Eede Jayalakshmi vs State Of Andhra Pradesh
2022 Latest Caselaw 7282 AP

            IN THE HIGH COURT OF ANDHRA PRADESH

                                    ****

W.P. No.16434 of 2022 Between:

Eede Jayalakshmi, Hindu, Female, Aged 29 years, Occ: House wife W/o.Eede Nagaraju Occ; Tractor Driver, R/o. Uppallameta Jangareddygudem (M), West Godavari District .... Petitioner

AND

The State of Andhra Pradesh Represented by its Chief Secretary to Government (General Administration (SC-1) Department, A.P. Secretariat Velagapudi, Amaravathi, Guntur District and four others .... Respondents

DATE OF JUDGMENT PRONOUNCED: 22.09.2022

SUBMITTED FOR APPROVAL:

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

1. Whether Reporters of Local Newspapers may be allowed to see the judgment? Yes / No

2. Whether the copies of judgment may be marked to Law Reporters / Journals? Yes / No

3. Whether His Lordship wish to see the fair copy of the Judgment? Yes / No

_________________________ U. DURGA PRASAD RAO, J

__________________________ B.V.L.N.CHAKRAVARTHI, J

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

+ W.P. No.16434 of 2022

% 22.09.2022

Between:

Eede Jayalakshmi, Hindu, Female, Aged 29 years, Occ: House wife W/o.Eede Nagaraju Occ; Tractor Driver, R/o. Uppallameta Jangareddygudem (M), West Godavari District .... Petitioner

AND

The State of Andhra Pradesh Represented by its Chief Secretary to Government (General Administration (SC-1) Department, A.P. Secretariat Velagapudi, Amaravathi, Guntur District and four others .... Respondents

! Counsel for Petitioner : Sri B.P.Raju

^ Counsel for Respondents : Special Government Pleader representing Advocate General for the respondents

< Gist:

> Head Note:

? Cases referred:

1) AIR 1991 SC 2261 = MANU/SC/0491/1991

2) MANU/AP/0145/1997

3) (2012) 2 SCC 386 = MANU/SC/0014/2012

4) 2014 (4) ALT 22 = 2014 CrLJ 3341

5) 2022 LiveLaw (SC) 600

6) 1975 (3) SCC 198

7) 2005 (2) ALT 244 = 2005 (1) APLJ 328

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO AND

HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

Writ Petition No.16434 OF 2022

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

This Habeas Corpus petition is filed by the petitioner under

Article 226 of the Constitution of India for release of her husband

Eede Naga Raju, S/o Subrahmanyam, resident of Uppalameta,

Jagareddygudem (M), West Godavari District who was detained as

per the Detention order in Roc.No.C1/e-1882535/2022 dated

26.03.2022 passed by 2nd respondent under Section 3(2) r/w 3(1) 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‟] and later confirmed by the 1st respondent as per the

proceedings in G.O.Rt.No.913, dated 18.05.2022.

2. The detention order dated 26.03.2022 was passed by 2nd

respondent on the ground that the detenue was involved in

following four cases and thus he is a „Bootlegger‟ within the

meaning of Section 2(b) of the Act 1 of 1986 and his activities are

prejudicial to the maintenance of public health and public order.

1 Cr.No.204/2022, dt: 10.03.2022 u/s. 7(B) r/w 8(B) of AP Prohibition Amendment Act, 2020 of S.E.B. Station, Jangareddygudem 2 Cr.No.832/2021, dt: 18.11.2021 u/s. 7(B) r/w 8(B) of AP Prohibition Amendment Act, 2020 of S.E.B Station, Jangareddygudem 3 Cr.No.317/2021, dt: 10.05.2021 u/s. 7(B) r/w 8(B) of AP Prohibition Amendment Act 2020 of SEB Station, Jangareddygudem 4 Cr.No.414/2020, dt:20.07.2020 u/s. 34(a) of A.P. Excise Amendment Act, 2020 of SEB Station, Jangareddygudem.

3. The detention order is challenged in this writ petition on the

grounds that the detenue was on bail in all the crimes which fact

was not taken into consideration while detaining him and further,

those cases can be effectively dealt with under the general law and

his activities are not prejudicial to the maintenance of public health

and public order. It is further contended that there was no

proximity or nexus between the 4 cases to order detention.

4. The 2nd respondent filed counter and opposed the writ

petition.

5. Heard arguments of Sri B. P. Raju, learned counsel for the

petitioner and Special Government Pleader representing learned

Advocate General for respondents.

6. While severely fulminating the detention order, learned

counsel for the petitioner Sri B. P. Raju, firstly argued that in all

the 4 crimes which were taken as a ground for detention, he was

granted bail even prior to the 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, duty is cast on the Sponsoring Authority to place before the

2nd respondent not only the material relating to the aforesaid 4

crimes but also the bail applications and bail orders for the

consideration and satisfaction of the Detaining Authority to the

effect that while at large on bail, there is a likelihood of detenue‟s

repeating similar offences and acting prejudicial to the maintenance

of public order. Learned counsel would strenuously argue that on

such satisfaction only the Detaining Authority shall pass detention

order by giving cogent reasons. Further, it is the duty of the

Detaining Authority to furnish the grounds of the detention and

also the materials which were considered for passing the detention

order. Such materials invariably include the bail applications filed

by the detenue and bail orders passed thereon. All these materials

have to be furnished in order to enable the detenue to make an

effective representation to the Advisory Board or the Government.

Learned counsel would lament that in this case the procedure has

been flagrantly violated 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 there is no

further mention in the detention order about consideration of those

bail orders. Most importantly, detenue was not furnished with the

bail applications and bail orders and thereby he was denuded of

valuable opportunity to make an effective representation before the

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

emphasize, the detention order became illegal. He placed reliance

on (1) Abdul Sathar Ibrabim Manik v. Union of India1 and (2)

K. Ramamohan Reddy v. Chief Secretary to Government of

Andhra Pradesh2.

AIR 1991 SC 2261 = MANU/SC/0491/1991

MANU/AP/0145/1997

7. Secondly, he argued that the crimes in which the detenue

was involved and which were taken as a ground for detention are

all not grievous offences and they can be dealt with under the

general laws. Further there is no nexus or proximity among the 4

cases relied upon by the Detaining Authority to order detention.

Therefore, the activities of the detenue cannot be said to be

prejudicial to the maintenance of the public order and as such the

detention order is illegal and unjust. He would argue that when

general laws are sufficient to deal with the offences, the preventive

detention shall not be resorted to by the State. On this aspect he

placed reliance on Munagala Yadamma V. State of Andhra

Pradesh3and Sheela Bai v. State of Andhra Pradesh4 and order

in W.P.No.5469 of 2022, dt.11.07.2022 of Division Bench of High

Court of Andhra Pradesh in Chittipothula Chinna Muthyalu v.

The State of Andhra Pradesh.

8. Per contra, learned Special Government Pleader while

supporting the impugned detention order would argue that Section-

(2012) 2 SCC 386 = MANU/SC/0014/2012

2014 (4) ALT 22 = 2014 CrLJ 3341

3 of Act 1 of 1986 speaks of „satisfaction‟ of the Detaining

Authority to pass a detention order. When the statute left an action

dependent upon the opinion of the authority concerned by using the

expression as „is satisfied‟ or „is of the opinion‟ or „if it has reason

to believe‟ or „if it consider necessary‟, then the opinion of such

authority is conclusive, provided the procedure prescribed by the

Act or Rules for formation of the opinion was duly followed and

the authority acted bonafide and the authority himself formed the

opinion. In such case the judicial review will be constricted

primarily to know whether procedural fairness was scrupulously

followed. He placed reliance on Amarendra Kumar Pandey v.

Union of India.5 He would submit that in this case the procedure

was meticulously followed and basing on the materials placed, the

2nd respondent formed the opinion. Hence the detention order is

sustainable.

(a) Nextly he argued that merely a person is on bail is not a

ground to claim immunity from the preventive detention.

Conversely, the possibility of misusing the freedom granted under

bail will be more in the case of habitual offenders. Therefore, in

2022 LiveLaw (SC) 600

this case having regard to the past history of the detenue in

involving in the repeated crimes of similar nature, the Detaining

Authority made a logical prognosis of his future behaviour.

Therefore, that the detenue was on bail in the above cases is of no

consequence. He argued that bail orders were furnished to the

detenue. He placed reliance on Haradhan Shah v. The State of

West Bengal6.

(b) Nextly he argued that the activities of the detenue are

very much prejudicial to the maintenance of public order because

in all the above 4 crimes, the detenue was dealing with ID liquor

and the chemical examiner on testing the samples opined that the

contraband seized was ID liquor which was unfit for human

consumption and injurious to health. When the activities of

detenue create grave or widespread danger to life or public health,

it can be construed that he acted in a manner prejudicial to the

maintenance of public order and preventive detention can be

ordered. On this aspect he placed reliance on Doddi Sharada v.

1975(3) SCC 198

Collector and District Magistrate, Hyderabad7. He thus prayed

to dismiss the writ petition.

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

writ petition to allow?

10. Point: We gave our anxious consideration to above

respective arguments. The first argument of learned counsel for

the petitioner is about the procedural violation. As rightly argued

by learned Special Government Pleader, a person on bail is neither

immuned nor insulated from preventive detention. The Detaining

Authority upon considering the materials and other facts can still

form an opinion that there is a likelihood of misuse of the bail by

such person to repeat similar offences and order for preventive

detention. In Haradhan Shah's case (6 supra) relied upon by

Special Government Pleader, the Apex Court considering its

various other decisions enumerated the principles in those

decisions as follows:

2005 (2) ALT 244 = 2005(1) APLJ 328

"34. xxxx The principles which can be broadly stated are these. First, merely because a detenu is liable to be tried in a criminal Court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Criminal Procedure Code would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Criminal Procedure Code and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances."

11. There is no demur about the discretionary power of the

Detaining Authority in this regard. However, the crux of the

argument of the petitioner is not about the lack of power of

Detaining Authority to order preventive detention against a person

who is on bail. On the other hand, the argument of learned counsel

for the petitioner is that in all the 4 cases which were considered

for ordering preventive detention, bail was granted to detenue even

prior to the detention order. As such, the duty is cast on the

Sponsoring Authority to place before the 2nd respondent, the FIRs

in the 4 cases as well as the bail applications and bail orders also

for consideration. Upon considering the entire material the 2nd

respondent has to pass an order. We find force in the above

argument. In our considered view, there is an avowed purpose in

placing the bail applications and bail orders along with the FIRs

and other relevant materials before the Detaining Authority. For

instance, a Sponsoring Authority may place the record relating to

certain number of criminal cases in which the detenue is involved

for consideration of the Detaining Authority. In all those cases, if

the detenue was already granted bails, such bail record also needs

to be placed before the Detaining Authority to know the grounds

on which bail was granted to the detenue by the concerned

jurisdictional Courts. Bail might be granted on several grounds

i.e., on account of his severe illness or non-filing of charge-sheet

within the time stipulated under Section 167 Cr.P.C. or charge-

sheet was filed and his further detention was unwarranted or he

placed cogent material to establish his alibi which was prima facie

strong to consider the bail application. Therefore, considering the

grounds on which the detenue was granted bail, particularly the

ground of alibi plea, the Detaining Authority has to formulate his

opinion whether preventive detention is essential or not. If the alibi

plea was found to be prima facie strong but though not final at that

stage and bails were granted holding that said plea has to be tested

on the anvil of trial, still the Detaining Authority must carefully

form his opinion as to whether preventive detention can be ordered

on the strength of such doubtful cases placed before him and give

cogent reasons if he orders preventive detention. When the

Authority considers such material, it is imperative for the Authority

to furnish the copies of the entire material including the bail

applications and bail orders in order to enable the detenue to make

an effective representation before the Advisory Board or the

Government. The law on this aspect is no more res integra. In

Abdul Sathar's case (1 supra) the Apex Court on verification of

several decisions, drawn certain conclusions of which conclusion

No.6 is thus:

"6. In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu."

In K. Ramamohan Reddy's case (2 supra) also a division

bench of High Court of Andhra Pradesh has observed thus:

"5. The law is well settled that all the relevant material containing in the grounds, form the basis or order of detention and therefore the said material should have been considered by 2nd respondent, the detaining authority, and the detenu should be supplied with the same, failure forms vice of non-application of mind by the detaining authority. Undoubtedly, the bail application, the order granting the bail and also orders issuing NBW should be taken into consideration by the detaining authority. It is important to notice that order granting bail to the detenu might indicate that there was, prima facie, no case against the detenu, in which he was involved. Hence it is a favourable material to the detenu, which has to be considered by the detaining authority before the comes to the subjective satisfaction."

12. Thus the above jurisprudence expounds the principle that if

the detenue was already enlarged on bail in the cases in which he

was involved and which were placed before the Detaining

Authority seeking preventive detention, the sponsoring authority

shall also place the bail applications and bail orders along with the

record and the Detaining Authority shall invariably consider the

same for forming opinion. Further, the copies of the bail

applications and bail orders shall also be furnished to the detenue

for making an effective representation before the Advisory Board

or the Government.

13. In the instant case, in para-5 of the affidavit, the petitioner

has clearly mentioned that in all the 4 crimes the detenue was on

bail even prior to the detention order and the said fact is not

disputed in the counter. On the other hand the material filed along

with the counter of the 2nd respondent contains copies of the

charge-sheets in all the 4 cases and in those charge-sheets it was

clearly mentioned that the accused (detenue) was released on bail.

Then a perusal of the detention order and grounds of detention

would show that the Detaining Authority has not taken into

consideration the fact that the detenue was on bail in all those cases

and no opinion has been expressed as to in view of bail being

granted in all the cases, whether his preventive detention was

essential or not. No such discussion was made in the order.

Therefore, we are constrained to hold that the order impugned was

made without proper application of the mind to the relevant facts.

Added to it, the respondents have not produced any material to

show that the copies of bail applications and bail orders in the

above cases were furnished to the detenue under his

acknowledgement so as to enable him to make effective

representation to the Advisory Board or Government. Thus there is

a serious procedural violation. Thereby the detention of the

detenue, in our considered view is unjust and illegal and he

deserves to be released. Therefore, it is not necessary for us to

discuss about the other point of argument raised by the learned

counsel for the petitioner.

14. Accordingly, the Writ Petition is allowed and the detention

order in Roc.No.C1/e-1882535/2022 dated 26.03.2022 passed by

the 2nd respondent / The District Collector and District Magistrate,

Eluru, West Godavari District is hereby set aside and the detenue

namely Eede Nagaraju, S/o Subrahmanyam is directed to be

released forthwith by the respondents if the detenue is not required

in any other cases. No costs.

As a sequel, interlocutory applications pending, if any, shall

stand closed.

__________________________ U. DURGA PRASAD RAO, J

___________________________ B.V.L.N. CHAKRAVARTHI, J 22.09.2022 krk