Andhra Pradesh High Court - Amravati

Smt. Chanumuru Jayamma vs The Collector And District ... 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.34777 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 by name Chanumuru Venkatesh,

S/o.Subbaramaiah @ Subbarayudu, aged 48 years, in order of

detention vide Ref:C1/63/M/2022, dt.03.08.2022 passed by the 1st

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

District, as confirmed by the 2nd respondent-the State as per

G.O.Rt.No.2028, General Administration (SC.I) Department, dated

28.09.2022 and prays to direct the respondent authorities to set

the detenue at liberty forthwith.

2. The Collector and District Magistrate, SPSR Nellore 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.

3. Heard Sri P.Nagendra Reddy, 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. It is submitted by the learned counsel for the petitioner that

the detenue was the accused in seven crimes, he got bail in two

cases and did not violate any condition of bail; that the

apprehension of the 1st respondent is that if the detenue is

released, he may continue to commit the offences in future is

baseless; that no reasons were assigned in the preventive detention

order as to how the detenue will commit offence, when was in jail.

Learned counsel further submits that the issue raised 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.

5. 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

warrant any interference of this Court under Article 226 of the

Constitution of India.

6. In the present case, the detenue was said to have

committed seven crimes of various police stations in YSR Kadapa

District. Out of seven cases, in two cases alone, the detenue was

released on bail and in remaining cases, the detenue was not even

granted bail. While detenue was in jail he was produced on other

cases on P.T. warrant. The impugned detention order is passed by

the 1st respondent basing on the apprehension that if the detenue

is released on bail, he may commit offence of red-sandal

smuggling, for which there is no basis and no material is placed to

that effect. Further no basis to castigate the detenue that if he is

allowed to be free, he will instigate and lure innocent youth in the

village and turn the youth as habitual offenders by using them in

red-sandal smuggling. More so, there is no basis to contend the

detenue is a master mind behind the crimes alleged to have been

charged against the detenue. Hence, the detention order was

passed without application of mind.

7. It is very much lucid from a reading of section 3 of the Act

and the provision of law that before branding an individual as a

'Goonda', the recording of satisfaction is mandatory and

indispensable on the part of the detaining authority. The 1st

Respondent-Collector and District Magistrate, in the instant case,

did not make any endeavor to record such a satisfaction before

passing an order of detention except referring to the alleged

involvement of the detenue in various crimes.

8. Undoubtedly, the laudable object in enacting the present

legislation viz., 'Act 1 of 1986' is to ensure the maintenance of

peace and tranquility in the society. In order to pass an order of

detention, the District Collector-cum-District Magistrate as well

the State must adhere to the provisions of law and the competent

authorities, before passing an order are required to examine the

issue with lot of care, caution and circumspection.

9. Recently, the Hon'ble Supreme Court in Pramod Singla v.

Union of India and Others1, held at Para No.48 as follows :

48. As has been mentioned above, preventive detention

laws in India are a colonial legacy, and as such, are

extremely powerful laws that have the ability to confer

arbitrary power to the state. In such a circumstance,

where there is a possibility of an unfettered discretion of

power by the Government, this Court must analyze cases

arising from such laws with extreme caution and

excruciating detail, to ensure that there are checks and

balances on the power of the Government. Every

procedural rigidity, must be followed in entirety by the

Government in cases of preventive detention, and

every lapse in procedure must give rise to a benefit to

the case of the detenue. The Courts, in circumstances of

preventive detention, are conferred with the duty that

has been given the utmost importance by the Constitution,

2023 SCC Online SC 374

which is the protection of individual and civil liberties.

This act of protecting civil liberties, is not just the saving

of rights of individuals in person and the society at large,

but is also an act of preserving our Constitutional ethos,

which is a product of a series of struggles against the

arbitrary power of the British state.

10. In this context, it would be appropriate to refer the

Judgment of the Hon'ble Supreme Court in Champion R.Sangma v.

State of Meghalaya2, wherein, the Hon'ble Supreme Court while

dealing with the provisions of the Preventive detention, at

paragraph Nos.13 and 14 held as follows:

13.In view of the above, it was for the respondents to satisfy the Court as to whether the triple requirements, as postulated above, stand satisfied in the present case. We find that the respondents have miserably failed to fulfil this requirement.

14. In the instant case, though the detention order and even the grounds of detention record the factum of the appellant's being in custody, no satisfaction has been recorded by the detaining authority that there was reliable material before the authority on the basis of which it would have reasons to believe that there was real possibility of his release on bail. It is not mentioned as to whether any bail application was even moved by the

(2015) 16 Supreme Court Cases 253

appellant or not, what to take out likely fate of such an application. The order is also conspicuously silent on the aspect as to whether there was any probability of indulging in activity if the appellant would be released on bail............

11. By considering the above factual matrix and legal

propositions, this Court is of the opinion that the detenue will not

fall under the category of Section 2(g) of the Act and that the

order of detention is passed basing on any material to either

substantiate or justify the said allegation that the detenue is a

'Goonda'. It is clear that the penal laws are sufficient to deal

with the situation mentioned in the order of detention and that

invoking of provisions of preventive detention is completely

unnecessary as it is settled by this Court in several judgments.

12. For the above mentioned reasons as recorded, this Writ

Petition is allowed setting aside the order of detention passed by

the 1st respondent vide proceedings in Ref:C1/63/M/2022,