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2021 DIGILAW 434 (AP)

Rishi Kumar Bhaskaran v. State of Andhra Pradesh

2021-07-15

ARUP KUMAR GOSWAMI, NINALA JAYASURYA

body2021
JUDGMENT Ninala Jayasurya, J. - Assailing the order of detention in Ref.C1/25/M/2021 dated 11.02.2021 passed by the 2nd respondent (hereinafter referred to as 'the detaining authority') as approved by the 1st respondent vide G.O.Rt.No.313, General Administration (SC.I) Department, dated 22.02.2021, the petitioner filed the present writ petition seeking to order the release of his father i.e., Rangaswamy Bhaskaran, S/o late Rangaswamy (hereinafter referred to as 'the detenu') by declaring the said detention order as approved by the 1st respondent as arbitrary, illegal and unconstitutional. 2. The detaining authority passed the order of detention, in exercise of powers conferred under Section 3(1) r/w Section 3(2) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, holding inter alia that the activities of the detenu comes under the definition of 'Goonda'. 3. The genesis for passing the said order was registration of six crimes under various provisions of law including crimes of assault or abetment of assault or attempt to murder on the Police and Forest officials and evasion of arrest by absconding and involving in illegal transportation of red sanders from the Government Reserved Forests clandestinely. 4. Apart from the said crimes, a case in Crime No.102 of 2016 of Railway Kodur Police Station was registered against the detenu and he was arrested on 08.01.2021 in connection with the said crime and lodged in Sub Jail, Rajampeta. 5. Heard Mr. T. Niranjan Reddy, learned Senior Counsel, appearing for the petitioner assisted by Mr. T. Nagarjuna Reddy, Advocate and Mr. Syed Khader Mastan, learned Government Pleader attached to the Office of the learned Additional Advocate General appearing for the respondents. 6. Mr. T. Niranjan Reddy, learned Senior Counsel, while submitting that the procedural requirements were followed by the Sponsoring Authority, the Detaining Authority as well as the Board and therefore, the same need not be examined, inter alia contends that the order of detention was passed by the detaining authority without application of mind. He submits that no material was placed before the detaining authority to arrive at a conclusion that the detenu was likely to be released on bail and on that ground, the order of detention is liable to be set aside. He submits that no material was placed before the detaining authority to arrive at a conclusion that the detenu was likely to be released on bail and on that ground, the order of detention is liable to be set aside. He submits that as on the date of passing of the detention order, the detenu was in judicial custody and in the absence of likelihood of the detenu coming out of the prison, there were no compelling circumstances for the detaining authority to pass the order of detention. He further submits that though the detaining authority refers to the arrest of the detenu in connection with Crime No.102 of 2016 and lodging him in the Sub Jail, the detaining authority is not posted with the relevant information i.e., moving of bail application in the said crime and dismissal of the same on 22.01.2021. He contends that dismissal of the bail application is a relevant aspect and the conclusion arrived at by the detaining authority without taking the same into consideration amounts to non-application of mind. The learned Senior Counsel states that though as many as six crimes were registered against the detenu, no applications seeking bail were moved. He also submits that in the absence of any such material regarding bail applications and consideration of the same, the order of detention passed by the detaining authority cannot be said to be based on subjective satisfaction, suffers from the vice of non-application of mind and deserves to be set aside. He submits that the order of detention is liable to be set aside on this sole ground, though it suffers from other infirmities. In support of his contentions, learned Senior Counsel places reliance on a judgment of the Hon'ble Supreme Court in Rekha V. State of Tamilnadu, (2011) 5 SCC 244 and the orders passed by this Court in Cheemaparthi Parvin V. State of A.P., and others(W.P.No.1803 of 2021 dated 27.04.2021), Cheemaparthi Salma V. State of A.P., and others(W.P.No.1810 of 2021 dated 27.04.2021) and Rizwana V. State of A.P., and others(W.P.No.11603 of 2020 dated 13.08.2020). 7. Opposing the said contentions, Sri Syed Khader Mastan, learned Government Pleader, submits that the order of the detaining authority is based on subjective satisfaction and warrants no interference by this Court. 7. Opposing the said contentions, Sri Syed Khader Mastan, learned Government Pleader, submits that the order of the detaining authority is based on subjective satisfaction and warrants no interference by this Court. He submits that the detaining authority, after examining the material on record and on consideration of the relevant factors passed the order of detention as the detenu is likely to obtain bail and continue his illegal activities which are prejudicial to maintenance of public order. He further submits that no case is made out for release of the detenu and therefore, seeks dismissal of the writ petition. 8. The contentions advanced by the learned counsel are examined in the light of the judgments of the Hon'ble Supreme Court. 9. In T.V. Sravanan V. State through Secretary, (2006) 2 SCC 664 , the Hon'ble Supreme Court, while dealing with a case of preventive detention ordered in exercise of the powers conferred by sub-section (1) of Section 3 of the Tamilnadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers and Video Pirates Act, 1982 on the ground that the detenu was a 'Goonda' within the meaning of the said Act and there was a compelling necessity to detain him in order to prevent him from indulging in such further activities in future which were prejudicial to the maintenance of the public order, which was upheld by the Hon'ble High Court of Tamilnadu, set aside the order of detention. The Hon'ble Supreme Court at para No.14 recorded its reasons in this regard which reads as follows: "We are satisfied that for the same reason the order of detention cannot be upheld in this case. The bail applications moved by the appellant had been rejected by the courts and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The "imminent possibility" of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. The inference has to be drawn from the available material on record. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. The inference has to be drawn from the available material on record. In the absence of such material on record, the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention." 10. In Rekha's case (1 supra), a three-Judge Bench of the Hon'ble Supreme Court, while dealing with a case of preventive detention, the facts of which are similar to the case on hand, set aside the detention order. The Hon'ble Supreme Court, after referring to the judgments in T.V.Sravanan's case (2 supra) and other cases, inter alia held thus: "Para 27 - In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed." 11. In one of the judgments relied on by learned Senior Counsel i.e., W.P.No.1803 of 2021 dated 27.04.2021, a Division Bench of this Court, in which one of us (Arup Kumar Goswami, CJ) was a Member, examined similar contentions as advanced in the present case at length. In one of the judgments relied on by learned Senior Counsel i.e., W.P.No.1803 of 2021 dated 27.04.2021, a Division Bench of this Court, in which one of us (Arup Kumar Goswami, CJ) was a Member, examined similar contentions as advanced in the present case at length. The Hon'ble Division Bench, while referring to the judgments of the Hon'ble Supreme Court in Champion R. Sangma V. State of Meghalaya, (2015) 16 SCC 253 , Kamarunnisa V. Union of India, (1991) 1 SCC 128 , N. Meera Rani V. Government of Tamilnadu, (1989) 4 SCC 418 , etc., set aside the order of detention inter alia on the ground that the triple requirement test as laid down in the case of Kamarunnisa, followed in the subsequent judgments was not satisfied. 12. It is contextual to extract the relevant portion of the judgment of the Hon'ble Apex Court in Kamarunnisa's case (4 supra) which is as under: "13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this Court stated in the case of Ramesh Yadav was that ordinarily a detention order should not be passed merely to preempt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody." 13. From a reading of the above judgments, it is clear that an order of detention can be validly passed, if the detaining authority is aware of the fact that the detenu is actually in custody and he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released, he would in all probability indulge in prejudicial activity. Thus, there should be reliable material before the detaining authority to arrive at a conclusion that there is a 'real' possibility of the detenu being released on bail. Therefore, in the absence of any material to arrive at a conclusion that 'the detenu' is likely to be released on bail, the order passed by the detaining authority cannot be one said to be on subjective satisfaction. 14. In the present case, there is no material before the detaining authority to reach such a conclusion about the likelihood of the detenu's release on bail. In the absence of any material before the detaining authority with regard to the applications, if any, made seeking bail, the conclusions arrived at by the detaining authority that the detenu is likely to be released on bail, cannot be sustained, in the light of the judgments referred to supra. The order of detention in the present case is based on mere ipse dixit of the detaining authority without any material on record to substantiate that there is imminent possibility of the detenu being released on bail. The order of detention in the present case is based on mere ipse dixit of the detaining authority without any material on record to substantiate that there is imminent possibility of the detenu being released on bail. As pointed out by learned Senior Counsel for the petitioner and not disputed by learned Government Pleader appearing for the respondents, in none of the six crimes registered against the detenu, the arrest of the detenu was shown. In respect of Crime No.102 of 2016 of Railway Kodur P.S., application seeking bail was dismissed and the detenu was in judicial custody. No material was placed before the detaining authority as to whether any application seeking bail was moved in respect of the six crimes registered against the detenu. These are the crucial aspects which are required to be considered by the detaining authority before passing the detention order. 15. In view of the legal position referred to supra, this Court has no hesitation to hold that in the absence of any material, the conclusion as arrived at by the detaining authority recording his satisfaction that there is every likelihood of the detenu being granted/released on bail in other cases also, is not sustainable and the order of detention is vitiated by non application of mind. The detaining authority passed the order of detention on mere apprehension that there is every likelihood of the detenu being released on bail and the order does not satisfy the triple test in terms of the judgment of the Hon'ble Supreme Court in Kamarunnisa's case (4 supra). Accordingly, the contention advanced by learned Senior Counsel for the petitioner that the satisfaction of the detenu's release was not rightly recorded in the order of detention, is upheld and the submission of learned Government Pleader for the respondents that the impugned order of detention is based on subjective satisfaction of the detaining authority is rejected. 16. Accordingly, the writ petition is allowed and the order of detention in Ref.C1/25/M/2021 dated 11.02.2021 passed by the 2nd respondent as confirmed by the 1st respondent is set aside. The detenu shall be released forthwith, if not required in any other case. No order as to costs. Pending miscellaneous applications, if any, shall stand closed.