Y Maddilety vs The State Of Ap
2023 Latest Caselaw 3092 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.712 of 2023


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

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

order of detention of his brother by name Yerukali Polenti Satyam, S/o

late     Yerukai   Devanna,    in   order    of   detention   vide   REV-

CSECOPDL(PRC)/5/2022-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 2nd 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 '...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 4 th

respondent to produce the detenue i.e., Yerukali Polenti Satyam, S/o

late Y.Devanna, who is now lodged in Central Prison, Kadapa, YSR

Kadapa District before this Hon'ble Court and he may be set at

liberty/ordered to be released forthwith by declaring the detention

order passed by the 2nd respondent herein vide proceedings REV-

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

confirmed by the 1st respondent herein vide G.O.Rt.No.182, dated

27.01.2023 as arbitrary, illegal and unconstitutional and pass such

order or further orders as this Hon'ble Court may deem fit and proper

in the circumstances of the case and in the interest of justice.'

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" within the definition of Sections

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. Later, the said order of detention came to be

confirmed by the Government vide G.O.Rt.No.182, dated 27.01.2023.

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 V.Nitesh, 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.

7. Learned counsel for the petitioner submits that the detenue was

allegedly involved in fourteen crimes, in which, some of the cases

registered due to family disputes and they can be dealt with under

general laws; that he was already acquitted in five cases, but the same

were not even considered by the authority; that the order of detention

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

as goonda and that the preventive detention shall not be passed or

confirmed in these circumstances and that offences alleged against the

detenue can be dealt with under the ordinary law and they do not

involve any disturbance of public order and the same cannot be used

for issuance of preventive detention order under Section 3 of the Act 1

of 1986. The learned counsel also relied upon the orders passed by this

Court in W.P.No.30649 of 2022 dated 06.03.2023 and W.P.No.39085 of

2022 dated 23.03.2023.

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 orders of this Court in W.P.No.30649 of 2022 dated

06.03.2023 and W.P.No.39085 of 2022 dated 23.03.2023 and orders

thereon were placed on record.

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

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

learned counsel for the respondents that there is absolutely no

illegality nor there exists any procedural infirmity in the impugned

action and in the absence of the same, the present writ is not

maintainable. He further submits that having regard to the gravity of

the offences, the order impugned in the writ petition do not warrant

any interference of this Court.

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 Telangana1, Rushikesh

Thanaji Bhoite v. State of Maharastra 2 and three judge Bench

judgment of the 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".

1 2017(1) ALD Crl.224 2 (2012) 2 SCC 72 32011 (5) SCC 244

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

of 2022 granting relief in favour of the petitioner.

12. On perusal of detention order, it is obvious that the preventive

detention was ordered against the detenue basing upon fourteen

crimes, out of which seven crimes were registered against him on a

complaint filed by his wife. It appears that it is a family dispute and

in those crimes the detenue was already acquitted. In two cases

pending for trial i.e., in Cr.Nos.11 of 2017 and 61 of 2018 on the file

of Kurnool III Town P.S. it is said that the detenue is said to have

committed bodily offences and it is clear these offences can be dealt

with under general penal laws. Nothing to the contrary is noted.

13. Even procedural laws were also not strictly followed by the

sponsoring authority, while passing the detention orders, as it is the

petitioner's specific contention that till date no advisory board

constituted in this case and advisory board did not pass any orders

nor recommended any orders, which amounts to procedural

irregularity as well not following the provisions contained under the

Act 1 of 1986.

14. Admittedly, on perusal of record, it reveals that a blanket

detention order was passed without specifying a period of detention

which is invalid as which is mandated under Section 3(2) of the Act;

the same is also reported in Lahu Shrirang Gatkal v. State of

Maharashtra4 . The fact that the detenue was granted bail in some

of the cases was not considered in the impugned detention order.

This by itself vitiates the order of detention. As held by the Apex

Court, the 'further satisfaction' required to be recorded in such

circumstances is also conspicuously absent in the detention order.

This factor also vitiates the entire order of detention.

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. Hence,

we are of the opinion that the detenue will not fall under the category

of Section 2(g) of the Act since the order of detention does not show

any material to either substantiate or justify the said allegation that

the detenue is a 'goonda' 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)/5/2022-SA(C1)-COLLKRNL, dated 28.11.2022 as

confirmed by the State Government vide G.O.Rt.No.182, dated

27.01.2023 and consequently, the detenue namely Yerukali Polenti

4 2017 (13) SCC 519

Satyam, S/o late Yerukai Devanna, is directed to be released forthwith

by the respondents if the detenue is not required in any other cases.

17. Miscellaneous petitions pending if any, stand closed. No order as

to costs.

___________________________ JUSTICE D.V.S.S.SOMAYAJULU

_________________ JUSTICE V.SRINIVAS Date: 12.05.2023

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

WRIT PETITION No.712 of 2023

DATE: 12.05.2023

Pab