Andhra Pradesh High Court - Amravati

Vanthala Dhanuradhar Donnu vs The State Of Ap on 12 January, 2024

Author: U.Durga Prasad Rao

Bench: U.Durga Prasad Rao

                              1




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

       FRIDAY ,THE TWELFTH 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: 20301 OF 2023

Between:

  Vanthala Dhanuradhar @ Donnu,
  S/o. BhagatRam, aged 42 years,
  Occ. Pvt. Employee, R/o. Dodipul Village,
  Munchingiput Mandal,
  AlluriSitharama Raju District.

                                              ...PETITIONER(S)
                             AND

  1. The State of AP, Rep. by its Principal Secretary,
     Revenue Department, Secretariat Buildings,
     Amaravathi, Guntur District.

  2. The State of Andhra Pradesh,, Rep. by its Principal
     Secretary, General Administration (Law and Order)
     Department, Secretariat Buildings,
     Amaravathi, Guntur District.

  3. The Collector and District Magistrate,
     Alluri SitharamaRaju District.
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  4. The Director General of Police,, Government of Andhra
     Pradesh, Mangalagiri, Guntur District.

  5. The Superintendent of Police, Alluri SitharamaRaju
     District.
  6. The Circle Inspector of Police,
     Munchingiput Police Station Police Station,
     AlluriSitharamaRaju District.

  7. The Circle Inspector of Police,
     SEB Police Station, Paderu,
     AlluriSitharamaRaju District.

                                           ...RESPONDENTS


ORDER:

- (Per Hon‟ble Smt. Justice Kiranmayee Mandava)

This Writ Petition is filed for issue of Habeas Corpus

for production of the detenue, Sri Vanthala Dhanuradhar @

Donnu, S/o. Bhagat Ram, detained at Visakhapatnam, before

the Court, and sought for release of the detenue by declaring

the proceedings of the 3rd respondent, vide File No.REV02-

MGSTOLWOD/27/2023-MAG-CCLA, dated 17-07-2023, as

illegal and unconstitutional.

2. The petitioner states that the 3rd Respondent vide

proceedings dated 17-07-2023, passed an order of detention

under Sec 3(1) and Sec 3(2) read with Sec.2(f) of A.P

Prevention of Dangerous Activities of Bootleggers and Dacoits,

Drug Offender Goondas Immoral Traffic Offenders and Land

Grabbers Act,1986,(Act No.1 of 1986) on the ground that the

detenue is a drug offender having involved in the following

cases:

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

1. 46/2021 U/s.20(b)(ii)(C), 25 18.09.2021 Munchingiput r/w 8(C) of NDPS PS Act

2. 48/2022 U/s.20(b)(ii)(C), 25 04.11.2022 Munchingiput r/w 8(C) of NDPS PS Act

3. 13/2023 U/s.20(b)(ii)(C), 25 02.04.2023 Munchingiput r/w 8(C) of NDPS PS Act

4. 62/2023 U/s.20(b)(ii)(C), 25 01.05.2023 SEB PS, r/w 8(C) of NDPS Paderu Act

3. The petitioner contends that he was not found at

the scene offences in any of the offences and that during the

course of investigation, the police have apprehended him and

interrogated him. It is his further submission that basing on

the confessional statement of the other accused, the

petitioner is implicated in the above mentioned offences.

Though there is no direct involvement of the petitioner in the

said cases, he has been falsely implicated. The petitioner

further contends that the first crime was registered against

him basing on the confessional statement of the co-accused

and so also the remaining three (3) cases. It is his further

submission that trial in the said cases is pending, and the act

of police in issuing PT Warrants, is preventing him from

obtaining the bail. He contends that if he is found guilty of the

offences alleged to have been committed by him, the

provisions of respective laws under which the crimes were

registered against the petitioner, equally provide for

punishment, and therefore prays to set aside the present

detention. In support of his submissions, he relies on the

decisions of the Hon‟ble Supreme Court in Ameena Begum

Vs. The State of Telangana & Ors.,1 wherein it is observed

that:

"40. On an overall consideration of the circumstances, it does appear to us that the existing legal framework for maintaining law and order is sufficient to address like offences under consideration, which the Commissioner anticipates could be repeated by the Detenu if not detained. We are also constrained to observe that preventive detention laws--an exceptional measure reserved for tackling emergent situations--ought not to have been invoked in this case as a tool for enforcement of "law and order". This, for the reason that, the Commissioner despite being aware of the earlier judgment

1 2023 INSC 788

and order of the High Court dated 16th August, 2021 passed the Detention Order ostensibly to maintain "public order" without once more appreciating the difference between maintenance of "law and order" and maintenance of "public order". The order of detention is, thus, indefensible.

5. And the decision of the Hon‟ble Supreme Court in the

case of Mallada K. Sri Ram Vs. State of Telangana and

Ors.2, wherein it is observed as under "Mere apprehension of

a breach of law and order is not sufficient to meet the standard

of adversely effecting the public order"

6. He further relied on the decision of the Hon‟ble

Supreme Court in the case of Binod Singh Vs. District

Magistrate, Dhanbad, Bihar and Ors3, wherein it is

observed as under:

"7. It is well settled in our Constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must

2 2022 SCC Online SC 424

(1986) 4 SCC 416:1986 SCC (Cri)490

be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenue, the detenue was in jail. There is no indication that this factor or the question that the said detenue might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order"

7. Secondly, learned counsel for the petitioner has

also raised an issue stating that the government did not issue

any G.O. confirming the order of detention.

8. The respondent No.3 has filed his counter

affidavit. He contends that the petitioner without exhausting

the remedy available to him under law of making a

representation either to the government or filing objections

before the advisory board, despite being informed of the

remedy available to him under law filed the instant

Writ Petition which is not maintainable under law. The

respondent states in his counter that the detenue was lodged

in central prison, Visakhapatnam, on the date of detention

order, and taking into consideration the likelihood of his

release on bail and the probability of his further indulging in

any of the pre-judicial activities, the order of detention was

passed, and before passing the same, he has followed the

procedure of law. The detaining authority further submits in

his counter affidavit that the order of detention has been

confirmed by the government and the relevant orders were

also passed to the said effect vide G.O. Rt. No.1460, General

Administration (SC.1) Department dated 25-07-2023.

9. Heard, learned counsel for the petitioner,

Dr. Medisi Ratna Rao and Special Government

Pleader, representing Additional Advocate General for the

respondents. Having considered the rival submissions, after

having gone through the relevant case law relied upon by the

learned counsel for the petitioner the issues raised in the

present writ petition are answered as follows:

10. The first argument of petitioner is concerned and

perusal of grounds of detention shows he was involved in

four (04) cases. As rightly argued, in none of the offences he

was directly involved but he was arrayed as accused later, on

the confessional statement of co-accused. Confessional

statement under law is a weak piece of evidence which

requires corroboration of material particulars. In such an

event, the guilt or otherwise of the accused would ultimately

depend on the evidence of the co-accused, under such

circumstances, on the basis of confessional statement,

placing the detenue under detention is contrary to the

principle laid down by the Supreme Court in the case of

Ameena Begum Vs. The State of Telangana & Ors.,

wherein it is observed as under:

"23. There could be little doubt with the thought process that although the executive would pass an order under the preventive detention laws as a preventive or a precautionary measure, its effect viewed strictly from the stand point of the detenue is simply and plainly punitive.

Significantly, an order of detention is not relatable to an alleged commission of offence which a court is seized of and, thus, the conduct of the accused complained of is yet to be found blameworthy; on the contrary, since it relates to an anticipated offence based on past conduct, the detenue could well feel that he is at the receiving end of a subjective satisfaction of the executive despite he not being proved to be on the wrong side of the law on any previous

occasion. If someone loses his liberty and lands up in prison not having a semblance of a chance to resist or protest, the very circumstance of being put behind bars for such period as specified in the order of detention based on an anticipation that an offence is likely to be committed by him seems to be an aspect which does not sync with the norms and ethos of our very own Constitution and the decisions of this Court in which the concept of „LIFE‟ has been explained in such a manner that „LIFE‟ has been infused in the letters of Article 21(see Common Cause vs. Union of India15). Nonetheless, so long clause (3) of Article 22 of the Constitution itself authorises detention as a preventive measure, there can be no two opinions that none can take exception to such a measure being adopted and it is only a limited judicial review by the Constitutional Courts that can be urged by an aggrieved detenue wherefor too, in examining challenges to orders of preventive detention, the Courts would be loath to interfere with or substitute their own reasoning for the subjective satisfaction arrived at by the detaining authority. Since the object of a preventive detention law is not punitive but preventive and precautionary, ordinarily it is best left to the discretion of the detaining authority."

11. Regarding the contention of the learned counsel

for the petitioner that no order of confirmation of the

detention was passed by the 2nd respondent, the learned

Government Pleader refers to the counter affidavit and points

out to the fact that the 2nd respondent vide proceedings in

G.O.Rt. No.1460, General Administration (SC.1) Department

dated 25-07-2023 has passed an order according approval to

the order of the 3rd respondent, within the stipulated period of

time. So, this argument is of no avail to the petitioner.

12. Apart from above, we also found certain lacunae in

the order of detention passed by the respondent. The first

one amongst the same is, the detaining authority while

passing the order of detention did not take into consideration

the factum of judicial custody of the detune. The detaining

authority before passing the order of detention should come

to a satisfaction that the detenue, who is in jail, in all

probabilities is likely to be released on bail and on such

release, there is every likelihood that he would continue to

commit the same offences, having regard to the past cases.

The non recording of the said satisfaction would manifest non

application of mind to the facts on record, by the detention

authority. In the absence of such satisfaction being recorded,

in the manner stated above, the order of detention would be

vitiated.

13. Secondly we, while going through the order of

detention dated 17.07.2023, noticed from the grounds of

detention that in all the four (4) cases, registered against the

detenue, as on the date of passing of the detention order, the

chemical analysis report was yet to be received from REL.

That being the factual position, in the absence of any report

from the chemical analyst that the contraband seized was

"Ganja", it cannot be said that the detaining authority has

arrived at a valid satisfaction to the effect that the activities of

the detenue would fall under the definition of "Drug Offender"

as defined under Sec.2(f) of Act 1 of 1986, and would cause

prejudice to the maintenance of public order. Though, the

petitioner had not taken this as one of the grounds for his

challenge to the order of detention, however we consider the

same in the light of the principle of the Hon‟ble Supreme

Court in Ameena Begum Vs. The State of Telangana &

Ors., wherein it is observed that:

"25": Be that as it may, culling out the principles of law flowing from all the relevant decisions in the field, our understanding of the law for deciding the legality of an order of preventive

detention is that even without appropriate pleadings to assail such an order, if circumstances appear therefrom raising a doubt of the detaining authority misconceiving his own powers, the Court ought not to shut its eyes; even not venturing to make any attempt to investigate the sufficiency of the materials, an enquiry can be made by the Court into the authority‟s notions of his power. Without being remotely concerned about the sufficiency or otherwise of the materials on which detention has been ordered, the Court would be justified to draw a conclusion, on proof from the order itself, that the detaining authority failed to realize the extent of his own 21 powers. This is quite apart from questioning the action for want of sufficient materials that were before the detaining authority. The authority for the detention is the order of detention itself, which the detenue or the Court can read. Such a reading of the order would disclose the manner in which the activity of the detenue was viewed by the detaining authority to be prejudicial to maintenance of public order and what exactly he intended should not be permitted to happen. Any order of a detaining authority evincing that the same runs beyond his powers, as are actually conferred, would not amount to a valid order made under the governing preventive detention law and be vulnerable on a challenge being laid."

14. Placing reliance on the above principle, we deem it

appropriate to deal with the issue of non availability of

chemical analysis report as on the date of passing of the

detention order and its effect on the order of detention. In the

absence of the chemical analysis report that the contraband

seized was "Ganja", and dealing with the same would

constitute an offence within the meaning of the provisions of

NDPS Act, the „satisfaction‟, arrived at by the detaining

authority cannot be construed as "subjective satisfaction" and

the detention order thus passed is vitiated for the above

mentioned reasons.

15. In the light of the above, the order of detention