Andhra Pradesh High Court - Amravati
Malapolu Venkata Ramana, vs The State Of Andhra Pradesh on 26 April, 2024
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao
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APHC010580852023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3456]
(Special Original Jurisdiction)
FRIDAY, THE TWENTY SIXTH DAY OF APRIL
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA
WRIT PETITION NO: 30287/2023
Between:
Malapolu Venkata Ramana, ...PETITIONER
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. KOLUSU SOUNDARYA
Counsel for the Respondent(S):
1. ADDL ADVOCATE GENERAL (AP)
The Court made the following:
ORDER:(Per Hon‟ble Smt. Justice Kiranmayee Mandava) This Writ Petition is filed under Article 226 of the Constitution of India for issuance of a writ of habeas corpus by declaring the proceedings of the 2nd respondent in MC No.25/M1/PD Act/2023 dated 18.07.2023, as confirmed by the 1st respondent vide proceedings in G.O.Rt.No.1793 GENERAL ADMINISTRATION (SC-I) department, dated 07.09.2023 detaining the 2 detenue, Sri Malapolu Siva Naga Mahesh @ Mahesh, S/o.Nagaraju, as illegal and unconstitutional.
2. The petitioner is the mother of the detenue, and she contends that the 2nd respondent vide M.C.No.25/M1/PD Act/2023 dated 18-07-2023, passed an order of detention under the provisions of Sec 3(1) and 3(2) r/w Sec 2(f) of A.P Prevention of Dangerous Activities of Bootleggers and Dacoits, Drug Offender Goondas Immoral Traffic Offenders and Land Grabbers Act, 1986, (for short "Act 1 of 1986") treating the detenue as "drug offender" for indulging in activities in contravention of the NDPS Act 1985. It is stated that the detenue was granted bail in all the cases, by the date of detention. The following are the cases that were taken into consideration while passing the order of the detention:
S.No. Crime No. Provision of law Police Station
1. 263/2020 U/s.324, 323, 506 r/w. 34 AS Nagar P.S.,
IPC Vijayawada
2. 364/2020 U/s. 8(c) r/w.20(b) of Ajith Singh Nagar
NDPS Act P.S., Vijayawada
3. 90/2020 U/s. 8(c) r/w.20(b) of V. Madugula P.S.,
NDPS Act Anakapalli District
4. 84/2021 U/s. 8(C) r/w20(b) of S.N. Puram P.S.,
NDPS Act Vijayawada
5. 464/2021 U/s. 379 IPC AS Nagar P.S.,
Vijayawada
6. 477/2021 U/s. 379 IPC AS Nagar P.S.,
Vijayawada
7. 396/2020 U/s.324, 323, 506 r/w 34 AS Nagar P.S.,
of IPC Vijayawada
8. 360/2020 U/s.307 r/w 34 of IPC AS Nagar P.S.,
Vijayawada
9. 571/2020 U/s.341, 307 r/w 34 of IPC AS Nagar P.S.,
Vijayawada
10. 118/2021 U/s.341, 506 IPC AS Nagar P.S.,
Vijayawada
11. 128/2021 U/s.509, 506 IPC AS Nagar P.S.,
Vijayawada
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12. 165/2021 U/s.448, 506, 509 IPC AS Nagar P.S.,
Vijayawada
13. 168/2021 U/s. 384 IPC AS Nagar P.S.,
Vijayawada
14. 439/2021 U/s.447, 506, 509 IPC AS Nagar P.S.,
Vijayawada
3. It is contended by the petitioner that out of fourteen (14) cases registered against the detenue, in seven (7) cases he was acquitted and two (2) cases he was convicted. It is represented that as on the date of passing of the award, the detenue was in judicial custody in two cases. In the remaining cases he was granted bail. It is further stated that the detenue was not supplied with the copies of the bail orders and factum of the grant of the said bail orders was not taken into consideration.
4. The 2nd respondent filed his counter affidavit contending that the detenue has committed all the offences. A Rowdy sheet was opened against him on 19.12.2020. And that inspite of continuous watch on his movements by maintaining Rowdy sheet, he did not change his attitude and committed fourteen (14) crimes, which were registered under various penal provisions including the clandestine trade of transport, possession and sale of Ganja which is a prohibited contraband as per the provisions of NDPS Act. It is stated that the detenue is involved in four (4) Ganja cases, two (2) attempt to murder cases (U/Sec.307 IPC), two (2) theft cases (U/Sec.379 IPC) and also other offences covered under Chapter- XVI and XVII such as, offences against human being and offences against property. He is habituated to the commit the above said 4 nature of offences inspite of opening rowdy sheet and retained it. It is their further contention that he is not only a drug offender U/sec.2(f) but would also fall under the definition of „Goonda U/Sec.2(g) of the Act. He further contends that the detenue was arrested and produced before the Courts in several crimes, however, there was no reformation in his conduct and behavior and the cases which are registered against the detenue have not brought any reformation in him, and also have not prevented him from committing illegal activities. Therefore, in order to deter him from indulging in committing of similar offences, the order of detention was rightly passed.
5. It is contended that as on the date of passing of the order of detention, the detaining authority, though observed, that the detenue is likely to be released on bail and that he is likely to indulge in commission of similar offences, however did not mention anything about the bails that were already granted. It is further contended that the grant of bail orders in other cases was not considered, nor the copies of the bail orders were furnished to the detenue.
6. Heard Sri Kolusu Soundarya, learned counsel for the petitioner and Sri Khader Basha, learned Special Government Pleader, representing the learned Advocate General for the respondents.
7. The learned counsel for the petitioner contends that in most of the cases the detenue was granted bail except in two (2) cases and the copies of the bail orders were not furnished to the detenue, nor the same were placed before 5 the detaining authority by the sponsoring authority. The learned counsel relies on the decisions in the cases of Vasanthu Sumalatha and Gattu Kavitha.
8. As noted from the order of detention, out of fourteen (14) cases that were taken into consideration, four (4) cases were registered under the provisions of the NDPS Act. The remaining offences are under the provisions of Chapter XVI and Chapter XVII of IPC. The detention order does not refer to any of the bails that were granted except referring to the fact that the detenue was produced before the Court and sent for judicial custody in Crime No.396 of 2022 and about the PT warrant in Crime No.84 of 2023.The detaining authority though had observed by referring to the detenue‟s judicial custody that the detenue is likely to be released on bail and that he is likely to be indulged in commission of similar offences, however did not mention anything about the bails that were already granted. Therefore, it can be said that the sponsoring authority did not place before the detaining authority the copies of the bail orders. In similar circumstances this Court in the case of K. Padmavathi Vs. The State of Andhra Pradesh in W.P.No.17210 of 2022 dated 04.11.2022, observed that:
"We find considerable force in the above argument. Preventive detention under Article 22 of the Constitution of India is an exception to Article 21. It being not a punitive detention, the law cautioned the detaining authority to scrupulously follow the safeguards and procedures before ordering preventive detention. One of such procedural safeguards is that if the detenue was already granted 6 conditional bails in the crimes which were taken as a ground for ordering preventive detention, it will be the solemn duty of the Sponsoring Authority to bring the said fact to the notice of the Detaining Authority by placing before it the bail applications and bail orders for its consideration. Failure on the part of the Sponsoring Authority to do so and also the failure on the part of the Detaining Authority to consider aforesaid material on being placed before it, render the detention per se illegal. The law on this aspect is no more res integra. In Vasanthu Sumalatha (2 supra), a Division Bench of the common High Court of Andhra Pradesh has observed thus:
"43. If the bail order, which is a vital material, is not considered, the satisfaction of the detaining authority itself would be impaired. (V. Muragesh v. Collector and District Magistrate, Chittoor (2013 Crl.L.J. 585); Durgam Subramanyam v. Government of A.P. (2013 (4) ALT 243 (D.B); State of U.P v. Kamal Kishore Saini ((1988) 1 SCC 287; M. Ahamedkutty vs Union Of India 1990 SCR (1) 209, 1990 SCC (2) 1. Nonplacing and non-consideration of material, as vital as the bail order, vitiates the subjective decision of the detaining authority, and the Court cannot attempt to assess in what manner, and to what extent, consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority. (Rushikesh Tanaji Bhoite v. State of Maharashtra (2012) 2 SCC 72). Failure of the sponsoring authority to place the conditional orders, granting anticipatory bail/bail, before the detaining authority is fatal as it is a vital material which would have weighed with the detaining authority at the time of passing the detention order. [Durgam Subramanyam‟s case (supra).
54. Neither the order nor the grounds of detention refer either to the conditional or the unconditional orders of bail granted in favour of the detenus. As noted hereinabove failure of the detaining authority to consider the orders granting conditional bail would vitiate the orders of detention. ..xxx..."
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In Gattu Kavitha case (1 supra), another Division Bench of the common High Court of Telangana & A.P. expressed similar view as follows:
"14. From the ratio in the decision, it is clear that non-supply of conditional bail orders by the sponsoring authority to the detaining authority and failure to refer to the same in the order of detention and grounds of detention, and non- consideration of such vital and relevant material, invalidates the detention order. The law laid down in Vasanthu Sumalatha v. State of Andhra Pradesh, 2016 (2) ALD (Crl.) 156, which was recently affirmed by us in W.P.No.4805/2016 to the effect that failure to supply documents relied upon by the detaining authority would result in denying an opportunity to make an effective representation as guaranteed under Article 22(5) of the Constitution of India, would squarely apply to the instant case."
10. In the light of the above jurisprudence, when facts of the instant case are perused, in the counter filed by the 2nd respondent, it has been specifically admitted and mentioned that in the above 11 cases which were taken for consideration, the detenue was granted bail in almost all the cases. However, when we perused the detention order and grounds of the detention, there was no reference about granting of conditional bails in the concerned crimes. Thus, it is obvious that the Sponsoring Authority has not placed the relevant material i.e., bail applications and bail orders before the Detaining Authority and there was no effective consideration of this fact."
9. As noted from the material papers filed along with the counter affidavit, the 2nd respondent has annexed bail order copies in the following four cases:
1. Cr No.118 of 2021,
2. Cr No.128 of 2021,
3. Cr No. 165 of 2021 & 4. Cr No.168 of 2021 8 and the said bail orders were not referred to by the detaining authority in the order of detention.
10. Following the above decision in W.P. No.17210 of 2022, it can be said that the order of detention is not sustainable for not considering the relevant material. However, from the said bail orders it appears that the detenue had affixed his signatures. In view of the same, it cannot be said that copies of the bail orders were not furnished to the detenue, and the contention of the petitioner to the said extent of non furnishing of the bail orders is not sustainable.
11. Apart from the ground of non placing of bail order copies before the detaining authority, it is observed from the order of detention, as stated above, that the detaining authority has taken into consideration two categories of offences one is under the provisions of NDPS (Drug offender) and another is under the provisions of chapter XVI and XVII of IPC. This Court in the case of Syed Mubeen Vs. The State of Andhra Pradesh, in W.P. No.26306 of 2023 dated 05.01.2024, observed as under:
"8. Point : As can be seen from the detention order and grounds of detention dated 29.09.2023, admittedly the Detaining Authority has taken into consideration five crimes narrated supra and expressed his subjective satisfaction that the detenue comes under the definition „goonda‟ under Section 2(g) of the Act 1 of 1986 and his activities are dangerous to human life and prejudice to the maintenance of public order and accordingly, passed the detention order. Therefore, it has now to be seen whether the 2nd respondent has arrived at subjective satisfaction in 9 accordance with the provisions of the Act 1 of 1986 or his order is vitiated by law.
(a) Section 2(g) of the Act 1 of 1986 defines the term „goonda‟ as follows:
(g) "goonda" means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code."
The definition pellucidly tells that in order to brand a person as goonda, he must involve in the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of IPC. Chapter XVI deals with "offences affecting the human body" under Sections 299 to 377 IPC; Chapter XVII deals with the offences against the property under Sections 378 to 462 IPC; whereas Chapter XXII deals with the offences of criminal intimidation, insult and annoyance under Sections 503 to 510 IPC.
9. Be that as it may, in the light of the above definition, when the five crimes are scrutinized, except Cr.No.84/2017, remaining four crimes allegedly committed by the detenue fall within the definition of goonda. Cr.No.84/2017 is concerned, the detenue allegedly committed offence u/s 153(A) IPC and Section 66 r/w 43(a)(b) of the Information Technology Act 2000. Section 153(A) 10 is an offence which deals with promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony. Similarly, the offence u/s 66 r/w 43(a) and (b) is a computer related technological offence. Needless to emphasize both these offences fall outside the circumference of chapters XVI, XVII and XXII IPC. Therefore, there is force in the argument of the learned Senior Counsel for the petitioner that the Detaining Authority has considered irrelevant material to order preventive detention.
(a) The effect of irrelevant material on a detention order was delineated in Annam Venkatakrishnaraju‟s case (2 supra) by a Division Bench of this High Court. In that case, considering 11 crimes in which the 10 detenue therein was allegedly involved, the Detaining Authority termed him as „goonda‟ under Section 2(g) of the Act 1 of 1986 and passed detention order. In the concerned writ petition, a Division Bench of this High Court considering the fact that out of 11 crimes, 10 fall within the definition of goonda, but 1 crime i.e., Cr.No.355/2020 was an offence u/s 34(1)(a)(i) of 11 the A.P. Excise Amendment Act 2020 which do not fall within the definition of Section 2(g) of Act 1 of 1986 held thus:-
"16. Having regard to the judgments as noted above, it is crystal clear that even if one ground is irrelevant, the same would vitiate the detention order as a whole. Admittedly, in the instant case, an irrelevant ground has been taken into consideration while passing the order of detention."
12. Applying the said principle to the present case, while categorizing the detenue as "goonda" offences relating to the provisions of NDPS were also taken into consideration and vice versa, rendering the order of detention otiose. In view of the above reasons, the other issue raised by the learned counsel for the petitioner that there is no proximity between the offences interse, since the order of detention is held to be invalid for the above mentioned reasons. We do not deem it necessary to adjudicate on the remaining issues. Therefore, in our considered view the order of detention is not sustainable for all the above- mentioned reasons. Accordingly, the order of detention passed by the 2 nd respondent as approved by the 1st respondent is set aside.
13. For the above said reasons, the Writ Petition is allowed and the detention order dated 18.07.2023 vide MC No.25/M1/PDAct/2023, passed by 2nd respondent, as confirmed by the 1st respondent vide G.O.Rt.No.1793 11 GENERAL ADMINISTRATION (SC-I) department, dated 07.09.2023, is set aside and the detenue namely, Sri Malapolu Siva Naga Mahesh @ Mahesh, S/o. Nagaraju, is directed to be released forthwith by the respondents, if the detenue is not required in any other cases. No costs.
As a sequel, interlocutory applications pending, if any, shall stand closed.
__________________________ U. DURGA PRASAD RAO, J ____________________________ KIRANMAYEE MANDAVA, J 26.04.2024 MVK 12 97 HON'BLE SRI JUSTICE U.DURGA PRASAD RAO AND HON'BLE SMT. JUSTICE KIRANMAYEE MANDAVA Writ Petition No.30287 of 2023 26.04.2024 MVK