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Rage Mounika Vs. the Collector and District Magistrate,ysr - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Judge
AppellantRage Mounika
RespondentThe Collector and District Magistrate,ysr
Excerpt:
the hon'ble sri justice n.v.ramana and hon'ble sri justice p.durga prasad writ petition no.12340 o”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 24.2 (2012) 2 scc 17.3 (2012) 2 scc 38.4 criminal appeal no. 1113 of 2012, dated 26.07.2012 5 (1975) 3 scc 19.6 (1983) 4 scc 30.7 (2012) 2 scc 38.8 air 196.sc 33.9 (2012) 2 scc 38.10. 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.....
Judgment:

THE HON'BLE SRI JUSTICE N.V.RAMANA AND HON'BLE SRI JUSTICE P.DURGA PRASAD WRIT PETITION No.12340 o”

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 24.2 (2012) 2 SCC 17.3 (2012) 2 SCC 38.4 Criminal Appeal No.

1113 of 2012, dated 26.07.2012 5 (1975) 3 SCC 19.6 (1983) 4 SCC 30.7 (2012) 2 SCC 38.8 AIR 196.SC 33.9 (2012) 2 SCC 38.10.

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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