Research › Search › Judgment

Andhra High Court · body

2022 DIGILAW 1030 (AP)

T. Soundarya v. State of Andhra Pradesh

2022-10-14

B.V.L.N.CHAKRAVARTHI, U.DURGA PRASAD RAO

body2022
ORDER : U. Durga Prasad Rao, J. In this Habeas Corpus petition, the petitioner prays for release of her husband Torlapati Naresh, S/o. T. Surya Rao R/o. Maddurulanka Village, Kovvuru Mandal, West Godavari District who was detained and lodged in Central Prison, Rajamahendravaram as per the detention order vide proceedings in ROC No.C1/e-1882646/2022, dated 26.03.2022, of the 2nd respondent under Section 3(2) r/w 3(1) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (1 of 1986) [for short, ‘the Act 1 of 1986’] and consequential confirmation order of the 1st respondent vide G.O.Rt.No.914, dated 18.05.2022. 2. The 2nd respondent has passed the detention order dated 26.03.2022 on the ground that the detenue was involved in following nine cases and thus he is a ‘Bootlegger’ within the meaning of Section 2(b) of the Act 1 of 1986 and his activities are prejudicial to the maintenance of public health and public order. 1. Cr.No.521/2021, dt. 03.11.2021 u/s. 34 U/s 7(B) r/w 8(B) of AP Excise Amendment Act, 2020 of SEB Station, Kovvur 2. Cr.No.481/2021, dt. 11.10.2021 U/s 7(A) r/w 8(B) of AP Prohibition Amendment Act, 2020 of SEB Station, Kovvur 3. Cr.No.354/2021, dt. 09.07.2021 U/s 7(A) r/w 8(B) of AP Prohibition Amendment Act, 2020 of SEB Station, Kovvur 4. Cr.No.376/2020, dt. 12.08.2020 U/s 7(A) r/w 8(B) of AP Prohibition Amendment Act, 2020 of SEB Station, Kovvur 5. Cr.No.257/2020, dt. 26.05.2020 U/s 7(A) r/w 8(B) of AP Prohibition Amendment Act, 2020 of SEB Station, Kovvur 6. Cr.No.219/2020, dt. 12.09.2020 U/s 7(A) r/w 8(C) of AP Prohibition Amendment Act, 2020 of APPA 34E APEA Kovvur Rural Police Station 7. Cr.No.186/2020, dt. 09.06.2020 U/s 7(A) r/w 8(C) of AP Prohibition Amendment Act, 2020 of Kovvur Rural Police Station 8. Cr.No.142/2020, dt. 08.04.2020 U/s 188, 269, 270, 271 IPC 7(A) r/w 8(E) APPA 51(a) DMA-2008 Kovvur Town Police Station 9. Cr.No.130/2020, dt. 09.04.2020 U/s 188, 269, 270, 271 IPC 7(A) r/w 8(E) APPA 51(a) DMA-2008 Kovvur Town Police Station 3. Cr.No.186/2020, dt. 09.06.2020 U/s 7(A) r/w 8(C) of AP Prohibition Amendment Act, 2020 of Kovvur Rural Police Station 8. Cr.No.142/2020, dt. 08.04.2020 U/s 188, 269, 270, 271 IPC 7(A) r/w 8(E) APPA 51(a) DMA-2008 Kovvur Town Police Station 9. Cr.No.130/2020, dt. 09.04.2020 U/s 188, 269, 270, 271 IPC 7(A) r/w 8(E) APPA 51(a) DMA-2008 Kovvur Town Police Station 3. The detention order is challenged in this writ petition on the main grounds that the detenue is an innocent person and not committed any of the offences mentioned in the detention order; the cases in which he is involved can be effectively dealt with under the general law and his activities are not prejudicial to the maintenance of public health and public order; the copies of the order of detention as well as grounds of detention and other materials relied upon by the respondent authorities were not supplied to the detenue in time; in all the nine crimes, which were taken as a ground for issuing detention order, the detenue was granted bail even before the date of detention order and the said fact was not taken into consideration by the Detaining Authority while passing the detention order; the confirmation order was not served on the detenue and it was furnished to him only in the Court during the course of hearing in the writ petition; the Detaining Authority has not applied his mind in issuing the detention order, inasmuch as, of the nine crimes which were taken as a ground to pass detention order, except in one or two crimes, in other crimes the detenue was not physically present at the time of alleged offence but he was falsely implicated on the basis of alleged confession of co-accused. Thus the detention order per se is illegal and without application of the mind. 4. The 2nd respondent filed counter and opposed the writ petition. 5. Heard arguments of Sri M.R.K. Chakravarthi, learned counsel for the petitioner and Special Government Pleader representing learned Advocate General for respondents. 6. While vehemently opposing the detention order, learned counsel for the petitioner Sri M.R.K. Chakravarthi, firstly argued that in all the 9 crimes which were taken as a ground for detention, the detenue was not directly involved in most of the offences except one or two. 6. While vehemently opposing the detention order, learned counsel for the petitioner Sri M.R.K. Chakravarthi, firstly argued that in all the 9 crimes which were taken as a ground for detention, the detenue was not directly involved in most of the offences except one or two. In expatiation, he would submit that except in Crime No.521/2021, in other cases, the detenue was not present at the scene of offence nor the police arrested him at the spot. However, he was implicated in those crimes on the alleged confessional statements of co-accused. Learned counsel thus vehemently argued that the participation of the accused in all the offences is a myth, if not highly doubtful and the said aspect can be decided only after a full-fledged trial. Therefore, the general law can take care of such aspects. However, detention order ought not to have been passed on the basis of such highly doubtful cases. Learned counsel would lament that, the 2nd respondent who is the Detaining Authority has not bestowed his attention to these crucial facts in right perspective while passing the detention order. Hence the detention per se is illegal. (a) Secondly, he would argue, the detenue was granted bail even prior to the detention order, meaning thereby, the jurisdictional Court was of the prima facie opinion that the detenue did not commit offence and accordingly granted him bail in all the cases. Therefore, the Sponsoring Authority is bound to place before the 2nd respondent along with other materials, the bail applications and bail orders for the consideration and satisfaction of the Detaining Authority that while at large on bail, there is a likelihood of detenue’s repeating similar offences and acting prejudicial to the maintenance of public order. Learned counsel would strenuously argue that on such satisfaction only the Detaining Authority shall pass detention order by giving cogent reasons. Further, it is the duty of the Detaining Authority to furnish the grounds of the detention and also the materials which were considered for passing the detention order. Such materials invariably include the bail applications filed by the detenue and bail orders passed thereon. All these materials have to be furnished in order to enable the detenue to make an effective representation to the Advisory Board or the Government. Such materials invariably include the bail applications filed by the detenue and bail orders passed thereon. All these materials have to be furnished in order to enable the detenue to make an effective representation to the Advisory Board or the Government. Learned counsel would lament that in this case the procedure has been flagrantly violated by the authorities inasmuch as, in the detention order there is no mention about forwarding of the bail applications and bail orders to the 2nd respondent and there is no further mention in the detention order about consideration of those bail orders. Most importantly, detenue was not furnished with the bail applications and bail orders and thereby he was denuded of valuable opportunity to make an effective representation before the Advisory Board. Due to such violation, the detention order became illegal. He placed reliance on (1) Thahira Haris Etc. Etc v. Government of Karnataka, AIR 2009 SC 2184 (2) Shaik Nazneen v. The State of Telangana, 2022 LiveLaw (SC) 559. (b) Thirdly, he would argue that the offences which were taken as a ground for detention are all common offences and they can be dealt with under general laws. They are not grave offences and therefore the activities of detenue cannot be said to be prejudicial to the maintenance of public order. He would argue that when general laws are sufficient to deal with the offences, the draconian law of preventive detention cannot be pressed into service. On this aspect also he relied upon Shaik Nazneen’s case (2 supra). (c) Nextly, learned counsel would argue that certain crucial documents such as confirmation order and chemical analysis reports were not served on the detenue. He would submit that the confirmation order was furnished to the petitioner only in the Court. He thus prayed to allow the writ petition. 7. In oppugnation, staunchly supporting the detention order, learned Special Government Pleader would argue that Section-3 of Act 1 of 1986 speaks of ‘satisfaction’ of the Detaining Authority to pass a detention order. When the statute left an action dependent upon the opinion of the authority concerned, the judicial review will be constricted primarily to know whether procedural fairness was scrupulously followed. He placed reliance on Amarendra Kumar Pandey v. Union of India, 2022 LiveLaw (SC) 600. When the statute left an action dependent upon the opinion of the authority concerned, the judicial review will be constricted primarily to know whether procedural fairness was scrupulously followed. He placed reliance on Amarendra Kumar Pandey v. Union of India, 2022 LiveLaw (SC) 600. He would submit that in this case the procedure was meticulously followed and basing on the materials placed, the 2nd respondent formed the opinion and hence the detention order is sustainable. (a) Nextly he argued that a person is on bail is not a ground to claim immunity from the preventive detention. Conversely, the possibility of misusing the freedom granted under bail will be more in the case of habitual offenders. Therefore, in this case having regard to the past history of the detenue in involving in the repeated crimes of similar nature, the Detaining Authority made a logical prognosis of his future behaviour. Therefore, that the detenue was on bail in the above cases is of no consequence. He placed reliance on Haradhan Shah v. The State of West Bengal, AIR 1974 SC 2154 = 1975 (3) SCC 198 . (b) While contending that all the relevant documents including the bail applications and bail orders were supplied to the detenue, he would alternatively argue that mere non-submission of the bail applications and bail orders before the Detaining Authority and non-furnishing to detenue cannot be a ground to impugn the detention order. He would submit that the Detaining Authority knows that the detenue was already granted bail in the nine cases under consideration and the said fact was mentioned in the detention order also. Mere non-supply of bail applications and bail orders to the detenue will not vitiate the detention order. He placed reliance on Sunila Jain v. Union of India, (2006) 3 SCC 321 = MANU/SC/8053/2006. (c) Nextly he argued that the activities of the detenue are very much prejudicial to the maintenance of public order because in all the above 9 crimes, the detenue was dealing with ID liquor and the chemical examiner on testing the samples opined that the contraband seized was ID liquor which was unfit for human consumption and injurious to health. When the activities of detenue create grave or widespread danger to life or public health, it can be construed that he acted in a manner prejudicial to the maintenance of public order and preventive detention can be ordered. When the activities of detenue create grave or widespread danger to life or public health, it can be construed that he acted in a manner prejudicial to the maintenance of public order and preventive detention can be ordered. On this aspect he placed reliance on Doddi Sharada v. Collector and District Magistrate, Hyderabad, 2005 (2) ALT 244 = 2005 (1) APLJ 328. (d) Refuting the petitioner’s argument that in none of the nine crimes the detenue was directly involved and that he was falsely implicated, learned Special G.P would argue that the detenue was very much involved in all the nine crimes, as the co-accused who were arrested at the spot have clearly admitted that they were purchasing the ID liquor from the detenue and selling in retail. Therefore, the involvement of the detenue cannot be doubted. The aforesaid cases, he would argue, would clinchingly establish that the detenue is a habitual offender and his activities are prejudicial to the maintenance of public order and unless stern action is taken against him by applying the Preventive Detention Law, it would be difficult to maintain the public order and public health. He thus supported the impugned order and prayed to dismiss the writ petition. 8. The point for consideration is whether there are merits in the writ petition to allow? 9. Point: We gave our anxious consideration to above respective arguments. The first argument of learned counsel for the petitioner is about the procedural violation. As rightly argued by learned Special Government Pleader, a person on bail is neither immuned nor insulated from preventive detention. The Detaining Authority upon considering the materials and other facts can still form an opinion that there is a likelihood of misuse of the bail by such person to repeat similar offences and order for preventive detention. In Haradhan Shah’s case (4 supra) relied upon by Special Government Pleader, the Apex Court considering its various other decisions, held that granting bail in the offences which were taken for consideration is not a bar against the District Magistrate in issuing the preventive detention order. Nor the detention order which is passed during the pendency of prosecution will violate the order. The detention is a precautionary measure based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of surrounding circumstances. 10. Nor the detention order which is passed during the pendency of prosecution will violate the order. The detention is a precautionary measure based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of surrounding circumstances. 10. There is no demur about the discretionary power of the Detaining Authority in this regard. However, the crux of the argument of the petitioner is not about the lack of power of Detaining Authority to order preventive detention against a person who is on bail. On the other hand, the argument of learned counsel for the petitioner is that in all the 9 cases which were considered for ordering preventive detention, the complicity of the detenue is highly doubtful because in none of the cases, the detenue was found at the scene of offence nor he was arrested at the spot. The contention of the petitioner is that the detenue was implicated in the aforesaid cases on the strength of the alleged confessional statements of the co-accused. Thus it is the contention of the petitioner that a duty is cast on the Sponsoring Authority to place before the 2nd respondent, the FIRs, bail applications and bail orders for consideration and thereupon it is the avowed duty of the Detaining Authority / 2nd respondent to carefully consider the materials so placed before him and analyze the facts involved therein to come to a conclusion whether on the basis of such materials, preventive detention could be ordered. The petitioner attributes total lack of application of mind on the part of the 2nd respondent. 11. On perusal of the materials placed before us by both parties, we find considerable force in the argument of the petitioner that the 2nd respondent has not bestowed his attention and applied his mind to the materials placed before him. Before discussing this aspect, we must state that though the petitioner contended that the copies of bail applications and bail orders were not furnished to the detenue, however we find no force in the said contention because in the bunch of material papers filed along with counter by the Special G.P, we noticed the presence of copies of FIRs, remand reports, bail applications and bail orders concerning to the above nine crimes with the signatures of detenue. So to this extent we do not agree with the petitioner and hold that the relevant materials were supplied to the detenue. 12. Then coming to the argument that the 2nd respondent has not applied his mind to the materials in right perspective, admittedly the Detaining Authority has considered the nine crimes registered against the detenue to order detention. On perusal of the copies of the FIRs and other material in those cases, we found that except in one case, the detenue’s presence was not noted at the scene of offence in other cases. For instance, in Crime No.521/2021, the FIR shows that on 03.11.2021 the raid party found the detenue with 20 Ltrs of ID liquor in polythene covers in the limits of Muddurulanka Village and arrested him. However, we will find a different scenario in the remaining eight crimes. In Crime No.481/2021 and Crime No.354/2021 the prosecution case is that when the raid party reached the scene of offence, the detenue who was either manufacturing or in possession of ID liquor, on seeing the police skulked away. In both the cases he was identified by the Head Constable B.K.N. Singh. However, in the charge sheets filed in both the cases, curiously the said BKN Singh is not shown as a witness. It is thus highly doubtful as to how the prosecution would establish the complicity of the detenue in those cases. Then the remaining six crimes are concerned, in the FIRs and Special Reports we will not find the physical presence and participation of detenue at the scene of offence, nor his arrest at the spot. In those cases the detenue was arraigned as accused only on the basis of the statement of the co-accused that they purchased the ID liquor from him. 13. Thus a close scrutiny of the above crimes would show that prima facie the presence and participation of the detenue in these crimes is a doubtful one, which of course has to be determined only after full-dressed trial in the concerned cases. Therefore, as rightly argued by the petitioner, the complicity of the detenue can be determined by applying general law. However, in our considered view, such prima facie weak cases ought not to have been considered as a ground to order preventive detention. Therefore, as rightly argued by the petitioner, the complicity of the detenue can be determined by applying general law. However, in our considered view, such prima facie weak cases ought not to have been considered as a ground to order preventive detention. We are constrained to hold that unfortunately the 2nd respondent has not applied his mind in right perspective before ordering detention. In the impugned detention order we do not find any cogent reasons as to what weighed with the Detaining Authority to pass order in spite of such doubtful cases. The nature of the crimes and the grounds on which the bails were granted to the detenue are required to be carefully scrutinized by the Detaining Authority. In Abdul Sathar Ibrahim Manik v. Union of India, AIR 1991 SC 2261 the Apex Court on verification of several decisions, drawn certain conclusions of which conclusion No.6 is thus : “6. In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.” In K. Ramamohan Reddy v Chief Secretary to Government of A.P., MANU/AP/0145/1997 also a division bench of High Court of Andhra Pradesh has observed thus : “5. The law is well settled that all the relevant material containing in the grounds, form the basis or order of detention and therefore the said material should have been considered by 2nd respondent, the detaining authority, and the detenu should be supplied with the same, failure forms vice of non-application of mind by the detaining authority. Undoubtedly, the bail application, the order granting the bail and also orders issuing NBW should be taken into consideration by the detaining authority. It is important to notice that order granting bail to the detenu might indicate that there was, prima facie, no case against the detenu, in which he was involved. Hence it is a favourable material to the detenu, which has to be considered by the detaining authority before the comes to the subjective satisfaction.” 14. It is important to notice that order granting bail to the detenu might indicate that there was, prima facie, no case against the detenu, in which he was involved. Hence it is a favourable material to the detenu, which has to be considered by the detaining authority before the comes to the subjective satisfaction.” 14. Thus the above jurisprudence expounds the principle that if the detenue was already enlarged on bail in the cases which were placed before the Detaining Authority seeking preventive detention, duty will be cast on the Sponsoring Authority to place the entire relevant material such as FIRs, remand reports, bail applications and bail orders along with the other record and the Detaining Authority shall invariably consider the same for forming opinion. However, as stated supra, the 2nd respondent has not considered them in right perspective and thereby great prejudice is caused to the detenue and in our view the detention order is unjust and illegal and required to be set aside. Since this ground is enough to hold that the impugned detention order is unsustainable in law and facts, the other grounds projected by the petitioner are not necessary to be discussed. 15. Accordingly the writ petition is allowed and detention order in ROC No.C1/e-1882646/2022, dated 26.03.2022 passed by the 2nd respondent and consequential confirmation order vide G.O.Rt.No.914, dated 18.05.2022 issued by the 1st respondent are set aside and the detenue, namely Torlapati Naresh, S/o. T. Surya Rao, R/o. Maddurulanka Village, Kovvuru Mandal, West Godavari District 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.