Munnangi Venkateswar Rao vs The State Of Andhra Pradesh,
2023 Latest Caselaw 4776 AP

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


               WRIT PETITION No.21266 of 2023

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

        The present Writ of habeas corpus is filed under Article

  226 of the Constitution of India to declare the detention order

  dated 08.05.2023 and consequential approval order vide

  G.O.Rt.No.1252, dated 26.06.2023, as unconstitutional and

  violative of Articles 21 and 22 of the Constitution of India,

  with a consequential prayer to set the detenu at liberty

  forthwith.


  2.    The 2nd respondent vide proceedings dated 08.05.2023

has passed the detention order by exercising the powers

under Section 3 Clause 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 (hereinafter called the Act), as the

detenu was involved in the following crimes namely (1) Crime

No.143 of 2020, (2) Crime No.280 of 2022 and (3) Crime

No.92 of 2023. The said crimes were registered under

Section 8 (c) r/w (b) (ii) (B) of Narcotic Drugs Psychotropic

Substances Act, 1985 (for short NDPS Act) and (4) Crime

No.449 of 2021 was registered for the offences punishable

under Section 188, 269 IPC and Sections 130, 179 (1) r/w

177 of Motor Vehicles Act, 1988 and (5) Crime No.215 of

2022 for the offences punishable under Sections 324, 323

r/w 34 IPC and the said offences which affect adversely and

have impact on maintenance of public order and the detenu

is notorious drug offender and he was involved in 5 crimes,

out of 5 crimes 3 crimes were Ganja cases under NDPS Act.

Despite registration of the above said crimes, there is no

deterrent effect on him so far and he indulged in similar

activities which are detriment to the public order and

therefore his activities are required to be prevented by

detention order and being satisfied that there is every

likelihood of the detenu being granted /released on bail and

there is every possibility of the detenu to continue his

activities of illegal sale of ganja and possession of ganja and

other offences which are prejudicial to the maintenance of

public order and the said order was confirmed by the 1st

respondent vide G.O.Rt.No.1252 dated 26.06.2023.

3. Assailing the said detention order and consequential

confirmation order, the father of the detenu filed the present

habeas corpus petition on the ground that the subjective

satisfaction arrived by the 3rd respondent is contrary to law

and has not considered the bail orders and the same were not

supplied to the detenu so as to make effective representation

to the authority. Hence, prayed to set aside the detention

order as well as confirmation order.

4. 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.

5. On careful perusal of the detention order and the

grounds for detention, it categorically transpires that the

detaining authority has taken the irrelevant ground for

passing of the detention order. The detaining authority has

taken, the supra stated five crimes for passing of the

detention order, out of five crimes, three crimes are

punishable offences under the NDPS Act and other two

crimes are under the provisions of Indian Penal Code. It is

necessitated to extract the relevant portion of the detention

order for adjudication:

"Whereas the information furnished by the Station house officer, Nunna PS, North division, NTR Police Commissionerate, Vijayawada reveals that the said activities of Sri munnangi Suresh S/o. Venkateswara Rao, aged about 39 years, C/Madiga, resident of D.No.77-40- 28, Sarada School road, Santhi Nagar, Payakapuram, Vijayawada, NTR District, falls under the definition of "DRUG OFFENDER" defined U/s. 2(f) of A.P.

     PREVENTION         OF      DANGEROUS        ACTIVITIES           OF
     BOOTLEGGERS,            DACOITS,      DRUG         OFFENDERS,

GOONDAS, IMMORAL TRAFFIC OFFENDERS AND LAND GRABBERS ACT, 1986 as the offences registered against him come under the provisions laid down under Chapter XVI and XVII of IPC, as defined in 2(f) of the said Act, the offences are of similar in nature committed repeatedly prove that he is a notorious offender"

6. Offences in third and fourth crimes are punishable

under Chapter XVI and Chapter XVII or Chapter XXII of the

Indian Penal Code, which fall under the definition of 'Goonda'

under Section 2(g) of the Act. The said offences were taken

into consideration for passing of the detention order under

Section 2 (f) of the Act. Section 2(f) defines, Drug Offender,

which is hereby extracted.

       (f)   "drug-offender"        means     a    person,      who
       manufactures,      stocks,    imports, exports, sells or

distributes any drug or cultivates any plant or does any other thing in contravention of any of the provisions of the Drugs and Cosmetics Act, 1940 (Central Act XXIII of 1940) or 1[the Narcotic Drugs and Psychotropic Substances Act, 1985,] 1[(Central Act 61 of 1985)] and the rules, notifications and orders made under either Act, or in contravention of any other Law for the time being in force, or who knowingly expends or applies any money in (furtherance or support of doing of any of the above mentioned things by himself or through any other person or who abets in any other manner the doing of any such thing;

7. The detention order categorically shows that the

detaining authority has taken irrelevant ground to pass the

detention order. In Annam Venkatakrishnaraju v. State of

Andhra Pradesh, Rep. by its Secretary, Department of Home

and others1, the coordinate Bench of this High Court has held

that even if one ground is irrelevant, the same would vitiate

the detention order as a whole, by following the judgment in

Thallapuneni Venkateswarlu v. Collector and District

Magistrate, Cuddapah2, wherein that case the detaining

1 2021 SCC OnLine AP 355 2 (2004) 5 ALT 250

authority has taken into consideration the crimes which are

registered under Section 34 of the Andhra Pradesh Excise

Amendment Act, 1968 in terming the detenu as Goonda as

defined under Section 2(g) of the Act. Therefore, the Division

Bench has held that taking into consideration the crimes

registered under Section 34 of the Andhra Pradesh Excise

Amendment Act, 1968 is an irrelevant ground for passing of

the detention order. The same principle of law is applicable

herein. The crimes which are registered under Indian Penal

Code Provisions were taken into consideration for passing of

the detention order under Section 2(f) of the Act i.e. Drug

Offender. On the said sole ground, the detention order is

liable to be set aside and other ground that was taken by the

detaining authority to detain the detenu was that there is

every possibility of granting/releasing the detenu on bail.

Therefore, it is necessitated to pass the detention order.

8. The respondents relied on the judgment in Sunila

Jain v. Union of India & Another3, wherein the Apex Court

observed, to decide whether the bail order is a vital

document, it has to see the nature of the bail application

3 (2006)3 SCC 321

whether it is bailable or not 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 detinue does not flee from justice,

such order will certainly become a vital document looking to

the nature of condition.

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 was unnecessary. Therefore the reliance placed by

the learned counsel for the respondent on Sunila Jain case

is, therefore, misconceived.

10. For the purpose of passing the detention order, the

detention authority has included Goonda ingredients in the

definition of drug offender. As per the judgment referred supra

in Annam Venkatakrishnaraju (supra 1), the detaining authority

has taken irrelevant ground into consideration, as such the

same is vitiated. On the said ground alone the detention order

is liable to be set aside.

11. After considering the detention order as well as counter

affidavit and the law laid down by this Court categorically

allude that the detaining authority has not applied his mind

to the facts of the case and has taken irrelevant ground for

detaining the detenu.

12. In view of the above, the detention order dated

08.05.2023 and the confirmation order dated 26.06.2023 are

liable to be set aside and accordingly they are set aside and

respondents are hereby directed to set the detenu at liberty

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

13. 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. 21266 OF 2023

Date: 07.10.2023

Harin