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2023 DIGILAW 952 (AP)

Yerukala Sunkamma v. State of AP

2023-07-03

CHEEKATI MANAVENDRANATH ROY, TARLADA RAJASEKHAR RAO

body2023
ORDER : Cheekati Manavendranath Roy, J. This Writ Petition for Habeas Corpus is filed seeking direction to respondent No.4 to produce the husband of the petitioner viz., Yerukala Naganna, S/o Yerukala Sunkanna, who is now detained in Central Prison, Kadapa, before the Court, pursuant to the order of preventive detention, dated 28.11.2022, passed by the 2nd respondent, which is confirmed by respondent No.1 as per G.O.Rt.No.143, dated 20.01.2023, and to declare the same as illegal and unconstitutional and then to pass appropriate orders deemed fit in the facts and circumstances of the case. 2. Heard learned counsel for the petitioner and Sri Syed Khader Mastan, learned Government Pleader attached to the office of learned Additional Advocate General appearing for the respondents. 3. Outline facts of the lis leading to filing of this writ petition may be stated as: About 13 crimes relating to commission of various offences were registered against the husband of the petitioner by the police of Yemmiganur UPS. The details of the said 13 crimes that were registered against the husband of the petitioner are as follows : 1. Cr.No.181/2004 U/Sec. 147, 148, 324, 307 r/w 149 IPC of Yemmiganur UPS 2. Cr. No.34/2006 U/Sec 324, 341 r/w 34 IPC of Yemmiganur UPS. 3. Cr.No.68/2006 U/Sec.324, 506 r/w 34 IPC of Yemmiganur UPS. 4. Cr.No.86/2006 U/Sec.324 r/w 34 IPC of Yemmiganur UPS. 5. Cr.No.104/2007 U/Sec 147, 148, 427, 364, 307 IPC r/w 149 IPC of Yemmiganur UPS. 6. Cr.No.252/2008 U/Sec. 147, 148, 325, 307 r/w 149 IPC of Yemmiganur UPS. 7. Cr.No.180/2009 u/s 302 r/w 34 IPC of Yemmiganur UPS. 8. Cr.No.6/2010 U/Sec.457, 380 IPC of Yemmiganur UPS. 9. Cr.No.145/2010 U/Sec.395 IPC of Kodumur P.S 10. Cr.No.110/2013 U/Sec.324, 506 r/w 34 IPC of Yemmiganur UPS. 11. Cr.No.197/2022 U/Sec.323, 452, 506, 509 r/w 34 IPC of Yemmiganur UPS. 12. Cr.No.202/2022 U/Sec.447, 427, 509, 506, 420 r/w 34 IPC of Yemmiganur UPS. 13. Cr.No.223/2022 U/Sec.448, 506 IPC of Yemmiganur UPS. 4. After completion of investigation in the first ten crimes, the police have filed charge sheets in all the said ten cases against the husband of the petitioner. Thereafter, the husband of the petitioner was prosecuted in all the said ten crimes in the concerned trial Court. After full-fledged trial, eventually, in the final adjudication, the husband of the petitioner was found not guilty for the said offences in all the said ten crimes. Thereafter, the husband of the petitioner was prosecuted in all the said ten crimes in the concerned trial Court. After full-fledged trial, eventually, in the final adjudication, the husband of the petitioner was found not guilty for the said offences in all the said ten crimes. Therefore, he was acquitted in all the said ten crimes. The ninth crime out of the said thirteen crimes that were registered, in the case registered under Section 395 IPC against him and in some crimes, he was prosecuted for the offence under Section 302 IPC and in some crimes, he was also prosecuted for the offences punishable under Sections 457 and 380 IPC, but he was not found guilty in all the said crimes and he was acquitted as noticed supra. In other three crimes which are shown in Serial Nos.11 to 13 above, investigation is still pending in respect of the said crimes. These three crimes pertain to criminal trespass into the land and causing mischief and they also involve the offence of criminal intimidation, which are not as serious as those offences in which the petitioner was already prosecuted and acquitted relating to the other said crimes. 5. Owing to the fact that about thirteen crimes were registered against the husband of the petitioner for various offences, the sponsoring authority i.e., 3rd respondent, who is the Superintendent of Police, made a reference to the 2nd respondent- District Collector–cum-District Magistrate, who is the competent authority under the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders And Land-Grabbers Act, 1986 (hereinafter called for short “the Act”) to pass an order of preventive detention against the husband of the petitioner to prevent him from further committing any other such offences. Considering the same, the 2nd respondent has passed the impugned order of preventive detention against the husband of the petitioner alleging that in view of his involvement in the above thirteen crimes which were registered against him that he is a Dacoit, as defined under Section 2(c) of the Act, Goonda as defined under Section 2(g) of the Act and Land-Grabber as defined under Section 2(j) of the Act and stating that his activities are prejudicial to the maintenance of public order and that it is essential to pass an order of preventive detention against him, the impugned order, dated 28.11.2022, was passed against the husband of the petitioner detaining him as a preventive measure in the Central Prison of Kadapa. Thereafter, the said order was confirmed by the Government by way of issuance of G.O.Rt.No.143, dated 20.01.2023. Therefore, the husband of the petitioner is now in the Central Prison on account of the said preventive detention order that was passed under the Act. 6. Aggrieved by the impugned order of preventive detention that was passed against him, the instant Writ Petition has been filed challenging legal validity of the order of preventive detention, dated 28.11.2022, passed by the 3rd respondent and the consequent G.O.Rt.No.143, dated 20.01.2023, that was passed by the Government confirming the said order of preventive detention. 7. Learned counsel for the petitioner would vehemently submit that admittedly the husband of the petitioner was acquitted in all the first ten crimes that were registered against him and even after his acquittal in the said crimes that he was erroneously termed as Dacoit as contemplated under Section 2(c) of the Act and the order of detention passed on that ground that he is a dacoit, is illegal and unsustainable. He would then submit that the other three crimes pertain to a Civil dispute between two individuals where the Civil Suits are pending in the Civil Court and interim injunction is passed in favour of the husband of the petitioner and that thereafter the said three crimes were registered on the reports lodged by the 2nd defendant in those cases and by mere registration of the case of criminal trespass under Section 447 IPC and criminal intimidation under Section 506 IPC, the husband of the petitioner cannot be termed as land-grabber as defined under Section 2(j) of the Act and the facts of the case do not satisfy the definition of 2(j) of the Act and as such, passing the impugned order of preventive detention against the husband of the petitioner on the ground that he is landgrabber as contemplated under the Act is erroneous and legally unsustainable. 8. As regards the impugned order of terming the husband of the petitioner as goonda, learned counsel for the petitioner would submit that though the offences relating to Chapter XVI, XVII, XXII of IPC are registered against the husband of the petitioner in respect of other three crimes that are pending and it satisfies the definition of Goonda under Section 2(g) of the act, he would submit that that by itself is not sufficient to pass the impugned order of preventive detention and he would submit that still the authorities concerned must satisfy that the said acts of the husband of the petitioner are prejudicial to the maintenance of public order, which is conspicuously absent in this case and as such, the impugned order is unsustainable on that ground. He would then contend that the orders of acquittal are not placed by the sponsoring authority before the detaining authority and the 2nd respondent-Collector and District Magistrate, who passed the impugned order of detention, also did not apply his mind whether by mere pendency of the said three crimes now, the acts of the husband of the petitioner is causing prejudice to the maintenance of public order or not, and the 2nd respondent has mechanically passed the impugned order without applying his mind and without considering the necessary requirements and ingredients of Section 3 of the Act. So, he would contend that the impugned order of preventive detention passed against the husband of the petitioner is ex facie illegal and it would have the effect of depriving the husband of the petitioner of his personal liberty illegally. Therefore, he would pray to set side the impugned order and set the husband of the petitioner at liberty. In support of his contention, he relied on the judgments rendered in the case of Vasanthu Sumalatha v. State of Andhra Pradesh, (2016)1 ALT 738 (DB) : (2016)2 ALD (Cri) 156 and an unreported judgment of the Division Bench of this High Court rendered in W.P.No.17210 of 2022 and also the other judgments which will be discussed later on. 9. Per contra, learned Government Pleader would submit that although the husband of the petitioner was acquitted in the said ten crimes that were registered against him, the said acquittal by itself will not exonerate him from his liability and it would not make the impugned order of preventive detention illegal or erroneous. He would submit that even after acquittal also, if the competent authority finds that the acts of the detenu are prejudicial to the maintenance of the public order that the competent authority under the Act can still pass an order of preventive detention in the larger interest of the public. He draws support in this regard from the judgment of the Apex Court rendered in the case of Haradhan Shah v. The State of West Bengal and others, 1975 (3) SCC 198 in support of the said proposition of law that is now canvassed. He would submit that even though on account of the said acquittal, the facts of the case do not satisfy the definition of Dacoity under Section 2(c) of the Act that still when the competent authority finds his acts are prejudicial to the maintenance of public order that it is within the competence of the 2nd respondent to pass the impugned order of preventive detention. He would submit that when the registration of the other three crimes satisfies the definition of Goonda as contemplated under Section 2(g) of the Act, the impugned order of preventive detention passed against him is perfectly valid under law. He would submit that when the registration of the other three crimes satisfies the definition of Goonda as contemplated under Section 2(g) of the Act, the impugned order of preventive detention passed against him is perfectly valid under law. He would finally contend that when the husband of the petitioner has been repeatedly involving himself in several crimes and in almost thirteen crimes that the 3rd respondent is justified in passing the impugned order of preventive detention to prevent him from committing any such acts in future in the larger interest of the public. So, he strongly supports the order of preventive detention and prays for dismissal of the Writ Petition. 10. As noticed supra, the impugned order of preventive detention was passed primarily on three counts: (i) that the husband of the petitioner is a Dacoit as defined under Section 2(c) of the Act (ii) Goonda as defined under Section 2(g) of the Act (iii) a Land-grabber as defined under Section 2(j) of the Act. 11. According to the respondents, as the husband of the petitioner involved in thirteen crimes in committing various offences including the offence of murder, dacoity, and causing hurt to the injured in the said cases that he is a habitual offender resorting to commission of various offences frequently and as such, his involvement in almost thirteen crimes and his acts in committing the said offences is causing prejudicial to the maintenance of public order. Therefore, it is stated that to prevent him from further committing any such crimes that in the larger interest of the public that it is essential to pass an order of preventive detention. Therefore, it is said that the impugned order of preventive detention is passed under the Act. 12. The law is now fairly well settled as per the ratio laid down in plethora of judicial pronouncements while interpreting the relevant provisions of the Act that, mere registration of crimes by itself is not sufficient to pass an order of preventive detention under the Act and it is stated that the yardstick that is required to ascertain whether the detenu is a dacoit, goonda, bootlegger or a land-grabber under the Act and whether it is essential to pass any order of preventive detention is whether his acts would amount to causing prejudice to the public order or not. In assessing the same, the competent authority under the Act has to apply his mind to the facts of the case and the material placed before him and he has to invariably record a finding in his order with reasons and supporting evidence that the repeated acts of the person against whom the order of detention is sough to be passed is causing prejudice to the public order or maintenance of law and order and that it is essential to pass an order of preventive detention to further prevent him from committing the said acts. Recording such subjective satisfaction based on material evidence with supporting reasons is an indispensable requirement which is sine qua non for passing such an order of preventive detention. The said material on the basis of which the said order came to be passed and the reasons assigned for passing such an order is to be examined meticulously to sustain the said order, as such an order of preventive detention would have the effect of depriving an individual, who is the citizen of this country of his personal liberty what is guaranteed under Article 21 of the Constitution of India, which is a precious and a valuable right of every citizen of this nation. When the order of preventive detention got the effect of taking away the liberty of an individual, it cannot be sustained on vague and flimsy grounds. It requires strong grounds and valid material to pass such an order of detention under the Act. 13. In the instant case, even though the husband of the petitioner was acquitted after full trial by the competent criminal Court in all the ten crimes, which includes serious crimes like murder and attempt to murder and dacoity, the copies of the said orders and the documents relating to the same are not placed by the sponsoring authority before the 2nd respondent, who is the competent authority to pass an order of preventive detention. Placing such documents before the competent authority to enable him to apply his mind and to take a conscious decision whether it is essential and also to see whether there is impending need to pass any such order of preventive detention against him is very much essential. Placing such documents before the competent authority to enable him to apply his mind and to take a conscious decision whether it is essential and also to see whether there is impending need to pass any such order of preventive detention against him is very much essential. Therefore, if any such material documents relating to acquittal of the husband of the petitioner in major part of the crimes and also when he was already enlarged on bail in such crimes, are not produced before the competent authority, who is required to pass an order of preventive detention, Courts have held that it would vitiate the order of preventive detention. 14. It is also well settled law that even the said documents relied on by the sponsoring authority and the 2nd respondent – competent authority, who passed the order of preventive detention, shall be supplied to the detenu to enable him to make a valid representation before the competent authority. Failure to supply the said documents to the detenu is also considered to be fatal and if any such order of detention is passed without furnishing the material documents to the detenu, it is held that it would also vitiate the order of preventive detention. 15. The Division Bench of the Common High Court for the State of Telangana and Andhra Pradesh had an occasion to deal with these two vital issues in the case of Vasanthu Sumalatha v. State of Andhra Pradesh (supra). 16. At para No.42 in the above judgment, it is held by the Division Bench that it is incumbent that all vital materials are placed before the detaining authority to enable him to arrive at the subjective satisfaction as to the necessity for passing an order of detention as decided in M. Ahamedkutty, (1990) 2 SCC 1 and also in State of U.P. v. Kamal Kishore Saini, (1988) 1 SCC 287 . It is held that the bail order is a vital material for consideration. If it is not considered, the satisfaction of the detaining authority would be impaired. It is held that the bail order is a vital material for consideration. If it is not considered, the satisfaction of the detaining authority would be impaired. If it is considered, it would then be a document relied on by the detaining authority, though not specifically mentioned in the annexure to the order of detention, and ought to form part of the documents to be supplied to the detenu with the grounds of detention; and, without them, the grounds themselves cannot said to have been complete. It amounts to denial of the detenu’s right to make an effective representation, and would be in violation of Article 22(5) of the Constitution of India. It would render the continued detention of the detenu illegal. 17. Then, at para No.84 of the said judgment, effect of non-supply of copies of bail orders to the detenu is discussed. At para No.94, it is held that the right of the accused, to be supplied with the material documents on which the competent authority relied on to pass the order of detention, is to make an effective representation by the detenu and when some documents are referred to or relied on in the grounds of detention, without copies of such documents, being supplied to the detenu and if there is failure or even delay in furnishing those documents to the detenu, it would amount to denial of their right to make an effective representation. It is further held that the material and documents, which influence the mind of the detaining authority in passing the order of detention, are part of the basic facts and material, and should be supplied to the detenu. Then at para No.96 of the judgment, it is held that it is imperative that all the relevant material including copies of the bail orders are furnished to the detenu and failure to furnish copies of the orders to the detenu vitiates the order of detention. 18. Thus, from the conspectus of the law laid down in the aforesaid judgment, the legal position is very clear that the documents which are made basis for passing the order of detention are to be invariably supplied to the detenu to enable him to make effective representation opposing the proposal of passing preventive order of detention against him. Failure to supply any such documents to him would vitiate the order of detention. Failure to supply any such documents to him would vitiate the order of detention. The law is also made very clear that the documents which are sought to be made basis for passing the order of detention shall be placed before the detaining authority and failure to place those documents before him would also vitiate the order of detention, as it would amount to passing the order of detention without application of mind and without considering the relevant material required to be considered for passing the order of detention. 19. If the case on hand is viewed in the light of the law enunciated in the aforesaid judgment, as the documents on the basis of which the order of detention was made are not supplied to the detenu to enable him to make an effective representation, it undoubtedly makes the impugned order of detention passed against him an illegal order and it is vitiated for non-compliance with the said mandatory requirements of law. 20. Further, when the husband of the petitioner was already acquitted after full trial in grave offences in almost ten crimes that were registered against him, the detaining authority did not assign any valid reasons as to how the case still falls under the category of “habitually committing offences” by the husband of the petitioner so as to pass any such order of preventive detention depriving him of his personal liberty guaranteed under Article 21 of the Constitution of India. The impugned order is devoid of any such valid and essential reasons to uphold the validity of the same. 21. The other three crimes in which investigation is still pending against the husband of the petitioner, they do not relate to any commission of serious offences. It pertains to a dispute between two individuals i.e. between the husband of the petitioner and another and more particularly, it is relevant to note that there is a civil dispute in relation to the said land and the husband of the petitioner has filed a suit in the civil Court and interim injunction was passed in his favour. It pertains to a dispute between two individuals i.e. between the husband of the petitioner and another and more particularly, it is relevant to note that there is a civil dispute in relation to the said land and the husband of the petitioner has filed a suit in the civil Court and interim injunction was passed in his favour. Therefore, when it is only a dispute between two individuals relating to right claimed over a piece of land and when the interim injunction is in favour of the husband of the petitioner, in our considered view, it does not amount to disturbance of any public order so as to justify passing of preventive detention by the impugned order. Further, whether the allegation of mere trespass into a land would amount to land grabbing as defined under Section 2(j) of the Act is also a doubtful circumstance in this case for which valid reasons are not given in the impugned order to term the husband of the petitioner as a land-grabber as contemplated under Section 2(j) of the Act. 22. Although learned Government Pleader made his best efforts to convince this Court that even after an order of acquittal, still it is within the competence of the detaining authority to pass an order of preventive detention when it is required for the purpose of maintaining public order and he relied on the judgment of the Apex Court to prop up his contention, we are unable to accede to the said contention. No doubt, at para No.32 of the judgment relied on by him in the case of Haradhan Shah v. The State of West Bengal and others (supra), it is held that order of preventive detention may be made before or during prosecution and an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal for the purpose of maintaining the public order. It is relevant to note that the said judgment was passed under the Maintenance of Internal Security Act, 1971. It is not a judgment passed relating to a case under Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders And Land-Grabbers Act, 1986. Therefore, this judgment is of no avail to the case of the respondents. It is not a judgment passed relating to a case under Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders And Land-Grabbers Act, 1986. Therefore, this judgment is of no avail to the case of the respondents. Further, even after acquittal also, to pass any such order of preventive detention, there must be material before the detaining authority that his acts are prejudicial to the maintenance of public order and that he is likely commit such offence in future and he must record his satisfaction to that effect on the basis of the said material with reasons. If the same is not found to be done, then it certainly vitiates the order. 23. For the reasons discussed above, the impugned order of preventive detention passed against the husband of the petitioner is clearly unsustainable under law and it warrants interference of this Court in this Writ Petition and it is liable to be set aside. 24. Resultantly, the Writ Petition is allowed. The impugned order of detention passed against the husband of the petitioner and the impugned G.O. that was passed confirming the said order are hereby set aside. The husband of the petitioner viz. Yerukala Naganna, S/o Yerukala Sunkanna, shall be set at liberty forthwith, if not required in any other crime, the 4th respondent – Superintendent, Central Prison, Kadapa, is hereby directed to release the husband of the petitioner forthwith. There shall be no order as to costs. As a sequel, miscellaneous applications, if any pending, shall stand closed.