Syed Shabeena Jehra vs The State Of Andhra Pradesh
2023 Latest Caselaw 1908 AP

             THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                                AND
                 THE HON'BLE SRI JUSTICE V.SRINIVAS

                    WRIT PETITION No.39889 of 2022


ORDER: (per Hon'ble Sri Justice V.Srinivas)

       In this writ petition, the petitioner is challenging the order of

detention of her husband Syed Altaf Hussain Hussaini @ Saheb @ Althaf

@ Syed Althaf Hussain, S/o.Mahammad Saheb John Hussainee, in order

of detention vide Ref.C1/89/M/2022, dt.09.11.2022 passed by the 2nd

respondent-The Collector & District Magistrate, Y.S.R.District, Kadapa

and confirmed by the 1st respondent-the State as per G.O.Rt.No.62,

General Administration (SC.I) Department, dated 09.01.2023 and prays

to direct the respondent authorities to set the detenue at liberty

forthwith.

2. The Collector and District Magistrate, Nandyal District, while

categorizing the detenue as "Goonda" within the definition of Section

2(g) of the A.P. Prevention of Dangerous Activities of Bootleggers,

Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land

Grabbers Act, 1986 (for short, 'the Act 1 of 1986') passed the impugned

order of detention. The said order of detention came to be confirmed

by the Government vide G.O.Rt.No.62, General Administration (SC.I)

Department, 09.01.2023.

3. Heard Sri D.Krishna Murthy, learned counsel for the petitioner

and Sri Syed Khader Mastan, learned counsel attached to the office of

learned Additional Advocate General for the respondents.

4. Learned counsel for the petitioner submits that the offenses

alleged against the detenue can be dealt with under the ordinary law

and they do not involve any disturbance of public order and the same

cannot be used for issuance of preventive detention order under

Section 3 of the Act 1 of 1986. He further submits that the petitioner

is not served with any order of approval of Government till date,

thereby, it vitiates the entire order of preventive detention. He relied

upon judgments of Apex Court reported in Banka Sneha Sheela v.

State of Telangana and others1, State of West Bengal v. M.R.Mondal

and Another2 and Rekha v. State of Tamilnadu3.

5. It is brought to the notice of this Court by the learned counsel

for the writ petitioner that the issue in the present Writ Petition is

squarely covered by the order of this Court in W.P.No.5469 of 2022,

dated 11.07.2022. A copy of the said order is placed on record.

6. On the other hand, reiterating the averments made in the

counter affidavit filed by the respondents, it is submitted by Sri Syed

1 2021 (9) SCC 415 2 2001 (8) SCC 443 3 2011 (5) SCC 244

Khader Mastan, learned counsel attached to the office of Additional

Advocate General that having regard to the gravity of the offenses, the

orders impugned in the Writ Petition do not warrants any interference

of this Court under Article 226 of the Constitution of India. He further

submits that as the ordinary law failed to prevent the detenue from

further involving in the activities which are prejudicial to the

maintenance of the public order as on verification of record the

detenue committed six offences in a short period and there is live link

between activities of the detenue and offences and the impugned

order passed the test of proximity and approved orders passed in within

the period of 12 days and same is communicated to the detenue.

7. A perusal of the order dated 11.07.2022 passed by this Court in

W.P.No.5469 of 2022 clearly demonstrates that this court after

discussed the law laid down in Gattu Kavitha v. State of Telangana4

case and Rushikesh Thanaji Bhoite v. State of Maharastra5 case and

three judge Bench judgment of Apex Court in Rekha v. State of

Tamilnadu6 case, in which the principle followed and the Apex Court

held as follows:

"The detaining authority was not even aware whether a bail application of the accused was pending when he passed the

4 2017(1) ALD Crl.224 5 (2012) 2 SCC 72 6 2011 (5) SCC 244

detention order, rather the detaining authority passed the detention order under the impression that no bail application of the accused was pending, but in similar cases bail had been granted by the courts. We have already stated above that no details of alleged similar cases have been given. Hence, the detention order in question cannot be sustained".

8. It's worth noting that the Apex Court has laid down certain

guidelines for the use of preventive detention laws, such as the

requirement for a judicial review of the detention within a specified

period of time. In this case no approval within 12 days as per Section

3(3) of the Act is obtained and served on the detenue. Although it is

stated in the counter that approval copy is served and copies of the

proof of service are filed, in reality no such document is enclosed with

the counter. Despite the clear averment in the grounds and assertion

in the oral submission, the respondents would not file any document

to show that section 3(3) of the Act is complied with. The case law

cited by the petitioner in Banka Sneha Shila case (referred to supra)

is also considered and what is stated in Para 14/15 of the reported

judgment applies clearly to the facts of the present case. The cases

registered are alleged offences under section 420 IPC and section 5 of

A.P. Protection of Depositors of Financial Establishment Act, 1999. Why

the ordinary law of the land or the AP Act of 1999 is not enough to deal

with the alleged offence is not spelt out in the order. As held in Para

14/15 of the said judgment, these offences may be in the realm of law

and order, but are not offences that affect the public order or

community at large. These guidelines aim to ensure that preventive

detention laws are used in a fair and just manner and to prevent abuses

of power by the Government.

9. Having regard to the above, in the present case also the

detenue will not fall under the category of Section 2(g) of the Act and

that this Court could not find that for passing the order of detention

the authority had any material to either substantiate or justify the

said allegation that the detenue is a 'Goonda'.

10. For the reasons recorded, this Writ Petition is allowed in terms

thereof, setting aside the order of detention passed by the 2 nd

respondent vide proceedings in Ref.C1/89/M/2022, dt.09.11.2022 as

confirmed by the State Government vide G.O.Rt.No.62, General

Administration (SC.I) Department, dated 09.01.2023 and consequently

the detenue namely Syed Altaf Hussain Hussaini @ Saheb @ Althaf @

Syed Althaf Hussain, S/o.Mahammad Saheb John Hussainee, is

directed to be released forthwith by the respondents if the detenue is

not required in any other cases.

11. Miscellaneous petitions pending if any, stand closed. No order as

to costs.

___________________________ JUSTICE D.V.S.S.SOMAYAJULU

_________________ JUSTICE V.SRINIVAS Date:13.04.2023 Issue C.C. today B/o.

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THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU AND THE HON'BLE SRI JUSTICE V.SRINIVAS

WRIT PETITION No.39889 of 2022

DATE: 13.04.2023

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