THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO WP No.16193/2011 Dt.18 -8-2011 Chappidi Raja Naidu ..Petitioner ..Appellants/A-1,A-2 & A-5 V. 1. The Collector & District Magistrate, Kadapa and others. ..Respondents ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO WP No.16193/2011 ORDER (per the Honourable Justice A.GOPAL REDDY) The Collector & District Magistrate, Kadapa, (for short “the detaining authority”) in exercise of powers conferred on him under Section 3(1) read with 3 (2) of A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goonnndas, Immoral Traffic S.No. Cr.No. Police Station Sections Material seized 1 O.R.No.20/2008-2009 dt. 10-7-2008 Forest Range Office, Sanipaya Range U/ss.20(1)(c)(ii) (iii) (iv), (vi) and (x), 29(4) of A.P. Forest Act, 1967; Rule 3 of A.P. Sandal Wood and Red Sanders Wood Transit Rules; ss. 34, 107120-B and 379 IPC 60 Red sanders logs (weight 1819 kgs) 2 O.R.No.28/2008-2009 dt. 30-7-2008 F o r e s t Range Officer, Rayachoty Range U/ss.20(1)(c) (iii) (iv), (vi) and (x), 29(4) of A.P. Forest Act, 1967; Rule 3 of A.P. Sandal Wood and Red Sanders Wood Transit Rules; ss.378 ,107 and 379 IPC 20 Red sanders logs (weight 611 kgs) 3 O.R.No.29/2008-2009 dt. 2-8-2008 F o r e s t Range Officer, Rayachoty Range U/ss.20(1)(c)(ii) (iii) (iv), (vi) and (x), 29(4) of A.P. Forest Act, 1967; Rule 3 of A.P. Sandal Wood and Red Sanders Wood Transit Rules; ss.34, 107, 141,143 and 149 and 379 IPC 3 2 1 Red sanders logs (weight 9044 kgs) 4 O.R.No.28/2008-2009 dt. 19-7-2008 F o r e s t Range Officer, Sidhout Range U/ss.20(1) (c) (ii) (iii) (iv), (vi) and (x), 29(4) of A.P. Forest Act, 1967; Rule 3 of A.P. Sandal Wood and Red Sanders Wood Transit Rules; ss.34, 107, 141,143 and 149 and 379 IPC 2 4 5 Red sanders logs (weight 7413 kgs) 5 O.R.No.81/2008-2009 dt. 5-12-2008 F o r e s t Range Officer, Vempalli Range U/ss.20(1) (c)(ii) (iii) (iv), (vi) and (x), 29(4) of A.P. Forest Act, 1967; Rule 3 of A.P. Sandal Wood and Red Sanders Wood Transit Rules; ss.34, 107, 141,143 and 149 and 379 IPC 1 4 0 Red sanders logs (weight 4650 kgs) Offenders and Land Grabbers Act, 1986 (for short “the Act 1 of 1986”) in Proceedings No.C1/869/M/09 dt, 11-12-2009, directed the detention of Chappidi Mahesh Naidu S/o Raju Naidu, with a view to prevent him from causing much damage to the national wealth by trespassing, cutting, dressing and transporting the red sanders wood from forest. The detention order dt. 11-12-2009 as approved by the Government of Andhra Pradesh in G.O.Rt.No.6091 dt. 21-12-2009, General Administration (Law & Order.II) Department dt. 21-12-2011 and confirmed in G.O.Rt.No.2397, General Administration (Law & Order.II) Department dt. 1-6-2011, is challenged by the father of detenu by means of present writ petition praying for issuance of a writ of ‘Habeas Corpus’ to release his son ie., the detenu from detention. Before we proceed to consider the contentions raised in the writ petition, we may profitably refer to factual allegations made in the grounds of detention so far they are relevant for our present purposes. Briefly stated the list of cases as shown in the ground of detention dt. 11-12-2009, which have been considered by the detaining authority for drawing his subjective satisfaction: In all the above cases, prosecution orders have been issued by the Divisional Forest Officer, Kadapa against the detenu and his associates for the offences as listed in the above table and charge sheets were filed in the concerned criminal courts. In the order of detention, the detaining authority requested the Superintendent of Police, Kadapa to take the detenu into custody and hand over him to the Superintendent of Central Prison, Cherlapalli, Ranga Reddy District immediately. Grounds of detention could not be served on the detenu as he was absconding. On coming to know that the detenu was surrendered before the IV Additional Judicial First Class Magistrate, Tirupathi on 18-4-2011 in Cr.No.87/2005 of West Police Station, Tirupathi and he was remanded to judicial custody in CC No.766/2009, the forest officials addressed a letter to the Additional Judicial Magistrate of First Class, Kadapa seeking permission to implement the detention order passed against the detenu as approved and confirmed by the Government. The said application was returned by the Magistrate stating that he cannot entertain such application. On the petition filed by the forest officials, the District & Sessions Judge, YSR District issued instructions to the II Additional Munsif Magistrate, YSR District. Pursuant to the instructions issued, II Additional Munsif Magistrate, YSR District directed the Superintendent Central Prison, YSR District to shift the detenu to the Central Prison, Cherlapally, Ranga Reddy District, with a direction to produce the detenu as and when required by the Assistant Sessions Judge, YSR District under intimation to the Magistrate. Pursuant to the said direction, the detenu was shifted to Central Prison, Cherlapally on 5-5-2011. The order of detention, grounds of detention and the material relied upon were served on the detenu in both the languages ie., English and Telugu, through the Jailor. After passing the detention order, the Government by G.O.Rt.No.6091 dt. 21-12- 2009 approved the detention order. Thereafter, the Government referred the matter to the Advisory Board constituted under Section 9 of the Act 1 of 1986. The Advisory Board after hearing the detenu, his cousin G. Sudhakar Naidu, and investigating officers, and after considering the representation submitted by the detenu dt. 24-5-2011 and upon perusing the grounds of detention and the connected records, opined that there is sufficient cause for the detention of the detenu, Chappidi Mahesh Naidu. The Government after taking into consideration the report of the Advisory Board and the material available on record, in exercise of the power conferred under sub-section (1) of Section 12 r/w 13 of the Act 1 of 1986 through G.O.Rt.No.2397 dt. 1-6-2011 confirmed the order of detention and directed that the detention of the detenu be continued for a period of 12 months from the date of his detention ie., 5-5-2011. Challenging the detention order, as approved and confirmed by the Government, the present writ petition is filed contending that though the detention order was passed on 11-12-2009 the detenu was detained on 5-5-2011 and therefore the same cannot be enforced after 18 months as no steps were taken to enforce the detention order within the said period; that the procedure adopted by the authorities in taking the detenu into custody is illegal and the Magistrate had no jurisdiction to shift the detenu to the Central Prison, Cherlapally; that the incidents 1 to 5 are the offences registered under the Indian Penal Code as well under the Forest Act, and the forest officials have no power to register the cases under Sections 378 and 379 IPC; that the detenu was an accused in Cr.No.187/2008, in which charge sheet was filed on 7-12-2009 in respect of the incident took place on 18-7-2008 and on committal of the case to the Court of Sessions, the detenu obtained bail, filing of the charge sheet and bail obtained by the detenu was not brought to the notice of the detaining authority and therefore the detention order passed is in total non application of mind, and that no public order was involved as theft of a forest produce does not affect the public order. The Collector and District Magistrate, Kadapa, who passed the detention order has been transferred as Managing Director, Sports Authority of A.P., Hyderabad. He filed a counter-affidavit while detailing the grounds of detention stated that on passing the detention order the detenu is tactfully evading the forest officials and organized red sanders smuggling through his agents in Y.S.R. District. Meanwhile, it is learnt that the detenu was surrendered before the IV Additional Munsif Magistrate, Tirupathi on 18-4-2011 and he was under judicial custody in CC No.766/2009. The Station House Officers of T.Sundupalli, Veeraballi and Sambapalli of Y.S.R. District filed application for issuance of P.T. Warrants pertaining to Cr.No.41/2008 and CC No.469/2008 of Veeraballi Police Station; Cr.No.43/2008 of CC No.185/2008 and Cr.No.54/2007 before the Judicial Magistrate of First Class, Rayachoty and as per the instructions of the Magistrate, the Station House Officer Sambepalli has produced the detenu before the Judicial Magistrate of First Class, Rayachoty on 20-4-2011. The learned Magistrate has taken the detenu into judicial custody and lodged him in Sub-Jail, Rayachoty. Meanwhile, the Station House Officer, Chinna Chowku police station, Kadapa filed for issuance of P.T. warrant pertaining to Cr.No.187/2008 vide PRC No.34/2010 on 25-4-2011 before the Additional Judicial Magistrate of First Class, Y.S.R. District. Pursuant to the directions of the learned Magistrate, the Station House Officer, RIMS Police Station produced the detenu before the Magistrate on 25-4-2011 and the learned Magistrate remanded him to judicial custody and was lodged in Central Prison, Kadapa. the forest officials addressed a letter to the Additional Judicial Magistrate of First Class, Kadapa seeking permission to implement the detention order passed against the detenu as approved and confirmed by the Government. The said application was returned by the Magistrate stating that he cannot entertain such application. On the petition filed by the forest officials, the District & Sessions Judge, YSR District issued instructions to the II Additional Munsif Magistrate, YSR District. Pursuant to the instructions issued, II Additional Munsif Magistrate, YSR District directed the Superintendent Central Prison, YSR District to shift the detenu to the Central Prison, Cherlapally, Ranga Reddy District, with a direction to produce the detenu as and when required by the Assistant Sessions Judge, YSR District under intimation to the Magistrate. Pursuant to the said direction, the detenu was shifted to Central Prison, Cherlapally on 5-5-2011. The order of detention, grounds of detention and the material relied upon were served on the detenu in both the languages ie., English and Telugu, through the Jailor. The order of detention was passed against the detenu taking into considering the five crimes registered against him as his activities are prejudicial to the maintenance of public order. Since the detenu was absconding from the date of passing of detention order, the order of detention could not be executed and the forest officials are trying to execute the order of detention passed against the detenu. On surrender of the detenu, he was taken into custody and lodged in Central Prison, Cherlapally. Learned counsel for the petitioner contends that the order of detention was made on 11-12-2009 and the detenu was lodged in Central Prison, Cherlapaly on 5-5-2011, nearly after 17 months of passing detention order and same has been confirmed on 1-6-2011, and therefore undue long delay and arrest of the detenu and confirmation of the detention order will throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority. No steps were taken for issuing a proclamation under Sec. 7(1) of the Act 1 of 1986 to attach the properties of the detenu. In spite of plea taken that due to the delay caused the order of detention has become ineffective, the same has not been properly explained in the counter affidavit, and therefore there is no necessity to detain the detenu after such long delay and the detention order is liable to be quashed. In support of his contentions, learned counsel relied on the following decisions: 1. SURESH MAHATO V. DISTRICT MAGISTRATE, BURDWAN[1] 2. T.A.ABDUL RAHMAN V. STATE OF KERALA[2] Per contra, learned Government Pleader would contend that even after passing of detention order, all possible steps were taken to nab the detenu and on coming to know that the authorities are contemplating to take steps under Sec. 7(1) of the Act 1 of 1986, the detenu himself surrendered before the court, the detenu is absconding, which is evident from the record, as he was involved in several cases and he was produced on PT warrant. In support of her contentions, learned Government Pleader placed reliance on the following judgments: 1. Sk.SERAJUL V. STATE OF W.B.[3] 2. M. AHAMEDKUTTY V. UNION OF INDIA[4] 3. VINOD K. CHAWLA V. UNION OF INDIA[5] 4. HARE RAM PANDEY V. STATE OF BIHAR[6] In view of the above rival submissions, the point that arises for consideration is, Whether the delay between the date of order of detention and the date of securing the arrest of the detenu would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority and would vitiate the detention order? Section 8 of the Act 1 of 1986 postulates when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the Government against the order of detention. Section 4 deals with execution of detention order, which reads as under: “A detention order may be executed at any place in the State in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973.” Section 7 deals with power in relation to absconding persons. It reads as under: (1) If the Government have, or an officer mentioned in sub section (2) of Section 3, has reason to believe that a person in respect of whom, a detention order has been made has absconded or is concealing himself so that the order cannot be executed then the provisions of Sections 82 to 86 (both inclusive) of the Code of Criminal Procedure, 1973, shall apply in respect of such person and his property, subject to the modifications mentioned in this sub section and irrespective of the place where such person ordinarily resides, the detention order made against him shall be deemed to be a warrant issued by a competent Court. Where the detention order is made by the Government, an Officer, not below the rank of District Magistrate or Commissioner of Police authorised by the Government in this behalf, or where the detention order is made by an officer mentioned in sub section (2) of Section 3, such officer, as the case may, be, shall irrespective of his ordinary jurisdiction, be deemed to be empowered to exercise all the powers of the competent Court under Sections 82, 83, 84 and 85 of the said Code for issuing a proclamation for such person and for attachment and sale of his property situated in any part of the State and for taking any other action under the said sections. An appeal from any order made by an such officer rejecting an application for restoration of attached property shall lie to the Court of Session, having jurisdiction in the place where the said person ordinarily resides, as provided in Section 86 of the said Code. (2) (a) Notwithstanding anything contained in sub section (1), if the Government have, or an Officer mentioned in sub section (2) of Section 3 has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, the Government or the Officer, as the case may be, may by order notified in the Andhra Pradesh Gazette, direct the said person to appear before such officer, at such place and within such period as may be specified in the order. (b) If such person fails to comply with such order, unless he proves that it was not possible for him to comply therewith, and that he had within the period specified in the order, informed the officer mentioned in the order of the reasons which rendered compliance therewith impossible and of his where abouts, or proves that it was not possible for him to so inform the officer mentioned in the order, he shall, on conviction, be punished with imprisonment for a term which may extend to one year, or with fine, or with both. (c) Notwithstanding anything contained in the said Code, every offence under clause (b) shall be cognizable. In T.A.ABDUL RAHMAN (2 supra), the Supreme Court summarized the delay in passing detention order and also execution of detention order in paragraphs 11 and 12. We are only concerned with the delay in execution of the detention order. The Supreme Court while considering the question when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, held that such a delay would throw considerable doubt on the genuineness of the subjective satisfactory of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner. After considering the facts of the case, the Supreme Court while observing that the detaining authority has attempted to explain the laxity that has occasioned in passing the impugned order, but miserably failed in explaining the delay of three months in securing the arrest of the detenu from the date of the passing of the order, and keeps stunned silence on that score held that non explanation of the delay in execution throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority vitiating the validity of the order of detention. In Sk.SERAJUL V. STATE OF W.B (3 supra), the Supreme Court held that “if there is any delay in making the order of detention or in arresting the detenu which is prima facie unreasonable, the State must give reasons explaining the delay. Here there is no explanation for the delay which has occurred at both stages and in the absence of such explanation, we are not at all satisfied that the District Magistrate, Burdwan applied his mind and arrived at a real and genuine subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner. The condition precedent for the making of the order of detention was, therefore, not satisfied, and consequently the order of detention must be quashed and set aside.” In SURESH MAHATO (1supra), after referring to the dicta laid down by the Supreme Court in Sk.SERAJUL V. STATE OF W.B (3 supra) and SK. NIZAMUDDIN V. STATE OF WEST BENGAL (AIR 1974 SC 2353=1975 CRL.L.J.12), whereunder it was stated that if there is unreasonable delay between the date of the order of detention and the date of arrest of the detenu, such delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate and it would be a legitimate inference to draw that the District Magistrate was not really and genuinely satisfied as regards the necessity for detaining the petitioner, the Supreme Court while rejecting the contentions advanced held that a delay of about one month can be regarded as so unreasonable as to support such an inference negativing the genuineness of the satisfaction of the District Magistrate. In ABBU SALAM V. UNION OF INDIA[7], the Supreme Court after referring to its earlier decision in SK. SERAJUL (3 supra) held that there is no decision where a court has gone to the extent of holding that a mere delay in arresting the accused renders the detention invalid. In the instant case, the delay, if at all, is only about 1 ½ months and the explanation offered for the delay is reasonable. In BHAWARLAL V. STATE OF T.N.[8], the Supreme Court while considering the delay in arresting the detenu held as under: “…..It is further true that there must be a 'live and proximate link' between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. We may in appropriate cases assume that the link is 'snapped' if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the 'link' not snapped but strengthened……(para 6) In SYED FAROOQ MOHAMMAD V. UNION OF INDIA[9], the Supreme Court following the judgment rendered by it in BHAWARLAL (8 supra) held that “it has been clearly averred in the affidavit that two notices were served, one on the petitioner's mother and another on the petitioner's brother directing the petitioner to appear before the detaining authority. The petitioner, it has been stated, has 'intentionally absconded and thereby evaded arrest. These averments have not been denied by the petitioner. In these circumstances it cannot be said that the delay was not explained and the link between the grounds of detention and the avowed purpose of detention has been snapped…” In AHAMEDKUTTY (4 Supra), the Supreme Court held as under: “Where the passage of time is caused by the detenu himself by absconding, the satisfaction of the detaining authority cannot be doubted and the detention cannot be held to be bad on that ground. In Bhawarlal Ganeshmalji v. State of Tamil Nadu (8 supra) where the appellant had been evading arrest and surrendering after three years of the making of order of detention under the COFEPOSA Act the order was held to be still effective as the detenu himself was to be blamed for the delay. This court observed that there must be a live and proximate link between the 10 grounds of detention alleged by the detaining authority and the avowed purpose of detention, namely, the prevention of smuggling activities. In appropriate cases it could be assumed that the link was snapped if there was a long and unexplained delay between the date of order of detention and the arrest of the detenu and in such a case the order of detention could be struck down unless the grounds indicated a fresh application of mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but also is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the link not snapped but strengthened. In that case the order of detention was made on 19/12/1974. The detenu was found to be absconding. Action was taken pursuant to S. 7 of the COFEPOSA Act and he was proclaimed as a person absconding under S. 82 of the Criminal Procedure Code. The proclamation was published in several leading English and local daily newspapers. Several other steps were taken despite which he could not be arrested until he surrendered himself on 1/02/1978.(para 13) It was advised by the Supreme Court as under: “We may pause here to point out that the circumstances in the present case seem to indicate a certain degree of lack of coordination between the detaining authorities and those entrusted with the execution of the detention order. This is clearly seen from two circumstances in the present case. Though the detention order was sent for service on 27/06/1988, a reminder was issued only on 19/07/1988. Apparently, the Superintendent of Police was finding it difficult to trace the detenu but he did not report this immediately and mentioned it to the detaining authority only on 27/07/1988. He was obviously not aware that, under the terms of the bail order the detenu had to report every week at the customs office. If he had reported his difficulty earlier or if the detaining authorities had apprised him of the terms of the bail order, it would have been possible to have had