Andhra Pradesh High Court - Amravati
Boguda Rohan Raj vs The District Collector on 22 March, 2022
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
WRIT PETITION NO.16100 of 2021
ORDER:- (Per Hon'ble Sri Justice A.V.Sesha Sai) The issue in the present Writ Petition arises under the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land- Grabbers Act, 1986 (hereinafter called, 'The Act'). The petitioner in the present writ petition is the son of one Sri Boguda Suresh against whom the proceedings under the Act came to be initiated.
2. The Collector and the District Magistrate, Kurnool District vide Rc.No.C1/334/M/2021, dated 29.06.2021, issued an Order of Detention under Section 3(2) read with Section 3(1) of the Act. The State Government vide G.O.RT.No.1153, General Administration (SC.I) Department, dated 09.07.2021 accorded approval for the Order of Detention, referred to supra. Subsequently, the matter was placed before the Advisory Board under Section 11 of the Act and the Advisory Board on 11.08.2021 conducted video conference and heard the detenu and the Investigating Officer and reported unanimously that there is sufficient cause for detention of the detenu. As a sequel to the same, the State Government, in exercise of the powers conferred under Sub-Section (1) of Section 12 read with Section 13 of the Act confirmed the Order of Detention passed by the Collector and District Magistrate, Kurnool District and the said order came to be issued vide G.O.Rt.No.1362, General Administration (SC.I) Department, dated 23.08.2021. In the above background, the present Writ Petition came to be instituted.
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3. A counter affidavit deposed by the District Collector-first respondent herein is filed, denying the averments in the writ affidavit and in the direction for justifying the impugned action.
4. Heard learned counsel for the petitioner, Sri A.Sharat Chandra, and Sri Ponnavolu Sudhakar Reddy, learned Additional Advocate General-I for the respondents.
5. The principal contention sought to be pressed into service by the learned counsel for the petitioner is that the entire exercise undertaken by the State Government in the direction of confirmation of the Order of Detention passed by the Collector and District Magistrate, Kurnool District is in total violation of Sections 9 and 12 of the Act and as such the impugned orders are liable to be set aside.
6. On the other hand, it is submitted by the learned Additional Advocate General, Sri Ponnavolu Sudhakar Reddy, that the orders passed by the respondents are strictly in accordance with the provisions of the Act. As such, the questioned orders are not amenable for any judicial review under Article 226 of the Constitution of India. In order to adjudicate the issue in the present Writ Petition, it would be appropriate to refer to the provisions of the Act. Section 9 of the Act deals with the constitution of the Advisory Boards and the same reads as under:-
"9. Constitution of Advisory Boards :- (1) The Government shall whenever necessary, constitute one or more Advisory Boards for the purposes of this Act.
(2) Every such Board shall consist of Chairman and two other members, who are, or have been Judges or are qualified to be appointed as Judges of a High Court."3
7. Section 10 of the Act deals with the reference to Advisory Board which mandates reference by the Government to the Advisory Board within three weeks from the date of detention. Section 11 of the Act deals with the procedure to be adhered by the Advisory Boards. Section 12 of the Act deals with the action of the Advisory Boards and the said provision of law reads as follows:-
"12. Action upon report of Advisory Board :- (1) In any case where the Advisory Board has reported that there is in its opinion, sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period specified in Section 13 as they think fit.
(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith."
8. While referring to the above provisions of law, it is submitted by the learned counsel for the petitioner that since the Advisory Board which recommended the confirmation of Detention Order consists by only two members including the Chairman, the impugned orders are liable to be set aside. In support of his submissions, learned counsel for the petitioner places reliance on the judgment of this Court in W.P.Nos.9945, 10979 and 10984 of 2021, dated 16.08.2021. A copy of the said judgment is placed on record by the learned counsel for the petitioner. In the aforesaid judgment, the coordinate Bench of this Court while dealing with the above mentioned provisions of law at paragraph No.17 held as follows:
"17. As discussed above, presence of third member in the course of hearing as well as deliberations is of seminal importance, since such member in the course of deliberations may give his inputs and thereby influence the ultimate opinion of the board. It is also pertinent to mention there is no provision in the Act 1 of 1986 4 which saves the validity of the report of an Advisory Board, which is not properly constituted under the Act. Thus, from every angle of the matter, the report of the Advisory Board which is not duly constituted under Section 9 of the Act 1 of 1986 is invalid in law. Hence, the confirmation of the detention orders, on the basis of such invalid reports purportedly, under Section 12 of the Act 1 of 1986, are liable to be quashed."
9. During the course of arguments it is also brought to the notice of this Court that the three members in the Advisory Board came to be appointed on 28.11.2021. Admittedly in the case on hand, an Advisory Board consisting of the Chairman and Member recommended for confirmation of the Detention Order and the same would be evident from the orders of the State Government issued vide G.O.Rt.No.1362, General Administration (SC.I) Department, dated 23.08.2021.
10. For the aforesaid reasons, the Writ Petition is allowed setting aside the Detention Order vide R.C.No.C1/334/M/2021, dated 29.06.2021, passed by the first respondent and later confirmed by the Advisory Board and notified vide G.O.Rt.No.1362, General Administration (SC.I) Department, dated 23.08.2021. There shall be no order as to costs.
As a sequel, miscellaneous petitions, if any pending, in this writ petition shall stand closed.
___________________ JUSTICE A.V.SESHA SAI ________________________ JUSTICE RAVI CHEEMALAPATI Date:22.03.2022 SPP 5 THE HON'BLE SRI JUSTICE A.V.SESHA SAI AND THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI W.P.No.16100 of 2021 Date:22.03.2022 SPP