Banavathu Chilakamma vs The State Of Andhra Pradesh
2021 Latest Caselaw 2410 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. 4677 of 2021
                        (Taken up through video conferencing)

Banavathu Chilakamma,
W/o.Banavathu Srinu,
Aged 38 years, Occ: House hold,
R/o.Tatakunta Tanda,
Vissannapet Mandal,
Krishna District.                                                 .... Petitioner

Versus

1.The State of Andhra Pradesh,
rep. by Chief Secretary, General
Administration (Zeneral-A),
Amaravathi, Guntur District and others                            .... Respondents


Counsel for the petitioner              : Mr. M.P.V.N.V.Sastry, Advocate.

Counsel for the respondents             : Mr. Syed Khader Mastan,
                                          Government Pleader.

Date of hearing                         : 23.06.2021
Date of pronouncement                   : 15.07.2021


                                       ORDER

(Per Ninala Jayasurya, J)

Aggrieved by the order of detention in Ref.C1/1/M/2021 dated 05.02.2021

passed by the 3rd respondent (hereinafter referred to as 'the detaining authority') as

confirmed by the 1st respondent vide G.O.Rt.No.293, General Administration

(SC.I) Department, dated 16.02.2021, the petitioner filed the present writ petition

seeking to order the release of her husband i.e., Banavathu Srinu, S/o late Gopiya

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

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the 1st respondent as arbitrary, illegal and violative of Article 21 of Constitution of

India.

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 (hereinafter referred to as 'the

Act'), stating inter alia that the activities of the detenu are inexcusable and he shall

be treated as Bootlegger under Section 2(b) of the said Act.

3. The said order was passed inter alia on the premise that the detenu is

indulging in manufacture, possession, transportation of illicit liquor, that

previously he was arrested and enlarged on bail and again caught while committing

the same offence. The detaining authority while mentioning that the detenu was

presently lodged in Sub-jail, Nuzividu, further opined that there is every possibility

of the detenu being enlarged on bail again and continue the criminal activities

which are deleterious and detrimental to the public health and public order.

4. Heard Mr. M.P.V.N.V.Sastry, learned Counsel appearing for the petitioner

and Mr. Syed Khader Mastan, learned Government Pleader attached to the Office

of the learned Additional Advocate General appearing for the respondents.

5. Mr. M.P.V.N.V.Sastry, learned Counsel, inter alia contends that the order of

detention was passed by the detaining authority without application of mind. He

submits that the detaining authority without there being any material or

consideration of the same, came to a conclusion that there is every possibility of

HCJ & NJS,J W.P.No.4677 of 2021

the detenu being released on bail and therefore the order of detention is

unsustainable. He submits that the bail applications, bail orders and charge sheets

etc., were not furnished to the detenu to make an effective representation and

therefore the order of detention is vitiated. He further submits that the bail

application, bail orders etc., are required to be considered by the detaining

authority and in the absence of the same, the detention order is not sustainable.

He submits that there are no overt acts against the detenu and at any rate, there is

no material to show that his alleged activities are prejudicial to public health or

public order. He submits that the detaining authority had passed the order of

detention on mere apprehension without any material to believe that the detenu

will again indulge in the alleged activities. Accordingly, he seeks the relief as

prayed for.

6. In support of his contentions, the learned counsel for the petitioner places

reliance on a judgment of the Hon'ble Supreme Court in Rekha V. State of

Tamilnadu1 and a Division Bench of the erstwhile High Court of Andhra Pradesh

in Lalitha V. State of Andhra Pradesh2.

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

Government Pleader, while submitting that the detenu is a habitual offender,

contends that the order of 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 in larger public interest as the lives of

(2011) 5 SCC 244

2007(3) ALT 693

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the people are at risk due to illegal activities of the detenu. He further submits that

no case is made out for release of the detenu and therefore seeks dismissal of the

writ petition.

8. In Rekha's case (1 supra) relied on by the learned counsel for the petitioner,

a three-Judge Bench of the Hon'ble Supreme Court, set aside the order of detention

inter alia holding 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 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."

9. In the present case, no bail application is pending and as such there is no

likelihood of the detenu being released on bail. Further, though there is no

prohibition in law to pass the order of detention while the detenu is in jail, as per

the expression of the Hon'ble Supreme Court in Champion R.Sangma V. State of

Meghalaya and another3, it should satisfy the triple requirements set out in the

said judgment. The Hon'ble Supreme Court while referring to the factors in terms

(2015) 16 SCC 253

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of the judgment in Kamarunnisa V. Union of India4 reiterated that the same are

required to be borne in mind by the detaining authority and satisfaction on those

aspects is to be arrived at while passing the detention order. The relevant

paragraphs of the said judgment reads thus:

"Para 9 - Coming to the ground on which we intend to allow this appeal, we may point out that even if the appellant is in jail in connection with some criminal cases(s) there is no prohibition in law to pass the detention order. Law on this aspect is well settled and stands crystallised by a plethora of judgments of this Court. However, a reading of those very judgments also clarifies that there are certain aspects which have to be borne in mind by the detaining authority and satisfaction on those aspects is to be arrived at while passing the detention order.

Para 10 - There are three such factors which were restated in Kamarunnissa V. Union of India(SCC pp.140-41, para 13)(reported in (1991) 1 SCC 128: 1991 SCC(Cri)88.

"13. From the catena of decision referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (l) 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

(1991) 1 SCC 128

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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 Ramesh Yadav[Ramesh Yadav V. District Magistrate, Etah reported in (1985) 4 SCC 232 : 1985 SCC (Cri) 514] was that ordinarily a detention order should not be passed merely to pre-empt 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."

11. The aforesaid dicta is reiterated in subsequent judgments as well. Some of which are as under:

(i) T.V.Sravanan V. State [reported in (2006) 2 SCC 664: (2006) 1 SCC (Cri) 593]

(ii) K.K.Saravana Babu V. State of T.N.

reported in (2008) 9 SCC 89 : (2008) 3 SCC (Cri) 67].

(iii) Huidrom Konungjao Singh V. State of Manipur [reported in (2012) 7 SCC 181 : (2013) 1 SCC (Cri) 956]"

.

10. Applying the said factors, the Hon'ble Supreme Court set aside the order of

detention in the attending facts and circumstances of the case.

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11. As seen from the facts of the case on hand, there is no material on record,

muchless reliable material on the basis of which the detaining authority arrived at a

conclusion that there is a possibility of the detenu being enlarged on bail. There is

no bail application and in the absence of the same, there is no 'real' possibility of

the detenu being enlarged on bail. The order of detention, thus, in the considered

opinion of this Court does not satisfy the triple requirement test as laid down by the

Hon'ble Supreme Court in the judgments referred to supra. The order of detention

cannot be based on mere apprehension, but on material and due consideration of

the same by the detaining authority. In the present case, there is no material, let

alone consideration of the same. Therefore, the order of detention cannot be said

to have been passed on subjective satisfaction of material available on record. The

detaining authority arrived at the conclusion without application of mind and the

same is accordingly vitiated.

12. Though the learned counsel for the petitioner relied on the judgment of the

Hon'ble Division Bench of the erstwhile High Court of Andhra Pradesh in

Lalitha's case (2nd supra), wherein while dealing with an order of preventive

detention passed against the detenu treating that his alleged activities fall under the

definition of "Bootlegger" under Section 2(b) of the Act, set aside the said order by

relying on various judgments of the Hon'ble Supreme Court as also the High Court

of Andhra Pradesh, the same need not be discussed in elaboration. Suffice to state

that the order of detention under challenge is unsustainable in the light of

judgments of the Hon'ble Supreme Court mentioned above, and is liable to be set

aside.

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

Ref.C1/1/M/2021 dated 05.02.2021 passed by the 3rd 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
                                                                                 BLV

                                                                HCJ & NJS,J
                                                      W.P.No.4677 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. 4677 of 2021 (Delivered by Hon'ble NJS,J)

15th day of July, 2021 BLV

HCJ & NJS,J W.P.No.4677 of 2021