Order: (Per Hon'Ble Sri Justice ... vs Kanchikacherla P.S
2023 Latest Caselaw 3934 AP

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
                                 AND
  THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO


              WRIT PETITION No.18053 of 2023

 ORDER: (Per Hon'ble Sri Justice Tarlada Rajasekhar Rao)

       The writ of habeas corpus is filed by the father of the

 detenu for detaining his son namely Gaddala Kranthi Kumar

 and to set him at liberty by quashing the detention order dated

 16.05.2023     and    consequential    confirmation       orders   in

 G.O.Rt.No.1040, dated 26.05.2023 and G.O.Rt.No.1367, dated

 15.07.2023 passed under Section 3(1) and (2) of the Andhra

 Pradesh Prevention of Dangerous Activities of Bootleggers,

 Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders,

 Land Grabbers Act, 1986 (hereinafter referred to as the Act).

 2.    The order of detention vide proceedings dated 16.05.2023

 was passed by the 1st respondent on the ground that the

detenu is habitual offender and committing offences under the

provisions of Narcotic Drugs and Psychotropic substances Act,

1985 time and again and several cases were booked against

him u/s 3(2) of Andhra Pradesh Prevention of Dangerous

Activities of Bootleggers, Dacoits, Drug Offenders, Goondas,

Immoral Traffic Offenders & Land Grabbers Act, 1986, Gaddala

Kranthi Kumar S/o. Yesu Babu was arrested in four (4) NDPS

cases and also involved in two (2) theft cases and one (1) bodily

offence case which are offences punishable under Chapters XVI

& XVII of Indian Penal Code. The individual has been indulging

in the acts qualified to be defined as "Drug Offender" under

section 2(f) and "Goonda" under Section 2(g) of Andhra

Pradesh, Prevention of Dangerous Activities of Bootleggers,

Dacoits, Drug offenders, Goondas, Immoral Traffic Offenders &

Land Grabbers Act, 1986 which are prejudicial to the public

order as defined in section (2) of the said Act. The individual

was involved in Crime Numbers: 356/2021, dt.23.06.2021;

590/2021, dt.20.10.2021; 291/2022, dt.01.08.2022; 48/2020,

dt.19.01.2020; 1014/2020, dt.16.11.2020; 235/2022,

dt.07.06.2022. The Assistant Commissioner of Police,

Nandigama division also submitted that the detenue is

hazardous in nature as well as possessing and selling of Ganja

in and around Kanchikacherla which may cause huge damage

to the public health, public peace and tranquility and

prejudicial to public order.

3. Assailing the detention order dated 16.05.2023, the

present Writ Petition came to be filed to set aside /quash the

said detention order on the following grounds:

i. The 1st respondent erroneously detained son of the

Petitioner under the Act 1 of 1986 on the ground that he is

habitual offender and he has committed 7 crimes viz., (1)

Crime No.356/2021 of Kanchikacherla P.S., (2) Crime

No.590/2021 of Kanchikacherla P.S., (3) Crime

No.245/2022 of Kanchikacherla P.S., (4) Crime

No.291/2022 of Kanchikacherla P.S., (5) Crime No.48/2020

of Kanchikacherla P.S., (6) Crime No.1014/2021 of

Kanchikacherla P.S., and (7) Crime No.235/2022 of

Kanchikacherla P.S.

ii. The 1st Respondent ought to have seen that if any person

involved in commission of any offence after releasing on

bail, such involvement in the subsequent offence amounts

to violation of the condition of the bail order and concerned

police is entitled to seek cancellation of bail. Therefore, the

Police did not file any Petition to cancel the bail.

iii. The sponsoring authority did not furnish the information to

the detaining authority stating that he is involved in total 7

cases. But the sponsoring authority did not furnish

information that the Detenue was arrested in above crime

No.245/2022 of Kanchikacherla P.S. and he was granted

bail. But the sponsoring authority did not furnish

information whether the Police arrested the Detenu in other

cases or not. But the sponsoring authority did not say

whether the detenue was granted bail or not in all other

cases. The sponsoring authority also did not furnish when

the Detenue was granted bail and on what dates he was

released from jail. In support of the granting of bail is

concerned, the sponsoring authority did not enclose the bail

orders along with other material papers and therefore, the

detaining authority did not furnish the bail orders to the

Detenue. Therefore, because of non-furnishing the proper

information, the detaining authority did not take effective

decision.

iv. It is not the case of the sponsoring authority or detaining

authority that they invoked the normal laws for preventing

the Detenue from committing the offences and it is also not

the case of the detaining authority that after his release on

bail in earlier cases, he is repeating the commission of

offences.

v. The 1st Respondent erred in holding that the detenu is

acting prejudicial to the public order and he has no respect

towards law and creating panic in the minds of the general

public. In support of the said conclusion there is no

material before the 1st Respondent and therefore the said

conclusion is imaginary.

vi. The 1st Respondent erroneously satisfied on the basis of the

material placed by the sponsoring authority that the detenu

falls under the category of drug offender and Goonda and

accordingly, issued the impugned detention order with a

view to prevent the detenue from acting in any manner

prejudicial to maintain the public order.

4. Heard learned counsel for the petitioner and learned

Government Pleader appearing for respondents.

5. We have carefully considered the rival contentions. Before

going into respective contentions, we may refer to the settled

law on preventive detention.

6. Our Country is governed by rule of law. Every citizen is

guaranteed that he /she should not be punished without there

being a proper trial and without there being a verdict by

competent Court of law. An order of detention is not punitive,

nor creative, nor reformative, but only a preventive action. It is

also distinct from criminal proceedings, as the object is not

punitive but only preventive. The power vested with the

authority to order preventive detention is only an exception and

it would be restored to by following scrupulously the procedure

which safeguards the fundamental right guaranteed under

Articles 21 and 22 of the Constitution of India. As against the

preventive detention order, the fundamental right guaranteed

to a citizen must prevail. Such valuable rights can only be

deprived in accordance to the procedure established by law.

While considering the challenge to the detention order, the

Court must apply its mind to ascertain whether the detaining

authority has scrupulously followed the procedure or not and

to ascertain whether there are any infraction of law or

procedural lapses which ultimately result in violation of the

fundamental rights guaranteed.

7. In Shalini Soni v. Union of India1, Mustakmiya Jabbarmiya

Shaik v. M.M. Mehta, Commissioner of Police and others2 and

Jagan Nath Biswas v. State of W.B.3 the Hon'ble Supreme Court

quashed the detention order holding that the incidents themselves

look rather serious but also stale, having regard to the long gap

between the occurrences and the order of detention. One should

have expected some proximity in time to provide a rational nexus

between the incidents relied on and the satisfaction arrived

1 AIR 1981 SC 431 2 (1995) 3 SCC 237 = 1975 (9) SCC 115

AIR 1975 Supreme Court 1516

at." This Court has repeatedly pointed out that unexplained and

long delay will be fatal to the plea of subjective satisfaction.

8. In Mohd. Sahabuddin v. Distt. Magistrate, 24 Parganas4, the

Hon'ble Supeme Court quashed the order of preventive detention

on the sole ground that the order of preventive detention was

passed nearly seven months after the criminal incident. Subjective

satisfaction has no proximate rational nexus with prejudicial act.

9. The alleged 1st incident took place on 19.01.2020 and the

last incident took place on 07.06.2022. The last incident which

occurred on 07.06.2022 and the detention order was passed on

16.05.2023 i.e. about 11 months prior to passing of the detention

order, is certainly a stale incident which is not proximate in time

when the detention order dated 16.05.2023 was passed and there

was no live link between the alleged prejudicial activity and the

purpose of detention and the invocation of the provisions of the

NDPS Act against the petitioner after a long delay of about eleven

months was neither warranted nor justified.

10. In the said context we may refer to the judgment of the

Apex Court in Pushpak Mukherjee v. State of West Bengal5. It is

settled law that if the detention order is questioned on more

than one ground that a Court accepts one ground of challenge

4 1975 (4) SCC 114 5 (1969) 1 SCC 10

for quashing the detention order irrespective of the failure to

satisfy the other grounds, the detention order would be

quashed.

11. Accordingly, the detention order dated 16.05.2023 and

consequential confirmation orders in G.O.Rt.No.1040, dated

26.05.2023 and G.O.Rt.No.1367, dated 15.07.2023, passed by

the 1st respondent are liable to be set aide and they are set

aside and the respondents are hereby directed to set the detenu

at liberty forthwith if he is not required in any other case.

12. Accordingly, the Writ Petitions is allowed. There shall be

no order as to cost.

As a sequel, interlocutory applications, if any pending in

this Writ Petition shall stand closed.

_______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO

Date: 31.08.2023 Harin

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY AND THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO

W.P.No. 18053 OF 2023

Date: 31.08.2023