Andhra Pradesh High Court - Amravati

Bethampalli Bhulakshmi vs The State Of Andhra Pradesh on 5 February, 2024

Author: U.Durga Prasad Rao

Bench: U.Durga Prasad Rao

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
              (Special Original Jurisdiction)
                        PRESENT

  THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO

THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA

                 WRIT PETITION NO: 29566 OF 2023
Between:
   1. Bethampalli Bhulakshmi, W/o. Nagunuri Murali,
      Aged about 36 Years, R/o. H.No. 41-473/D,
      Opp. District Court, Kurnool, Andhra Pradesh.
                                                              ...Petitioner
                                    And
   1. The State Of Andhra Pradesh,
      represented by its Chief Secretary,
      Secretariat Buildings, Velagapudi at Amaravati.

   2. The Collector and District Magistrate,
      Nandyal, Nandyal District.

   3. The Superintendent of Police,
      Nandyal, Nandyal District.

   4. The Superintendent, Central Prison,
      Kadapa, YSR Kadapa District.
                                                           ...Respondents

ORDER:

(Per Hon'ble Smt. Justice Kiranmayee Mandava)

This Writ Petition is filed for issuance of Habeas Corpus by

declaring the proceedings of the 2nd respondent, in detaining Sri Nagunuri

Murali, S/o.Nagunuri Bhaskar, vide order dated 30-09-2023 in

RC.No.C1/1388/M/2023, as confirmed by the 1st respondent in

G.O.Rt.No.2378 General Administration (SPL.(LAW AND ORDER)),

Department, dated 08-12-2023, as illegal, unconstitutional and sought for

set aside of the same and set the detenue at liberty.

2. The writ petitioner is wife of the detenue, Sri Nagunuri

Murali S/o.Nagunuri Bhaskar. The petitioner submits that the 2nd

respondent vide proceedings dated 30-09-2023, passed an order of

detention under Sec 3(1) & (2) read with Sec.2(f) of the A.P Prevention

of Dangerous Activities of Bootleggers and Dacoits, Drug Offenders,

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

No.1 of 1986), placing the detenue under detention in Central Prison,

Kadapa. The said order of detention was confirmed by the 1st respondent

vide G.O.Rt.No.2378 dated 08-12-2023, treating the detenue as 'Goonda'

as defined under Sec.2(g) of the A.P Prevention of Bootleggers and

Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land

Grabbers Act,1986. The following are the cases, which have been taken

into consideration by the 2nd respondent, while placing the detenue under

detention:

S.No Crime No. Provision of law Date of Police Station offence

1. 109/2014 U/Sec.41(2) Cr.P.C. 26.07.2014 Muddanuru PS, YSR Kadapa District

2. 155/2017 U/Sec.379 IPC 17.11.2017 Koduru PS, Krishna

3. 12/2020 U/Sec.109 of Cr.P.C. 01.02.2020 Nandyalb III Town PS

4. 197/2020 U/Sec.379r/w 34 IPC, 08.06.2020 Dhone Town PS, 102 Cr.P.C Kurnool

5. 418/2020 U/Sec.41(A) Cr.P.C. 21.08.2020 Bethamcherla 109 Crpc PS,Kurnool

6. 40/2021 U/Sec.8(C) r/w 20(B) 07/11/2021 Nandyal of NDPS Act. (government railway police)

7. 67/ 2021 U/Sec.363,363(A) r/w 19.04.2021 At Kurnool I 34 of IPC. Town PS, Kurnool District

8. 16/2022 U/Sec.20 (b)(ii)(B) of 18/02/2022 Hindupur GRPS, NDPS Act. Guntakal GRP

9. 52/2022 U/Sec.20 (b)(ii)(C) of 24.02.2022 Dhone Town, NDPS Act. UPS

10. 60/2023 U/Sec.20 (b)(ii)(B) of 03.05.2023 Dhone Rural, NDPS Act. PS

11. 77/2023 U/Sec.20 (b)(ii)(B) of 31.03.2023 Dhone Town, NDPS Act. PS

3. The petitioner contends that out of eleven (11) cases

registered against the detenue, three (3) cases were registered U/s.41(2)

Cr.P.C. under reasonable suspicion and the detenue was released on bail

on executing bond. Out of two cases that were registered under Sec.379

IPC, petitioner represents that one case was settled before Lok Adalat,

The petitioner represents that one (1) case was registered u/s.363 r.w.s.34

IPC, in which the detenue was shown as accused No.3, in which he was

arrested and released on bail. The remaining five (5) cases, the petitioner

represents that the same relate to offences registered under the provisions

of Sec.20(b)(ii) of NDPS Act. The petitioner contends that out of

eleven (11) crimes, in three (3) crimes, the Awards passed by the

Lok Adalat in the said cases were also not furnished to the detenue

enabling him to submit his representation. She further contends that the

detaining authority while passing the order of detention has taken into

consideration certain stale cases, and three (3) cases were booked under

preventive measure, and the detenue had to bound over, which in any

event, was only for a period of six (6) months. And one (1) case which

was compromised was also taken into consideration while passing the

order of detention. The petitioner submits that the detenue was arrested in

one (1) case at the spot, whereas in respect of the other cases, the

petitioner submits that the detenue was implicated on the basis of

confessional statement made by the co-accused. The petitioner further

contends that the sponsoring authority did not place the bail order copies

before the detaining authority, nor the same were supplied to the detenue,

which deprived the right of the detenue in making effective

representation before the Advisory Board.

4. The 2nd Respondent detaining authority has filed his counter

affidavit contending that though the offences (3) were booked under

preventive measure, the detenue did not change his attitude, he continued

to commit the offences. It is contended that in five (5) drug offences

though the quantity seized is not commercial quantity, the same will not

dilute the nature of offence, drug offences committed by the detenue

would cause widespread danger to the public health and if the said

offences are allowed to continue the same would cause further damage to

the health of the downtrodden, It is further contended that involvement in

five (5) drug offences, after release on bail, is continuing himself in

commission of offences without any regret. The severity of punishment

as provided under the provisions of NDPS Act would not be enough to

deter the detenue from further commission of the offences, unless and

until he is prevented by way of a detention order from committing further

crimes to ensure public order. The quantum of punishment provided

under regular law under which the crimes were registered against the

detenue, would not be sufficient to deter the criminal activities of the

detenue.

5. Heard, learned counsel for the petitioner,

Sri Sreekanth Reddy Ambati, and Sri Khader Basha, learned Special

Government Pleader, representing the learned Advocate General for the

respondents.

6. The learned counsel for the petitioner contends that the

sponsoring authority did not place before the detaining authority the

copies of the bail orders. The copies of the material supplied to the

detenue, to make representation against the order of detention, are not

containing the bail orders. The learned counsel for the petitioner, further

contends that non supply of the copies of bail orders would vitiate entire

proceedings in as much as the detenue will not be in a position to make

an effective representation against the order of detention. In the absence

of entire material before the detenue, which formed the basis for passing

the order of detention, the detenue will not be able to make a proper

representation to the Board or to the Government.

7. Per contra, the learned Special Government Pleader

appearing for the respondents would submit that non-supply of bail

orders would not vitiate the order of detention. In support of his

submission, he relies on the decision of the Hon'ble Apex Court in

Sunila Jain Vs. Union of India & another1. He further contends that in

terms of Sec 3(1) and Sec 3( 2) read with Sec.2(f) of Act 1 of 1986, all

the documents were furnished and the procedure established under law

has been followed.

9. Having given our anxious consideration to the submissions

made on behalf of both the counsel for petitioner and the respondent.

The primary contention of the learned counsel for the petitioner is non

placing of the bail order copies before the Detaining Authority, and non

(2006) 3 SCC 321

supply of the same to the detenue would render the order of detention

invalid. The respondents, on the other hand contend that mere non supply

of the bail orders would not vitiate the order of detention. On perusal of

the grounds of detention, it is noticed that the Detaining Authority did not

consider the factum of granting of bail to the detenue. The impugned

order of detention, does not reflect subjective satisfaction being arrived at

by the Detaining Authorities, in the absence of the bail order copies and

thus it suffers from non application of mind. Furthermore, non-supply of

the copies of the bail orders to the detenue, will not render the order of

detention a valid one. As rightly contended by the counsel for petitioner,

in the absence of bail orders being furnished to the detenue, the detenue,

who is imprisoned, will not be able to make an effective representation

as guaranteed to the detenue under the provisions of Sec.8 of Act 1 of

1986, defeating the very mandate of Art.22(5) of the Constitution of

India. This Court in the cases of K. Padmavathi and Devara Chinna

Venkateswarlu, and in W.P.No.27640 of 2023 has held that non

furnishing of bail orders to the detenue, and non consideration of the

same while passing the order of detention would render the same an

illegal and invalid one.

10. This Court in Writ Petition No.26549 of 2023, observed as

follows:

"9. It should be noted that in the above decision, the judgment in Sunila Jain's case (3 supra) relied upon by the learned Special Government Pleader was distinguished on facts. In Sunila Jain, copy of the order granting bail and order of remand has been furnished to the detenue. In that context, it was observed by the Hon'ble Apex Court that non-furnishing of a copy of the application of bail cannot be said to be a ground and that all the documents placed before the detaining authority are not required to be supplied and only relevant and vital documents are required to be supplied. The said judgment was distinguished in Vasanthu Sumalatha case (2 supra) as follows:

"53. Unlike in Sunila Jain (supra) where a copy of bail application, for an offence which was bailable, was not furnished and a copy of the order granting bail and the order of the remand were furnished to the detenu, in the present case the orders granting conditional bail were neither considered by the detaining authority nor were copies thereof furnished to the detenu. The conditional orders of bail restricted the movement of the detenus and required them to appear before the officer concerned periodically. If these conditional orders of bail had been brought to his notice, it may well have resulted in the detaining authority arriving at the subjective satisfaction that the detention of the detenus were unnecessary. Reliance placed by the Learned Advocate-General on Sunila Jain (supra) is, therefore, misplaced."

In Gattu Kavitha case (1 supra), another Division Bench of the common High Court of Telangana & A.P. expressed similar view as follows:

"14. From the ratio in the decision, it is clear that non-supply of conditional bail orders by the sponsoring authority to the detaining authority and failure to refer to the same in the order of detention and grounds of detention, and non- consideration of such vital and relevant material, invalidates the detention order. The law laid down in Vasanthu Sumalatha v. State of Andhra Pradesh, 2016 (2) ALD (Crl.) 156, which was recently affirmed by us in W.P.No.4805/2016 to the effect that failure to supply documents relied upon by the detaining authority would result in denying an opportunity to make an effective representation as guaranteed under Article 22(5) of the Constitution of India, would squarely apply to the instant case."

11. We, therefore hold that non consideration of the bail orders

while passing the order of detention and non furnishing of the copies of

the said bail orders to the detenue, as held by this Court in the cases

referred to supra, would render the order of detention illegal and

unsustainable.

12. Accordingly, the Writ Petition is allowed and the detention

order in RC.No.C1/1388/M/2023 dated 30-09-2023 passed by

2nd respondent and consequential confirmation order vide G.O.Rt.

No.2378 General Administration (SPL.(LAW AND ORDER)),

Department, dated 08-12-2023 issued by the 1st respondent are set aside

and the detenue namely, Sri Nagunuri Murali, S/o.Nagunuri Bhaskar, is

directed to be released forthwith by the respondents, if the detenue is not