S.M.D. KIRAN PASHA versus GOVERNMENT OF ANDHRA PRADESH AND ORS.

Citation: [1989] SUPP. 2 S.C.R. 105 · Decided: 09-11-1989 · Supreme Court of India · Bench: K.N. SAIKIA · Disposal: Appeal(s) allowed

cites 1 · see the full citation network in Lexace

Judgment (excerpt)

S.M.D. KIRAN PASHA 
v. 
GOVERNMENT OF ANDHF.A PRADESH AND ORS. 
NOVEMBER 9, 1989 
[K.N. SAIKIA AND M. FATHIMA BEEVI, JJ.] 
Constitution of India, 1950: Articles 32 & 226-Life and personal 
liberty-Right to--'Enforcement' of right in Court-Whether Court can 
insist that person surrenders and then files habeas corpus petition-Post 
violation resort and pre violation of protection-Distinction between. 
A 
B 
The appellant is a Municipal Councillor of the Cuddapah Munici-
C 
pal Council. He was elected to the Council as an independent candidate. 
According to him, he enjoys popularity in his area and had previously 
held important positions in the District. He states that the local leader-
ship of the ruling Telugu Desam Party having failed to woo him into 
their fold, he was pressurised through the Excise and Police authorities D 
foisting false cases upon him. Scenting a move to detain him under the 
provisions of the Andhra Pradesh Prevention of Dangerous Activities of 
Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic 
Offenders and Land Grabbers Act, 1986, the appellant filed a writ 
petition on 6.6.1988 in the High Court, averring in.ter alia that the 
successive actions initiated against him were a part of political vendetta. 
E 
A learned Single Judge on 8.8.1988 was pleased to direct interim the 
respondents not to take the appellant into preventive custody for a 
period of 15 days on the basis of the cases already registered. However, 
on 10.6.1988 the appellant was served the detention order dated 
3.6.1988 as well as the grounds of detention, and he was taken into 
custod~, but was released after four days. 
F 
The appellant filed on 25.6.1988 in his pending writ petition a 
miscellaneous petition, as an additional affidavit. He assailed therein 
the order of detention on various grounds. A Division Bench of the High 
Court, on reference by the learned Single Judge, held that the prayer in 
the writ petition had become infructuous, and that there were no extra-
G 
ordinary or special reasons to depart from the normal rule, namely, 
that in such a case the appellant should first surrender and move for a 
writ of habeas corpus. The Division Bench accordingly, dismissed the 
writ petition. 
B.Core this Court it was inter alia contended on behalf of the 
H 
105 
106 
SUPREME COURT REPORTS 
[ 1989] Supp. 2 S.C.R. 
appellant that the High Court erred in holding that there were no 
extraordinary circumstances or special reasons to depart from the 
normal role, thereby refusing to grant relief to the appellant against 
infringement of his fundamental right to liberty; that the detention 
order having not been approved by the State Government as required 
nuder Section 3(3) of the Prevention of Dangerous Activities Act and the 
appellant's case having not been placed before the Advisory Board as 
required under section IO thereof, the detention order ceased to be in 
force and hence was liable to be quashed. 
On behalf of the respondent, it was contended that the detention 
order having been passed before the writ petition was filed, the High 
Court was right in dismissing the writ petition following the court's 
practice and procedure, and that there were no extraordinary or special 
reasons to depart from the normal role inasmuch as granting relief at 
such a stage would defeat the very purpose of the Act. Counsel, how-
ever, could not deny that the detention order was not approved by the 
State Government and that the appellant's case was not placed before 
the Advisory Board. 
Allowing the appeal and quashing the order of detention, this 
Court, 
HELD: (1) The position of a person who is actually under illegal 
detention and of a person who is in imminent jeopardy of illegal deten-
tion are not far dissimilar. Refusal to interfere in such a case may 
amount to denial of the fundamental righ itself. I 114A] 
Jayantital Bhagwandas Shah v. The State of Maharashtra, [1981] 
I Cr. L.J. 767, referred to. 
(2) There could be no reason why in an exceptional and rare case, 
detention order already made, and either served or yet to be served, 
and the person is still free, could not be legally brought under 
challenge. [114F] 
Vedprakash Devkinandan Chiripal v. State of Gujarat, AIR 1987 
Gujarat 253. 
A.K. Gopalan v. State of Madras, AIR 1950 SC 27; Addi. District 
Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, referred 
to. 
A 
B 
c 
D 
E 
F 
G 
H 
S.M.D. KIRAN PASHA v. GOVT. OF. A.P. 
107 
(3) F

Excerpt shown. Read the full judgment & AI analysis in Lexace.