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2022 DIGILAW 1207 (AP)

K Padmavathi v. State Of Andhra Pradesh

2022-11-04

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

body2022
ORDER : U. Durga Prasad Rao, J. In this writ petition filed under Article 226 of the Constitution of India, the petitioner challenges the detention of her son Kalluri Sandeep Kumar, S/o. Appa Rao as per the order of detention in REVCSECOPDL( PRC)/1/2022-D.TH(C7) dated 01.04.2022 passed by 2nd respondent-District Collector & District Magistrate, Chittoor and confirmed by the 1st respondent as per G.O.Rt.No.998, General Administration (SC-1) Department dated 30.05.2022 and prays to direct the respondent authorities to set the detenue at liberty forthwith. 2. By the proceedings dated 01.04.2022, the 2nd respondent passed the detention order under Section 3(1) and (2) 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’] treating the detenue as „Goonda’ under Section 2(g) of the Act 1 of 1986 on the subjective satisfaction that the detenue is acting in a manner prejudicial to the maintenance of public order since he 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 increasing his activities day to day and extending them to Andhra Pradesh and Telangana States. Following cases in which the detenue was involved were taken as ground for ordering his detention. S.No. Cr. No. & Sec. of Law Date of offence 1 Cr. No.669/21 u/s 457, 380 IPC of Tirupati East Btn. 25/26.09.21 2 Cr. No.555/21 u/s 457, 380 IPC of Tiruchanur PS Btn. 25.09.21 & 01.10.2021 3 Cr. No.645/21 u/s 457, 380 IPC of MR Palle PS Btn. 02.10.2021 & 04.10.2021 4 Cr. No.657/21 u/s 457, 380 IPC of MR Palle PS Btn. 07.10.21 & 13.10.21 5 Cr. No.906/21 u/s 457, 380 IPC of Alipiri PS 11/12.10.21 6 Cr. No.913/21 u/s 457, 380 IPC of Alipiri PS 15/16.10.21 7 Cr. No.583/21 u/s 457, 380 IPC of Tiruchanur PS 16/17.10.21 8 Cr. No.925/21 u/s 457, 380 IPC of Alipiri PS Btn. 17.10.21 & 20.10.2021 9 Cr. No.248/21 u/s 457, 380 IPC of Srikalahasti II Town PS Btn. 15.11.21 & 25.11.21 10 Cr. No.1017/21 u/s 457, 380 IPC of Alipiri PS Btn. 03.12.21 & 07.12.21 11 Cr. No.583/21 u/s 457, 380 IPC of Tiruchanur PS 16/17.10.21 8 Cr. No.925/21 u/s 457, 380 IPC of Alipiri PS Btn. 17.10.21 & 20.10.2021 9 Cr. No.248/21 u/s 457, 380 IPC of Srikalahasti II Town PS Btn. 15.11.21 & 25.11.21 10 Cr. No.1017/21 u/s 457, 380 IPC of Alipiri PS Btn. 03.12.21 & 07.12.21 11 Cr. No.17/22 u/s 457, 380 IPC of MR Palle PS 12.01.2022 In the grounds of detention, it is stated that the detenue was habitually involved in the cases of house breaking and committing theft in several places in Andhra Pradesh and Telangana and he was involved in eight cases in different police stations in Telangana State also. 3. The 2nd respondent filed counter and opposed the writ petition. 4. Heard arguments of Sri D. Purna Chandra Reddy, learned counsel for the petitioner and Special Government Pleader representing learned Advocate General for respondents. 5. Though several grounds were raised against the detention order, it is mainly argued on behalf of the petitioner that the detenue was granted conditional bail in almost all of the eleven cases which were taken as a ground for passing detention order which indicates that the jurisdictional court on a prima facie opinion that the detenue did not commit offence granted him bail in all the cases. In that view, the duty is cast on the Sponsoring Authority to place before the 2nd respondent apart from the materials relating to the 11 crimes, also the bail applications and bail orders for consideration and satisfaction of the detaining authority. Learned counsel would strenuously argue that only on coming to the satisfaction that while on bail there is a likelihood of detenue’s repeating similar offences and acting prejudicial to the maintenance of public order, the detaining authority shall pass the detention order. Further, it is the duty of the detaining authority to furnish along with grounds of detention the materials considered by him which include the bail applications and bail orders. All these materials have to be furnished to the detenue to make an effective representation to the Advisory Board or the Government. Learned counsel would lament that in this case the said procedure has been grossly infracted 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 his considering them and arriving at a opinion. Learned counsel would lament that in this case the said procedure has been grossly infracted 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 his considering them and arriving at a opinion. Due to non-furnishing of the bail applications and bail orders, the detenue was denuded of valuable opportunity to make an effective representation before the Advisory Board. Due to such violation, the learned counsel would emphasise, the detention order became illegal. He placed reliance on Gattu Kavita v. State of Telangana, 2016 SCC Online Hyd 718 = (2017) 1 ALD (Cri) 224 and Vasanthu Sumalatha v. State of Andhra Pradesh, rep. by its Chief Secretary, Hyderabad, 2015 SCC Online Hyd 790 = (2016) 1 ALT 738 (DB). 6. Learned Special Government Pleader while opposing the writ petition argued that merely the detenue was granted bail in the cases which were taken as a ground for ordering detention cannot be a ground to claim immunity or insulation from detention. On the other hand, there is a possibility of misusing the freedom granted under the bail and to commit habitual offences. The detaining authority having considering the involvement of the detenue habitually in similar offences, made a logical prognosis of his future behavior. Therefore, the detenue was on bail in almost all the 11 cases is of no consequence. He argued that bail orders were furnished to the detenue. He alternatively argued that non-furnishing of bail orders to the detenue will not render the detention illegal. He placed reliance on Sunila Jain v. Union of India, MANU/SC/8053/2006 = (2006) 3 SCC 321 . He would further argue that the activities of the detenue were very much prejudicial to the maintenance of public order as the detenue along with some others committed series of house breaking and theft of valuable gold articles and other things. Hence, his detention is justified. 7. The point for consideration is whether there are merits in the writ petition to allow? 8. Point: We gave our anxious consideration to the above respective arguments. The primary argument of the petitioner is about the procedural violation. True is that as submitted by learned Special Government Pleader, a person on bail is neither immuned nor insulated from preventive detention. The point for consideration is whether there are merits in the writ petition to allow? 8. Point: We gave our anxious consideration to the above respective arguments. The primary argument of the petitioner is about the procedural violation. True is that as submitted by learned Special Government Pleader, a person on bail is neither immuned nor insulated from preventive detention. Still, the detaining authority upon considering the material and other facts can form an opinion that the chances of misuse of bail by such person and his repeating similar offences cannot be ignored, order for preventive detention. There is no demur on this aspect. However, the crux of the petitioner’s argument is not about the lack of power of the detaining authority to order preventive detention against a person who is on bail. On the other hand, the argument of the learned counsel for petitioner is that in almost all the 11 crimes which were considered for ordering detention, the detenue was granted bail and the Sponsoring Authority have not placed the materials relating to bail applications and bail orders before the detaining authority for his consideration. Had such information was brought to the notice of the latter, perhaps considering that conditional bails were granted in favour of detenue and that his movement was already restricted by the judicial orders, the detaining authority might not order preventive detention. We find considerable force in the above argument. Preventive detention under Article 22 of the Constitution of India is an exception to Article 21. It being not a punitive detention, the law cautioned the detaining authority to scrupulously follow the safeguards and procedures before ordering preventive detention. One of such procedural safeguards is that if the detenue was already granted conditional bails in the crimes which were taken as a ground for ordering preventive detention, it will be the solemn duty of the Sponsoring Authority to bring the said fact to the notice of the Detaining Authority by placing before it the bail applications and bail orders for its consideration. Failure on the part of the Sponsoring Authority to do so and also the failure on the part of the Detaining Authority to consider aforesaid material on being placed before it, render the detention per se illegal. The law on this aspect is no more res integra. Failure on the part of the Sponsoring Authority to do so and also the failure on the part of the Detaining Authority to consider aforesaid material on being placed before it, render the detention per se illegal. The law on this aspect is no more res integra. In Vasanthu Sumalatha (supra), a Division Bench of the common High Court of Andhra Pradesh has observed thus: “43. If the bail order, which is a vital material, is not considered, the satisfaction of the detaining authority itself would be impaired. (V. Muragesh v. Collector and District Magistrate, Chittoor (2013 Crl.L.J. 585); Durgam Subramanyam v. Government of A.P. ( 2013 (4) ALT 243 (D.B); State of U.P v. Kamal Kishore Saini ( (1988) 1 SCC 287 ; M. Ahamedkutty vs Union Of India 1990 SCR (1) 209 : 1990 SCC (2) 1. Nonplacing and non-consideration of material, as vital as the bail order, vitiates the subjective decision of the detaining authority, and the Court cannot attempt to assess in what manner, and to what extent, consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority. (Rushikesh Tanaji Bhoite v. State of Maharashtra (2012) 2 SCC 72 ). Failure of the sponsoring authority to place the conditional orders, granting anticipatory bail/bail, before the detaining authority is fatal as it is a vital material which would have weighed with the detaining authority at the time of passing the detention order. [Durgam Subramanyam’s case (supra). 54. Neither the order nor the grounds of detention refer either to the conditional or the unconditional orders of bail granted in favour of the detenus. As noted hereinabove failure of the detaining authority to consider the orders granting conditional bail would vitiate the orders of detention. ..xxx…” 9. It should be noted that in the above decision, the judgment in Sunila Jain’s case (supra) relied upon by the learned Special Government Pleader was distinguished on facts. In Sunila Jain, copy of the order granting bail and order of remand has been furnished to the detenue. In that context, it was observed by the Hon’ble Apex Court that non-furnishing of a copy of the application of bail cannot be said to be a ground and that all the documents placed before the detaining authority are not required to be supplied and only relevant and vital documents are required to be supplied. In that context, it was observed by the Hon’ble Apex Court that non-furnishing of a copy of the application of bail cannot be said to be a ground and that all the documents placed before the detaining authority are not required to be supplied and only relevant and vital documents are required to be supplied. The said judgment was distinguished in Vasanthu Sumalatha case (supra) as follows: “53. Unlike in Sunila Jain (supra) where a copy of bail application, for an offence which was bailable, was not furnished and a copy of the order granting bail and the order of the remand were furnished to the detenu, in the present case the orders granting conditional bail were neither considered by the detaining authority nor were copies thereof furnished to the detenu. The conditional orders of bail restricted the movement of the detenus and required them to appear before the officer concerned periodically. If these conditional orders of bail had been brought to his notice, it may well have resulted in the detaining authority arriving at the subjective satisfaction that the detention of the detenus were unnecessary. Reliance placed by the Learned Advocate-General on Sunila Jain (supra) is, therefore, misplaced.” In Gattu Kavitha case (supra), another Division Bench of the common High Court of Telangana & A.P. expressed similar view as follows: “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.” 10. In the light of the above jurisprudence, 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 11 cases which were taken for consideration, the detenue was granted bail in almost all the cases. In the light of the above jurisprudence, 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 11 cases which were taken for consideration, the detenue was granted bail in almost all the cases. However, when we perused the detention order and grounds of the detention, there was no reference about granting of conditional bails in the concerned crimes. Thus, it is obvious that the Sponsoring Authority has not placed the relevant material i.e., bail applications and bail orders before the Detaining Authority and there was no effective consideration of this fact. Further, along with the counter the 2nd respondent enclosed the material papers from page 58 to 174 which were said to be furnished to the detenue after detention. However, these material papers 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. On this ground alone, the detention order is liable to be set aside. 11. 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 and 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. No costs. As a sequel, interlocutory applications pending, if any, shall stand closed.