examine  the  relevant
provisions of the Act. Section 3  of  the  Act  empowers  the  detention  of
certain  category  of  persons,  as  defined  under  the  Act.  Apart   from
conferring of power, the section regulates the manner of passing the  orders
of detention as well as their duration. It reads thus:

      Section 3: Power to make orders detaining certain persons  :  (1)  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  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 the 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.


12.   A reading of the above  provisions  makes  it  clear  that  the  State
Government,  District  Magistrate  or  Commissioner  of   Police   are   the
authorities, conferred with the power to pass orders of detention. The  only
difference is that the order of detention passed  by  the  Government  would
remain in force for a period of three months in the first Instance,  whereas
similar orders passed by the District  Magistrate  or  the  Commissioner  of
Police shall remain  in  force  for  an  initial  period  of  12  days.  The
continuance of detention beyond 12 days would depend upon  the  approval  to
be accorded by the Government in this regard.  Sub-section  (3)  makes  this
aspect very clear. Section 13 of the Act mandates that  the  maximum  period
of detention under the Act is 12 months.


13.   Proviso to Sub-section (2) of Section 3 is very clear in its  purport,
as to the operation of the order of detention from time to  time.  An  order
of detention would in the first instance be in force for a period  of  three
months. The Government alone is conferred  with  the  power  to  extend  the
period, beyond three months.  Such  extension,  however,  cannot  be  for  a
period, not exceeding three months,  at  a  time.  It  means  that,  if  the
Government intends to detain an individual under the  Act  for  the  maximum
period of 12 months, there must be an  initial  order  of  detention  for  a
period of three months, and at  least,  three  orders  of  extension  for  a
period not exceeding three months each. The expression "extend  such  period
from time to time by any period not exceeding three months at any one  time"
assumes significance in this regard.

14.   The requirement to pass order of detention from time to  time  in  the
manner referred  to  above,  has  got  its  own  significance.  It  must  be
remembered that restriction of initial period of detention to three  months,
is nothing but implementation of the mandate contained in Clause  (4)(a)  of
Article 22 of the Constitution of India. It reads as under:
      Clause 4 : No law providing for preventive detention  shall  authorize
      the detention of a person for a longer period than three months unless
      -

      (a) an Advisory Board consisting of persons who are or have  been,  or
      are qualified to be appointed as, Judges of a High Court has  reported
      before the expiration of the said period of three months that there is
      in its opinion sufficient cause for such detention:


      Provided that nothing in this sub-clause shall authorize the detention
      of any person beyond the maximum period prescribed by any law made  by
      Parliament under Sub-clause (b) of Clause (7); or


      (b) such person is detained in accordance with the provisions  of  any
      law made by Parliament under sub-clauses (a) and (b) of Clause (7).


15.   Where the law prescribes a thing to be done  in  a  particular  manner
following a particular procedure, it  shall  be  done  in  the  same  manner
following the provisions of  law,  without  deviating  from  the  prescribed
procedure. When the provisions of Section 3 of the Act clearly mandated  the
authorities to pass an order of detention at  one  time  for  a  period  not
exceeding three months only, the  Government  Order  in  the  present  case,
directing detention of the husband of the appellant for a period  of  twelve
months at a  stretch  is  clear  violation  of  the  prescribed  manner  and
contrary to the provisions of law. The Government cannot  direct  or  extend
the period of detention up to the maximum period of twelve  months,  in  one
stroke, ignoring the cautious legislative intention that even the  order  of
extension of detention must  not  exceed  three  months  at  any  one  time.
One should not ignore the underlying  principles  while  passing  orders  of
detention  or  extending  the  detention   period   from   time   to   time.
          16.     Normally, a person who is detained  under  the  provisions
of the Act  is  without  facing  trial  which  in  other  words  amounts  to
curtailment of his liberties and denial of  civil  rights.  In  such  cases,
whether continuous detention of such person is necessary or not,  is  to  be
assessed and reviewed from time to time.  Taking  into  consideration  these
factors, the Legislature has specifically provided the  mechanism  “Advisory
Board” to review the detention of a person. Passing a detention order for  a
period of twelve months at a stretch, without proper  review,  is  deterrent
to the rights of the detenu. Hence, the impugned Government Order  directing
detention for the maximum period of twelve  months  straightaway  cannot  be
sustained in  law.          
17.    Even  though,  learned  senior  counsel
appearing for the State sought for an adjournment  beyond  summer  vacation,
we are unable to accept his prayer for the simple reason that  maximum  part
of the period of detention of the detenu is going to complete by the end  of
summer vacation. Undisputedly, the detenu was detained on 5th October,  2013
which means that he remained under detention for about  seven  months  at  a
stretch  without  any  periodical  review  as  envisaged  by  law.  We  are,
therefore, of the considered opinion that the detention order passed by  the
Government of Andhra Pradesh  in  this  case  is  in  contravention  to  the
provisions of law. On this ground alone, without going  into  other  issues,
we thought this appeal has to be allowed and the order of detention  has  to
be quashed.                
18.    We accordingly allow the  appeal  quashing
the detention order issued by the Government of Andhra Pradesh  and  setting
aside the impugned judgment of the High Court. The detenu shall  be  set  at
liberty forthwith.

                                  ………………………………….J.
                                  (RANJANA PRAKASH DESAI)




                                  …………………………………J.
                                  (N.V. RAMANA)
NEW DELHI,
MAY 08, 2014.
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