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2018 DIGILAW 349 (AP)

K. Chandra Sekhar v. State of Andhra Pradesh

2018-06-06

C.V.NAGARJUNA REDDY, G.SHYAM PRASAD

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ORDER : C.V. NAGARJUNA REDDY, J. 1. These three writ petitions are grouped together for disposal by a common order for the reason that the point raised in all these cases is identical, namely, that despite the fact that the detenus were in judicial custody in connection with various criminal cases, respondent No.2 - detaining authority has not recorded his satisfaction that there is a likelihood of the detenus securing bail and repeating the commission of the offences after their release. 2. The fact that the detention orders in these cases do not refer to the subjective satisfaction of the detaining authority on the abovementioned aspect is not disputed by the learned Special Government Pleader (AP). He, however, sought to rely upon the averments in the counter affidavits wherein for the first time such satisfaction has been recorded. 3. It is settled legal principle that where the detaining authority does not record his satisfaction that the detenu, who was in judicial custody at the time of passing the detention order, is likely to be released on bail and repeat the offences disturbing the public order, such order is not sustainable in law (See N. Meera Rani v. Government of Tamil Nadu, (1989) 4 SC 418). 4. While repelling a similar stand taken by the learned Special Government Pleader based on the averments in the counter affidavit, a Division Bench of this Court, speaking through one of us (Justice C.V. Nagarjuna Reddy), in judgment dt.31.01.2018 in W.P. No.25746 of 2017 (Syed Mohihuddin v. State of Andhra Pradesh) observed as under: 4. The learned Special Government Pleader (AP) submitted that though respondent No.2 in the impugned order has not formally referred to his satisfaction that the detenu is likely to be released on bail, in his counter he has made an averment in this regard. We are afraid, we cannot accept this submission. Preventive detention being an exception to Articles 21 and 22(1) and (2) of the Constitution of India, the detaining authority must record his satisfaction as on the date of passing of the detention order. If we accept the submission of the learned Government Pleader, every detention order would pass muster based on the subsequent pleadings of the detaining authority filed in support of the detention order. Such a course cannot be permitted against a person whose personal liberty is sought to be curtailed by the State. 5. If we accept the submission of the learned Government Pleader, every detention order would pass muster based on the subsequent pleadings of the detaining authority filed in support of the detention order. Such a course cannot be permitted against a person whose personal liberty is sought to be curtailed by the State. 5. In Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 , the Supreme Court held that the order of a public authority must be only supported by the reasons contained therein and not on the reasons supplemented by way of subsequent pleadings. In this context, the following part of the said judgment is relevant. Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. This view was reiterated by the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 . While the aforementioned two judgments were rendered while dealing with the ordinary legal rights of citizens, the ratio laid down therein applies with more vigour in a matter concerning the personal liberty of a citizen. This view was reiterated by a Division Bench of this Court in judgment dt.17.4.2018 in W.P. No.43533 of 2017 (Bodduluri Padma v. State of Andhra Pradesh). 5. In the light of the admitted fact that the impugned detention orders do not contain the subjective satisfaction as referred to above and the legal position as stated above, the same cannot be sustained and are accordingly set aside. The detenus are directed to be released from the detention forthwith, if they are not required in any other case. 6. The writ petitions are accordingly allowed.