C.Vallemma, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 861 AP

    IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI

                                   ****

                 WRIT PETITION No.22583 of 2020


Between:

C. Vallemma W/o. Chinnabba,
Aged 43 years, R/o. Narasimhapuram Village,
Palasamudram Mandal, Chittoor District.
                                                   .. Petitioner
      Versus

The State of Andhra Pradesh,
Represented by its Chief Secretary,
Secretariat Buildings, Amaravathi,
at Velagapudi, Guntur District, and others.

                                                   .. Respondents


                ORDER PRONOUNCED ON 16.02.2021



HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                     &
             HON'BLE MR. JUSTICE C. PRAVEEN KUMAR



   1. Whether Reporters of Local newspapers                    No
      may be allowed to see the Judgment?



   2. Whether the copy of judgment may be marked to           Yes
      Law Reporters/Journals


   3. Whether Their Lordship/Ladyship wish to see the         Yes
      fair copy of the Judgment?




ARUP KUMAR GOSWAMI, CJ                        C. PRAVEEN KUMAR, J
                                      2



    * IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI



HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                     &
             HON'BLE MR. JUSTICE C. PRAVEEN KUMAR

                + WRIT PETITION No.22583 of 2020


% 16.02.2021


# C. Vallemma W/o. Chinnabba,
Aged 43 years, R/o. Narasimhapuram Village,
Palasamudram Mandal, Chittoor District.
                                                    .. Petitioner

versus

$ The State of Andhra Pradesh,
Represented by its Chief Secretary,
Secretariat Buildings, Amaravathi,
at Velagapudi, Guntur District, and others.

                                                    .. Respondents



! Counsel for the petitioner      : Mr. D. Purnachandra Reddy


^Counsel for the respondents     : Mr. Syed Khader Masthan, Spl.GP
                                   for Additional Advocate General


<Gist :



>Head Note:




? Cases referred:



1. (1991) 1 SCC 476

2. (2013) 4 SCC 435

3. 2020 SCC OnLine AP 653.
                                       3




    IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI



HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                      &
             HON'BLE MR. JUSTICE C. PRAVEEN KUMAR


                  WRIT PETITION No.22583 of 2020

                   (Taken up through video conferencing)


C. Vallemma W/o. Chinnabba,
Aged 43 years, R/o. Narasimhapuram Village,
Palasamudram Mandal, Chittoor District.
                                                       .. Petitioner
      Versus

The State of Andhra Pradesh,
Represented by its Chief Secretary,
Secretariat Buildings, Amaravathi,
at Velagapudi, Guntur District, and others.

                                                       .. Respondents


Counsel for the petitioner        : Mr. D. Purnachandra Reddy

Counsel for the respondents       : Mr. Syed Khader Masthan,
                                    Spl. GP, for Addl. AG

Date of hearing                   :   08.02.2021

Date of order                     :   16.02.2021



                                 ORDER

per Arup Kumar Goswami, CJ

This petition, in the nature of Writ of Habeas Corpus, was filed

praying for release of C. Venkatesh, son of the petitioner, who is lodged in

Central Prison, YSR Kadapa, and to set him free, after declaring his

detention under Andhra Pradesh Prevention of Dangerous Activities of

Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders

and Land Grabbers Act, 1986 (for short, 'the Act'), as unconstitutional and

illegal.

2. The second respondent- Collector & District Magistrate, Chittoor,

passed an order dated 13.08.2020 in exercise of power conferred under

Section 3(2) read with Section 3(1) of the Act and also keeping in view

public interest, to detain the son of the petitioner from the date of service

of the order upon him and to lodge him in Central Prison, YSR Kadapa.

The grounds of detention in English and Tamil and the material in support

thereof were served to the petitioner.

3. In the aforesaid order, it was indicated that the case of the son of

the petitioner would be referred to the Advisory Board for review and

opinion under Section 10 of the Act and it was also noted that the detenu

would have a right to make representation (i) to the Collector & District

Magistrate, Chittoor, before the order is approved by the Government or

(ii) to the Chief Secretary, Government of Andhra Pradesh, Vijayawada, or

(iii) to the Advisory Board or to all of them.

4. Heard Mr. D. Purnachandra Reddy, learned counsel for the

petitioner, and Mr. Syed Khader Masthan, learned Special Government

Pleader representing the learned Additional Advocate General, for the

respondents.

5. Learned counsel for the petitioner has pressed into service only one

ground, namely, unexplained delay in disposal of the representation

submitted by the son of the petitioner, to contend that the order of

detention is unconstitutional and illegal, which is sought to be

controverted by Mr. Syed Khader Masthan, by placing reliance on the

averments made in Paragraph 16 of the counter-affidavit filed by urging

that delay, if any, has been appropriately explained and, therefore, no

interference is called for with the order of detention of the detenu.

6. Mr. D. Purnachandra Reddy, learned counsel, submits that the

representation was submitted to the Government on 12.10.2020, which

was received on 16.10.2020, and the same was rejected on 02.12.2020,

which is after 47 days of the date of submission of representation. In

support of his submission, learned counsel placed reliance on the

decisions of the Hon'ble Supreme Court in K.M. Abdulla Kunhi and B.L.

Abdul Khader v. Union of India and others, reported in (1991) 1

SCC 476, Abdul Nasar Adam Ismail v. State of Maharashtra and

others, reported in (2013) 4 SCC 435 and P. Aruna Kumari v. State

of Andhra Pradesh and others, reported in 2020 SCC OnLine AP

653.

7. Having regard to the contours of controversy as presented by the

learned counsel for the petitioner, it will not be necessary for us to refer

to the grounds based on which the order under Section 3(1) and 3(2) of

the Act was passed by the Collector and District Magistrate, Chittoor.

8. A perusal of Section 3 of the Act goes to show that the Government

may, if satisfied with respect to any person of the class of persons as

indicated in Section 3(1) that with a view to prevent 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. Section

3(2) of the Act provides that the Government, if satisfied that it is

necessary, by order in writing, direct, having regard to the circumstances

prevailing or likely to prevail in any area within the local limits of

jurisdictions of the District Magistrate or Commissioner of Police, the

District Magistrate or Commissioner of Police may also exercise the

powers conferred under Section 3(1) of the Act for such duration as may

be specified in the order of the Government. The proviso to Section 3(2)

lays down that the order passed under Section 3(1) shall not in the first

instance, exceed three months, but the Government, if satisfied, that it is

necessary to do so, amend such order to extend such period from time to

time by any period not exceeding three months at any one time. Section

3(3) of the Act enjoins that when an order is made under Section 3(2),

the officer shall forthwith report the fact to the Government together with

the grounds on which the order has been made and such other particulars

as in his opinion, have a bearing on the matter, and no such order shall

remain in force for more than 12 days after the making thereof, unless in

the meantime, it has been approved by the Government.

9. Section 9 of the Act provides for constitution of Advisory Boards

and Section 10 requires the Government to place before the Advisory

Board the grounds on which the order of detention has been made and

the representation, if any, made by the person affected by the order, and

in the case where the order has been made by an officer, also the report

by such officer under Section 3(3) within three weeks from the date of

detention of the person. Section 11(1) requires submission of the report

by the Advisory Board to the Government within seven weeks from the

date of detention of the person concerned.

10. At this juncture, it would be relevant to take note of Article 22(5) of

the Constitution, which provides that when any person is detained in

pursuance of an order made under any law providing for preventive

detention, the authority making the order shall, as soon as may be,

communicate to such person the grounds on which the order has been

made and shall afford him the earliest opportunity of making a

representation against the order.

11. Thus, under Article 22(5) of the Constitution, the detenu has two

rights: (i) to be informed, as soon as may be, of the grounds on which the

order of detention is based, i.e., the ground which led to the subjective

satisfaction of the detaining authority and (ii) to be afforded the earliest

opportunity of making a representation against the order of detention.

12. It is now well established by series of judicial pronouncements that

constitutional right to make representation under Article 22(5) of the

Constitution, by necessary implication, also guarantees the constitutional

right to a proper consideration of the representation.

13. The Constitution Bench of the Hon'ble Supreme Court in the case of

K.M. Abdulla Kunhi (supra) observed that Article 22(5) of the

Constitution casts a legal obligation on the Government to consider the

representation as early as possible. While explaining the words "as soon

as may be" as appearing in Article 22(5), it was observed that the same

reflects the concern of the framers of the Constitution that the

representation should be expeditiously considered and disposed of with a

sense of urgency without any avoidable delay. The delay, if any, has to be

considered in the facts and circumstances of the case and there can be no

hard and fast rule in that regard. It was laid down that any unexplained

delay in the disposal of the representation would be a breach of the

constitutional imperative and it would render the continued detention

impermissible and illegal. It was further observed that the Government's

consideration of the representation is for the purpose to find out whether

the detention is in conformity with the power under the statute.

14. In Abdul Nasar Adam Ismail (supra), the Hon'ble Supreme

Court referred to the judgment in K.M. Abdulla Kunhi (supra) and

observed that though no time limit is prescribed for disposal of the

representation, the constitutional requirement is that it must be disposed

of as soon as possible. Though every day's delay in dealing with the

representation of the detenu does not need to be explained, there should

also be no supine indifference, slackness or callous attitude. It was

observed if the inter-departmental consultative procedures are such that

the delay becomes inevitable, such procedures will contravene the

constitutional mandate. Any authority obliged to make order of detention

should adopt a procedure calculated towards expeditious consideration of

the representation.

15. In the aforesaid case, the Hon'ble Supreme Court, while holding on

facts that there was no delay in disposal of the representation, recorded

that there was unexplained delay in forwarding the representation by the

Superintendent of Jail to the detaining authority. The Hon'ble Supreme

Court further observed that delay in disposal of the representation has

vitiated only the continued detention of the detenu and not the detention

order and it does not affect the validity of the order of detention.

16. In P. Aruna Kumari (supra), at paragraph 16, it was noted as

under:

"Admittedly, the representation dated 5.5.2020 was

sent to the Government and it is to be presumed that it must

have been received within a couple of days, as the counter

filed by the Government is silent as to the date when it was

received by the Government. In para 16 of the counter it is

stated that the said representation was received by the Home

Department and thereafter with an endorsement dated

19.6.2020, it was forwarded to the GAD, which was looking

after the preventive detention matters. The representation

was received by the GAD on 19.6.2020 and as 20.6.2020 and

21.6.2020 were holidays, called for remarks from the District

Collector on 22.6.2020 and thereafter rejected the

representation on 26.6.2020. From a perusal of the above, it

is clear that from 5-5-2020 onwards, the representation of the

petitioner was lying with the Government till 19.6.2020 i.e.,

for nearly 40 days. No explanation is forthcoming in the

counter as to why the representation was in the Home

Department till 19.6.2020 without being attended to."

17. In the aforesaid case, this Court, while holding that the basis for

the detaining authority, in absence of any bail application being filed and

pending consideration seeking release, to believe that there is a

reasonable possibility of the detenu being released on bail, cannot be

accepted, also recorded a finding that there was unexplained delay in

considering the representation of the detenu and accordingly, had allowed

the writ petition.

18. Let us now advert to the facts of the present case. It is not

disputed that the representation dated 12.10.2020 was received on

16.10.2020. However, the same was sent to the Chief Minister and

Principal Secretary to the Government (POLL) on 21.10.2020. That itself

goes to show that the representation was not dealt with promptitude at

that stage. After receipt of the same on 21.10.2020, the same was sent

to the Deputy Secretary, GAD, on 22.10.2020. The representation was

sent to the detaining authority by e-mail on 11.11.2020. There is no

explanation whatsoever why there was such a long gap of nearly 20 days

in sending the e-mail to the detaining authority. The detaining authority

submitted his remarks to the Principal Secretary (POLL) on 16.11.2020. It

is admitted position that the representation was rejected on 02.12.2020.

There is also no explanation why the interregnum period of 15 days was

taken for consideration of the representation.

19. A representation submitted by a detenu, in the context of

preventive detention, relates to the liberty of the individual, a cherished

right enshrined in Article 21 of the Constitution.

20. On the basis of the facts alluded above, we are of the unhesitant

opinion that there is unexplained delay in disposal of the representation,

on account of which continued detention of the detenu would be

unconstitutional and illegal.

21. In view of the above discussion, we direct that the detenu shall be

released forthwith, if he is not required in any other case.

22. Resultantly, the writ petition is allowed. No costs. Pending

miscellaneous applications, if any, shall stand closed.

ARUP KUMAR GOSWAMI, CJ                               C. PRAVEEN KUMAR, J

                                                                       IBL

HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE & HON'BLE MR. JUSTICE C. PRAVEEN KUMAR

WRIT PETITION No.22583 of 2020

(Per Arup Kumar Goswami, CJ)

Dt: 16.02.2021

IBL