Andhra Pradesh High Court - Amravati

Smt.Polisetti Venkata Lakshmi vs The State Of Andhra Pradesh on 12 September, 2023

Bench: Cheekati Manavendranath Roy, Tarlada Rajasekhar Rao

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


                  WRIT PETITION No.13561 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 declare the

 impugned     detention    order   dated      02.05.2023     passed   by   the

 detaining authority by exercising the power under Section 3(1) and

 (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), as being illegal, arbitrary and unconstitutional and

 violative   of   the   fundamental    rights    and    to   set   aside   the

 consequential      confirmation      order     dated      26.06.2023      vide

 G.O.Rt.No.1248 on the ground that the said detention is in violation

 of fundamental rights.

 2.    Heard learned counsel for the petitioner and the learned

 Government Pleader for the respondents.

3. The petitioner herein is the wife of the detenu-Polisetty Ramu.

4. The present Writ Petition is filed assailing the detention order

passed by the 2nd respondent. The detaining authority and the 2nd

respondent passed the present impugned order on the ground that

the detenu is a habitual offender in illicit trafficking of ganja and

resorting to commit offences without any hesitation for wrongful

gain and disturbing peace and public tranquility and spoiling the

public order in the vicinity of the villages. His activities are

dangerous and detrimental to the public safety and security and he

is largely harmful to the society and normal life of the general

public. Though the cases were registered and charge sheeted in

various police stations, he has not given up his clandestine

activities unabated by involving the youth of Bhimavaram by luring

them into an offer to pay huge money and he has been spoiling the

lives of the youth by addicting them to consuming ganja for his

financial benefits which act affects more public order. It is further

asserted in the detention order that there are five cases reported

and registered against the detenu under the relevant Section of law

and as such, that he is a drug offender by illicit trafficking of ganja

even by causing harm to the people in the society while committing

the offence and his activities are detrimental to public order and he

relied on the grounds of detention which are furnished by the

sponsoring authority. The crimes registered against the detenu are:

(1) Crime No.156 of 2017, (2) Crime No.199 of 2018, (3) Crime No.56

of 2019, (4) Crime No.319 of 2019 and (5) Crime No.4 of 2023. All

the said crimes are registered for the offence punishable under

Section 8(c) r/w 20(b)(ii) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (NDPS Act).

5. The said detention order is assailed in the present Writ

Petition on the grounds that the detaining authority has passed the

detention order without applying proper mind to the facts and

circumstances mentioned in the grounds of detention and failed to

observe no material is supplied to the detaining authority to arrive

at just, fair and reasonable grounds and on the other ground that

the detenu was granted bail and those bail orders were neither

furnished to the detenu nor they were placed before the detaining

authority and the detenu was acquitted in two cases, i.e., in Crime

No.199 of 2018 and in Crime No.56 of 2019 and the said orders

were not furnished or placed before the detaining authority. So, for

not furnishing the said acquittal orders, the detenu is not able to

make a valid representation under the Act and if the same were

placed before the detaining authority, the detaining authority would

have taken a different stand and that it amounts to non-application

of mind and if at all the detenu violates the conditions in the

respective bail orders, the respondents are at liberty to file

application for cancellation of bail order and on the above said

grounds, it is prayed to set aside the detention order.

6. Learned counsel for the petitioner relied on the judgment of

the Apex Court in the case of Prakash Chandra Yadav @ Mungeri

Yadav v. The State of Jharkhand and others1 on the proposition that

all laws of preventive detention are necessarily harsh and they curtail

personal liberty of an individual, who is kept behind bars without any

trial and in such cases, the law must therefore be strictly applied.

Learned counsel for the petitioner also relied on the judgment of a

Division Bench of this Court in K.Padmavathi v. State of Andhra

Pradesh2 for the proposition that the bail orders are vital material

and if it is not considered, the satisfaction of the detaining authority

could be impaired. Learned counsel for the petitioner also relied on

the orders of this Court in W.P.No.11645 of 2023 dated 02.08.2023

for the very same proposition and also the orders in W.P.No.3790 of

2023 dated 03.07.2023.

7. In all the above quoted judgments, it was held that the

documents on the basis of which the order of detention was made

are not supplied to the detenu to enable him to make an effective

representation, it undoubtedly makes the impugned order of

detention passed against him an illegal order and it is vitiated for

non-compliance with the said mandatory requirements of law.

2023 Live Law (SC) 529

2022 SCC Online AP 2531

8. In the present case, it was asserted in the grounds of

detention order that the detenu was involved in five cases under the

NDPS Act. But, it was not stated how it affects the public order and

how it is prejudicial to the maintenance of public order. Mere

assertion in the detention order would not be sufficient to detain the

detenu without assigning any reasons as to how it affects the

maintenance of public order or cause prejudice to the maintenance

of public order.

9. The Supreme Court dealing with the grounds for quashing the

order of detention in the case of Abdul Gaffer v. State of West

Bengal3 held that whether the preventive detention is ordered on the

grounds which are already alleged in the subject matter of criminal

case, the Court has to see whether certain incident was related to law

and order or public order and it has to be remembered by the

detaining authority that the Constitutional Courts have time and

again repeatedly stated that the detaining authority should be

vigilant while passing the detention order.

10. In Francis Coralie Mullin v. Union Territory of Delhi and others4

the Apex Court observed at paragraph No.3 that the power of

preventive detention is a frightful and awesome power with drastic

consequences affecting personal liberty, which is the most cherished

(1975) 4 SCC 59

1981 AIR SC 746

and prized possession of man in a civilized society, which has power

to be exercised with the greatest care and caution and the Courts

have to be ever vigilant to see that this power is not abused or

misused.

11. With regarding to the procedural safeguards, the Apex Court

in Kamleshkumar Ishwardas Patel v. Union of India and others 5 held

that the procedural safeguards are required to be jealously watched

and enforced by the Court and their rigour cannot be modulated on

the basis of the nature of the activities of the detenu. The same was

observed in the case of Sarwan Singh Rattan Singh v. State of

Punjab6 : "May be that the detenu is a smuggler whose tribe (and

how their numbers increase!) deserves no sympathy since its

activities have paralysed the Indian economy. But the laws of

Preventive Detention afford only a modicum of safeguards to persons

detained under them and if freedom and liberty are to have any

meaning in our democratic set-up, it is essential that at least those

safeguards are not denied to the detenues."

12. The distinction has been noticed by this Court

in Powanammal v. State of T.N. and Anr.7, at para 9, it was observed

as follows:

(1995) 4 SCC 51

(1981) 4 SCC 481

(1999) 2 SCC 413

"However, this Court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention."

13. In P.U. Abdul Rahiman v. Union of India8, the Apex Court held

that the documents relied upon by the detaining authority are vital

material for consideration. If they have not been considered, the

satisfaction of the detaining authority would itself be impaired and,

if they had been considered, they would be documents relied upon

by the detaining authority though not specifically mentioned in the

annexure to the order of detention, and those ought to have formed

part of the documents supplied to the detenu with the grounds of

detention. Without them, the grounds themselves cannot be said to

have been complete. This amounts to denial of the detenu's right to

make an effective representation, and results in violation of Article

22(5) of the Constitution of India rendering the continued detention

of the detenu illegal, and would entitle the detenu to be set at

liberty.

14. Reliance was also placed upon Jaya Mala v. Home Secretary

Government of J & K.9. In that case also a criminal case had been

started on the basis of an incident. The Court felt that the grounds

1991 Supp (2) SCC 274

(1982) 2 SCC 538

of detention were such grounds upon which no valid order can be

sustained. It has been further observed at page 540 as follows:

"But it is equally important to bear in mind that every minor infraction of law cannot be upgraded to the height of an activity prejudicial to the maintenance of public order. If every infraction of law having a penal sanction by itself is a ground for detention danger looms larger that the normal criminal trials, and criminal courts set up for administering justice will be substituted by detention laws often described as lawless law."

15. In fact, in a recent decision of the Apex Court in the case of

Mallada K. Sri Ram Vs. The State of Telangana & Ors. 10, it was

stated as under:

"It is also relevant to note, that in the last five years, this Court has quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the orders of detention. At least ten detention orders under the Telangana Act of 1986 have been set aside by the High Court of Telangana in the last one year itself. These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent-state. We direct the respondents to take stock of challenges to detention orders pending

2022 SCC Online SC 424 = 2022 (6) SCALE 50

before the Advisory Board, High Court and Supreme Court and evaluate the fairness of the detention order against lawful standards."

16. If a person against whom a preventive detention order has

been passed comes to Court at the pre execution stage and satisfies

the Court that the detention order is clearly illegal, there is no

reason why the Court should stay its hands and compel the

petitioner to go to jail even though he is bound to be released

subsequently (since the detention order was illegal). As already

mentioned above, the liberty of a person is a precious fundamental

right under Article 21 of the Constitution and should not be likely

transgressed.

17. Nowhere in the detention order or in the counter affidavit, it

was asserted about the sale of ganja, how it affects the public order

and how it is dangerous to public health and the act alleged by itself

is not sufficient to hold the act done by the detenu is prejudicial to

the maintenance of public order, the potentiality of the act to

disturb the even tempo of the life of the community which makes it

prejudicial to the maintenance of the public order, as held by the

Apex Court in Ashok Kumar v. Delhi Administrator11, where a

(1982) 2 SCC 403

distinction was made between "law and order" and "public order",

which reads thus:

13. The true distinction between the areas of "public order" and "law and order" lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of "law and order" and "public order" is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. That test is clearly fulfilled in the facts and circumstances of the present case.

18. In view of above, we are inclined to allow this petition, because

simplicitor registration of FIR/s by itself cannot have any nexus

with the breach of maintenance of public order and the authority

cannot have recourse under the Act and no other relevant and

cogent material exists for invoking power under section 3(1) of the

Act.

19. In the result, the present Writ Petition is allowed and the

impugned order of detention dated 02.05.2023 passed by the 2nd

respondent-detaining authority and consequential confirmation

order dated 26.06.2023 are hereby quashed and set aside. The

detenue is ordered to be set at liberty forthwith, if not required in

any other case.