Andhra Pradesh High Court - Amravati

Dalayi Bhavana vs The State Of Andhra Pradesh, on 10 November, 2023

Bench: U.Durga Prasad Rao, Kiranmayee Mandava

       HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
                         AND
      HON'BLE SMT. JUSTICE KIRANMAYEE MANDAVA

                       Writ Petition No.26549 of 2023

ORDER: (Per Hon'ble Sri Justice U. Durga Prasad Rao)

      In this writ petition filed under Article 226 of the Constitution of

India, the petitioner challenges the detention of her husband Dalayi

Chanti    Babu    as     per   the   order   of   detention    in     REV02-

MGSTOLWOD/29/2023-MAG-CCLA dated 09.07.2023 passed by 2 nd

respondent-District Collector & District Magistrate, ASR District, Paderu

and confirmed by the 1st respondent as per G.O.Rt.No.1772, General

Administration (SC.1) Department dated 04.09.2023 and prays to direct

the respondent authorities to set the detenue at liberty forthwith.

2. By the proceedings dated 09.07.2023, the 2nd respondent passed the

detention order under Section 3(1) and (2) of the Andhra Pradesh

Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug

Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act,

1986 (1 of 1986) [for short, 'the Act 1 of 1986'] treating the detenue as

'Drug Offender' under Section 2(f) of the Act 1 of 1986 on the subjective

satisfaction that the detenue is acting in a manner prejudicial to the

maintenance of public order since he has been habitually involved in

criminal activities with other associates and even though a number of

cases were registered against him, he did not change his attitude and

increasing his activities day to day. Following cases in which the detenue

was involved were taken as ground for ordering his detention.

     S.No.                  Cr. No. & Sec. of Law                      Date
       1     Cr. No.90/2021 u/s 20(b)(i) of the NDPS Act, 1985 of   14.05.2021
             Paderu Police Station
      2      Cr. No.159/2021, u/s 20(b)(ii)(c) r/w 25, 8(C) of      17.10.2021
             NDPS Act, 1985 of Paderu Police Station
      3      Cr. No.09/2023 u/s 8(c) r/w 20(b)(ii)(B) of the NDPS   22.01.2023

Act, 1985 of Sullurpet Police Station, Thirupathi District 4 Cr. No.103/2023 U/s 20(b)(ii)(c) r/w 8(c), 25 NDPS 22.04.2023 Act of Anakapalli Rural Police Station, Anakapalli District

In the grounds of detention, it is stated that the detenue was

habitually involved in the cases of storing and selling the Ganja through

various means by indulging in clandestine activities and distributing and

selling Ganja which is highly injurious to human health, which may cause

huge damage to public health, public peace and tranquillity.

3. The 2nd respondent filed counter and opposed the writ petition.

4. Heard arguments of Sri D.Purna Chandra Reddy, learned counsel

for the petitioner and Special Government Pleader representing learned

Advocate General for respondents.

5. Though several grounds were raised against the detention order, it

is mainly argued on behalf of the petitioner that the detenue was granted

bail in 3 out of 4 cases but the Sponsoring Authority deliberately

suppressed the said information and the failure of the Sponsoring

Authority to place the information before the detaining authority vitiates

the entire order of preventive detention. The duty is cast on the

Sponsoring Authority to place before the 2nd respondent, apart from the

materials relating to the 4 crimes, also the bail applications and bail

orders for consideration and satisfaction of the detaining authority.

Learned counsel would strenuously argue that only on coming to the

satisfaction that while on bail there is a likelihood of detenue's repeating

similar offences and acting prejudicial to the maintenance of public order,

the detaining authority shall pass the detention order.

He further argued that it is the duty of the detaining authority to

furnish along with grounds of detention, the materials considered by him

which include the bail applications and bail orders. All these materials

have to be furnished to the detenue to make an effective representation to

the Advisory Board or the Government. Learned counsel would lament

that in this case the said procedure has been grossly infracted by the

authorities, inasmuch as, in the detention order there is no mention about

forwarding of the bail applications and bail orders to the defence and his

considering them and arriving at a opinion. Due to non-furnishing of the

bail applications and bail orders, the detenue was denuded of valuable

opportunity to make an effective representation before the Advisory

Board. Due to such violation, the learned counsel would emphasise, the

detention order became illegal. He placed reliance on Gattu Kavita v.

State of Telangana 1 and Vasanthu Sumalatha v. State of Andhra

Pradesh, rep. by its Chief Secretary, Hyderabad 2 , and in

W.P.No.17210/2022 of the High Court of A.P.

6. Learned Special Government Pleader while opposing the writ

petition argued that merely the detenue was granted bail in the cases

which were taken as a ground for detention that cannot be a ground to

claim immunity or insulation from detention. On the other hand, there is

a possibility of misusing the freedom granted under the bail and to

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

2015 SCC Online Hyd 790 = (2016) 1 ALT 738 (DB)

commit habitual offences. The detaining authority having considered the

involvement of the detenue habitually in similar offences, made a logical

prognosis of his future behavior. Therefore, the detenue was on bail in 3

cases is of no consequence. He argued that bail orders were furnished to

the detenue. He alternatively argued that non-furnishing of bail orders to

the detenue will not render the detention illegal. He placed reliance on

Sunila Jain v. Union of India 3 . He would further argue that the

activities of the detenue were very much prejudicial to the maintenance of

public order as the detenue along with some others committed series of

storing and selling the Ganja through various means by indulging in

clandestine activities and distributing and selling Ganja. Hence, his

detention is justified.

7. The point for consideration is whether there are merits in the writ

petition to allow?

8. Point: We gave our anxious consideration to the above respective

arguments. The primary argument of the petitioner is about the

procedural violation. True is that as submitted by learned Special

Government Pleader, a person on bail is neither immuned nor insulated

MANU/SC/8053/2006 = (2006) 3 SCC 321

from preventive detention. Still, the detaining authority upon considering

the material and other facts can form an opinion that the chances of

misuse of bail by such person and his repeating similar offences cannot

be ignored, order for preventive detention. There is no demur on this

aspect. However, the crux of the petitioner's argument is not about the

lack of power of the detaining authority to order preventive detention

against a person who is on bail. On the other hand, the argument of the

learned counsel for petitioner is that in 3 out of 4 crimes which were

considered for ordering detention, the detenue was granted bail and the

Sponsoring Authority have not placed the materials relating to bail

applications and bail orders before the detaining authority for his

consideration. Had such information been brought to the notice of the

latter, considering that conditional bails were granted in favour of detenue

and that his movement was already restricted by the judicial orders, the

detaining authority would not have ordered preventive detention.

We find considerable force in the above argument. Preventive

detention under Article 22 of the Constitution of India is an exception to

Article 21. It being not a punitive detention, the law cautioned the

detaining authority to scrupulously follow the safeguards and procedures

before ordering preventive detention. One of such procedural safeguards

is that if the detenue was already granted conditional bails in the crimes

which were taken as a ground for ordering preventive detention, it will be

the solemn duty of the Sponsoring Authority to bring the said fact to the

notice of the Detaining Authority by placing before it the bail

applications and bail orders for its consideration. Failure on the part of

the Sponsoring Authority to do so and also the failure on the part of the

Detaining Authority to consider aforesaid material on being placed before

it, render the detention per se illegal. The law on this aspect is no more

res integra. In Vasanthu Sumalatha (2 supra), a Division Bench of the

common High Court of Andhra Pradesh has observed thus:

"43. If the bail order, which is a vital material, is not considered, the satisfaction of the detaining authority itself would be impaired. (V. Muragesh v. Collector and District Magistrate, Chittoor (2013 Crl.L.J.

585); Durgam Subramanyam v. Government of A.P. (2013 (4) ALT 243 (D.B); State of U.P v. Kamal Kishore Saini ((1988) 1 SCC 287; M. Ahamedkutty vs Union Of India 1990 SCR (1) 209, 1990 SCC (2) 1. Non- placing and non-consideration of material, as vital as the bail order, vitiates the subjective decision of the detaining authority, and the Court cannot attempt to assess in what manner, and to what extent, consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority. (Rushikesh Tanaji Bhoite v. State of Maharashtra (2012) 2 SCC 72). Failure of the sponsoring authority to

place the conditional orders, granting anticipatory bail/bail, before the detaining authority is fatal as it is a vital material which would have weighed with the detaining authority at the time of passing the detention order. [Durgam Subramanyam's case (supra).

54. Neither the order nor the grounds of detention refer either to the conditional or the unconditional orders of bail granted in favour of the detenus. As noted hereinabove failure of the detaining authority to consider the orders granting conditional bail would vitiate the orders of detention. ..xxx..."

9. It should be noted that in the above decision, the judgment in

Sunila Jain's case (3 supra) relied upon by the learned Special

Government Pleader was distinguished on facts. In Sunila Jain, copy of

the order granting bail and order of remand has been furnished to the

detenue. In that context, it was observed by the Hon'ble Apex Court that

non-furnishing of a copy of the application of bail cannot be said to be a

ground and that all the documents placed before the detaining authority

are not required to be supplied and only relevant and vital documents are

required to be supplied. The said judgment was distinguished in

Vasanthu Sumalatha case (2 supra) as follows:

"53. Unlike in Sunila Jain (supra) where a copy of bail application, for an offence which was bailable, was not furnished and a copy of the order granting bail and the order of the remand were furnished to the detenu, in

the present case the orders granting conditional bail were neither considered by the detaining authority nor were copies thereof furnished to the detenu. The conditional orders of bail restricted the movement of the detenus and required them to appear before the officer concerned periodically. If these conditional orders of bail had been brought to his notice, it may well have resulted in the detaining authority arriving at the subjective satisfaction that the detention of the detenus were unnecessary. Reliance placed by the Learned Advocate-General on Sunila Jain (supra) is, therefore, misplaced."

In Gattu Kavitha case (1 supra), 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."

10. In the light of the above jurisprudence, when facts of the instant

case are perused, in the counter filed by the 2nd respondent, it has been

specifically admitted and mentioned that out of 4 cases which were taken

for consideration, the detenue was granted bail in almost 3 cases.

However, when we perused the detention order and grounds of the

detention, there was no reference about granting of conditional bails in

the concerned crimes. Thus, it is obvious that the Sponsoring Authority

has not placed the relevant material i.e., bail applications and bail orders

before the Detaining Authority and there was no effective consideration

of this fact. Further, along with the counter the 2nd respondent enclosed

the material papers from page 36 to 192 which were said to be furnished

to the detenue after detention. However, these material papers do not