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 King

4

, 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 Others

5

, 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. Shields

8

, 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