Kulathuri Hymavathi vs The State Of Ap
2023 Latest Caselaw 3089 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.36990 of 2022

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

      Initially, in this writ petition, the petitioner challenged the

order of detention of her husband Kulathuri Ayyappa @

Kulathuru Ayyappa @ Kolathuri Ayyappa, S/o.K.Venkatamuni @

Venkata Ramana, aged 32 years, vide Ref:C1/10495/2022, dated

22.10.2022 passed by the 2nd respondent-The Collector & District

Magistrate, Annamayya 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.2719 General Administration (SC.I) Department,

dated 19.12.2022, 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., Kulathuri

Ayyappa, S/o.K.Venkatamuni, 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 Ref:C1/10495/2022, dated 22.10.2022 passed by

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

vide G.O.Rt.No.2719 General Administration (SC.I) Department,

dated 19.12.2022 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, Annamayya 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 out of

seven cases, the detenue was granted bail in six cases, but 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. It is also

submitted that out of seven cases, in five cases the detenue was

not initially shown as accused and subsequently based on

confessions, fabricated the cases against him. He also submits

that the penal laws are sufficient to deal with the situation and

that invoking the provisions of preventive detention is completely

unnecessary.

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 even informed to the

detenue, thereby, it vitiates the entire order of preventive

detention. He relied upon judgments of this Court in Vasanthu

Sumalatha v. State of Andhra Pradesh1 and W.P.No.26637

of 2022.

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

1 2015 SCC Online Hyd 790

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 Telangana2 case

and Rushikesh Thanaji Bhoite v. State of Maharastra3 case

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

State of Tamilnadu4 case, in which the Apex Court held as

follows:

2 2017(1) ALD Crl.224 3 (2012) 2 SCC 72 4 2011 (5) SCC 244

"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 others5

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 detenu is much a

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

six cases, out of seven cases and the said fact was admitted by

5 Crl.A.No.909 of 2022 (SLP(Crl).No.4283 of 2022) (Supreme Court of India)

the respondents in their counter. 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. It is clear that the penal laws are sufficient to deal

with the situation mentioned in the order of detention as per

Vasanthu Sumalatha's case (referred to supra) and that invoking

provisions of preventive detention is completely unnecessary as

settled by this Court in several judgments. 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, this Writ Petition is allowed,

setting aside the order of detention passed by the 2nd respondent

vide proceedings in Ref:C1/10495/2022, dated 22.10.2022 as

confirmed by the State Government vide G.O.Rt.No.2719 General

Administration (SC.I) Department, dated 19.12.2022.

Consequently, the detenue namely Kulathuri Ayyappa @

Kulathuru Ayyappa @ Kolathuri Ayyappa, S/o.K.Venkatamuni @

Venkata Ramana, aged 32 years, is directed to be released

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

other cases. No orders as to costs.

14. Miscellaneous petitions pending if any, stand closed.

_________________________________ JUSTICE D.V.S.S.SOMAYAJULU

______________________ JUSTICE V.SRINIVAS Date: 12.05.2023 Issue C.C. today B/o.

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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.36990 of 2022

DATE: 12.05.2023

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