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1988 Supreme(AP) 294
Andhra Pradesh High Court
Judges : B.P.JEEVAN REDDY, V.BHASKARA RAO
S.M.KIRAN PASHA - Appellant
Versus
Government Of A.P., REP.BY ITS SECRETARY TO GOVT., GENERAL ADMN.(GENL.A) DEPT , AT HYDERABAD - Respondent
Decided On : 07-04-88
A person against whom an order of preventive detention is made should surrender to the order and then approach the Court by way of habeas corpus. The Court would not entertain a challenge to preventive detention unless the person concerned submits himself to the order.
Headnote:
PREVENTIVE DETENTION - MAINTAINABILITY OF WRIT PETITION - PRACTICE AND PROCEDURE - POWER OF THE COURT - NORMAL RULE - EXTRAORDINARY CASES - RELEVANCE OF GROUNDS OF DETENTION - MALA FIDES - BURDEN OF PROOF - SCOPE OF JUDICIAL REVIEW.
Fact of the Case:
The petitioners, who were detained under the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act 1 of 1986), and the Prevention of Black-Marketing and Supplies of Essential Commodities Act, 1980 (Act 7 of 1980), respectively, filed writ petitions challenging the validity of their detention. The petitioners had not surrendered themselves to the authorities and had not been served with the orders of detention or the grounds of detention.
Finding of the Court:
The Court held that, as a normal rule, a person against whom an order of preventive detention is made should surrender to the order and then approach the Court by way of habeas corpus. The Court would not entertain a challenge to preventive detention unless the person concerned submits himself to the order. This rule is based on the need to balance the individual's right to liberty with the State's interest in maintaining public order and preventing crime. However, the Court may depart from this rule in extraordinary cases, such as where the State is exercising its power under a preventive detention statute for an oblique purpose, or in an outrageous and/or vindictive manner, or where the order of detention is ex facie invalid.
Issues: 1. Whether a writ petition challenging the validity of an order of preventive detention is maintainable when the petitioner has not surrendered to the order and has not been served with the order of detention or the grounds of detention? 2. What are the factors that the Court will consider in determining whether to depart from the normal rule and entertain a challenge to preventive detention before the petitioner has surrendered to the order?
Ratio Decidendi: 1. The Court held that, as a normal rule, a writ petition challenging the validity of an order of preventive detention is not maintainable when the petitioner has not surrendered to the order and has not been served with the order of detention or the grounds of detention. This rule is based on the need to balance the individual's right to liberty with the State's interest in maintaining public order and preventing crime. 2. The Court held that it may depart from the normal rule and entertain a challenge to preventive detention before the petitioner has surrendered to the order in extraordinary cases, such as where the State is exercising its power under a preventive detention statute for an oblique purpose, or in an outrageous and/or vindictive manner, or where the order of detention is ex facie invalid.
Final Decision: The Court dismissed both writ petitions, holding that they were not maintainable since the petitioners had not surrendered to the orders of detention and had not been served with the orders of detention or the grounds of detention. The Court also held that there were no extraordinary circumstances in either case that would warrant a departure from the normal rule.
( 1 ) W. P. No. 8610/1988 was filed by one Sri S. M. Kiran Pasha, Chairman, guddapah Municipal Council, on 6-6-1988 for the issuance of "a writ, order or direction, and more particularly one in the nature of a writ of mandamus directing detention of the petitioner herein under the provisions of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and land grabbers Act, 1986, on the basis of the offences under Crime Nos. 30, If, 32 and 33 of 1987/88. . . . . . ". (It is evident that there is a typographical error in the above prayer. The relief sought for is not to detain the petitioner, but to restrain the respondents from detaining the petitioner under the said act ). In this writ petition he filed WPMP. No. 10680/88 for "an order directing the respondents to refrain from making an order detaining the petitioner under the provisions of the A. P, Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic offenders and Land Grabbers Act, 1986 (Act No 1 of 1986) pending disposal of the abo^e writ petition. . . . . . . . ". The writ-petition was posted before a learned single Judge on 8-6-1988, on which day it was admitted (Rule Nisi issued ). In WPMP. No. 10680/88 the learned Judge passed an ofder, the operative portion of which reads thus: "having carefully considered the facts and circumstances, the respondents are directed not to take the petitioner into preventive custody under the Act 1/86 for a period of fifteen days from today on the basis of the cases already registered, viz. , FIRs. in Crime Nos. 30, 31, 32 and 33/88 of Pendlimari Excise Station. This petition will be posted for further orders on 22-6-1988. Respondents will file counter in the meantime".
( 2 ) AS a matter of fact, an order of detention under Section 3 of Act 1 of 1986 was passed by the District Magistrate (District Collector) on 3-6-88 itself. In pursuance of the said order, the petitioner was taken into custody on 10-6-1988 at Cuddapah. At the time of arrest, the order of detention, as well as the grounds of detention were served upon him. Soon after the arrest the-petitioner s counsel apprised the District Magistratee of the orders of this Court. After obtaining legal advice, the District Magistrate released the petitioner on 13-6-1988, in pursuance of the interim order dated 8-6-1988, aforesaid.
( 3 ) WHEN WPMP No. 10680/88 came up for orders on 22-6-1988,a counter-affidavit was filed en behalf of the District Magistrate bringing the above fact to the notice of the Court and raising a prelimary objection as to the maintainability of the writ petition It was submitted that the petitioner having come to know of the detention order, avoided service thereof and got this writ petition filed without disclosing that an order of detention was already made. In any event, it was submitted that in view of the order of detention made even prior to the filing of the writ-petition, the writ-petition is liable to be dismissed. The learned single Judge, after hearing the parties referred the matrer to a Bench on the question ol maintainability of the wrtt petition, and also because, normally speaking, a writ of habeas corpus is heard by a Bench. Accordingly, the writ petition came up for orders before us on 23-6-1988. On that day, the learned counsel for the petitioner requested for an adjournment to the next day. It came up for orders on 27-6-1988.
( 4 ) W. P. No. 9358/1988 was filed by one Sri T. G. Panduranga Setty on 21-6-1988 for issuance of a "writ, order or direction,more particularly one in the nature of writ of mandamus, or any other writ, order or direction declaring the orders of the first respondent herein, in his proceeding in re. N6. C1. /1449/m/88, dt. 8-6-88 passed under S. (3) (l) (a) read with S. 3 (2), of the Prevention of Black Marketing and Supplies of Essential Commodities act, 1980, directing the writ petition
