Andhra Pradesh High Court - Amravati

Pangi Muttyya vs The State Of Andhra Pradesh on 29 December, 2023

Author: U.Durga Prasad Rao

Bench: U.Durga Prasad Rao

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

    FRIDAY, THE TWENTY NINETH 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:29825 OF 2023

Between:
   1. PANGI MUTTYYA, S/o Pangi Budranna, Age.53Yrs,
      Occ.Daily Labour Pedagondi, Seeleru Post, Duppalawasa,
      Visakhapatam Dist. Rep by (Relative of Detenu Pangi Raju S/o
      Pulia).
                                               ...PETITIONER(S)
                               AND
  1. The State of Andhra Pradesh, Rep by its Chief Secretary, A.P.
     Secretariat, Velagapudi, Guntur Dist.
  2. The Director General of Police, A.P. Mangalagiri, Guntur Dist.
  3. The District Collector and District Magistrate, Paderu, Alluri
     Seetharamaraju.
  4. The Superintendent of Police, Paderu, Alluri Seetharamaraju
     Dist.
  5. The Superintendent, Central Prison, Rajahmahendravaram.
                                                ...RESPONDENTS

The Court made the following order:

U.DURGA PRASAD RAO, J:

This writ petition is filed under Article 226 of the Constitution of

India for the following relief:

"to direct the 5th respondent to produce detenu Pangi Raju S/o Pulia, who is now detained in Central Prison, Rajahmahendravaram, before this Hon'ble Court and he may be ordered to be released forthwith after declaring his detention vide proceedings File No.REV 02-MGSTOLWOD/40/2023-MAG- CCLA, Dt.01/08/2023 passed by the 3rd respondent in Continuation G.O Rt. No.1992, GAD (S.C-I) DEPT Dated 10.10.2023 issued by the 1st Respondent as illegal and unconstitutional and to pass such other orders."

2. The facts succinctly are thus:

(a) The 3rd respondent by his order in REV 02-MGSTOLWOD/

40/2023-MAG-CCLA, dt.01.08.2023, ordered detention of one Pangi

Raju, S/o.Pulia, under Section 3(1) & 3(2) 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.56 of 2020, U/s.8(c) r/w 20(b)(ii)(c) of 1 09.06.2020 NDPS Act, 1985 of Koyyuru Police Station. Cr.No.36 of 2022, U/s.8(c) r/w 20(b)(ii)(c) of 2 30.03.2022 NDPS Act, 1985 of Chinturu Police Station. Cr.No.24 of 2023, U/s.20(b)(ii)(c) r/w 8(c) of 3 03.06.2023 NDPS Act, 1985 of Jaddangi Police Station.

In the detention order it is also stated that he is acting in a manner

prejudicial to the maintenance of public order.

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

his detention was confirmed by virtue of G.O. Rt. No.1992, 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 Gundala Siva Prasad Reddy, learned counsel for

petitioner and learned Special Government Pleader representing the

office of the learned Additional Advocate General.

5. (a) Learned counsel for petitioner assails the detention order

on two main grounds. Firstly that, out of three crimes which have been

taken into consideration for ordering detention order, in respect of two

crimes viz., Crime No.17 of 2021 and Crime No.22 of 2021, the detenu

was granted bail and the said fact was admitted in Para 15 of 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

two cases before the Detaining Authority and consequently, no

discussion was made by Detaining Authority with regard to the

consequences of the granting of bail in Cr.No.17 of 2021 and Crime

No.22 of 2021. 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.

(b) Learned counsel would argue that as admittedly detenu was a

remand prisoner by the date of detention order in respect of another

Crime No.36 of 2022 and his arrest is yet to be regularized through PT warrant in respect of Crime No.24 of 2023 and in that view, there was

no possibility of his committing any further crimes and this aspect has

not been discussed and considered by the Detaining Authority in its

order. Learned counsel would admit that merely because a detenu was

in judicial custody that itself is not an obstruction for passing detention

order. Still the Detaining Authority has to take the said fact into

consideration and mention in its order that there is every likelihood of

the detenu getting bail in the case in which he is in judicial custody and

that there is a possibility of his repeating the similar crimes causing

prejudice to the maintenance of public order and unless such an analysis

is made in its order, he cannot arrive at a subjective satisfaction. He

would submit that, however, in the instant case, the Detaining Authority

has not made any attempt in its order in this regard and therefore, the

detention order fails on that ground also. In this context, he placed

reliance on the order of a Division Bench of this Court in W.P. No.1803

of 2021.

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

two cases and his continuation in judicial custody in another case and

having been satisfied that his likelihood of getting bail in the said case

also and perpetrate 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

3rd respondent suffers from any legal infirmities and if so, the detention

order dated 01.08.2023 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 01.08.2023

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

taken into consideration three cases viz., (i) Cr. No.56 of 2020,

(ii) Cr.No.36 of 2022 and (iii) Cr.No.24 of 2023, for ordering detention.

Then, a perusal of the counter filed by the 3rd respondent would show that in Paragraph 15, the bail status of the two crimes has been

mentioned as follows:-

"15. In Crime No.17 of 2021, PT warrant was executed against

the detenu (A) on 25.03.20252 and he was granted bail on

26.04.2022 by the Court of I Additional District Judge,

Rajamahendravaram in Crl. M.P. No.497/2022. In Crime No.22

of 2021, the detenu (A1) was arrested on 27.12.2021 and he was

granted bail on 30.06.2022 by the I Additional District Judge,

Rajamahendravaram, vide Crl. M.P. No.1006 of 2022."

Thus, from the counter it is evident that the detenu was granted

bail in relation to two cases.

9. Now, with this factual background, we examined the first

argument of learned counsel for petitioner. A perusal of the detention

order shows that the Detaining Authority has only mentioned that the

detenu was involved in three cases. Except that, the Detaining

Authority has not specifically mentioned about the detenu obtaining

bail in respect of two 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 3rd 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 (2 supra), a Division Bench of the common High Court of Andhra Pradesh has observed thus:

1 2015 SCC Online Hyd 790 = (2016) 1 ALT 738 (DB) "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 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 case (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 (2 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 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 case (1 supra), 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."

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 alone, the detention order is liable to be set aside.

12. So far as the second ground is concerned, the submission of the

petitioner is that the Detaining Authority has not specifically mentioned

that in Crime No.24 of 2023, the detenu is likely to get bail and thereby,

the possibility of his repeating the similar type of offences cannot be

obviated and therefore, the preventive detention alone is the effective

remedy. It is argued that without arriving at such subjective

satisfaction, the Detaining Authority has mechanically ordered the

preventive detention and therefore, the said order is unjust and illegal. In this context, we perused the grounds of detention wherein the

Detaining Authority has stated as follows:

"Thus, I am satisfied from the material placed before me that you fall under the category of "Drug Offender" as defined in Sec 2(f) of "The Andhra Pradesh Prevention of Dangerous activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986"

and you are a fit person to be detained U/Sec 3(2) of the said Act and accordingly, I will issue orders with a view to preventing you from acting in any manner prejudicial to the maintenance of the public order."

13. Thus as rightly argued by learned counsel for petitioner, there

was no discussion about the detenu's languishing in judicial custody in

respect of another crime and the possibility of his obtaining bail and

repeating the similar type of crimes. There is no proper analysis of the

facts to arrive at subjective satisfaction of the Detaining Authority.

14. In W.P. No.1803 of 2021, a Division Bench of this Court has

observed as follows:

"9. On a reading of the above, does not, in our view, show that there was any apprehension or any possibility of the detenu being released on bail. As observed by the Hon'ble Apex Court in Kamarunnisa's v. Union of India2 even in a case of a person in custody, a detention order can be validly passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. From a reading of the above, it is very much evident, the detaining authority was aware the detenu was in custody as on the date of passing of the order, but, there is no material placed before him to show that there is every likelihood of he being released on bail. Merely saying that there is every likelihood of detenu being granted/released on bail, as he was released in other cases may not satisfy the test as laid down in Champion R. Sangma's case3and Kamarunnisa's case (2 supra). Though the petitioner has been released in 7 out of 10 cases, no material has been placed on record to show that he has made any application seeking release on bail in the following three cases:

      (i)       Crime No.55 of 2020 of T.Sundupalli P.S.;
      (ii)      Crime No. 150 of 2020 of Sidhout P.S.; and
      (iii)     Crime No.122 of 2020 of Vontimitta P.S."

15. From the above decision, it is clear that when a detenu is already

under judicial custody in connection with some or all cases, the

Detaining Authority has to take note of the factum of his judicial

custody and record its satisfaction that there is a likelihood of his being

released on bail so as to buttress the preventive detention order. In the

2 (1991) 1 SCC 128 3 (2015) 16 SCC 253 instant case, there is no such discussion in the impugned detention

order. In this ground also, the preventive detention fails.

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

petition is allowed and the detention order in REV02-MGSTOLWOD/

40/2023-MAG-CCLA, Dt.01.08.2023, passed by the 3rd respondent -

District Collector, Alluri Sitharama Raju District, is hereby set aside

and the detenu namely Pangi Raju, s/o.Pulia, is directed to be released

forthwith by the respondents if the detenu is not required in any other

cases. No costs.