THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE R.KANTHA RAO W.P.No.19977 of 2011 Date of judgment: 15-11-2011 Between: N.Raja Reddy ..Petitioner and 1. The Collector and District Magistrate, Kladapa and others. ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE R.KANTHA RAO W.P.No.19977 of 2011 Order: (Per Honourable Sri Justice A.Gopal Reddy) The order of detention made by the Collector and District Magistrate, Kadapa (for short “the detaining authority”) in exercise of powers conferred on him under Section 3(1) read with Section 3(2) of A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short “the Act 1/1986”) in proceedings C1/241/M/2011, dated 22- 04-2011, directing detention of Machupalle Venkataiah Naidu @ Peddabbai @ Jandlavaram Peddabhi s/o Venkatapathi Naidu r/o Jandlavaram village, Mydukur Mandal, YSR District with a view to prevent him from indulging in dangerous, clandestine and illegal activities i.e. cutting, dressing and transporting the red sander wood as approved by the Government of Andhra Pradesh in G.O.Rt.No.1776 General Administration (Law and Order.II) Department, dated 29-04-2011 and confirmed in G.O.Rt.No.2395 General Administration (Law and Order.II) Department, dated 01-06-2011 is challenged by way of present writ petition by the next family friend of the detenu—Machupalle Venkataiah @ Peddabbi @ Jandlavaram Peddabhi praying for issuance of Habeas Corpus and to release the detenu. 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 grounds of detention dated 22-04-2011, which have been considered by the detaining authority for drawing his subjective satisfaction, are: S.No. Crime Number Police Station/range Sections Material seized 1 O.R.No.52/2009- 10 dt.16-10-2009 Sidhout Range, Kadapa Division U/ss.20(1)(c) (iii), Sec.29(2)(b) of A.P. Forest Act, 1967 r/w Rules 3 and 4 of A.P. Redsander wood transit Timber R u l e s , 1969; Sections 27 & 29 of Wild Life Protection Act, 1972; and Sec.379 IPC 28 R.S.logs (weighing 765 kgs valued at Rs.41,310/-) 2 O.R.No.78/2009- 10 dt.19-11-2009 Proddutur Division U/ss.20(1)(c) (iii); 20 (1) (c) (vi and x); 29(4) (a) of A.P. Forest Act, 1967; Rule 3 of A.P. Red Sanders and Sandal wood Transit Rules, 1969 and Secs.378, 379 and 120 B IPC. 191 R.S.Logs (weighing 2447 kgs valued at Rs.1,32,138/-) 3 O.R.No.88/2009- 10 dt.6-1-2010 Proddutur Division U/ss.20(1)(c) (iii), (vi and x); 29(4) (a) of A.P. Forest Act, 1967 and Rule 3 of A.P. Redsanders and Sandalwood Transit Rules, 1969 and Secs.378, 379 and 120 B IPC. 132 R.S.Logs (weighing 3245 Kgs. valued at Rs.1,75,230/-) 4. O.R.No.224/2009- 10 dt.23-2-2010 FSP Division, Kadapa U/ss.20(1)(c) (iii), 29(4) (a (1)) and 58 of A.P. Forest Act, 1967; Rule 3 of A.P. Sandalwood and Redsanders wood Possession Rules, 1969; Rule 3 of A.P. Sandalwood and Redsanders w o o d Transit Rules, 1969 and Sec.379 IPC. 146 R.S.Logs (weighing 3703 kgs. valued at Rs.1,99,962/-) 5 O.R.No.50/2010- 11 dt.9-7-2010 Proddutur Division U/ss.20(1)(c) (iii); 29(2) (b) of A.P. Forest Act, 1967 r/w Rules 3 and 4 of A.P. Redsanderwood Transit Rules, 1969; Ss..29, 50 and 51 of Wild Life Protection Act, 1972 and Sec.379 IPC. 144 R.S. Logs (Weighing1858 Kgs. valued at Rs.1,00,332/-) 6 FIR.No.160/2010- 11 dt.9-8-2010 Mydukur Urban P.S. Under Sections 307, 324 r/w 34 IPC -- 7 FIR.No.154/2010 dt.18-10-2010 Mydukur PS U/ss.307,353,379, 506 IPC; Section 29 of A.P. Forest Act, 1967 and Section 20 of Arms Act. -- 8 FIR No.28/2011 dt.15-3-2011 Khajipet PS Section 25(1)(b) (a) of Arms Act. -- 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 sheet is in process in the first three cases and detenu was arrested in O.R.No.224/2009-10, dated 23-02-2010 and obtained P.T. warrant from the II Additional Judicial First Class Magistrate, Kadapa as he was arrested in Cr.No.160/2010 in which necessary orders for remand were obtained. In the order of detention, the detaining authority requested the Superintendent of Police, Kadapa to take the detenu into custody and handover him to the Superintendent of Central Prison, Cherlapalli, R.R.District immediately. Pursuant to detention order the detenu was taken into custody on 23-02-2010 and at the time of taking into custody, the material relied upon was served on him in both languages i.e. English and Telugu duly informing him that he has a right to make representation to the Detaining Authority, Chief Secretary to Government and Advisory Board and obtained acknowledgement for service of grounds and material relied upon. After passing the detention order the Government in G.O.Rt.No.1776 General Administration (Land and Order.II) Department, dated 29-04-2011 approved the order of detention and thereafter, the matter was referred to the Advisory Board constituted under Section 9 of the Act 1/1986. The Advisory Board after hearing the detenu and the Investigating Officer in its meeting held on 24-05-2011 opined that “there is sufficient cause for detention of the detenu—Machupalle Venkataiah Naidu @ Peddabbai @ Jandlavaram Peddabhi s/o Venkatapathi Naidu. Basing on the recommendations of the Advisory Board the Government through G.O.Rt.No.2395 General Administration (Land & Order.II) Department, dated 01-06-2011 confirmed the detention order directing the detenu to be continued in detention for a period of 12 months from the date of detention i.e. 23-04-2011. The said detention order is challenged contending that in the 8th incident, FIR No.28/2011 was registered under Section 25(1)(b) (a) of Arms Act; the detention order was passed in a mechanical manner on vague, irrelevant and non-existing grounds. In most of the cases the detenu was apprehended by the police and arrayed as accused basing on the confession statement of the co-accused, which is inadmissible in evidence. Incidents 1 to 5 are registered by the forest officials as OR numbers FSP of Kadapa, Proddutur and Mydukur divisions. In all the said cases Sections 378, 379 and 120B IPC are added apart from the provisions under A.P. Forest Act, 1967. The officials of the Forest Department have no power or jurisdiction to register the cases for the offences punishable under Indian Penal Code. The same is being done only with a view to describe the detenu as ‘Goonda’ as defined under Section 2(g) of the Act 1/1986. If the offences under IPC are eschewed from consideration, the offences under the Forest Act will not fall within the meaning of ‘Goonda’ as defined under the Act 1/1986. The seventh incident mentioned in the grounds of detention, if at all Section 379 IPC applies, Section 29 of the Forest Act equally applies which has not been properly examined. The detenu is an illiterate person; he can neither read nor write any language including Telugu. Therefore, he was prevented from making representation which is in violation of constitutional mandate. The sponsoring authority has not mentioned in how many cases, out of eight incidents, the detenu was enlarged on bail and in how many cases he was remanded. Therefore, non-placing of the order of releasing the detenu on bail vitiates subjective satisfaction and the same is liable to be set aside. A detailed counter has been filed by the first respondent, disclosing the details of Offence Reports mentioned in the detention order, stating that on passing the detention order the grounds of detention was served in both languages i.e. English and Telugu informing the detenu that he has right to make a representation to the Detaining Authority, Chief Secretary to Government and Advisory Board; the constitutional mandate has been complied with; the detention order is passed duly placing reliance on 8 incidents pertaining to the years 2009, 2010 and 2011, as the detenu himself is indulging in theft and felling of red sander wood trees from the reserve forest of YSR District. In the incidents 7 and 8 mentioned in the grounds of detention, the detenu has committed theft, felling and transportation of red sander wood as such Section 379 IPC and Section 29 of Forest Act was invoked. In five crimes the detenu was arrested and remanded; later he was enlarged on bail and the remaining three incidents he was absconding. As the detenu was enlarged on bail without imposing any conditions, bail applications and bail orders do not fall for consideration to arrive at a subjective satisfaction. Learned counsel for the petitioner contends that the order of detention do not indicate in how many cases the detenu was enlarged on bail. The detenu do not know reading either in English or Telugu except signing. Unless the grounds of detention are explained to him in Telugu, he could not make effective representation, which amounts to denial of opportunity and violates Article 21 of the Constitution. Ground Nos.1 to 6 mentioned in the detention order are stale; whereas in ground No.7 the entire allegation is against one Laxman and there is no allegation against the detenu. In view of the same, the detention order passed by the detaining authority on irrelevant and stale grounds has to be set aside. In support of the same, learned counsel relied upon the judgment of this court in W.P.Nos.6298 and 12900 of 2011 dated 27-06-2011. Per contra, Smt. Mohana Reddy, learned Special Government Pleader while sustaining the detention order contended that detenu along with others accused, numbering 25, were arrested in O.R.No.52 of 2009; they have conspired to commit theft of red sanders and smuggle the same to unknown destinations in India and abroad which is a grave offence and caused irreparable loss of natural resources and damage to biodiversity. Since they have committed theft of forest produce which is a national wealth, the detaining authority rightly passed the detention order. Since the detenu is the main person for transporting and smuggling of goods, no leniency could be taken and he is habitually continuing the same. The detaining authority satisfied the material and ordered for detention which has been approved by the Government and also Advisory Board. The constitutional safeguards have been complied with and the same needs no interference. In support of her contention she also relied upon unreported judgment of this court in W.P.No.65 of 2011, dated 08-04- 2011, which has been confirmed by the Supreme Court in Crl.A.No.1761 of 2011, dated 09-09-2011. She further placed reliance on the judgments of the Supreme Court in DISTRICT COLLECTOR v. LAXMANNA[1] and SUNILA JAIN v. UNION OF INDIA[2]. In the light of the above submissions the point that arises for consideration is: “Whether the detention order passed by the detaining authority as confirmed by the Government suffers from any illegality and the same is in violation of constitutional mandate for setting aside the detention order” In the grounds of writ petition it is contended that the forest officials has no power to register the crime for the offence under Sections 378, 379 and 120B IPC and file the charge sheet except the offence under the Forest Act. This Court in W.P.Nos.6298 and 12900 of 2011 to which one of us (AGR,J.) is a party, after elaborately considering the provisions and also scheme of the Forest Act held that “mere registering an Offence Report by the Forest Range Officer for the various offences including the offence under the Indian Penal Code, cannot be said that he will be Investigating Officer into the said crime and cannot prepare such report. Mere preparing an Offence Report by the Forest Range Officer will not tantamount to investigation by him into the said offence. It is only prepared for the purpose of placing the matter before the Authorized Officer under Section 44 of the Act”. After the Authorized Officer ordered for prosecution, necessary charge sheet will be laid before the concerned Magistrate having jurisdiction over the area and it is for the Magistrate to consider whether the accused should be proceeded for the offence both under the Forest Act and IPC on the material available on record. In view of the same, the contention advanced by the learned counsel for the petitioner that the Forest Range Officer cannot register the offence under Section 378,379 and 120B under the provisions of IPC and lay the charge sheet do not merit consideration. It is settled proposition of law in a case where detenu is released on bail with conditions and set at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu. (See ABDUL SATHAR IBRAHIM MANIK v. UNION OF INDIA [1992(1) SCC 1]. Explaining the same in SUNILA JAIN V. UNION OF INIDA[3], the Supreme Court held as under: “…It is no doubt true that whether a detenu on the date of the passing of the order of detention was in custody or not, would be a relevant fact. It would also be a relevant fact that whether he is free on that date and if he is, whether he is subjected to certain conditions in pursuance of and in furtherance of the order of bail. If pursuant to or in furtherance of such conditions he may not be able to flee from justice, that may be held to be relevant consideration for the purpose of passing an order of detention but the converse is not true. Some such other grounds raised in the application for bail and forming the basis of passing an order of bail may also be held to be relevant. It would, however, not be correct to contend that irrespective of the nature of the application for bail or irrespective of the nature of the restrictions, if any, placed by the court of competent jurisdiction in releasing the detenu on bail, the same must invariably and mandatorily be placed before the detaining authority and the copies thereof supplied to the detenu.” (para 18) Therefore, the contention of the learned counsel for the petitioner that the detenu was enlarged on bail in the first five crimes and the said fact has not been considered by the detaining authority while passing the detention order do not merit consideration. In O.R.No.52 of 2009-10 charge sheet has already been filed against 25 accused before the Munsif Magistrate, Sidhout, which shows the detenu herein is A1. A1 to A4 and A7 to A25 ran away from the scene of offence when the forest officials perambulated the suspected areas of Chollabavi localities and surrounded areas on coming to know of big sounds of cutting trees and R.S.logs were recovered from A5 and A6, as referred to above. In O.R.No.78/2009-10 the detenu, who is A1, and another accused were loading R.S.logs in a vehicle and on seeing the forest officials they ran away and in spite of chase the officials could catch the detenu. In O.R.No.88/2009-10, the accused were chased by the forest officials while transporting red sanders and booked a case against them. In O.R.No.224/2009-10 the flying squad while transporting the red sanders chased the vehicle and caught hold one person out of two and registered a crime against three accused including the detenu, who is A2. In O.R.No.50/2010-11 the forest officials on the information proceeded to Elugubanti Bodu locality of Lankamalla reserve forest and sanctuary, laid a watch and observed the vehicle and caughtholded three persons among five persons where the detenu escaped. In FIR No.160/2010-11 the accused were arrested for their attempting to commit murder the complainant—Simham Chinna Mallaiah with regard to dispute over red sander smuggling. In FIR No.154/2010 on receipt of credible information about the smuggling of R.S.logs from Nagasanipalli reserve forest, the forest officials reached the said place and found three persons coming on motor cycles and Inspector of Police along with S.I. of police, Khajipet chased them. Among the accused, one person drew a pistol from his waist and opened fire against the Inspector of Police, but it was missed and the person who opened fire was caught hold and other two persons escaped; the confessional statement made by the detenu that he is transporting R.S.logs illegally from the places Vonipenta, Jandlavaram, Badvel, Porumamilla, Rajampeta, Rayachoty of Kadapa district to the borders of India, Nepal and China etc. was recorded and the investigation reveals about the involvement of the alleged detenu and others who are responsible for the smuggling of R.S.logs. Likewise, in FIR No.28/2011 the detenu was arrested and unlicensed SBML country made gun was seized from him on 15-03-2011. The word ‘Goonda’ has been defined under Section 2(g) of the Act 1/1986 takes in its fold, not only the actual commission of offences punishable under chapters XVI, XVII and XXII IPC but also attempt to commit or abet to the commission of such offences. Therefore, any ‘Goonda’ can be detained if he acts in a manner prejudicial to the maintenance of public order. Explanation to Section 2(a) elaborated the public order shall be deemed to have been affected adversely, or shall be deemed likely to be affect adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly in 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 of widespread danger to life or public health. The details furnished in the grounds of detention clearly demonstrate that the detenu was described as ‘Goonda’ for destruction of national wealth leading to ecological imbalance. The grounds of detention also shows that the detaining authority after scrutinizing various orders including order of release on various dates and noticing that the detenu is indulging in offences of illicit cutting, felling, smuggling and transportation of R.S.logs from the reserve forest owned by the State arrived at a conclusion that the provisions of normal law will not curb him in doing such activities, as the detenu is habituated in indulging the above said acts. Therefore, subjective satisfaction arrived by the detaining authority is supported by relevant material basing on which he passed the detention order. Therefore, we do not see any merit in the contention of the learned counsel that the detaining authority passed the detention order with total non-application of mind to the facts of the case. Further, the contention of the counsel that except signing, the detenu does not know to read Telugu or English; he was deprived to make effective representation cannot be accepted. When he was produced before the Advisory Committee no such plea has been taken by him that he could not read the papers supplied to him nor explained to him by the detaining authority or his representative at the time of serving papers on him. In the absence of the same, the detention order passed by the detaining authority dated 22-04-2011 as approved by the Government in G.O.Rt.No.1776 General Administration (Law & Order.II) Department, dated 29-04-2011 and confirmed in G.O.Rt.No.2395 General Administration (Law & Order.II) Department, dated 01-06-2011 does not suffer from any manifest illegality or violates any constitutional/statutory right warranting interference. The writ petition fails and it is accordingly dismissed. ________________ A.GOPAL REDDY, J. _______________ R.KANTHA RAO,J. 15-11-2011 Murthy [1] 2005 (3) SCC 663 [2] (2006) 3 SCC 321 [3] (2006)3 SCC 321