Pachabottu Velamganamma vs The State Of Andhra Pradesh,
2023 Latest Caselaw 1720 AP

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

                     WRIT PETITION No.32597 of 2022

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

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

detention of her son Pachabottu Deva @ Ganesh, S/o.late Yesu, in order

of detention vide Rc.C1(Magl)/149/2022, dt.20.06.2022 passed by the

2nd respondent-The Collector & District Magistrate, SPSR Nellore

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

G.O.Rt.No.1688, General Administration (SC.I) Department, dated

16.08.2022 and prays to direct the respondent authorities to set the

detenue at liberty forthwith.

3. The Collector and District Magistrate, SPSR Nellore District,

while categorizing the detenue as "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')

and passed the impugned order of detention. The said order of

detention came to be confirmed by the Government vide

G.O.Rt.No.1688, General Administration (SC.I) Department,

16.08.2022.

4. Heard Sri Siva Prasad Reddy Venati, learned counsel for the

petitioner and Sri Khader Mastan, learned counsel attached to the

office of learned Additional Advocate General for the respondents.

5. Learned counsel for the petitioner submits that after passing

the prevention orders by 2nd respondent, the 2nd respondent passed

the order of detention based on the stale and non-existing grounds,

thereby the order of detention is liable to be set aside.

6. Learned counsel for the petitioner further submits that

subsequent to 16.10.2021, there is no new case that was registered

against the detenue, in-fact, the last case was ended before Lok Adalat

on 16.10.2021, though there is no fresh incident, the 2nd respondent

passed the order of preventive detention for statistical purpose. The

learned counsel further submits that on perusal of detention order

there are six cases shown and that all the six cases are old cases and

no new case registered against the detenue from the past eight months.

7. Learned counsel for the petitioner further submits that the

detenue was granted bails in three out of six cases, first and last case

ended in Lok Adalat and that, in the grounds of detention, strangely it

is found, the 2nd respondent did not even supply the relevant

documents for enabling the detenue to make effective representation

before the competent authority and the 2nd respondent without

knowing the contents of bail applications and orders thereon, passed

an order of preventive detention.

8. Learned counsel for the petitioner further submits that the

order of detention passed against the detenue is illegal and not

maintainable and penal laws are sufficient to deal with the offenses

said to have committed by the detenue. He further submits that the

detenue will not fall under the said criteria (Goonda) and no material

is placed either to substantiate or justify the allegation that the

detenue is a 'Goonda'.

9. Learned counsel for the petitioner relied upon the judgment of

Hon'ble Supreme Court in Banka Sneha Sheela v. State of Telangana1

in which the Hon'ble Supreme Court referred Munagala Yadamma v.

State of Andhra Pradesh2 and Rekha v. State of Tamilnadu 3. The

learned counsel for the petitioner brought to the notice of this Court a

judgment of Apex Court in T.A.Abdul Rehman v. State of Kerala and

others4 and Ram Manohar Lohiya v. State of Bihar5.

10. On the other hand, reiterating the averments made in the

counter affidavit filed by the respondents, it is submitted by the

learned counsel attached to the office of Additional Advocate General

that having regard to the gravity of the offenses including the offenses

said to have committed by detenue is under Section 302 of IPC and

NDPS Act, which are disturbance of public order, thereby, the orders

1 2021 (9) SCC 415 2 2012 (2) SCC 386 3 2011 (5) SCC 244 4 1989 (4) SCC 741 5 AIR 1966 SC 740

impugned in the Writ Petition do not warrants any interference of this

Court under Article 226 of the Constitution of India.

11. A perusal three judge Bench judgment of Apex Court in Rekha

Case (referred to supra), in which the principle followed and the Apex

Court held as follows:

"The detaining authority was not even aware whether a bail application of the accused was pending when he passed the detention order, rather the detaining authority passed the detention order under the impression that no bail application of the accused was pending, but in similar cases bail had been granted by the courts. We have already stated above that no details of alleged similar cases have been given. Hence, the detention order in question cannot be sustained".

12. In Dr.Ram Manohar Lohia case (referred to supra), a Constitution

Bench of the Supreme Court, speaking through M.Hidayathullah,J(as

his Lordship then was), explained the difference between disturbance

to law and order and that of public order. The Court has explained the

whole concept of 'public order' and 'law and order', by observing that

one has to imagine three concentric circles wherein law and order

represents the largest circle, within which is the next circle

representing public order and the smallest circle represents security of

the State. The Court has in detail pointed out the difference between

the maintenance of law and order and that of public order.......

13. It is also settled law that when ordinary law is capable of dealing

with the alleged prejudicial activities of the detenue, the provisions of

preventive detention law cannot be invoked. The executive authority

has to keep in mind before the detention order passes that ordinary

law will not act as deterrent on the activities of the detenue.

14. After considering above, on perusal of the facts in this case

there is no finding on the proximity of detenue will commit similar

offenses and apparently in between the last date of offense and date

of passing of detention order near or about eight(8) months and there

is no discussion in the impugned detention order as to how the

activities of the detenue would affect the public order and also the

compelling reasons for invoking the provisions of Act 1 of 1986, when

ordinary law is sufficient. Preventive detention cannot be made a

substitute for the ordinary law and absolve the investigating

authorities of their normal functions of investigating crimes in which

detenue may have committed and detention order cannot be used as

an instrument to keep a person in perpetual custody. Moreso, it is

available on the record placed before this Court that shows that the

first crime and sixth crime were settled before Lok Adalat that is

enough/sole ground to set aside the detention order and that the

detaining authority did not consider that out of six cases in three cases

bail was granted and no finding on public order. Simply because

detenue committed offenses under IPC is not sufficient and committing

an offence under NDPS Act is not relevant.

15. Having regard to the above, in the present case also the

detenue will not fall under the category of Section 2(g) of the Act and

that this Court could not find that the order of detention do not have

any material to either substantiate or justify the said allegation that

the detenue is a 'Goonda' and for the reasons recorded, this Writ

Petition is allowed in terms thereof, setting aside the order of

detention passed by the 2nd respondent vide proceedings in

Rc.C1(Magl)/149/2022, dt.20.06.2022 as confirmed by the State

Government vide G.O.Rt.No.1688, General Administration (SC.I)

Department, dated 16.08.2022 and consequently the detenue namely

Pachabottu Deva @ Ganesh, S/o.late Yesu, is directed to be released

forthwith by the respondents if the detenue is not required in any

other cases.

16. Miscellaneous petitions pending if any, stand closed. No order as to costs.

___________________________ JUSTICE D.V.S.S.SOMAYAJULU

_________________ JUSTICE V.SRINIVAS Date: 29.03.2023 krs

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

AND

THE HON'BLE SRI JUSTICE V.SRINIVAS

WRIT PETITION No.32597 of 2022

DATE: 29 .03.2023

krs