Andhra Pradesh High Court - Amravati

Mallipati Lova, vs The State Of Andhra Pradesh, on 7 October, 2023

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

                WRIT PETITION No.22339 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-Mallipati Ganesh, son of Mallipati Arjuna, who was detained

 in Central Prison, Visakhapatnam, before the Court and to order for

 his release forthwith by declaring the detention           order vide

 Rc.No.1183/2023/Mangl-SA, dated 12.07.2023, passed by the 2nd

 respondent, which was confirmed by the 1st respondent vide

G.O.Rt.No.1780, General Administration (SPL.[LAW AND ORDER])

Department dated 05.09.2023, as illegal and unconstitutional and

as it violates Article 21 of the Constitution of India.

2. Heard learned counsel for the petitioner and Sri Syed Khadir

Masthan, learned Assistant Government Pleader attached to the

office of the learned Additional Advocate General, appearing for the

respondents.

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

Mallipati Ganesh seeking direction to the respondents to set the

detenu at liberty. The Collector and District Magistrate, who is

arrayed as 2nd respondent herein, by exercising the power under

Section 3(1)&(2) of the Andhra Pradesh Prevention of Dangerous

Activities of Boot-Leggers, Dacoits, Drug Offenders, Goondas,

Immoral Traffic Offenders and Land Grabbers Act, 1986 (hereinafter

called 'the Act', for short), passed the detention order detaining the

detenu, on the ground that he was involved in 3 crimes, which are:

(1) Crime No.3 of 2018 dated 12.01.2018, (2) Crime No.99 of 2021

dated 04.07.2021 and (3) Crime No.213 of 2023 dated 16.05.2023.

All the said crimes against the detenu are registered for the offences

punishable under Section 20(b)(ii)(C), 25 read with Section 8(c) of

the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS

Act).

4. It is asserted in the order of detention that the detenu was

warned several times by local police to safeguard the public interest

and in spite of it, he did not change his attitude and he is

continuing his illegal activities of manufacturing, stocking and

selling of ganja, which are detrimental to the public safety and

security and the said activities are prejudicial to maintenance of

public health and public order. It is necessitated to prevent the

detenu from indulging in the activities which are prejudicial to the

maintenance of public health and public order and the said

activities fall under the definition of „drug offender‟ as defined in

Section 2(f) of the Act.

5. The said order of detention came to be assailed in the present

Writ Petition on the grounds that out of three crimes, in two crimes

the detenu was granted bail and the same was deliberately

suppressed by the sponsoring authority and they have not placed

the information before the detaining authority relating to grant of

bail, which vitiates the entire order of detention. It is also contested

that the detaining authority did not record any satisfaction

expressing his awareness over the fact that the detenu is in judicial

custody in connection with a particular case and he is in a

particular jail and also about the immanent possibility of his release

on bails in the case where he was in judicial custody, as such the

order of detention passed by the detaining authority is illegal and

not maintainable. The petitioner also raised another ground that

the detenu was not supplied the bail orders which were granted in

favour of the detenu or placed them before the detaining authority.

Therefore, the detenu is not able to make his representation before

the concerned authority. As such, the present Writ Petition is filed

to set aside the detention order on the said grounds.

6. Denying all the contentions on facts as well as on law, the

Detaining Authority-cum-Collector and District Magistrate has filed

the counter and contends that from the information laid before him,

it is evident that the detenu is habitual offender and he has been

committing the offences punishable under the provisions of the

NDPS Act time and again and even though several cases have been

booked against him and he was warned by the police, he has not

changed his attitude and he is indulging in manufacturing,

transportation and selling of ganja and the contraband was sent to

the Public Analyst and the Analyst opined that the contraband is

ganja and the act of the detenu in peddling of ganja is endangering

the lives of youth and innocent people and causing irreparable

damage to their body organs including the central nervous system

and the innocent victims were vulnerable and it causes deleterious

effect, deadly impact and hazard to the society and adversely

affecting the public order and public health at large. The detenu is

making hectic efforts to come out of the jail by moving bail

applications and, only in order to prevent the detenu from

committing further offences, the detaining authority has passed the

order of detention and the said detention order is in accordance

with law and it is not passed in mechanical manner or on, irrelevant

and non-existent grounds and mere non-supply of bail orders would

not vitiate the detention order.

7. Learned counsel for the respondents has relied on the

judgment of the Apex Court in Criminal Appeal No.245 of 2006,

arising out of SLP (Crl.) No.1860 of 2004, dated 24.02.2006 and also

relied on the judgment of the Apex Court in Sunila Jain v. Union of

India and another1 for the proposition that "As in the fact of this

case, we are satisfied that the application for bail was not a vital

document copy whereof was required to be supplied to the detenu, in

our opinion, the order of detention is not vitiated."

8. In the case of Sunila Jain v. Union of India & Another (1

supra), the Apex Court observed to decide whether the bail order is

a vital document, it has to be seen whether the nature of application

for bailable or and the other is the nature of restrictions imposed

while granting bail. If offence alleged against the detinu is bailable,

and if there are no restrictions or conditions imposed while granting

bail, except the condition of executing bond and furnishing surety,

the order granting bail may not be a vital document as it may not

affect the subjective satisfaction of the detaining authority. In case

of bailable offence, while granting bail, if a condition is imposed to

ensure that the detinu does not flee from justice, such order will

certainly become a vital document looking to the nature of

condition.

(2006) 3 SCC 321

9. In the present case, the orders granting conditional/non-

conditional bail were neither considered by the detaining authority

nor were copies thereof furnished to the detenu. 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.

Therefore the reliance placed by the learned Assistant Government

Pleader on Sunila Jain's case (1 supra) is, therefore, misconceived.

10. In Rushikesh Tanaji Bhoite Vs. State of Maharashtra2 and in

the case of Abdul Sathar Ibrahim Manik v. Union of India &

others3, after considering the law on the aspect, reflected from the

various decisions, the Apex Court has crystalised legal position in

paragraph No.12 of the judgment.

".....Having regard to the various above-cited decisions on the points often raised we find it appropriate to set down our conclusions as under:

(1) A detention order can validly be passed even in the case of a person who is already in custody. In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody.

(2) When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody. This aspect depends upon various considerations and facts and

(2012) 2 SCC 72

(1992) 1 SCC 1

circumstances of each case. If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the detention order. The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted notwithstanding such opposition the same can be questioned before a higher court.

(3) If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.

(4) Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu's right of being afforded a reasonable opportunity In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu. The aspect of criminal antecedents is considered by the Court while granting the bail. If the bail is granted after considering all the material including the criminal antecedents, such objective consideration by the court granting bail would be relevant and vital for the authorities passing an order of detention.

11. Learned counsel for the respondents also relied on the

judgment of the Apex Court in Rekhaben Virendra Kapadia v. State

of Gujarat and others4, wherein the Supreme Court held that "If the

detaining authority comes to a conclusion that persons who are

deeply involved in activities which are prejudicial to the maintenance

of public order are likely to continue in their unlawful activities, and if

such a conclusion is reached, there would be no jurisdiction for the

Courts to interfere." Hence, prayed to dismiss the Writ Petition.

12. In the case of State of Maharashtra v. Bhaurao Punjabrao

Gawande5, it was held by the Apex Court as hereunder:

"Subjective satisfaction being a condition precedent for the exercise of the power of preventive detention conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad.

A Court cannot go into correctness or otherwise of the facts stated or allegations levelled in the grounds in support of detention. A Court of Law is 'the last appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based.

(1979) 2 SCC 566

(2008) 3 SCC 613

That, however, does not mean that the subjective satisfaction of Detaining Authority is wholly immune from judicial reviewability. By judicial decisions, courts have carved out areas, though limited, within which the validity of subjective satisfaction can be tested judicially."

13. It is the specific case of the detenu that under clauses (3) to

(5) of Article 22 of the Constitution of India, the detaining authority

has to consider the bail orders while detaining the detenu and if the

same were placed before the detaining authority or supplied to the

detenu, it would vitiate the detention order, as held by the Apex

Court in catena of judgments.

14. Another ground raised by the detenu is that the detaining

authority has not assigned any reasons in the order of detention, as

the detenu was in jail and in all probability the detenu will be

granted bail and he will be indulged in illegal activities as

contemplated under Section 2(f) of the Act and, as such, not

assigning any reasons by the detaining authority, the order of

detention is liable to be set aside. He also contended that ordinarily

a detention order should not be passed merely to preempt and

circumvent to enlarge on bail in cases which are essentially criminal

in nature and can be dealt with under the ordinary law. He relied

on the orders of this Court in W.P.No.1803 of 2021 and

W.P.No.7335 of 2023 and batch for the proposition that the

apprehension that the detenu would be released on bail and that he

would indulge in similar activities cannot be made basis to pass the

order of detention. Said proposition has been laid in the judgment

of the Apex Court in Kamarunnisa v. Union of India6 and the same

has been followed in Champion R. Sangma v. State of Meghalaya7.

The Apex Court in Kamarunnisa's case (6 supra), has held in the

following manner:

"From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this court stated in the case of Ramesh Yadav (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It

(1991) 1 SCC 128

(2015) 16 SCC 253

seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand. Resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore. find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the, deronus were in custody."

15. The impugned order transpires that the detaining authority is

satisfied from the said material and that there is every likelihood of

the detenu being released on bail and that he would repeat the

commission of similar offences. There is no finding recorded by the

detaining authority as to how the detenu would be released on bail

and how he would repeat the commission of the said offences and

the same was not discussed by the detaining authority, either in the

detention order or the grounds for detention, so as to ascertain

whether the detaining authority fully satisfied with the said material

to arrive at subjective satisfaction.

16. In the absence of such reasons, as held by the Apex Court in

the above quoted judgments, the impugned order passed by the