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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1133  OF 2014 ARISING OUT OF

SPECIAL LEAVE PETITION (CRL) NO. 2531 OF 2014

CHERUKURI MANI             … APPELLANT W/O NARENDRA CHOWDARI

VERSUS

THE CHIEF SECRETARY, GOVERNMENT OF  … RESPONDENTS ANDHRA PRADESH & ORS.

JUDGMENT

N.V. RAMANA, J.

Leave granted.

2. The  appellant,  who  is  the  wife  of  one  Cherukuri  Narendra  

Chowdari—detenu,  filed  a  writ   petition  under  Article  226  of  the  

Constitution before the High Court of Andhra Pradesh alleging that  

her  husband  has  been  unauthorisedly  detained  and the  detention  

order passed was illegal and sought his release. The writ petition was  

dismissed  by  the  High  Court  by  the  impugned  order  dated  28 th  

October, 2013 stating that until and unless the competent Court of  

law decides the order of detention as illegal and invalid, it cannot be  

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said that it is unauthorized detention. Aggrieved by the said order, the  

appellant has filed this appeal by special leave.

3. The facts which are necessary for the disposal of this appeal  

are that  the Collector  & District  Magistrate,  East  Godavari  District,  

Andhra Pradesh (Respondent No. 2) issued a preventive detention  

order  on  30th September,  2013,  under  the  Andhra  Pradesh  

Prevention  of  Dangerous  Activities  of  Bootleggers,  Dacoits,  Drug  

Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers  

Act,  1986  (for  short  “the  Act”)  stating  that  the  husband  of  the  

appellant (detenu)  has got all the attributes to be called as a ‘goonda’  

as envisaged under Section 2(g)  of the Act.  It is also mentioned that  

he was involved in several cases of theft of Government and private  

properties as well as cases of destruction of public properties and his  

antisocial activities are harmful to the society and general public and  

referred 11 cases registered against him.

4. It is significant to note that while passing the detention order,  

the Collector  made it  clear that  the detenu has a right  to make a  

representation to the Government under Section 8(1) of the Act and  

the case will be referred to the Advisory Board for review and opinion  

under Section 10 of the Act and the detenu can be heard personally  

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by  the  Advisory  Board.  The  Collector  also  indicated  that  the  

Government,  on  the  basis  of  opinion  of  the  Advisory  Board,  may  

confirm and continue the detention for  a  period not  exceeding 12  

months from the date of detention.

5. After having served with a copy of the detention order along  

with the grounds of detention, the husband of the appellant was taken  

into custody by Respondent No. 3 and from 5 th October, 2013 he was  

detained in the Central Prison, Rajahmundry till date.

6. It  appears  that  on  the  basis  of  the  recommendation  of  the  

Collector and after obtaining a report from the Advisory Board, the  

Government of Andhra Pradesh issued G.O.Rt. No. 4803, dated 6 th  

November, 2013 and directed detention of the detenu for a period of  

twelve  months  from  the  date  on  which  he  was  detained  i.e.  5 th  

October, 2013.

7. When the appellant  challenged the detention of  her husband  

before  the High  Court  in  a  habeas corpus  Writ  Petition,  the  High  

Court  dismissed the same with  a cryptic  order.  In  our  considered  

view,  when  habeas  corpus  writ  petition  is  filed,  even  though  the  

petitioner  has  not  properly  framed  the  petition  and  not  sought  

appropriate relief, it is expected from the Court to at least go into the  

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issue and decide on merits. Normally, in such matters where liberty of  

a person is at stake, the Courts would take a liberal approach in the  

procedural  aspects. But unfortunately in the instant case, the High  

Court has dismissed the writ petition at the threshold itself.  

8. Before us, learned counsel for the appellant mainly contended  

that as per the provisions of the Act, the period of detention in the first  

instance  shall  not  exceed  more  than  three  months  and  a  person  

cannot be put under detention without facing trial for a long period.  

When  the  husband  of  the  appellant—detenu  is  already  facing  

charges under various provisions of the Indian Penal Code in around  

11  cases,  the  invocation  of  detention  laws  against  him  and  not  

permitting him to face the trial is bad in law and it is also contrary to  

Clause (4)(a) of Article 22 of the Constitution of India.  He further  

contended  that  the  Government  Order  directing  detention  of  the  

detenu for a period of 12 months is contrary to the proviso to sub-

Section (2) of Section 3 of the Act,  and on this ground alone, the  

order of detention is liable to be set aside. To support his arguments,  

he strongly relied on decisions of this Court in  Rekha Vs.  State of  

Tamil Nadu     (2011) 5 SCC 244 and Munagala Yadamma Vs. State  

of Andhra Pradesh & Ors. (2012) 2 SCC 386.

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9. On behalf of the State, Mr. A.T.M. Rangaramanujam, learned  

senior counsel supported the detention order and sought time till after  

summer vacation.

10. Now the issue for consideration before us is whether the State  

Government  has the power  to  pass a  detention order  to  detain  a  

person at a stretch for a period of 12 months under the provisions of  

the Act.

11. To answer  the  above  issue,  it  is  necessary  to  examine  the  

relevant provisions of  the Act.  Section 3 of  the Act  empowers the  

detention of certain category of persons, as defined under the Act.  

Apart from conferring of power, the section regulates the manner of  

passing the orders of detention as well as their duration. It reads thus:

Section 3:  Power  to  make  orders  detaining  certain  persons  : (1)  The  Government  may,  if  satisfied  with  respect to any bootlegger, dacoit, drug-offender, goonda,  immoral traffic offender or land-grabber that with a view to  preventing him from acting in any manner prejudicial to  the maintenance of public order, it is necessary so to do,  make an order directing that such person be detained.

(2)  If,  having regard to  the circumstances prevailing or  likely to prevail in any area within the local limits of the  jurisdiction of a District Magistrate or a Commissioner of  Police, the Government are satisfied that it is necessary  so to do, they may, by order in writing direct that during  such period as may be specified in the order, such District  Magistrate  or  Commissioner  of  Police  may  also,  if  

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satisfied  as  provided  in  Sub-section  (1),  exercise  the  powers conferred by the said sub-section:

Provided that the period specified in the order made by  the Government under this sub-section  shall not in the  first  instance,  exceed  three  months,  but  the  Government may,  if  satisfied as aforesaid that  it  is  necessary so to do, amend such order to extend such  period from time to time by any period not exceeding  three months at any one time.

(3)  When  any  order  is  made  under  the  section  by  an  officer  mentioned  in  Sub-section  (2),  he  shall  forthwith  report  the  fact  to  the  Government  together  with  the  grounds on which the order  has been made and such  other particulars as in his opinion, have a bearing on the  matter, and no such order shall remain in force for more  than twelve days after the making thereof, unless, in the  meantime, it has been approved by the Government.

12. A reading of the above provisions makes it clear that the State  

Government, District Magistrate or Commissioner of Police are the  

authorities,  conferred with the power to pass orders of  detention.  

The only  difference is  that  the order  of  detention passed by the  

Government would remain in force for a period of three months in  

the  first  Instance,  whereas  similar  orders  passed  by  the  District  

Magistrate or the Commissioner of Police shall remain in force for  

an initial period of 12 days. The continuance of detention beyond 12  

days  would  depend  upon  the  approval  to  be  accorded  by  the  

Government in this regard. Sub-section (3) makes this aspect very  

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clear. Section 13 of the Act mandates that the maximum period of  

detention under the Act is 12 months.

13. Proviso  to  Sub-section  (2)  of  Section 3 is  very  clear  in  its  

purport, as to the operation of the order of detention from time to  

time. An order of detention would in the first instance be in force for  

a period of three months. The Government alone is conferred with  

the  power  to  extend  the  period,  beyond  three  months.  Such  

extension,  however,  cannot  be for  a period,  not  exceeding three  

months,  at a time. It  means that,  if  the Government intends to  

detain an individual under the Act for the maximum period of  

12 months,  there  must  be an  initial  order  of  detention  for  a  

period of three months, and at least, three orders of extension  

for a period not exceeding three months each. The expression  

"extend such period from time to time by any period not exceeding   

three months at any one time" assumes significance in this regard.

14. The requirement to pass order of detention from time to time in  

the manner referred to above, has got its own significance. It must  

be remembered that restriction of initial period of detention to three  

months, is nothing but implementation of the mandate contained in  

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Clause (4)(a) of Article  22  of the Constitution of India. It reads as  

under:  

Clause 4 : No law providing for preventive detention shall  authorize the detention of  a person for  a longer period  than three months unless -

(a) an Advisory Board consisting of persons who are or  have been, or are qualified to be appointed as, Judges of  a  High Court  has reported before  the expiration of  the  said  period of  three months that  there is  in  its  opinion  sufficient cause for such detention:

Provided that  nothing in  this  sub-clause shall  authorize  the detention of any person beyond the maximum period  prescribed by any law made by Parliament under Sub- clause (b) of Clause (7); or

(b)  such  person  is  detained  in  accordance  with  the  provisions  of  any  law  made  by  Parliament  under  sub- clauses (a) and (b) of Clause (7).

15. Where the law prescribes a  thing to  be done in a particular  

manner following a particular procedure, it shall be done in the same  

manner  following the provisions of  law,  without  deviating from the  

prescribed procedure. When the provisions of Section 3 of the Act  

clearly mandated the authorities to pass an order of detention at one  

time for a period not exceeding three months only, the Government  

Order in the present case, directing detention of the husband of the  

appellant for a period of twelve months at a stretch is clear violation  

of the prescribed manner and contrary to the provisions of law. The  

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Government cannot direct or extend the period of detention up to the  

maximum  period  of  twelve  months,  in  one  stroke,  ignoring  the  

cautious  legislative  intention  that  even  the  order  of  extension  of  

detention must not exceed three months at any one time. One should  

not ignore the underlying principles while passing orders of detention  

or extending the detention period from time to time.                        16.

Normally, a person who is detained under the provisions of the  

Act is without facing trial which in other words amounts to curtailment  

of  his  liberties  and  denial  of  civil  rights.  In  such  cases,  whether  

continuous detention of  such person is necessary or  not,  is  to  be  

assessed and reviewed from time to time. Taking into consideration  

these  factors,  the  Legislature  has  specifically  provided  the  

mechanism “Advisory  Board”  to  review the detention  of  a  person.  

Passing a detention order for a period of twelve months at a stretch,  

without proper review, is deterrent to the rights of the detenu. Hence,  

the impugned Government Order directing detention for the maximum  

period of  twelve months straightaway cannot  be sustained in  law.  

17. Even though, learned senior  counsel appearing for  the State  

sought for an adjournment beyond summer vacation, we are unable  

to accept his prayer for the simple reason that maximum part of the  

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period of detention of the detenu is going to complete by the end of  

summer  vacation.  Undisputedly,  the  detenu  was  detained  on  5 th  

October,  2013 which means that  he remained under  detention for  

about  seven months at  a  stretch without  any periodical  review as  

envisaged by law. We are, therefore, of the considered opinion that  

the detention order passed by the Government of Andhra Pradesh in  

this case is in contravention to the provisions of law. On this ground  

alone, without going into other issues, we thought this appeal has to  

be  allowed  and  the  order  of  detention  has  to  be  quashed.  

18. We accordingly allow the appeal quashing the detention order  

issued by the Government of Andhra Pradesh and setting aside the  

impugned judgment of  the High Court.  The detenu shall  be set at  

liberty forthwith.

………………………………….J. (RANJANA PRAKASH DESAI)

…………………………………J. (N.V. RAMANA)

NEW DELHI, MAY 08, 2014.

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