Andhra Pradesh High Court - Amravati

Pangi Mounika vs The State Of Ap on 2 January, 2024

Author: U.Durga Prasad Rao

Bench: U.Durga Prasad Rao

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

           TUESDAY, THE SECOND DAY OF JANUARY
             TWO THOUSAND AND TWENTY FOUR

                            PRESENT

 THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO

THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA

              WRIT PETITION NO: 29213 OF 2023

Between:

  1. PANGI MOUNIKA, W/o Ruthala Bodakonda @ Nani, Aged
     about 21 years, Home Maker, Rio 2-93/1, Neelampeta Village,
     Narsipatnam Mandal, Anakapalli District, Andhra Pradesh.

                                                 ...PETITIONER(S)
                               AND

  1. THE STATE OF AP, Rep., by its Chief Secretary, Secretariat
     Building Amaravathi, Guntur District, Andhra Pradesh.
  2. The Collector and District Magistrate, Anakapalli District.
  3. Superintendent of Police, Anakapalli, Anakapalli District,
  4. The Superintendent of Jails, Central Prison, Visakhapatnam.
                                                 ...RESPONDENTS

The Court made the following order:

U.DURGA PRASAD RAO, J:

Challenging the detention order passed by the 2nd respondent

vide Rc.No.1582/2023/Magl-SA, dated 26.08.2023, against the detenu

namely Ruthala Bodakonda @ Nani, S/o Nookaraju, basing on the

five crimes registered against the detenu in various police stations and

the consequential confirmation order passed by the 1st respondent vide

G.O. Rt. No.1786, General Administration (SC.I) Department, dated

05.09.2023, the detenu's wife filed the present writ petition.

2. Heard Sri A.V.Pardhasaradhi, learned counsel for petitioner and

learned Government Pleader representing the office of the learned

Additional Advocate General.

3. Learned Special Government Pleader representing the office of

the learned Additional Advocate General filed counter and opposed

the writ petition.

4. Learned counsel for petitioner assails the detention order on

two main grounds. Firstly that, out of five crimes which have been

taken into consideration for ordering detention order, the detenu was

granted bail in respect of four crimes and the said fact was admitted in

the counter of the respondents. He would further submit that the

sponsoring authority has not placed the material relating to the

granting of bail in respect of four cases before the Detaining Authority

and consequently, no discussion was made by Detaining Authority

with regard to the consequences of the granting of bail. He would

further submit that bail orders were not furnished to the detenu so as

to make an effective representation before the State

Government/Advisory Board. For this grave procedural violation, he

would argue, the detention per se became illegal. On this aspect, he

placed reliance on the order of a Division Bench of this Court in W.P.

No.17210 of 2022.

Learned counsel thus prayed to set aside the impugned

detention order.

5. In oppugnation, learned Special Government Pleader, while

supporting the detention order, vehemently argued that the Detaining

Authority has taken into consideration the bail granted to the detenu in

respect of four cases and having been satisfied that the offences which

may be prejudicial to the maintenance of public order, he ordered

preventive detention and therefore, his order does not suffer from any

procedural irregularities. He, thus prayed to dismiss the writ petition.

6. The point for consideration is whether the order of the

2nd respondent suffers from any legal infirmities and if so, the

detention order dated 26.08.2023 is liable to be set aside?

7. We have given anxious consideration to the above respective

arguments. As can be seen from the detention order dated 26.08.2023

and the grounds of detention, admittedly, the detaining authority has

taken into consideration five cases for ordering detention. Then, a

perusal of the counter filed by the 2nd respondent would show that as

on the date of passing of detention order, the detenu was granted bail

in respect of four crimes.

8. Now, a perusal of the detention order shows that the Detaining

Authority has only mentioned that the detenu was involved in five

cases. Except that, the Detaining Authority has not specifically

mentioned about the detenu obtaining bail in respect of four crimes.

This indicates that the Sponsoring Authority has not placed before

him the copies of the bail applications and bail orders. Then, we

perused the material papers filed along with the counter by the 2nd

respondent. In those material papers, the copies of the bail orders are

not found place. It also indicates that copies of the bail orders were

not furnished to the detenu as mandated by the procedure.

9. In W.P. No.17210 of 2022, a Division Bench of this Court has

observed as follows with regard to the consequence of non-furnishing

of the bail orders to the Detaining Authority and non-furnishing the

same to the Detenu:

"8. x x x x x One of such procedural safeguards is that if the detenu was already granted conditional bails in the crimes which were taken as a ground for ordering preventive detention, it will be the solemn duty of the Sponsoring Authority to bring the said fact to the notice of the Detaining Authority by placing before it the bail applications and bail orders for its consideration. Failure on the part of the Sponsoring Authority to do so and also the failure on the part of the Detaining Authority to consider aforesaid material on being placed before it, render the detention per se illegal. The law on this aspect is no more res integra. In Vasanthu Sumalatha1, a Division Bench of the common High Court of Andhra Pradesh has observed thus:

"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 (2013 Crl.L.J. 585); Durgam Subramanyam v. Government of A.P. (2013 (4) ALT 243 (D.B); State of U.P v. Kamal Kishore Saini ((1988) 1 SCC 287; M. Ahamedkutty vs Union Of India 1990 SCR (1) 209, 1990 SCC (2) 1. Nonplacing 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 effected the satisfaction of the detaining authority. (Rushikesh Tanaji Bhoite v. State of Maharashtra (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's

1 2015 SCC Online Hyd 790 = (2016) 1 ALT 738 (DB)

case (supra). 54. Neither the order nor the grounds of detention refer either to the conditional or the unconditional orders of bail granted in favour of the detenus. As noted hereinabove failure of the detaining authority to consider the orders granting conditional bail would vitiate the orders of detention. ..xxx..."

9. It should be noted that in the above decision, the judgment in Sunila Jain's case2 (1st 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 detenu. 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 (1 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.

2 MANU/SC/8053/2006 = (2006) 3 SCC 321

Reliance placed by the Learned Advocate-General on Sunila Jain (supra) is, therefore, misplaced."

In Gattu Kavitha v. State of Telangana3, 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."

Division Bench of this Court further observed as follows:

"Thus, in essence, the conditional bail orders were neither considered nor furnished to the detenu, meaning thereby, the detention became illegal and unsustainable. On this ground alone, the detention order is liable to be set aside."

10. The above decision in our view squarely applies to the case on

hand as in the instant case also the bail orders were neither placed

before the Detaining Authority nor furnished to the detenu to enable

3 2016 SCC Online Hyd 718 = (2017) 1 ALD (Crl) 224

him to make an effective representation before the Advisory Board.

On this ground alone, the detention order is liable to be set aside.

11. So far as the second ground is concerned, the submission of the

petitioner is that the Detaining Authority has not specifically

mentioned that the detenu is likely to get bail and thereby, the

possibility of his repeating the similar type of offences cannot be

obviated and therefore, the preventive detention alone is the effective

remedy. It is argued that without arriving at such subjective

satisfaction, the Detaining Authority has mechanically ordered the

preventive detention and therefore, the said order is unjust and illegal.

12. Thus, as rightly argued by learned counsel for petitioner, there

was no discussion about the detenu's languishing in judicial custody

in respect of one crime and the possibility of his obtaining bail and

repeating the similar type of crimes. There is no proper analysis of

the facts to arrive at subjective satisfaction of the Detaining Authority.

13. In W.P. No.1803 of 2021, a Division Bench of this Court has

observed as follows:

"9. On a reading of the above, does not, in our view, show that there was any apprehension or any possibility of the detenu being released on bail. As observed by the Hon'ble Apex Court

in Kamarunnisa's v. Union of India4 even in a case of a person in custody, a detention order can be validly 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. From a reading of the above, it is very much evident, the detaining authority was aware the detenu was in custody as on the date of passing of the order, but, there is no material placed before him to show that there is every likelihood of he being released on bail. Merely saying that there is every likelihood of detenu being granted/released on bail, as he was released in other cases may not satisfy the test as laid down in Champion R. Sangma's case5and Kamarunnisa's case (4 supra). Though the petitioner has been released in 7 out of 10 cases, no material has been placed on record to show that he has made any application seeking release on bail in the following three cases: