THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE R. KANTHA RAO WP No.23698/2011 Dt. 9 -12-2011 K. Nageswara Naidu ..Petitioner V. 1. The Collector & District Magistrate, Kadapa, Y.S.R. District, 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.23698/2011 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 Oﬀenders and Land Grabbers Act, 1986 (for short “the Act 1 of 1986”) in Proceedings No.C1/444/M/2011 dt, 4-8-2011, directed the detention of Maddipatla Reddy Narayana S/o M.Subbarayudu, 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. S. No OR No./Cr.No. Forest Range/Police Station Sections Material seized 1 O.R.No.69/2007- 2008dt. 13-7-2007 Forest Range Office, Piler Range U/ss.29(2) (b),29(4)(a)(I) of A.P. Forest Act, 1967; Rules 3 and 4 of A.P. Sandal Wood and Red Sanders Wood Transit Rules, 1969; and 379 IPC. 1 9 Red sanders logs (weight 676 kgs) 2 O.R.No.44/2007- 2008 dt. 4-8-2007 F o r e s t Range Officer, Kadapa range, Kadapa Division 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,1969; and ss.379 and 109 r/w 34 IPC. 3 0 Red sanders logs (weight 65711 kgs) 3 O.R.No.48/2007- 2008 dt. 8-8-2007 Forest Range Officer, Kadapa Range, Kadapa Division U/ss.20(1)(c)(ii) (iii) (iv), (vii) and (x), 29(4) of A.P. Forest Act, 1967; Rule 3 of A.P. Sandal Wood and Red Sanders Wood Transit Rules;1969, and ss. 379 and 109 r/w 34 IPC 1 5 7 Red sanders logs (weight 9044 kgs) 4 C r . N o . 110/2007 dt.24-9-2007 Chinthakomma- dinne Police Station, Kadapa District. U/ss.304(A),337,186 and 201 IPC 2 4 5 Red sanders logs (weight 3701 kgs) 5 Cr. No.115/2007 dt. 28-9-2007 Chinthakomma- d i n n e Police Station of Kadapa District. U/ss.20(1) (c) (iii) (iv), and (x); Rules 3 and 4 of A.P. Sandal Wood and Red Sanders Wood Transit Rules,1969; Sec.25(1B) (a) and (b) of Arms Act and Sec.379 IPC 7 4 Red sanders logs 6 O.R.No.139/2009- 2010 dt. 9-8-2009 F o r e s t Range Officer, Madanapalle range. U/ss.20(1) (c) and 29(1)(2) (a) (b) of A.P. Forest Act, 1967; Rules 3 and 4 of A.P. Sandal Wood and Red Sanders Wood Transit Rules,1969; Sec.9 of Wildlife (Protection) Act, 1972; and Sections 379 and 120-B IPC. 5 0 Red sanders logs (weight 1300 kgs) 7 O.R.No.137/2009- 2 0 1 0 dt. 13-12- 2009 Forest Range Officer, Piler Range U/ss.20(1) (c) (ii) and (x) and 29 of A.P. Forest Act,1967; Rule 3 of A.P. Sandal Wood and Red Sanders Wood Transit Rules1969; Sec.9 of Wildlife (Protection) Act, 1972; a nd Section 379 and 120-B IPC. 19 Red sanders logs (weight 726 kgs) The detention order dt. 4-8-2011 as approved by the Government of Andhra Pradesh in G.O.Rt.No.3589, General Administration (Law & Order.II) Department dt. 10-8-2011 and conﬁrmed in G.O.Rt.No.3920, General Administration (Law & Order.II) Department dt. 3-9-2011, is challenged by the cousin of detenu by means of present writ petition praying for issuance of a writ of ‘Habeas Corpus’ to release 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. 4-8-2011, which have been considered by the detaining authority for drawing his subjective satisfaction are: 8 O.R.No.116/2009- 2010 dt. 10-2-2010 Forest Range O ﬃc e r , Sanipaya Range U/ss.20(1) (c) (ii) (iii) (iv) (iv) and (x) and (29)(2)(b)(4)(b) of A.P. Forest Act,1967; Rule 3 of A .P. Sandal Wood and Red Sanders Wood Transit Rules1969; and Sections 378, 379 and 120-B. IPC. 2 9 red sanders logs (weight 752 kgs) 9 O.R.No.31/2011-12 dt. 5-7-2011 Forest Range O ﬃce r, Rayachoty Range. U/ss.20(1) (c) (ii) (iii) (iv) (iv) and (x) and 29 (29)(2)(b)(4)(b) of A.P. Forest Act,1967; Rule 3 of A.P. Sandal Wood and Red Sanders Wood Transit Rules1969; and Sections 378, 379 and 120-B. IPC. 8 red sanders logs (241 logs) In the order of detention, the detaining authority requested the Divisional Forest Oﬃcer, Kadapa, Y.S.R. District is requested 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 in judicial custody in execution of NBW in Cr.No.110/2007 of C.K.Dinne Police Station. The order of detention and grounds of detention were served on the detenu on 12-8-2011. Thereafter, he was shifted from Central Prison, Kadapa to Central Prison, Cherlapalli, R.R. District. 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.3589, dt. 10-8-2011 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 25-8-2011 opined that “there is suﬃcient cause for detention of the detenu—Maddipatla Reddy Narayana, S/o M.Subbarayudu. Basing on the recommendations of the Advisory Board the Government through G.O.Rt.No.3920 dt.3-9-2011 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. 12-8-2011. The said detention order is challenged contending that 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 referred to in the grounds of detention are relate to the year 2007 and said grounds are stale incidents and they cannot be taken into consideration. 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 documents supplied to the detenu are not in the language known to him, and therefore, he was prevented from making representation which is in violation of constitutional mandate. It is highly impossible for the detenu to be present at the scene of oﬀence at 3-30 PM when OR No.48/2007-2008 was registered as he was released on bail in OR No.44/2007-2008 on 8-8-2007 at 5 PM. The signature aﬃxed in Telugu in the Telugu version of detention order appears to be in a diﬀerent manner and it raises a doubt whether the detaining authority singed in the Telugu version of the detention order. 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 9 incidents pertaining to the years 2007, 2008, 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 three crimes the detenu was arrested and remanded; later he was enlarged on bail and the remaining six incidents, P.T. warrants were ﬁled by the concerned authorities. The detenu was granted bail in 3 P.T. Warrant Cases and in the remaining cases, the bail applications are moved and there is every likelihood of he being released on bail at any point of time. Sri H. Prahlad Reddy, learned counsel for the petitioner contends that though section 2(g) of the Act deﬁnes “goonda”, which means a person who commits or attempts to commits or abets the commission of oﬀences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code, FIR No.110/2007 refers to at Serial No.4 is for the oﬀences punishable under Section 304-A, 337, 186 and 201 IPC, which do not fall either under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code and oﬀence punishable under Sec. 201 IPC falls under Chapter XI of the Indian Penal Code, therefore, referring of such oﬀence is an irrelevant ground and order of detention is liable to be vitiated. He further contends that the order of detention does not indicate in how many cases the detenu was enlarged on bail. In support of the same, he placed reliance on the judgment of the Supreme Court in T.R.SRAVANAN V. STATE [1].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 5 mentioned in the detention order are stale. In view of the same, the detention order passed by the detaining authority on irrelevant and stale grounds has to be set aside. Further, the detenu was arrested in execution of NBW and was in judicial custody and therefore the detention order passed by the detaining authority is on irrelevant and stale ground and is liable to be set-aside. Further in OR No.31/2011-12, he has not applied for bail and was in judicial custody by the date of passing of detention order and therefore, the detention order is liable to be set aside. In support of the same, he placed reliance on the judgment of the Supreme Court in T.R.SRAVANAN (1 supra) and also judgment of this court in W.P.Nos.6298 and 12900 of 2011 dated 27-06-2011. He further contends that incidents 1 to 3 and incidents 6 to 9 referred to in the grounds of detention are registered by the Forest Officials as ORs and in all the said cases they mentioned oﬀences under Secs.378 and 379 and 120-B IPC apart from the oﬀences under the Forest Act and the Forest Oﬃcials have no power to register the cases for the oﬀences under the Indian Penal Code, this is being done only with a view to bring the detenu within the meaning of ‘Goonda’ and therefore, the detention order is liable to be dismissed. Per contra, Smt. Mohana Reddy, learned Special Government Pleader while sustaining the detention order contended that detenu along with other accused, numbering 11, in O.R.No.48/2007-2008 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[2] and SUNILA JAIN v. UNION OF INDIA[3]. 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” Section 2(g) of the Act deﬁnes “goonda” which means “ a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of oﬀences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code. As rightly contended by the learned counsel for the petitioner that oﬀences for which crime registered in Cr.No.110/2007 do not fall either under Chapter XVI or Chapter XVII or Chapter XXII, in which detenu was granted bail, whether same has been taken note while passing the detention order is a matter which has to be considered in the light of the grounds of detention and detention order and law laid down by the Supreme Court in L.M.S. UMMU SALEEMA V. B. B. GUJRAJ[4], which is at a later point of time to KIRIT KUMAR V. UNION OF INDIA [5], wherein Justice O.Chinnapa Reddy speaking for a three-Judge Bench after extracting the ratio laid down in ICCHU DEVI CHORARIA V. UNION OF INDIA (1980) 4 SCC 531) and KHUDIRAM DAS V. STATE OF W.B .(1975) 2 SCC 81=AIR 1975 SC 550) Justice O.Chinnapa Reddy speaking for a three-Judge Bench in held at para 5 as under: “…It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an 2ment of Article 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it diﬃcult for the detenu to make an eﬀective representation, that amounts to a violation of the fundamental rights guaranteed by Article 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention. In the case before us we are satisﬁed that such were the two documents, copies of which were not furnished to the detenu. We are satisﬁed that the documents cannot be said to be documents which were relied upon by the detaining authority in making the order of detention. Therefore, the detenu could not properly complain that he was prevented from making an eﬀective representation. There was no violation of the right guaranteed by Article 22 of the Constitution.” In the grounds of detention enclosed along with the detention order, there is reference of 9 crime numbers including Cr.No.110/2007. After referring to the gist of the oﬀences, it was mentioned that the detenu is involved in nine diﬀerent cases and he had been absconding or concealed his presence and involved in red sanders wood smuggling; he is also trying for getting bail and if he comes out from prison on bail, he will deﬁnitely indulge into a prejudicial activity which is required to be prevented by a detention order, which is anticipatory measure and does not relate to an oﬀence or the criminal proceedings to punish a person for an oﬀence committed by him. Since the detenu is habitually indulging in illicit trespassing, cutting, dressing and transporting the red sandal wood from the reserve forest and causing irreparable destruction of the pristine national wealth and his activities are resulting in denudation of forest and causing ecological imbalance resulting in ﬁnancial loss to the community and aﬀecting the environment and he is also forcing the local villagers to commit the illegal theft of red sandal wood from the reserve forest and prejudicial to the maintenance of public order and such activities disturb the peace, tranquility, social harmony/order in the society, he is ordered to be detained under the Act. Therefore, the detention order was not passed on the ground that he is involving in various oﬀences relating to the Indian Penal Code but for the oﬀences relating to smuggling of red sandal wood. In view of the same, the contention of the learned counsel for the petitioner that the detention order was passed in a mechanical manner and on irrelevant ground, namely, oﬀence registered under Cr.No. 110/2007 do not fall within the definition of “goonda” does not merit consideration. In the grounds of writ petition it is contended that the forest oﬃcials have 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. In W.P.Nos.6298 and 12900 of 2011 (G. CHANDRA OBUL REDDY V. THE COLLECTOR AND DISTRICT MAGISTRATE, KADAPA AND OTHERS) , to which one us (AGR,J) is a party , this court 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 (3 supra), 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 some of the crimes and the said fact has not been considered by the detaining authority while passing the detention order does not merit consideration. The oﬀence reports, as referred to above, would clearly disclose that the detenu was involved in smuggling of large scale red sander, which is a rare species. Therefore, stealing of national wealth will deﬁnitely affect the public order. The last contention of the learned counsel for the petitioner is that detention order is passed when the detenu was in judicial custody and therefore, the detention cannot be sustained. The Supreme Court in T.V.SRAVANAN (1 supra) held that when the detenu was already in jail or custody, the conditions laid down in KAMARUNNISSA V. UNION OF INDIA[6] (1991(1) SCC 128) must be fulfilled. With regard to passing of detention order against the detenu who found to be involved in felling, transporting, smuggling of red-sanders trees and committing theft of forest wealth in as many as eight times within a period of one year, the Supreme Court in G. REDDEIAH V. GOVT., OF ANDHRA PRADESH (CRIMINAL APPEAL NO.1761/2011 DT. 9-9-2011) after referring to the earlier judgments including the judgment in REKHA V. STATE OF T.N .[7] held that on going through the factual position and orders therein and in view of enormous activities of the detenue violating various provisions of IPC, the A.P. Act and the Rules, continuous and habituality in pursuing the same type of oﬀences, damaging the wealth of the nation and taking note of the abundant factual details as available in the grounds of detention and also of the fact that all the procedures and statutory safeguards have been fully complied with by the Detaining Authority, the decision in REKHA (5 supra) is not applicable to the case on hand and agreed with the reasoning of the Detaining Authority as approved by the Government and upheld by the High Court. In view of the fact that the Supreme Court distinguished the principles in G. REDDEIAH (supra), which went up from our own High Court judgment, we do not see any merit in the contention that the detention order cannot be passed while the detenu is in custody. Law is well settled if there is imminent possibility of detenu being set at liberty, as a principle if his detention is otherwise necessary, nothing prevents the detaining authority from passing an appropriate order detaining the person concerned who is in custody. For the conclusions reached by us, we are of the opinion that the detention order dt. 4-8-2011 passed by the Collector and District Magistrate, Kadapa, as approved by the Government of Andhra Pradesh in G.O.Rt.No.3589, General Administration (Law & Order.II) Department dt. 10-8-2011 and conﬁrmed in G.O.Rt.No.3920, General Administration (Law & Order.II) Department dt. 3-9-2011, does not suﬀer from any illegality warranting interference by this court. The writ petition is accordingly dismissed. --------------------- A.GOPAL REDDY,J ------------------- R.KANTHA RAO,J DT. 9-12-2011 Kmr [1] (2006) 2 SCC 664 [2][1] 2005 (3) SCC 663 [3][2] (2006) 3 SCC 321 [4] AIR 1981 SC 1191 [5] AIR 1981 SC 1621 [6] (1991) 1 SCC 128 [7] (2011) 6 SCC 244