Andhra Pradesh High Court - Amravati

Mandla Sulochana vs The State Of Andhra Pradesh on 23 September, 2022

        HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
                          AND

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

                    Writ Petition No.15670 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 Mandla

Srinivasulu, S/o. Sambaiah, resident of Diguvametta Village, Giddalur

Mandal, Prakasam District who was detained as per the Detention order

in Proc.No.22/2022/C1 dated 20.04.2022 passed by 2 nd respondent under

Section 3(1) and (2) r/w 2(a) & (b) 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.1166 dated 20.06.2022.

2. The detention order dated 20.04.2022 was passed by 2nd respondent

on the ground that the detenue was involved in following six 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.46/2020, dt: 08.03.2020 u/s. 7(A) r/w 8(e) of AP Prohibition Amendment Act, 1995 of Special Enforcement Bureau Station, Giddalur 2 Cr.No.112/2020, dt: 05.07.2020 u/s. 7(A) r/w 8(e) of AP Prohibition Amendment Act, 1995 of Special Enforcement Bureau Station, Giddalur 3 Cr.No.154/2020, dt: 23.08.2020 u/s. 7(A) r/w 8(e) of AP Prohibition Amendment Act, 1995 of Special Enforcement Bureau Station, Giddalur 4 Cr.No.233/2020, dt: 23.10.2020 u/s. 7(A) r/w 8(e) of AP Prohibition Amendment Act, 1995 of Special Enforcement Bureau Station, Giddalur 5 Cr.No.240/2021, dt: 10.11.2021 u/s. 7(A) r/w 8(e) of AP Prohibition Amendment Act, 1995 and Section 34(e) of the A.P. Excise Act, 1968 of Special Enforcement Bureau Station, Giddalur 6 Cr.No.26/2022, dt: 13.01.2022 u/s. 7(A) r/w 8(e) of AP Prohibition Amendment Act, 1995 and Section 34(e) of the A.P. Excise Act, 1968 of Special Enforcement Bureau Station, Giddalur

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

grounds that the cases in which detenue is involved 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 contended that

there was no proximity or nexus between the six cases to order detention.

It is further pleaded that the order passed by 1 st respondent approving the

detention was not furnished to the detenue till date, which amounts to

violation of principles of natural justice. It is also contended that the

petitioner made a representation dated 05.05.2022 to the respondents 1 &

2 but no action has been taken on her representation. Unexplained and

inordinate delay in considering the representation of the detenue amounts

to violation of the fundamental rights and on that ground alone the

detention is liable to be set aside.

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

5. Heard arguments of Sri T.Sai Surya, learned counsel for the

petitioner and Special Government Pleader representing learned

Advocate General for respondents.

6. The main thrust of the argument of the learned counsel for

petitioner is that the petitioner made a representation dated 05.05.2022 to

the respondents 1 & 2 submitting that the detenue is innocent and never

committed any offences and false cases were booked against him and that

the cases booked against him are under the stage of investigation and no

charge sheet has been filed and therefore, the authorities may consider

those facts and release the detenue forthwith. Learned counsel would

submit that the said representation was neither considered nor rejected till

date and in the confirmation G.O.Rt.No.1166 dated 20.06.2022 also

nothing was mentioned about the representation of the petitioner for

release of the detenue. He would argue that the inordinate delay in

considering the representation would amount to violation of fundamental

right of the detenue and make the detention per se illegal. He placed

reliance on P.Aruna Kumari v. State of Andhra Pradesh1 and Rashid

Kapadia v. Medha Gadgil2. Nextly, he would submit that the six crimes

in which the detenue was involved and which were taken as a ground for

detention are not grievous offences and they can be dealt with under the

general laws. Therefore, the activities of the detenue cannot be said to be

prejudicial to the maintenance of the public order and such detention

order is illegal and unjust. When the general laws are sufficient to deal

with the offences, preventive detention shall not be resorted to by the

State. He thus prayed to allow the writ petition.

7. Per contra, learned Special Government Pleader while supporting

the impugned detention order would firstly argue that Section-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,

MANU/AP/0243/2020

MANU/SC/0599/2012 = (2012) 11 SCC 745

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 India3. 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.

Nextly, he argued that the activities of the detenue are very much

prejudicial to the maintenance of public order because in all the above 6

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 public

health and in extreme cases it may lead to death. 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

2022 LiveLaw (SC) 600

placed reliance on Doddi Sharada v. Collector and District

Magistrate, Hyderabad4. He thus prayed to dismiss the writ petition.

Then with regard to the allegation that the representation dated

05.05.2022 of the petitioner was not considered by the authorities,

learned Special Government Pleader argued that the said allegation is

totally wrong, inasmuch as, the Government on receiving the

representation dated 05.05.2022 called for the remarks of the District

Collector, Prakasam District / 2nd respondent vide Memo dated

17.05.2022 and accordingly, the Collector has furnished the detailed

remarks to the Government vide his letter dated 13.06.2022 and the same

was taken into consideration by the Government and as there were no

merits in it, the Government have passed the confirmation order vide

G.O.Rt.No.1166 dated 20.06.2022. Learned Special Government Pleader

would thus vehemently argue that it is preposterous to contend that the

representation of the petitioner was not considered at all. He thus prayed

to dismiss the writ petition.

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

petition to allow?

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

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

arguments of both the learned counsel. As already noted, the prime

argument of the petitioner is that her representation dated 05.05.2022 was

not considered by the authorities inasmuch as no communication was

made to her about the status of her representation as to whether the

representation was positively considered for setting aside the detention or

it was rejected. It is also the case of the petitioner that in the confirmation

order issued by the 1st respondent vide G.O.Rt.No.1166 dated 20.06.2022,

no reference was made about her representation and therefore, the

representation shall be deemed to be pending with the authorities. It is

her case that long, inordinate and unexplained delay in consideration of a

representation of the detenue would amount to violation of fundamental

right to liberty besides violation of principles of natural justice. The

respondent / Government have denied these allegations on the counter

plea that the representation, dated 05.05.2022, was well considered and

rejected.

10. In this context, we perused the pleadings and material papers filed

by either side. The material papers of the petitioner contain copy of the

representation dated 05.05.2022 made by her to the respondents 1 and 2

wherein she mentioned that her husband is innocent, he has no criminal

background and that he was falsely implicated in all the six cases which

were taken up for consideration to pass detention order. It is further

mentioned that all the cases are in the stage of investigation and so far,

charge sheet has not been filed in any one cases which fact cautions that it

is premature to conclude that the detenue is a habitual offender and

involved in number of cases. It is also mentioned that the contraband

allegedly seized from the detenue is whether unfit for human

consumption and its consumption leads to death can be decided only after

full-fledged trial in the respective cases. However, the 2nd respondent

should not have prejudged that the activities of the detenue were

prejudicial to the maintenance of the public order and they cause grave or

widespread danger to life or public health. She thus requested to consider

her representation and release the detenue.

11. Then, a perusal of the counter filed by 2nd respondent would show

that in para 8 of the counter, with regard to the above representation dated

05.05.2022, it is mentioned as follows:

"8. In reply to Para No.8 it is submitted that, it is not true that no action has been taken on the representation of the petitioner. After filing of the representation by the petitioner herein before the Government on 05.05.2022, the Government have called for remarks from the Collector & District Magistrate, Prakasam District, the 2nd Respondent herein vide Memo No.1706014/GAD01-100ACTS (PDAA) 23/2022-SC-1/A3 dated 17.05.2022, accordingly the Collector & District Magistrate, Prakasam has furnished the detailed remarks to the Government vide Lr.Rc.C1/25/2022 dated 13.06.2022. Hence, it is further submitted the delay for the disposal of the representation of the petitioner is only due to administrative reasons but not other reasons."

12. The above counter averments would thus reveal that admittedly the

respondents 1 & 2 have received the representation dated 05.05.2022 of

the petitioner, but the date of receipt of the representation is not

mentioned. Be that it may, according to the 1st respondent, the

representation of the petitioner was forwarded to 2nd respondent vide

Memo No.1706014/GAD01-100ACTS (PDAA) 23/2022-SC-1/A3 dated

17.05.2022 calling for his remarks and the Collector has sent his remarks

to the Government vide Lr.Rc.C1/25/2022 dated 13.06.2022. It should be

noted that though the learned Special Government Pleader argued that the

representation was considered and rejected by the Government, no

material is placed before this Court to that effect. As rightly argued by

the petitioner, in the G.O.Rt.No.1166, General Administration (SC.1)

Department dated 20.06.2022 issued by the 1 st respondent confirming the

detention, there is no slightest insinuation about the representation of the

petitioner and rejection of the same. Therefore, the obvious conclusion is

that the representation is still pending with the Government for

consideration from 05.05.2022 onwards. It leads to a further conclusion

that there is an enormous delay in considering her representation.

13. Law is no more res integra on the aspect of delay in consideration

of representation of the detenue.

It should be noted that Article 22(5) of the Constitutuion of India

creates a provision for making a representation by the detenue against his

detention order. Article 22(5) reads thus:

"(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."

14. Then the delay in consideration of the representation is concerned,

in P.Aruna Kumari (1 supra), the facts would indicate that after

detention order passed by the Collector and approved by the Government,

the detenue has made a representation on 05.05.2020 to the Chief

Secretary to the Government of A.P. seeking for release of the detenue,

but the same was neither considered nor rejected. It was in that context,

the learned Judges of the Division Bench have considered number of

decisions of the Hon'ble Apex Court which are as follows:

17. In Abdul Nasar Adam Ismail v. State of Maharashtra and others, MANU/SC/0292/2013 : 2013 (2) ALD (Crl.) 84 (SC) : (2013) 4 SCC 435, the Apex Court categorically affirmed that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal, though no time limit is prescribed for disposal of the representation, more so, having regard to the Article 22(5) of the Constitution of India, which mandates disposal of the representation at the earliest.

18. In Aslam Ahmed Zahire Ahmed Shaik v. Union of India, MANU/SC/0037/1989 : (1989) 3 SCC 277, the detenu handed over his representation to the Superintendent of Jail on 16.6.1998 for onward transmission to the Central Government. It was kept unattended for a period of seven days. As a result, it reached the Government 11 days after it was handed over to the Superintendent of Jail. In the absence of any reasonable explanation given by the Superintendent of Jail, the Apex Court set aside the detention of the detenu.

19. The Constitution Bench of the Apex Court in KM. Abdulla Kunhi v. Union of India, MANU/SC/0511/1991 : (1991) 1 SCC 476, held that any unexplained delay in disposal of the representation of the detenu would be a breach of constitutional imperative and will render the continued detention impermissible and illegal.

20. In Rashid Kapadia v. Medha Gadgil, MANU/SC/0599/2012: (2012) 11 SCC 745, the Apex Court was considering a case where a representation dated 6.8.2011 came to be rejected on 7.9.2011 i.e., after one

month. The unexplained delay of one month in considering representation of the detenu was held to be fatal and accordingly quashed the detention order on the said ground alone.

21. In Rajammal v. State of Tamil Nadu, MANU/SC/0789/1998: 1999 (1) ALD (Crl.) 194 (SC) : (1999) 1 SCC 417, the Three Judge Bench of the Apex Court quashed the detention order on the ground that the State failed to explain the six days delay in disposal of the representation of the petitioner therein. The Apex Court at Para 8 held as follows:

"The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned."

The Apex Court further observed that the delay of six days remains unexplained and such unexplained delay has vitiated further detention of the detenu. The corollary thereof is that further detention must necessarily be disallowed.

15. Following the above decisions, the Division Bench of our High

Court has held that the delay has vitiated the further detention and hence,

the same must necessarily be disallowed. Needless to emphasize the

above judgment applies with all its fours to the case on hand, as in the

instant case, the delay besides being enormous, remained unexplained.

Therefore, this ground alone further detention has vitiated and thereby the

detenue is entitled to be released. In that view, it is not necessary for us

to discuss about the other points of arguments raised by the learned

counsel for petitioner.

16. Accordingly, this Writ Petition is allowed and the detention order

in Proc.No.22/2022/C1 dated 20.04.2022 passed by 2nd respondent / The

Collector and District Magistrate, Prakasam District, Ongole, A.P. is