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2020 DIGILAW 645 (AP)

M. Padma v. State of Andhra Pradesh

2020-10-06

J.UMA DEVI, RAKESH KUMAR

body2020
JUDGMENT : Rakesh Kumar, J. 1. The petitioner, wife of detenu namely Manigonda Ratnakar Rao, has invoked the writ jurisdiction of this Court, under Article 226 of the Constitution of India, with a prayer to issue writ of habeas corpus directing 4th respondent to produce the detenu, who has been detained in Central Prison, Kadapa, YSR Kadapa District. 2. The detention order was issued by the 2nd respondent/the Collector and District Magistrate, Kurnool, vide proceedings in Rc. C1/517/M/2020, dated 22.6.2020, and the same was confirmed by the 1st respondent/Government of Andhra Pradesh vide G.O. Rt. No. 1245 (General Administration (SC.1) Department), dated 9.8.2020. The petitioner has prayed for producing the detenu after declaring the aforesaid proceedings as illegal and setting the same aside. 3. It has been pleaded in the writ petition that the 2nd respondent passed the order of detention under the provisions contained in the Andhra Pradesh Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (hereinafter referred to as the 'Act of 1986') against the husband of the petitioner basing on two cases referred to in grounds of detention i.e., (1) Crime No. 125 of 2019, registered for the offences under Sections 417, 420 and 487 of IPC; Section 15(1) of Environment Protection Act, 1986; Section 7 of Seed Act, 1966 and Clause 3 & 8-A of Seed Control Order, 1983 and (2) Crime No. 181 of 2020, registered for the offences under Sections 417, 420 and 487 of IPC; Section 15(1) of Environment Protection Act, 1986; Section 7 of Seed Act, 1966 and Clauses 3 and 8-A of Seed Control Order, 1983 of Veldurthy P.S. The two cases against the detenu were registered on 7.7.2019 and 17.6.2020 respectively, wherein he was arrested and remanded. However, the detenu was granted bail in Crime No. 125 of 2019 of Veldurthy Police Station, Kurnool District. The - detaining authority opining that the husband of the petitioner was continuously indulging in the habit of selling of duplicate/spurious cotton seeds and became professional, passed the order of detention under Section 3(2) of the Act of 1986 treating the husband of the petitioner as 'Goonda' within the meaning of Section 2(g) of the Act. After passing the order of detention, the detenu, within the specified time, was produced before the Advisory Board. After passing the order of detention, the detenu, within the specified time, was produced before the Advisory Board. The detention of the husband of the petitioner was also approved by the Advisory Board, which was held through video conference on 24.7.2020. After approval by the Advisory Board, the order was confirmed vide G.O. Rt. No. 1245 (General Administration (SC.1) Department), dated 9.8.2020, whereby the detenu was directed to be detained for a period of 12 months from the date of his detention i.e., 26.6.2020 and since thereafter the husband of the petitioner has been detained in Central Prison, Kadapa. 4. It was further pleaded that the detaining authority had not furnished those materials for submitting the effective representation. Though the detaining authority treated the detenu as a 'Goonda' with' a view to prevent him from further indulging in dangerous activities, the detenu will not fall under the said criteria and as such the order of detention does not have any material to either substantiate or justify the allegation that the detenu is a 'Goonda'. It was pleaded that the grounds of detention which are the basis for passing the order of detention refers to only lodging of two cases against the detenu and even if the said two cases are taken at their face value, definitely, they do not have any potential to affect the public order. The order of detention as well as the grounds of detention alongwith the relevant material relied on by the detaining authority was not properly served on the detenu; most of the documents were illegible and without pagination. Finally it has been pleaded that the order of detention is liable to be set-aside. 5. Respondent No. 2 has filed counter-affidavit and justified the detention of the detenu. 6. The writ petition was heard on 29.9.2020 and, after hearing both the parties, order was reserved. 7. Sri D. Purna Chandra Reddy, learned Counsel for the petitioner, assailing the detention order has raised several grounds. It was argued that the order of detention is liable to be set-aside, primarily, on the ground despite the fact that the detenu was already in judicial custody in connection with Crime No. 181 of 2020, registered on the file of Veldurthy P.S., the detaining authority without referring this fact has passed the order of detention. It was argued that the order of detention is liable to be set-aside, primarily, on the ground despite the fact that the detenu was already in judicial custody in connection with Crime No. 181 of 2020, registered on the file of Veldurthy P.S., the detaining authority without referring this fact has passed the order of detention. Since the 2nd respondent, in the order of detention, had not at all discussed regarding the fact that the husband of the petitioner was already in judicial custody, the order of detention was contrary to the law laid down by the Hon'ble Apex Court in a case reported in Champion R. Sangma v. State of Meghalaya, (2015) 16 SCC 253 . Learned Counsel has also referred to a recent order passed by a Co-ordinate Bench of this Court in Writ Petition No. 10837 of 2020, dated 13.8.2020. Similarly, learned Counsel for the petitioner submits that on the same principle. Since husband of the petitioner is already in judicial custody, the order passed by the detaining authority, without discussing or without examining as to whether the detenu was likely to be released on bail, the detaining authority was not entitled to pass the detention order. 8. Learned Counsel for the petitioner has further argued that only because of the fact that the husband of the petitioner was arrayed as accused in two cases, mainly relating to violation of provisions of the Seed Act, 1966, there was no reason to declare the husband of the petitioner as 'Goonda' while passing the detention order. It has been emphasized that the detention order was passed without application of mind, particularly without considering the fact that the husband of the petitioner was already in judicial custody, and as such there was no reason for issuing the detention order. 9. Sri Syed Khader Mastan, learned Government Pleader attached to the office of learned Additional Advocate General, vehemently opposed the writ petition. He argued that the detention order categorically shows justification of detaining authority to detain the detenu, so that he may be prevented from violating the public order. He has categorically referred to the order passed by the 2nd respondent to show that, while passing the detention order, 2nd respondent was aware that the husband of the petitioner was already in remand. He has categorically referred to the order passed by the 2nd respondent to show that, while passing the detention order, 2nd respondent was aware that the husband of the petitioner was already in remand. According to learned State Counsel, the detention order was within the time approved by the Advisory Board and final order of detention was passed detaining the husband of the petitioner for a period of 12 months from the date of detention i.e., 26.6.2020. According to learned Government Pleader, the writ petition is liable to be rejected. 10. Besides hearing learned Counsel for the parties, we have minutely perused the material available on record. 11. Before proceeding further, it is necessary to reproduce herein the order of detention, dated 22.6.2020: "Whereas information laid down before me by the Superintendent of Police, Kurnool and after careful examination of the material placed before me that Manigonda Ratnakar Rao, age 53 years, S/o. M. Venkateswarlu, resident of H. No. 1-126, Reddygari Street, Veldurthy Village & Mandal and native of P. Gudipadu Village, Korishapadu Mandal, Prakasam District has been indulging in selling of duplicate cotton seeds on the name and style of original brand by creating labels and stickers since long time and thereby cheating the farmers. The act of the detenue is inexcusable, and there is nothing to show mercy on him. Hence the detenue is deserve to be treated as a GOONDA under Section 2(g) of A.P. Prevention of Dangerous activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Trafficking Offenders and Land Grabbers Act, 1986 (Act 1 of 1986). Unless the detenue Manigonda Ratnakar Rao, S/o. M. Venkateswarlu is detained under Prevention Detention of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 his illegal activities of selling duplicate/spurious cotton seeds as original cannot be prevented and the farmers cannot be saved from his deceives. The dangerous activities which are detrimental to the economy of the State and farmers by Manigonda Ratnakar Rao, age 53 years, S/o. M. Venkateswarlu, resident of H. No. 1-126, Reddygari Street, Veldurthy Village & Mandal and native of P. Gudipadu Village, Korishapadu Mandal, Prakasam District shall be curtailed for the welfare of the society in the way of detention under the said Act. Therefore I, G. Veerapandian, IAS, Collector and District Magistrate, Kurnool District satisfied with the above information and in exercising the powers conferred upon me under sub-section (2) of Section 3 read with sub-section (1) of Section 3 of Andhra Pradesh Prevention of Dangerous activities of "Bootleggers", Dacoits, Drug Offenders and Land Grabbers Act, 1986 read with G.O. Rt. No. 1004, General Administration (SC.I) Department, dated 18.6.2020 of the Government of Andhra Pradesh, Amaravati do hereby order for detention of Manigonda Ratnakar Rao, age 53 years, S/o. M. Venkateswarlu, resident of H. No. 1-126, Reddygari Street, Veldurthy Village & Mandal and native of P. Gudipadu Village, Korishapadu Mandal, Prakasam District in the Central Prison, Kadapa. The grounds of detention on which this order has been made will be communicated to him. His case will be referred to the Advisory Board for review and opinion under Section 10 of A.P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act 1 of 1986) and he has right to make representation (i) to me (the undersigned) before this order is approved by the Government or (ii) to the Chief Secretary, Government of A.P., Amaravathi, Vijayawada or (iii) to the Advisory Board or to all of them. He has also a right to be heard personally or through a friend who is not an Advocate by the Advisory Board, if he so desires. The date of hearing by the Advisory Board will be communicated to him. If he chooses to do so he may submit his properly addressed representation with sufficient copies to the Superintendent, Central Prison, Kadapa for onward transmission (i) to me (the undersigned) before this order is approved by the Government or (ii) the Chief Secretary, Government of Andhra Pradesh, Amaravathi, Vijayawada or (iii) to the Advisory Board." 12. The said detention order, under Section 3(2) of the Act of 1986, was passed mainly on two grounds; firstly the detenu was involved in Crime No. 125 of 2019, registered on 7.7.2019, for the offences under Sections 417, 420 and 487 of IPC; Section 15(1) of Environment Protection Act, 1986; Section 7 of Seed Act, 1966 and Clauses 3 and 8-A of Seed Control Order, 1983 of Veldurthy P.S. The husband of the petitioner was found involved in illegal activities for sale of duplicate/spurious cotton seeds. He was arrested and several packets of cotton seeds, 15 gunny bags of loose cotton seeds alongwith packing machine, seed cooling machine were seized. Again on 17.6.2020, when the husband of the petitioner was found involved in Crime No. 181 of 2020, which was registered almost for the similar offences, the detaining authority thereafter opined that since the husband of the petitioner was continuously indulging in the habit of selling duplicate cotton seeds, he became habitual offender and treated him as 'Goonda' under Section 2(g) of the Act of 1986. 13. The counter-affidavit filed by 2nd respondent reflects that the detenu was given opportunity to file representation and thereafter the case of the detenu was referred to the Advisory Board and after approval of the Advisory Board, finally, the detention order was issued by the Government of Andhra Pradesh vide G.O. Rt. No. 1245 on 9.8.2020. Of course, neither in the pleading nor during argument any plea was taken as to whether Advisory Board which examined the detention order was having full Coram, but from a perusal of Para No. 3 of the order, dated 9.8.2020, at running Page 16, it appears that the Advisory Board was comprising of Hon'ble Justice Sri T.L.N. Reddy (Retired), Chairman and one Member, whereas Section 9(2) of the Act of 1986 prescribes that every such Advisory Board shall consist of a Chairman and two other Members. Since such plea has not been taken by the petitioner, it need not be elaborately discussed. However, fact remains that on the date of passing the order of detention the detenu was already behind bars but in the detention order in no categorical term it has been indicated regarding custody of the detenu on the date of passing of detention order. 14. It is true that even in a case, in which an accused is in custody, detention order can be passed under the Act of 1986 but, in such cases, as settled, the detaining authority is required to indicate three facts: (1) that the proposed detenu is in custody; (2) the proposed detenue, who is in custody is likely to be bailed out; and (3) if he is released, it is necessary to detain for preventing him to commit the same crime. 15. 15. On perusal of the order of detention, passed by 2nd respondent, which has been quoted herein above, it is evident that no such justification has been recorded by the detaining authority and as such, on this score alone, the detention order may not be approved. This issue has recently been discussed by a Co-ordinate Bench of this Court in WP No. 11603 of 2020, dated 13.8.2020. It is not necessary to reiterate or reproduce the same principle, which has already been set at rest. Accordingly, considering the fact that the detention order does not reflect justification of the detaining authority regarding meeting three tests, as prescribed by the Hon'ble Apex Court in Champion R. Sangma's case (supra), which has been relied upon by a Co-ordinate Bench of this Court in WP No. 11603 of 2020, the order of detention, dated 22.6.2020, passed by the 2nd respondent/the Collector and District Magistrate, Kurnool, vide proceedings in Rc.C1/517/M/2020, which was confirmed by the 1st respondent/Government of Andhra Pradesh vide G.O. Rt. No. 1245 (General Administration (SC.1) Department), dated 9.8.2020, are liable to be set-aside and are hereby set-aside. The detenu, husband of the petitioner namely Manigonda Ratnakar Rao, is directed to be released forthwith, if not wanted in any other case. 16. With the above direction, the writ petition is allowed. No order as to costs. 17. As a sequel, miscellaneous petitions pending, if any, in this writ petition shall stand closed.