THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE R. KANTHA RAO WP No.30825/2011 Dt. 8 -12-2011 Smt. Cheruku Lakshmi ..Petitioner V. 1. The Government of Andhra Pradesh, represented by its Chief Secretary, A.P. Secretariat, Hyderabad and others.. ..Respondents The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE R. KANTHA RAO WP No.30825/2011 ORDER (per the Honourable Justice A.GOPAL REDDY) The Collector & District Magistrate, Nalgonga District, Nalgonda, (for short “the detaining authority”) in exercise of powers conferred on him under section 2 of Section 3 of National Security Act, 1980 (for short “ the Act”) r/w G.O.Rt. No.4519 of General Administration (Law & Order-II) Department dt. 30-9-2011, in Proceedings No.C1/11340/2011 dt. 9-11-2011, directed the detention of Cheruku Sudhakar, S/o Ushaiah, with a view to prevent him from indulging in further activities prejudicial to the maintenance of public order and acts prejudicial to the maintenance of supplies and services essential to the community. The detention order dt. 9-11-2011 as approved by the Government of Andhra Pradesh in G.O.Rt.No.5186, General Administration (Law & Order.II) Department dt.17-11-2011. is challenged by the wife of detenu by means of present writ petition praying for issuance of a writ of ‘Habeas Corpus’ to release the detenu from detention. The detenu was taken into custody by the Circle Inspector of Police, Nakrekal Police Station and was detained in the Central Prison, Warangal, pursuant to the order of detention passed by the detaining authority under the Andhra Pradesh Preventive Detention Act, 1970 (for short “the Act No.1 of 1970”) in proceedings No.C/48/1 dt. 3-11-2011. While detenu was in custody, the detaining authority on the report of the Superintendent of Police, Nalgonga District, passed release order dt. 9-11-2011. On the same day, the present impugned order dt. 9-11-2011 has been passed as various cases numbering 18 were registered against the detenu under the various provisions of the Indian Penal Code and Criminal Law Amendment Act, 1932, informing him that he has a right to make a representation against the order of detention to the detaining authority before the detention order is approved by the Government to the Chief Secretary, Government of Andhra Pradesh and to the Advisory Board. The order of detention dt. 9-11-2011 has been approved by the Government in G.O.Rt.No.5186, General Administration (Law & Order.II) dt. 17-11-2011 under the provisions of Section 3 (2) (3) of the Act. Challenging the same, the present writ petition is filed contending that the detention order dt. 9-11-2011 was passed while detenu was in jail pursuant to the detention order dt. 3-11-2011 and deliberate suppression of earlier order of detention dt. 3-11-2011 and passing of release order dt. 9-11-2011 would vitiate the present detention order dt. 9-11-2011. Earlier detention order was passed under the Act basing on various crimes including Cr.No.35/2007 dt. 19-2-2007 and passing of detention order referring to Cr.No.35/2007 dt. 19-2-2007 is a stale ground, which offence was registered 3 ½ years prior to the passing of the detention order. Once the earlier detention order mentioning the detenu as rowdy sheeter etc., has been revoked, detaining him under the Act on the same set of cases would go to show that the impugned order was passed mechanically and without application of mind and without subjective satisfaction. The first respondent, who is the approving authority, approved the detention order through G.O.Rt.No.5186 dt.17- 11-2011 mechanically without there being any material placed before it by the detaining authority, namely, grounds of detention have to be forwarded under section 3(4) of the Act by the detaining authority. A detailed counter has been filed by the second respondent, disclosing the details of cases registered against the detenu, stating to prevent the detenu from indulging himself in similar offences, the impugned detention order has been passed duly informing him that he has a right to make representation to the detaining authority, Chief Secretary to Government and Advisory Board and the order of detention has also been approved by the Government through G.O.Rt.No.5186 dt. 17-11-2011. The detenu purposefully involved in damaging public and private properties and caused injuries to innocent passengers travelling in vehicles and also deterred the public servants from discharging their officials duties, by his acts, he is causing insecurity among general public, thereby affecting the public order. Though several crimes are registered, he did not mend his activities, which necessitate to pass the detention order. In para 14 of the counter-affidavit, it is stated that initial detention order dt. 3-11- 2011 was revoked on 9-11-2011 and on the same day the present impugned detention order has been passed as earlier order, which was revoked was passed under the bona fide impression that the Andhra Pradesh Preventive Detention Act, 1970 is in vogue but later learnt that the said Act was superseded by the National Security Act, 1980. When detenu specifically pleaded in para 11 (xii) to (xiv) that the detaining authority ignored the constitutional right of the detenu and imposed detention as a measure of vindictive action, rather than a preventive measure, the same has been replied by filing affidavit stating that it is false to aver that the detaining authority ignored constitutional right of the detenu and imposed detention as a measure of vindictive action, rather than preventive measure. Sri D. Prakash Reddy, learned Senior Counsel appearing for the petitioner makes three fold contentions. Firstly, he contends that though it has been specifically pleaded in Ground No.(xviii) that the Government Order approving the order of detention is not in accordance with law, the said pleading has not been denied by the detaining authority in para 9 of his counter-affidavit and therefore, it is deemed to have been accepted. Mandatory requirement as contained under section 3 (4) of the Act has not been complied with, namely, when an order is made under section 3 by the officer mentioned in sub-section (3) of section 3 of the Act, he shall forthwith report the fact to the State Government, which he is subordinate, together with the grounds on which the order has been made and such particulars have a bearing on the matter. The grounds of detention have not been enclosed along with the detention order, which admittedly were furnished to the detenu on 13-11-2011. When the said fact has not been referred to in the G.O.Rt.5186 dt. 17-11-2011, the same would vitiate the detention order. In support of the said contention, he placed reliance on the judgment of the Supreme Court in SHER MOHAMMAD @ SERU V. STATE OF WEST BENGAL[1]. Earlier detention order was passed under Act 1/70 and the present detention order was passed only adding the provisions of the present Act, no endeavour has been made to explain how the present detention order was came to be passed. There is no reference of the release order passed releasing the detenu from the detention pursuant to the order dt.3-11-2011 by the detaining authority on the report of the Superintendent of Police, Nalgonda District, in the impugned detention order, but in the counter-affidavit, the detaining authority made an improvement stating that first order was revoked as there was bona fide mistake and hence the impugned detention order was passed, which is in violation of mandatory provisions of the Act. In support of the same, learned Senior Counsel relied on the judgment of the Supreme Court in AVTAR SINGH V. STATE OF J & K[2]. It was nextly contended that bail was granted in the cases mentioned under ground Nos.2 and 3 and Section 7(1) of Criminal Law Amendment Act,1932 was mentioned in ground No.5, but Section 7(1) of the Criminal Law Amendment Act. was not included in Cr.No.217/2009 of Nakrekal Police Station, which would vitiate the detention order. Per contra, Smt. Mohana Reddy, learned Assistant Government Pleader representing the Advocate General, while supporting the detention order contended that the earlier detention order was passed under the Act 1 of 1970 and on noticing that it was passed on a bona fide mistake, said order has been revoked and fresh impugned detention order has been passed on the date of revocation itself. Grounds of detention were forwarded to the State Government along with the detention order and after considering the grounds of detention, the State Government approved the same. In the meanwhile, the detenu was admitted in MGM Hospital, Warangal, therefore, the detenu could not appear before the Advisory Board on 25-11-2011 and it was adjourned to some other date. As the detenu was involved in as many as 18 crimes and ordinary law could not prevent from his illegal activities, he was detained by the detention order, which does not suffer from any illegality warranting interference by this court. Justice P.N.Bhagwati, speaking for a four-Judge Bench of the Supreme Court in Khudiram Das V. State of W.B.[3] has enumerated few grounds evolved by judicial observations for saying that no subjective satisfaction has been arrived at by the authority as required under the statute, which are as follows: 1) Whether the authority has not applied its mind at all. 2) There may be a case where the power is exercised dishonestly or for an improper purpose. 3) Satisfaction, moreover, must be a satisfaction of the authority itself. 4) 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. 5) Where the satisfaction is based on the application of a wrong test or the misconstruction of a statute. 6) The satisfaction must be grounded on materials which are of rationally probative value. The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the facts in respect of which the satisfaction has to be recorded. 7) The authority has come to a conclusion so unreasonable that no reasonable authority could ever have come to it, then the court can intervene. The file produced by the State Government discloses the Collector & District Magistrate, Nalgonda on passing the earlier detention order dt. 3-11-2011 under the provisions of Act 1 of 1970, submitted a copy of the detention order together with the grounds on which the order has been made for approval of the Government to the Chief Secretary to Government, General Administration (L&O-II) Department, Andhra Pradesh, Hyderabad. On 11-11-2011, Principal Secretary to Government sent a fax message to the Secretary to Government (Legal Affairs) Law Department, Secretariat, Hyderabad, informing as follows” “It is informed that the file bearing C.No.35420/L&O.II)/2011 relating to preventive detention case of Dr.Cheruku Sudhakar of Nalgonda District, who has been detained under the provisions of A.P. Preventive Detention Act, 1970, has been referred to Law Department on 9-11-2011 and the return of the file is awaited. As you are aware the P.D cases are to be approved within the time frames by the Government. In the instant case, the detention order has to be approved by the Government within 12 days and 9 days have already elapsed and the next two days are falling on public holidays on account of Second Saturday and Sunday. It is therefore, requested to arrange for return of the file along with the considered opinion of the Law Department immediately in view of the fast approaching the limitation of time prescribed by the Act.” On 12-11-2011, a draft note was put up for approval of rejection of the proposal of Collector & District Magistrate, Nalgonda for approval of the detention order passed in Proceedings C.No.C.148/11, dt. 3-11- 2011 against Dr.Cheruku Sudhakar, S/0 Ushaiah of Nalgonda District. On approval of rejection, Chief Secretary to Government issued a Memo No.35420/L&O-II/A1/2011-1 dt. 12-11-2011 rejecting the proposal of Collector & District Magistrate, Nalgonda for approval of the detention order passed against Dr.Cheruku Sudahakar. Further, considering the matter of detention of individuals under the provisions of Act 1 of 1970, the Government issued circular Memo No.35420/L & O-II/A1/2011-2 dt. 12-11-2011 informing all the District Collectors and District Magistrates in the State that the National Security Act, 1980 and A.P. Preventive Detention Act, 1970 are in respect of same subject matter and National Security Act, 1980 will prevail over State Laws and A.P. Preventive Detention Act, 1970 has been superseded by the National Security Act, 1980, hence, passing of detention under the provisions of Act 1 of 1970, which is not in existence, amounts to non-application of mind by the detaining authority. In view of the above discussion, we have no hesitation to hold that the detention order dt. 9-11-2011 passed by the detaining authority is ante dated, which obviously was passed only after Government rejecting the proposal of the detaining authority for approval of the detention order dt. 3-11-2011. The above view of ours is also supported by the Fax message No.35420/L&O- II/A1/2011-3 dt. 14-11-2011 given by the Principal Secretary to Government (Poll) to the detaining authority, which reads as under: “Please refer to the order of detention made by you in respect of Dr. Cheruku Sudhakar, Nalgonda District in C.No.11340/2011 dt. 9-11- 2011 under section 3(2) of the National Security Act, 1980. It is to inform that the grounds of detention have not been enclosed with the detention order and also other required material relating to the cases referred in the grounds of detention. It is therefore requested to depute the concerned to handover five sets of detention orders along with grounds of detention and all the relevant material relating to the cases referred in the grounds of detention viz., FIRs, 161 statements recorded, FSL reports, Medical certificates if any, charges, if filed, bail petitions and bail orders, and all relevant documents showing the participation of the detenu in commission of offences urgently in booklet forms in General Administration (Law &Order-II) Department, Secretariat, Hyderabad, so as to enable the Government to take necessary action in the matter. All the sets should properly be indexed with page nos. etc., Matter is most immediate.” But, curiously, before receiving the above fax message by the detaining authority, a letter dt. 13-11-2011 was addressed by the detaining authority to the Chief Secretary to Government, General Administration (L&O-II) Department, Andhra Pradesh, Hyderabad, enclosing grounds of detention, which admittedly were received in the office of Principal Secretary (Poll), General Administration Department, Hyderabad on 14-11-2011, and concerned section on 15-11-2011. By the said dates, a representation dt. 11-11-2011 made on behalf of the detenu by Sri Chukka Ramaiah, MLC; Sri Pothuri Venkateshwar Rao, Senior Journalist; Professor Hara Gopal, Professor Melkote, Social Thinkers and Activists land Sri S.Jeevan Kumar, Human Rights Activist, was received in the Chief Secretary’s Office by endorsement “PS,GA (Poll) x x x 11/11/2011” and inward stamps of Principal Secretary (Poll),General Administration Department, Hyderabad and Chief Secretary dt. 14-11-2011 and initials dt.16-11-2011 under words “JS”. The said representation has not been considered by the State Government while approving the detention order through G.O.Rt.No.5186 dt. 17-11-2011. Sub-section (4) of the section 3 of the Act mandates that when an order of detention is made by an officer mentioned in sub- section (3) he shall forthwith report the facts to the State Government to which he is subordinate 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 State Government. The Supreme Court in KESHAV NILKANTH JOGLEKAR V.COMMISSIONER OF POLICE[4] has in clear terms stated that they do not wish to underscore the need of the strict compliance with the requirement and it is important requirement intended to secure that the State Government shall have sufficient time for consideration before it decides to give approval within 12 days of making of the order of the detention and the court would therefore insist on the strict compliance with it and not condone avoidable delay. The Gujarath High Court in MAN SINGH BABU SINGH THAKORE V. COMMISSIONER OF POLICE[5] observed that sending the copies of the grounds and other particulars, which in the opinion of the detaining authority, have bearing on the matter is not a matter of idle formality, it is a basic material on the basis of which detention order is passed by the detaining authority and the State Government has to consider the said materials before approving the order. In that view of the matter, mere intimation of the fact of the detention order to the State Government in absence of copies of grounds and other particulars having baring on the matter cannot be said to be due compliance of sub-section (3) of section 3 of the Act. The view expressed by the Gujarath High Court in MAN SINGH BABU SINGH THAKORE (3 supra) has been propagated by the Allahabad High Court in KISHORE V. STATE OF UP[6]. In AVTAR SINGH (2 supra) it was held once the detenus were arrested pursuant to orders of detention made against them under the Jammu & Kashmir Public Safety Act and it was subsequently revoked and fresh orders of detention was made against the detenus, which does not indicate that the detaining authority was aware that the detenus were already in detention for some months; nor does it indicate whether the detaining authority considered the question whether further detention of the detenus was necessary in the circumstances and to consider the question whether the further detention of the detenus was necessary despite the revocation of the earlier orders, it can be concluded that the orders of detention were made in a mechanical fashion without application of mind. In the present case, there is no reference about the earlier order passed by the detaining authority under the Act 1 of 1970 and its revocation and it was necessary to detain the detenu further under the Act. It is fairly well settled that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. (See: MOHINDER GILL V. CHIEF ELECTION COMMISSIONER=(1978) 1 SCC 405) Admittedly, in the present case, the grounds of detention have not been forwarded, forthwith, by the detaining authority, to the State Government, but they were received by the State Government on 14-11-2011. By the said date, a representation dt. 11-11-2011 made by the human rights activists from various walks of life was available with the State Government. The State Government in a mechanical manner without referring to the grounds of detention and the representation so made by the eminent personalities approved the detention order, which is evident from the approval order of the Government. As rightly contended by the learned Senior Counsel for the petitioner that though Cr.No.217/2009 was registered by the Nakrekal Police Station for the offences under Sections 147, 148, 324, 427, 188,341,406,149 IPC and Sec.3 of P.D.P.P.Act and charge sheet was filed before the concerned criminal court for the offences punishable under Sections 147, 148, 324,427,188,341,506 r/w 149 IPC and 3 of PDPP Act, Section 7(1) of Criminal Law Amendment Act,1932 of P.S.Nakrekal has been included in Ground No.5 along with the other offences, which vitiates the detention order. It is not necessary for us to dwell deep into the matter in the absence of repeal of the Act 1 of 1970 (State Act), whether the Act 1 of 1970 is impliedly superseded by the National Security Act, 1980 (Central Act) or to the extent of repugnancy only it is inoperative in view of Art. 254 of the Constitution since we have satisfied that the detention order is passed on irrelevant ground a n d total non application of mind and the State Government mechanically approved and confirmed the detention order passed by the detaining authority. For the conclusions reached by us, we are of the opinion that the detention order dt. 9-11-2011 passed by the Collector and District Magistrate, Nalgonda District, as approved by the Government of Andhra Pradesh in G.O.Rt.No.5186, General Administration (Law & Order.II) Department dt. 17-11-2011 and confirmed in G.O.Rt.No.5431, General Administration (Law & Order.II) Department dt. 6-12-2011, suffers from manifest illegality and deserves to be quashed and it is accordingly quashed. Consequently, detenu, Dr. Cheruku Sudhakar S/o Ushaiah, shall be set at liberty forthwith, if he is not required in any other case. The writ petition is accordingly allowed. No costs. --------------------- A.GOPAL REDDY,J ------------------- R.KANTHA RAO,J DT. 8-12-2011 Kmr [1] AIR 1975 SC 2049= (1975) SCC (2) 2 [2] (1985) 1 SCC 562 [3] AIR 1975 SC 550 [4] AIR 1957 SC 28 [5] 1989 Crl.,L.J. 1573 (Guj) [6] 1998 Crl.L.J. 2792 (All)