Andhra Pradesh High Court - Amravati
Order: (Per Hon'Ble Sri Justice Tarlada ... vs Kanchikacherla P.S on 31 August, 2023
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
AND
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No.18053 of 2023
ORDER:(Per Hon'ble Sri Justice Tarlada Rajasekhar Rao) The writ of habeas corpus is filed by the father of the detenu for detaining his son namely Gaddala Kranthi Kumar and to set him at liberty by quashing the detention order dated 16.05.2023 and consequential confirmation orders in G.O.Rt.No.1040, dated 26.05.2023 and G.O.Rt.No.1367, dated 15.07.2023 passed under Section 3(1) and (2) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers Act, 1986 (hereinafter referred to as the Act).
2. The order of detention vide proceedings dated 16.05.2023 was passed by the 1st respondent on the ground that the detenu is habitual offender and committing offences under the provisions of Narcotic Drugs and Psychotropic substances Act, 1985 time and again and several cases were booked against him u/s 3(2) of Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, 2 Immoral Traffic Offenders & Land Grabbers Act, 1986, Gaddala Kranthi Kumar S/o. Yesu Babu was arrested in four (4) NDPS cases and also involved in two (2) theft cases and one (1) bodily offence case which are offences punishable under Chapters XVI & XVII of Indian Penal Code. The individual has been indulging in the acts qualified to be defined as "Drug Offender" under section 2(f) and "Goonda" under Section 2(g) of Andhra Pradesh, Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug offenders, Goondas, Immoral Traffic Offenders & Land Grabbers Act, 1986 which are prejudicial to the public order as defined in section (2) of the said Act. The individual was involved in Crime Numbers: 356/2021, dt.23.06.2021; 590/2021, dt.20.10.2021; 291/2022, dt.01.08.2022; 48/2020, dt.19.01.2020; 1014/2020, dt.16.11.2020; 235/2022, dt.07.06.2022. The Assistant Commissioner of Police, Nandigama division also submitted that the detenue is hazardous in nature as well as possessing and selling of Ganja in and around Kanchikacherla which may cause huge damage to the public health, public peace and tranquility and prejudicial to public order.
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3. Assailing the detention order dated 16.05.2023, the present Writ Petition came to be filed to set aside /quash the said detention order on the following grounds:
i. The 1st respondent erroneously detained son of the Petitioner under the Act 1 of 1986 on the ground that he is habitual offender and he has committed 7 crimes viz., (1) Crime No.356/2021 of Kanchikacherla P.S., (2) Crime No.590/2021 of Kanchikacherla P.S., (3) Crime No.245/2022 of Kanchikacherla P.S., (4) Crime No.291/2022 of Kanchikacherla P.S., (5) Crime No.48/2020 of Kanchikacherla P.S., (6) Crime No.1014/2021 of Kanchikacherla P.S., and (7) Crime No.235/2022 of Kanchikacherla P.S. ii. The 1st Respondent ought to have seen that if any person involved in commission of any offence after releasing on bail, such involvement in the subsequent offence amounts to violation of the condition of the bail order and concerned police is entitled to seek cancellation of bail. Therefore, the Police did not file any Petition to cancel the bail. iii. The sponsoring authority did not furnish the information to the detaining authority stating that he is involved in total 7 cases. But the sponsoring authority did not furnish information that the Detenue was arrested in above crime 4 No.245/2022 of Kanchikacherla P.S. and he was granted bail. But the sponsoring authority did not furnish information whether the Police arrested the Detenu in other cases or not. But the sponsoring authority did not say whether the detenue was granted bail or not in all other cases. The sponsoring authority also did not furnish when the Detenue was granted bail and on what dates he was released from jail. In support of the granting of bail is concerned, the sponsoring authority did not enclose the bail orders along with other material papers and therefore, the detaining authority did not furnish the bail orders to the Detenue. Therefore, because of non-furnishing the proper information, the detaining authority did not take effective decision.
iv. It is not the case of the sponsoring authority or detaining authority that they invoked the normal laws for preventing the Detenue from committing the offences and it is also not the case of the detaining authority that after his release on bail in earlier cases, he is repeating the commission of offences.
v. The 1st Respondent erred in holding that the detenu is acting prejudicial to the public order and he has no respect towards law and creating panic in the minds of the general 5 public. In support of the said conclusion there is no material before the 1st Respondent and therefore the said conclusion is imaginary.
vi. The 1st Respondent erroneously satisfied on the basis of the material placed by the sponsoring authority that the detenu falls under the category of drug offender and Goonda and accordingly, issued the impugned detention order with a view to prevent the detenue from acting in any manner prejudicial to maintain the public order.
4. Heard learned counsel for the petitioner and learned Government Pleader appearing for respondents.
5. We have carefully considered the rival contentions. Before going into respective contentions, we may refer to the settled law on preventive detention.
6. Our Country is governed by rule of law. Every citizen is guaranteed that he /she should not be punished without there being a proper trial and without there being a verdict by competent Court of law. An order of detention is not punitive, nor creative, nor reformative, but only a preventive action. It is also distinct from criminal proceedings, as the object is not punitive but only preventive. The power vested with the authority to order preventive detention is only an exception and 6 it would be restored to by following scrupulously the procedure which safeguards the fundamental right guaranteed under Articles 21 and 22 of the Constitution of India. As against the preventive detention order, the fundamental right guaranteed to a citizen must prevail. Such valuable rights can only be deprived in accordance to the procedure established by law. While considering the challenge to the detention order, the Court must apply its mind to ascertain whether the detaining authority has scrupulously followed the procedure or not and to ascertain whether there are any infraction of law or procedural lapses which ultimately result in violation of the fundamental rights guaranteed.
7. In Shalini Soni v. Union of India1, Mustakmiya Jabbarmiya Shaik v. M.M. Mehta, Commissioner of Police and others2 and Jagan Nath Biswas v. State of W.B.3 the Hon'ble Supreme Court quashed the detention order holding that the incidents themselves look rather serious but also stale, having regard to the long gap between the occurrences and the order of detention. One should have expected some proximity in time to provide a rational nexus between the incidents relied on and the satisfaction arrived 1 AIR 1981 SC 431 2 (1995) 3 SCC 237 = 1975 (9) SCC 115 3 AIR 1975 Supreme Court 1516 7 at." This Court has repeatedly pointed out that unexplained and long delay will be fatal to the plea of subjective satisfaction.
8. In Mohd. Sahabuddin v. Distt. Magistrate, 24 Parganas4, the Hon'ble Supeme Court quashed the order of preventive detention on the sole ground that the order of preventive detention was passed nearly seven months after the criminal incident. Subjective satisfaction has no proximate rational nexus with prejudicial act.
9. The alleged 1st incident took place on 19.01.2020 and the last incident took place on 07.06.2022. The last incident which occurred on 07.06.2022 and the detention order was passed on 16.05.2023 i.e. about 11 months prior to passing of the detention order, is certainly a stale incident which is not proximate in time when the detention order dated 16.05.2023 was passed and there was no live link between the alleged prejudicial activity and the purpose of detention and the invocation of the provisions of the NDPS Act against the petitioner after a long delay of about eleven months was neither warranted nor justified.
10. In the said context we may refer to the judgment of the Apex Court in Pushpak Mukherjee v. State of West Bengal5. It is settled law that if the detention order is questioned on more than one ground that a Court accepts one ground of challenge 4 1975 (4) SCC 114 5 (1969) 1 SCC 10 8 for quashing the detention order irrespective of the failure to satisfy the other grounds, the detention order would be quashed.
11. Accordingly, the detention order dated 16.05.2023 and consequential confirmation orders in G.O.Rt.No.1040, dated 26.05.2023 and G.O.Rt.No.1367, dated 15.07.2023, passed by the 1st respondent are liable to be set aide and they are set aside and the respondents are hereby directed to set the detenu at liberty forthwith if he is not required in any other case.
12. Accordingly, the Writ Petitions is allowed. There shall be no order as to cost.
As a sequel, interlocutory applications, if any pending in this Writ Petition shall stand closed.
_______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY ________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 31.08.2023 Harin 9 THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY AND THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO 137 W.P.No. 18053 OF 2023 Date: 31.08.2023