THE HON'BLE SRI JUSTICE N.V.RAMANA AND HON'BLE SRI JUSTICE P.DURGA PRASAD
WRIT PETITION No.12340 of 2012
28.09.2012
Rage Mounika
The Collector & District Magistrate,YSR District, Kadapa and two others
Counsel for the Petitioner: MRS.D.Sangeetha Reddy
Counsel for the Respondents: The Advocate General
>HEAD NOTE:
? Cases referred
1 (2011) 5 SCC 244
2 (2012) 2 SCC 176
3 (2012) 2 SCC 386
4 Criminal Appeal No. 1113 of 2012, dated 26.07.2012
5 (1975) 3 SCC 198
6 (1983) 4 SCC 301
7 (2012) 2 SCC 389
8 AIR 1964 SC 334
9 (2012) 2 SCC 386
10. Criminal Appeal No. 1113 of 2012, dated 26.07.2012
O r d e r: (Per Sri. N.V. Ramana, J.)
The petitioner, who claims to be the wife of the detenu, namely Rage
Nagasekhar, who is now detained in Central Prison, Cherlapally, has filed this
writ petition praying for a Writ of Corpus, directing the respondents to produce
the detenu before this Court and set him at liberty forthwith.
The Divisional Forest Officer, Kadapa, YSR District, informed respondent
No.1, namely the Collector and District Magistrate (hereinafter referred to as
'the Detaining Authority') that the detenu since last two years is involved in
illicit felling of red sanders, smuggling them to secret and unknown places in
India and abroad, and that he is involved in six forest offences, namely in O.R.
Nos. 81/2010-2011, dated 21.10.2010; 32/2011-2012, dated 08.06.2011; 59/2011-
2012, dated 12.09.2011 and 62/2011-2012, dated 14.09.2011 of Sidhout Range;
Offence Crime No. 107/2011, dated 22.09.2011 of Circle Inspector of Police,
Vontimitta and O.R. No. 92/2011-12, dated 05.10.2011 of Kadapa Range, which were
registered against him for the offences punishable under
Sections 20, 29 and 44 of the A.P. Forest Act, 1967 and Rule 3 of the A.P.
Sandal Wood and Red Sander Wood Transit Rules, 1969 and the provisions of
Sections 378 and 379 I.P.C. In connection with the said offences, the detenu
was arrested and produced before the Magistrates concerned, who remanded him to
judicial custody. While the detenu is in judicial custody, considering the fact
that the illegal activities of the detenu, is causing willful destruction of red
sanders trees, which is an endangered species, and causing damage to public
property, resulting in depletion of green cover and loss of national wealth, and
as his activities are prejudicial to the maintenance of public order, disturbing
the peace, tranquility and social harmony in the society, and as the forest laws
and ordinary law under which the detenu is being prosecuted are not sufficient
in the ordinary course to deal with him firmly, respondent No.1-Detaining
Authority, in exercise of the powers conferred on him under Section 3(1) and (2)
of the A.P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug
Offenders, Goondas, Immoral Traffic Offenders and Land Grabbing Act, 1986
(hereinafter referred to as 'the Preventive Detention Act'), with a view to
prevent the detenu from commission of similar such activities, which is
resulting in plundering of national wealth, vide order dated 11.01.2012, ordered
the detention of the detenu in prison. Thereafter, based on the
recommendations of the Advisory Board, respondent No.2-Government, by order
dated 24.02.2012, confirmed the order of detention. Hence, questioning the
said order of detention, passed by respondent No.1-Detaining Authority, for
detention of the detenu in prison, as confirmed by respondent No.2-Government,
the petitioner filed the present writ petition.
The learned counsel for the petitioner submitted that the cases registered
against the detenu for the offences punishable under the A.P. Forest Act and the
Indian Penal Code, which formed the basis for passing the order of detention by
respondent No.1-Detaining Authority, are false. At the time when the order of
detention was passed by respondent No.1-Detaining Authority, the detenu was in
judicial custody in connection with one of the cases registered against him, and
he having not made any application for his release on bail, the possibility of
his coming out of jail and indulging in commission of similar such activities,
which are allegedly prejudicial to the maintenance of public order does not
arise. Since respondent No.1-Detaining Authority, without considering this
aspect of the matter, has passed the order of detention, the same suffers from
his lack of subjective satisfaction, and therefore, is liable to be set aside.
In support of this argument, he placed reliance on the judgment of a three-Judge
Bench of the Apex Court in Rekha v. State of Tamil Nadu1, which was consistently
followed subsequently by the Apex Court in Yumman Ongbi Lembi Leima v. State of
Manipur2, Munagala Yadamma v. State of A.P.3 and very recently in an unreported
judgment in K. Nageswara Naidu v. Collector and District Magistrate, YSR Kadapa
District4.
The learned counsel for the petitioner next submitted that the ordinary law
under which the detenu is being prosecuted is sufficient to deal with the
alleged activities of the detenu, and as such, there was no necessity for
respondent No.1-Detaining Authority, to detain the detenu invoking the
Preventive Detention Law.
The learned counsel for the petitioner thus prayed that the writ petition be
allowed and the order of detention passed by respondent No.1-Detaining Authority
against the detenu, as confirmed by respondent No.2-Government, be set aside.
On behalf of the respondents, respondent No.1-Detaining Authority, namely the
Collector and District Magistrate filed counter. The learned Assistant
Government Pleader representing the learned Advocate General for the
respondents, reiterating the stand taken by the respondents in their counter
submitted that the detenu is habitually indulging in illicit felling of red
sanders trees by trespassing into forest area, smuggling and transporting them
out of the reserved forest owned by the State, that his activities are not only
dangerous to the rare species of red sanders, but also causing damage to the
pristine forest wealth. His activities are also prejudicial to the maintenance
of public order, and for commission of such offences, the detenu is punishable
under the provisions of the A.P. Forest Act and the Rules made thereunder and
the provisions of the Indian Penal Code. The detenu has committed as many as
six offences in a span of two years, and as the ordinary laws under which he is
being prosecuted are not sufficient to deal with his activities, respondent
No.1-Detaining Authority, with a view to prevent the detenu from indulging in
commission of similar such crimes, has passed the order of detention by invoking
the Preventive Detention Law, which was confirmed by respondent No.2-the
Government. She further submitted that though the detenu is in judicial custody
and has not made any application for his release on bail, but the same by
itself, does not bar the Detaining Authority, to pass an order of detention
under the Preventive Detention Law, if the Detaining Authority is satisfied that
there is every possibility of the detenu being released on bail in the pending
cases, and upon such release, the detenu would indulge in commission of similar
such offences and act in a manner breaching public order or law and order, and
therefore, there is every need to detain him under the Preventive Detention Law.
In support of her arguments, she placed reliance on the judgments of the Apex
Court in Haradhan Saha v. State of West Bengal5, Alijan Mian v. District
Magistrate6 and Reddeiah v. Government of A.P.7. Hence, she prayed that the
order of detention, passed by respondent No.1-Detaining Authority, as confirmed
by respondent No.2-Government, be upheld and the writ petition be dismissed.
Heard the learned counsel for the petitioner and the learned Assistant
Government Pleader representing the learned Advocate General for the
respondents.
In the light of the arguments advanced by the respective parties, the following
two issues arise for consideration, in this writ petition:
1. Whether the order of detention passed by respondent No.1-Detaining Authority,
as confirmed by respondent No.2-Government, suffers from lack of subjective
satisfaction of the Detaining Authority, because at the time when the order of
detention was passed, the detenu was in judicial custody and he did not move any
application for his release on bail?
2. Whether the ordinary criminal laws, namely A.P. Forest Act and the Indian
Penal Code, under which the detenu is charged and is being prosecuted, are
sufficient to deal with the activities of the detenu, and as such, there is no
necessity for respondent No.1-Detaining Authority, to pass order of detention
against the detenu?
Before we proceed to answer the above issues, we would like to briefly discuss
what is preventive detention?
Preventive Detention, the law is well settled, that it is not punitive, but only
preventive, and therefore, before passing an order of detention against a
person, which takes away his liberty, the Detaining Authority, has to satisfy
for itself whether there is sufficient material placed before him, to prevent
the person from acting in a manner prejudicial to public order or the like, in
the near future.
A Constitution Bench of the Apex Court in Haradhan Saha v. State of West Bengal,
stated the concept of preventive detention, as follows:
The essential concept of preventive detention is that the detention of a person
is not to punish him for something he has done but to prevent him from doing it.
The basis of detention is the satisfaction of the Executive of a reasonable
probability of the likelihood of the detenu acting in a manner similar to his
past acts and preventing him by detention from doing the same.
The Apex Court further elaborated the power of detention of the Detaining
Authority, as follows:
The power of preventive detention is qualitatively different from punitive
detention. The power of preventive detention is a precautionary power exercised
in reasonable anticipation. It may or may not relate to an offence. It is not
a parallel proceeding. It does not overlap with prosecution even if it relies
on certain facts for which prosecution may be launched or may have been
launched. An order of preventive detention may be made before or during
prosecution. An order of preventive detention may be made with or without
prosecution and in anticipation or after discharge or even acquittal. The
pendency of prosecution is no bar to an order of preventive detention. An order
of preventive detention is also not a bar to prosecution.
In Alijan Miah v. District Magistrate, a three-Judge Bench of the Apex Court,
considered whether preventive detention, is preventive or punitive, and held as
follows:
Preventive detention is an anticipatory measure and does not relate to an
offence while the criminal proceedings are to punish a person for an offence
committed by him. They are not parallel proceedings.
In Rekha v. State of Tamil Nadu, a three-Judge Bench of the Apex Court, in the
light of the Constitutional provisions, having considered the scope, nature and
limits of preventive detention, whether it is preventive or punitive, held as
follows:
It is all very well to say that preventive detention is preventive not punitive.
The truth of the matter, though, is that in substance a detention order of one
year (or any other period) is a punishment of one year's imprisonment. What
difference is it to the detenu whether his imprisonment is called preventive or
punitive? Further, in cases of preventive detention no offence is proved and
the justification of such detention is suspicion or reasonable probability, and
there is no conviction which can only be warranted by legal evidence.
Preventive detention is often described as a "jurisdiction of suspicion". The
detaining authority passes the order of detention on subjective satisfaction.
Preventive detention is, by nature, repugnant to democratic ideas and an
anathema to the rule of law. No such law exists in the USA and in England
(except, during war time). Since, however, Article 22(3)(b) of the Constitution
permits preventive detention, it cannot be held illegal. But the power of
preventive detention must be confined to very narrow limits, otherwise the great
right to liberty won by our Founding Fathers, who were also freedom fighters,
after long, arduous and historical struggles, will become nugatory. To prevent
misuse of this potentially dangerous power the law of preventive detention has
to be strictly construed and meticulous compliance with the procedural
safeguards, however technical, is mandatory and vital.
From the law, as laid down by the Apex Court, in the afore-mentioned judgments,
it is clear that power of preventive detention has to be strictly construed and
meticulous compliance with the procedural safeguards have to be followed by the
Detaining Authority while passing an order of detention against a person for his
detention in prison.
In re issue No. 1:
The learned counsel for the petitioner submitted that when the detenu is
in judicial custody and when he did not even file any application for his
release on bail, the possibility of his coming out of jail in the near future
and indulging in commission of similar such activities, which are allegedly
prejudicial to the maintenance of public order, does not arise. Therefore,
there was no necessity for respondent No.1-Detaining Authority to pass an order
of detention under the Preventive Detention laws against the detenu. However,
the learned Assistant Government Pleader, contended that Detaining Authority can
pass an order of detention even while the detenu is in judicial custody, if he
is satisfied that there is likelihood of the detenu being released on bail in
the near future and upon such release, he would indulge in commission of similar
such activities, which are prejudicial to the maintenance of public order and
prejudicial to the interests of the State. She further submitted that since
there was likelihood of the detenu being released on bail in the pending cases,
with a view to prevent the detenu from commission of similar such offences upon
his release on bail, respondent No.1-Detaining Authority has passed the order of
detention. Therefore, she submitted that no interference is warranted with the
order of detention passed by respondent No.1-Detaining Authority, as confirmed
by respondent No.2-Government, and prayed that the writ petition be dismissed.
To appreciate this contention, it would be appropriate if a reference is made to
the judgments of the Apex Court, relied upon
by the counsel in support of their respective contentions.
The question, can a person in jail custody be served with an order of detention
while he is in such custody, was considered by the Constitution Bench of the
Apex Court n Rameshwar v. District Magistrate8. The Apex Court having
considered the said question in the light of the provisions of Section 3 of the
Preventive Detention Act, held:
The first stage in the process is to examine the material adduced against a
person to show either from his conduct or his antecedent history that he has
been acting in a prejudicial manner. If the said material appears satisfactory
to the authority, then the authority has to consider whether it is likely that
the said person would act in a prejudicial manner in future if he is not
prevented from doing so by an order of detention. If this question is answered
against the petitioner, then the detention order can be properly made. It is
obvious that before an authority can legitimately come to the conclusion that
the detention of the person is necessary to prevent him from acting in a
prejudicial manner, the authority has to be satisfied that if the person is not
detained, he would act in a prejudicial manner and that inevitably postulates
freedom of action to the said person at the relevant time. If a person is
already in jail custody, how can it rationally be postulated that if he is not
detained, he would act in a prejudicial manner? At the point of time when an
order of detention is going to be served on a person, it must be patent that the
said person would act prejudicially if he is not detained and that is a
consideration which would be absent when the authority is dealing with a person
already in detention. The satisfaction that it is necessary to detain a person
for the purpose of preventing him from acting in a prejudicial manner is thus
the basis of the order under Section 3(1)9a), and this basis is clearly absent
in the case of the petitioner.
(emphasis supplied)
In Alijan Mian v. District Magistrate, on which the learned Assistant Government
Pleader placed heavy reliance to justify the order of detention, there the order
of detention was passed by the Detaining Authority against the detenu on the
allegation that the detenu threw a bomb against his opponents and opened gun
fire in a thickly populated residential colony and thereby created great panic
and alarm in the area, which adversely affected the public order. The petitioner
unsuccessfully challenged the detention order in writ petition before the Patna
High Court. However, the petitioner instead of filing appeal, moved petition
under Article 32 before the Supreme Court. A three-Judge Bench of the Apex
Court, having regard to the gravity of the offence, alleged to have been
committed by the detenu, upheld the order of detention passed against him,
holding:
It may be pointed out at the very outset that the detaining authority was alive
to the fact that the petitioners were in jail custody on the date of the passing
of the detention orders as will be clear from the following statement in the
grounds of detention:
The subject is in jail and is likely to be released on bail ... In the
circumstances, I am satisfied that if he is allowed to remain at large, he will
indulge in activities prejudicial to the maintenance of public order.
The position would have been entirely different if the petitioners were in jail
and had to remain in jail for a pretty long time. In such a situation there
could be no apprehension of breach of 'public order' from the petitioners. But
the detaining authority was satisfied that if the petitioners were enlarged on
bail, of which there was every likelihood, it was necessary to prevent them from
acting in a manner prejudicial to public order.
The Apex Court further held that if the detenu was in jail and had to remain in
jail for a pretty long time, then in such case, passing the order of detention
would not be justified, and in case, the Detaining Authority is satisfied that
there is every likelihood of the detenu being released on bail, then the order
of detention, to
prevent the detenu from acting in a manner prejudicial to public order, would be
justified.
In Rekha v. State of Tamil Nadu, upon which the learned counsel for the
petitioner placed reliance, the detenu was alleged to be habitually changing the
labels of expired drugs and redistributing the same for sale to the general
public. The detenu was in judicial custody, and his relatives were taking
action to get him released on bail by filing bail applications before the courts
and that in similar cases, courts were granting bail, and as such, there was
real possibility of his coming out on bail in the above case by filing bail
application, and if he comes out on bail, he would indulge in further activities
which will be prejudicial to the maintenance of public health and order. Having
regard to this, the Detaining Authority, with a view to curb his activities,
passed the order of detention. The wife of the detenu unsuccessfully questioned
the order of detention before the High Court of Tamil Nadu. In the appeal
before the Apex Court, it was contended that since the detenu was in judicial
custody, the order of detention could not have been passed by the Detaining
Authority. In order to consider the said contention, the Apex Court perused the
grounds of detention, and upon perusing them, observed as follows:
A perusal of the above statement in para 4 of the grounds of detention shows
that no details have been given about the alleged similar cases in which bail
was allegedly granted by the concerned court. Neither the date of the alleged
bail orders has been mentioned therein nor the bail application number nor
whether the bail orders were passed in respect of the co-accused on the same
case nor whether the bail orders were passed in respect of other co-accused in
cases on the same footing as the case of the accused. All that has been stated
in the grounds of detention is that "in similar cases bails were granted by the
courts". In our opinion, in the absence of details this statement is mere ipse
dixit, and cannot be relied upon.
The Apex Court further observed:
In our opinion, if details are given by the respondent authority about the
alleged bail orders in similar cases mentioning the date of the orders, the bail
application number, whether the bail order was passed in respect of co-accused
in the same case, and whether the case of the co-accused was on the same footing
as the case of the petitioner, then, of course, it could be argued that there is
likelihood of the accused being released on bail, because it is the normal
practice of most courts that if a co-accused has been granted bail and his case
is on the same footing as that of the petitioner, then the petitioner is
ordinarily granted bail. However, the respondent authority should have given
details about the alleged bail order in similar cases, which has not been done
in the present case. A mere ipse dixit statement in the grounds of detention
cannot sustain the detention order and has to be ignored.
The Apex Court having observed so, held as follows:
Where a detention order is served on a person already in jail, there should be a
real possibility of release of a person on bail who is already in custody
provided he has moved a bail application which is pending. It follows logically
that if no bail application is pending, then there is no likelihood of the
person in custody being released on bail, and hence the detention order will be
illegal. However, there can be an exception to this rule, that is, where a co-
accused whose case stands on the same footing had been granted bail. In such
cases, the detaining authority can reasonably conclude that there is likelihood
of the detenu being released on bail even though no bail application of his is
pending, since most courts normally grant bail on this ground. However, details
of such alleged similar cases must be given, otherwise the bald statement of the
authority cannot be believed.
Holding as above, the Apex Court, set aside the order of the High Court, which
upheld the order of detention passed against the detenu by the Detaining
Authority.
In the instant case, the respondents except stating that the detenu is moving
bail applications and there is every possibility of his being released on bail,
did not file any material to show that the detenu moved any bail application or
some other person, who along with the detenu is co-accused in the case, was
released on bail. On the other hand, the learned Assistant Government Pleader,
basing on the counter averments admitted that the detenu has not filed any
applications for his release on bail and that when the order of detention was
passed, the detenu was still in judicial custody.
In Yumman Ongbi Lembi Leima v. State of Manipur, on which the counsel for the
petitioner placed reliance, the detenu was detained in pursuance of an order of
detention passed under the provisions of the National Security Act, 1980. One
of the submissions advanced was the order of detention was passed against the
detenu because there was possibility of he being released on bail as he was in
custody in connection with other offences. By the time the order of detention
came to be passed, he was already released on bail. The High Court of Manipur
upheld the order of detention. However, in appeal the Apex Court, following the
judgment in Rekha v. State of Tamil Nadu, held that the exercise of
extraordinary powers of detaining an individual in contravention of the
provisions of Article 22(2) of the Constitution, was not warranted, where the
grounds of detention did not disclose any material which was before the
Detaining Authority, other than the fact that there was every likelihood of the
petitioner therein being released on bail in connection with the cases in
respect whereof he had been arrested, to support the order of detention. And
holding so, the Apex Court, set aside the order of detention passed against the
detenu.
In Munagala Yadamma v. State of A.P.9, the order of detention was passed against
the detenu by the Detaining Authority on the ground that he was habitually
indulging in commission of offences under the provisions of the A.P. Prohibition
Act and the Rules made thereunder. The High Court upheld the order of
detention. But in appeal, the Apex Court, following the judgment of the three-
Judge Bench in Rekha v. State of Tamil Nadu, set aside the order of detention,
which was confirmed by the High Court.
In G. Reddeiah v. Government of A.P., on which the learned Assistant Government
Pleader placed reliance, the order of
detention was passed by the Detaining Authority on the ground the detenu was
habitually indulging in commission of same offences i.e. trespass in forest
area, illicit cutting, felling, smuggling and
transporting of red sanders wood from the reserved forest owned by the State.
The brother-in-law of the detenu challenged the order of detention before this
Court. This Court upheld the order of detention passed by the Detaining
Authority. In appeal before the Apex Court, the appellant sought quashing of
the order of detention placing reliance on the judgment in Rekha v. State of
Tamil Nadu. A two-Judge Bench of the Apex Court, having distinguished the said
judgment on facts of the said case with the facts of the case before it, refused
to nullify the order
of detention, as upheld by this Court, holding thus:
Though an attempt was made to nullify the order of detention by drawing our
attention to the latest decision of this Court in Rekha v. State of Tamil Nadu,
on going through the factual position and orders therein and in view of the
enormous activities of the detenu violating various provisions of IPC, the A.P.
Act and the Rules, continuous and habituality in purusing 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, we are of the view that the said decision is not
applicable to the case on hand. On the other hand, we fully agree with the
reasoning of the detaining authority as approved by the Government and upheld by
the High Court.
The learned Assistant Government Pleader submitted that
the nature of offences alleged to have been committed by the detenu in Rekha v.
State of Tamil Nadu are different from the nature
of offences alleged to have been committed by the detenu in the present case,
which are akin to the nature of offences alleged in Reddeiah v. Government of
A.P., and therefore, the law laid down in Rekha v. State of Tamil Nadu, cannot
be applied to the facts of the present case.
She submitted that in Rekha v. State of Tamil Nadu, where the Apex Court set
aside the order of detention passed by the Detaining Authority, the detenu was
alleged to be habitually changing the labels of expired drugs and redistributing
the same for sale. But in the instant case, as also in Reddeiah v. Government
of A.P., the order of detention was passed by the Detaining Authority on the
ground that the detenu was habitually indulging in commission of same offences
i.e. trespassing into forest area, illicit cutting, felling, smuggling and
transporting of red sanders wood from the reserved forest owned by the State,
and to prevent commission of such offences by the detenu, the Detaining
Authority passed the order of detention. Since in similar set of facts, in
Reddeiah v. Government of A.P., the Apex Court after distinguishing the facts of
the case in Rekha v. State of Tamil Nadu, refused to interfere with the order of
detention, she contended that the law laid down in Reddeiah v. Government of
A.P., which confirmed the order of the High Court, upholding the order of
detention, has to be followed.
It is no doubt that the nature of offences alleged to have
been committed by the detenu herein are similar to the nature of offences
alleged to have been committed by the detenu in
Reddeiah v. Government of A.P., but the fact remains, in a recent case in K.
Nageswara Naidu v. Collector & District Magistrate, Y.S.R. Kadapa District10,
the Detaining Authority has passed an order of detention against the detenu with
a view to prevent him
from causing excessive damage to the national wealth by
trespassing, cutting, dressing and transporting the red sanders wood from the
forest. The said order of detention was passed, when the detenu was in judicial
custody in execution of a non-bailable warrant in Crime No. 110 of 2007 of
Chinthakommadinne Police Station, and the grounds of detention were served on
him, while he was lodged in Central Prison, Kadapa. The order of detention was
questioned by the detenu before this Court by filing writ petition. This Court
following the judgment of the two-Judge Bench of the Apex Court in Reddeiah v.
Government of A.P., upheld the order of detention, but in appeal, the Apex Court
held that when the decision of a three-Judge Bench of the Apex Court in Rekha v.
State of Tamil Nadu, was available on the same issue, judicial discipline
demands that Division Bench should follow the same, and observing so, the Apex
Court held that judicial discipline is one of the fundamental pillars on which
the judicial edifice rests, and if such discipline is eroded, the entire edifice
will be affected. Accordingly, following the three-Judge Bench judgments Rekha
v. State of Tamil Nadu and Yumman Ongbi Lembi v. State of Manipur, the Apex
Court upheld the contentions advanced on behalf of the detenu, set aside the
order of the High Court and consequently quashed the order of detention.
It is the contention of the learned Assistant Government Pleader that since the
law laid down by the Constitution Bench of the Apex Court in Haradhan Saha v.
State of West Bengal, was not
considered in proper perspective by the three-Judge Bench in Rekha v. State of
Tamil Nadu, the same cannot be relied upon. This contention cannot be accepted
because in Rekha v. State of Tamil Nadu, the three-Judge Bench of the Apex
Court, took note of the observations made by the Constitution Bench in Haradhan
Saha v. State of West Bengal, to the effect "the essential concept of preventive
detention is that the detention of a person is not to punish him for something
he has done but to prevent him from doing it". Be that as it may, whether the
Apex Court in Rekha v. State of Tamil Nadu, had considered the effect of the
Constitution Bench judgment in Haradha Saha v. State of West Bengal in proper
perspective or not, is a matter which this Court cannot go into.
Since the order of detention was passed by respondent No.1-Detaining Authority,
as confirmed by respondent No.2-Government, while the detenu was in judicial
custody and that too when he did not make any application for his release on
bail, and in such a situation, the possibility of his being released on bail,
does not arise. And considering the fact that the validity of order of
detention, passed while the detenu was in judicial custody and when no
application for his release on bail was pending, was already considered by a
three-Judge Bench of the Apex Court in Rekha v. State of Tamil Nadu, wherein it
was held that "if no bail application is pending, there is no likelihood of the
person in custody being released on bail, and therefore, the order of detention
would be illegal", and the law laid down therein, having been consistently
followed by the Apex Court in its subsequent judgments in Yumman Ongbi Lembi v.
State of Manipur and Munagala Yadamma v. State of A.P., and in a very recent
judgment in K. Nageswara Naidu v. Collector & District Magistrate, Y.S.R. Kadapa
District, we are of the considered opinion that the order of detention passed by
respondent No.1-Detaining Authority, as confirmed by respondent No.2-Government,
suffers from his lack of subjective satisfaction, and as such, is liable to be
set aside. Accordingly, we answer issue No.1 in favour of the petitioner and
against the respondents.
In re issue No.2:
It is contended by the petitioner that since the ordinary laws, namely the A.P.
Forest Act and the Rules made thereunder and the provisions of the Indian Penal
Code, under which the detenu is charged and is being prosecuted, are sufficient
to deal with the situation, there was no necessity for respondent No.1-Detaining
Authority, to pass an order of detention against the detenu.
The law is well settled that if any one of the grounds of detention, which
formed the basis for the Detaining Authority to pass the order of detention is
found to be irrelevant, then the whole of the order of detention is liable to be
set aside. Since on issue No.1 we have held that the order of detention passed
by respondent No.1-Detaining Authority, as confirmed by respondent No.2-
Government, is vitiated due to his lack of subjective satisfaction, and is
liable to be set aside, we are not inclined to answer issue No.2.
Accordingly, the writ petition is allowed. Consequently, the order of detention
dated 11.01.2012, passed by respondent No.1-Detaining Authority, as confirmed by
respondent No.2-Government by order dated 24.02.2012, is set aside. The detenu
shall be released forthwith if he is not required in any other case. No costs.
________________
N.V. RAMANA, J.
____________________
P. DURGA PRASAD, J.
28-09-2012
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