2014 (5) TMI 1227 - SC - Indian Laws

Jurisdiction of State Government to pass detention order - 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? - section 3 of Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986. HELD THAT - A reading of the 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 clear. Section 13 of the Act mandates that the maximum period of detention under the Act is 12 months. 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 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. 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. The detention order passed by the Government of Andhra Pradesh in this case is in contravention to the provisions of law - Appeal allowed.

Summary

Issues:
1. Challenge to the detention order under Article 226 of the Constitution.
2. Validity of detention order under the Andhra Pradesh Prevention of Dangerous Activities Act, 1986.
3. Interpretation of Section 3 of the Act regarding the duration of detention.
4. Compliance with constitutional provisions on preventive detention.
5. Review of detention orders by the Advisory Board.
6. Judicial review of detention orders.

Analysis:
1. The appellant, wife of the detenu, challenged the detention order under Article 226, alleging unauthorized detention. The High Court dismissed the writ petition, stating that the detention could not be deemed unauthorized until declared so by a competent court. The appeal was filed against this decision.

2. The detention order was issued under the Andhra Pradesh Prevention of Dangerous Activities Act, 1986, citing the detenu's activities as harmful to public order. The order allowed for representation to the government and review by the Advisory Board. The detenu was detained from 5th October, 2013, and the government later extended the detention for 12 months.

3. The key issue was whether the State Government could detain a person for 12 months under the Act. Section 3 of the Act limited the initial detention to three months, extendable by the government in subsequent three-month intervals. The Act mandated review by the Advisory Board and set a maximum detention period of 12 months.

4. The Court emphasized compliance with constitutional provisions on preventive detention, particularly Article 22(4)(a), which limits detention to three months unless an Advisory Board recommends further detention. The government's order for 12 months' detention without periodic review was deemed unlawful.

5. The significance of the Advisory Board's role in reviewing detentions was highlighted to safeguard individual liberties. The Court noted that continuous detention without proper review violates the detenu's rights and undermines the legislative intent behind the Act.

6. The Court allowed the appeal, quashing the detention order and setting aside the High Court's judgment. The detenu was ordered to be released immediately, as the government's action was found to contravene the law by exceeding the permissible duration of detention without proper review.