N Sravani vs The State Of Andhra Pradesh
2023 Latest Caselaw 4278 AP

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


                WRIT PETITION No.15650 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   09.05.2023        passed   by   the

 detaining authority by exercising the power under Section 3(1) & (2)

 read with Section 2(f) 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), and the consequential

 confirmation order, vide G.O.Rt.No.1255 dated 26.06.2023, passed

 by the 1st respondent, as being illegal and unconstitutional and to

set the detenu-Mupparaju Venkanna at liberty forthwith.

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 detaining authority has passed the impugned detention

order detaining the detenu by name Mupparaju Venkanna, as he

was indulged in illegal activities, in contravention of the Narcotic

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

Rules made therein and as many as 4 crimes were registered

against him for the offences punishable under Section 8(c) r/w

20(b)(ii)(A) & (B) of the NDPS Act and he was arrested and sent to

judicial custody in the above said crimes. The detenu was enlarged

on bail in 3 cases out of 4 cases. In every case, even in the latest

case also within a short period of time, the detenu was granted bail

and hence there is no other alternative except to pass the impugned

detention order by invoking the provisions of the Act, as the detenu

was indulged in the acts of sale, transportation and possession of

ganja, which falls under the definition of 'drug offender' under

Section 2(f) of the Act.

4. The said detention order was assailed in the present Writ

Petition by the daughter of the detenu on the grounds that the

detaining authority has not supplied to the detenu the material

relied on as contemplated under the Act and the approval order was

passed beyond 15 days under Section 3(3) of the Act and the detenu

being aged 70 years and being an illiterate, the authorities, who

have passed the order of detention, have to engage a person in order

to explain the sum and substance to the detenu, but it was not

done in the present case. The detenu was granted bail in some

cases and the same has not been taken into consideration by the

detaining authorities, as such the same vitiates the order of

detention and the confessional statement cannot be the basis for

detaining the detenu and the bail applications as well as bail orders

were not placed before the detaining authority to dissuade from

passing the detention order. Hence, prayed to set aside the

impugned detention order dated 09.05.2023 and the consequential

confirmation order dated 26.06.2023, as they violate the right to life

under Article 21 of the Constitution of India.

5. The learned counsel for petitioner relied on the common order

of this Court in a batch of Writ Petitions, i.e., W.P.No.7335 of 2023

and batch dated 03.07.2023, wherein this Court, after considering

the judgment of the Apex Court in Champion R. Sangma v. State of

Meghalaya1 and the order of a Division Bench of this Court in the

case of Cheemaparthi Parvin v. State of Andhra Pradesh and others

passed in W.P.No.1803 of 2021 and by following the order of the

another Division Bench of this Court in W.P.No.12946 of 2022, has

set aside the detention order and consequential confirmation order

passed by the detaining authority, as the material placed before the

detaining authority would not indicate that the detenu would be

released on bail and that thereafter there is likelihood of the detenu

(2015) 16 SCC 253

committing similar nature of offences was not discussed in the order

of the detaining authority and eventually by relying on the above

quoted orders has set aside the detention order.

6. Learned counsel for the petitioner placed reliance on the

judgment of the Apex Court rendered in the case of Champion R.

Sangma v. State of Meghalaya2 whereunder the concept of triple test

is laid down in the said judgment to test the legal validity of the

preventive detention orders that are passed under the Act. The

Apex Court has extracted the judgment of the three Judge Bench of

the Supreme Court rendered in the case of Kamarunnisa v. Union of

India3 wherein it is held as follows:

"From the catena of decisions referred to above it seems clear to us 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. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is

(2015) 16 SCC 253

(1991) 1 SCC 128: 1991 SCC (Crl.) 88

granted notwithstanding such opposition, to question it before a higher court. What this court stated in the case of Ramesh Yadav (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand. Resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore. find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the, deronus were in custody."

7. As per the law laid down in the aforesaid judgment of

Kamarunnisa v. Union of India (2 supra), when a person is in the

custody as per the detention order, the same can validly be passed

when (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 he being released on bail (b) that he being so released

would in all probability indulge in prejudicial activity; and (3) if it is

felt essential to detain him to prevent him from so doing.

8. Whereas in the present case also, the detaining authority has

not assigned or indicated any reason that there is likelihood of

detenu committing the similar nature of offences in future

and it was not discussed in the order of the detaining

authority. The detaining authority has observed in the

detention order that out of 4 cases, the detenu was granted

bail in 3 cases within a short period and as there is no

other alternative except to invoke the provisions of the Act.

That cannot be a ground for detaining the detenu as held

by the Apex Court in slew of judgments as well as by this

Court. As no reasons are assigned in the detention order

that the detenu would be released on bail and the detenu

would repeat the commission of the said offences and the

same is not discussed by the detaining authority, so as to

ascertain whether he is really satisfied with the said

material to arrive at the said conclusion or not, the

impugned order cannot be sustained.

9. Therefore, the impugned detention order passed by

the detaining authority is devoid of valid reasons to record

his satisfaction that the detenu is likely to be released on

bail or that there is likelihood of committing the similar

crimes by him in future. The said order detention passed

by the detaining authority sans reasons for recording such

satisfaction cannot be upheld and accepted as valid.

10. Accordingly, the impugned order of detention and the

consequential confirmation order are liable to be set aside and,

resultantly, the present Writ Petition is allowed and the impugned

order of detention dated 09.05.2023 and the consequential

confirmation order dated 26.06.2023 are hereby set aside. The

respondents are hereby directed to set the detenu at liberty

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

As a sequel, miscellaneous petitions, if any, pending in this

case, shall stand closed. There shall be no order as to costs.

________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 15.09.2023 siva

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

WRIT PETITION No.15650 of 2023

Date: 15.09.2023

siva