THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO WRIT PETITION No.1834 of 2011 Dated : 22.06.2011 Between : Bhukya Vijaya …. Petitioner a n d The Government of A.P. & others … Respondents THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO WRIT PETITION No.1834 of 2011 ORDER: This writ petition under Article 226 of Constitution of India has been preferred by the petitioner Bhukya Vijaya seeking issuance of a Writ of Habeas Corpus directing the respondents herein to produce the detenu Bhukya Veerabhadram, who is lodged in Central Prison, Cherlapalli, Ranga Reddy District, by declaring the detention orders passed by the second respondent herein in Rc.No.C1/3351/2010 dated 18.11.2010, as illegal, arbitrary and contrary and consequently to direct release of the detenu forthwith. In the affidavit filed in support of the writ petition, it is stated by the petitioner, who is the wife of the detenu, that the second respondent herein, the Collector and District Magistrate, Khammam District, passed an order of detention under Section 3 (2) read with Section 3 (1) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, (for short ‘Act 1 of 1986’) (wrongly mentioned as The Prevention of Land Grabbers Act, 1986, in the impugned order) alleging that the detenu is indulged in four crimes registered under A.P. Forest Act, 1967 for encroaching the Reserve Forest, erecting huts in Reserve Forest Area and causing damage to the natural forest in Khammam District. Pursuant to the said detention orders, the detenu was taken into custody on 27.12.2010 and the said order was approved by the first respondent- Government of Andhra Pradesh on 25.11.2010. The Advisory Board met on 05.01.2011 and after receipt of report of the Advisory Board, the first respondent confirmed the detention order on 19.01.2011 directing the detention of the detenu for a period of twelve months from the date of his detention i.e., 27.12.2010. The petitioner herein further submits that the detenu is no way connected with the alleged four offences, the second respondent passed the impugned order beyond the powers conferred on him and the first respondent herein mechanically confirmed the same. Second respondent herein filed a detailed counter-affidavit referring to the four offence reports and the grounds mentioned in the grounds of detention. He further stated that after going through the entire records and having satisfied with the material placed before him, which disclosed that the detenu played major role in encroaching the reserve forest, erecting huts and causing damage to the natural forest and environment again and again in Compt.Nos.58 and 59 of Gubbagurthy Reserved Forest of Forest Range, Tallada, passed the detention orders in order to curb his illegal activities with a view to prevent him from further indulging into such illegal activities as his activities are prejudicial to the maintenance of public order. We have heard the learned counsel for the petitioner and also the learned Special Government Pleader representing the learned Advocate General. We have also perused the entire material on record including the affidavit, counter affidavit and grounds for invoking the Preventive Detention Act, etc. The detention order reads as under: “…. Whereas I, Dr.N.Nageswara Rao, IAS, Collector & District Magistrate, Khammam District and I am satisfied that Mr.Bhukya Veerabhadram S/o.Sevya R/o.H.No.11.11.21/1, NSP road, CPM office is encroaching the Reserve Forest, erecting huts in RF area and causing damage to the natural forest, it is necessary to detain him. Now, therefore in exercise of powers conferred on me by section 3 (2) read with 3 (1) of the Prevention of Land Grabbing Act, 1986, I hereby direct that the said land grabber Mr.Bhukya Veerabhadram S/o.Sevya R/o.H.No.11.11.21/1, NSP road, CPM office, Khammam be detained and kept in custody at Central Prison, Cherlapally, Rangareddy District.” The grounds of detention supplied to the detenu along with the detention order refers to four offence reports registered against the detenu in Offence Report No.59/OR/2007-2008 dt.08.07.2007, No.34/OR/2010-11 dated 31.05.2010, No.46/OR/2010-11 dated 12.06.2010 and offence Report No.62/OR/2010-2011 dated 28.06.2010 of Tallada Range registered for violating the provisions of section 20 (1) (c) (ii) and (vi) (vii) and punishable under Section 20 (d) (ii) of the A.P. Forest Act, 1967 and also for contravention of Section 2 of Forest (conservation) Act, 1980, and punishable under Section 3 (A) of the said Act. In short, it is stated in all the above referred crimes that the alleged detenu along with others committed various offences by erecting huts illegally in the reserve forest area, diverting the land for non-forestry purposes causing damage to the forest growth and obstructing the forest officials in an organized manner. Since the alleged detenu was repeatedly committing the forest offences and played a major role in the above referred crimes, in order to prevent him from doing such illegal activities again and again, he was detained under Act 1 of 1986 vide impugned orders. The detention order passed by the second respondent was approved by the first respondent-Government. Pursuant to the said detention order, the detenu was taken into custody on 27.12.2010 and lodged in Central Prison, Cherlapalli, Ranga Reddy District. While taking the detenu into custody, the grounds were served upon him both in English and Telugu language and were acknowledged by the detenu and the detenu was also informed that he had a right to make a representation to the detention authority, Government of Andhra Pradesh and the Advisory Board. The Government accorded approval of the Order of Detention passed by the second respondent herein by orders in G.O.Rt.No.5727, General Administration (Law & Order.II) Department, dated 25.11.2010. Thereafter, the Advisory Board reviewed the case on 05.01.2011. After hearing the detenu, his relatives, Investigating Officers and also after going through the records, opined that “there is sufficient cause for the detention of the detenu Sri Bhukya Veerabhadram S/o.Sevya R/o.H.No.11.11.21/1, NSP Road, CPM office, Khammam (U) Mandal, Khammam District”. Basing on the recommendation of the Advisory Board, the Government in G.O.Rt.No.262, General Administration (Law & Order.II), Department dated 19.01.2011 directed that the detenu be detained for a period of 12 months from the date of his detention i.e., 27.12.2010. It is not necessary for us to go into the details of the offences referred to in the grounds of detention. It is to be seen whether the detenu can be detained under the provisions of Act 1 of 1986 for the forest offences committed by him. Act 1 of 1986 does not include any forest offences committed under the Forest Act. The word ‘gunda’ defined under Section 2(g) of Act 1 of 1986 also do not cover the offences committed under the Forest Act and would only cover the offence punishable under Chapters XVI, XVII or XXII of IPC. Whether the same will fall under the definition of Section 2 (a) of Act 1 of 1986 namely “acting in any manner prejudicial to the maintenance of public order” or not is necessary to be considered in the present writ petition. As such, it has to be seen whether the detenu is a land grabber within the meaning of Section 2(j) of the Act 1 of 1986 or not. The learned Special Government Pleader submitted that even though the case is not registered under Land Grabbing Act, the ingredients of ‘Land Grabber’ defined Under Section 2 (j) of the Act 1 of 1986 have been satisfied as per the provisions under which the cases are registered against the detenu. She further contends that the name of the Act has been wrongly mentioned in the detention orders as ‘Prevention of Land Grabbers Act, 1986’ instead of Act 1 of 1986. Even assuming for a moment that the name of the Act is wrongly mentioned as contended by the learned Special Government Pleader, the detaining authority directed the detenu, who is a land grabber, to be detained and kept in custody at Central Prison, Cherlapally, Ranga Reddy District, for which there is no reference for the offences placed before the detaining authority. In the absence of the same, detaining the detenu on the grounds not mentioned in the grounds of detention is totally non-application of mind and it cannot be said that the detaining authority arrived at a subjective satisfaction based upon the material placed before him. Admittedly, the offences reported in the grounds of detention are registered for violating the provisions of section 20 (1) (c) (ii) and (vi) (vii) and punishable under Section 20 (d) (ii) of the A.P. Forest Act, 1967 and also for contravention of section 2 of Forest (Conservation) Act, 1980, and punishable under Section 3 (A) of the said Act. As per the definition of “land grabber” under Section 2(j) of Act 1 of 1986 land grabbing should complete in all respects by satisfying the conditions mentioned in the definition. Admittedly, the land grabbing is not covered by the definition. In the grounds of detention, as referred to above, it was mentioned that the detenu has repeatedly committed the forest offences involving in encroachment of Reserved Forest area and encouraging the villagers for erecting huts and causing damage to the natural forest. In all the offences, as reported, they were arrested and remanded, but it is no where mentioned that he is a land grabber within the definition of Sec. 2(j) of the Act 1 of 1986 and charged for the said offence along with the forest offences, but he was declared as a land grabber and directed to be put in Central Prison. In view of the same, we are of the opinion that from the grounds of detention, none of the ingredients of Section 2 (j) of Act 1 of 1986 have been satisfied nor made a mention to satisfy that the detenu is a land grabber. The law permitting preventive detention must be meticulously followed both substantively and procedurally by the detaining authority. I n Rajesh Gulati v Government of NCT of Delhi and another[1], the Supreme Court held that the object of detention under the Act is not to punish but to prevent the commission of certain offences. The satisfaction of the detaining authority is not a subjective one based on the detaining authority’s emotions, beliefs or prejudices. There must be a real likelihood of the person being able to indulge in such activities, the inference of such likelihood being drawn from objective data. In C.Venkataiah v The Commissioner of Police, Hyderabad and others[2] Supreme Court held that detention of a person under the Act without satisfaction of detaining authority that the detenu belongs to any of the categories mentioned in Section 3 (1) of Act 1 of 1986 is illegal. In view of the above discussion, we are of the considered opinion that the detention order cannot be sustained and the same is liable to be set aside and accordingly set aside. In the result, the Writ petition is allowed and the detention order passed by the second respondent-The Collector and District Magistrate, Khammam District, in R.C.No.C1/3351/2010 dated 18.11.2010 is hereby set aside and the detenu Bhukya Veerabhadram detained in Central Prison, Cherlapally, Ranga Reddy District, be released forthwith. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 22nd June, 2011 sur [1] (2002) 7 SCC 129 [2] 1989 (3) ALT 230 (D.B.)