Andhra Pradesh High Court - Amravati

Palasi Vijaya vs The State Of Ap on 18 October, 2023

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


                WRIT PETITION No.20708 of 2023

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

           The present Writ of habeas corpus is filed under Article

  226 of Constitution of India to produce the detenu by name

  Palasi venkatarao, before this Court and he may be set at

  liberty forthwith as the detention order dated 19.05.2023 and

  the consequential confirmation order dated 15.07.2023 are

  illegal and 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 learned Additional Advocate General,

  appearing for respondents.

3) The wife of the detenu has filed the present Writ Petition

assailing the detention order.

4) On the recommendation of the sponsoring authority i.e.

Superintendent of Police, Alluri Sitharama Raju District, who

is arrayed as 3rd respondent herein, the Collector and District

Magistrate, has passed the detention order by exercising

power under Section 3 (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') vide

proceedings dated 19.05.2023 on the ground that the detenu

is involved in four crimes i.e. in Crime No.85 of 2016, Crime

No.80 of 2018, Crime No.86 of 2023 and Crime No.51 of 2023,

which were registered under Section 20(b) (ii) (C) r/w 8(c) of

Narcotic Drugs Psychotropic Substances Act, 1985 (for short

'NDPS Act').

5) Despite the fact that the detenu was warned several

times by the local police to safeguard public interest, there is

no change in the attitude of the detenu and he has continued

illegal activities of purchase, possession, sale and

transportation of ganja. It was noticed that the illegal

activities conducted by the detenu are detrimental to the

public safety and security. Therefore, by invoking provisions

under Section 3 (2) of the said Act, has detained the detenu.

Accordingly, the detenu was detained in the Central Prison,

Visakhapatnam.

6) The said order has been assailed in the present Writ

Petition on the ground that out of four cases referred supra, in

two cases, the detenu was granted bail and the sponsoring

authority deliberately suppressed the information relating to

grant of bails by the concerned Court and failure of the

sponsoring authority in placing the information before the

detaining authority relating to grant of bails to the detenu,

vitiates the entire order of preventive detention and also

contended that as on the date of passing of the detention

order, the detenu was in judicial custody and absolutely, there

is no necessity to pass the order of detention against the

detenu, as he is in judicial custody and the detaining

authority did not record any such satisfaction expressing his

awareness of the fact that the detenu is in judicial custody in

connection with particular case and about immanent

possibility of being released on bail and he would indulge in

similar offences and also contended that the detenu was not

supplied with the bail orders within the stipulated time as

contemplated under the Act. Therefore, prayed to set aside

the detention order and the consequential confirmation order

and relied on the judgment of this Court in W.P. No.1803 of

2021 dated 27.04.2021 for the proposition that not assigning

valid reasons, when the detenu is in judicial custody that he

will be granted bail in all probability and if the bail is granted

the detenu will be indulged in similar offences.

7) The 2nd respondent-Collector and District Magistrate has

filed his Counter and denied all the writ averments and would

contend that drug pedaling is a serious threat to the society,

that the youth are the primary target of the drug peddlers and

it is the most heinous and serious crime and the Government

would not be blind to the criminal activities and the potential

threat from the detenu to the public peace and tranquility.

Further contended that the material papers were served on the

detenu on 22.05.2023. It is evident from registration of the

crimes that the detenu is habitually committing offences and

acting in a manner prejudicial to the maintenance of public

order. However it is admitted that the sponsoring authority

has reported that the detenu was released on bail in two cases

out of four cases. He is also aware of the fact that the detenu

is in central prison, Visakhapatnam. It is further asserted

that there is every possibility to grant bail to the detenu.

Therefore to curb his activities, it is necessitated to pass the

detention order.

8) On perusal of the detention order, grounds for detention

order and the counter averments, it is evident that the

detaining authority has not assigned any valid reasons that in

all probability the detenu will be released on bail and on such

release he will indulge in similar activities. Having admitted

that the detenu was in Central Prison, Visakhapatnam, while

passing of the detention order, it is expected to assign a valid

reason to come to subjective satisfaction that the detenu will

be released in all probability on bail and that he will indulge in

similar activities. Either in the counter, or in the detention

order, the detaining authority has assigned any reasons about

the possibility that the detenu being released on bail would

indulge in similar activities. Non-assigning any reasons would

vitiate the detention order.

9) The learned counsel for petitioner has relied on the

orders of this Court in W.P. No.1803 of 2021, W.P. No.3790 of

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

that the detention order would vitiate if the subjective

satisfaction arrived at by the detaining authority without

assigning any reasons. When the detention order was passed

when the detenu was in judicial custody, if it is not stated that

in all probability that the detenu after being released on bail

will indulge in similar activities, the order will not be valid

under law.

10) In Kamarunnisa v. Union of India and others (supra 2)

The Apex Court has held that:

"Even in a case of a person in custody, a detention order can be validly passed (1) If the authority passing the order is aware of the fact that the 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. From a reading of the above, it is very much evident, the detaining authority was aware the detanu was in custody as on the date of passing of the order, but, there is no material placed before him to show that there is every likelihood of he being released on bail.

11) As per the judgment of the Apex Court, the detaining

authority has to assign valid reasons while passing the

detention order knowing that the detenu was in the custody or

judicial custody. But, in the present case, the detaining

authority has not assigned any reasons and also admittedly,

the detenu was granted bail in two cases out of four cases but

the same was not considered by the detaining authority.

Hence, in view of the law laid down by the Apex Court in the

case referred supra, the detention order passed by the 2nd

respondent-Collector and District Magistrate is vitiated for not

assigning valid reasons for detaining the detenu who is in the

judicial custody and for not considering the bail orders.