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Supreme Court Quashes Detention Order: Petitioner's Argument On Invalid G.o. Succeeds, High Court's Judgment Overturned Due To Failure In Referring Case To The Advisory Bo

Shivani Negi ,
  01 August 2023       Share Bookmark

Court :
Supreme Court Of India
Brief :

Citation :
1989 SCR, Supl. (2) 105 1990 SCC (1) 328

Date of Order:

9/11/1989

Bench:

Saikia, K.N. (J)

Parties:

PETITIONER:

S.M.D. KIRAN PASHA

    Vs.

RESPONDENT:

GOVERNMENT OF ANDHRA PRADESH AND ORS.

SUBJECT

  • The petitioner claims that the G.O. and Notification are invalid because they lack justification for action and are not verbal orders. The petitioner’s attorney claims that the G.O. does not make reference to charges that have been proven, and that the explanation that was deemed inadequate does not comply with Sub-section (2) of Section 60.
  • The appellant filed a petition in the Andhra Pradesh High Court for detention under the 1986 Act. The judge ordered interim respondents not to detain the appellant for 15 days. The Division Bench dismissed the petition, recommending surrender and seeking a writ of habeas corpus.
  • The Supreme Court quashed the High Court’s judgment, stating the detention order expired after 12 days and was invalid due to failure to refer the appellant’s case to an Advisory Board.
  • The High Court’s judgment was set side , and the appeal was allowed.

IMPORTANT PROVISIONS

  • Section 11 of the Act outlines the procedure for the Advisory Board. If the Board finds sufficient cause for detention, the government may confirm the order and continue it for a maximum period. If no cause is found, the government can revoke the order and release the person.
  •  Section 10 requires the government to provide the order's grounds, representation, and officer report within 3 weeks of detention. Even if the detainee is released, their case must still be submitted to the Advisory Board.

OVERVIEW

  • Petitioner seeks quashing G.O. Ms. No. 244 M.A., dated 3-5-1991, removing petitioner from Chairman, Municipal Council, Cuddapah, with immediate effect, under Andhra Pradesh Municipalities Act, 1965. (The act)
  • The appellant, unable to join the ruling Telugu Desam party, was pressurized by Excise and Police authorities. He moved to the Andhra Pradesh High Court, where the court issued directions. Excise authorities registered cases against him, and he was granted bail in 1988.
  • The appellant filed a petition in the Andhra Pradesh High Court, seeking detention under the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders, and Land Grabbers Act, 1986. The judge directed interim respondents not to detain the appellant for 15 days based on existing cases.
  • The appellant was served a detention order in S.No. 7/1988 dated 3.6.1988, stating he was detained to prevent public order violations. The order contained 13 grounds from 23.11.1974 to 7.5.1988. The appellant filed a writ petition on 25.6.1988, seeking a direction to respondents not to detain him under the Act. The order was admitted and an interim direction issued.
  • The Division Bench of the High Court of Andhra Pradesh dismissed a writ petition due to infructuous prayer and no extraordinary reasons to depart from the normal rule. According to them appellant should surrender and move for a writ of habeas corpus.

ISSUE RAISED

  • Whether the High Court was correct in dismissing the writ petition, noting that the High Court’s rule or practise in such a matter was to intervene only when there were unusual or unique circumstances, leaving the appellant to surrender and plead habeas corpus otherwise. 

ARGUMENTS ADVANCED BY THE PETITIONER

  • The appellant’s counsel argues that the High Court dismissed their writ petition, stating there were no extraordinary circumstances or special reasons to detain them. They argue that the grounds of detention were vague, irrelevant, and non-existent, and the detaining authority’s power exercise was mala fide.
  • Counsel argues that the detention order is quashed due to the State Government’s failure to approve it and the appellant’s case not being placed before the Advisory Board, as per Bombay High Court and Gujarat High Court decisions.

ARGUMENTS ADVANCED BY THE RESPONDENT

  • Mr. Ganesh, counsel for respondents, argues that the High Court dismissed the detention order due to its precedent and that there were no special reasons to deviate from normal rule. He argues that granting relief at this stage would undermine the Act’s purpose.

JUDGEMENT ANALYSIS

  • The High Court analyzed the power of the High Court to interfere under Article 226 of the Constitution of India, concluding that it had the power to do so. The Bench deemed it appropriate that the court would not challenge preventive detention unless the person submitted to the order and not encourage those against whom orders were made to avoid the process of law while seeking protection from the court.
  • The Court emphasized that there is no presumption that every detention order is bad. The normal rule is to surrender to the order first and then approach the Court. The Court may depart from this rule in extraordinary cases, where the State is exercising its power for an oblique purpose or ex facie invalid order. The definition of such cases is left to the Court’s sound judgment.
  • The court stated that even in the absence of a particular piece of law regarding the giving of reasons, clear and specific reasons for taking such serious measures as removal must be clearly stated in the order or notice of removal. This is because the order of removal of the chairman or vice-chairman in Sub-section (1) of Section 60 undoubtedly has serious consequences and also affects the image of the person removed, as stated above.
  • The court set aside the High Court’s judgment, stating the detention order expired after 12 days, and the appellant’s case was not referred to the Advisory Board within the prescribed time.
  • The detention order cannot be considered in force after three weeks if it is not complied with. Article 22 of the Constitution of India states that a person cannot be detained beyond three months without referring their case to an Advisory Board. Therefore, it is not necessary to discuss the validity of detention grounds.
  • The Supreme Court quashed the High Court’s Judgment, stating the detention order ceased after 12 days and was invalid due to failure to refer the appellant’s case to the Advisory Board. The appeal was allowed.
     
 
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