IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF AUGUST TWO THOUSAND AND FOUR PRESENT THE HON'BLE SRI DEVINDER GUPTA,THE CHIEF JUSTICE and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION Nos.9965 and 10826 of 2004 WRIT PETITION No. 9965 of 2004 Between: N. Sridhar Reddy S/o N. Ramanarayanareddy R/o O.S. Bandakadapally, H/o Yallamanda Village, Yerravaripalem Mandal, Chittoor District . ..... PETITIONER AND 1 The Collector & District Magistrate, Chittoor 2 The Government of A.P. rep by Chief Secretary, Secretariat, Hyderabad 3 The Superintendent, Central Prison, Cherlapalli .....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 Hebeas Corpus directing the respondents to produce Sri Nandam Reddy Ramanarayana Reddy S/o N. Krishna Reddy now detained in the Central Prison, Cherlapalli, before this Hon'ble Court and he may be order to release forthwith after declaring that his detention is illegal and void. Counsel for the Petitioner : Mr. C.PRAVEEN KUMAR Counsel for the Respondents : THE ADVOCATE GENERAL WRIT PETITION No.10826 of 2004 Between: Pathipati Saraswathi, W/o. P.Venkatadri Naidu, R/o. Yallamanda Village, Yarravaripalem Mandal, Chittoor District. ..... PETITIONER AND 1 The Collector and District Magistrate, Chittoor. 2 The Chief Secretary, Government of A.P., Hyderabad. 3 The Superintendent of Central Prison, Cherlapalli. .....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 directing the Respondents to produce Sri Pathipati Venkatadri Naidu, S/o. Subbaiah Naidu, now detained in Central Prision, Cherlapalli, before this Hon'ble Court and he may be released forth with after declaring that his detention is illegal and void. Counsel for the Petitioner: Mr. C.PRAVEEN KUMAR Counsel for the Respondents.: THE ADVOCATE GENERAL The Court made the following : COMMON JUDGMENT: (per C.V. RAMULU,J) W.P.No.9965 of 2004 This Writ Petition is filed seeking a Writ of Habeas Corpus to direct the respondents to produce the father of the petitioner – Nandam Reddy Ramanarayana Reddy (detenu), who is now detained in Central Prison, Cherlapalli, Ranga Reddy district under the provisions of sub-Section (2) of Section 3 of the Andhra Pradesh Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act,1986 (hereinafter referred to as ‘the Act’), before the Court and release him forthwith by declaring detention order dated 8-5-2004 passed by the 1st respondent in his Proceedings ROC.C2/2765/2004 as illegal and void. The above detention order has been passed against the father of the petitioner on the ground that he is indulging in illicit cutting, storing and transporting the Red Sanders heartwood causing wilful destruction and damage to the public property and depletion of green cover resulting in adverse ecological balance, having ramification on the health and well being of the public. Further, the detenu had confessed the commission of forest offences. He instigated the youth to commit the offence of illicit cutting of Red Sanders and to transport the same by clandestine means by luring them with money; thus, habituated to wilful destruction of the pristine red sanders forest causing potential danger to the public well being, which are prejudicial to the maintenance of public order and in proof of such satisfaction, five incidents were relied upon by the 1st respondent in the impugned order. In pursuance of the said order, the detenu was arrested and detained in the Central Prison, Charlapalli on 18-5-2004. The said order was approved by the Government in G.O.Rt.No.3445, dated 29-6-2004 and directed to continue the detention for a period of 12 months. The representation made by the detenu was rejected by the Government by an Order dated 29-6-2004. The Advisory Board reviewed the case of the detenu and held that there is sufficient cause for detaining the detenu. In the writ affidavit, the petitioner states inter alia that the grounds of detention were not furnished in proper form and the same was not a complete document and the offences alleged against the detenu do not attract the definition of ‘theft’ punishable under Section 379 of IPC. The petitioner also states that the first ground suffers from the vice of staleness, since the incident happened nearly one year prior to the order of detention and that no crime has been registered in respect of items 1 to 4 of the grounds of detention. A detailed counter affidavit has been filed by the 1st respondent denying the various allegations made by the petitioner. It is stated that the Divisional Forest Officer, Wildlife Management Division, Tirupati through his report dated 28-4-2004 brought to the notice of the 1st respondent that the detenu was constantly indulging in smuggling of red sanders wood from the forests of his division and also placed the record pertaining to various cases registered against the detenu. It was also brought to the notice of the 1st respondent that the activities of the detenu caused loss to the national wealth resulting in adverse ecological balance having ramification on the health and well being of the public. On 21-6-2003, while the lorry bearing Registration No.AP 36T was proceeding towards Bakrapet, was intercepted by the forest staff at Bodevandipalli, but it was not stopped. The forest staff chased and stopped the lorry at Shiva Temple and detained its driver-R.Shankaraiah and the associate of the detenu, namely, Ankim Narasimhulu. They made confessional statements saying that the red sander logs were being transported from Kammapalli village and the forest produce belongs to the detenu and one Venkatadri Naidu. On such information, O.R.No.28/203-04 of S.V.National Park, Chamala Range was registered against the detenu. Likewise, another case was registered on 15-3-2004 against the detenu when he hid red sanders weighing 766 kgs, valued at Rs.33,700/- in the river bed. Though the forest staff identified him, the detenu ran away from the scene of offence. Similarly, on 21-3-2004 another case was registered against the detenu. The forest officers, who were watching at forest check post, Rangampet received a wireless message at about 8.30 p.m. on 20-3-2004, the anti-poaching squad party (wildlife management range) was chasing Tata Estate car bearing No.TN 37J 6300 in which red sander logs were being transported. The vehicle was seized and on interrogation, the person found under suspicious circumstances at the scene of offence stated and confessed that he came in the said vehicle as second driver along with another driver and the detenu was the prime accused in the said offence and at his instance, the forest produce was being transported. So also, another case was registered against the detenu on 17-3-2004 when the forest officials found 19 red sanders valued at Rs.22,478/-. The forest staff found the detenu along with his accomplices running from the spot. Further, a case in Crime No.12/2003 of Yerravaripalem Police station was registered against the detenu on 24-3-2004 when the detenu along with his accomplices were trying illegally to transport the red sander logs. The detenu and his accomplices were caught hold of and 64 red sanders valued at Rs.89,056/- were seized from them. The detenu was charged for the offences under Section 379 IPC and Sections 29(4) (a)(i)(ii) and 29(2)(b) of the A.P.Forest Act and Rule 3 of the A.P.Sandalwood & Red Sanders Wood Transit Rules,1969 and was produced before the Judicial First Class Magistrate, Piler, who released him on bail. It is also stated that the cases referred to above clinchingly establish that the detenu was frequently indulging in the offences, which in turn, endangering the depletion of forest produce and thereby causing prejudicial acts affecting the public order. On noticing the serious offences committed by the detenu and their proximity, the 1st respondent found the activities as dangerous and causing much damage to the national wealth. Therefore, he satisfied that the detenu should be detained, as his presence in the public society is prejudicial to the public order, since he was a ‘goonda’ and as such, ordered for his detention. It was also asserted that the English version of the grounds of detention along with the Telugu translated version, were duly served on the detenu and they were a complete document. Therefore, the contention of the petitioner that incomplete document was supplied to the detenu was incorrect. Further, the contention of the petitioner that the impugned order was passed without application of mind and the detenu has not committed any offence under Section 379 IPC, which is part of Chapter XVI cannot be accepted. Sri C. Padmanabha Reddy, learned senior counsel appearing for the petitioner, raised three-fold contention, viz., i. that there is no proximity to the incidents referred to in the detention order; ii. that though it is alleged in the detention order that the detenu confessed the guilt, no such statements were supplied to him, which vitiates the detention order; and iii. that the activities alleged against the detenu do not affect the ‘public order’ as contemplated under Section 2(a) of the Act . Proximity: Learned senior counsel appearing for the petitioner contended that the latest incident occurred on 24-3-2004, which was after more than ten months of the first incident. Therefore, no proximity can be traced since no criminal case was booked against the earlier incidents. The stale incidents ought not to have been taken into consideration. It was also contended that though five incidents were referred to in the grounds of detention, no crime was registered either under Section 379 IPC or under Section 29(4) of the A.P.Forest Act against the incidents shown at items 1 to 4. In support of his contention, he relied upon the decision of a Division Bench of this Court in MOHD.AHMED KHAN v. GOVERNMENT OF A.P. AP., in which it was held as under: “25. It is well settled that even if one stale and not proximate ground is taken into consideration in arriving at the subjective satisfaction, the whole of the detention order becomes unsustainable. There is no provision in the Act in hand similar to Section 5-A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974 where the grounds are severable. In such circumstances, it becomes difficult to discern as to which ground weighed with the detaining authority while passing the detention order.” Whereas, the learned Advocate General appearing for the respondents contended that the various incidents noted in the detention order were committed within a short period. Therefore, the contention of the learned senior counsel for the petitioner that there was no proximity of the incidents is not tenable. In support of his contention, he relied upon a decision of the apex Court in GORA V. STATE OF W.B., in which it was held as follows: “2. …….The test of proximity is not a rigid or mechanical “test to be blindly applied by merely counting the number of months between the ‘offending acts’ and the order of detention. It is a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it. The prejudicial act of the detenu may in a given case be of such a character as to suggest that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future. Here in the present case, the act alleged against the, petitioner was a daring act of dacoity in a village by a gang consisting of the petitioner and his associates and if this act is judged in its correct setting, grave proportions and clear implications, it would be clear that it cannot be a stray isolated act but must be the work of a habituated and hardened criminal given to commit dacoities and the District Magistrate could, therefore, reasonably arrive at a satisfaction that with a view to preventing the petitioner from carrying on such activities it was necessary to detain him. Moreover, the affidavit in reply filed on behalf of the State Government by the Secretary in the Department of Public Relations and Youth Services, points out that in connection with the incident set out in the grounds of detention a criminal case was filed in the court of the Sub- Divisional Judicial Magistrate, Diamond Harbour on June 26, 1973 and he was arrested in connection with that case, but it appeared- during investigation that witnesses were unwilling to give evidence in open court against the petitioner and his associates and it was, therefore, felt that it was futile to proceed with the criminal case and it was decided to drop it against the petitioner. Now, if the criminal case were dropped, the petitioner would have to be released and in that even he would be free to carry on his nefarious activities. The District Magistrate, therefore, passed the order of detention on December 29, 1973. The order of detention was in fact passed in anticipation of the petitioner being released as a result of dropping of the criminal case against him. The record of the case which was produced before us by the learned Counsel appearing on behalf of the State showed that the criminal case was actually pending against the petitioner on January 3, 1974. That means that the criminal case must have been dropped and the petitioner must have been discharged sometime between January 3, 1974 and January 18, 1974, the latter being the date when he was once again arrested pursuant to the order of detention. It is, therefore, not possible to say that the District Magistrate could not have arrived at a subjective satisfaction on the basis of the incident set out in the grounds of detention, or that the subjective satisfaction reached by him was sham or unreal. It is stated that the petitioner involved in commission of offences habitually, the first incident occurred on 20-6-2003 and the rest of the incidents were all happened within a gap ten days i.e. in between 15-3-2004 and 24-3-2004. Thus, there was a gap of about 10 months from the first incident and the second set of four incidents. Though it is sought to be explained that it would take some time for registering the cases, as the procedure for launching prosecution for the offences under the A.P.Forest Act is different, admittedly, no criminal case was registered against the detenu. The only criminal case registered was with regard to the latest incident on 24-3-2004 and the detenu was released on bail. If that is so, what prevented the authorities from launching prosecution for the earlier incidents is not known and there is no explanation except saying that there were some procedural wrangles involved and, therefore, the FIRs were not issued against the earlier four incidents, which cannot be believed. The decision in GORA’s case (2 supra) has no application to the facts of this case. There, it was a case where the act alleged against the detenu was a daring act of dacoity in a village by a gang consisting of the detenu and his associates and if that act was judged in its correct setting, grave proportions and clear implications, it cannot be a stray isolated act, but must be the work of a habituated and hardened criminal given to commit dacoities and the District Magistrate could, therefore, reasonably arrived at a satisfaction with a view to prevent the detenu from carrying on such activities, by invoking the provisions of the Act. Whereas, the instant case is not one such case. In the earlier four incidents, there was no criminal case booked against the detenu, but in the last case, criminal prosecution was launched and the detenu was enlarged on bail. Therefore, the contention of the learned Advocate General that there was proximity in the commission of offences cannot be accepted and a solitary incident could also be taken into consideration in a given case also does not arise. Non-supply of alleged confessional statement Learned senior counsel appearing for the petitioner submitted that the preamble of the grounds of detention discloses that the detenu had confessed the offences. Copy of such statement was not supplied to the detenu, who was prevented from making effective representation. Non-supply of such a vital document relied upon in the grounds of detention is fatal. In support of his contention, the learned senior counsel relied upon the decision of the apex Court in POWANAMMAL V. STATE OF T.N., in which it was observed as under: “8. The law relating to preventive detention has been crystallized and the principles are well-nigh settled. The amplitude of the safeguard embodied in Article 22(5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenu but also to supplying their translation in script or language, which is understandable to the detenu. Failure to do so would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order. (See Hadibandhu Das v. District Magistrate, Cuttack1.) 9. However, this Court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas the non-supply of a copy of the document relied upon in the grounds of detention has been held to be fatal to continued detention, the detenu need not show that any prejudice is caused to him. This is because the non-supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order. But it would not be so where the document merely finds a reference in the order of detention or among the grounds thereof. In such a case, the detenu’s complaint of non-supply of document has to be supported by prejudice caused to him in making an effective representation. What applies to a document would equally apply to furnishing a translated copy of the document in the language known to and understood by the detenu, should the document be in a different language.” Learned Advocate General contended that there is no necessity to supply the confessional statement, since the detenu himself confessed his guilt. The vagueness in the preamble cannot be made a ground of attack. In support of his contention, he has drawn our attention to the Judgment of the apex Court in DHANANJOY DAS V. D.M., “13. The Grounds of Detention read as a whole leave no room for doubt that paragraph (1) of the Grounds of Detention was only by way of introduction or as a preamble. In substance, it only indicates the modus operand adopted by the various organizations to the current agitation on foreigners issue in Assam. The second and third paragraphs of the Grounds of Detention allege a specific part played by the appellant in that agitation. On a perusal of Grounds of Detention as a whole we are satisfied that the view taken by the High Court that the first paragraph of the Grounds of Detention was only a preamble, prelude, or introductory para is correct. If this be the position then the vagueness in the first paragraph cannot be made a ground of attack on the impugned order.” Learned Advocate General placed the records before this Court, from which we find that the alleged confessional statement was not really a confessional statement made by the detenu in a manner known to law. It was, in fact, a panchanama recorded at the time of seizure of the logs. It was not even signed by the detenu. The question of supplying the alleged confessional statement to the detenu does not arise, since, there was no confessional statement made available. The detaining authority ought not to have relied upon such irrelevant material in support of its subjective satisfaction. Habitual offender and public order Learned senior counsel for the petitioner contended that the activities alleged against the detenu do not affect the ‘public order’ as contemplated under Section 2(a) of the Act nor he can be called to be a ‘goonda’ as per Section 2(g) of the Act. The provisions of Section 2(a) of the Act can be invoked only when the public order is disturbed by grave or widespread danger to the public at large. In this regard, he had drawn our attention to Sections 2(a) and 2(g) of the Act and also relied upon the decisions in DARPAN KUMAR SHARMA v. STATE OF T.N. wherein it was held as under: “5. The basis upon which the petitioner has been detained in the instant case is that he robbed one Kumar at the point of a knife a sum of Rs 1000. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound, to some extent, affect the peace prevailing in the locality and it may also affect law and order but the same need not affect maintenance of public order. Under the definitions in the Act, it is stated that in the case of “goonda” the acts prejudicial to public order are “when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect adversely, or are likely to affect adversely, the maintenance of public order” [Section 2(a)(iii)]. The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause disturbance of the public order is a question of degree and the extent of the reach of the act upon the society; that a solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so as to bring the case within the purview of the Act providing for preventive detention. 6. In the present case, the three alleged incidents to which the Commissioner of Police has referred to are thefts arising under Section 379 IPC and, therefore, there is only a solitary instance wherein the detenu is alleged to have robbed in a public place, one Kumar. Therefore, there is no material on record to show that the reach and potentiality of the single incident of robbery was so great as to disturb the even tempo or normal life of the community in the locality or disturb general peace and tranquility or create a sense of alarm and insecurity in the locality. Though in the grounds of detention the detaining authority had stated that by committing this offence in public the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected the even tempo of life of the community, but citation of these words in the order of detention is more in the nature of a ritual rather than with any significance to the content of the matter. Thus, a solitary instance of robbery as mentioned in the grounds of detention is not relevant for sustaining the order of detention for the purpose of preventing the petitioner from acting