Cherukuri Swarnalatha, vs The State Of Andhra Pradesh,
2023 Latest Caselaw 4515 AP

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


                WRIT PETITION No.21303 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 annul the

 detention    order   dated       29.05.2023     and   the        consequential

 confirmation    order    dated    24.07.2023,    as   it    is    illegal   and

 unconstitutional and contrary to Articles 21 and 22 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 present Writ Petition is filed by the wife of the detenu-

Cherukuri Venkateswarlu seeking direction to the respondents to

set the detenu at liberty. The 2nd 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 by name Cherukuri Venkateswarlu, son of

Bala Ramaiah, on the ground that he was involved in as many as

five crimes, which are: (1) Crime No.49 of 2018 dated 27.02.2018;

(2) Crime No.93 of 2021 dated 30.07.2021; (3) Crime No.25 of 2022

dated 22.02.2022; (4) Crime No.71 of 2022 dated 23.08.2022; and

(5) Crime No.72 of 2022 dated 25.08.2022. All the said crimes

committed by the detenu are under the Narcotic Drugs and

Psychotropic Substances Act, 1985 (NDPS Act). It is alleged that

though the detenu was arrested, he was indulged in similar

activities which are detrimental to the public order and therefore his

activities are required to be prevented by detention order. The

prosecution of cases which are registered against the detenu takes

long time to have any desired impact on the detenu. Hence it is

stated that the present Act was invoked to detain the detenu, as the

detenu found it to be the most convenient to get easy and fast

money and huge profits with small investment and it is not possible

to immediately prevent him from indulging in similar prejudicial

activities to public health and order, which is affecting adversely the

community, creating a feeling of insecurity, danger to life and health

of public and as such, it is necessitated to invoke the provisions of

the Act to prevent the activities of the detenu.

4. Assailing the said order, the present Writ Petition came to be

filed to set aside the detention order dated 29.05.2023 as well as the

consequential confirmation order dated 24.07.2023 on the grounds

that it is a settled presumption of criminal jurisprudence that a

person alleged to have committed an offence shall be presumed to

be innocent until proven guilty and the detaining authority has to

show under Section 2(a) of the Act as how the activities of the

detenu are adversely affecting public order or is likely to affect

public order. The grounds invoked by the detaining authority that

the criminal prosecution or trial takes long period to curtail the

activities of the detenu are unsustainable as they do not clinchingly

establish, how the detenu is adversely affecting the public order or

likely to affect public order or causing public disorder and the

normal penal laws are sufficiently enough to deal with the situation

and to invoke the Act. The detaining authority has exercised the

jurisdiction mechanically and hence prayed to set aside the

detention order which is impugned in the present Writ Petition.

5. In support of his contentions, learned counsel for the

petitioner has relied on the judgment of a Division Bench of the

composite High Court in Vasanthu Sumalatha and others v. State of

Andhra Pradesh rep. by its Chief Secretary, Hyderabad 1.

(2016) 1 ALT 738 (DB)

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

of the Apex Court in Pramod Singla v. Union of India and others2 for

the proposition that non-supply of translated and useful documents

would vitiate the detention order. It is not the contention of the

detenu in the present Writ Petition that he was not supplied with

the translation orders and the said ground has not been taken in

the grounds. Therefore, the said judgment is not applicable to the

present facts of the case.

7. Learned counsel for the petitioner also relied on the order of a

Division Bench of this Court dated 11.07.2022 in W.P.No.5469 of

2022 and the order of a Division Bench of the composite High Court

dated 21.12.2015 in W.P.No.23400 of 2015 for the proposition that

satisfaction of the detaining authority must be reflected in the order

and the grounds of detention and it is not open to the detaining

authority to subsequently justify how, or on what basis he had

arrived at the subjective satisfaction, of the genuine possibility of the

detenu being released on bail, either in the counter-affidavit filed

before the Court or otherwise.

8. As seen from the material available on record, the detenu was

involved in as many as 5 crimes, which are: (1) Crime No.49 of 2018

dated 27.02.2018; (2) Crime No.93 of 2021 dated 30.07.2021; (3)

2023 SCC Online SC 374

Crime No.25 of 2022 dated 22.02.2022; (4) Crime No.71 of 2022

dated 23.08.2022; and (5) Crime No.72 of 2022 dated 25.08.2022

and all the said crimes are registered against the detenu for the

offence punishable under Section 8(c) r/w Section 20(b)(ii)(B)&(C) of

the NDPS Act.

9. As seen from the grounds of detention as well as the grounds

for invoking the provisions of the Act and to pass the detention

order, it clinchingly establishes that the detenu was granted bail in

all the cases and those bail orders are not referred either in the

detention order or in the grounds of detention for detaining the

detenu.

10. In the circumstances of the case, it is appropriate to refer the

judgments of the Apex Court wherein it was held that mere

apprehension of a breach to law and order is not sufficient to meet

the standard of adversely affecting the 'maintenance of public order'

and the relevant penal laws are sufficient to take care of the

situation and that the allegations as have been leveled against the

detenu cannot be said to be germane for the purpose of bringing the

detenu within the meaning of 'drug offender' as defined under

Section 2(f) of the Act and unless and until, the material is there to

make out a case that the person 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.

11. In the case on hand, the detenu was granted bail in all the

cases which are referred in the detention as well as in grounds of

detention orders, the same was not considered by the detaining

authority while passing the detention order.

12. In Union of India & ors v. Manoharlal Narang3 and in P.U.Abdul

Rahiman v. Union of India4, the Apex Court held that non-

consideration of the bail order would amount to non-application of

mind as non-consideration of relevant and important material is fatal

to the detention order. If the detaining authority had considered the

order, it may have persuaded him to desist from passing the order of

detention. Bail application and the bail order 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. It is needless to say that a detaining authority will pass an

(1986) 2 SCC 241 = AIR 1987 SC 1472

1991 Supp (2) SCC 274

order of detention only on the basis of the material placed before him

and will not allow his mind to be influenced by what is not set out by

the detaining authority in an affidavit sent along with the materials

against the bootlegger or goonda for being considered by the

detaining authority.

13. The distinction has been noticed by this Court

in Powanammal v. State of T.N. and Anr.5, at paragraph No.9, it was

observed as follows:

"However, apex 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."

14. In Shalini Soni v. Union of India6, Mustakmiya Jabbarmiya

Shaikh v. M.M. Mehta, Commr. of Police 7, and in Jagan Nath Biswas

v. State of W.B.8, the Supreme Court quashed the detention order

holding that the incidents themselves look rather serious but also

stale, having regard to the long gap between the occurrences and

the order of detention. One should have expected some proximity in

time to provide a rational nexus between the incidents relied on and

the satisfaction arrived at. This Court has repeatedly pointed out

(1991) 2 SCC 413

(1980) 4 SCC 544 = AIR 1981 SC 431

(1995) 3 SCC 237

(1975) 4 SCC 115

that unexplained and long delay will be fatal to the plea of

subjective satisfaction.

15. In Mohd. Sahabuddin v. Distt. Magistrate, 24 Parganas9, the

Supreme Court quashed the order of preventive detention on the

sole ground that the order of preventive detention was passed nearly

seven months after the criminal incident. Subjective satisfaction has

no proximate rational nexus with prejudicial act.

16. In another recent judgment in Mallada K Sri Ram v. State of

Telangana10, while referring to its earlier decisions in Banka Sneha

Sheela's case (2021) 9 SCC 415): held as follows:

In Mallada K. Sri Ram referred supra: The Apex Court was pleased to quash detention order as it is not open to the Detaining Authority to pick up an old and stale incident and hold it as the basis of an order of detention under S 3(2) of the Act. Nor it is open to the detaining authority to contend that it has been mentioned only to show that the detenu has a tendency to create problems resulting in disturbance to public order, for as a matter of fact it has been mentioned as a ground of detention that said detention order was passed nearly 7 months after the 1st FIR and 5 months after the 2nd FIR, and was therefore based on stale material and demonstrated as non- application of mind.

(1975) 4 SCC 114

2022 SCC Online SC 424

17. In the case on hand, detenu was detained as he was indulged

in 5 cases. The first crime was registered as crime No.49/2018

dated 27.02.2018 and the fifth crime was registered as crime

No.71/2022 dated 25.08.2022. The detenu was released on bail in

all crimes. The detention order was passed almost after 5½ years

from the first registration of crime in the year 2018 and after 9

months from the last crime which is registered on 25.08.2022. So,

it is not open to the Detaining Authority to pick up an old and stale

incident and hold it as the basis of an order of detention under

Section 3(2) of the Act. In this case, the apprehension of a

disturbance to public order owing to a crime that was reported over

nine months prior to the detention order has no basis in fact.

Hence, the above judgment is squarely applicable to the facts of this

case. The detention order dated 29.05.2023 and the consequential

confirmation order dated 24.07.2023 are liable to be quashed.

18. A Court cannot go into correctness or otherwise of the facts

stated or allegations leveled in the grounds in support of detention.

A Court of Law is the last appropriate forum to investigate into

circumstances of suspicion on which such anticipatory action must

be largely based. That, however, does not mean that the subjective

satisfaction of Detaining Authority is wholly immune from judicial

reviewability. By judicial decisions, Courts have carved out areas,

though limited, within which the validity of subjective satisfaction

can be tested judicially. The Court must apply its mind as to

whether the detaining authority has scrupulously followed the

procedures and any infraction or procedural lapses which ultimately

result in violation of the fundamental right guaranteed under Article

21 of the Constitution of India, certainly results in setting aside the

order of detention.

19. Subjective satisfaction being a condition precedent for the

exercise of the power of preventive detention conferred on the

executive, the Court can always examine whether the requisite

satisfaction is arrived at by the authority; if it is not, the condition

precedent to the exercise of the power would not be fulfilled and the

exercise of the power would be bad.

20. For the above discussion, it is clear that the order of detention

passed does not satisfy the ingredients of Section 3 read with

Section 2(f) of the Act and the same is arbitrary and illegal and

liable to be set aside.

21. The subjective satisfaction arrived at by the detaining

authority is contrary to the settled principle of law, as indicated

above. Hence the detention order dated 29.05.2023 and the

consequential confirmation order dated 24.07.2023 are liable to be

set aside.

22. Resultantly, the present Writ Petition is allowed and the

impugned detention order dated 29.05.2023 and the consequential

confirmation order dated 24.07.2023 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: 26.09.2023 siva

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

WRIT PETITION No.21303 of 2023

Date: 26.09.2023

siva