Shaik Shakila vs The State Of Ap
2023 Latest Caselaw 2602 AP

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

                    WRIT PETITION No.36822 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 by name Shaik Khaleel @ Abbu, S/o.Shaik

Shamshuddin, in order of detention vide Rc.C1(Magl)/118/2022,

dt.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.1581, General Administration (SC.I)

Department, dated 03.08.2022 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 D.Purna Chandra 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 granted bail in all the three cases, which were taken

as grounds for passing the preventive detention; that the sponsoring

authority deliberately suppressed the vital information; that the

material was not supplied to the detenue by the detaining authority

within the prescribed time limit; that the subject developments such

as approval and confirmation of the order of preventive detention

were not informed to the detenue and he relied upon judgments of

Apex Court reported between Icchu Devi Choraria v. Union of India1

and S.M.D.Kiran Pasha v. Government of Andhra Pradesh2.

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 warrants any

interference of this Court under Article 226 of the Constitution of

India.

6. Since 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 and the said writ petition is allowed by granting relief to

the petitioner therein.

7. Furthermore, the fact that the detenue was granted bail in all

the cases is not denied, yet this important aspect was not

(1980) 4 SCC 531

(1990) 1 SCC 328

considered in the impugned detention order. That itself vitiates the

order of detention. As could be seen from the record placed before

this Court and on perusal of the material, it is very much clear that

detention order was passed on 27.05.2022 and as per law the

detaining authority has to supply the order and grounds within five

days, as could be seen from the proceedings within the prescribed

time those material is not supplied to the detenue.

8. It is also asserted that three weeks after detention order

approval and confirmation orders were passed, the same were said to

be not informed to the detenue family nor to the detenue, which is

not denied by the respondents. It is also found when penal laws are

sufficient to deal with the situation the need for invoking the

provisions of preventive detention is not explained by the

respondents.

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

Union of India and Others3, 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

2023 SCC Online SC 374

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, 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 the present case also it is found there is a lapse of

procedure and that as per the Pramod Singla case (referred to supra)

every lapse in procedure must give rise to a benefit to the case of the

detenue, and that here is such lapse found while ordering detention

and also confirming the same, resulting in the finding that the order

itself is not good as per law. Further the detenue will not fall under

the category of Section 2(g) of the Act. The order of preventive

detention as verified from the record is based on stale and non-

existing grounds and that no proximity or live link is found between

any of the grounds, which were taken as a basis for passing the order

of preventive detention by the respondents.

11. This Court could not find that the order of detention is based

on any material to either substantiate or justify the said allegation

that the detenue is a 'Goonda'. No doubt the offences alleged

against the detenue are grave in nature, but the detenue was

already granted bail in all the three crimes, which were based to

pass the preventive detention order. 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 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

2nd respondent vide proceedings in Rc.C1(Magl)/118/2022,

dt.27.05.2022 as confirmed by the State Government vide

G.O.Rt.No.1581, General Administration (SC.I) Department, dated

03.08.2022 and consequently the detenue namely Shaik Khaleel @

Abbu, S/o.Shaik Shamshuddin, is directed to be released forthwith

by the respondents if the detenue is not required in any other cases.

13. Miscellaneous petitions pending if any, stand closed. No order as to costs.

___________________________ JUSTICE D.V.S.S.SOMAYAJULU

_________________ JUSTICE V.SRINIVAS

Date: 28.04.2023 Note: Issue C.C. today B/o.

Krs

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

THE HON'BLE SRI JUSTICE V.SRINIVAS

WRIT PETITION No.36822 of 2022

DATE: 28.04.2023

krs