Andhra Pradesh High Court - Amravati

K Padmavathi vs The State Of Andhra Pradesh on 4 November, 2022

        HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
                          AND
       HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

                     Writ Petition No.17210 of 2022

ORDER: (Per Hon'ble Sri Justice U. Durga Prasad Rao)

      In this writ petition filed under Article 226 of the Constitution of

India, the petitioner challenges the detention of her son Kalluri Sandeep

Kumar, S/o. Appa Rao as per the order of detention in REV-

CSECOPDL(PRC)/1/2022-D.TH(C7) dated 01.04.2022 passed by 2nd

respondent-District Collector & District Magistrate, Chittoor and

confirmed by the 1st respondent as per G.O.Rt.No.998, General

Administration (SC-1) Department dated 30.05.2022 and prays to direct

the respondent authorities to set the detenue at liberty forthwith.

2. By the proceedings dated 01.04.2022, the 2nd respondent passed the

detention order under Section 3(1) and (2) of the Andhra Pradesh

Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug

Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act,

1986 (1 of 1986) [for short, „the Act 1 of 1986‟] treating the detenue as

„Goonda‟ under Section 2(g) of the Act 1 of 1986 on the subjective

satisfaction that the detenue is acting in a manner prejudicial to the

maintenance of public order since he has been habitually involved in

criminal activities with other associates and even though a number of

cases were registered against him, he did not change his attitude and

increasing his activities day to day and extending them to Andhra Pradesh

and Telangana States. Following cases in which the detenue was

involved were taken as ground for ordering his detention.

     S.No.                  Cr. No. & Sec. of Law                      Date of offence
       1     Cr. No.669/21 u/s 457, 380 IPC of Tirupati East     Btn. 25/26.09.21
       2     Cr. No.555/21 u/s 457, 380 IPC of Tiruchanur PS     Btn. 25.09.21 & 01.10.2021
       3     Cr. No.645/21 u/s 457, 380 IPC of MR Palle PS       Btn. 02.10.2021 &
                                                                  04.10.2021
      4      Cr. No.657/21 u/s 457, 380 IPC of MR Palle PS       Btn. 07.10.21 & 13.10.21
      5      Cr. No.906/21 u/s 457, 380 IPC of Alipiri PS        11/12.10.21
      6      Cr. No.913/21 u/s 457, 380 IPC of Alipiri PS        15/16.10.21
      7      Cr. No.583/21 u/s 457, 380 IPC of Tiruchanur PS     16/17.10.21
      8      Cr. No.925/21 u/s 457, 380 IPC of Alipiri PS        Btn. 17.10.21 &
                                                                  20.10.2021
      9      Cr. No.248/21 u/s 457, 380 IPC of Srikalahasti II   Btn. 15.11.21 & 25.11.21
             Town PS
      10     Cr. No.1017/21 u/s 457, 380 IPC of Alipiri PS       Btn. 03.12.21 & 07.12.21
      11     Cr. No.17/22 u/s 457, 380 IPC of MR Palle PS        12.01.2022

In the grounds of detention, it is stated that the detenue was

habitually involved in the cases of house breaking and committing theft

in several places in Andhra Pradesh and Telangana and he was involved

in eight cases in different police stations in Telangana State also.

3. The 2nd respondent filed counter and opposed the writ petition.

4. Heard arguments of Sri D.Purna Chandra Reddy, learned counsel

for the petitioner and Special Government Pleader representing learned

Advocate General for respondents.

5. Though several grounds were raised against the detention order, it

is mainly argued on behalf of the petitioner that the detenue was granted

conditional bail in almost all of the eleven cases which were taken as a

ground for passing detention order which indicates that the jurisdictional

court on a prima facie opinion that the detenue did not commit offence

granted him bail in all the cases. In that view, the duty is cast on the

Sponsoring Authority to place before the 2nd respondent apart from the

materials relating to the 11 crimes, also the bail applications and bail

orders for consideration and satisfaction of the detaining authority.

Learned counsel would strenuously argue that only on coming to the

satisfaction that while on bail there is a likelihood of detenue‟s repeating

similar offences and acting prejudicial to the maintenance of public order,

the detaining authority shall pass the detention order. Further, it is the

duty of the detaining authority to furnish along with grounds of detention

the materials considered by him which include the bail applications and

bail orders. All these materials have to be furnished to the detenue to

make an effective representation to the Advisory Board or the

Government. Learned counsel would lament that in this case the said

procedure has been grossly infracted by the authorities, inasmuch as in

the detention order there is no mention about forwarding of the bail

applications and bail orders to the 2nd respondent and his considering

them and arriving at a opinion. Due to non-furnishing of the bail

applications and bail orders, the detenue was denuded of valuable

opportunity to make an effective representation before the Advisory

Board. Due to such violation, the learned counsel would emphasise, the

detention order became illegal. He placed reliance on Gattu Kavita v.

State of Telangana 1 and Vasanthu Sumalatha v. State of Andhra

Pradesh, rep. by its Chief Secretary, Hyderabad2.

6. Learned Special Government Pleader while opposing the writ

petition argued that merely the detenue was granted bail in the cases

which were taken as a ground for ordering detention cannot be a ground

to claim immunity or insulation from detention. On the other hand, there

is a possibility of misusing the freedom granted under the bail and to

commit habitual offences. The detaining authority having considering the

2016 SCC Online Hyd 718 = (2017) 1 ALD (Cri) 224

2015 SCC Online Hyd 790 = (2016) 1 ALT 738 (DB

involvement of the detenue habitually in similar offences, made a logical

prognosis of his future behavior. Therefore, the detenue was on bail in

almost all the 11 cases is of no consequence. He argued that bail orders

were furnished to the detenue. He alternatively argued that non-

furnishing of bail orders to the detenue will not render the detention

illegal. He placed reliance on Sunila Jain v. Union of India3. He would

further argue that the activities of the detenue were very much prejudicial

to the maintenance of public order as the detenue along with some others

committed series of house breaking and theft of valuable gold articles and

other things. Hence, his detention is justified.

7. The point for consideration is whether there are merits in the writ

petition to allow?

8. Point: We gave our anxious consideration to the above respective

arguments. The primary argument of the petitioner is about the

procedural violation. True is that as submitted by learned Special

Government Pleader, a person on bail is neither immuned nor insulated

from preventive detention. Still, the detaining authority upon considering

the material and other facts can form an opinion that the chances of

MANU/SC/8053/2006 = (2006) 3 SCC 321

misuse of bail by such person and his repeating similar offences cannot

be ignored, order for preventive detention. There is no demur on this

aspect. However, the crux of the petitioner‟s argument is not about the

lack of power of the detaining authority to order preventive detention

against a person who is on bail. On the other hand, the argument of the

learned counsel for petitioner is that in almost all the 11 crimes which

were considered for ordering detention, the detenue was granted bail and

the Sponsoring Authority have not placed the materials relating to bail

applications and bail orders before the detaining authority for his

consideration. Had such information was brought to the notice of the

latter, perhaps considering that conditional bails were granted in favour of

detenue and that his movement was already restricted by the judicial

orders, the detaining authority might not order preventive detention.

We find considerable force in the above argument. Preventive

detention under Article 22 of the Constitution of India is an exception to

Article 21. It being not a punitive detention, the law cautioned the

detaining authority to scrupulously follow the safeguards and procedures

before ordering preventive detention. One of such procedural safeguards

is that if the detenue was already granted conditional bails in the crimes

which were taken as a ground for ordering preventive detention, it will be

the solemn duty of the Sponsoring Authority to bring the said fact to the

notice of the Detaining Authority by placing before it the bail

applications and bail orders for its consideration. Failure on the part of

the Sponsoring Authority to do so and also the failure on the part of the

Detaining Authority to consider aforesaid material on being placed before

it, render the detention per se illegal. The law on this aspect is no more

res integra. In Vasanthu Sumalatha (2 supra), a Division Bench of the

common High Court of Andhra Pradesh has observed thus:

"43. If the bail order, which is a vital material, is not considered, the satisfaction of the detaining authority itself would be impaired. (V. Muragesh v. Collector and District Magistrate, Chittoor (2013 Crl.L.J.

585); Durgam Subramanyam v. Government of A.P. (2013 (4) ALT 243 (D.B); State of U.P v. Kamal Kishore Saini ((1988) 1 SCC 287; M. Ahamedkutty vs Union Of India 1990 SCR (1) 209, 1990 SCC (2) 1. Non- placing and non-consideration of material, as vital as the bail order, vitiates the subjective decision of the detaining authority, and the Court cannot attempt to assess in what manner, and to what extent, consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority. (Rushikesh Tanaji Bhoite v. State of Maharashtra (2012) 2 SCC 72). Failure of the sponsoring authority to place the conditional orders, granting anticipatory bail/bail, before the detaining authority is fatal as it is a vital material which would have

weighed with the detaining authority at the time of passing the detention order. [Durgam Subramanyam‟s case (supra).

54. Neither the order nor the grounds of detention refer either to the conditional or the unconditional orders of bail granted in favour of the detenus. As noted hereinabove failure of the detaining authority to consider the orders granting conditional bail would vitiate the orders of detention. ..xxx..."

9. It should be noted that in the above decision, the judgment in

Sunila Jain‟s case (3 supra) relied upon by the learned Special

Government Pleader was distinguished on facts. In Sunila Jain, copy of

the order granting bail and order of remand has been furnished to the

detenue. In that context, it was observed by the Hon‟ble Apex Court that

non-furnishing of a copy of the application of bail cannot be said to be a

ground and that all the documents placed before the detaining authority

are not required to be supplied and only relevant and vital documents are

required to be supplied. The said judgment was distinguished in

Vasanthu Sumalatha case (2 supra) as follows:

"53. Unlike in Sunila Jain (supra) where a copy of bail application, for an offence which was bailable, was not furnished and a copy of the order granting bail and the order of the remand were furnished to the detenu, in the present case the orders granting conditional bail were neither considered by the detaining authority nor were copies thereof furnished to

the detenu. The conditional orders of bail restricted the movement of the detenus and required them to appear before the officer concerned periodically. If these conditional orders of bail had been brought to his notice, it may well have resulted in the detaining authority arriving at the subjective satisfaction that the detention of the detenus were unnecessary. Reliance placed by the Learned Advocate-General on Sunila Jain (supra) is, therefore, misplaced."

In Gattu Kavitha case (1 supra), another Division Bench of the

common High Court of Telangana & A.P. expressed similar view as

follows:

"14. From the ratio in the decision, it is clear that non-supply of conditional bail orders by the sponsoring authority to the detaining authority and failure to refer to the same in the order of detention and grounds of detention, and non- consideration of such vital and relevant material, invalidates the detention order. The law laid down in Vasanthu Sumalatha v. State of Andhra Pradesh, 2016 (2) ALD (Crl.) 156, which was recently affirmed by us in W.P.No.4805/2016 to the effect that failure to supply documents relied upon by the detaining authority would result in denying an opportunity to make an effective representation as guaranteed under Article 22(5) of the Constitution of India, would squarely apply to the instant case."

10. In the light of the above jurisprudence, when facts of the instant

case are perused, in the counter filed by the 2nd respondent, it has been

specifically admitted and mentioned that in the above 11 cases which

were taken for consideration, the detenue was granted bail in almost all

the cases. However, when we perused the detention order and grounds of

the detention, there was no reference about granting of conditional bails

in the concerned crimes. Thus, it is obvious that the Sponsoring

Authority has not placed the relevant material i.e., bail applications and

bail orders before the Detaining Authority and there was no effective

consideration of this fact. Further, along with the counter the 2nd

respondent enclosed the material papers from page 58 to 174 which were

said to be furnished to the detenue after detention. However, these