Andhra Pradesh High Court - Amravati
In This Writ Petition vs Unknown on 6 March, 2023
THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
AND
THE HON'BLE SRI JUSTICE V.SRINIVAS
WRIT PETITION No.30649 of 2022
ORDER:(per Hon'ble Sri Justice V.Srinivas) In this writ petition, the petitioner is challenging the order of detention of his son Thota Sridhar S/o Thota Nagaraju, Aged 25 years, in order of detention vide REV-MAGL-1/481/2022 dated 07.06.2022 passed by the 2nd respondent-The Collector & District Magistrate, Tirupati and confirmed by the 1st respondent-the State as per G.O.Rt.No.1616 dated 05.08.2022 and prays to direct the respondent authorities to set the detenue at liberty forthwith.
2. Petitioner herein, who is father of the detenue-Thota Sridhar, in his petition stated that detention orders were passed against his son, on the ground that his son is "Goonda" within the definition of Section 2(g) of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short, 'the Act 1 of 1986). It is further stated in the petition that in the order passed by the 2 nd respondent held that the activities of the detenue are dangerous and prejudicial to the maintenance of public order, apart from disturbing the peace, tranquility, social harmony/order in the society, thereby, the 2nd respondent-Collector and District Magistrate is said to have passed the impugned order of detention dated 07.06.2022 since he 2 has been habitually involved in criminal activities with other associates and even though a number of cases were registered against him, he did not change his attitude and on the other hand increasing his criminal activities day to day.
3. On perusal of the record, the very genesis for initiation of the proceedings against the detenue is the Registration of eleven (11) crimes in different police stations against him. The particulars of the said crimes are as follows:
S.No. Cr.No. & Section of Law Date of offence
1 30/2022 u/s 8(c) r/w 20(b)(ii) of NDPS Act, 15.03.2022
1985 of Gajulamandyam PS
2 22/2022 u/s 379 IPC of Gajulamandyam PS 27.02.2022 and
28.02.2022
3 238/2021 u/s 379 IPC of Gajulamandyam 18.12.2021 and
PS 19.12.2021
4 638/2021 u/s 379 IPC of Tiruchanoor PS 13/14.11.2021
5 30/2022 u/s 379 IPC of Tiruchanoor PS 26/27.01.2022
6 48/2022 u/s 379 IPC of Tiruchanoor PS 27/28.01.2022
7 33/2022 u/s 379 IPC of Renigunta PS 30/31.01.2022
8 52/2022 u/s 379 IPC of Renigunta PS 30/31.1.2022
9 88/2022 u/s 379 IPC of M.R.Palli PS 24/25.02.2022
10 108/2022 u/s 379 IPC of Chandragiri PS 06.3.2022
11 20/2022 U/S 419, 384 R/W 34 IPC of 03.03.2022
Narayanavanam PS
In the grounds of detention, it is stated that the detenue was habitually involved in theft cases around 14 in number in and around Tirupati District. The perusal of the record placed before this Court finally showing in the following crimes, the detenue was acquitted:
1 133/2014 u/s 379 IPC of Srikalahasti I Town PS 2 18/2014 u/s 379 IPC of Srikalahasti I Town PS 3 3 215/2014 u/s 379 IPC of CCS Tirupati 4 225/2014 u/s 379 IPC of CCS Tirupati 5 231/2014 u/s 379 IPC of CCS Tirupati 6 240/2014 u/s 379 IPC of CCS Tirupati 7 228/2014 u/s 379 IPC of CCS Tirupati 8 226/2014 u/s 379 IPC of CCS Tirupati 9 232/2014 u/s 379 IPC of CCS Tirupati 10 227/2014 u/s 379 IPC of CCS Tirupati 11 207/2013 u/s 379 IPC of Chittoor I Town PS 12 232/2011 u/s 224 IPC of Alipiri P.S 13 403/2013 u/s 379 IPC of East PS Tirupati 14 408/2013 u/s 379 IPC of East PS, Tirupati Thus, the above fourteen cases clearly showing the detenue was acquitted. The petitioner thus, assailing the validity and legal sustainability of the said order of detention and the order of confirmation passed by 2nd respondent and 1st respondent respectively, the present Writ Petition came to be instituted.
4. Counter-affidavit is filed by the Collector and District Magistrate-2nd respondent, denying the allegations and averments made in the affidavit filed in support of the Writ Petition and in the direction of justifying the impugned action.
5. Heard arguments of Sri D.Purna Chandra Reddy, learned counsel for the petitioner and learned Additional Advocate General for the respondents.
6. It is submitted by the learned counsel for the petitioner that the order of detention passed by the Collector and District Magistrate- 2nd respondent as confirmed by the 1st respondent-State 4 of Andhra Pradesh is highly illegal, arbitrary and unreasonable and violative of Articles 14 and 21 of the Constitution of India, besides being opposed to the very spirit and object of the provisions of the Act 1 of 1986. It is further argued that by giving complete go-bye to the mandatory requirements of law, as provided under Section 3 of the Act 1 of 1986, the 2nd respondent, who is the detaining authority, passed the order of detention without satisfing himself passed the order, in fact the detenue viz., Thota Sridhar was granted bail in almost all the cases mentioned in the order of detention by the jurisdictional criminal courts, and that the sponsoring authority deliberately suppressed the said fact before the detaining authority and that the bail order copies which were passed in favour of the detenue were not even furnished to the detenue, enabling to submit an effective representation before the concerned authorities.
7. It is further submitted by the learned counsel that the 2 nd respondent-Collector and District Magistrate failed to record the satisfaction in accordance with law, as mandated under Section 3 of the Act 1 of 1986, which is mandatory and indispensable. In support of his submissions and contentions, learned counsel places reliance on the Judgments in Gattu Kavita v. State of Telangana1, Rushikesh 1 2016 SCC Online Hyd 718 = (2017)1 ALD (Cri) 224 5 Tanaji Bhoite v. State of Maharashtra2 and Rekha v. State of Tamilnadu3, besides the learned counsel for the petitioner also relied on the order dated 04.11.2022 in W.P.No.17210 of 2022 and another order dated 15.12.2022 in W.P.No.37256 of 2022.
8. On the contrary, the learned Additional Advocate General, strongly resisting the Writ Petition, contends that there is absolutely no illegality nor there exists any procedural infirmity in the impugned action and in the absence of the same, the present Writ Petition, filed under Article 226 of the Constitution of India, is not maintainable and the petitioner is not entitled for any relief. It is further submitted that the 2nd respondent-Collector and District Magistrate, only after taking into consideration of the involvement of the detenue in various successive crimes, he passed the order of detention and there is no contravention of any of the provisions of the statute. In support of his submissions and contentions, learned counsel places reliance on the Judgment in Sunila Jain v. Union of India4.
9. In the above background, now the issue that emerges for consideration of this Court in the present Writ Petition is "Whether the Order of detention passed by the 2nd respondent-Collector and 2 (2012) 2 Supreme Court Cases 72 3 2011 (5) SCC 244 4 2006 (3) SCC 321 6 District Magistrate as confirmed by the 1st respondent-State Government is sustainable and tenable?"
10. The material available on record discloses, in clear and vivid terms, that out of 25 crimes registered against the detenue as on the date of passing the order of detention, in as much as 14 crimes, the detenue was already acquitted and that the acquittals were of the year, 2013 and 2014, whereas, pending theft cases and ganja cases are of the years 2021 and 2022.
11. The object of Prevention of Detention is to prevent the detenue from committing similar offences. In that context, the State passed the 'Act 1 of 1986'. The State of Andhra Pradesh passed the legislation for preventive detention of Dangerous Activities of Boot- Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic offenders and Land Grabbers and for preventing their dangerous activities, which is prejudicial to the maintenance of public order.
12. In the case on hand, by categorizing the son of the petitioner herein as 'Goonda', the order of detention came to be passed by the 2nd respondent-Collector and District Magistrate. According to the Clause (g) of Section 2 of the Act, '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 Chapters XVI or XVII or XXII of the Indian Penal Code. 7 Section 3 of the Act confers on the authorities power to make such an order.
13. It is very much lucid from a reading of section 3 of the Act and the provision of law that before branding an individual as a 'Goonda', the recording of satisfaction is mandatory and indispensable on the part of the detaining authority. As rightly pointed out by the learned counsel for the petitioner, the 2nd respondent-Collector and District Magistrate, in the instant case, did not make any endeavor to record such a satisfaction before passing an order of detention except referring to the alleged involvement of the detenue in various crimes.
14. Undoubtedly, the laudable object in enacting the present legislation viz., 'Act 1 of 1986' is to ensure the maintenance of peace and tranquility in the society. In order to pass an order of detention, the District Collector-cum-District Magistrate as well the State must adhere to the provisions of law and the competent authorities, before passing an order are required to examine the issue with lot of care, caution and circumspection. In this context, it would be appropriate to refer to the Judgment of the Hon'ble Supreme Court in Champion R.Sangma v. State of Meghalaya5, wherein, the Hon'ble Supreme Court while dealing with the provisions of the Preventive detention, at paragraphs-13 and 14 held as follows:
5 (2015) 16 Supreme Court Cases 253 8 "13. In view of the above, it was for the respondents to satisfy the Court as to whether the triple requirements, as postulated above, stand satisfied in the present case. We find that the respondents have miserably failed to fulfil this requirement.
14. In the instant case, though the detention order and even the grounds of detention record the factum of the appellant's being in custody, no satisfaction has been recorded by the detaining authority that there was reliable material before the authority on the basis of which it would have reasons to believe that there was real possibility of his release on bail. It is not mentioned as to whether any bail application was even moved by the appellant or not, what to take out likely fate of such an application. The order is also conspicuously silent on the aspect as to whether there was any probability of indulging in activity if the appellant would be released on bail. On the contrary, we are amazed that the averments made in the counter affidavit which are self-defeating and clinching the issue against the respondent at p. 171 Para 3 of the paper book which reads as under: "3. I state that the submission of the learned Senior Counsel for the petitioner that the detaining authority was satisfied that there was some likelihood of the petitioner being released on bail and thereafter the detention order was passed to prevent such contingency is completely unfounded. In fact the detention order was passed on 29-1- 2013 and from the detention order it no way reflects that with a view to pre-empt the petitioner from getting the bail in the pending criminal cases that the detention order 2013 was passed. In fact after noticing the fact that the petitioner was arrested by the police in various unlawful activities and crimes like extortion, dacoity, kidnapping, murder and robbery with deadly weapons for ransom for disruption of public order, etc. and being satisfied that if the petitioner is allowed to remain at large he would act in a manner prejudicial to the security of the State and shall be a constant threat to peace that the detention order was passed under Section 3(1) of the Meghalaya Preventive Detention Act. 1995."
15. In Gattu Kavitha case (referred supra), another Division Bench of the common High Court of Telangana & A.P. expressed similar view as follows:
9
"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."
16. In the light of the above settled pronouncements by both the Hon'ble Apex Court and this Court, 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 25 cases which were taken for consideration, in 14 cases the detenue was acquitted. However, when we perused the detention order and grounds of the detention, there was no reference about the acquittals or granting of bails in the concerned crimes. Thus, it is obvious that the Sponsoring Authority has not placed the relevant material i.e., bail orders were not placed before the Detaining Authority and there was no effective consideration of this fact. The material papers placed by the respondents do not contain the bail orders. Thus, in essence, the conditional bail orders were neither considered nor furnished to the detenue, meaning thereby, the detention became illegal and unsustainable. The Apex Court time and again held that grant of bails to the detenue in the cases is a 10 very vital fact and that non-consideration of the same, clearly vitiates the entire order of preventive detention. In the instant case, one such incident registering a crime against the detenue is under N.D.P.S. Act and the said offence will not fall under the definition of 'Goonda', as per the Act 1 of 1986. On these grounds, the detention order is liable to be set aside.
17. Accordingly, the Writ Petition is allowed and the detention order in REV-CSECOPDL(PRC)/1/2022-D.TH(C7) dated 01.04.2022 passed by 2nd respondent-District Collector & District Magistrate, Chittoor is hereby set aside. The detenue namely Kalluri Sandeep Kumar, S/o. Appa Rao is directed to be released forthwith by the respondents if the detenue is not required in any other cases.
18. Miscellaneous petitions pending if any, stand closed. No order as to costs.
___________________________
JUSTICE D.V.S.S.SOMAYAJULU
_________________
JUSTICE V.SRINIVAS
Date: .02.2023
Pab
11
THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
AND
THE HON'BLE SRI JUSTICE V.SRINIVAS
WRIT PETITION No.30649 of 2022
DATE: .02.2023
Pab