In This Writ Petition vs Unknown
2023 Latest Caselaw 1280 AP

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

                    WRIT PETITION No.30649 of 2022


ORDER: (per Hon'ble Sri Justice V.Srinivas)

       In this writ petition, the petitioner is challenging the order of

detention of his son Thota Sridhar S/o Thota Nagaraju, Aged 25 years,

in order of detention vide REV-MAGL-1/481/2022 dated 07.06.2022

passed by the 2nd respondent-The Collector & District Magistrate,

Tirupati and confirmed by the 1st respondent-the State as per

G.O.Rt.No.1616 dated 05.08.2022 and prays to direct the respondent

authorities to set the detenue at liberty forthwith.

2. Petitioner herein, who is father of the detenue-Thota Sridhar,

in his petition stated that detention orders were passed against his

son, on the ground that his son is "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).

It is further stated in the petition that in the order passed by the 2 nd

respondent held that the activities of the detenue are dangerous and

prejudicial to the maintenance of public order, apart from disturbing

the peace, tranquility, social harmony/order in the society, thereby,

the 2nd respondent-Collector and District Magistrate is said to have

passed the impugned order of detention dated 07.06.2022 since he

has been habitually involved in criminal activities with other

associates and even though a number of cases were registered against

him, he did not change his attitude and on the other hand increasing

his criminal activities day to day.

3. On perusal of the record, the very genesis for initiation of the

proceedings against the detenue is the Registration of eleven (11)

crimes in different police stations against him. The particulars of the

said crimes are as follows:

     S.No.          Cr.No. & Section of Law            Date of offence
     1     30/2022 u/s 8(c) r/w 20(b)(ii) of NDPS Act, 15.03.2022
           1985 of Gajulamandyam PS
     2     22/2022 u/s 379 IPC of Gajulamandyam PS 27.02.2022 and
                                                       28.02.2022
     3     238/2021 u/s 379 IPC of Gajulamandyam 18.12.2021 and
           PS                                          19.12.2021
     4     638/2021 u/s 379 IPC of Tiruchanoor PS      13/14.11.2021
     5     30/2022 u/s 379 IPC of Tiruchanoor PS       26/27.01.2022
     6     48/2022 u/s 379 IPC of Tiruchanoor PS       27/28.01.2022
     7     33/2022 u/s 379 IPC of Renigunta PS         30/31.01.2022
     8     52/2022 u/s 379 IPC of Renigunta PS         30/31.1.2022
     9     88/2022 u/s 379 IPC of M.R.Palli PS         24/25.02.2022
     10    108/2022 u/s 379 IPC of Chandragiri PS      06.3.2022
     11    20/2022 U/S 419, 384 R/W 34 IPC of 03.03.2022
           Narayanavanam PS

In the grounds of detention, it is stated that the detenue was

habitually involved in theft cases around 14 in number in and around

Tirupati District. The perusal of the record placed before this Court

finally showing in the following crimes, the detenue was acquitted:

1 133/2014 u/s 379 IPC of Srikalahasti I Town PS 2 18/2014 u/s 379 IPC of Srikalahasti I Town PS

3 215/2014 u/s 379 IPC of CCS Tirupati 4 225/2014 u/s 379 IPC of CCS Tirupati 5 231/2014 u/s 379 IPC of CCS Tirupati 6 240/2014 u/s 379 IPC of CCS Tirupati 7 228/2014 u/s 379 IPC of CCS Tirupati 8 226/2014 u/s 379 IPC of CCS Tirupati 9 232/2014 u/s 379 IPC of CCS Tirupati 10 227/2014 u/s 379 IPC of CCS Tirupati 11 207/2013 u/s 379 IPC of Chittoor I Town PS 12 232/2011 u/s 224 IPC of Alipiri P.S 13 403/2013 u/s 379 IPC of East PS Tirupati 14 408/2013 u/s 379 IPC of East PS, Tirupati

Thus, the above fourteen cases clearly showing the detenue

was acquitted. The petitioner thus, assailing the validity and legal

sustainability of the said order of detention and the order of

confirmation passed by 2nd respondent and 1st respondent

respectively, the present Writ Petition came to be instituted.

4. Counter-affidavit is filed by the Collector and District

Magistrate-2nd respondent, denying the allegations and averments

made in the affidavit filed in support of the Writ Petition and in the

direction of justifying the impugned action.

5. Heard arguments of Sri D.Purna Chandra Reddy, learned

counsel for the petitioner and learned Additional Advocate General

for the respondents.

6. It is submitted by the learned counsel for the petitioner that

the order of detention passed by the Collector and District

Magistrate- 2nd respondent as confirmed by the 1st respondent-State

of Andhra Pradesh is highly illegal, arbitrary and unreasonable and

violative of Articles 14 and 21 of the Constitution of India, besides

being opposed to the very spirit and object of the provisions of the

Act 1 of 1986. It is further argued that by giving complete go-bye to

the mandatory requirements of law, as provided under Section 3 of

the Act 1 of 1986, the 2nd respondent, who is the detaining authority,

passed the order of detention without satisfing himself passed the

order, in fact the detenue viz., Thota Sridhar was granted bail in

almost all the cases mentioned in the order of detention by the

jurisdictional criminal courts, and that the sponsoring authority

deliberately suppressed the said fact before the detaining authority

and that the bail order copies which were passed in favour of the

detenue were not even furnished to the detenue, enabling to submit

an effective representation before the concerned authorities.

7. It is further submitted by the learned counsel that the 2 nd

respondent-Collector and District Magistrate failed to record the

satisfaction in accordance with law, as mandated under Section 3 of

the Act 1 of 1986, which is mandatory and indispensable. In support

of his submissions and contentions, learned counsel places reliance on

the Judgments in Gattu Kavita v. State of Telangana1, Rushikesh

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

Tanaji Bhoite v. State of Maharashtra2 and Rekha v. State of

Tamilnadu3, besides the learned counsel for the petitioner also

relied on the order dated 04.11.2022 in W.P.No.17210 of 2022 and

another order dated 15.12.2022 in W.P.No.37256 of 2022.

8. On the contrary, the learned Additional Advocate General,

strongly resisting the Writ Petition, contends that there is absolutely

no illegality nor there exists any procedural infirmity in the impugned

action and in the absence of the same, the present Writ Petition,

filed under Article 226 of the Constitution of India, is not

maintainable and the petitioner is not entitled for any relief. It is

further submitted that the 2nd respondent-Collector and District

Magistrate, only after taking into consideration of the involvement of

the detenue in various successive crimes, he passed the order of

detention and there is no contravention of any of the provisions of

the statute. In support of his submissions and contentions, learned

counsel places reliance on the Judgment in Sunila Jain v. Union of

India4.

9. In the above background, now the issue that emerges for

consideration of this Court in the present Writ Petition is "Whether

the Order of detention passed by the 2nd respondent-Collector and

2 (2012) 2 Supreme Court Cases 72 3 2011 (5) SCC 244 4 2006 (3) SCC 321

District Magistrate as confirmed by the 1st respondent-State

Government is sustainable and tenable?"

10. The material available on record discloses, in clear and vivid

terms, that out of 25 crimes registered against the detenue as on the

date of passing the order of detention, in as much as 14 crimes, the

detenue was already acquitted and that the acquittals were of the

year, 2013 and 2014, whereas, pending theft cases and ganja cases

are of the years 2021 and 2022.

11. The object of Prevention of Detention is to prevent the

detenue from committing similar offences. In that context, the State

passed the 'Act 1 of 1986'. The State of Andhra Pradesh passed the

legislation for preventive detention of Dangerous Activities of Boot-

Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic offenders

and Land Grabbers and for preventing their dangerous activities,

which is prejudicial to the maintenance of public order.

12. In the case on hand, by categorizing the son of the petitioner

herein as 'Goonda', the order of detention came to be passed by the

2nd respondent-Collector and District Magistrate. According to the

Clause (g) of Section 2 of the Act, 'Goonda' means a person who

either by himself or as a member of or leader of a gang, habitually

commits, or attempts to commit or abets the commission of offences

punishable under Chapters XVI or XVII or XXII of the Indian Penal Code.

Section 3 of the Act confers on the authorities power to make such an

order.

13. It is very much lucid from a reading of section 3 of the Act and

the provision of law that before branding an individual as a 'Goonda',

the recording of satisfaction is mandatory and indispensable on the

part of the detaining authority. As rightly pointed out by the learned

counsel for the petitioner, the 2nd respondent-Collector and District

Magistrate, in the instant case, did not make any endeavor to record

such a satisfaction before passing an order of detention except

referring to the alleged involvement of the detenue in various crimes.

14. Undoubtedly, the laudable object in enacting the present

legislation viz., 'Act 1 of 1986' is to ensure the maintenance of peace

and tranquility in the society. In order to pass an order of detention,

the District Collector-cum-District Magistrate as well the State must

adhere to the provisions of law and the competent authorities, before

passing an order are required to examine the issue with lot of care,

caution and circumspection. In this context, it would be appropriate

to refer to the Judgment of the Hon'ble Supreme Court in Champion

R.Sangma v. State of Meghalaya5, wherein, the Hon'ble Supreme

Court while dealing with the provisions of the Preventive detention,

at paragraphs-13 and 14 held as follows:

5 (2015) 16 Supreme Court Cases 253

"13. In view of the above, it was for the respondents to satisfy the Court as to whether the triple requirements, as postulated above, stand satisfied in the present case. We find that the respondents have miserably failed to fulfil this requirement.

14. In the instant case, though the detention order and even the grounds of detention record the factum of the appellant's being in custody, no satisfaction has been recorded by the detaining authority that there was reliable material before the authority on the basis of which it would have reasons to believe that there was real possibility of his release on bail. It is not mentioned as to whether any bail application was even moved by the appellant or not, what to take out likely fate of such an application. The order is also conspicuously silent on the aspect as to whether there was any probability of indulging in activity if the appellant would be released on bail. On the contrary, we are amazed that the averments made in the counter affidavit which are self-defeating and clinching the issue against the respondent at p. 171 Para 3 of the paper book which reads as under: "3. I state that the submission of the learned Senior Counsel for the petitioner that the detaining authority was satisfied that there was some likelihood of the petitioner being released on bail and thereafter the detention order was passed to prevent such contingency is completely unfounded. In fact the detention order was passed on 29-1- 2013 and from the detention order it no way reflects that with a view to pre-empt the petitioner from getting the bail in the pending criminal cases that the detention order 2013 was passed. In fact after noticing the fact that the petitioner was arrested by the police in various unlawful activities and crimes like extortion, dacoity, kidnapping, murder and robbery with deadly weapons for ransom for disruption of public order, etc. and being satisfied that if the petitioner is allowed to remain at large he would act in a manner prejudicial to the security of the State and shall be a constant threat to peace that the detention order was passed under Section 3(1) of the Meghalaya Preventive Detention Act. 1995."

15. In Gattu Kavitha case (referred 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."

16. In the light of the above settled pronouncements by both the

Hon'ble Apex Court and this Court, when facts of the instant case

are perused, in the counter filed by the 2nd respondent, it has been

specifically admitted and mentioned that in the above 25 cases

which were taken for consideration, in 14 cases the detenue was

acquitted. However, when we perused the detention order and

grounds of the detention, there was no reference about the

acquittals or granting of bails in the concerned crimes. Thus, it is

obvious that the Sponsoring Authority has not placed the relevant

material i.e., bail orders were not placed before the Detaining

Authority and there was no effective consideration of this fact. The

material papers placed by the respondents do not contain the bail

orders. Thus, in essence, the conditional bail orders were neither

considered nor furnished to the detenue, meaning thereby, the

detention became illegal and unsustainable. The Apex Court time

and again held that grant of bails to the detenue in the cases is a

very vital fact and that non-consideration of the same, clearly

vitiates the entire order of preventive detention. In the instant case,

one such incident registering a crime against the detenue is under

N.D.P.S. Act and the said offence will not fall under the definition of

'Goonda', as per the Act 1 of 1986. On these grounds, the detention

order is liable to be set aside.

17. Accordingly, the Writ Petition is allowed and the detention

order in REV-CSECOPDL(PRC)/1/2022-D.TH(C7) dated 01.04.2022

passed by 2nd respondent-District Collector & District Magistrate,

Chittoor is hereby set aside. The detenue namely Kalluri Sandeep

Kumar, S/o. Appa Rao is directed to be released forthwith by the

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

18. Miscellaneous petitions pending if any, stand closed. No order

as to costs.

                                        ___________________________
                                         JUSTICE D.V.S.S.SOMAYAJULU



                                                   _________________
                                                   JUSTICE V.SRINIVAS
Date:    .02.2023
Pab





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




            WRIT PETITION No.30649 of 2022

                   DATE:    .02.2023




Pab