Podamekala Chandrakala vs State Of Andhra Pradesh
2021 Latest Caselaw 3723 AP

              HON'BLE SRI JUSTICE JOYMALYA BAGCHI

                                          AND

        HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI

                    WRIT PETITION No.15752 OF 2021
                           (Taken up through video conferencing)

ORDER: (Per Hon'ble Sri Justice Joymalya Bagchi)

1.     Petitioner has assailed the order of detention, dated 28.01.2021,

passed under Sections 3(1) and 3(2) of the Andhra Pradesh Prevention of

Dangerous Activities of Boot-Leggers, Dacoits, Drug Offenders, Goondas,

Immoral Traffic Offenders and Land-Grabbers Act, 1986 (hereinafter

referred to as 'the Act 1 of 1986') inter alia on the following grounds:


       "H.    Whether the order becomes invalid for the reason, that the
       Advisory Board doesn't have minimum members as required
       under section 9 of the Act?

       J.     When the Advisory Board has less than the required
       members, whether any report furnished by the Board is invalid?

       K.     When statute mandates a particular procedure, can the
       deviation from the statute permissible and legal?

       L.     When the Advisory Board itself is not constituted as on the
       date of detention of the petitioner, whether the officers followed
       sections 10, 11 and 12 of the Act?

       O.     When the constitution of Advisory Board is with 2
       members, can there be any opinion of majority as specified in
       section 11(3) of the Act."


2.     Smt.Kodati Ramya Krishna, learned counsel for the petitioner,

restricts the challenge to the order of detention on the aforesaid grounds.

She relies on a judgment delivered by this Court in W.P. Nos.9945, 10979

and 10984 of 2021, dated 16.08.2021.


3.     Sri Syed Khader Mastan, learned counsel, appearing on behalf of

the learned Additional Advocate General, opposes the prayer.
                                                                         JB, J & KVL, J
                                             2                   W.P.No.15752 of 2021


4.       We have considered the materials on record.

5.       We find that the order of detention was confirmed vide G.O.Rt.

No.502, General Administration (SC.I) Department, dated 18.03.2021 on

the opinion of the Advisory Board, which comprised of a Chairman and

one Member alone. In W.P. Nos.9945, 10979 and 10984 of 2021, this

Court held that the Advisory Board must comprise of a Chairman and two

Members as per Section 9(2) of the Act 1 of 1986. Report of an improperly

constituted Advisory Board is non est in the eye of law. In this regard,

reference may also be made to a Constitution Bench decision of the

Hon'ble Apex Court in United Commercial Bank Limited v. Workmen1,

wherein the Bench held Award made by an improperly constituted

Tribunal was void. The Bench observed as follows:


                "......In our opinion, the position here clearly is that the
         responsibility to work and decide being the joint responsibility of all
         the three members, if proceedings are conducted and discussions
         on several general issues took place in the presence of only two,
         followed by an award made by three, the question goes to the root
         of the jurisdiction of the Tribunal and is not a matter of irregularity
         in the conduct of those proceedings....."


6.       Thus, in the light of the decision of this Court in W.P. Nos.9945,

10979 and 10984 of 2021 and the aforesaid ratio of the Hon'ble Apex

Court, we are of the opinion that the detention order, dated 28.01.2021,

which was confirmed vide G.O.Rt. No.502, General Administration (SC.I)

Department, dated 18.03.2021, on the basis of the report of an improperly

constituted Advisory Board is illegal and liable to be quashed.


7.       Accordingly, the Writ Petition is allowed setting aside the detention

order, dated 28.01.2021, passed by the 2nd respondent, in relation to the

petitioner's husband, Podamekala Venkatapathi, S/o.P.Musalaiah, Age:

AIR 1951 SC 230 JB, J & KVL, J

41 Years, Caste: Yadava, Occ: Red Sanders Smuggling, R/o. New

Timmarajupalli, H/o Nallatimmayapalli Village, Nandalur Mandal, YSR

District, Kadapa, and also the consequential confirmation order vide

G.O.Rt.No.502, General Administration (SC.I) Department, dated

18.03.2021. The detenu - Podamekala Venkatapathi, shall be set at

liberty forthwith unless his confinement is required in relation to any other

case. There shall be no order as to costs.

8. As a sequel, miscellaneous applications pending, if any, shall stand

closed.

______________________________ JOYMALYA BAGCHI, J

______________________________ KONGARA VIJAYA LAKSHMI, J Date: 23-09-2021 Dsh