Andhra Pradesh High Court - Amravati

Manjula Lalitha vs The State Of Ap on 11 May, 2023

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

                   WRIT PETITION No.3785 of 2023


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

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

detention of her husband Manjula Naveen @ Vadde Manjula Naveen @

Naveen, S/o Manjula Lakshumaiah @ Lakshmanna @ Lakshmaiah, 27

years, in order of detention vide Rc.No.MC1/3699/2022 dated

02.02.2023 passed by the 3rd respondent-The District Collector

Ananthapuram District and prays to direct the respondent authorities

to set the detenue at liberty forthwith.

2. The petitioner herein, who is wife of detenue, in her petition

stated that detention orders were passed against her husband, on the

ground that he 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 since 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,

the 3rd respondent-The District Collector, Ananthapuram District is

said to have passed the impugned order of detention dated

02.02.2023.

3. Counter-affidavit is not filed by the respondents.

4. Heard Sri Chukkapalli Bhanu Prasad, learned counsel for the

petitioner and Sri Syed Khader Mastan, learned counsel attached to

the office of the learned Additional Advocate General for the

respondents.

5. Learned counsel for the petitioner submits that the detaining

authority passed the detention order basing on eight criminal cases,

which are relating to property disputes between individuals; that in

all the above cases, the detenue was granted bail and if he violates

the conditions of bail, respondent Nos.4 to 6 would file petition for

cancellation of bail, no such petition is filed by the respondents; that

since the cases are technical in nature like trespass and criminal

intimidation, the said cases can be dealt with under the ordinary law

and they do not involve any disturbance of public order and detenue

will not come within the definition of 'goonda' under Section 2(g) of

the Act and that there is no necessity to pass the detention order,

which is in sheer violation of the Articles 14, 21 and 22 of the

Constitution of India. In support of the said contentions, he relied on

the judgments in Sama Aruna v. State of Telanagana1, Mallada K

Sri Ram v. The State of Telangana2.

1 2017(2) ALD (Cri)(SC) 388 2 2022 LiveLaw (SC) 358

6. In S.M.D.Kiran Pasha v. Government of Andhra Pradesh3, the

Apex Court at para No.29, held as follows:

" .......Thus Section 10 makes it mandatory for the Government to place the ground on which the order has been made and the representation, if any made by the person affected by the order and in the case where the order has been made by an officer also the report by officer under sub- section (3) of Section 3. This section prescribes a period of three weeks from the date of detention irrespective of whether the person continues to be in detention or not. Therefore, even though the detenu was released, if the detention order was in force, his case was required to be placed before the Advisory Board. This being a mandatory provision and having not been complied with the detention order even if otherwise it was in force, cannot be said to have been in force after three weeks. Under Article 22 of the Constitution of India a person cannot be kept in detention beyond three months without referring his case to an Advisory Board under the appropriate law. In either case the appellant's case having not been referred to an Advisory Board the detention order cannot be said to have remained in force after the statutory period. It is, therefore, not necessary to go into the validity or otherwise of the grounds of detention".

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

for the 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.

7. It is submitted by the learned counsel for the respondents that

there is absolutely no illegality in the order nor is there any

procedural infirmity in the impugned action and in the absence of

3 (1990) 1 Supreme Court Cases 328

the same, the present writ petition filed under Article 226 of the

Constitution of India, is not maintainable.

8. Admittedly, the cases that were registered against the

detenue are with regard to the property disputes between the

individuals. The fact that in almost all the cases bail was granted to

the detenue is not denied either. Yet this important aspect was not

considered in the impugned detention order. This by itself vitiates

the order of detention. In the judgment of the Hon'ble Supreme

Court in Rekha v. State of Tamilnadu4 , it was held that so long as

ordinary criminal law is adequate to deal with the offences,

preventive detention without subjecting an individual to the

procedure of free and fair trial would infringe the fundamental right

to life and liberty guaranteed under Chapter III of Constitution of

India. These factors are missing in the impugned orders. The

alleged offences are under the penal laws only.

9. As held by the Apex Court, the further satisfaction required to

be recorded in such circumstances is also conspicuously absent in the

detention order. These two factors vitiate the entire order of

detention. On perusal of the record, last crime registered against the

detenue was on 02.08.2022 and detention order was passed on

02-02-2023. In between there are no offenses said to have been

4 2011 (5) SCC 244

committed by the detenue and no proximate cause was mentioned

by the respondents in their order that detenue may commit similar

offenses.

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

W.P.No.30649 of 2022 clearly demonstrates that this Court discussed

the law laid down in Gattu Kavitha v. State of Telangana 5 ,

Rushikesh Thanaji Bhoite v. State of Maharastra6 and three judge

Bench judgment of the Apex Court in Rekha v. State of Tamilnadu7

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".

After considering the above, this Court allowed W.P.No.30649 of 2022

granting relief in favour of the petitioner.

11. In the instant case also, the detenue will not fall under the

category of Section 2(g) of the Act since this Court could not find in

the order of detention that there is any material to either

5 2017(1) ALD Crl.224 6 (2012) 2 SCC 72 72011 (5) SCC 244

substantiate or justify the allegation that the detenue is a 'Goonda'.

Hence, we deem it appropriate to allow the present writ petition.

12. Accordingly, this Writ Petition is allowed setting aside the

order of detention passed by the 3rd respondent vide proceedings in

Rc.No.MC1/3699/2022 dated 02.02.2023. Consequently, the detenue

namely Manjula Naveen @ Vadde Manjula Naveen @ Naveen, S/o