Cheemparthi Shaheen vs The Government Of Andhra Pradesh,
2023 Latest Caselaw 1914 AP

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

                      WRIT PETITION No.36499 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 Shaik Simpathi @ Cheemparthi Fakruddin @

Goresab Fakruddin @ Pongodu @ Bongodu, S/o.Fakruvalli @ Sabun @

Subhan, in order of detention vide Ref:C1/70/M/2022, dt.07.09.2022

passed by the 2nd respondent-The Collector & District Magistrate,

Kadapa, YSR Kadapa District as confirmed by the 1st respondent-the

State as per G.O.Rt.No.2306, General Administration (SC.I)

Department, dated 01.11.2022 and prays to direct the respondent

authorities to set the detenue at liberty forthwith.

2. The Collector and District Magistrate, Kadapa, YSR Kadapa

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')

and passed the impugned order of detention. The said order of

detention came to be confirmed by the Government vide

G.O.Rt.No.2306, General Administration (SC.I) Department,

01.11.2022.

3. Heard Sri S.Dilip Jayaram, 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

representation made by the detenue to the 1st respondent was not

forwarded to the Advisory Board along with the case file. The detaining

authority has passed the preventive detention order without

application of mind.

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.15670 of 2022,

dated 23.09.2022. 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

Khader Mastan, learned counsel attached to the office of Additional

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

orders impugned in the Writ Petition do not warrants any interference

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

7. A perusal of the order dated 23.09.2022 passed by this Court in

W.P.No.15670 of 2022 clearly demonstrates that this court discussed

the law laid down in Gattu Kavitha v. State of Telangana1 case and

Rushikesh Thanaji Bhoite v. State of Maharastra2 case and three

judge Bench judgment of Apex Court in Rekha v. State of Tamilnadu3

case, in which 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 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. After considering above, as all those issues that have been raised

in the Writ Petition, were similar to the allegation raised in the

aforesaid Writ Petition i.e., W.P.No.30649 of 2022 this Court allowed

the said Writ Petition and granted relief in favour of the petitioner in

the said Writ Petition. In this case also this Court notices that as on

date of the detention order he was in custody. He was granted bail on

30.08.2022 by the II Additional District Judge, Kadapa in Crime No.166

of 2022. He was produced on P.T. warrant in two other cases. These

aspects are not considered in the detention order, more so, in a manner

1 2017(1) ALD Crl.224 2 (2012) 2 SCC 72 3 2011 (5) SCC 244

required under law. The compelling need and the triple test necessary

is also not spelt out. The counter attempts to explain what is not

mentioned in the order. The representation, dated 07.10.2022 was also

not placed before the Advisory Board. It was summarily rejected by the

Government in G.O.Rt.No.2469, dated 18.11.2022. No explanation for

the delay from 07.10.2022 till 18.11.2022 is given.

9. It is no doubt true that some of the offences against the

detenue/accused are serious, but the fact remains that in matters of

personal liberty and preventive detention even one flaw or mistake can

vitiate the entire order as per the settled law. Even one day's

wrong/illegal detention is too long.

10. 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 the order of detention do not have

any material to either substantiate or justify the said allegation that

the detenue is a 'Goonda'.

11. 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:C1/70/M/2022, dt.07.09.2022 as

confirmed by the State Government vide G.O.Rt.No.2306, General

Administration (SC.I) Department, dated 01.11.2022 and consequently

the detenue namely Shaik Simpathi @ Cheemparthi Fakruddin @

Goresab Fakruddin @ Pongodu @ Bongodu, S/o.Fakruvalli @ Sabun @

Subhan, is directed to be released forthwith by the respondents if the

detenue is not required in any other cases.

12. 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.36499 of 2022

DATE: 13.04.2023

krs