Shaik Seerajunnisa vs The State Of Andhra Pradesh,
2023 Latest Caselaw 2455 AP

Citation : 2023 Latest Caselaw 2455 AP
Judgement Date : 26 April, 2023

Andhra Pradesh High Court - Amravati

Shaik Seerajunnisa vs The State Of Andhra Pradesh, on 26 April, 2023

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

                  WRIT PETITION No.36821 of 2022


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

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

detention of her son Shaik Asif, S/o. Ismail @ Kuppuswamy, aged 23

years, in order of detention vide Rc.C1((Magl)/106/2022 dated

27.05.2022 passed by the 2nd respondent-The Collector & District

Magistrate, SPSR Nellore District as confirmed by the 1st respondent-

the State as per G.O.Rt.No.1614, General Administration (SC.I)

Department, dated 05.08.2022 and prays to direct the respondent

authorities to set the detenue at liberty forthwith.

2. The petitioner herein, who is mother of detenue, in her

petition stated that detention orders were passed against her son, on

the ground that his son is "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). It is further

stated in the petition that in the order passed by the 2 nd respondent

held that the activities of the detenue are dangerous and prejudicial

to the maintenance of public order, apart from disturbing the peace,

tranquility, social harmony/order in the society, thereby, the 2 nd

respondent-Collector and District Magistrate is said to have passed

the impugned order of detention dated 27.05.2022 and the same was

confirmed by the 1st respondent-State.

3. Heard Sri D.Purna Chandra Reddy, learned counsel for the

petitioner and Sri Syed Khader Mastan, learned counsel attached to

the office of the learned Additional Advocate General for the

respondents.

4. Learned counsel for the petitioner submits that the detaining

authority passed the detention order, while the detenue is in judicial

custody without recording its satisfaction about the necessity of

passing such order, which is against the rulings of the Hon'ble

Supreme Court. He further submits that detaining authority did not

supply the material relied on by them within the stipulated period of

five days and the subsequent developments such as approval and

confirmation of the order of preventive detention were not passed,

thereby, it vitiates the entire order of preventive detention.

5. Learned counsel for the petitioner further submits that judicial

offences 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 relied upon the

judgment of the Apex Court reported in S.M.D.Kiran Pasha v.

Government of Andhra Pradesh1, wherein at para No.29, it was held

as follows:

" .......Thus Section 10 makes it mandatory for the Government to place the ground on which the order has been made and the representation, if any made by the person affected by the order and in the case where the order has been made by an officer also the report by officer under sub-section (3) of Section 3. This section prescribes a period of three weeks from the date of detention irrespective of whether the person continues to be in detention or not. Therefore, even though the detenu was released, if the detention order was in force, his case was required to be placed before the Advisory Board. This being a mandatory provision and having not been complied with the detention order even if otherwise it was in force, cannot be said to have been in force after three weeks. Under Article 22 of the Constitution of India a person cannot be kept in detention beyond three months without referring his case to an Advisory Board under the appropriate law. In either case the appellant's case having not been referred to an Advisory Board the detention order cannot be said to have remained in force after the statutory period. It is, therefore, not necessary to go into the validity or otherwise of the grounds of detention".

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

for the petitioner that the issue in the present writ petition is

squarely covered by the order of this Court in W.P.No.30649 of 2022,

dated 06.03.2023.

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

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

learned counsel for the respondents that there is absolutely no

illegality nor there exists any procedural infirmity in the impugned

(1990) 1 Supreme Court Cases 328

action and in the absence of the same, the present writ petition filed

under Article 226 of the Constitution of India, is not maintainable. He

further submits that having regard to the gravity of the offences, the

orders impugned in the writ petition do not warrant any interference

of this Court.

7. Admittedly, as on the date of passing the order of detention

i.e. 27.05.2022, detenue is in judicial custody. The need to pass an

order of detention despite this is not at all mentioned in the

detention order. The fact that in some of the cases, bail was granted

to the detenue is not denied, either yet this important aspect was

not considered in the impugned detention order. This by itself

vitiates the order of detention. As held by the Apex Court, the

further satisfaction is required to be recorded in such circumstances

is also conspicuously absent in the detention order. These two

factors vitiate the entire order of detention.

8. A perusal of the order dated 06.03.2023 passed by this Court in

W.P.No.30649 of 2022 clearly demonstrates that this court discussed

the law laid down in Gattu Kavitha v. State of Telangana 2 ,

Rushikesh Thanaji Bhoite v. State of Maharastra3 and three judge

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

Bench judgment of the Apex Court in Rekha v. State of Tamilnadu4

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".

After considering the above, this Court allowed W.P.No.30649 of 2022

granting relief in favour of the petitioner.

9. Following the said order, in the instant case also, the detenue

will not fall under the category of Section 2(g) of the Act since this

Court could not find in the order of detention that there is any

material to either substantiate or justify the allegation that the

detenue is a 'Goonda', we deem it appropriate to allow the present

writ petition.

10. Accordingly, this Writ Petition is allowed setting aside the

order of detention passed by the 2nd respondent vide proceedings in

Rc.C1((Magl)/106/2022 dated 27.05.2022 as confirmed by the State

Government vide G.O.Rt.No.1614, General Administration (SC.I)