Jajimoggala Siva Lakshmi vs The State Of Ap
2023 Latest Caselaw 4768 AP

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


             WRIT PETITION No.22428 of 2023

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

        The present Writ of habeas corpus is filed to produce

  the detenu by name Jajimoggala Tata Babu @ Bennar who is

  now detained in Central Prison, Visakhapatnam, before this

  Court and to set him at liberty by declaring the detention

  order dated 19.06.2023 and the confirmation order dated

  11.08.2023 as illegal, unconstitutional and it is violation of

  Article 21 of the Constitution of India.


  2.    Heard learned counsel for the petitioner, Sri Syed

  Khadir Masthan, learned Assistant Government Pleader

  attached to the office of learned Additional Advocate General,

  appearing for respondents.

3. The 2nd respondent District Collector and the District

Magistrate vide proceedings dated 19.06.2023 has detained

the detenu, as the detenu was involved in three crimes

namely 1) Cr.No.21/2011-12, 2) Cr.No.158/2021 and

3) Cr.No.04/2023 and the said crimes were registered against

the detenu under Section 20 (b) (ii) r/w 8(c) of Narcotic Drugs

and Psychotropic Substances Act, 1985, by exercising powers

conferred under Section 3(1) 2 (f) of Andhra Prevention of

Dangerous Activities of Bootleggers, Dacoits, Drug Offenders,

Goondas, Immoral Traffic Offenders and Land Grabbers Act,

1986 (hereinafter called the Act) on the ground that the

detenu was warned several times by local police to safeguard

public interest, in spite of it, the detenu has not changed his

attitude and continued illegal activities of stocking and selling

of Ganja. It is noticed that the said activities committed by

the detenu are detrimental to the public safety and security.

As such the detaining authority has arrived to the subjective

satisfaction as the activities of the detenu clearly fall under

drug offender under Section 2(f) of the above said Act.

4. The subjective satisfaction arrived by the 2nd

respondent-District Collector is that the detenu was involved

in three cases and he did not change his attitude and he has

been continuing illegal activities of stocking and selling ganja

which are detrimental to the public safety and security and

on the said ground, the detention order was passed.

5. Assailing the said detention order and the

consequential confirmation order passed by the 2nd

respondent and 1st respondent, in the present Writ Petition

on the ground that (i) the detention order was served on the

detenu and also the jailor and the sponsoring authority has

not placed the bail orders which were granted to the detenu,

if the order was placed before the detaining authority, the

detaining authority would have taken a different stand or

dissuade to pass the detention order (ii) on the day of passing

of the said detention order i.e. 19.06.2023, there is no

absolute necessity to pass the order of detention against the

detenu as he was in judicial custody (iii) not assigned any

reasons to detain the detenu who is in judicial custody and

regarding the imminent possibility of his release on bail, and

(iv) out of three cases, two cases did not have any proximity

upon the said incidents which are occurred in the year 2011-

2012 and the second incident which was occurred in the year

2021 and the 3rd incident which was occurred in 2023, there

is almost a gap of ten years between the first and 2nd

incidents. Therefore, the grounds which are made as basis to

arrive at the subjective satisfaction by the 2 nd respondent is

unknown to law and it is contrary to Article 22 clause 3 to 5

of the Constitution of India. Hence, prayed to set aside the

detention order and the consequential confirmation order and

relied on the judgment of this Court passed in W.P. No.3790

of 2023 dated 03.07.2023 and batch of Writ Petitions in W.P.

No.7335 of 2023 dated 03.07.2023.

6. Denying all the contentions raised by the detenu, the

2nd respondent herein filed counter affidavit stating that the

detention order was served to the detenu and also to the

jailor on 20.06.2023 under proper acknowledgement in

Central Prison, Visakhapatnam and it was admitted in para

no.4 that the detenu was released on bail in all the cases

except in crime No.4/23. Considering his involvement in the

above said cases, the cases were registered against the

detenu and the said contraband was sent to the chemical

analysis and the chemical examiner has given his chemical

analysis report stating that the said contraband was

potentially dangerous to public health. The detenu has no

respect for the ordinary laws. Therefore, it made to pass the

present detention order and it was asserted that all the

formalities as contemplated under the Act and Article 22 of

the Constitution of India, has been followed and therefore,

pleaded that no interference is required by this Court.

Hence, prayed to dismiss the Writ Petition.

7. It is the contention of the detenu that the material

relied by the detaining authority was not served on the

detenu. In the counter filed by the 2nd respondent-detaining

authority at para no.2, it was asserted that the "detention

order" was served to the detenu and also to the jailor on

20.06.2023. It is the case of the detenu that he was granted

bail and it was admitted by the 2nd respondent herein in the

counter and it was not stated in the counter that the bail

orders were served on the detenu. Therefore, it clearly

violates clause 5 of Article 22 of the Constitution of India and

on the sole ground the detention order is vitiated.

8. He also relied on the orders of this Court in W.P.

No.3790 of 2023 for the proposition that it is incumbent on

the detaining authority that all vital material should be

placed before the detaining authority to enable him to arrive

at the subjective satisfaction as to the necessity of passing

the order of detention and the said proposition was derived

from the judgment of the Apex Court in M. Ahamedkutty v.

Union of India and another1 and also in State of U.P. v. Kamal

Kishore Saini.

In the present case, it was categorically asserted in

paragraph No.2 of the Counter affidavit that the detenu was

supplied only with the detention order and no bail orders

were supplied or placed before detaining authority. Hence,

the subjective satisfaction arrived at by the 2 nd respondent

cannot be said to be in accordance with law. Therefore, the

detenu was not able to make effective representation before

the detaining authority. Therefore, undoubtedly, the

impugned order of detention passed against the detenu is

illegal and it is vitiated for non-compliance of the mandatory

requirements of law.

9. The subjective satisfaction is not an empty formality,

broad application of rational mind to the facts of the case is

essential and it can be arrived at on the basis of some material

by assigning reasons to arrive at such satisfaction.

While passing of detention order the detaining authority

has to consider the following aspects which have illustratively

laid on going through slew of judgments of the Apex Court:

(1990) 2 SCC 1

(i) Mere quoting that 'the detaining authority is satisfied' is not a ground of detention, it has to assign valid reasons.

(ii) Has to assign reasons how the activities which affect adversely or likely to affect adversely, the maintenance of public and public order.

(iii) And has to assign whether an ordinary penal laws would sufficient to deal with the detenu to take of the situation and material to that affect.

(iv) Has to assign valid reasons how the activities of the detenu would directly or indirectly cause any harm, danger, or alarm or feeling insecurity among the general public or any section thereof or a grave widespread danger to life or public health.

(v) Whether any bail was granted to the detenu, and the observations made in the bail orders and how many cases the detenu was acquitted.

(vi) Whether the relevant material was supplied to the detenu in the language known to the detenu, so as that detenu to make an effective representation to the competent authority as the detenu is not entitled to engage a lawyer as it is mandated under Article 22 (5) of the Constitution of India.

(vii) To obtain analysis report from the analyst before passing the detention repose, when the detenu was detained under Bootlegger or under drug offender under Section 2

(b) & 2 (f) of the Act respectively.

(viii) Whether the detenu was juvenile under the Juvenile Justice Act, whether he can be detained under the preventive detention contrary to the Juvenile Justice (Care and Protection of Children) Act, 2005, detention under the Act.

(ix) Live and proximate link to provide a rational nexus between the incidents relied on and the satisfaction arrived at.

(x) The mere apprehension of an adverse impact to public order and mere surmise of the detaining authority is not a ground to detain the detenu unless the apprehension must be based on cogent material and valid reasons.

(xi) If the detaining authority while passing of the detention order is aware of that the detenu is in judicial custody then he has to assign reason for such belief, the basis and the reliable material placed before him (a) that there is real possibility of the detenu being released on bail (b) that on being so released the detenu would all probability indulge in prejudicial activity.

(xii) The detaining authority has to assign reasons that there is every probability/possibility that the detenu will be released on bail and that he would indulge in similar activities in future.

(xiii) Ingredients enumerated under the definitions of Drug Offender and Goonda can be taken into consideration to pass the detention order under Bootlegger or in vice versa.

10. In Yumman Ongbi Lembi Leima Vs. State of Manipur &

Ors.2, the three-Judge Bench had held that the personal liberty

of an individual is the most precious and prized right

guaranteed under the Constitution in Part III thereof. The State

has been granted the power to curb such rights under criminal

laws, as also under the laws of preventive detention, which,

therefore, are required to be exercised with due caution as well

as upon a proper appreciation of the facts as to whether such

acts are in any way prejudicial to the interest and the security

of the State and its citizens, or seek to disturb public law and

order, warranting the issuance of such an order.

11. In State of Maharashtra v. Bhaurao Punjabrao Gawande,

(2008) 3 SCC 613 : Grounds to challenge:

An order of detention can be challenged on certain

grounds, such as, the order is not passed by the competent

authority, condition precedent for the exercise of power does not

exist; subjective satisfaction arrived at by the Detaining

Authority is irrational, the order is mala fide; there is non-

application of mind on the part of the Detaining Authority in

passing the order; the grounds are, or one of the grounds is,

2 (2012) 2 SCC 176

vague, indefinite, irrelevant, extraneous, non- existent or stale;

the order is belated; the person against whom an order is

passed is already in jail; the order is punitive in nature; the

order is not approved by State/Central Government as required

by law; failure to refer the case of the detenu to the Board

constituted under the statute; the order was quashed/revoked

and again a fresh order of detention was made without new

facts, etc.

12. In Francis Coralie Mullin vs. Union territory of Delhi3 this

Court observed (vide para 3) :

" ....the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilized society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused."

13. In Asha Devi v. Additional Chief Secretary to the

Government of Gujarat and Anr.,4 , this Court pointed out that:

"... if material or vital facts which would influence the minds of the detaining authority one way or the other

3 AIR 1981 SC 746 4 1979 Crl LJ 203

on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal."

14. In the absence of such material, in arriving at

subjective satisfaction is not a subjective satisfaction and the

detaining authority has to assign its reasons to come to such

conclusion or to arrive such satisfaction for detaining the

detenu. In Ashadevi Wife of Gopal Ghermal Mehta (Detenu) v.

K. Shivraj, Additional Chief Secretary to the Government of

Gujrat and another5, the Court pointed out that:

If material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order are not placed before or are not considered by the detaining authority, it would vitiate its subjective satisfaction rendering the detention order illegal.

15. It has been settled in law 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 satisfy the other grounds, the

1979 Cri Lj 203

detention order could be quashed. In this context, we may refer

to the judgment of the Apex Court in Pushkar Mukherjee v. State

of West Bengal6 .

16. The subjective satisfaction is not an empty formality,

the detaining authority has to apply his mind to arrive at

subjective satisfaction for detaining the detenu as

contemplated under law and he has to assign his reasons to

come to such conclusion. How the illegal activities of the

detenu prejudices the public tranquility or maintenance of

public peace and how the normal laws are not sufficient to

deter the detenu are all to be considered on the basis of the

material available against the detenu.

17. In the present case, the subjective satisfaction arrived

at by the detaining authority cannot be said to be legal, valid

and in accordance with law, as it was admitted in the counter

that the detenu was granted bail in 2 cases and it was further

admitted in paragraph No.2 in the Counter affidavit that the

detenu was supplied only with detention order and no bail

orders were supplied to the detenu. Hence, the subjective

satisfaction arrived at by the 2nd respondent cannot be said in

6 (1969) 1 SCC 10

accordance with law. Therefore, the detenu was not able to

make effective representation before the detaining authority.

Therefore, undoubtedly, the impugned order of detention

passed against the detenu is illegal and it is vitiated for non-

compliance of the mandatory requirements of law.

18. Hence, the detention order dated 19.06.2023 and the

confirmation order dated 11.08.2023 are liable to be set

aside and accordingly the detention order and consequential

order are set aside and respondents are hereby directed to set

the detenu at liberty forthwith, if the detenu is not required

in any other cases.

19. Accordingly, the Writ Petition is allowed. There shall be

no order as to costs.

As a sequel, interlocutory applications, if any pending

in this Writ Petition shall stand closed.

_______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 07.10.2023 Harin

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

W.P.No. 22428 OF 2023

Date: 07.10.2023

Harin