Andhra Pradesh High Court - Amravati

Order: (Per Avss vs J on 1 August, 2022

                   HON'BLE SRI JUSTICE A.V.SESHA SAI
                                 AND
                   HON'BLE SMT JUSTICE V.SUJATHA

                    WRIT PETITION No.7647 of 2022


ORDER: (per AVSS,J)

        In the present Writ Petition, challenge is to the order of

 detention passed by the Collector and District Magistrate-2nd

 respondent herein under Section 3(1) and (2) of the Andhra

Pradesh Prevention of Bootleggers, Dacoits, Drug Offenders,

Goondas, Immoral Traffic Offenders and Land Grabbers Act,

1986 (for short 'the Act') vide proceedings Ref:C1/

656/M/2021, dated 27.12.2021, as approved and confirmed

by the State Government vide G.O.Rt.No.20, General

Administration (SC.I) Department, dated 05.01.2022 and

G.O.Rt.No.278, General Administration (SC.I) Department,

dated 15.02.2022 respectively.

2. Pursuant to the registration of as many as six crimes

against the alleged detenu, who is the husband of the

petitioner herein, the 2nd respondent herein pressed into

service the provisions of the Act. The particulars of the crimes

registered against the detenu are as follows:

"1) Chitvel PS, Cr.No.19/2020, Dated: 27.02.2020, U/Sec 147, 148, 353, 379 (Theft of National Property) r/w 149 IPC., Sec 20 (1) C (ii) (iii)

(iv) (x), Sec 20 (i) (d) (i), Sec 36 (a), Sec 32 (A) of AP Forest (Amendment) Act, 2016, Rule 3 of AP Sandal Wood and Red Sanders Wood Transit Rules, 1969, Sec 9, 39 (4) (E) of Wildlife Protection Act, 1972 and Sec 3 of PDPP Act, 1984.

2) Mydukur U/G PS, Cr.No.319/2020, Dated: 31.08.2020, U/Sec 353, 307, 379 (Theft of National Property), 109, 120 (B) r/w 34 IPC., Sec 20 (1) C (ii)(iii)(iv) (vi) (x), Sec 20 (d) (i) (a) (b) (2) (a) (b), Sec 29 (2) (b) of AP Forest (Amendment) Act, 2016 and Rule 3 of AP Sandal Wood and Red Sanders Wood Transit Rules, 1969.

AVSS,J & VS,J W.P.No.7647 of 2022

3) Vontimitta PS, Cr.No. 172/2020, Dated: 17.12.2020, U/Sec 379 (Theft of National Property), 307, 353, 109, 120 (B) r/w 34 IPC., Sec 20 (1) C (ii)(iii) (iv) (vi) (x), Sec 20 (d) (i) (a) (b) (ii) (a) (b), Sec 29 (2) (b) (4) (a) (i)

(ii) (b) (i) (ii) of AP Forest (Amendment) Act, 2016, Sec 44 (2) of AP Forest Act, 1967, Rule 3 of AP Sandal Wood and Red Sanders Wood Transit Rules, 1969 and Sec 3 of PDPP Act, 1984.

4) Khajipet PS, Cr.No.82/2021, Dated: 08.03.2021, U/Sec 147, 379 (Theft of National Property), 307 r/w 149 IPC., Sec 20 (1) C (ii) (iii) (iv) (vi)

(x), Sec 20 (d) (i) (a) (b) (ii) (a) (b), Sec 29 (2) (b) of AP Forest (Amendment) Act, 2016, Rule 3 of AP Sandal Wood and Red Sanders Wood Transit Rules, 1969, Sec 3 of PDPP Act, 1984 and Sec 51 of Wildlife Protection Act, 1972.

5) T.Sundupalli PS, Cr.No.92/2021, Dated: 01.06.2021, U/Sec 379 (Theft of National Property), 353, 307, 109, 120 (B) r/w 34 IPC., Sec 20 (1) C (ii) (iii) (iv) (vi) (x), Sec 20 (d) (i) (a) (b) (ii) (a) (b), Sec 29 (2) (b) (4) (a) (i)

(ii) (b) of AP Forest (Amendment) Act, 2016, Sec 44 (ii) of AP Forest Act, 1967, Rule 3 of AP Red Sandal Wood and Red Sanders Wood Transit Rules, 1969 and Sec 3 of PDPP Act, 1984.

5. Proddatur Rural PS, Cr.No.504/2021, Dated: 27.09.2021, U/Sec 147, 148, 379 (Theft of National Property), 307, 353, 120 (B), 109 r/w 149 IPC., Sec 20 (1) C(ii) (iii) (iv) (vi) (x), Sec 20 (d) (i) (a) (b) (ii) (a) (b), Sec 29 (2) (b) (4) (a) (i) (ii) (b) of AP Forest (Amendment) Act, 2016 (AP Act No. 15 of 2016), Rule 3 of AP Red Sandal Wood and Red Sanders Wood Transit Rules, 1969, Sec 3 of PDPP Act, 1984 and Sec 51 of Wildlife Protection Act, 1972.

Whereas it is further noticed from the following way that though the Police."

3. After the order of detention, passed by the 2nd respondent,

the State Government approved the detention order vide

G.O.Rt.No.20, General Administration (SC.I) Department,

dated 05.01.2022. Thereafter, the matter was referred to the

Advisory Board and on 09.02.2022, the Advisory Board sent

its report. Subsequently, the State Government vide

G.O.Rt.No.278, General Administration (SC.I) Department,

dated 15.02.2022, in exercise of the powers conferred under

Section 12(1) read with Section 13 of the Act, confirmed the

order of detention passed by the Collector and District

Magistrate, while observing that the order of detention would

remain in operation for twelve months from the date of

detention i.e., 29.12.2021.

4. Assailing the validity and the legal sustainability of the

said order of detention and the order of confirmation passed AVSS,J & VS,J W.P.No.7647 of 2022

by the 1st and 2nd respondents, the present Writ Petition has

been filed.

5. Counter affidavit deposed, by the Collector and District

Magistrate-2nd respondent is filed, denying the allegations

made in the affidavit filed in support of the Writ Petition and

in the direction of justifying the impugned action.

6. Heard Sri S.Dilip Jaya Ram, learned counsel for the

petitioner and Sri P.Sudhakar Reddy, learned Additional

Advocate General, for respondents, apart from perusing the

entire material available on record.

7. learned counsel for the petitioner contends that the order

of detention as confirmed by the 1st respondent-State

Government is highly illegal, arbitrary, unreasonable and

violative of Articles 14 and 21 of the Constitution of India,

besides being opposed to the very spirit and object of the Act.

In elaboration, it is further contended by the learned counsel

that, by giving complete go-by to the mandatory requirements

of law, as per Section 3 of the Act, the 2nd respondent

authority passed the order of detention. It is also the

submission of the learned counsel that the recording of

satisfaction by the detaining authority in accordance with the

above said provision of law is mandatory and indispensable.

In support of his submissions and contentions, learned

counsel for the petitioner places reliance on the Judgment of

the Hon'ble Supreme Court in the case of Champion AVSS,J & VS,J W.P.No.7647 of 2022

R.Sangma vs. State of Meghalaya and another1 and the

Judgment of the Coordinate Bench of this Court in

W.P.No.1803 of 2021, dated 27.04.2021.

8. Strongly resisting the Writ Petition, Sri P.Sudhakar Reddy,

learned Additional Advocate General, contends that there is

absolutely no illegality nor there exists any procedural

infirmity in the impugned action and in the absence of the

same, the present Writ Petition, filed under Article 226 of the

Constitution of India, is not maintainable and the petitioner is

not entitled for any relief. It is further submitted by the

learned Additional Advocate General that the 2nd respondent-

Collector and District Magistrate, only after recording

complete satisfaction with regard to the likelihood of the

detenu being released on bail and possibility of the detenu to

indulge in similar cases has ordered detention of the detenu

and that there is no contravention of any of the provision of

the statute.

9. The information available before this Court discloses in

clear and vivid terms, that out of six crimes registered against

the petitioner's husband/detenu, in crime Nos.319 of 2020

and 504 of 2021, the husband of the petitioner was released

on bail, in crime Nos.19 of 2020 and 172 of 2020, the learned

Magistrate remanded the petitioner's husband, with regard to

crime Nos.82 of 2021, 92 of 2021, the police have not shown

(2015) 16 SCC 253 AVSS,J & VS,J W.P.No.7647 of 2022

any arrest so far, nor the alleged detenu is produced before

any Court of law in connection with the said crimes.

10. The State of Andhra Pradesh with an intention to provide

for preventive detention of Dangerous Activities of Boot-

Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic

offenders and Land Grabbers for preventing their dangerous

activities prejudicial to the maintenance of public order

enacted the Act.

11. In the instant case, by categorizing the husband of the

petitioner herein as "Goonda", the order of detention came to

be passed by the 2nd respondent. According to Clause (g) of

Section 2 of the Act, 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 XVI or Chapter XVII or

Chapter XXII of the Indian Penal Code. Section 3 of the

legislation confers on the authorities power to make order,

detaining certain persons. Section 3 of the Act reads as

follows:

""3. Power to make order detaining certain persons :- (1) The Government may, if satisfied with respect to any boot-legger, dacoit, drug-offender, goonda, immoral traffic offender or land-grabber that with a view to preventing 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.

(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Government are satisfied that it is necessary so to do, they may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section(1), exercise the powers conferred by the said sub- section:

AVSS,J & VS,J W.P.No.7647 of 2022

Provided that the period specified in the order made by the Government under this sub-section shall not in the first instance, exceed three months, but the Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.

(3) When any order is made under this section by an officer mentioned in sub-section(2), he 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 twelve days after the making thereof, unless, in the meantime, it has been approved by the Government."

12. It is very much evident from a reading of the above

provision of law that before branding an individual as

Goonda, recording of the satisfaction is mandatory on the

part of the detaining authority. In the case on hand, the 2nd

respondent in the order of detention recorded the satisfaction

in the following manner:

"Having examined all facts and circumstances of the case and upon application of my mind and after going through the material produced before me and having being satisfied that there is every likelihood of him being granted / released on ball in the other cases also, I am satisfied to invoke the provisions under A.P.Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 as the said Shaik Chand Basha @ Simpathi Chand Basha, S/o Mahaboob Basha comes under the definition of Goonda U/s 2 (g) of the Act as all his activities are dangerous to rare and pristine forest wealth and his activities are habitual in nature, which are prejudicial to the maintenance of public order and it is necessary to prevent him from further indulging in illicit felling Red Sander trees by entering into Reserve Forest, dressing them into logs, theft, illegal transportation to other States to gain huge illegal money, smuggling of Red Sander wood logs, assault and attempt murder of the officials of abetment of the above offences."

13. Since the provisions of the enactment and the order of

detention completely affect the personal liberty, the

authorities are required to be highly careful and cautious and

such power conferred by the statute cannot be exercised in a

routine and mechanical manner. In this context, it would be

highly essential to refer to the judgment of the Coordinate

Bench of this Court in W.P.No.1803 of 2021. In the said AVSS,J & VS,J W.P.No.7647 of 2022

judgment, while considering similar issues, the Coordinate

Bench at para Nos.8 to 10 held as follows:

"8. Sri Syed Khader Mastan, learned Government Pleader attached to the office of Additional Advocate General, appearing for respondents, mainly submits that in page 10 para 2 of the order of detention, the authority has recorded his satisfaction and only on being satisfied ordered the detention. It would be appropriate to extract that portion of the order of detention, which is as under:

"Having examined all facts and circumstances of the case and upon application of my mind and after going through the material produced before me and having being satisfied that there is every likelihood of him being granted/released on bail in the other cases also, I am satisfied to invoke the provisions under A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986.

9. On a reading of the above, does not, in our view, show that there was any apprehension or any possibility of the detenu being released on bail. As observed by the Hon'ble Apex Court in Kamarunnisa's v. Union of India' even in a case of a person in custody, a detention order can be validly 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. From a reading of the above, it is very much evident, the detaining authority was aware the detenu was in custody as on the date of passing of the order, but, there is no material placed before him to show that there is every likelihood of he being released on bail. Merely saying that there is every likelihood of detenu being granted/released on bail, as he was released in other cases may not satisfy the test as laid down in Champion R. Sangma's case (1 supra) and Kamarunnisa's case (3 supra). Though the petitioner has been released in 7 out of 10 cases, no material has been placed on record to show that he has made any application seeking release on bail in the following three cases:

(i) Crime No.55 of 2020 of T.Sundupalli P.S.;

(ii) Crime No.150 of 2020 of Sidhout P.S.; and

(iii)Crime No.122 of 2020 of Vontimitta P.S.

10. Therefore, the apprehension that the detenu would be released on ball and that he would Indulge in similar activities cannot be made the basis to pass the order of detention. The materials on record further show that the petitioner was arrested in Crime No.150 of 2020 of Sidhout P.S. and Crime No.122 of 2020 of Vontimitta P.S. on 22.10.2020 and no arrest has been shown in Crime No.55 of 2020 of T.Sundupalli P.S., though shown as an accused and the detention order came to be passed on 17.11.2020. Though the detenu is in prison from 22.10.2020, no application seeking release on bail has been filed. Hence, the apprehension of the detaining authority that there is every likelihood of he being released on bail cannot be accepted and as urged by the counsel for the petitioner, the satisfaction of his release was not rightly recorded in the order of detention."

14. The satisfaction recorded in the above referred case and

the satisfaction recorded in the present detention order are in

parameteria. It is also pertinent to refer to the judgment of the AVSS,J & VS,J W.P.No.7647 of 2022

Hon'ble Apex Court in the case of Champion R.Sangma vs.

State of Meghalaya and another and in the said judgment

the Hon'ble Apex Court at para Nos.13 and 14 held as follows:

"13. In view of the above, it was for the respondents to satisfy the Court as to whether the triple requirements, as postulated above, stand satisfied in the present case. We find that the respondents have miserably failed to fulfil this requirement.

14. In the instant case, though the detention order and even the grounds of detention record the factum of the appellant's being in custody, no satisfaction has been recorded by the detaining authority that there was reliable material before the authority on the basis of which it would have reasons to believe that there was real possibility of his release on bail. It is not mentioned as to whether any bail application was even moved by the appellant or not, what to take out likely fate of such an application. The order is also conspicuously silent on the aspect as to whether there was any probability of indulging in activity if the appellant would be released on bail. On the contrary, we are amazed that the averments made in the counter- affidavit which are self-defeating and clinching the issue against the respondent at p. 171 Para 3 of the paper book which reads as under: "3. I state that the submission of the learned Senior Counsel for the petitioner that the detaining authority was satisfied that there was some likelihood of the petitioner being released on bail and thereafter the detention order was passed to prevent such contingency is completely unfounded. In fact the detention order was passed on 29-1-2013 and from the detention order it no way reflects that with a view to pre-empt the petitioner from getting the bail in the pending 8 criminal cases that the detention order 2013 was passed. In fact after noticing the fact that the petitioner was arrested by the police in various unlawful activities and crimes like extortion, dacoity, kidnapping, murder and robbery with deadly weapons for ransom. for disruption of public order, etc. and being satisfied that if the petitioner is allowed to remain at large he would act in a manner prejudicial to the security of the State and shall be a constant threat to peace that the detention order was passed under Section 3(1) of the Meghalaya Preventive Detention Act. 1995."

15. In the considered opinion of this Court, the law laid down

in the aforesaid judgments of the Hon'ble Apex Court and this

Court are squarely applicable to the facts of the present case.

16. For the aforesaid reasons, Writ Petition is allowed, setting

aside the order of detention passed by the 2nd respondent

vide proceedings Ref:C1/ 656/M/2021, dated 27.12.2021, as

confirmed by the State Government vide G.O.Rt.No.278,

General Administration (SC.I) Department, dated 15.02.2022

and consequently it is ordered that the detenu, namely AVSS,J & VS,J W.P.No.7647 of 2022

Mr.Shaik Chand Basha @ Simpathi Chand Basha,

S/o.Mahaboob Basha, shall be set at liberty forthwith, if he is

not required in any other cases and if there are no other