Seesa Madhuno vs The State Of Andhra Pradesh
2023 Latest Caselaw 4888 AP

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

                  WRIT PETITION No.23276 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, seeking direction to the 5th

 respondent herein to release the detenu-Bodnayak Ravi, son of

Bipro, who is now detained in Central Prison, Rajamahendravaram,

forthwith by setting aside the detention order passed by the 3rd

respondent-the Collector and District Magistrate dated 16.05.2023,

as confirmed by the 1st respondent vide G.O.Rt.No.1361 dated

15.07.2023, as it is in violation of 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 Collector and District Magistrate, who is arrayed as 3rd

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.83

of 2022 dated 06.12.2022, (2) Crime No.33 of 2022 dated

13.09.2022 and (3) Crime No.103 of 2022 dated 15.09.2022. All the

said crimes against the detenu are registered for the offences

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

Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)

and the detention order was passed observing that despite

registering the cases against the detenu, there is no change in the

attitude of the detenu and the detaining authority was not able to

observe any prognosis of his future behavior and the said crimes

will take lot of time to prove against him in normal legal system and

in order to prevent him from doing the same harmful activities again

and again and the said crimes are disturbing the civil security

(public order) and his activities are creating a sense of insecurity

among the people and disturbing the public health and civil security

(public order) and the said activities fall under the definition of „drug

offender‟ as defined in Section 2(f) of the Act. Hence, it is

necessitated to pass the detention order against the detenu in order

to prevent him from doing the similar activities as stated supra.

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

Writ Petition by the brother of the detenu on the grounds that the

detaining authority has not considered the bail orders which are

granted in favour of the detenu and the sponsoring the authority

has not placed the said bail orders before the detaining authority

and if the same were placed before the detaining authority, the

detaining authority ought to have dissuaded from passing the

detention order and even the said documents are not furnished to

the detenu to file a satisfactory representation to the authorities as

contemplated under the Act. It is orally stated that the detenu was

detained vide detention order dated 29.03.2023 and thereafter the

detaining authority, i.e., the 3rd respondent herein, cancelled the

detention order, vide proceedings dated 21.04.2023, and directed

the sponsoring the authority to release the detenu. As such, it is

argued that the said detention is illegal and hence, prayed to set

aside the detention order and consequential confirmation order.

5. In the counter affidavit filed by the 3rd respondent-the

Collector and District Magistrate, it is admitted that the detenu was

granted bail in the earlier cases and he was in judicial custody as

on the date of passing of the detention order and knowing the fact

that he passed the detention order on the ground that there is every

possibility of the detenu being released on bail and mere non-supply

of bail orders would not vitiate the detention order.

6. Learned counsel for the respondents has 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." He also relied on the judgment of

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

Gujarat and others2 for the proposition that the detenu involved

deeply in the activities which are prejudicial to the maintenance of

public order are likely to continue their unlawful activities and if such

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

interfere. Hence, in view of the above grounds and in view of the

above judgments of the Apex Court, it is pleaded to dismiss the Writ

Petition as the detenu is not entitled for any relief as prayed in the

Writ Petition.

7. It is true that a detention order can be passed when the

detenu is in the judicial custody, but the detaining authority has to

assign valid reasons as to whether there is any possibility of the

(2006) 3 SCC 321

(1979) 2 SCC 566

detenu being released on bail and on such release, he will be again

indulged in similar activities.

8. If the detaining authority has not assigned any reasons that if

the detenu is released on bail, again he will indulge in the similar

activities, the same would be vitiated.

9. In the similar circumstances, the Apex Court in Kamarunnisa

and others v. Union of India3, by referring catena of decisions, held

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."

10. As seen from the judgment of the Apex Court in

Kamarunnisa's case (3 supra), the Apex Court followed in the

judgment in Champion R. Sangma v. State of Meghalaya4, wherein

the Apex Court held that the impugned detention order should

transpire that there is every likelihood of the detenu being released

on bail and that he would repeat the commission of similar offences

and if the detenu would release on bail, if reasons were not found or

(1991) 1 SCC 128

(2015) 16 SCC 253

assigned in the detention order, the said detention order would be

nullified for sans reasons and it is liable to be set aside.

11. In the present case, no reasons are assigned by the detaining

authority that there is every likelihood of the detenu being released

on bail and that he would commit similar offences. Mere assertion

that the detenu would be released on bail is not sufficient to pass

the detention order in view of the catena of judgments of the Apex

Court. Therefore, the detention order passed by the detaining

authority observing that he is aware of the fact that the detenu is in

judicial custody and there is every possibility of the detenu being

released on bail, without assigning any reasons, is unsustainable in

law and accordingly it is liable to be set aside.

12. In slew of judgments of the Apex Court, it is categorically held

that the detaining authority should assign reasons to arrive at that

the detenu has become a threat and menace to the society so as to

disturb the whole tempo of the society and that all social apparatus

is in peril disturbing public order at the instance of such person.

The detaining authority has not assigned any reason much less a

valid reason to arrive at that the detenu would indulge in similar

activities and his activities would be menace to the maintenance of

public order.

13. As held by the Apex Court in M.Krishna Swami v. Union of

India and others5, the decision or the order of any statutory/public

authority/functionary must be founded upon reasons stated in the

order or staring from the record and the reasons are the links

between the material, the foundation for their erection and the

actual conclusions.

14. In the counter filed by the 3rd respondent-detaining authority

at page-27, it appears that the 3rd respondent herein has forwarded

the proceedings for approval of the detention order for detaining the

detenu herein under clause (3) of Section 3 of the Act, vide

proceedings dated 04.04.2023 to the 1st respondent-the Chief

Secretary to Government. But the impugned detention order shows

that the detaining authority has passed the detention order on

16.05.2023. As seen from the proceedings dated 04.04.2023, the

detenu was detained prior to the passing of the detention order

dated 16.05.2023. Therefore, the order of detention dated

16.05.2023 as well as the confirmation order dated 15.07.2023

lucidly establishes that the detenu was detained illegally. As rightly

contested by the petitioner herein that the detenu was detained on

29.03.2023, however, the detention order came to be passed on

(1992) 4 SCC 605

16.05.2023. Thus, it is obvious that the detenu was illegally

detained.

15. For the aforesaid discussion, the detention order passed by

the detaining authority is vitiated on two grounds, viz., (i) for not

assigning valid reasons for passing of the detention order knowing

that the detenu was in judicial custody; and (ii) the detaining

authority illegally detained the detenu since 29.03.2023, i.e., prior

to passing the detention order on 16.05.2023.

16. Hence, the order of detention dated 16.05.2023 passed by the

3rd respondent, which was confirmed by the 1st respondent, vide

G.O.Rt.No.1361 dated 15.07.2023, is liable to be set aside and,

resultantly, it is set aside. The respondents are hereby directed to

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

17. Accordingly, the Writ Petition is allowed. There shall be no

order as to costs.

As a sequel, miscellaneous petitions, if any, pending in this case, shall stand closed.

________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 11.10.2023 Siva

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

WRIT PETITION No.23276 of 2023

Date: 11.10.2023

siva