*THE HON'BLE MR JUSTICE G. BIKSHAPATHY AND *THE HON'BLE MR JUSTICE CH.S.R.K. PRASAD +WRIT PETITION NOS. 17997 of 2004, 18059 OF 2004 & 18132 OF 2004 %WEDNESDAY THE WENTY FOURTH DAY OF NOVEMBER TWO THOSUAND AND FOUR +WRIT PETITION NO : 17997 of 2004 #S. PRASAD REDDY ..... PETITIONER VS. $1. THE COLLECTOR AND DISTRICT MAGISTRATE, ANANTAPUR 2. THE GOVERNMENT OF ANDHRA PRADESH REP. BY ITS CHIEF SECRETARY, HYDERABAD. 3. THE SUPERINTENDENT OF CENTRAL PRISON, CHERLAPALLY, RANGA REDDY DISTRICT. .....RESPONDENTS WRIT PETITION NO : 18059 of 2004 #M. VENKAT RAMI REDDY ..... PETITIONER VS. $1. THE COLLECTOR AND DISTRICT MAGISTRATE, ANANTAPUR 2. THE PRINCIPAL SECRETARY FOR HOME, SECRETARIATE, HYDERABAD. 3. THE SUPERINTENDENT, CENTRAL PRISON, CHERLAPALLI, RANGA REDDY DISTRICT. .....RESPONDENTS WRIT PETITION NO : 18132 of 2004 B. PADMA PRIYA. ..... PETITIONER VS. $1. THE COLLECTOR AND DISTRICT MAGISTRATE, O/O DISTRICT COLLECTOR, ANANTAPUR, ANANTAPUR (DISTRICT). 2. THE CHIEF SECRETARY , GOVT. OF ANDHRA PRADESH, SECRETARIATE, HYDERABAD. 3. THE SECRETARY, DEPT. OF GENERAL ADMINISTRATION, GOVT. OF A.P. SECRETARIATE, HYDERABAD. 4. THE SUPERINTENDENT, CHERLAPALLI CENTRAL JAIL, HYDERABAD. .....RESPONDENT(S) !COUNSEL FOR THE PETITIONER:MR.C.PADMANABHA REDDY ^COUNSEL FOR THE RESPONDENT:ADVOCATE GENERAL <GIST: <HEAD NOTE: ? 1. A.I.R. 1974 S.C. 2154 2. (1984)1 S.C.C. 25 3. (2004)3 S.C.C. 75 4. 2004(1) Decisions Today (S.C.) 906 5. 1992 SUPP.(1) S.C.C. 496 6. 2000(8) S.C.C. 630 7. 1995 S.C.C. (CRL.) 454 8. 2004 CRL.L.J. 3153 9. AIR 1981 S.C. 431 10. AIR 1975 S.C. 1516 11. air 1984 S.C. 211 12. (1986)4 S.C.C. 378 13. 1989 SUPP.(1) S.C.C. 322 14. (1989)3 S.C.C. 321 15. (1989) SUPP.(2) S.C.C. 576 16. (1992)2 S.C.C. 177 17. AIR 1982 S.C. 1315 18. 1997(2) A.L.T. (Crl.) 146(D.B) A.P. 19. (1970)1 S.C.C. 98=1970 S.C.C. (Cri.)67 20. (1999)5 S.C.C. 613 21. AIR 1994 S.C. 165 22. AIR 1974 S.C. 2337 23. AIR 1982 S.C. 1143 24. AIR 1972 S.C. 2259 25. AIR 1972 S.C. 1656 26. (1973)1 S.C.C. 393 27. (1974)4 S.C.C. 504 28. AIR 1972 S.C. 2256 29. AIR 1973 S.C. 897 30. 1994(3) A.L.T. 467(D.B) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE G. BIKSHAPATHY and THE HON'BLE MR JUSTICE CH.S.R.K. PRASAD WRIT PETITION Nos: 17997/2004, 18059/2004, 18132/2004 1. WRIT PETITION NO : 17997 of 2004 Between: S. Prasad Reddy S/o Veera Reddy, R/o Srinivasapuram, Tadipatri Town, Anantapur District. ..... PETITIONER AND 1. The Collector and District Magistrate, Anantapur 2. The Government of Andhra Pradesh rep. by its Chief Secretary, Hyderabad. 3. The Superintendent of Central Prison, Cherlapally, Ranga Reddy District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ of Habeas corpus under Art 226 of the Constitution of India directing the Respondents to produce the detenu Sangati Ravindra Reddy @ Potti Ravi S/o Veera Reddy, now detained in Central Prison, Cherlapaly before the Hon’ble High Court and he may be ordered to be released forthwith after declaring that his detention is illegal and void. 2. WRIT PETITION NO : 18059 of 2004 Between: M. Venkat Rami Reddy S/o Peddi Reddy, R/o Sanjeevapuram village, B.K. Samudram Mandal, Anantapur District. ..... PETITIONER AND 1. The Collector and District Magistrate, Anantapur 2. The Principal Secretary for Home, Secretariate, Hyderabad. 3. The Superintendent, Central Prison, Cherlapalli, Ranga Reddy District. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ of Habeas corpus under Art 226 of the Constitution of India directing the respondents to produce Mukkamula Chinna Venkata Reddy S/o Peddi Reddy now detained in Central Prison, Cherlapaly before the Hon’ble High Court and may be ordered to release forthwith declaring that his detention is illegal and void. 3. WRIT PETITION NO : 18132 of 2004 Between: B. Padma Priya W/o B. Jagadeeswara Reddy R/o Near Rice Godown, Putlur Road, Tadipatri, Anantapur District. ..... PETITIONER AND 1. The Collector and District Magistrate, O/o District Collector, Anantapur, Anantapur (District). 2. The Chief Secretary, Government of Andhra Pradesh, Secretariat, Hyderabad. 3. The Secretary, Dept. of General Administration, Government of Andhra Pradesh, Secretariat, Hyderabad. 4. The Superintendent, Cherlapalli Central Jail, Ranga Reddy District, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ of Habeas corpus under Art 226 of the Constitution of India directing the respondents to produce the detenue Sri B. Jagadeeswara Reddy, Tadipatri detained in C.No. 5001-7/MC/2004, dated: 17.9.2004 now lodged in Charlapally Central Prison, Hyderabad before the Hon’ble High Court and he may be released forthwith after declaring the detention is illegal and invalid and unconstitutional. Counsel for the Petitioner:MR.C.PADMANABHA REDDY (In all the cases) Counsel for the Respondent: THE ADVOCATE GENERAL (In all the cases) The Court made the following : COMMON JUDGMENT: (per G. Bikshapathy J) 1. Common questions of law are raised in these Writ Petitions and hence they are being disposed of by a common judgment, however, keeping in view the incidents in each individual case. 2. The Collector and the District Magistrate, Anantapur by virtue of the powers vested in him under Section 3 of A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act (1 of 1986) (for brief the ‘Act’), passed Orders of detention. Consequently, writs of habeas corpus came to be filed by the petitioners on behalf of detenus seeking production and release of the detenus after holding the Order of detention as illegal and invalid. 3 . The learned Senior Counsel appearing for the petitioners and the learned Advocate General have elaborately and minutously argued most of the general issues arising out of preventive detention Orders. Therefore, it became inevitable for us to deal with each and every contention in extenso. 4. The learned Senior Counsel appearing for the petitioners Mr. C. Padmanabha Reddy advanced the following common submissions in the Writ Petitions: 1. The grounds referred to in the detention Order are stale and not proximate to the Order of detention. There is also no rationale nexus to the conclusions drawn in the detention Order. 2. The detention orders were issued on vague, irrelevant and extraneous grounds. 3. The acts alleged to have been committed by the detenu would not fall within the wider spectrum of “Public Order”, but they are merely “Law and Order” for which preventive detention measures cannot be invoked. 4. Detenu did not fit in the definition of “Goonda” as defined under Section 2(g) of the Act, since the offence alleged to have been committed by the detenu would not fall within the Chapter XVI, XVII and XXII of the I.P.C. 5. The grounds of detention were issued on the ground of political rivalry, unless it falls within the mischief of public Order, the detention based on political rivalry and consequential illegal acts cannot be taken into consideration. He refers to number of decisions, which would be discussed infra. 5. Per contra, the learned Advocate General tracing the genesis of the Act submits that the very intention of the Act is to prevent the person from acting in any manner prejudicial to the maintenance of public order. In such a situation, the Order of detention cannot be attacked on the premise of stale and irrelevant grounds in the Order of detention. These grounds are only taken into consideration for assessing the propensity of the detenu and the mere reference would not invalidate the Order of detention. Making submission on the expression “Public Order” and “Law and Order”, the learned Advocate General, however, submits that even though there is marked difference between these two expressions, yet, they have to be interpreted keeping in view the nature of activities of the detenu and its affect on the community at large. He submits that the issue relating to “Law and Order” at times takes the colour of “Public Order” also and therefore, each case has to be decided on its own merits. Submitting the contentions with regard to the definition of the expression “Goonda”, the learned counsel would submit that even though the offences punishable under Chapter XVI, XVII and XXII of IPC are sine qua non for bringing a person within the definition of “Goonda”, but reference to any ancillary act, being an offence under the other provisions of Indian Penal Code or the other enactment is not a bar and mere reference would not vitiate the detention Order. The definition does not totally prohibit from taking into consideration the illegal activities of the detenu, which fall within the category of offences under other provisions of Indian Penal Code or other enactments. Reacting to the ground of political rivalry, the learned Advocate General submits that large-scale horror and looting and damage to the property of the citizens are being resorted to by the political rivalries and when once it is found that their act falls within the parameters of the public Order, it is immaterial whether act was done on account of the political rivalry or otherwise, it is always open for the detaining authority to invoke the provisions of the Act to maintain the peace and harmony in the area. He also refers to the decisions of the Supreme Court, which are discussed hereinafter. 6. After having heard the learned Senior Counsel for the petitioners and also the learned Advocate General at length, we are inclined to deal with each contention individually and thereafter apply the principles to the facts of each case with regard to the sustainability of the Orders of detention. 7. Before dwelling into the respective contentions, we feel it appropriate to refer to the provisions of the Act. The Act entered into force with effect from 28.2.1986. It is an Act to provide for preventive detention of Bootleggers, Dacoit, Drug-offender, Goonda, Immoral Traffic Offender or Land-grabber for preventing their dangerous activities prejudicial to the maintenance of the public Order. The Preamble of the Act reads thus: “Whereas public order is adversely affected every now and then by the dangerous activities of certain persons, who are known as bootleggers, dacoits, drug offenders goondas, immoral traffic offenders and land grabbers. And whereas having regard to the resources and influence of the persons by whom, the large scale on which, and the manner in which the dangerous activities are being clandestinely organised and carried on in violation of law by them, as bootleggers, dacoits, drug offenders, goondas, immoral traffic offenders or land grabbers in the State of Andhra Pradesh and particularly in its urban areas, it is necessary to have a special law in the State of Andhra Pradesh to provide for preventive detention of these six classes of persons and for matters connected therewith” Six classes of persons were defined in the Act. However, since we are only concerned with the definition of Goonda, the same is extracted below: “Goonda” means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code.” Section 3 empowers the competent authority to issue the detention Order which reads thus: “Power to make orders detaining certain persons:- 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. (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 this section by an officer mentioned in sub section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the Government.” The expression “acting in any manner prejudicial to the public order” is defined in Section 2(a) of the Act, which reads thus: "Acting in any manner prejudicial to the maintenance of public order" means when a boot legger, 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 or widespread danger to life or public health.” Therefore, in order to invoke the provisions of the Act, it is necessary that the person or persons concerned shall not only fall within the six categories referred to above, but also answer to the expression acting in any manner prejudicial to the maintenance of the public order. 8. Tracing out the necessity for preventive detention and its basic concepts, the Supreme Court in HARADHAN SAHA Vs. STATE OF WEST BENGAL while dealing with the constitutional validity of the Maintenance of Internal Security Act, 1991 observed thus: “The essential concept of preventive detention is that detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove (sic) (on proof of) his quite and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in Section 3 of the Act to prevent.” The prosecution and detention are different. The authorities are different. In preventive detention the past acts are necessarily the material for inference about the future course of probable conduct on the part of the detenu. The Supreme Court laid down 5 principles to be kept in view in dealing with the preventive detentions, which reads thus: “First, merely because a detenu is liable to be tried in a criminal Court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances. (See: HARADHAN SAHA Vs. THE STATE OF WEST BENGAL (AIR 1974 S.C. 2154)”. 9. In THE DISTRICT MAGISTRATE, NOWGONG Vs. SARAT MUDOI, the Supreme Court observed thus: “The basis for an order of preventive detention is the reasonable prognosis of the future behaviour of the person based upon his past conduct. It is open to the detaining authority to take note of the past conduct of a detenu and apprehending repetition of such conduct in future an order of detention can be made with a view to preventing such action.” 10. In UNION OF INDIA Vs. AMRIT LAL MANCHANDA, the Supreme Court observed in para 9 thus: “Before dealing with rival submissions, it would be appropriate to deal with the purpose and intent of preventive detention. Preventive detention is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the concerned law. The action of Executive in detaining a person being only precautionary, normally the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner, the failure to conform to which should lead to detention. The satisfaction of the Detaining Authority, therefore, is considered to be of primary importance, with great latitude in the exercise of its discretion. The Detaining Authority may act on any material and on any information that it may have before it. Such material and information may merely afford basis for a sufficiently strong suspicion to take action, but may not satisfy the tests of legal proof on which alone a conviction for offence will be tenable. The compulsions of the primordial need to maintain order in society without which the enjoyment of all rights, including the right to personal liberty of citizens would lose all their meaning provide the justification for the laws of prevention detention. Laws that provide for preventive detention posit that an individual's conduct prejudicial to the maintenance of public order or to the security of State or corroding financial base provides grounds for satisfaction for a reasonable prognostication of possible future manifestations of similar propensities on the part of the offender. This jurisdiction has at times been even called a jurisdiction of suspicion. The compulsions of the very preservation of the values of freedom of democratic society and of social order might compel a curtailment for individual liberty. "To lose our country by a scrupulous adherence to the written law" said Thomas Jefferson "would be to lose the law itself with life, liberty and all those who are enjoying with us thus absurdly sacrificing the end to the needs." This, no doubt is the theoretical jurisdictional justification for the law enabling preventive detention. But the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by striking the right balance between individual liberty on the one hand and the needs of an orderly society on the other.” 11. Again in THE COMMISSIONER OF POLICE Vs. SMT. C. ANITA, the Supreme Court reiterated the same principles. 12. The Supreme Court has also highlighted the area of interference under Article 226 and also 32 of Constitution of India in respect of the preventive detention Orders. One of the leading judgments on the subject is ADDITIONAL SECRETARY TO THE GOVT. OF INDIA AND OTHERS. V. SMT. ALKA SUBHASH GADIA. In para 12 of the said judgment it was observed by the Supreme Court as under: "12. This is not to say that the jurisdiction of the High Court and the Supreme Court under Articles 226 and 32 respectively has no role to play once the detention - punitive or preventive - is shown to have been made under the law so made for the purpose. This is to point out the limitations, which the High Court and the Supreme Court have to observe while excising their respective jurisdiction in such cases. These limitations are normal and well known and are self-imposed as a matter of prudence, propriety, policy and practice and are observed while dealing with cases under all laws. Though the Constitution does not place any restriction on these powers, the judicial decision have evolved them over a period of years taking into consideration the nature of the legislation or of the order or decision complained of, the need to balance the rights and interests of the individual as against those of the society, the circumstances under which and the persons by whom the jurisdiction is invoked, the nature of relief sought, etc. To illustrate these limitations, (i) in the exercise of their discretionary jurisdiction the High Court and the Supreme Court do not as Courts of appeal or revision, correct mere errors of law or of facts; (ii) the resort to the said jurisdiction is not permitted as an alternative remedy for relief which may be obtained by suit or other mode prescribed by statute. Where it is open to the aggrieved person to move another Tribunal or even itself in another jurisdiction for obtaining redress in the manner provided in the statute, the Court does not, by exercising the writ jurisdiction, permit the machinery created by the statute to be by-passed; (iii) it does not generally enter upon the determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed; (iv) it does not interfere on the merits with the determination of the issues made by the authority invested with statutory power, particularly when they relate to matters calling for expertise, unless there are exceptional circumstances calling for judicial intervention, such as, where the determination is mala fide or is prompted by the extraneous considerations or is made in contravention of the principles of natural justice of any constitutional provision; (v) the Court may also intervene where (a) the authority acting under the concerned law does not have the requisite authority or the order which is purported to have been passed under the law is not warranted or is in breach of the provisions of the concerned law or the person against whom the action is taken