Kondaraju Tirupathamma vs The State Of Andhra Pradesh
2023 Latest Caselaw 2974 AP

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

                    I.A.NO.1 OF 2013 IN/AND
               WRIT PETITION No.40493 of 2022

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

     Initially, in this writ petition, the petitioner is challenged the

order of detention of her son Kondaraju Suresh, S/o.late

K.Chinna     Venkataiah,    aged   23    years,     vide   REV-MAGL-

1/480/2022, dated 07.06.2022 passed by the 2nd respondent-

The Collector & District Magistrate, Tirupati District and prays to

direct the respondent authorities to set the detenue at liberty

forthwith.

2. Since the said detention order passed by the 2nd

respondent was confirmed by the 1st respondent vide

G.O.Rt.No.1615 General Administration (SC.I) Department,

dated 05.08.2022, then the petitioner filed I.A.No.1 of 2023 to

amend the prayer of the writ petition as 'to issue writ order or

direction more particularly one in the nature of writ of Habeas

Corpus under Article 226 of the Constitution of India directing

the 4th respondent to produce the detenue viz., Kondaraju Suresh,

S/o.late K.Chinna Venkataiah, who is now detained in Central

Prison, Kadapa, YSR Kadapa District before this Court and order

for his release forthwith, after declaring his detention vide

proceedings REV-MAGL-1/480/2022, dated 07.06.2022 passed

by the 2nd respondent which was confirmed by the 1st respondent

vide G.O.Rt.No.1615 General Administration (SC.I) Department,

dated 05.08.2022 as illegal and unconstitutional and pass such

other order or orders which this Hon'ble Court may deem fit and

proper in the circumstances of the case'.

3. In view of the same, I.A.No.1 of 2023 is allowed and the

prayer of the writ petition is ordered to be amended as prayed for.

4. The Collector and District Magistrate, Tirupati 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 same

was confirmed by the 1st respondent-State.

5. Heard Sri D.Purna Chandra Reddy, learned counsel for the

petitioner and Sri Syed Khader Mastan, learned counsel attached

to the office of learned Additional Advocate General for the

respondents.

6. Learned counsel for the petitioner submits that the detenue

was granted bail in almost all the cases and the said fact was

suppressed by the sponsoring authority before the detaining

authority and due to non-furnishing of bail orders and other

material, the detenue lost opportunity to submit an effective

representation before the concerned authorities.

7. He further submits that the detaining authority did not

supply the material relied on by them within the stipulated period

of five days and only the order and grounds of detention along

with material supplied after about three weeks, but the

subsequent developments such as approval and confirmation of

the order of preventive detention were not informed to the

detenue, thereby, it vitiates the entire order of preventive

detention.

8. It is brought to the notice of this Court by the learned

counsel for the writ petitioner that the issue in the present Writ

Petition is squarely covered by the order of this Court in

W.P.No.30649 of 2022, dated 06.03.2023. A copy of the said

order is placed on record.

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

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

Syed Khader Mastan, learned counsel attached to the office of

Additional Advocate General that having regard to the gravity of

the offences, the orders impugned in the Writ Petition do not

warrant any interference of this Court under Article 226 of the

Constitution of India.

10. A perusal of the order dated 06.03.2023 passed by this

Court in W.P.No.30649 of 2022 clearly demonstrates that all the

issues that have been raised in the present Writ Petition were also

raised in the aforesaid Writ Petition and this Court discussed the

law laid down in Gattu Kavitha v. State of Telangana1 case

and Rushikesh Thanaji Bhoite v. State of Maharastra2 case

and three judge Bench judgment of Apex Court in Rekha v.

State of Tamilnadu3 case, in which 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".

11. In Syed Sabeena v. The State of Telangana and others4

at Para No.17 it is held by the APEX Court that: "in any case, the

State is not without a remedy, as in case the detenue is much a

1 2017(1) ALD Crl.224 2 (2012) 2 SCC 72 3 2011 (5) SCC 244 4 Crl.A.No.909 of 2022 (SLP(Crl).No.4283 of 2022) (Supreme Court of India)

menace to the society as is being alleged, then the prosecution

should seek for the cancellation of his bail and/or move an appeal

to the Higher Court. But definitely seeking shelter under the

preventive detention law is not the proper remedy under the facts

and circumstances of the case."

12. After considering the law laid down above, W.P.No.30649

of 2022 was allowed granting relief in favour of the petitioner

therein. In the present case also the detaining authority has not

considered the vital aspect that the detenue was granted bail in

almost all the cases. Similarly, the fact that the detenue was in

judicial custody at the time of passing detention order is not

considered and no reasons are assigned that he will commit

further crimes. It is not clear how the authority came to the

conclusion that the ordinary law is not sufficient to stop the

alleged crimes. This Court could not find that the order of

detention refers to clear material to either substantiate or justify

the said allegation that the detenue is a 'Goonda'.

13. For the aforesaid reasons and following the order dated

06.03.2023 in W.P.No.30649 of 2022, this Writ Petition is also

allowed, setting aside the order of detention passed by the 2nd

respondent vide proceedings in REV-MAGL-1/480/2022, dated

07.06.2022 as confirmed by the State Government vide

G.O.Rt.No.1615 General Administration (SC.I) Department,

dated 05.08.2022. Consequently, the detenue namely Kondaraju

Suresh, S/o.late K.Chinna Venkataiah, aged 23 years, is directed

to be released forthwith by the respondents if the detenue is not

required in any other cases.

14. Miscellaneous petitions pending if any, stand closed. No

order as to costs.

________________________________ JUSTICE D.V.S.S.SOMAYAJULU

______________________ JUSTICE V.SRINIVAS Date: 09.05.2023 Issue C.C. today B/o.

krs

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

I.A.NO.1 of 2023 IN/AND WRIT PETITION No.40493 of 2022

DATE: 09.05.2023

krs