Andhra Pradesh High Court - Amravati

Thota Eswaraiah vs The Collector And District Magistrate on 28 December, 2023

Author: U.Durga Prasad Rao

Bench: U.Durga Prasad Rao

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
              (Special Original Jurisdiction)

  THURSDAY, THE TWENTY EIGHTH DAY OF DECEMBER
        TWO THOUSAND AND TWENTY THREE

                              PRESENT

 THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO

THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA

               WRIT PETITION NO: 29815 OF 2023

Between:
   1. THOTA ESWARAIAH, S/o.Linga Murthy, Aged about 56
      years, R/o.H.No.28/50, Harizanawada, Nunepally, Nandyal
      Town, Nandyal Mandal and District.
                                                   ...PETITIONER(S)
                         AND
   1. THE COLLECTOR AND DISTRICT MAGISTRATE, Nandyal
      District, Nandyal.
   2. The State of Andhra Pradesh, Rep. by its Principal Secretary,
      General Administration (SPL. (Law & Order) Department,
      Secretariat, Guntur District.
   3. The Superintendent Central Prison, Kadapa, YSR Kadapa
      District.
                                                   ...RESPONDENTS

The Court made the following order:

U.DURGA PRASAD RAO, J:

This writ petition one in the nature of Habeas Corpus is filed

under Article 226 of the Constitution of India seeking a direction to the

respondent to produce the son of the Petitioner i.e., Thota Jithendra @

Potti Jithu @ Jithu, S/o.Eswaraiah, before this Hon'ble Court and set

him at liberty by setting aside the Impugned Detention Order

No.RC.C1/1171/M/2023, dated 22.08.2023, issued by the

1st Respondent and the consequential confirmed orders in

G.O. Rt. No.1988, dated 10.10.2023 issued by the 2nd Respondent as

arbitrary and illegal and for a consequential direction.

2. The facts succinctly are thus:

(a) The 1st respondent by his order in RC.C1/1171/M/2023, dated

22.08.2023, ordered detention of one Thota Jithendra @ Potti Jithu @

Jithu, S/o.Eswaraiah, under Section 3(2) r/w 3(1) of The A.P.

Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug

Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers

Act, 1986 (for short, Act No.1 of 1986) on the ground that the detenu

was involved in the following cases:

Date of S.No. Cr.No. & Sec. of Law offence Cr.No.297 of 2022, U/s.420, 468 r/w 34 IPC of 1 09.11.2022 Nandyal II Town Cr.No.180 of 2022, U/s.420, 468 IPC of 2 19.11.2022 B.Atmakur PS Cr.No.312 of 2022, U/s.420, 468 r/w 34 IPC of 3 19.11.2022 Nandyal II Town PS.

Cr.No.313 of 2022, U/s.420, 468 r/w 34 IPC of 4 19.11.2022 Nandyal II Town PS. Cr.No.397 of 2022, U/s.447, 427, 420, 467, 468, 5 506 r/w 34 IPC of Nandyal Taluk Urban Police 19.11.2022 Station.

Cr.No.80 of 2023, U/s.420, 467, 468 r/w 34 IPC 6 29.04.2023 of Nandyal II Town PS.

In the detention order, it is also stated that he is constantly

indulging in land grabbing activities in and around Nandyal Town areas

and committing offences which are adversely affecting the economical

status of the innocent people as well as society and disturbing public

order.

(b) Subsequently, on the recommendation of the Advisory Board,

his detention was confirmed by virtue of G.O. Rt. No.1988, General

Administration (SC.I) Dept., dt.10.10.2023.

Hence, the writ petition.

3. Learned Special Government Pleader representing the office of

the learned Additional Advocate General filed counter and opposed the

writ petition.

4. Heard Sri P.Nagendra Reddy, learned counsel for petitioner and

learned Special Government Pleader representing the office of the

learned Additional Advocate General.

5. Learned counsel for petitioner assails that, in all the crimes which

have been taken into consideration for ordering detention order, the

detenu was granted bail and the said fact was admitted in the counter of

the respondents. He would further submit that the sponsoring authority

has not placed the material relating to the granting of bail in all cases

before the Detaining Authority. He would further submit that bail

orders were not furnished to the detenu so as to make an effective

representation before the State Government/Advisory Board. For this

grave procedural violation, he would argue, the detention per se became

illegal. On this aspect, he placed reliance on the order of a Division

Bench of this Court in W.P. No.17210 of 2022.

Learned counsel thus prayed to set aside the impugned detention

order.

6. In oppugnation, learned Special Government Pleader, while

supporting the detention order, vehemently argued that the Detaining

Authority has taken into consideration the bail granted to the detenu in

all cases and having been satisfied that the offences which may be

prejudicial to the maintenance of public order, he ordered preventive

detention and therefore, his order does not suffer from any procedural

irregularities. He, thus prayed to dismiss the writ petition.

7. The point for consideration is whether the order of the

1st respondent suffers from any legal infirmities and if so, the detention

order dated 22.08.2023 is liable to be set aside?

8. We have given anxious consideration to the above respective

arguments. As can be seen from the detention order dated 22.08.2023

and the grounds of detention, admittedly, the detaining authority has

taken into consideration six cases for ordering detention. Then, a

perusal of the counter filed by the 1st respondent would show that in all

the cases the detenu was granted bail.

9. Now, a perusal of the detention order shows that the Detaining

Authority has only mentioned that the detenu was involved in six cases.

Except that, the Detaining Authority has not specifically mentioned

about the detenu obtaining bail in respect of all crimes. This indicates

that the Sponsoring Authority has not placed before him the copies of

the bail applications and bail orders. Then, we perused the material

papers filed along with the counter by the 1st respondent. In those

material papers, the copies of the bail orders are not found place. It also

indicates that copies of the bail orders were not furnished to the detenu

as mandated by the procedure.

10. In W.P. No.17210 of 2022, a Division Bench of this Court has

observed as follows with regard to the consequence of non-furnishing

of the bail orders to the Detaining Authority and non-furnishing the

same to the Detenu:

"8. x x x x x One of such procedural safeguards is that if the detenu was already granted conditional bails in the crimes which were taken as a ground for ordering preventive detention, it will be the solemn duty of the Sponsoring Authority to bring the said fact to the notice of the Detaining Authority by placing before it the bail applications and bail orders for its consideration. Failure on the part of the Sponsoring Authority to do so and also the failure on the part of the Detaining Authority to consider aforesaid material on being placed before it, render the detention per se illegal. The law on this aspect is no more res integra. In Vasanthu Sumalatha1, a Division Bench of the common High Court of Andhra Pradesh has observed thus:

"43. If the bail order, which is a vital material, is not considered, the satisfaction of the detaining authority itself would be impaired. (V. Muragesh v. Collector and District Magistrate, Chittoor (2013 Crl.L.J. 585); Durgam Subramanyam v. Government of A.P. (2013 (4) ALT 243 (D.B); State of U.P v. Kamal Kishore Saini ((1988) 1 SCC 287; M. Ahamedkutty vs Union Of India 1990 SCR (1) 209, 1990 SCC (2) 1. Nonplacing and non-consideration of material, as vital as the bail order, vitiates the 1 2015 SCC Online Hyd 790 = (2016) 1 ALT 738 (DB)

subjective decision of the detaining authority, and the Court cannot attempt to assess in what manner, and to what extent, consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority. (Rushikesh Tanaji Bhoite v. State of Maharashtra (2012) 2 SCC 72). Failure of the sponsoring authority to place the conditional orders, granting anticipatory bail/bail, before the detaining authority is fatal as it is a vital material which would have weighed with the detaining authority at the time of passing the detention order. [Durgam Subramanyam's case (supra).

54. Neither the order nor the grounds of detention refer either to the conditional or the unconditional orders of bail granted in favour of the detenus. As noted hereinabove failure of the detaining authority to consider the orders granting conditional bail would vitiate the orders of detention. ..xxx..."

9. It should be noted that in the above decision, the judgment in Sunila Jain's case2 (1st supra) relied upon by the learned Special Government Pleader was distinguished on facts. In Sunila Jain, copy of the order granting bail and order of remand has been furnished to the detenu. In that context, it was observed by the Hon'ble Apex Court that non-furnishing of a copy of the application of bail cannot be said to be a ground and that all the documents placed before the detaining authority are not required to be supplied and only relevant and vital documents are required to be supplied. The said judgment was distinguished in Vasanthu Sumalatha case (1 supra) as follows:

"53. Unlike in Sunila Jain (supra) where a copy of bail application, for an offence which was bailable, was not furnished and a copy of the order granting bail and the order of the remand were furnished to the detenu, in the 2 MANU/SC/8053/2006 = (2006) 3 SCC 321

present case the orders granting conditional bail were neither considered by the detaining authority nor were copies thereof furnished to the detenu. The conditional orders of bail restricted the movement of the detenus and required them to appear before the officer concerned periodically. If these conditional orders of bail had been brought to his notice, it may well have resulted in the detaining authority arriving at the subjective satisfaction that the detention of the detenus were unnecessary. Reliance placed by the Learned Advocate-General on Sunila Jain (supra) is, therefore, misplaced."

In Gattu Kavitha v. State of Telangana3, another Division Bench of the common High Court of Telangana & A.P. expressed similar view as follows:

"14. From the ratio in the decision, it is clear that non-supply of conditional bail orders by the sponsoring authority to the detaining authority and failure to refer to the same in the order of detention and grounds of detention, and non- consideration of such vital and relevant material, invalidates the detention order. The law laid down in Vasanthu Sumalatha v. State of Andhra Pradesh, 2016 (2) ALD (Crl.) 156, which was recently affirmed by us in W.P.No.4805/2016 to the effect that failure to supply documents relied upon by the detaining authority would result in denying an opportunity to make an effective representation as guaranteed under Article 22(5) of the Constitution of India, would squarely apply to the instant case."

Division Bench of this Court further observed as follows:

"Thus, in essence, the conditional bail orders were neither considered nor furnished to the detenu, meaning thereby, the detention became illegal and unsustainable. On this ground alone, the detention order is liable to be set aside."

3 2016 SCC Online Hyd 718 = (2017) 1 ALD (Crl) 224

11. The above decision in our view squarely applies to the case on

hand as in the instant case also the bail orders were neither placed

before the Detaining Authority nor furnished to the detenu to enable

him to make an effective representation before the Advisory Board. On

this ground, the detention order is liable to be set aside.

12. On a conspectus of the facts and law as narrated supra, this writ

petition is allowed and the detention order in RC.C1/1171/M/2023,

dated 22.08.2023, passed by the 1st respondent - District Collector,

Nandyal District, is hereby set aside and the detenu namely Thota

Jithendra @ Potti Jithu @ Jithu, S/o.Eswaraiah, is directed to be

released forthwith by the respondents if the detenu is not required in