Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL   NO. 885 OF 2017  

SAMA ARUNA ....APPELLANT(S)  

VERSUS

STATE OF TELANGANA AND ANR ...RESPONDENT(S)

J U D G M E N T

S.A.BOBDE, J.

The appellant - the wife of the detenu, has preferred this

appeal against the impugned judgment and order dated 22.03.2017

passed by the High Court of Hyderabad in Writ Petition No.43671 of

2016,  whereby  the  High  Court  dismissed  the  writ  petition

challenging the order of detention dated 23.11.2016, issued against

the  detenu  by  Respondent  No.2–Commissioner  of  Police,

Rachakonda Commissionerate, Rangareddy District, Telangana.  

2. The detenu has been charged for various offences which

he had allegedly committed during the years 2002-2007.  Four FIR’s

were registered for the said offences.  He was admitted to bail in

three  FIR’s.  In  the  fourth  FIR  Crime  No.  221  of  2016,  he  was

arrested on 05.09.2016. To prevent him from seeking bail, while in

Page 2

judicial custody he was detained under the Telangana Prevention of

Dangerous  Activities  of  Bootleggers,  Dacoits,  Drug  Offenders,

Goondas, Immoral Traffic  Offenders and Land Grabbers Act,  1986

(for short, the 'Act of 1986').

3. The  Respondent  No.2  -  Commissioner  of  Police,

Rachakonda  Commissionerate,  Rangareddy  District,  Telangana,

passed  an  order  of  detention  against  the  detenu  on  23.11.2016

under section 3(2) of the Act of 1986, for a unspecified period, from

the date of service of the order on the detenu, and further directed

that  the  detenu  be  lodged  in  Central  Prison,  Chenchalguda,

Hyderabad.   

4. The  aforesaid  detention  order  was  accompanied  by

grounds  for  detention  of  the  same  date.  The  grounds  in  the

detention order carried a statement informing the detenu of his right

to  represent  against  the  order  of  detention  to  (i)  the  detaining

authority  i.e.  Commissioner  of  Police,  Rachakonda,  (ii)  the  Chief

Secretary to Government of Telangana State, Hyderabad, (iii)  the

Advisory Board.

5. The  Respondent  No.1  –  State  approved  the  aforesaid

detention  order  on  01.12.2016  under  section  3(3)  of  the  Act  of

1986.  The Advisory Board reviewed the case on 02.01.2017 and

opined  that  “there  is  sufficient  cause  for  the  detention  of  Sama

Sanjeeva  Reddy”.  After  the  report  of  the  Advisory  Board,  the

respondent-State  confirmed  the  detention  order  on  15.02.2017.

Being aggrieved, the appellant- the wife approached the High Court

Page 3

by filing a writ petition which was dismissed. Hence, this appeal.  

6. The main contention of Mr. Vikas Singh, learned Senior

Counsel appearing for the appellant, is that the grounds of detention

are stale. They are based on the incidents which are said to have

occurred between the period from 2002 to 2007 and are relied on by

the detaining authority while forming its opinion and recording its

satisfaction that the detenu needs to be detained on 23.11.2016.  

7. The  aforesaid  contention  of  Mr. Singh,  learned  Senior

Counsel for the appellant, may be examined with reference to the

detention order. The detention order mentions six cases as follows:  

Sl. No.

Case No. Date  of Incident

Date  of Reporting  the incident

Offences under IPC

1. Crime No.554/2013 26.9.2013 21.11.2013 447, 427, 506

2. Crime No.8/2014 21.11.2014 23.11.2015 447, 427

3. Crime No.361/2016 2007 13.08.2016 363,  384,  420,120B, Section  4  of  AP  LG Act  and  25  1(B)  of the Arms Act.

4. Crime No.362/2016 2007 13.08.2016 363,  384,  420,120B, Section  4  of  AP  LG Act  and  25  1(B)  of the Arms Act.

5. Crime No.367/2016 2005 17.08.2016 363,  384,  420,120B, Section  4  of  AP  LG Act  and  25  1(B)  of the Arms Act.

6. Crime No.221/2016 2002-03 05.09.2016 419,  420,  468,  363, 452,  323,  342,  386, 505  r/w  120B, Section  4  of  AP  LG Act  and  25  1(B)  of the Arms Act.

8. The  first  two  incidents  are  about  three  to  two  years

before the detention order dated 23.11.2016. The other incidents

Page 4

are  about  9  to  14  years  before  the  detention  order.  Peculiarly,

though the first two incidents are mentioned, the detaining authority

has  not  relied  on  them  as  grounds  of  detention.  The  detaining

authority has relied on the four other cases which are item nos.3 to

6 as grounds of detention. The report in these cases was apparently

lodged in the year 2016 for some reason best known to the police.

However, that is not of much consequence since the FIR is in respect

of incidents which are old, 9 to 14 years old. It is their relevance to

a grossly belated order of detention which we have to consider.  

9. The  detaining  authority  has  pointedly  referred  to  only

four  offences  of  criminal  conspiracy,  cheating,  kidnapping  and

extortion, in the limits of Pahadishareef Police Station and Adibatla

Police Station of Rachakonda Commissionerate. In three out of these

four  cases  he has  been granted  bail.   The State  accepted  these

orders.

10. Each of them are beyond 9 years, up to 14 years, before

the  detention  orders.  They  have  been  considered  under  a

sub-heading which is as follows:  

“THE  FOLLOWING  FACTS  OF  THE  (4)  CASES CONSIDERED  AS  GROUNDS  FOR  DETENTION WHICH WERE COMMITTED BY YOU IN THE RECENT PAST, WOULD PROVE YOUR ACTIVITY PREJUDICIAL TO THE MAINTENANCE OF PUBLIC ORDER.”    

11. The detaining authority has then gone to consider those

grounds, to arrive at the satisfaction that the detenu needs to be

detained in 2016. These grounds are so stale and mildewed that the

Page 5

exercise of the power of detention based on them appears mala fide

in law.  

12. The four cases which are old and therefore, stale, pertain

to the period from 2002 to 2007. They pertain to land grabbing and

hence, we are not inclined to consider the impact of those cases on

public  order etc.   We are satisfied that they ought to have been

excluded from consideration on the ground that they are stale and

could not have been used to detain the detenu in the year 2016

under the Act of 1986 which empowers the detaining authority to do

so  with  a  view  to  prevent  a  person  from acting  in  any  manner

prejudicial to the maintenance of public order.

13. We are not inclined to accept the justification offered by

Mr. Harin P. Raval, learned Senior Counsel appearing on behalf of the

respondents, that the mere reference to two other cases which are

2-3  years  old  should  be  considered  as  relevant  and  proximate

grounds of detention, though the detaining authority itself has not

done so. Every statement in the detention order must be taken to

have  been  made  responsibly.  Where  the  detaining  authority  has

detailed 4 cases and stated that these have been considered as the

grounds  of  detention  it  must  be  considered  as  true-speaking.

Moreover, those incidents appeared to be cases of ordinary criminal

trespass which would not, in any way, be of much significance since

they do not deal with the disruption of any public order which is

relevant under the law dealing with preventive detention.

Page 6

14. Section  3(1)  confers  the  power  of  detention  in  the

following terms:-

“3(1).  The  Government  may,  if  satisfied  with respect  to  any boot-legger,  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.”

The purpose for which a detention order may be passed is confined

to  ‘preventing  him from acting  in  any  manner  prejudicial  to  the

maintenance of public order’.

The term “acting in any manner prejudicial to the maintenance of

public order” is further defined as follows:-  

“2.  In  this  Act,  unless  the  context  otherwise requires,-

(a)  “acting  in  any  manner  prejudicial  to  the maintenance  of  public  order”  means  when  a bootlegger, a dacoit, a drug-offender, a goonda, an immoral  traffic  offender  or  a  land-grabber  is engaged or is making preparations for engaging, in any of his activities as such, which affect adversely, or are likely to affect adversely, the maintenance of public order:  

Explanation:- For the purpose of this clause public order  shall  be  deemed  to  have  been   affected adversely, or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the  persons  referred  to  in  this  clause directly,  or indirectly,  is  causing  or  calculated  to  cause  any harm,  danger  or  alarm or  a  feeling  of  insecurity among the general public or any section thereof or a grave wide spread danger to life or public health:”

A person may be detained under the Act of 1986 with a view to

prevent him from engaging in, or making preparations for engaging,

in any such activities.  

Page 7

15. Obviously, therefore, the power to detain, under the Act

of  1986  can  be  exercised  only  for  preventing  a  person  from

engaging  in,  or  pursuing  or  taking  some  action  which  adversely

affects  or  is  likely  to  affect  adversely  the  maintenance  of  public

order; or for preventing him from making preparations for engaging

in  such activities. There is little doubt that the conduct or activities

of the detenu in the past must be taken into account for coming to

the conclusion that he is going to engage in or make preparations

for  engaging  in  such  activities,  for  many  such  persons  follow  a

pattern of  criminal  activities.   But  the question is  how far  back?

There is no doubt that only activities so far back can be considered

as furnish a cause for preventive detention in the present.  That is,

only  those  activities  so  far  back  in  the  past  which  lead  to  the

conclusion that he is likely to engage in or prepare to engage in such

activities  in the immediate future can be taken into account.   In

Golam Hussain alias Gama v. Commissioner of Police, Calcutta and

Ors.1, this Court observed as follows:-

“No authority, acting rationally, can be satisfied, subjectively  or  otherwise,  of  future  mischief  merely because long ago the detenu had done something evil. To  rule  otherwise  is  to  sanction  a  simulacrum  of  a statutory  requirement.   But  no  mechanical  test  by counting  the  months  of  the  interval  is  sound.   It  all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the causal  connection has been broken in the circumstances of each case.”

Page 8

Suffice it to say that in any case, incidents which are said to have

taken place nine to fourteen years earlier, cannot form the basis for

being satisfied in the present that the detenu is going to engage in,

or make preparation for engaging in such activities.  

16. We are, therefore, satisfied that the aforesaid detention

order was passed on grounds which are stale and which could not

have  been  considered  as  relevant  for  arriving  at  the  subjective

satisfaction that the detenu must be detained. The detention order

must be based on a reasonable prognosis of the future behavior of a

person  based  on  his  past  conduct  in  light  of  the  surrounding

circumstances.  The live and proximate link that must exist between

the past conduct of a person and the imperative need to detain him

must be taken to have been snapped in this case.  A detention order

which is founded on stale incidents, must be regarded as an order of

punishment for a crime, passed without a trial, though purporting to

be  an  order  of  preventive  detention.  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.  See G. Reddeiah v. Government of Andhra Pradesh and

Anr.2, and P.U. Iqbal v. Union of India and Ors.3

THE SCOPE OF JUDICIAL REVIEW

Page 9

17. While  reviewing  a  detention  order,  a  court  does  not

substitute  its  judgment  for  the  decision  of  the  executive.

Nonetheless, the Court has a duty to enquire that the decision of the

executive is made upon matters laid down by the statute as relevant

for reaching such a decision.  For what is at stake, is the personal

liberty of  a citizen guaranteed to him by the Constitution and of

which he cannot be deprived, except for reasons laid down by the

law and for a purpose sanctioned by law.  As early as in Machinder

Shivaji v. The King4, this Court observed:-

“…… and it would be a serious derogation from that responsibility if the Court were to substitute its judgment  for  the  satisfaction  of  the  executive authority  and,  to  that  end,  undertake  an investigation of the sufficiency of the materials on which such satisfaction was grounded.

The Court can, however, examine the grounds disclosed  by  the  Government  to  see  if  they  are relevant to the object which the legislation has in view, namely, the prevention of acts prejudicial to public  safety  and  tranquility,  for  “satisfaction”  in this  connection  must  be  grounded  on  material which is of rationally probative value.”  

Later, in  the  case  of  Khudiram  Das  vs.  The  State  of  West

Bengal and Others5,  while considering the judicial  reviewability of

the  subjective  satisfaction  of  the  detaining  authority,  the  Court

surveyed  the  area  within  which  the  validity  of  the  subjective

satisfaction  can  be  subjected  to  judicial  scrutiny  in  the  following

paragraphs:-   

“9. ……  There  are  several  grounds  evolved  by

Page 10

judicial  decisions  for  saying  that  no  subjective satisfaction is arrived at by the authority as required under  the statute.  The simplest  case is  whether  the authority has not applied its mind at all; in such a case the authority could not possibly be satisfied as regards the  fact  in  respect  of  which  it  is  required  to  be satisfied.  Emperor  v.  Shibnath  Banerji  is  a  case  in point. Then there may be a case where the power is exercised dishonestly or for an improper purpose: such a case would also negative the existence of satisfaction on  the  part  of  the  authority.  The  existence  of 'Improper  purpose',  that  is,  a  purpose  not contemplated by the statute, has been recognised as an independent  ground of  control  in  several  decided cases.  The  satisfaction,  moreover,  must  be  a satisfaction of the authority itself, and therefore, if in exercising the  power,  the  authority  has  acted under the dictation of another body as the Commissioner of Police  did  in  Commissioner  of  Police  v.  Gordhandas Bhanji  and the officer  of  the Ministry of  Labour and National  Service  did  in  Simms  Motor  Units  Ltd.  v. Minister of Labour and National Service, the exercise of the power would be bad and so also would the exercise of  the  power  be  vitiated  where  the  authority  has disabled itself  from applying its mind to the facts of each individual case by self-created rules of policy or in any other manner. The satisfaction said to have been arrived at by the authority would also be bad where it is  based  on  the  application  of  a  wrong  test  or  the misconstruction of a statute. Where this happens, the satisfaction of the authority would not be in respect of the  thing  in  regard  to  which  it  is  required  to  be satisfied. Then again the satisfaction must be grounded 'on materials which are of rationally probative value'. Machinder  v.  King.  The  grounds  on  which  the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account  in  deciding  whether  or  not  to  exercise  the power or the manner or extent to which it should be exercised, the exercise of the power would be bad.”  

18. This Court then dealt  with the review of administrative

Page 11

findings which are not supported with substantial  evidence in the

following paragraphs of Khudiram Das (supra):-

“10.  …… But in England and in India, the courts stop-short at merely inquiring whether the grounds on which the authority has reached its  subjective satisfaction  are  such  that  any  reasonable  person could  possibly  arrive  at  such  satisfaction.  "If",  to use the words of Lord Greene, M. R., in Associated Provincial  Picture  Houses  Ltd.  v.  Wednesbury Corporation words which have found approval of the House of Lords in Smith v. Rest Eller Rural District Council and Fawcett Properties Ltd. v. Buckingham County  Council  –  ‘the  authority  has  come  to  a conclusion  so  unreasonable  that  no  reasonable authority  could  ever  have  come  to  it,  then  the courts can interfere". In such a case, a legitimate inference  may  fairly  be  drawn  either  that  the authority "did not honestly form that view or that in forming it,  he could not have applied his mind to the relevant facts’…….  

11. This discussion is sufficient to show that there is  nothing like unfettered discretion immune from judicial  reviewability.  The  truth  is  that  in  a Government under law, there can be no such thing as  unreviewable  discretion.  "Law  has  reached  its finest moments", said Justice Douglas, "when it has freed  man from the  unlimited  discretion  of  some ruler,  some...official,  some bureaucrat....  Absolute discretion  is  a  ruthless  master.  It  is  more destructive  of  freedom  then  any  of  man's  other inventions". United States v. Wunderlich and this is much more so in a case where personal liberty is involved.  That  is  why  the  courts  have  devised various methods of judicial control so that power in the hands of an individual officer or authority is not misused  or  abused  or  exercised  arbitrarily  or without any justifiable grounds.”

19. Incidents which are old and stale and in which the detenu

has been granted bail,  cannot be said to have any relevance for

detaining a citizen and depriving him of his liberty without a trial.

This  Court  observed  the  following  in  the  case  of  Khudiram  Das

Page 12

(Supra):  

“The grounds on which the satisfaction is based must  be  such  as  a  rational  human  being  can consider connected with the fact in respect of which the  satisfaction  is  to  be  reached.  They  must  be relevant  to  the  subject-matter  of  the  inquiry  and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it  may  even  be  with  the  best  of  intention,  as  a relevant factor something which it could not properly take  into  account  in  deciding  whether  or  not  to exercise the power or the manner or extent to which it  should  be  exercised,  the  exercise  of  the  power would be bad. Partap Singh v. State of Punjab. If there are to be found in the statute expressly or by implication  matters  which  the  authority  ought  to have regard to them, in exercising the power, the authority  must  have regard to those matters.  The authority must call its attention to the matters which it is bound to consider.”

20. We are of the view, that the detention order in this case

is vitiated by taking into account incidents so far back in the past as

would have no bearing on the immediate need to detain him without

a trial.  The satisfaction of the authority is not in respect of the thing

in regard to which it is required to be satisfied.  Incidents which are

stale, cease to have relevance to the subject matter of the enquiry

and must be treated as extraneous to the scope and purpose of the

statute.

21. In  this  case,  we  find  the  authority  has  come  to  a

conclusion so unreasonable that no reasonable authority could ever

reach.  A  detaining  authority  must  be  taken  to  know  both,  the

purpose and the procedure of law.  It is no answer to say that the

authority was satisfied.  In  T.A. Abdul Rahman v. State of Kerela

Page 13

and  Ors.6,  this  Court  observed,  where  the  authority  takes  into

account stale incidents which have gone by to seed it would be safe

to infer that the satisfaction of the authority is not a genuine one.   

The extent of staleness of grounds in this case compel us to

examine the aspect of malice in law.  It is not necessary to say that

there was an actual malicious intent in making a wrong detention

order. In Smt. S.R. Venkataraman v. Union of India and Anr.7,  this

Court cited Shearer v. Shields8, where Viscount Haldane observed as

follows:-

“A person  who inflicts  an  injury  upon another person in contravention of law is not allowed to say that he did so with an innocent mind; he is taken to know the  law,  and  he  must  act  within  the  law.   He  may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly and in that sense innocently.”

22. This  Court  then  went  on  to  observe  in  Smt.  S.R.

Venkataraman (supra) as follows:-

“6.  It  is  however  not  necessary  to  examine  the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised  purpose,  it  is  generally  immaterial whether its repository was acting in good faith or in bad  faith.  As  was  stated  by  Lord  Goddard.  C.J.  in Pilling v. Abergele Urban District Council where a duty to determine a question is conferred on an authority which state their reasons for the decision,  

and the reasons which they state show that they have  taken  into  account  matters  which  they ought  not  to  have taken into  account,  or  that they  have  failed  to  take  matters  into  account which they ought to have taken into account, the

Page 14

court to which an appeal lies can and ought to adjudicate on the matter.

7. The principle which is applicable in such cases has thus been stated by Lord Esher, M.R. in The Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras: “If people who have to exercise a public duty by exer- cising their discretion take into account matters which the Courts consider not to be proper for the guidance of their  discretion,  then in the eye of  the law they have not exercised their discretion.” This view has been followed in Sadler v. Sheffield Cor- poration.”

23. The influence of the stale incidents in the detention order

is too pernicious to be ignored, and the order must therefore go;

both on account of being vitiated due to malice in law and for taking

into  account  matters  which  ought  not  to  have  been  taken  into

account.

24. There  is  another  reason  why  the  detention  order  is

unjustified.  It was passed when the accused was in jail in Crime No.

221 of 2016.  His custody in jail for the said offence was converted

into  custody  under  the  impugned  detention  order.  The  incident

involved in this offence is sometime in the year 2002-2003.  The

detenu could  not  have been detained preventively  by taking this

stale incident into account, more so when he was in jail. In Ramesh

Yadav v. District Magistrate, Etah and Ors.9, this Court observed as

follows:-

“6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the de- taining authority was apprehensive that in case the

Page 15

detenu was released on bail he would again carry on his criminal activities in the area. If the apprehen- sion of the detaining authority was true, the bail ap- plication  had  to  be  opposed  and in  case  bail  was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial  prisoner was likely to get bail an order of detention under the National  Security  Act  should  not  ordinarily  be passed.”

25.  Therefore, in the facts and circumstances of this case,

we allow this appeal, and set aside the aforesaid detention order

dated 23.11.2016 passed by the  Respondent No.2 – Commissioner

of  Police,  Rachakonda  Commissionerate,  Rangareddy  District,

Telangana,  as  also  the  impugned  judgment  and  order  dated

22.03.2017 passed by the High Court of Judicature at Hyderabad in

Writ Petition No.43671 of 2016.

....................J [S. A. BOBDE]

....................J [L. NAGESWARA RAO]

NEW DELHI  MAY 03, 2017