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)
J U D G M E N T
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 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 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 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 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 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 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.”
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 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 King[4], 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
Others[5], 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 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
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 (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 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.
Shields[8], 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 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 exercising 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 Corporation.”
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:-
“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 detaining 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 apprehension of the detaining authority was true, the bail
application 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
-----------------------
[1]
[2] (1974) 4 SCC 530
[3]
[4] (2012) 2 SCC 389
[5]
[6] (1992) 1 SCC 434
[7]
[8] AIR 1950 FC 129
[9]
[10] (1975) 2 SCC 81
[11]
[12] (1989) 4 SCC 741
[13]
[14] (1979) 2 SCC 491
[15]
[16] (1914) AC 808
[17]
[18] (1985) 4 SCC 232
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)
J U D G M E N T
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 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 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 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 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 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 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.”
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 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 King[4], 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
Others[5], 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 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
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 (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 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.
Shields[8], 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 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 exercising 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 Corporation.”
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:-
“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 detaining 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 apprehension of the detaining authority was true, the bail
application 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
-----------------------
[1]
[2] (1974) 4 SCC 530
[3]
[4] (2012) 2 SCC 389
[5]
[6] (1992) 1 SCC 434
[7]
[8] AIR 1950 FC 129
[9]
[10] (1975) 2 SCC 81
[11]
[12] (1989) 4 SCC 741
[13]
[14] (1979) 2 SCC 491
[15]
[16] (1914) AC 808
[17]
[18] (1985) 4 SCC 232
