Andhra Pradesh High Court - Amravati
Kunchala Varalababu, vs The State Of Andhra Pradesh, on 29 October, 2024
Author: R Raghunandan Rao
Bench: R Raghunandan Rao
APHC010153562024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3488]
(Special Original Jurisdiction)
TUESDAY, THE TWENTY NINETH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO
THE HONOURABLE SRI JUSTICE HARINATH.N
WRIT PETITION NO: 7893/2024
Between:
Kunchala Varalababu ...Petitioner
and
The State Of Andhra Pradesh and Others ...Respondents
Counsel for the Petitioner:
Sri.Vivekananda Virupaksha
Counsel for the Respondent(S):
Learned Advocate General
The Court made the following Order: (Per Hon'ble Sri Justice Harinath.N)
The writ petition is filed challenging the order of detention vide
Rc.No.C1/1549/M/2023, dated 04.11.2023 issued by the 3 rd
respondent.
2. The petitioner is the brother of detenu who was detained vide
order of detention dated 04.11.2023. The 1st respondent
confirmed the detention order and issued G.O.Rt.No.2247
General Administration (SC.I) Department, dated 15.11.2023. The
detenu was involved in the following 06 cases.
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RRR, J & HN,J
S.No. Crime No. Police Station Offences under
Sections
1. Crime No.543 of Atmakur Under Section 8(e) read
2019 Proh&Excise with 20(b)(ii)(B) of
Police Station
NDPS Act
2. Crime No.259 of Atmakur Under Section 332, 353
2019 Police Station
read with 34 of IPC
3. Crime No.507 of Atmakur Under Section 7(A)
2020 Police Station
read with 8(e), 13(b) of
APP Act
4. Crime No.7 of 2022 Atmakur Under Section 147,
Police Station 148, 324, 307, 153(a)
read with 149 of IPC
5. Crime No.21 of 2023 Bandi Under Section
Atmakur 20(b)(ii)(c) read with
Police Station 8(c) and Section 25 of
NDPS Act
6. Crime No.157 of Atmakur Under Section
2023 Police Station 20(b)(ii)(c) read with
8(c) of NDPS Act
3. The learned counsel for the petitioner submits that the sponsoring
authority has suppressed the vital information to the detaining
authority. It is the specific case of the petitioner that the petitioner
was released on bail in three of the cases and that the bail orders
were not furnished to the 3rd respondent.
4. It is also the contention of the petitioner that the detaining
authority has relied on irrelevant factors for passing the order of
detention. The sponsoring authority ought to have forwarded the
bail orders to the 3rd respondent. The non-furnishing of bail orders
to the detenu eclipsed the detenu from effectively submitting his
counter before the detaining officer.
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5. It is also submitted that Crime No.259 of 2019 and Crime No.7 of
2022 have nothing to do with the allegations of a drug offender as
defined under Section 2(f) of the AP Andhra Pradesh Prevention
of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral
Traffic Offenders and Land Grabbers Act, 1986 (herein after be
referred as 'the Act').
6. There are no grounds for branding the detenu under the definition
of drug offender as defined under Section 2(f) of the Andhra
Pradesh Prevention of Bootleggers, Dacoits, Drug Offenders,
Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986
(herein after be referred as 'the Act').
7. The State in their counter has narrated the details of all cases
which were registered against the detenu. It is also submitted that
the detenu was involved in six cases during the years 2019 to
2023 and three of the cases related to NDPS Act and one case
related to AP Prohibition Act.
8. It is also submitted that, the procedure established under law was
followed for passing the order of detention and ample opportunity
was granted to the detenu to make a representation to the
concerned authority and that the detenu was also given an
opportunity of personal hearing. It is submitted that the illegal
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activities of the detenu are affecting the public health and public
order and that the detenu resorting to drug peddling activities. It is
also submitted that the detenu by resorting to organizing gangs for
sale and supply of cannabis to drug peddlers in Nandyal Town
and in turn supplying them to college students and other public,
resulting in exposing them to serious health and social
consequences. The only option left with the law enforcing
agencies is to detain her by issuing the detention order, which is
completely in accordance with law.
9. The learned counsel for the petitioner placed reliance on the
Judgment of the composite High Court at Hyderabad passed in
the matter of Vasanthu Sumalatha Vs. State of Andhra
Pradesh1, wherein, at paragraph 7, it was held as follows ;
"7. The Constitutional imperatives of Article 22(5), and the dual
obligation imposed on the authority making the order of preventive
detention, are twofold: (1) The detaining authority must, as soon as
may be, i.e. as soon as practicable, after the detention order is
passed, communicate to the detenu the grounds on which the order
of detention has been made, and (2) the detaining authority must
afford the detenu the earliest opportunity of making the representation
against the order of detention, (M. Ahamedkutty v. Union of India ;
Mangalbhai Motiram Patel v. State of Maharashtra ; Kamleshkumar
Ishwardas Patel v. Union of India ), i.e., to be furnished with sufficient
particulars to enable him to make a representation which, on being
considered, may obtain relief to him. The inclusion of an irrelevant or
non-existent ground, among other relevant grounds, is an
infringement of the first of the rights and the inclusion of an obscure
or vague ground, among other clear and definite grounds, is an
infringement of the second of the rights. In either case there is an
invasion of the constitutional rights of the detenu entitling him to
MANU/AP/0602/2015
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approach the Court for relief. The reason why the inclusion of even a
simple irrelevant or obscure ground, among several relevant and
clear grounds, is an invasion of the detenu's constitutional right is that
the Court is precluded from adjudicating upon the sufficiency of the
grounds, and it cannot substitute its objective decision for the
subjective satisfaction of the detaining authority. (Mohd. Yousuf
Rather v. State of J&K".
10. The subjective satisfaction for passing the order of detention
would depend on case to case basis. The authority passing the
order of detention has to ensure that the procedural safeguards
before passing the detention order ought to be followed
scrupulously.
11. Preventive detention is a method of deterring an antisocial
element from disturbing the peace and fabric of the society.
However, the extreme action on part of the State denying the
fundamental right in the form of detaining him for a considerable
period of time has to be exercised by following the necessary
safeguards. On the other hand, it is the responsibility of the State
to ensure peace in the society and strive towards a crime free
society. The State has an equal responsibility of protecting the
citizens' fundamental rights. The antisocial elements definitely
infringe upon the fundamental rights of the citizens in the society
to a large extent.
12. It is the bounden duty of the detaining authority to ensure that they
consider the material available in detail and pass necessary
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RRR, J & HN,J
orders by incorporating the relevant aspects imposing the order of
detention. Non-furnishing of relevant material to the detaining
authority and issuance of the order of detention without
considering the relevant material has to be set aside as the same
is an arbitrary act on part of the state.
13. The order of detention which is under challenge in the writ petition
is evidently passed without considering the relevant material. It is
also evident that the relevant material was not furnished to the
detaining authority by the concerned officer.
14. There is no justification for passing the order of detention except
for stating that the order of detention is passed to prevent the
detenue from indulging in drug peddling activities and save public
from grave threat to their health. The detention order has to be set
aside. In view of the law laid down by the Hon'ble Supreme Court
in Rekha Vs. State of Tamilnadu2 and Champion R. Sangma
Vs. State of Meghalaya and another3, the order of detention vide
proceedings Rc.No.C1/1549/M/2023, dated 04.11.2023 issued by
the 3rd respondent deserves to be set aside.
15. For the aforesaid reasons, the writ petition is allowed and the
order of detention vide proceedings Rc.No.C1/1549/M/2023,
dated 04.11.2023, which was confirmed by the 1st respondent vide
(2011) 5 SCC 244
3 2015 ALL MR (Cri) 3673 (S.C.)
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RRR, J & HN,J
G.O.Rt.No.2247 General Administration (SC.I) Department, dated
15.11.2023 is hereby set aside and consequently the detenu by
name Goddendla Estheramma, W/o.late G.Yesurathnam, aged 51
years, Padmavathi Nagar, Atmakur Town, Nandyal District shall
be 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.
_____________________________
JUSTICE R.RAGHUNANDAN RAO
____________________
JUSTICE HARINATH.N
KGM
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THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
AND
THE HON'BLE SRI JUSTICE HARINATH. N
(Per Hon'ble Sri Justice Harinath.N)
Dated 29.10.2024
KGM
