Annam Venkatakrishnaraju, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 1347 AP

     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.23231 of 2020

                         (Through Video Conferencing)

Annam Venkatakrishnaraju
S/o. Annam Rama Rao, a/a.38 years,
Occ: Business, r/o.Dr.No.2-61,
Gosavedu, Gampalagudem Mandal,
Krishna District.                                        ... Petitioner

                                    Versus

The State of Andhra Pradesh,
Rep.by its Principal Secretary,
Department of Home, Secretariat Buildings,
Velagapudi, Guntur District
and 4 others.                                            ... Respondents

Counsel for the petitioner           :     Mr. P.V.N.Kiran Kumar

Counsel for respondents              :     Mr. Syed Khader Masthan,
                                           GP attached to the office of
                                           Addl.Advocate General

Date of hearing                      :     25.02.2021

Date of Order                        :      04.03.2021


                                   ORDER

(Per Arup Kumar Goswami, CJ)

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

brother of the detenu, viz., 'Annam Sudhakar', who is lodged in Central Prison,

Rajamahendravaram, East Godavari District, praying for production of the detenu

before this Court, 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.

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2. The respondent No.3/District Collector, Krishna District, Machilipatnam,

passed an order on 08.09.2020 under Section 3(2) read with Section 3(1) of the

Act, treating the detenu as a 'Goonda' under Section 2(g) of the Act and

directing to lodge him in Central Prison, Rajamahendravaram, East Godavari

District.

3. The Government had accorded approval of the detention order under

Section 3(3) of the Act, on 16.09.2020. The Advisory Board, on 15.10.2020,

recorded its opinion that there is sufficient cause for detention. Subsequently, on

27.10.2020, respondent No.2/Chief Secretary, Government of Andhra Pradesh, in

exercise of powers conferred under Section 12(1) read with Section 13 of the

Act, confirmed the order of the detention made by the Collector and District

Magistrate, Krishna District, Machilipatnam and directed that the detention of the

detenu be continued for a period of 12 months from the date of his detention,

i.e., from 04.09.2020.

4. Reference was made to 11 cases in the grounds of detention, and the

same read as follows:

"1) Cr.No.135 of 2017, u/s.273, 420 IPC and Sec.5 & 22 of Cigarette

& Tobacco Product Prohibition of Advertisement & Regulation of

Trade and Commerce Protection & Supply Distribution Act, 2003 of

Gampalagudem PS.

2) Cr.No.154 of 2017, u/s.420, 273 r/w.34 IPC and Sec.5 & 22 of

Cigarette & Tobacco Product Prohibition of Advertisement &

Regulation of Trade and Commerce Protection & Supply Distribution

Act, 2003 of Gampalagudem PS.

3) Cr.No.147 of 2018, u/s.273, 420 IPC and Sec.5 & 22 of Cigarette

& Tobacco Product Prohibition of Advertisement & Regulation of 3 HCJ & CPKJ W.P. No.23231 of 2020

Trade and Commerce Protection & Supply Distribution Act, 2003 of

Gampalagudem PS.

4) Cr.No.20 of 2019, u/s.273, 420 IPC and Sec.5 & 22 of Cigarette &

Tobacco Product Prohibition of Advertisement & Regulation of Trade

and Commerce Protection & Supply Distribution Act, 2003 of

Gampalagudem PS.

5) Cr.No.53 of 2019, u/s.273, 420 r/w.34 IPC and Sec.5 & 22 of

Cigarette & Tobacco Product Prohibition of Advertisement &

Regulation of Trade and Commerce Protection & Supply Distribution

Act, 2003 of Gampalagudem PS.

6) Cr.No.233 of 2019, u/s.273, 420 IPC and Sec.5 & 22 of Cigarette

& Tobacco Product Prohibition of Advertisement & Regulation of

Trade and Commerce Protection & Supply Distribution Act, 2003 of

Gampalagudem PS.

7) Cr.No.235 of 2019, u/s.273, 420 r/w.34 IPC and Sec.5 & 22 of

Cigarette & Tobacco Product Prohibition of Advertisement &

Regulation of Trade and Commerce Protection & Supply Distribution

Act, 2003 of Gampalagudem PS.

8) Cr.No.42 of 2020, u/s.270, 273, 328 r/w.34 IPC and Sec.5 & 22 of

Cigarette & Tobacco Product Prohibition of Advertisement &

Regulation of Trade and Commerce Protection & Supply Distribution

Act, 2003 of Gampalagudem PS.

9) Cr.No.314 of 2020, u/s.273, 328, 420 r/w.34 IPC and Sec.5(1) &

22 of Cigarette & Tobacco Product Prohibition of Advertisement &

Regulation of Trade and Commerce Protection & Supply Distribution

Act, 2003 of Gampalagudem PS. 4 HCJ & CPKJ W.P. No.23231 of 2020

10) Cr.No.355 of 2020, u/s.34(1)(a)(i) of the A.P. Excise Amendment

Act, 2020 of Gampalagudem PS.

11) Cr.No.405 of 2020, u/s.273, 328, 420 IPC and Sec.5(1) & 22 of

Cigarette & Tobacco Product Prohibition of Advertisement &

Regulation of Trade and Commerce Protection & Supply Distribution

Act, 2003 of Gampalagudem PS.

5. Section 2(g) of the Act defines 'Goonda' as under:

"Goonda" means a person, who either by himself or as a member of

or leader of a gang, habitually commits, or attempts to commit or

abets the commission of offences punishable under Chapter XVII or

Chapter XXII of the Indian Penal Code;

6. Learned counsel for the petitioner submits that the detaining authority

has taken into consideration irrelevant consideration as a case under section

34(1)(a)(i) of the A.P. Excise Amendment Act, 2020, namely, Cr.No.355/2020 of

Gampalagudem PS, is taken into consideration. He submits anybody involved in

the said offence does not come within the meaning of 'Goonda' as defined under

Section 2(g) of the Act. Therefore, for having taken into consideration an

irrelevant ground while passing the order of detention, the same is vitiated and

as such on this ground alone, the order of detention is liable to be set aside and

quashed, he submits.

7. The learned counsel for the petitioner placed reliance on the decisions

in Shibban Lal Saksena v. State of U.P., reported in AIR 1954 SC 179,

S.Prasad Reddy v. Collector and District Magistrate, Anantapur (Andhra

Pradesh)(D.B), reported in 2005 (3) ALT 487, and Thallapuneni

Venkateswarlu v. Collector and District Magistrate, Cuddapah and

others, reported in 2004 (5) ALT 250.

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8. Mr.Syed Khader Masthan, learned Government Pleader attached to the

office of Addl. Advocate General, appearing for the respondents, supports the

order of detention and contends that the Writ Petition is liable to be dismissed.

9. We have heard the learned counsel for the parties and perused the

materials on record.

10. Learned counsel for the petitioner is correct in submitting that a

person who is involved in an offence punishable under the A.P. Excise

Amendment Act, 2020, does not come within the definition of a 'Goonda'.

11. Personal liberty of an individual is sacrosanct. Personal liberty has

been kept in a very high pedestal in our constitutional scheme and this Court has

a solemn duty to protect an individual against illegal and arbitrary detention. As

the personal liberty of a person has to be jealously protected, the Court has to

scrutinise with utmost care and caution as to whether the requirement of law has

been meticulously followed and where such requirement of law is breached even

in the slightest measure, the Court has to strike down the order of detention.

12. The Hon'ble Supreme Court in the case of Shibban Lal Saksena

(Supra) observed as under:

"The Government itself, in its communication dated the 13th of

March, 1953, has plainly admitted that one of the grounds upon

which the original order of detention Was passed is unsubstantial or

non-existence and cannot be made a ground of detention. The

question is, whether in such circumstances the original order made

under Section 3(1)(a) of the Act can be allowed to stand. The answer,

in our opinion, can only be in the negative. The detaining authority

gave here two grounds for detaining the petitioner. We can neither

decide whether these grounds are good or bad, nor can we attempt 6 HCJ & CPKJ W.P. No.23231 of 2020

to assess in what manner and to what extent each of these grounds

operated on the mind of the appropriate authority and contributed to

the creation of the satisfaction on the basis of which the detention

order was made.

To say that the other ground, which still remains, is quite sufficient to

sustain the order, would be to substitute an objective judicial test for

the subject decision of the executive authority which is against the

legislative policy underlying the statute. In such cases, we think, the

position would be the same as if one of these two grounds was

irrelevant for the purpose of the Act or was wholly illusory and this

would vitiate the detention order as a whole. This principle, which

was recognised by the Federal Court in the case of 'Keshav Talpade

v. Emperor', AIR 1943 Federal Court 1 seems to us to be quite

sound and applicable to the facts of this case."

13. In Shiv Prasad Bhatnagar v. State of Madhya Pradesh and

another, reported in AIR 1981 SC 870, the Hon'ble Supreme Court observed

that it is well settled that grounds of detention must be pertinent and not

irrelevant, proximate and not stale, precise and not vague. Irrelevance,

staleness and vagueness are vices any single one of which is sufficient to vitiate

a ground of detention and a single vicious ground is sufficient to vitiate an order

of detention.

14. In the case of S.Prasad Reddy (supra), at paragraphs 68 and 70, it

was stated by this Court as under:

"68. Firstly, the offence other than Chapters XVI, XVII and XXII of

Indian Penal Code cannot be taken into consideration for bringing a

person within the definition of "Goonda" and secondly, it is highly

improbable as to which of the offences influenced the mind of the 7 HCJ & CPKJ W.P. No.23231 of 2020

detaining authority to arrive at subjective satisfaction to issue the

detention Order. When detention Order is composed, on relevant and

irrelevant grounds, it does not survive to the extent of relevant

grounds and the entire detention Order falls to ground. Therefore, we

are of the considered view that the Order is not sustainable and

accordingly it is set aside and the detenu shall be released forthwith, if

he is not required in any other case.

xxxxx

70. The learned Senior Counsel would at the threshold submits that

the 1st ground itself is an irrelevant ground, inasmuch as the security

proceedings initiated cannot be considered as substantial ground for

issuing the Order of detention. Further, he also submits that in other

grounds, not only the offences falling under Chapters XVI, XVII and

XXII of Indian Penal Code were mentioned, but also other provisions

under the Explosive Substances Act were also taken into consideration.

Therefore, we are of the considered view that the Order of detention is

not sustainable inasmuch as, irrelevant and extraneous grounds were

taken into consideration. Accordingly, the detention Order is set aside

and the detenu is released forthwith, if he is not required in any other

case."

15. In the case of Thallapuneni Venkateswarlu (supra), this Court, at

paragraphs 9 and 15, observed as under:

"9. In the instant case, admittedly, the detaining authority has not only

considered Section 379 IPC but also taken into consideration Section

20 of Forest Act, which is not covered by the provisions of the Act.

Therefore, in such a situation, the entire order as passed by the

authority has to be struck down.

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          xxxxx

          xxxxx

15. The learned Advocate General however tried to convince this Court

that Section 379 IPC is referable to Chapter XVII and that itself

constitutes a sufficient ground to enable the detaining authority to

pass the order. In our considered opinion, the contention cannot be

accepted. When the detaining authority has taken into consideration

both relevant and irrelevant grounds, the entire order of detention has

to be set aside and it cannot salvage the order to the extent of Section

379 IPC. We are not inclined to go into the aspect whether Section 379

IPC has been properly invoked so as to bring it within the parameters

of 2(a) of the Act. Suffice it to say that it is not open for the detaining

authority to consider the provisions, which are not relevant and which

are not stipulated under the Act so as to invoke the detention order."

16. Having regard to the judgments as noted above, it is crystal clear that

even if one ground is irrelevant, the same would vitiate the detention order as a

whole. Admittedly, in the instant case, an irrelevant ground has been taken into

consideration while passing the order of detention.

17. In that view of the matter, the detention order cannot be sustained in

law and, therefore, the same is set aside and quashed.

18. Accordingly, the writ petition is allowed. The detenu shall be released

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

applications, if any, shall stand closed.

ARUP KUMAR GOSWAMI, CJ                                C. PRAVEEN KUMAR, J


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