Andhra Pradesh High Court - Amravati

Konduri Naga Lakshmi, vs The State Of Andhra Pradesh, on 23 August, 2024

Author: R Raghunandan Rao

Bench: R Raghunandan Rao

APHC010161732024

                   IN THE HIGH COURT OF ANDHRA PRADESH
                                 AT AMARAVATI                        [3488]
                          (Special Original Jurisdiction)

             FRIDAY,THE TWENTY THIRD DAY OF AUGUST
                 TWO THOUSAND AND TWENTY FOUR

                                   PRESENT

      THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO
             THE HONOURABLE SRI JUSTICE HARINATH.N
                      WRIT PETITION NO: 8114/2024
Between:
Konduri Naga Lakshmi,                                     ...PETITIONER
                                      AND
The State Of Andhra Pradesh and Others               ...RESPONDENT(S)

Counsel for the Petitioner:

1. GVNRSSS VARA PRASAD

Counsel for the Respondent(S):

1. THE ADVOCATE GENERAL

The Court made the following ORDER:

(Per Hon‟ble Sri Justice R. Raghunandan Rao)

Heard Dr. G.V.N.R.S.S.S. Vara Prasad, learned counsel appearing

for the petitioner and the learned Special Government pleader in the

office of the learned Additional Advocate General for respondents.

2. The 2nd respondent by an order dated 16.03.2024 had passed an

order of detention against the detenue. This order was approved by the

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1st respondent on 26.03.2024, and subsequently confirmed by way of

G.O.Ms.No.776 dated 25.04.2024 issued by the 1st respondent.

3. The 2nd respondent ordered preventive detention of the

detenue, on the ground that the detenue deserves to be treated as a

Goonda as defined under Section 2(g) of the Andhra Pradesh Prevention

of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders,

Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986 (for

short „the Act‟), because the detenue had been involved in five cases

which relate to commission of offences punishable under Chapter XVI

and XXII of the Indian Penal Code and that the severity of the offences,

enumerated in these complaints and the conduct of the detenue in

continuing to commit crimes is prejudicial to the maintenance of public

health and public order requiring the detenue to be detained. The crimes,

which were taken into account by the 2nd respondent, are as follows:

1. Case in Crime No.201/2023, under Sections 307, 354 r/w 34 IPC and Section 27 of the Indian Arms Act, 1959, of Penamaluru Police Station, dated 28.02.2023.

2. Case in Crime No.754/2023, under Sections 448, 323, 506 r/w 34 IPC, of Patamata Police Station, dated 04.08.2023.

3. Case in Crime No.648/2023, under Sections 341, 323, 506 r/w 34 IPC, of Penamaluru Police Station, dated 27.08.2023.

4. Case in Crime No.766/2023, under Sections 341, 143, 188, 290 r/w 149 IPC, of Penamaluru Police Station, dated 02.10.2023.

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5. Case in Crime No.86/2024, under Section 307 IPC, of Vuyyuru Town Police Station, dated 25.02.2024.

3. The sister of the detenue has filed the present writ petition

assailing the order of detention and subsequent proceedings of approval

and confirmation. The pleadings in the writ petition are that the Sub-

Inspector of Police Penamaluru Police Station and certain other police

officers/officials of the said police station were inimically inclined against

the petitioner, due to which false cases were being foisted against the

petitioner and the order of detention had been obtained under the guise of

these complaints being genuine complaints. It is further alleged that the

immediate provocation for obtaining the order of detention was the fact

that the petitioner and other siblings of the detenue had initiated

complaints against the Sub-Inspector of Police, Penamaluru Police

Station and the order of detention was obtained as a counter blast to the

said complaints filed against the police officials.

4. The order of detention and subsequent proceedings are

assailed on the merits of the case, on the following grounds, which are

elaborated by Dr. G.V.N.R.S.S.S. Vara Prasad, learned counsel

appearing for the petitioner.

a) The detenue had been falsely implicated in Crime

No.201/2023 which is at Sl.No.1 of the above extract. The detenue was

granted bail in the said case. An application for cancellation of such bail

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was filed and the same came to be rejected. However, the sponsoring

authority did not submit, the said application for cancellation of bail and

subsequent order of cancellation of bail by the Magistrate, to the 2nd

respondent/detaining authority.

b) The learned counsel relies upon the judgments of this Court

in Vasanthu Sumalatha and Ors., vs. State of Andhra Pradesh rep. by

its Chief Secretary, Hyderabad and Ors.,1; Akhil Gogoi S/o Late Bolo

Ram Gogoi vs. State of Assam Represented by the Public

Prosecutor2; Ameena Begum vs. State of Telangana3; Asha Devi vs.

K. Shivaraj, Additional Chief Secretary to the Government of

Gujarat4; and Ahamed Nassar vs. State of Tamil Nadu and Ors.,5, to

contend that, non production of these documents are fatal to the

impugned order of detention.

c) Crime No.382/2021 filed against the detenue was not

considered at all.

d) The 2nd respondent had filed a counter affidavit and an

additional counter affidavit in the matter. The learned counsel for the

petitioner relies upon the list of cases filed in the additional counter

affidavit and more specifically Crime No.118/2020, which was

2015 SCC OnLine Hyd 790 : (2016) 1 ALT 738 (DB) : (2016) 2 ALD (Cri) 156

2020 SCC OnLine Gau 1092

(2023) 9 SCC 587

(1979) 1 SCC 222

(1999) 8 SCC 473

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renumbered as C.C.No.51 of 2022 filed on the file of the VI Metropolitan

Magistrate, Vijayawada, as if the detenue was an accused in the said

crime even though the detenue was not made as an accused in the said

crime.

e) There is a mention of Crime No.453/2020 and Crime

No.457/2020 in the detention order. However, the documents relating to

these two criminal cases were not placed before the 2nd respondent and

the said non-placement of documents relating to these two cases is fatal

to the detention order.

f) A perusal of the documents, relating to Crime No.86/2024

shown at Sl.No.5 in the above extract, would clearly show that no case is

made out against the detenue in the said complaint and as such the said

case could not have been taken into account for passing the order of

detention.

5. A perusal of the counter affidavit and the additional counter

affidavit of the 2nd respondent and also the submissions made by the

Special Government Pleader in the office of the Additional Advocate

General, make it clear that the material relating to the application for

cancellation of bail and the order of rejection of such an application in

Crime No.201/2023 had not been placed before the detaining authority.

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Similarly, the material relating to Crime Nos.453 & 457 of 2020 was not

placed before the detaining authority.

6. The learned Special Government Pleader in the office of the

Additional Advocate General, would contend that the list of cases set out

in the additional counter affidavit filed by the 2 nd respondent was only to

assist this Court and that none of the cases mentioned in that list are

relevant for the order of detention as the detenue was being detained on

the ground that he was a Goonda, whereas the cases set out in the list in

the additional counter affidavit of the 2nd respondent relate to the offences

which fall outside the relevant Chapters of the Indian Penal Code. He

would contend that the said cases are not relevant for the purpose of

deciding whether the detenue should be placed under detention or not

and as such none of these cases, set out above, were considered at the

time of the passing of the detention order.

7. The learned Special Government Pleader would also

contend that Crime Nos.453 and 457/2020 were mentioned only to

highlight the fact that the rowdy sheet had already been opened against

the detenue and the same would show that the detenue is a habitual

offender whose presence in society would be prejudicial to the public

order. The learned Special Government Pleader would contend that the

detaining authority was not considering Crime Nos.453 and 457/2020 and

that the mention of these crimes was only to state that the proceedings

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issued for opening a rowdy sheet against the detenue contain these

details and nothing more. He would contend that the said mention of

Crime Nos.453 and 457/2020, without placing the record relating to these

crimes, before the detaining authority, would not in any manner, reflect

the validity of the detention order.

8. Learned Special Government Pleader would contend that the

contention of the learned counsel for the petitioner that perusal of the

documents relating to Crime No.86/2024 would demonstrate the

innocence of the detenue, cannot be accepted as such conclusions can

only be drawn after a full-fledged trial. He would further contend that an

order of detention arises out of the subjective satisfaction of the detaining

authority and it is not an objective satisfaction which requires to be tested

on certain stringent grounds.

9. Learned Special Government Pleader would contend that

there are no discrepancies/lacunae in the procedural safeguards

enumerated by the Courts, in various judgments are that the order of

detention requires to be upheld.

Consideration of the Court:

10. The scope of judicial review of an order of detention, passed

under any law of preventive detention, has been settled by a long line of

decisions by the Hon‟ble Supreme Court. It is settled law, that the

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satisfaction required for passing an order of detention is the subjective

satisfaction of the detaining authority and not any objective satisfaction.

For this reason, judicial review of an order of preventive detention has

been in the nature of verifying whether there has been any violation of

various procedural safeguards which are set out explicitly or arise on an

implied basis.

11. The Hon‟ble Supreme Court in Ameena Begum vs. State of

Telangana; Asha Devi vs. K. Shivaraj, Additional Chief Secretary to

the Government of Gujarat; and Ahamed Nassar vs. State of Tamil

Nadu and Ors., cited by the learned counsel for the petitioner, have

taken the view that one of the crucial procedural safeguards available to a

person whose liberty has been deprived, is to see whether all the relevant

material, required to form an opinion as to whether the detenu should be

detained in preventive detention or not, has been placed before the

detaining authority and that any shortfall of all the relevant documents

would vitiate the order of detention.

12. In the present case, the application for rejection of bail in

Crime No.201/2023 and the order of rejection of such application are

admittedly not placed before the detaining authority before the impugned

order of detention had been passed.

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13. The detaining authority had also mentioned Crime Nos.453

and 457/2020 for coming to the conclusion that an order of preventive

detention has to be passed against the detenue. However, no material

relating to these two crimes was placed before the detaining authority.

14. Though, the learned special government pleader has

contended that, Crime Nos. 453 and 457 of 2023 have not been taken

into consideration, while passing the order of detention, the fact remains

that they have been mentioned in the order. Such mention of these

criminal complaints can only mean that these crimes were also taken into

account, by the 2nd respondent, while deciding whether an order of

detention is to be passed against the detenu or not. The records relating

to these two complaints against the detenu have not been placed before

the 2nd respondent.

15. In Khaja Bilal Ahmed v. State of Telangana6, the Hon‟ble

Supreme Court, while dealing with the issue of whether the mention of

stale cases can be ignored as they were not taken into account, in the

order of detention, should be looked into, had held as follows:

23. In the present case, the order of detention states that the fourteen cases were referred to demonstrate the "antecedent criminal history and conduct of the appellant".

The order of detention records that a "rowdy sheet" is being maintained at PS Rain Bazar of Hyderabad City and the

(2020) 13 SCC 632 : (2020) 4 SCC (Cri) 629 : 2019 SCC OnLine SC 1657 at page 645

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appellant "could not mend his criminal way of life" and continued to indulge in similar offences after being released on bail. In the counter-affidavit filed before the High Court, the detaining authority recorded that these cases were "referred by way of his criminal background ... (and) are not relied upon". The detaining authority stated that the cases which were registered against the appellant between 2009 and 2016 "are not at all considered for passing the detention order" and were "referred by way of his criminal background only". This averment is plainly contradictory. The order of detention does, as a matter of fact, refer to the criminal cases which were instituted between 2007 and 2016. In order to overcome the objection that these cases are stale and do not provide a live link with the order of detention, it was contended that they were not relied on but were referred to only to indicate the antecedent background of the detenu. If the pending cases were not considered for passing the order of detention, it defies logic as to why they were referred to in the first place in the order of detention. The purpose of the Telangana Offenders Act, 1986 is to prevent any person from acting in a manner prejudicial to the maintenance of public order. For this purpose, Section 3 prescribes that the detaining authority must be satisfied that the person to be detained is likely to indulge in illegal activities in the future and act in a manner prejudicial to the maintenance of public order. The satisfaction to be arrived at by the detaining authority must not be based on irrelevant or invalid grounds. It must be arrived at on the basis of relevant material; material which is not stale and has a live link with the satisfaction of the detaining authority. The order of detention may refer to the previous criminal antecedents only if they have a direct nexus or link with the immediate need to detain

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an individual. If the previous criminal activities of the appellant could indicate his tendency or inclination to act in a manner prejudicial to the maintenance of public order, then it may have a bearing on the subjective satisfaction of the detaining authority. However, in the absence of a clear indication of a causal connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future.

16. Following this line of reasoning, it must be held, in the

present case also, that the mention of crime no. 453 and 457 of 2020, in

the detention order, cannot be treated as having no consequence and it

must be held that the filing of such complaints, against the detenu had a

bearing on the detention order. The non filing of the records of these

cases before the 2nd respondent would have to be considered.

17. In Vasanthu Sumalatha and Ors., vs. State of Andhra

Pradesh rep. by its Chief Secretary, Hyderabad and Ors.,7; a division

bench of the erstwhile High Court at Hyderabad, for the State of

Telangana and the State of Andhra Pradesh, had held as follows:

41. The subjective satisfaction of the detaining authority is, however, not wholly immune from judicial review. There is an area, limited though it be, within which the validity of the

2015 SCC OnLine Hyd 790 : (2016) 1 ALT 738 (DB) : (2016) 2 ALD (Cri) 156

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subjective satisfaction can be subjected to judicial scrutiny.

As subjective satisfaction, is a condition precedent for exercise of the power 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 would not be fulfilled, and the exercise of power would be illegal. (Khudiram Das (16 supra)). Subjective satisfaction notwithstanding, the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention. (Khudiram Das (16 supra); Bhut Nath Mete (2 supra)). If there be found in the Statute, expressly or by implication, matters which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those matters. The authority must call its attention to the matters which it is bound to consider. (Khudiram Das (16 supra)). The satisfaction of the authority must be grounded "on materials which are of rationally probative value". The grounds on which the satisfaction is based must be such as a rational human being can consider as being connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the Statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. (Khudiram Das (16 supra); Pratap Singh v. State of Punjab (37) AIR 1964 SC 72; Machindar v. King (38) AIR 1950 FC

129).

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43. If the bail order, which is a vital material, is not considered, the satisfaction of the detaining authority itself would be impaired. (V. Muragesh v. Collector and District Magistrate, Chittoor (40) (2013) 1 ALT 176 (D.B.) -- 2013 Crl.L.J. 585; Durgam Subramanvam v. Government of A.P. (41) (2013) 4 ALT 243 (D.B.) : Kamal Kishore Saini (39 supra); M. Ahmedkutty (19 supra)). Non-placing and non- consideration of material, as vital as the bail order, vitiates the subjective decision of the detaining authority, and the Court cannot attempt to assess in what manner, and to what extent, consideration of the order granting bail to the detenu would have affected the satisfaction of the detaining authority. (Rushikesh Tanaji Bhoite v. State of Maharashtra (42) (2012) 2 ALT (Crl.) 14 (SC) -- (2012) 3 SCJ 168 -- (2012) 2 SCC 72). Failure of the sponsoring authority to place the conditional orders, granting anticipatory bail/bail, before the detaining authority is fatal as it is a vital material which would have weighed with the detaining authority at the time of passing the detention order. (Durgam Subramanyam (41 supra)).

18. A division bench of this Court, in its judgment dated

10.11.2023, in W.P.No. 26549 of 2023, in the case of D. Bhavana Vs.

The State of Andhra Pradesh and Ors., following Vasanthu Sumalatha

and Ors., vs. State of Andhra Pradesh rep. by its Chief Secretary,

Hyderabad and Ors., had held that non production of such material

would be fatal to the detention order

10. In the light of the above jurisprudence, when facts of the instant case are perused, in the counter filed by the 2nd

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respondent, it has been specifically admitted and mentioned that out of 4 cases which were taken for consideration, the detenue was granted bail in almost 3 cases. However, when we perused the detention order and grounds of the detention, there was no reference about granting of conditional bails in the concerned crimes. Thus, it is obvious that the Sponsoring Authority has not placed the relevant material i.e., bail applications and bail orders before the Detaining Authority and there was no effective consideration of this fact. Further, along with the counter the 2nd respondent enclosed the material papers from page 36 to 192 which were said to be furnished to the detenue after detention. However, these material papers do not contain the bail orders. Thus, in essence, the conditional bail orders were neither considered nor furnished to the detenue, meaning thereby, the detention became illegal and unsustainable. On this ground alone, the detention order is liable to be set aside.

19. We are in respectful agreement with the above judgments

and hold that the order of detention, dated 16.03.2024, is invalid as it

considered the effect of crime no. 453 and 457 of 2020, on the detenu,

without the relevant material being placed before the 2nd respondent. The

order of detention also suffers from the flaw of the bail cancellation

application and its order of rejection, in crime No. 201 of 2023, not being

placed before the 2nd respondent.

20. For the aforesaid reasons, this writ petition is allowed,

without costs, by setting aside the order of detention, bearing No. REV-

MAGLOPDL (PRC)/13/2023-SA(MAGL-1)-KCO, dated 16.03.2024,

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passed by the 2nd respondent and consequential proceedings of the 1st