Andhra Pradesh High Court - Amravati
Shaik Shamsunniasa vs The State Of Ap on 5 July, 2024
Author: R.Raghunandan Rao
Bench: R. Raghunandan Rao
1
RRR,J& HN,J
W.P.No.31131 of 2023
IN THE HIGH COURT OF ANDHRA PRADESH
***
+W.P.No.31131 of 2023
Between:
# Shaik Shamsunniasa, W/o. Basha,
R/o. D.No0.24-34-42,
Nallacheruvu 23/2, Guntur
Guntur District.
... Petitioner
AND
$ 1. State of Andhra Pradesh, rep. by its Chief Secretary, General
Administration Department, Secretariat Buildings, Velagapudi, Guntur
District, Andhra Pradesh.
2. The District Collector cum District Magistrate, Guntur, Guntur District.
3. The Superintendent of Police, Guntur, Guntur District.
4. The Superintendent of Jails, Central Prison, Rajamahendravaram,
East Godavari District.
5. The Station House Officer, Lalapet Police Station, Guntur, Guntur
District.
6. The Station House Officer, Nallapadu Police Station, Guntur Guntur
District.
7. The Station House Officer, Kothapet Police Station, Guntur, Guntur
District.
... Respondents
Date of Judgment pronounced on : 05.07.2024
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
And
HON'BLE SRI JUSTICE HARINATH.N
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether The Lordship wishes to see the fair copy : Yes/No
Of the Judgment?
2
RRR,J& HN,J
W.P.No.31131 of 2023
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
* HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
And
HON'BLE SRI JUSTICE HARINATH.N
+ W.P.No.31131 of 2023
% Dated: 05.07.2024
Between:
# Shaik Shamsunniasa, W/o. Basha,
R/o. D.No0.24-34-42,
Nallacheruvu 23/2, Guntur
Guntur District.
... Petitioner
AND
$ 1. State of Andhra Pradesh, rep. by its Chief Secretary, General
Administration Department, Secretariat Buildings, Velagapudi, Guntur
District, Andhra Pradesh.
2. The District Collector cum District Magistrate, Guntur, Guntur District.
3. The Superintendent of Police, Guntur, Guntur District.
4. The Superintendent of Jails, Central Prison, Rajamahendravaram,
East Godavari District.
5. The Station House Officer, Lalapet Police Station, Guntur, Guntur
District.
6. The Station House Officer, Nallapadu Police Station, Guntur Guntur
District.
7. The Station House Officer, Kothapet Police Station, Guntur, Guntur
District.
... Respondents
! Counsel for Petitioner : Sri Manikanta Thota
^Counsel for Respondents : Advocate General
<GIST :
>HEAD NOTE:
? Cases referred:
1. (2015) 16 SCC 253
2. AIR 1964 SC 334
3. AIR 1964 SC 1120
4. (1975) 3 SCC 198 : 1974 SCC (Cri) 816 at page 209
5. (2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596 : 2011 SCC OnLine SC 571 at page 250
3
RRR,J& HN,J
W.P.No.31131 of 2023
APHC010604632023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3488]
(Special Original Jurisdiction)
FRIDAY, THE FIFTH DAY OF JULY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO
THE HONOURABLE SRI JUSTICE HARINATH.N
WRIT PETITION NO: 31131/2023
Between:
Shaik Shamsunniasa ...PETITIONER
AND
The State Of Ap and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. MANIKANTA THOTA
Counsel for the Respondent(S):
1. ADDL ADVOCATE GENERAL (AP)
The Court made the following:
ORDER:
(per Hon‟ble Sri Justice R.Raghunandan Rao)
Heard Sri Manikanta Thota, learned counsel appearing for the petitioner
and learned Advocate General appearing on behalf of the respondents.
2. The detenue was named as an accused in four criminal cases,
whose details are given below:
RRR,J& HN,J
Sl.No. Crime No. Police Station Offences under
Sections
1. Crime No.653/2023 Nallapadu Police Station U/S 384 of I.P.C
Dated 22-06-2023
2. Crime No.210/2023 Lalapet Police Station U/S 384 of I.P.C
Dated 23.06.2023
3. Crime No.214/2023 Lalapet Police Station U/S 386 altered to
Dated 26.06.2023 Section 394 of
I.P.C.
4. Crime No.212/2023 Kothapet Police Station U/S 386 r/w 34 of
Dated 26.06.2023 I.P.C.
3. He was arrested in all the above four cases on 29.06.2023. While
he was in judicial custody, an order of detention, dated 14.07.2023, was
passed by the 2nd respondent. This was approved by the 1st respondent on
25.07.2023 and subsequently confirmed, on 19.09.2023, after receiving the
recommendations of the Advisory Committee.
4. The 2nd respondent in his order, dated 14.07.2023, had directed
detention of the detenue in Central prison, Rajamahendravaram, for a period
of one year. The grounds of detention were that the detenue had been
involved in four separate crimes in a matter of four days between 21-06-2023
to 26.06.2023 and the said crimes were committed by targeting isolated areas
during night hours, which caused disturbance in public order. The 2nd
respondent had also recorded that there was every likelihood of the detenue
being enlarged on bail in the above criminal cases and his release would
result in further commission of offences, which would be detrimental to the
public order.
RRR,J& HN,J
5. The mother of the detenue moved the present writ petition
challenging the order of detention dated 14.07.2023 as well as the
subsequent proceedings of approval and confirmation.
6. Sri Manikanta Thota, learned counsel appearing for the petitioner
would submit that even though the order of detention was passed on
14.07.2023, the actual period of detention started from 22.07.2023 when the
detenue was transferred to Rajahmahendravaram Central Jail.
7. The learned counsel for the petitioner raised the following
grounds for challenging the said order of detention.
a) The 2nd respondent had not recorded any satisfaction that there
was a likelihood of the detenue being released from judicial custody and the
absence of recording such satisfaction would be fatal to the detention order.
For this purpose, he relied upon the judgment of the Hon‟ble Supreme Court
in Champion R. Sangma vs. State of Meghalaya and Anr., 1 and the
judgments of a Division Bench of this Court in W.P.No.1803 of 2021 and
W.P.No.3359 of 2024.
b) The offences set out in the detention order are offences of
ordinary nature, which can be dealt with by the regular Criminal Law
provisions and there is no need to invoke the provisions of the Andhra
Pradesh Prevention of Dangerous Activities ofBootleggers, Dacoits, Drug
(2015) 16 SCC 253
RRR,J& HN,J
Offenders, Goondas, ImmoralTraffic Offenders and Land-Grabbers Act, 1986
(hereinafter referred to as „the Act‟).
c) The offences set out in the detention order do not affect the public
order and in any event there is no discussion on the question of whether such
offences alleged to have been committed by the detenue affected the public
order.
d) Section 9 of the Act requires the detention order to be confirmed
by an Advisory Committee consisting of persons, who had been Judges of the
High Court or were eligible to be appointed as High Court Judges. However,
neither the detention order nor any of the subsequent proceedings give details
of members of such Advisory Committee and it should be taken that the
members of the Advisory Committee except the Chairman, did not meet the
requirements of Section 9 of the Act and as such the conformation by the
Advisory Committee is invalid.
e) No material was placed by the sponsoring authority before the 2 nd
respondent to show the involvement of the detenue in any of the crimes
mentioned above. As such the necessary material to show that the detenue
was involved in any of these crimes was never before the 2nd respondent.
8. The learned counsel for the petitioner, apart from raising the
above grounds, also submitted that the detenue had been acquitted in three of
the above cases and no charge sheet has yet been filed in the last case.
RRR,J& HN,J
9. Sri Vishnu Teja, learned counsel appearing for the learned
Advocate General would draw the attention of this Court to the order of the 2nd
respondent, wherein the 2nd respondent had specifically stated that there was
a likelihood of the detenue being enlarged on bail in the four cases mentioned
in the detention order. He would submit that in view of the same, the central
argument of the learned counsel for the petitioner that no satisfaction of
imminent release of the detenue from the judicial custody has been recorded
would have to be rejected.
10. Sri Vishnu Teja had also taken this Court through the detention
order to contend that the nature of crimes committed by the detenue would
show that these were crimes in which persons in isolated areas were being
targeted and as such fear had enveloped the area. He would submit that such
offences are sufficient to make out a case that public order had been affected.
11. The counter filed by the 2nd respondent would show that the
detenue had been released on bail in all the four crimes. However, these were
orders passed after the order of detention had been passed by the 2 nd
respondent.
Consideration of the Court:
12. A Constitution Bench of the Hon‟ble Supreme Court of India in
Rameshwar Shaw vs. District Magistrate, Burdwan 2 , had held, on the
AIR 1964 SC 334
RRR,J& HN,J
question of whether a detention order could be passed against a person in
judicial custody, in the following manner:
12. As abstract proposition of law, there may not be any doubt that
Section 3(1)(a) does not preclude the authority from passing an order of
detention against a person whilst he is in detention or in jail; but the
relevant facts in connection with the making of the order may differ and
that may make a difference in the application of the principle that a
detention order can be passed against a person in jail. Take for
instance, a case where a person has been sentenced to rigorous
imprisonment, for ten years. It cannot be seriously suggested that soon
after the sentence of imprisonment is pronounced on the person, the
detaining authority can make an order directing the detention of the said
person after he is released from jail at the end of the period of the
sentence imposed on him. In dealing with this question, again the
considerations of proximity of time will not be irrelevant. On the other
hand, if a person who is undergoing imprisonment, for a very short
period, say for a month or two or so, and it is known that he would soon
be released from jail, it may be possible for the authority to consider the
antecedent history of the said person and decide whether the detention
of the said person would be necessary after he is released from jail, and
if the authority is bond fide satisfied that such detention is necessary, he
can make a valid order of detention a few days before the person is
likely be released. The antecedent history and the past conduct on
which the order of detention would be based would, in such a case, be
proximate in point of time and would have a rational connection with the
conclusion drawn by the authority that the detention of the person after
his release is necessary. It may not be easy to discover such rational
connection between the antecedent history of the person who has been
sentenced to ten years' rigorous imprisonment and the view that his
detention should be ordered after he is released after running the whole
of his sentence. Therefore, we are satisfied that the question as to
whether an order of detention can be passed against a person who is in
detention or in jail, will always have to be determined in the
circumstances of each case.
RRR,J& HN,J
This principle was followed by another Constitution Bench in Makhan Singh
Tarsikka vs. State of Punjab3.
13. Another Constitution bench judgement of the hon‟ble Supreme
Court has to be noticed in HaradhanSaha v. State of W.B.,4, the bench had
held as follows:
34. The recent decisions of this Court on this subject are many. The
decisions in Borjahan Gorey v. State of W.B. [(1972) 2 SCC 550 : 1972
SCC (Cri) 888] , Ashim Kumar Ray v. State of W.B. [(1973) 4 SCC 76 :
1973 SCC (Cri) 723] ; Abdul Aziz v. District Magistrate, Burdwan [(1973)
1 SCC 301 : 1973 SCC (Cri) 321] and DebuMahato v. State of
W.B. [(1974) 4 SCC 135 : 1974 SCC (Cri) 274] correctly lay down the
principles to be followed as to whether a detention order is valid or not.
The decision in Biram Chand v. State of U.P. [(1974) 4 SCC 573 : 1974
SCC (Cri) 609] which is a Division Bench decision of two learned Judges
is contrary to the other Bench decisions consisting in each case of three
learned Judges. The principles which can be broadly stated are these.
First, merely because a detenu is liable to be tried in a criminal court for
the commission of a criminal offence or to be proceeded against for
preventing him from committing offences dealt with in Chapter VIII of the
Code of Criminal Procedure would not by itself debar the Government
from taking action for his detention under the Act. Second, the fact that
the Police arrests a person and later on enlarges him on bail and
initiates steps to prosecute him under the Code of Criminal Procedure
and even lodges a first information report may be no bar against the
District Magistrate issuing an order under the preventive detention.
Third, where the concerned person is actually in jail custody at the time
when an order of detention is passed against him and is not likely to be
released for a fair length of time, it may be possible to contend that there
could be no satisfaction on the part of the detaining authority as to the
likelihood of such a person indulging in activities which would jeopardise
AIR 1964 SC 1120
(1975) 3 SCC 198 : 1974 SCC (Cri) 816 at page 209
RRR,J& HN,J
the security of the State or the public order. Fourth, the mere
circumstance that a detention order is passed during the pendency of
the prosecution will not violate the order. Fifth, the order of detention is a
precautionary measure. It is based on a reasonable prognosis of the
future behaviour of a person based on his past conduct in the light of the
surrounding circumstances.
14. It has been argued that this judgement is an authority for the
principle that an order of preventive detention cannot be passed against a
person who is already in prison. A reading of the above passage would show
that no such absolute bar has been placed. The observations made above are
merely reiterating the principle laid down in Rameshwar Shaw vs. District
Magistrate, Burdwan.
15. Subsequent judgements of the Hon‟ble Supreme Court had
followed this line of reasoning. However, there have been some variations in
the manner in which this principle had been followed. There have also been
submissions made, at various points of time, that the Hon‟ble Supreme Court
had taken the view that orders of detention cannot be passed when a person
is in judicial custody or otherwise in jail.
16. A 3 judge bench of the Hon‟ble Supreme Court, in Rekha v.
State of T.N.,5 after noticing both trends had held as follows:
8. It has been held in T.V. Sravanan v. State [(2006) 2 SCC 664 :
(2006) 1 SCC (Cri) 593] , A. Shanthi v. Govt. of T.N. [(2006) 9 SCC 711 :
(2006) 3 SCC (Cri) 371] , Rajesh Gulati v. Govt. of NCT of Delhi [(2002)
7 SCC 129 : 2002 SCC (Cri) 1627] , etc. that if no bail application was
pending and the detenu was already, in fact, in jail in a criminal case, the
(2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596 : 2011 SCC OnLine SC 571 at page 250
RRR,J& HN,J
detention order under the preventive detention law is illegal. These
decisions appear to have followed the Constitution Bench decision
in HaradhanSaha v. State of W.B. [(1975) 3 SCC 198 : 1974 SCC (Cri)
816] wherein it has been observed: (SCC p. 209, para 34):
"34. ... where the person concerned is actually in jail custody at the
time when an order of detention is passed against him and is not likely to
be released for a fair length of time, it may be possible to contend that
there could be no satisfaction on the part of the detaining authority as to
the likelihood of such a person indulging in activities which would
jeopardise the security of the State or public order."
9. On the other hand, Mr Altaf Ahmed, learned Senior Counsel
appearing for the State of Tamil Nadu, has relied on the judgments of
this Court in A. Geetha v. State of T.N. [(2006) 7 SCC 603 : (2006) 3
SCC (Cri) 324] and Ibrahim Nazeer v. State of T.N. [(2006) 6 SCC 64 :
(2006) 3 SCC (Cri) 17] wherein it has been held that even if no bail
application of the petitioner is pending but if in similar cases bail has
been granted, then this is a good ground for the subjective satisfaction of
the detaining authority to pass the detention order.
10. In our opinion, if details are given by the respondent authority
about the alleged bail orders in similar cases mentioning the date of the
orders, the bail application number, whether the bail order was passed in
respect of the co-accused in the same case, and whether the case of the
co-accused was on the same footing as the case of the petitioner, then,
of course, it could be argued that there is likelihood of the accused being
released on bail, because it is the normal practice of most courts that if a
co-accused has been granted bail and his case is on the same footing
as that of the petitioner, then the petitioner is ordinarily granted bail.
However, the respondent authority should have given details about the
alleged bail order in similar cases, which has not been done in the
present case. A mere ipse dixit statement in the grounds of detention
cannot sustain the detention order and has to be ignored.
17. These principles were reiterated in the case of Champion R.
Sangma vs. State of Meghalaya and Anr., (1 supra).
RRR,J& HN,J
9. Coming to the ground on which we intend to allow this appeal, we
may point out that even if the appellant is in jail in connection with some
criminal case(s) there is no prohibition in law to pass the detention order.
Law on this aspect is well settled and stands crystallised by a plethora of
judgments of this Court. However, a reading of those very judgments
also clarifies that there are certain aspects which have to be borne in
mind by the detaining authority and satisfaction on those aspects is to be
arrived at while passing the detention order.
10. There are three such factors which were restated
in Kamarunnissa v. Union of India [Kamarunnissa v. Union of India,
(1991) 1 SCC 128 : 1991 SCC (Cri) 88] : (SCC pp. 140-41, para 13)
"13. From the catena of decisions referred to above it seems clear to
us that even in the case of a person in custody a detention order can
validly be 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. If the
authority passes an order after recording his satisfaction in this behalf,
such an order cannot be struck down on the ground that the proper
course for the authority was to oppose the bail and if bail is granted
notwithstanding such opposition, to question it before a higher court.
What this Court stated in Ramesh Yadav [Ramesh Yadav v. District
Magistrate, Etah, (1985) 4 SCC 232 : 1985 SCC (Cri) 514] was that
ordinarily a detention order should not be passed merely to pre-empt or
circumvent enlargement on bail in cases which are essentially criminal in
nature and can be dealt with under the ordinary law. It seems to us well
settled that even in a case where a person is in custody, if the facts and
circumstances of the case so demand, resort can be had to the law of
preventive detention. This seems to be quite clear from the case law
discussed above and there is no need to refer to the High Court
decisions to which our attention was drawn since they do not hold
otherwise. We, therefore, find it difficult to accept the contention of the
counsel for the petitioners that there was no valid and compelling reason
RRR,J& HN,J
for passing the impugned orders of detention because the detenus were
in custody."
18. The law, as can be seen from the above, can be summarised in
the following manner. There is no bar against passing an order of preventive
detention merely on the ground that the detenue is already in prison.
However, the question of whether such an order can be passed, would be
dependent on the facts of each case. The detaining authority, before passing
an order of detention should find that there was a possibility of the proposed
detenue being released from jail. This possibility can be gleaned from various
sources and factors. A non exhaustive list would be where the detaining
authority finds that, the proposed detenue has applied for bail; the proposed
detenue has obtained bail in similar cases and consequently bail, if applied for
in future could be granted on this ground; a co accused of the detenue, who is
placed in a situation similar to the proposed detenue, has obtained bail, and
there is a possibility of the proposed detenue getting bail if he applied, etc.
The said finding would have to be given on the basis of cogent factors and a
mere statement to that effect, without explaining and enumerating the factors
which gave rise to such a finding, would not be sufficient discharge of that
duty by the detaining officer.
19. In the circumstances, this Court would have to look at the
question of whether the detention order had been passed after considering the
likelihood of the release of the detenue from judicial custody or whether it has
been passed without taking this factor into account.
RRR,J& HN,J
20. Paragraph 17 of the counter affidavit filed by the 2nd respondent
would show that the detenue was granted bail in the above four cases on the
following dates.
Sl.No. Crime No. Date of bail granted
1. Crime No.214/2023 02.08.2023
2. Crime No.210/2023 15.07.2023
3. Crime No.653/2023 19.07.2023
4. Crime No.212/2023 24.07.2023
21. However, no details have been given as to when the applications
for bail had been moved before the respective Magistrates. The only mention
of the possibility of imminent release of the detenue, in the detention order,
reads as follows:
"Shaik Mustakin @ Munna, S/o Basha, 21 years, muslim by
caste, 23/2 lane,Nallacheruvu, Guntur town. Now residing at
DargaManyam 1st lane, Bommala centre, Guntur town, who is in judicial
remand in pursuance of Cr.No. 214/2023 of Lalapet P.S. and likely to be
enlarged on bail in the above four (4) criminal cases shall be
detained...."
22. The above finding, without furnishing any details of any pending
bail applications or other factors, in the light of the judgement of the Hon‟ble
Supreme Court in Rekha vs. State of T.N., and Champion R. Sangma vs.
State of Meghalaya and Anr., can only be treated as a mere ipse dixit of the
detaining officer and cannot be sustained. Consequently, the order of
detention passed on 14.07.2023 and the subsequent proceedings cannot
RRR,J& HN,J
sustain and have to be set aside. In the light of the above finding, there would
be no need for this Court to go into the other grounds raised by the petitioner.
23. For the above reasons, this Writ petition is allowed and the order
of detention, dated 14.07.2023, passed by the 2nd respondent, in
R.C.No.55/2023/C4, the confirmation order bearing G.O.Rt.No.1844, dated
19.09.2023 issued by the 1st respondent are set aside and consequently the
detenue Shaik Mustakin @ Munna, S/o Basha, 21 years, Muslim by caste,
23/2 lane, Nallacheruvu, Guntur town, now residing at Darga Manyam 1st
lane, Bommala Centre, Guntur town, shall be, forthwith, set at liberty, if he is
not required in any other case. There shall be no order as to costs.
As a sequel pending miscellaneous petitions, if any, in this writ petition
shall stand closed.
R. RAGHUNANDAN RAO,J
HARINATH.N,J
Js.
RRR,J& HN,J
HONOURABLE SRI JUSTICE R. RAGHUNANDAN RAO
And
HONOURABLE SRI JUSTICE HARINATH.N
WRIT PETITION No.31131 of 2023
5th July, 2024
Js.
