Malle Lidiya vs The State Of Ap
2023 Latest Caselaw 4684 AP

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
                                 AND
  THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO


                WRIT PETITION No.18683 of 2023

 ORDER: (Per Hon'ble Sri Justice Tarlada Rajasekjhar Rao)

       The present Writ Petition for habeas corpus is filed under

 Article 226 of the Constitution of India, praying to produce the

 detenu-Mangalagiri Rahul Teja @ Kings Rahul before the Court and

 set him at liberty forthwith by setting aside the order of detention

 passed by the 2nd respondent, vide proceedings No.RC.01/2023C1

dated 09.01.2023, as confirmed by the 1st respondent vide

G.O.Rt.No.440, General Administration (SC.I) Department dated

03.03.2023, as it is illegal, arbitrary, violation of Article 21 of the

Constitution of India and unconstitutional and in violation of

principles of natural justice and contrary to law.

2. Heard learned counsel for the petitioner and learned Assistant

Government Pleader attached to the office of the learned Advocate

General, appearing for the respondents.

3. The present Writ Petition is filed by the wife of the detenu-

Mangalagiri Rahul Teja @ Kings Rahul on the grounds that the

detention order passed by the detaining authority under 3(1)&(2) of

the Andhra Pradesh Prevention of Dangerous Activities of

Bootleggers, Decoits, Drug Offenders, Goondas, Immoral Traffic

Offenders and Land Grabbers Act, 1985 (for short, 'the Act') was

without any application of mind and the allegations made in the

detention order are vague, irrelevant and non-existing grounds

without any support of evidence, there is absolute absence of

proximity in time in the incidents cited, no nexus between the

incidents relied on and the satisfaction arrived at, malafides

apparent on record and the incidents which were shown in the

detention order that took place from 03.03.2018 to 04.09.2022

clearly establish that the detention order was passed on 09.01.2023

after a minimum lapse of 4 months 5 days upto 8 years and the

detenu cannot be fitted in the definition of 'goonda' and the detenu

was granted bails and the same were not considered by the

detaining authority and a representation was made on 08.04.2023

and the same was not disposed of. The sponsoring authority has

wrongly implicated the detenu under the prevention detention laws

by invoking the cases booked against the detenu as 'juvenile in

conflict with law' despite clear statutory prohibition under Section

22 of the Juvenile Justice (Care and Protection of Children) Act,

2015. Therefore, prayed to set aside the detention order dated

09.01.2023 and the consequential confirmation order dated

03.03.2023.

4. Oppugnant and repelling to the contentions raised in the writ

petition, the respondents have filed their counter and denied all the

factual as well as legal assertions made in the writ petition and

would contend that the detenu was involved in as many as 8 crimes

and he has no respect towards law. The detenu has attacked the

people in and around with knife and stabbed and as a result, the

victim sustained bleeding injuries and therefore the said offences

committed by the detenu are punishable under Chapter VII, XVII

and XXII of the Indian Penal Code (IPC). Such activities of the

detenu fall within the meaning of 'goonda' and as defined under

Section 2(g) of the Act and the offences committed by the detenu are

so interlinked and continuous in character and are of such a nature

that they affect the community at large continuously jeopardizing

the maintenance of public order and the present laws are not

deterring and curbing his illegal activities or reformation in spite of

several cases being registered against the detenu. If he is released

on bail, he would again indulge in similar activities which are

prejudicial to the maintenance of public order. The Advisory Board

reviewed the detenu's case on 22.02.2023 through video and

therefore the allegation that the District Collector has passed the

order of detention in a highly mechanical fashion without

application of mind is not correct and denied.

5. Learned counsel for the respondents relied on the judgment of

the Supreme Court in Odut Ali Miah v. State of West Bengal 1,

wherein the Supreme Court held that the test of proximity is not a

rigid or mechanical test to be blindly applied by merely counting the

number of months between the offending acts and the order of

detention. He also relied on the judgment of the Supreme Court in

Subramanian v. State of Tamil Nadu and another 2, wherein the

Supreme Court held that the subjective satisfaction of the detaining

authority cannot be tested by the Courts under Article 226 of the

Constitution of India.

6. However, at paragraph No.22 of the counter affidavit, it was

stated that the petitioner's representation was forwarded on

08.04.2023 and the same was received by the Government on

17.04.2023 and the Government decision is still pending as on the

date of deposing the counter affidavit dated 19.04.2023.

7. The contention raised by the respondents that this Court

cannot test the subjective satisfaction under Article 226 of the

Constitution of India is myth, but however, it does not mean that

the subjective satisfaction of the detaining authority is wholly

immune from judicial reviewability and by judicial decisions, the

Courts have carved out areas, though limited, within which the

(1974) 4 SCC 129

(2012) 4 SCC 699

validity of subjective satisfaction can be tested judicially. Therefore,

the contention of the learned counsel for the respondents that the

Court cannot test the subjective satisfaction is rejected.

8. The petitioner has pleaded that the detenu was a juvenile,

ergo the Preventive Detention Act is not applicable to him and relied

on the provision of Section 22 of the Juvenile Justice Act, 2015. As

seen from the cause title, the detenu was aged about 22 years.

Under Section 2(35) of the Juvenile Justice Act, 'juvenile' means a

child below the age of 18 years. The petitioner has not filed any

document to establish that the detenu was a juvenile and the said

pleading was made only to mislead the Court and such practice is

deprecated. As there is no evidence to show that the detenu was

below the age of 18 years, under Section 2(35) of the Juvenile

Justice Act, the contention of the petitioner has no legs to stand.

Accordingly, it is rejected.

9. As held by the Supreme Court in Pushkar Mukherjee and

others v. State of West Bengal3, that if the detention order is

questioned on more than one ground and if the Court accepts one

ground of challenge for quashing the detention order irrespective of

the failure to subjective satisfaction, the detention order is liable to

be quashed.

(1969) 1 SCC 10

10. In the present case on hand, it is admitted at paragraph No.22

of the counter affidavit that a representation was forwarded

08.04.2023 and the same was received on 17.04.2023 and the same

was not disposed of till the date of 19.08.2023.

11. The delay in disposal of the representation of the detenu

would vitiate only the continued detention of the detenu, and not

the detention order. As the reason for the delay is not explained

satisfactorily, but have admitted that it was not disposed of, then

further detention would amount to illegal and unconstitutional.

12. It is apt to consider the judgments of the Supreme Court in

Abdul Nasar Adam Ismail v. State of Maharashtra4, Kundanbhai

Dulabhai Shaikh v. Distt. Magistrate, Ahmedabad 5, Rama Dhondu

Borade v. V.K. Saraf6, Devi Lal Mahto v. State of Bihar 7, Meena

Jayendra Thakur v. Union of India8. In all the cases, no explanation

is forthcoming, in the counter-affidavits filed before the Court, for

the delay in considering the representation. The delay in disposal of

the representation of the detenu would vitiate only the continued

detention of the detenu, and not the detention order. By reason of

the delay, only further detention of the detenu is rendered illegal

and unconstitutional.

(2013) 4 SCC 435

(1996) 3 SCC 194

(1989) 3 SCC 173

(1982) 3 SCC 328

(1988) 8 SCC 177

13. Hence, we are inclined to set aside the impugned order of

detention following the principles laid down in the above said

judgments relating to delay in disposal of the representation of the

detenu as it vitiates the continuation of the detention.

14. Resultantly, the present Writ Petition is allowed and the

impugned order of detention passed by the 2nd respondent, vide

proceedings No.RC.01/2023C1 dated 09.01.2023, as confirmed by

the 1st respondent vide G.O.Rt.No.440, General Administration

(SC.I) Department dated 03.03.2023, is hereby set aside. The

respondents are hereby directed to set the detenu at liberty

forthwith, if he is not required in any other case.

As a sequel, miscellaneous petitions, if any, pending in this

case, shall stand closed. There shall be no order as to costs.

________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 05.10.2023 siva

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY AND THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO

WRIT PETITION No.18683 of 2023

Date: 05.10.2023

siva