Pedda Matangi Mounika vs The State Of Ap
2023 Latest Caselaw 3090 AP

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

                 WRIT PETITION No.36968 of 2022


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

      In this writ petition, the petitioner is challenging the order

of detention of her husband by name Peddamathangi Bramhaiah

@ Brammaiah @ Gummagadu, S/o.Naganna, aged 30 years, vide

Rc.C1/909/M/2022, dated 07.09.2022 passed by the 2nd

respondent-The Collector & District Magistrate, Nandyal District

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

G.O.Rt.No.2304, General Administration (SC.I) Department,

dated 01.11.2022 and prays to direct the respondent authorities

to set the detenue at liberty forthwith.

2. The Collector and District Magistrate, Nandyal 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') passed the impugned order of detention.

3. Heard Sri T.Ashok Srivastava, learned counsel for the

petitioner and Sri Syed Khader Mastan, learned counsel attached

to the office of learned Additional Advocate General for the

respondents.

4. It is submitted by the learned counsel for the petitioner that

total twenty-seven crimes were registered against the detenue,

out of which ten crimes were ended in acquittal, two crimes

settled before lok-adalat, four crimes are bound over cases,

convicted in one crime and ten crimes are at the stage of

investigation and pending for trial. He further submits that the

order of detention passed in violation of Article 21 of the

Constitution of India, without any material. He relied upon

judgments of Apex Court reported in Sama Aruna v. State of

Telangana1, Champion R.Sangma v. State of Meghalaya 2,

Dharmendra Suganchand Chelawat and others v. Union of

India3, Rekha v. State of Tamilnadu4, Kulvinder Singh v.

State of Haryana 5 and judgments of this Court in Gattu

Kavita v. State of Telangana6 and W.P.No.30649 of 2022,

dated 06.03.2023.

5. 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

1 2018 (2) SCC 150 2 2015 (16) SCC 253 3 1990 (1) SCC 746 4 2011 (5) SCC 244 5 2011 (5) SCC 258 6 2016 SCC Online Hyd 718

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

order is placed on record.

6. 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

warrants any interference of this Court under Article 226 of the

Constitution of India.

7. 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 case and Rushikesh Thanaji

Bhoite v. State of Maharastra7 case and three judge Bench

judgment of Apex Court in Rekha v. State of Tamilnadu 8

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

7 (2012) 2 SCC 72 8 2011 (5) SCC 244

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".

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

others9 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 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."

9. Recently, the Hon'ble Supreme Court in Pramod Singla v.

Union of India and Others10, held at Para No.48 as follows :

48. As has been mentioned above, preventive detention laws in India are a colonial legacy, and as such, are extremely powerful laws that have the ability to confer arbitrary power to the state. In such a circumstance, where there is a possibility of an unfettered discretion of power by the Government, this Court must analyze cases arising from such laws with extreme caution and excruciating detail, to ensure that there are checks and balances on the power of the

9 Crl.A.No.909 of 2022 (SLP(Crl).No.4283 of 2022) (Supreme Court of India) 10 2023 SCC Online SC 374

Government. Every procedural rigidity must be followed in entirety by the Government in cases of preventive detention, and every lapse in procedure must give rise to a benefit to the case of the detenue. The Courts, in circumstances of preventive detention, are conferred with the duty that has been given the utmost importance by the Constitution, which is the protection of individual and civil liberties. This act of protecting civil liberties, is not just the saving of rights of individuals in person and the society at large, but is also an act of preserving our Constitutional ethos, which is a product of a series of struggles against the arbitrary power of the British state.

10. In the present case also it is found there are lapses of

procedure and that as per the Pramod Singla case (referred to

above) every lapse in procedure must give rise to a benefit to the

case of the detenue. In this case there is a lapse found while

ordering detention and also confirming the same, resulting in the

finding that the order itself is not good as per law. Further the

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

as passing of order of preventive detention is on stale and non-

existing grounds. There is no proximity or live link between any

of the grounds which were taken as a basis for passing the order

of preventive detention by the respondents.

11. In the light of the above pronouncements by both the Apex

Court and this Court, this Court holds that the order of detention

is not based on any material to either substantiate or justify the

allegation that the detenue is a 'Goonda'. More so, it has been

specifically admitted and mentioned that in the seventy-seven

cases which were taken for consideration, in ten cases the

detenue was acquitted, two cases were settled before lok-adalat

and four cases are bound over cases. In addition when we

perused the detention order and grounds of detention, there was

no reference about the granting of bails in the concerned crimes.

Thus, it is obvious that the Sponsoring Authority has not placed

the relevant material i.e., bail orders were not placed before the

Detaining Authority and there was no effective consideration of

this fact. His likelihood of committing crimes after release is also

not properly considered. It is clear that the penal laws are

sufficient to deal with the situation mentioned in the order of

detention and that invoking provisions of preventive detention is

completely unnecessary as settled by this Court in several

judgments.

12. Moreover, on perusal of order, it does not contain the

involvement of detenue in the crimes alleged to have been

participated by him to show it will effect or likely to affect

adversely affect public order or danger to the public life or health.

The same is conspicuously silent in the orders passed by the

sponsoring authority. In view of the same the order becomes

contrary to law and unconstitutional.

13. For the above mentioned reasons as recorded, this Writ

Petition is allowed setting aside the order of detention passed by

the 2nd respondent vide proceedings in Rc.C1/909/M/2022,

dated 07.09.2022 as confirmed by the State Government vide

G.O.Rt.No.2304, General Administration (SC.I) Department,

dated 01.11.2022. Consequently, the detenue namely

Peddamathangi Bramhaiah @ Brammaiah @ Gummagadu,

S/o.Naganna, aged 30 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.

14. Miscellaneous petitions pending if any, stand closed.

_________________________________ JUSTICE D.V.S.S.SOMAYAJULU

______________________ JUSTICE V.SRINIVAS

Date: 12.05.2023 Note: 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

WRIT PETITION No.36968 of 2022

DATE: 12.05.2023

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