Andhra Pradesh High Court - Amravati

Shaik Akhila, vs State Of Andhra Pradesh, on 5 July, 2024

Author: R Raghunandan Rao

Bench: R Raghunandan Rao

                                    1
                                                               RRR,J & HN,J
                                                        W.P.No.8626 of 2024


APHC010170262024
                   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
                                  And
             THE HONOURABLE SRI JUSTICE HARINATH.N
                      WRIT PETITION NO: 8626/2024

Between:

Shaik Akhila,                                            ...PETITIONER

                                  AND

State Of Andhra Pradesh and Others                  ...RESPONDENT(S)

Counsel for the Petitioner:

1. MANIKANTA THOTA

Counsel for the Respondent(S):

1. THE ADVOCATE GENERAL

The Court made the following Order:

Heard Sri Manikanta Thota, learned counsel appearing for the

petitioner and Sri Vishnu Teja, learned Special G.P. in the office of the

learned Advocate General.

2. The detenue in the present case was arrayed as an accused

in the following cases -

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Sl.No. Crime No. and date Police Station Offences under Sections

1. Crime No.296/2019 Lalapet Police Station U/S 143, 120 (b), 435 r/w 34 of I.P.C& Sec 8(c) r/w 20(b)(ii)(A) NDPS Act, 1985

2. Crime No.297/2019 Lalapet Police Station U/S 143, 120 (b), 435 r/w 34 of I.P.C& Sec 8(c) r/w 20(b)(ii)(A) NDPS Act, 1985

3. Crime No.298/2019 Lalapet Police Station U/S 143, 120 (b), 435 r/w 34 of I.P.C& Sec 8(c) r/w 20(b)(ii)(A) NDPS Act, 1985

4. Crime No.299/2019 Lalapet Police Station U/S 143, 120 (b), 435 r/w 34 of I.P.C& Sec 8(c) r/w 20(b)(ii)(A) NDPS Act, 1985 5 Crime No.303/2019 Lalapet Police Station U/S 143, 120 (b), 435 r/w 34 of I.P.C& Sec 8(c) r/w 20(b)(ii)(A) NDPS Act, 1985 6 Crime No.214/2023 Lalapet Police Station U/s 394 of I.P.C.

7 Crime No.210/2023 Lalapet Police Station U/s 384 of I.P.C. 8 Crime No.653/2023 Nallapadu Police U/s 384 of I.P.C.

Station 9 Crime No.212/2023 Kothapet Police U/s 386 of I.P.C.

Station

3. The detenue was arrested in Crime No.214 of 2023 of

Lalapet Police Station and sent to judicial custody. While he was in jail,

the 2nd respondent passed an order of detention on 14.07.2023, under

Section 2(g) of the A.P. Prevention of Dangerous Activities of

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Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic

Offenders and Land Grabbers Act, 1986 (for short „the Act‟). This order of

detention was approved by the 1st respondent, by way of

G.O.Rt.No.1468, dated 25.07.2023 and thereafter, confirmed by

G.O.Rt.No.1845, dated 19.09.2023. The grounds of detention recorded

the 9 cases mentioned above. The order of detention against the detenue

was passed on the ground that the said 9 cases of arson, unlawful

assembly, conspiracy, extortion and robbery showed a consistent

behaviour of committing criminal offences and that the detenue would

continue to indulge in such offences unless he is prevented from

committing these offences by detaining him in prison. The grounds of

detention also state that 9 cases mentioned above are of such a nature

as to disturb public order.

4. Aggrieved by the said order of detention and subsequent

confirmation by the 1st respondent, the mother of the detenue has

approached this Court by way of the present writ petition.

5. Sri Manikanta Thota, learned counsel appearing for the

petitioner raised the following grounds:

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

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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 of Bootleggers, Dacoits, Drug

Offenders, Goondas, Immoral Traffic 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

(2015) 16 SCC 253

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Section 9 of the Act and as such conformation by the Advisory Committee

is invalid.

e) No material was placed by the sponsoring authority before

the 2nd 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.

6. Sri Vishnu Teja, learned counsel appearing for the learned

Advocate General would contend that the detenue had moved bail

petition on 14.07.2023 and that this fact was taken into account by the 2 nd

respondent, while passing the order of detention and the same has also

been recorded at paragraph No.37 of the counter affidavit filed by the 2 nd

respondent.

"In reply to Ground No.(Y) of the affidavit, it is submitted that, as on the date of passing detention order, the detenue was in judicial custody and it is learnt that he applied for bail on 14.07.2023 and as there is imminent possibility of the detenue coming out of the prison on bail, in order to prevent him from committing offences which are prejudicial to the maintenance of public order, I have passed detention order."

Consideration of the Court:

7. The first ground raised by the learned counsel for the

petitioner is that the order of detention had been passed against the

detenue while he was in jail, without any finding that there was a

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possibility of the detenu being released from jail and the same is not

permissible.

8. A co-accused of the detenue in Crime No.214 of 2023 has

been detained by way of an order dated 14.07.2023 passed against the

said co-accused person. The mother of the co-accused had moved

W.P.No.31131 of 2023 against the said detention order and the same

grounds raised were raised in the said writ petition.

9. A Division Bench of this Court, in W.P. No. 31131 of 2023,

while considering the question of whether a detention order can be

passed against a person, who is in judicial custody and after considering

various judgments of the Hon‟ble Supreme Court cited in that case, had

summed up the law as follows:

"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

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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."

10. In the present case, the 2nd respondent detaining authority

had observed, in the order of detention that "Sri Shaik Saida Vali @

Shabbir Ali, S/o Jani Basha, Muslim by Caste, near Market, Islampet,

Narasaraopet town, Palnadu District, who is in judicial remand in

pursuance of Cr. No. 214 of 2023 of Lalapet P.S., and likely to be

enlarged on bail in the above nine (9) criminal cases shall be detained in

the Central Prison, Rajamahendravaram..."

11. As held by a Division of this Court, in W.P.No. 31131 of

2023, a mere statement that there was a likelihood of the detenue being

released on bail, without details, is not sufficient. The law is quite clear on

this issue. Consequently, the order of detention would have to be set

aside on this ground. In view of this finding, none of the other grounds