Andhra Pradesh High Court - Amravati

Balagam Rama Lakshmi vs The State Of Andhra Pradesh, 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: 26779 OF 2023

Between:
  1. BALAGAM RAMA LAKSHMI, W/o.Balagam Nagaraju, Aged
     25 years, Occ.Housewife, R/o.D. No.30/906, Pedda
     Vullingipalem, Machilipatnam, Krishna District.

                                                ...PETITIONER(S)
                               AND
  1. The State of Andhra Pradesh, Rep. by its Chief Secretary to Govt
     of A.P, AP Secretariat, Velgapudi, Amaravathi, Guntur District,
     Andhra Pradesh.
  2. The State of Andhra Pradesh, Rep. by its Principal Secretary,
     Home Department, AP Secretariat, Velgapudi, Amaravathi,
     Guntur District, Andhra Pradesh.
  3. The State of Andhra Pradesh, Rep. by its Principal Secretary,
     General Administration (SC-1), AP Secretariat, Velgapudi,
     Amaravathi, Guntur District, Andhra Pradesh.
  4. The Collector and District Magistrate, Machilipatnam, Krishna
     District.
  5. The Director General of Police, A.P. Police Head Quarters,
     Mangalagiri, Guntur District.
  6. The Superintendent of Police, Machilipatnam, Krishna District.
       7. The Superintendent of Police, Central Prison, Rajamahendravaram,
         East Godavari District.
      8. The Station House Officer, Inaguduru Urban Police Station,
         Machilipatnam, Krishna District.

                                                       ...RESPONDENTS

The Court made the following order:

U.DURGA PRASAD RAO, J:

This writ petition is filed under Article 226 of the Constitution of

India for the following relief:

"to declare the action of the respondents in detaining Sri. Balagam Nagaraju @ Naga @ Gunna S/o Narasimhaswamy, aged 32 years, R/o D.no. 30/906, Pedda Vullingipalem, Machilipatnam Mandal, Krishna District, in Central Prison, Rajamahendravaram vide File No. REV-MAGLOPDL(PRC)/1/ 2023-SA(MAGL-1)-KCO, dt.06.06.2023 passed by the 4th respondent which was approved by the 1st respondent vide G.O. Rt. No.1550, General Administration (SC.I) Department, dt.03.08.2023 as illegal, arbitrary and unconstitutional and violation of Article 14, 19 and 21 of the Constitution of India and Consequently a) Set aside the proceedings issued vide File No.REV-MAGLOPDL(PRC)/1/2023-SA(MAGL-1)-KCO, dated 06.06.2023 and G.O. Rt. No.1550, General Administration (SC.I) Dept dt. 03.08.2023 and b) direct the respondents to produce the detenu before this Honourable Court from Central Prison, Rajamahendravaram and he may be ordered to be released forthwith and pass such other orders."

2. The facts succinctly are thus:

(a) The 4th respondent by his order in REV-

MAGLOPDL(PRC)/1/2023-SA(MAGL-1)-KCO, dated 06.06.2023, ordered detention of one Balagam Nagaraju @ Naga @ Gunna,

S/o.Narasimhaswamy, under Section 3(1) & 3(2) r/w Section 2(f) &

2(g) of The A.P. Prevention of Dangerous Activities of Bootleggers,

Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and

Land Grabbers Act, 1986 (for short, Act No.1 of 1986) on the ground

that the detenu was involved in the following cases:

Date of S.No. Cr.No. & Sec. of Law offence Cr.No.137 of 2023, U/s.8(c) r/w 20(b)(ii)(B) of 1 05.04.2023 NDPS Act, 1985 of Bandar Taluk Police Station. Cr.No.248 of 2022, U/s.8(c) r/w 20(b)(ii)(B) of 2 31.12.2022 NDPS Act, 1985 of Inaguduru Police Station. Cr.No.180 of 2022, U/s.324 r/w 34 IPC of 3 08.11.2022 Robertsonpet Police Station.

Cr.No.313 of 2021, U/s.8(c) r/w 20(b)(ii)(B) of 4 28.06.2021 NDPS Act of Chilakalapudi Police Station. Cr.No.12 of 2021, u/s.324 r/w 34 IPC & 5 Sec.3(1)(r)(s) SCs, STs (POA) Act of Inaguduru 13.01.2021 Police Station.

Cr.No.74 of 2021, u/s.324, 323, 447, 506 r/w 34 6 22.04.2021 IPC of Inaguduru Police Station.

Cr.No.160 of 2021, u/s.324 IPC of Inaguduru 7 31.05.2021 Police Station.

Cr.No.124 of 2020, u/s.8(c) r/w 20(b)(ii)(B) of 8 NDPS Act, 1985 of Chilakalapudi Police 29.05.2020 Station.

Cr.No.77 of 2018, u/s.8(c) r/w 20(B) of NDPS 9 10.06.2018 Act, 1985 of Machilipatnam Police Station.

In the detention order it is also stated that he is acting in a manner

prejudicial to the maintenance of public order.

(b) Subsequently, on the recommendation of the Advisory Board,

his detention was confirmed by virtue of G.O. Rt. No.1550, General

Administration (SC.I) Dept., dt.03.08.2023.

Hence, the writ petition.

3. Learned Special Government Pleader representing the office of

the learned Additional Advocate General filed counter and opposed the

writ petition.

4. Heard Sri Shaik Afzal Mohammed, learned counsel for petitioner

and learned Special Government Pleader representing the office of the

learned Additional Advocate General.

5. (a) Learned counsel for petitioner assails the detention order

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

taken into consideration for ordering detention order, in respect of four

crimes, the detenu was granted bail and the said fact was admitted in the counter of the respondents. Learned counsel would further submit

that in respect of other five crimes, the detenu was arrested and sent to

judicial custody. He would further submit that the sponsoring authority

has not placed the material relating to the granting of bail in 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.

(b) Learned counsel would argue that as admittedly detenu was in

judicial custody by the date of detention order and in that view, there

was no possibility of his committing any further crimes and this aspect

has not been discussed and considered by the Detaining Authority in its

order. Learned counsel would admit that merely because a detenu was

in judicial custody that itself is not an obstruction for passing detention

order. Still the Detaining Authority has to take the said fact into consideration and mention in its order that there is every likelihood of

the detenu getting bail in the case in which he is in judicial custody and

that there is a possibility of his repeating the similar crimes causing

prejudice to the maintenance of public order and unless such an analysis

is made in its order, he cannot arrive at a subjective satisfaction. He

would submit that, however, in the instant case, the Detaining Authority

has not made any attempt in its order in this regard and therefore, the

detention order fails on that ground also. In this context, he placed

reliance on the order of a Division Bench of this Court in W.P. No.1803

of 2021.

Learned counsel thus prayed to set aside the impugned detention

order.

6. 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

four cases and his continuation in judicial custody in respect of other

cases and having been satisfied that his likelihood of getting bail in the

said case also and perpetrate 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.

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

4th respondent suffers from any legal infirmities and if so, the detention

order dated 06.06.2023 is liable to be set aside?

8. We have given anxious consideration to the above respective

arguments. As can be seen from the detention order dated 06.06.2023

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

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

perusal of the counter filed by the 4th respondent would show that in

respect of four cases, the detenu was granted bail and in respect of other

crimes, the detenu was arrested and sent to judicial custody.

Thus, from the counter it is evident that the detenu was granted

bail in relation to four cases and in respect of other crimes, he was sent

to judicial custody.

9. Now, with this factual background, we examined the first

argument of learned counsel for petitioner. A perusal of the detention

order shows that the Detaining Authority has only mentioned that the detenu was involved in nine 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 4th 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.

10. 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 (2 supra), 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 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 case (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

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

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."

11. 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

him to make an effective representation before the Advisory Board. On

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

12. 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. In this context, we perused the grounds

of detention wherein the Detaining Authority has stated as follows:

"Thus, I am satisfied from the material placed before me that you fall under the category of "Drug Offender" as defined in Sec 2(f) of "The Andhra Pradesh Prevention of Dangerous activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986"

and you are a fit person to be detained U/Sec 3(2) of the said Act and accordingly, I will issue orders with a view to preventing you from acting in any manner prejudicial to the maintenance of the public order."

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

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

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.

14. 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 India2 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

2 (1991) 1 SCC 128 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 case3and Kamarunnisa's case (2 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 five cases: