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.
-----------------------
10
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.=
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.
-----------------------
10
