Red Sanders smugglers rightly detained

In a judgement delivered in the case of red sanders smugglers, Justice Nooty Ram Mohan Rao of the High Court reasoned that a study of the dynamics of the State’s power to preventively detain any person without being subjected to ordinary course of law would be necessary to notice the principles set at rest firmly by the Supreme Court on the subject. In what could well be of great assistance to a research scholar on the subject, the judge goes back to critical observations of the Apex Court in cases dating back to the 1960s.

He was dealing with three writ petitions questioning orders of detention of people allegedly involved in a crime or the other relating to illicit felling of red sanders trees in various pockets of reserve forest of Seshachalam forest range. Seshachalam Forest Range is the naturally suited area for growth of red sanders trees.

Justice Nooty Ram Mohan Rao dealt with the provisions of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, for preventing the offenders’ dangerous activities prejudicial to the maintenance of public order.

Dealing with the power to delegate the power observed the legislature has intended to check the authority of delegation which the State Government is likely to resort to by conferring powers of preventive detention upon the district magistrate or Commissioner of Police as the case be. This check would ensure that the State government may not resort to a blanket delegation of power in favour of a District Magistrate or the Commissioner of Police for an indefinite period and on each occasion such delegation is resorted to, the State is required to have regard to the prevailing circumstances or those likely to prevail, which alone can justify any such delegation. This check on delegation reflects the clear anxiety and intention of the legislature that an order of preventive should be normally passed by the State government and in certain circumstances such powers can also be exercised by the other officers of the State named therein. In the said context the judge made clear that the limitation is only regards to exercise of power and not the period for which the person can be confined to preventive detention.

Reading the various provisions of the Act he pointed out that the period mentioned in the order of detention is not relevant beyond a point as it would require the approval of the State government on communication within twelve days. The judge also pointed out that the tiered mechanism of the detaining Authority, the State government and the advisory board, are sufficient safeguards.

Dealing with the writ, the Justice pointed out, “If the board is of the opinion that there is no sufficient cause for detention of a person concerned beyond a particular period, such opinion of the board also binds the State government. I am, therefore, of the opinion that Sub-Section (2) of Section 12 leaves appropriate scope to the advisory board to apply its mind even with regard to the reasonability of the period of detention.

Apart from dealing with the language in the Act and the manner in which the power is exercised, the judge also dealt at length with issues relating to environment and the safeguarding of forests. He rejected the plea that it was not required to press into service the extraordinary law of preventive detention and the ordinary law of the land could well be pressed into service. I would sign off however with a lurking doubt in my mind.

The judge was dealing with a writ of supervision over the orders passed. Would the approach have been different if he was dealing with a habeas corpus? If the answer is yes then is the freedom of an individual dependent on the manner of the reliefs he seeks or worse by the rules which determine them, in house? More for another day.