B Lakshmi Devi vs The State Of Ap
2023 Latest Caselaw 3047 AP

            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.2771 of 2023

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

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

order of detention of her husband by name Boya Kothula Ramanaidu,

S/o Bazari, aged 35 years, in order of detention vide proceedings

REV-CSECOPDL(PRC)/04/2022-SA(C1)-COLLKRNL,            dated    28.11.2022

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

Kurnool District and prays to direct the 4th respondent to produce the

detenue, who is detained in Central Prison, Kadapa, YSR District and

to set the detenue at liberty forthwith.

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

was confirmed by the 1st respondent-State, the petitioner filed

I.A.No.1 of 2023 to amend the prayer of the writ petition as '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 Boya Kothula Ramanaidu, S/o Bajari,

who is now detained in Central Prison, Kadapa, YSR District before

this Hon'ble Court and he may be ordered to be released forthwith

after declaring his detention vide proceedings REV-

CSECOPDL(PRC)/04/2022-SA(C1)-COLLKRNL, dated 28.11.2022 passed

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

G.O.Rt.No.142 General Administration (SC.I) Department, dated

20.01.2023 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, Kurnool District, while

categorizing the detenue as "Goonda and Bootlegger" within the

definition of Sections 2(g) and 2(b) 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') passed the impugned order of detention. Later,

the said order of detention came to be confirmed by the Government

vide G.O.Rt.No.142 General Administration (SC.I) Department, dated

20.01.2023.

5. 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.

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

petitioner and Sri Khader Mastan, learned counsel attached to the

office of learned Additional Advocate General for the respondents.

7. Learned counsel for the petitioner submits that the grounds

for detention are not at all grievous offences; that the detenue was

allegedly involved in six crimes and they can be dealt with under

general laws and he was already granted bail in five crimes, but the

same were not even considered by the authority; that the material

relied upon by the authorities was not supplied to the detenue within

the prescribed period of five days; that the detaining authority has

not given any clarity as to whether the detenue will fall under the

criteria of goonda or bootlegger and that the order of detention do

not have any material to either substantiate or justify the detenue as

goonda and bootlegger and that the preventive detention shall not be

passed or confirmed in these circumstances. The learned counsel also

relied upon judgments passed by this Court in W.P.No.5469 of 2022

dated 11.07.2022 as well as the judgment of the Hon'ble Supreme

Court in Rekha v. State of Tamilnadu1.

8. 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.5469 of 2022

1 2011 (5) SCC 244

dated 11.07.2022, W.P.No.30649 of 2022, dated 06.03.2023 and

W.P.No.36437 of 2022 dated 21.03.2023. Copy of order in W.P.No.5469

of 2022 is placed on record.

9. The learned counsel for the respondents reiterating the

averments made in the counter affidavit filed by the respondents,

justifying the order of the District Magistrate as the detenue is a

habitual offender and argues that his acts are prejudicial to the

public order; that he is goonda and bootlegger and 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 orders passed by this Court in Chittipothula

China Muthyalu (W.P.No.5469 of 2022 dated 11.07.2022),

W.P.No.30649 of 2022, dated 06.03.2023 and W.P.No.36437 of 2022

dated 21.03.2023 clearly demonstrate that the existence of element

of disturbance to the public order is held to be a sine qua non for

invoking the provisions of Section 3 of the Act 1 of 1986. The said

power, conferred on the authorities, is required to be exercised with

a lot of care, caution and circumspection and that same cannot be

exercised in a routine and mechanical manner. In (W.P.No.5469 of

2022), this Court considering the rule position stated in Ram

Manohar Lohiya v. State of Bihar 2 , PiyushKanthilalMehatha v.

Commissioner of Police Ahmadabad City 3 , MalladhaK.Sriram v.

State of Telangana4, held that the satisfaction, as stipulated under

Section 3 of the Act, should necessarily be a subjective satisfaction

and is required to be on the basis of cogent and convincing material

and not on the foundation of stale and sterile reasons. Recording of

reasons for such satisfaction is also indispensable and imperative. 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 Prohibition laws only.

11. 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 a lot of care,

2 AIR 1966 SC 740 3 1989 Supp (1) SCC 322.

4 Crl.A.No.561 of 2022 (Supreme Court of India)

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 Meghalaya 5, wherein, the Hon'ble Supreme

Court while dealing with the provisions of the Preventive detention,

at paragraphs-13 and 14 held as follows:

"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 the 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 in 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."

5 (2015) 16 Supreme Court Cases 253

12. In Gattu Kavita v. State of Telangana6, 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."

13. In the present case also, the detenue was already enlarged on

bail and the said fact is not disputed in the counter. A perusal of the

detention order and grounds of detention, would show the detaining

authority as well sponsoring authority has not taken into

consideration the fact that the detenue was on bail in all those cases

and no opinion has been expressed as to whether the preventive

detention of detenue was essential or not. No discussion is also there

in the order that the actions of the detenue will have any potential

effect the public order.

14. So long as ordinary criminal law is adequate to deal with the

offences, preventive detention without subjecting an individual to

6 2016 SCC Online Hyd 718 = (2017)1 ALD (Cri) 224

the procedure of free and fair trial would infringe the fundamental

right to life and liberty guaranteed under Chapter III of Constitution

of India. Material papers are also not supplied to the detenue

within the period prescribed under the law. Further perusal of the

order shows, there is no clarity in the detention order as it lacks

clarity as to whether the activities of the detenue fall under Goonda

or Bootlegger. There is no sufficient material to declare the acts of

the detenue are Goonda or a Bootlegger.

15. Having regard to the facts of this case, this Court is of the

considered opinion that the order impugned was made without

proper application of mind and there is a serious procedural violation.

The detenue will not fall under the category of Sections 2(g) and 2(b)

of the Act and that this Court could not find that the order of

detention has any material to either substantiate or justify the said

allegation that the detenue is a 'Goonda and Bootlegger' whose

activities would be actually prejudicial to public order.

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

order of detention passed by the 2nd respondent vide proceedings in

REV-CSECOPDL(PRC)/04/2022-SA(C1)-COLLKRNL, dated 28.11.2022 as

confirmed by the State Government vide G.O.Rt.No.142 General

Administration (SC.I) Department, dated 20.01.2023. Consequently,

the detenue namely Boya Kothula Ramanaidu, S/o Bazari, aged 35

years, is directed to be released forthwith by the respondents if the

detenue is not required in any other cases. No order as to costs.

17. Miscellaneous petitions pending if any, stand closed.

___________________________ JUSTICE D.V.S.S.SOMAYAJULU

_________________ JUSTICE V.SRINIVAS Date: 11.05.2023

Note:

Issue C.C today.

B/o.

Pab

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.2771 of 2023

DATE: .05.2023

Pab