Devara Chinna Venkateswarlu vs The State Of Ap
2023 Latest Caselaw 5010 AP

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

                WRIT PETITION No.23846 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 4th

 respondent herein to release the detenu-Thirupataiah @ Laddu, son

of Venkateswarlu (Devara Venkateswarlu (late)), who is now

detained in Central Prison, Rajamahendravaram, forthwith by

setting aside the detention order passed by the 2nd respondent-the

Collector and District Magistrate dated 11.04.2023, as confirmed by

the 1st respondent vide G.O.Rt.No.1105 dated 05.06.2023, 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.123 of 2021 dated 07.05.2021; (2) Crime No.328 of 2022 dated

15.10.2022; and (3) Crime No.372 of 2022 dated 10.11.2022. All

the said crimes against the detenu are registered for the offences

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

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

and all the crimes are of the same police station, i.e., Chirala II

Town Police Station. In spite of registration of the said crimes and

he was detained in judicial custody, there is no prognosis of his

good behavior in future. Hence, it is necessitated to pass the

detention order against the detenu, as the acts committed by him

affect the public at large and it is affecting the maintenance of

public order and the said acts squarely fall under the definition of

„drug offender‟ as defined in Section 2(f) of the Act.

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

detention order was passed while the detenu was in judicial custody

and without assigning any reasons about the immanent possibility

of his release on bail in the said cases and he would indulge in

similar offences and the detaining authority has not supplied the

order of detention and the grounds of detention as stipulated in the

Act within five days and the detenu was granted bail in two cases

and deliberately suppressed the said facts before the detaining

authority and if the bail orders are placed before the detaining

authority, the detaining authority would have dissuaded from

passing the detention order or the detenu would have been made an

effective/satisfactory representation to the authorities as

contemplated under the Act, if the bail orders were supplied to the

detenu.

5. The crimes registered against the detenu were based upon the

confessional statements and, in fact, in the said cases, the quantity

of contraband seized is very small quantity and, as such, the detenu

will not fall under the category of „drug offender‟. The satisfaction

arrived at by the detaining authority is not the subjective

satisfaction. Therefore, the order of detention is vitiated. Hence,

prays to set aside the detention order and consequential

confirmation order.

6. It is the main contention of the petitioner herein that either

the sponsoring authority or the detaining authority has not supplied

the bail orders as well as the detention order to the detenu, as

contemplated under the Act, so as to enable him to make an

effective/satisfactory representation to the authorities and the

sponsoring authority has not placed the bail orders which were

granted in favour of the detenu and, therefore, the detaining

authority would have been dissuaded from passing the detention

order and on the said sole ground, the order of detention is liable to

be set aside. Therefore, prays to set aside the detention order as

well as the consequential confirmation order.

7. The detaining authority-cum-the Collector and District

Magistrate has filed counter, stating that the order of detention has

been passed by applying his mind and it was passed not in a

mechanical manner and the detenu was involved in petty crimes

despite registration of the aforesaid three crimes under the NDPS

Act and detenu is peddling ganja and his activities are creating

menace to the maintenance of public order and the impugned

detention order was passed not basing upon the confessional

statement and the detenu was actually involved in the aforesaid

crimes registered for the offences under the NDPS Act and it is

admitted that the detenu was enlarged on bail pending trial and the

ganja causes huge damage to the public health as well as the public

peace and tranquility, especially, lives of the youth by addicting

them to consume ganja and it will cause damage to the valuable

lives, which comes under the category of „drug offender‟ as defined

in Section 2(f) of the Act.

8. Non-consideration of bail orders would not vitiate the

detention order, as held by the Apex Court in the case of Sunila Jain

v. Union of India and another1, wherein it is held 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."

9. Learned counsel for the respondents would contend that

whenever there is a disturbance of public tranquility or breach of

public peace, it should not be given narrow meaning and it should

be given a liberal interpretation and therefore basing upon the

judgment of the Apex Court in Madhu Limaye v. Sub-Divisional

Magistrate2, the detaining authority can detain the detenu when the

offences committed by the detenu affects the public at large and

disturbs even the tempo of public life. Hence, prayed to dismiss the

Writ Petition.

10. Undoubtedly, when there is a disturbance of public tranquility

or breach of public peace, it should not be given narrow meaning in

view of the judgment of the Apex Court in Madhu Limaye's case (2

supra). The question that arises for passing of the detention, as

held by the Apex Court in catena of decisions, is that the detaining

authority has to follow the procedure, as contemplated under the

(2006) 3 SCC 321

(1970) 3 SCC 746

Act, and they have to assign valid reasons for passing the detention

order. Now the question is whether the detaining authority has

followed the procedure and has assigned valid reasons, as

contemplated under Article 22(5) of the Constitution of India or not.

The detaining authority has to supply all the material to the detenu

and they have to consider all the material (sic) bail applications

which are granted in favour of the detenu. As rightly contested by

the learned counsel for the petitioner, in Rushikesh Tanaji Bhoite v.

State of Maharashtra3 and in Abdul Sathar Ibrahim Manik v. Union of

India4, the Apex Court, after considering the law on the aspect

reflected from the various decisions, crystallized the legal position in

paragraph No.12 of the judgment of Abdul Satha Ibrahim Manik's

case (4 supra), which is extracted hereunder:

".....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. In Sunila Jain's case (1 supra), the Apex Court observed that

to decide whether the bail order is a vital document, it has to be

seen whether the nature of offence 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 security, 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

detenu does not flee from justice, such order will certainly become a

vital document looking to the nature of condition.

12. 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 those bail orders

had been brought to the notice of detaining authority, it may well

have resulted in the detaining authority arriving at the subjective

satisfaction that the detention of the detenu is unnecessary.

Therefore, reliance placed by the learned counsel for the

respondents on Sunila Jain's case (1 supra) is, therefore,

misconceived.

13. The detaining authority has not at all considered the bail

orders. Therefore, the order of the detention is vitiated, as the

respondents have not considered the bail order or bail application of

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

the Apex Court in the judgments referred supra.

14. Hence, the order of detention dated 11.04.2023 passed by the

2nd respondent, which was confirmed by the 1st respondent, vide

G.O.Rt.No.1105 dated 05.06.2023, 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.

15. 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: 16.10.2023 Siva

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

WRIT PETITION No.23846 of 2023

Date: 16.10.2023

siva