Order vs Government Pleader Attached To ...
2023 Latest Caselaw 3494 AP

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

                         WRIT.PETITION.No.7448 of 2023

ORDER:

This Writ Petition for Habeas Corpus is filed questioning the

legal validity of the impugned order of preventive detention that was

passed by the 2nd respondent and the consequent G.O. that was

issued, dated 21.03.2023, in G.O.Rt.No.562, General Administration

(SC.I) Department, confirming the said order of preventive detention

and to order for release of the detenu forthwith.

2. Heard learned counsel for the petitioner and learned

Government Pleader attached to the office of learned Additional

Advocate General.

3. The petitioner is the mother of the detenu by name Siragam

Venu Vikash, aged about 20 years, of Visakhapatnam. About five

crimes were registered against him relating to various offences. The

details of the said five crimes that were registered against him are as

follows:

1. Crime No.50 of 2022 of Hukumpeta P.S., Under section 20(B)(II) (C) R/w 8(C) of NDPS Act, 1985 was registered against the detenu and arrested and remanded to judicial custody on 20-09-2022 and this case is pending for Investigation.

2. Crime No.55 of 2022 of Pedabayalu P.S., Under sections 20(B)(II) (C), 25 R/w 8(C) of NDPS Act, 1985 was registered against the detenu and he was produced on PT Warrant on 21-10-2022 and he was remanded to judicial custody and this case is pending for Investigation.

3. Crime No.59 of 2022 of Pedabayalu P.S., Under sections 20(B)(II) (C),25 R/w 8(C) of NDPS Act, 1985 was registered against the detenu and he was produced on PT Warrant on 21-10-2022 and this case is pending for Investigation.

4. Crime No.48/2022 of Dumbriguda P.S., Under section 20(B)(II) (B), R/w 8(C) of NDPS Act, 1985 was registered against the detenu and he was produced on PT Warrant on 21-10-2022 and this case is pending for Investigation.

5. Crime No.85/2021 of Ichapuram Town P.S., under sections 20(b)(ii) (C), R/w 8(C) of NDPS Act, 1985 was registered against the detenu and he was arrested on 20-11-2021 and this case is pending for trial.

4. On the recommendation made by the sponsoring authority

under the Andhra Pradesh Prevention of Dangerous Activities of

Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic

Offenders and Land-Grabbers Act, 1986, (for short "the Act") alleging

that on account of the involvement of the son of the petitioner in

various crimes that his activities are prejudicial to the maintenance

of public order, the 2nd respondent, who is the competent authority

under the Act, passed the impugned order of preventive detention

against the son of the petitioner detaining him in the prison for 12

months to prevent him from committing the said offences in future.

The said order of preventive detention passed by the 2nd respondent

was confirmed by issuing G.O.Rt.No.562, dated 21.03.2023, by the

Government.

5. The legal validity of the impugned order of preventive detention

passed by the 2nd respondent as well as the consequential G.O that

was issued is questioned mainly on the ground that the detaining

authority, who is the 2nd respondent herein, did not record his

subjective satisfaction as to how there is likelihood of the detenue

being released on bail in other cases and as to how his activities are

prejudicial to the maintenance of public order. It is contended that

mere stating in the impugned order that he is satisfied with the

material placed before him that there is likelihood of the detenue

disturbing the public order or that there is likelihood of he being

released on bail in future in the other cases is not sufficient to pass

any such order of preventive detention.

6. Learned counsel for the petitioner placed reliance on the

judgment of the Apex Court rendered in the case of Champion R.

Sangma v. State Of Meghalaya1 whereunder the concept of triple

test is laid down in the said judgment to test the legal validity of the

preventive detention orders that are passed under the Act. The Apex

Court has extracted the judgment of the three Judge Bench of the

Supreme Court rendered in the case of Kamarunnissa v. Union Of

India2 wherein it is held as follows:

"From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be 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. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this court stated in the case of Ramesh Yadav (supra) was that ordinarily a detention order should not be passed merely to pre- empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody."

(2015) 16 SCC 253

(1991) 1 SCC 128 :1991 SCC (Cri) 88

7. The said judgment in the case of Kamarunnissa v. Union Of

India was again followed in the subsequent judgments in T.V.

Sravanan v. State3, K.K. Saravana Babu v. State of T.N.4 and

Huidrom Konungjao Singh v. State of Manipur5.

8. As per the law laid down in the aforesaid judgment of

Kamarunnissa v. Union Of India (2 supra), when a person is in

the custody as per the detention order, the same can validly be

passed when (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 he being released on bail (b) that he being so released

would in all probability indulge in prejudicial activity; and (3) if it is

felt essential to detain him to prevent him from so doing.

9. Then in Ramesh Yadav v. District Magistrate, Etah6, it was

held that ordinarily a detention order should not be passed merely to

pre-empt or circumvent enlargement on bail in cases which are

essentially criminal in nature and can be dealt with under the

ordinary law.

10. Thus, as per the triple test that was laid down in the above

judgment of the Apex Court, the detaining authority has to record

his subjective satisfaction in arriving at a decision that there is a

(2006) 2 SCC 664: (2006) 1 SCC (Cri) 593

(2008) 9 SCC 89: (2008) 3 SCC (Cri) 679

(2012) 7 SCC 181: (2013) 1 SCC (Cri) 956

1985 SCC (Cri) 514

likelihood of the detenu being released in other cases on bail and he

has to satisfy himself to that effect on the basis of the material that

is placed before him. Mere stating that he is satisfied on the basis of

the material placed before him by itself is not sufficient and he has to

state as to what is the material placed before him and how he is

satisfied on the basis of the said material to arrive at such

conclusion. So also, reasons are to be assigned as to how the

detaining authority is satisfied that if the detenu is released on bail

that there is every possibility or probability for the detenu to indulge

in prejudicial activity or not. It must be clearly supported by some

cogent reasons. Mere stating that there is a possibility of the detenu

indulging in prejudicial activities by itself is not a valid ground to

sustain the legal validity of the said order. More particularly, when

the orders that are passed under the Act detaining the persons as a

preventive measure, the order has to be tested by applying strict

standards, as any such order of preventive detention will have effect

of depriving the citizen of this country of his personal liberty what is

guaranteed under Article 21 of the Constitution of India, which is a

valuable and precious right of the citizen of the country. Therefore,

such orders of preventive detention cannot be passed on vague

grounds which are not supported by reasons and authenticated

material on record.

11. Relying on the judgment in the case of Champion R. Sangma

v. State of Meghalaya (1 supra), the Division Bench of this High

Court also held that the order passed sans reasons as to on what

basis the detaining authority has come to a conclusion that the

detenu is likely to be released on bail in other cases and that he is

likely to be indulged in committing similar nature of offences in

future and disturbing the public order is not sustainable under law.

The Division Bench has also set aside the order of preventive

detention in the said case in Karanam Janaki v. State of Andhra

Pradesh7.

12. If the impugned order of preventive detention passed in this

case is tested by applying the aforesaid law, there is absolutely

nothing to indicate in the impugned order that as to how the

detaining authority has satisfied himself that there is likelihood of

the detenu being released on bail in other cases also and as to how

he came to the conclusion that the detenue will be indulging in

prejudicial activities in future. What is the material that is placed

before him is not stated and how he came to conclusion that he is

satisfied on the basis of the said material is also not discussed.

Therefore, the impugned order is clearly unsustainable under law

and it is liable to be set aside.

13. Therefore, the Writ Petition is allowed setting aside the

impugned order of preventive detention, dated 26.01.2023, passed

against the son of the petitioner by name Siragam Venu Vikash and

also G.O.Rt.No.562, dated 21.03.2023, issued confirming the said

2022 (1) ALD (Crl.) 286 (AP)

order of preventive detention. The son of the petitioner, the detenue,

shall be set at liberty forthwith, if not required in any other case.

There shall be no order as to costs.

As a sequel, miscellaneous applications, if any pending,

shall stand closed.

______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

______________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 17.07.2023 AKN/DSV

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

WRIT.PETITION.No.7448 of 2023

Date: 17.07.2023

AKN/DSV