Rishi Kumar Bhaskaran vs State Of Ap
2021 Latest Caselaw 2409 AP

      IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

  HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                            &
          HON'BLE MR. JUSTICE NINALA JAYASURYA

                            WRIT PETITION No. 6418 of 2021
                        (Taken up through video conferencing)

Rishi Kumar Bhaskaran,
S/o Rangaswamy Bhaskaran,
aged about 23 years, R/o. AC Block No.50,
4th Street, Anna Nagar, Chennai City,
Tamilnadu State.                                           .... Petitioner

Versus

The State of Andhra Pradesh,
rep. by its Chief Secretary, General
Administration (SC-I) Department,
A.P.Secretariat Office, Velagapudi,
Guntur District - 522503 and others                        .... Respondents


Counsel for the petitioner              : Mr. T. Niranjan Reddy, learned Senior
                                          Counsel, representing Mr. T. Nagarjuna
                                          Reddy, Advocate.
Counsel for the respondents             : Mr. Syed Khader Mastan,
                                          Government Pleader.

Date of hearing                         : 22.06.2021

Date of pronouncement                   : 15.07.2021


                                       ORDER

(Per Ninala Jayasurya, J)

Assailing the order of detention in Ref.C1/25/M/2021 dated 11.02.2021

passed by the 2nd respondent (hereinafter referred to as 'the detaining authority') as

approved by the 1st respondent vide G.O.Rt.No.313, General Administration (SC.I)

Department, dated 22.02.2021, the petitioner filed the present writ petition seeking

to order the release of his father i.e., Rangaswamy Bhaskaran, S/o late

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Rangaswamy (hereinafter referred to as 'the detenu') by declaring the said

detention order as approved by the 1st respondent as arbitrary, illegal and

unconstitutional.

2. The detaining authority passed the order of detention, in exercise of powers

conferred under Section 3(1) r/w Section 3(2) of the Andhra Pradesh Prevention of

Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral

Traffic Offenders and Land Grabbers Act, 1986, holding inter alia that the

activities of the detenu comes under the definition of 'Goonda'.

3. The genesis for passing the said order was registration of six crimes under

various provisions of law including crimes of assault or abetment of assault or

attempt to murder on the Police and Forest officials and evasion of arrest by

absconding and involving in illegal transportation of red sanders from the

Government Reserved Forests clandestinely.

4. Apart from the said crimes, a case in Crime No.102 of 2016 of Railway

Kodur Police Station was registered against the detenu and he was arrested on

08.01.2021 in connection with the said crime and lodged in Sub Jail, Rajampeta.

5. Heard Mr. T. Niranjan Reddy, learned Senior Counsel, appearing for the

petitioner assisted by Mr. T. Nagarjuna Reddy, Advocate and Mr. Syed Khader

Mastan, learned Government Pleader attached to the Office of the learned

Additional Advocate General appearing for the respondents.

6. Mr. T. Niranjan Reddy, learned Senior Counsel, while submitting that the

procedural requirements were followed by the Sponsoring Authority, the Detaining

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Authority as well as the Board and therefore, the same need not be examined, inter

alia contends that the order of detention was passed by the detaining authority

without application of mind. He submits that no material was placed before the

detaining authority to arrive at a conclusion that the detenu was likely to be

released on bail and on that ground, the order of detention is liable to be set aside.

He submits that as on the date of passing of the detention order, the detenu was in

judicial custody and in the absence of likelihood of the detenu coming out of the

prison, there were no compelling circumstances for the detaining authority to pass

the order of detention. He further submits that though the detaining authority refers

to the arrest of the detenu in connection with Crime No.102 of 2016 and lodging

him in the Sub Jail, the detaining authority is not posted with the relevant

information i.e., moving of bail application in the said crime and dismissal of the

same on 22.01.2021. He contends that dismissal of the bail application is a

relevant aspect and the conclusion arrived at by the detaining authority without

taking the same into consideration amounts to non-application of mind. The

learned Senior Counsel states that though as many as six crimes were registered

against the detenu, no applications seeking bail were moved. He also submits that

in the absence of any such material regarding bail applications and consideration of

the same, the order of detention passed by the detaining authority cannot be said to

be based on subjective satisfaction, suffers from the vice of non-application of

mind and deserves to be set aside. He submits that the order of detention is liable

to be set aside on this sole ground, though it suffers from other infirmities.

HCJ & NJS,J W.P.No.6418 of 2021

In support of his contentions, learned Senior Counsel places reliance on a

judgment of the Hon'ble Supreme Court in Rekha V. State of Tamilnadu1 and the

orders passed by this Court in Cheemaparthi Parvin V. State of A.P., and

others(W.P.No.1803 of 2021 dated 27.04.2021), Cheemaparthi Salma V. State of

A.P., and others(W.P.No.1810 of 2021 dated 27.04.2021) and Rizwana V. State of

A.P., and others(W.P.No.11603 of 2020 dated 13.08.2020).

7. Opposing the said contentions, Sri Syed Khader Mastan, learned

Government Pleader, submits that the order of the detaining authority is based on

subjective satisfaction and warrants no interference by this Court. He submits that

the detaining authority, after examining the material on record and on

consideration of the relevant factors passed the order of detention as the detenu is

likely to obtain bail and continue his illegal activities which are prejudicial to

maintenance of public order. He further submits that no case is made out for

release of the detenu and therefore, seeks dismissal of the writ petition.

8. The contentions advanced by the learned counsel are examined in the light

of the judgments of the Hon'ble Supreme Court.

9. In T.V. Sravanan V. State through Secretary2, the Hon'ble Supreme Court,

while dealing with a case of preventive detention ordered in exercise of the powers

conferred by sub-section (1) of Section 3 of the Tamilnadu Prevention of

Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas,

Immoral Traffic Offenders and Slum Grabbers and Video Pirates Act, 1982 on the

ground that the detenu was a 'Goonda' within the meaning of the said Act and

(2011) 5 SCC 244

(2006) 2 SCC 664

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there was a compelling necessity to detain him in order to prevent him from

indulging in such further activities in future which were prejudicial to the

maintenance of the public order, which was upheld by the Hon'ble High Court of

Tamilnadu, set aside the order of detention. The Hon'ble Supreme Court at para

No.14 recorded its reasons in this regard which reads as follows:

"We are satisfied that for the same reason the order of detention cannot be upheld in this case. The bail applications moved by the appellant had been rejected by the courts and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The "imminent possibility" of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. The inference has to be drawn from the available material on record. In the absence of such material on record, the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention."

10. In Rekha's case (1 supra), a three-Judge Bench of the Hon'ble Supreme

Court, while dealing with a case of preventive detention, the facts of which are

similar to the case on hand, set aside the detention order. The Hon'ble Supreme

Court, after referring to the judgments in T.V.Sravanan's case (2 supra) and other

cases, inter alia held thus:

"Para 27 - In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail

HCJ & NJS,J W.P.No.6418 of 2021

application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed."

11. In one of the judgments relied on by learned Senior Counsel i.e.,

W.P.No.1803 of 2021 dated 27.04.2021, a Division Bench of this Court, in which

one of us (Arup Kumar Goswami, CJ) was a Member, examined similar

contentions as advanced in the present case at length. The Hon'ble Division

Bench, while referring to the judgments of the Hon'ble Supreme Court in

Champion R. Sangma V. State of Meghalaya3, Kamarunnisa V. Union of India4,

N. Meera Rani V. Government of Tamilnadu5, etc., set aside the order of

detention inter alia on the ground that the triple requirement test as laid down in

the case of Kamarunnisa, followed in the subsequent judgments was not satisfied.

12. It is contextual to extract the relevant portion of the judgment of the Hon'ble

Apex Court in Kamarunnisa's case (4 supra) which is as under:

"13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order

(2015) 16 SCC 253

(1991) 1 SCC 128

(1989) 4 SCC 418

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can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this Court stated in the case of Ramesh Yadav was that ordinarily a detention order should not be passed merely to preempt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody."

13. From a reading of the above judgments, it is clear that an order of detention

can be validly passed, if the detaining authority is aware of the fact that the detenu

is actually in custody and he has reason to believe on the basis of reliable material

placed before him (a) that there is a real possibility of his being released on bail,

and (b) that on being so released, he would in all probability indulge in prejudicial

activity. Thus, there should be reliable material before the detaining authority to

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arrive at a conclusion that there is a 'real' possibility of the detenu being released

on bail. Therefore, in the absence of any material to arrive at a conclusion that 'the

detenu' is likely to be released on bail, the order passed by the detaining authority

cannot be one said to be on subjective satisfaction.

14. In the present case, there is no material before the detaining authority to

reach such a conclusion about the likelihood of the detenu's release on bail. In the

absence of any material before the detaining authority with regard to the

applications, if any, made seeking bail, the conclusions arrived at by the detaining

authority that the detenu is likely to be released on bail, cannot be sustained, in the

light of the judgments referred to supra. The order of detention in the present case

is based on mere ipse dixit of the detaining authority without any material on

record to substantiate that there is imminent possibility of the detenu being

released on bail. As pointed out by learned Senior Counsel for the petitioner and

not disputed by learned Government Pleader appearing for the respondents, in

none of the six crimes registered against the detenu, the arrest of the detenu was

shown. In respect of Crime No.102 of 2016 of Railway Kodur P.S., application

seeking bail was dismissed and the detenu was in judicial custody. No material was

placed before the detaining authority as to whether any application seeking bail

was moved in respect of the six crimes registered against the detenu. These are the

crucial aspects which are required to be considered by the detaining authority

before passing the detention order.

15. In view of the legal position referred to supra, this Court has no hesitation to

hold that in the absence of any material, the conclusion as arrived at by the

detaining authority recording his satisfaction that there is every likelihood of the

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detenu being granted/released on bail in other cases also, is not sustainable and the

order of detention is vitiated by non application of mind. The detaining authority

passed the order of detention on mere apprehension that there is every likelihood of

the detenu being released on bail and the order does not satisfy the triple test in

terms of the judgment of the Hon'ble Supreme Court in Kamarunnisa's case

(4 supra). Accordingly, the contention advanced by learned Senior Counsel for the

petitioner that the satisfaction of the detenu's release was not rightly recorded in

the order of detention, is upheld and the submission of learned Government

Pleader for the respondents that the impugned order of detention is based on

subjective satisfaction of the detaining authority is rejected.

16. Accordingly, the writ petition is allowed and the order of detention in

Ref.C1/25/M/2021 dated 11.02.2021 passed by the 2nd respondent as confirmed by

the 1st respondent is set aside. The detenu shall be released forthwith, if not

required in any other case. No order as to costs. Pending miscellaneous

applications, if any, shall stand closed.

ARUP KUMAR GOSWAMI, CJ                                   NINALA JAYASURYA, J
                                                                                      CBS

                                                                 HCJ & NJS,J
                                                       W.P.No.6418 of 2021


      IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE & HON'BLE MR. JUSTICE NINALA JAYASURYA

WRIT PETITION No. 6418 of 2021 (Delivered by Hon'ble NJS, J)

15th day of July, 2021 CBS

HCJ & NJS,J W.P.No.6418 of 2021