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2024 DIGILAW 1184 (AP)

Konduri Naga Lakshmi v. State of Andhra Pradesh

2024-08-23

HARINATH N., R.RAGHUNANDAN RAO

body2024
ORDER : 1. Heard Dr. G.V.N.R.S.S.S. Vara Prasad, learned counsel appearing for the petitioner and the learned Special Government pleader in the office of the learned Additional Advocate General for respondents. 2. The 2nd respondent by an order dated 16.03.2024 had passed an order of detention against the detenue. This order was approved by the 1st respondent on 26.03.2024, and subsequently confirmed by way of G.O.Ms. No. 776 dated 25.04.2024 issued by the 1st respondent. 3. The 2nd respondent ordered preventive detention of the detenue, on the ground that the detenue deserves to be treated as a Goonda as defined under Section 2(g) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986 (for short “the Act”) because the detenue had been involved in five cases which relate to commission of offences punishable under Chapter XVI and XXII of the Indian Penal Code and that the severity of the offences, enumerated in these complaints and the conduct of the detenue in continuing to commit crimes is prejudicial to the maintenance of public health and public order requiring the detenue to be detained. The crimes, which were taken into account by the 2nd respondent, are as follows: 1. Case in Crime No. 201/2023, under Sections 307, 354 r/w 34 IPC and Section 27 of the Indian Arms Act, 1959, of Penamaluru Police Station, dated 28.02.2023. 2. Case in Crime No. 754/2023, under Sections 448, 323, 506 r/w 34 IPC of Patamata Police Station, dated 04.08.2023. 3. Case in Crime No. 648/2023, under Sections 341, 323, 506 r/w 34 IPC of Penamaluru Police Station, dated 27.08.2023. 4. Case in Crime No. 766/2023, under Sections 341, 143, 188, 290 r/w 149 IPC of Penamaluru Police Station, dated 02.10.2023. 5. Case in Crime No. 86/2024, under Section 307 IPC, of Vuyyuru Town Police Station, dated 25.02.2024. 3.1 The sister of the detenue has filed the present writ petition assailing the order of detention and subsequent proceedings of approval and confirmation. The pleadings in the writ petition are that the Sub-Inspector of Police Penamaluru Police Station and certain other police officers/officials of the said police station were inimically inclined against the petitioner, due to which false cases were being foisted against the petitioner and the order of detention had been obtained under the guise of these complaints being genuine complaints. The pleadings in the writ petition are that the Sub-Inspector of Police Penamaluru Police Station and certain other police officers/officials of the said police station were inimically inclined against the petitioner, due to which false cases were being foisted against the petitioner and the order of detention had been obtained under the guise of these complaints being genuine complaints. It is further alleged that the immediate provocation for obtaining the order of detention was the fact that the petitioner and other siblings of the detenue had initiated complaints against the Sub-Inspector of Police, Penamaluru Police Station and the order of detention was obtained as a counter blast to the said complaints filed against the police officials. 4. The order of detention and subsequent proceedings are assailed on the merits of the case, on the following grounds, which are elaborated by Dr. G.V.N.R.S.S.S. Vara Prasad, learned counsel appearing for the petitioner: (a) The detenue had been falsely implicated in Crime No. 201/2023 which is at S. No. 1 of the above extract. The detenue was granted bail in the said case. An application for cancellation of such bail was filed and the same came to be rejected. However, the sponsoring authority did not submit, the said application for cancellation of bail and subsequent order of cancellation of bail by the Magistrate, to the 2nd respondent/detaining authority. (b) The learned counsel relies upon the judgments of this Court in Vasanthu Sumalatha and Others vs. State of Andhra Pradesh Rep. by its Chief Secretary, Hyderabad and Others, 2015 SCC Online Hyd 790 : (2016) 1 ALT 738 (DB) : (2016) 2 ALD (Cri) 156, Akhil Gogoi S/o Late Bolo Ram Gogoi vs. State of Assam Represented by the Public Prosecutor, 2020 SCC Online Gau 1092, Ameena Begum vs. State of Telangana, (2023) 9 SCC 587 , Asha Devi vs. K. Shivaraj, Additional Chief Secretary to the Government of Gujarat, (1979) 1 SCC 222 and Ahamed Nassar vs. State of Tamil Nadu and Others, (1999) 8 SCC 473 to contend that, non production of these documents are fatal to the impugned order of detention. (c) Crime No. 382/2021 filed against the detenue was not considered at all. (d) The 2nd respondent had filed a counter affidavit and an additional counter affidavit in the matter. (c) Crime No. 382/2021 filed against the detenue was not considered at all. (d) The 2nd respondent had filed a counter affidavit and an additional counter affidavit in the matter. The learned counsel for the petitioner relies upon the list of cases filed in the additional counter affidavit and more specifically Crime No. 118/2020, which was renumbered as C.C. No. 51 of 2022 filed on the file of the VI Metropolitan Magistrate, Vijayawada, as if the detenue was an accused in the said crime even though the detenue was not made as an accused in the said crime. (e) There is a mention of Crime No. 453/2020 and Crime No. 457/2020 in the detention order. However, the documents relating to these two criminal cases were not placed before the 2nd respondent and the said non-placement of documents relating to these two cases is fatal to the detention order. (f) A perusal of the documents, relating to Crime No. 86/2024 shown at S. No. 5 in the above extract, would clearly show that no case is made out against the detenue in the said complaint and as such the said case could not have been taken into account for passing the order of detention. 5. A perusal of the counter affidavit and the additional counter affidavit of the 2nd respondent and also the submissions made by the Special Government Pleader in the office of the Additional Advocate General, make it clear that the material relating to the application for cancellation of bail and the order of rejection of such an application in Crime No. 201/2023 had not been placed before the detaining authority. Similarly, the material relating to Crime Nos. 453 & 457 of 2020 was not placed before the detaining authority. 6. The learned Special Government Pleader in the office of the Additional Advocate General, would contend that the list of cases set out in the additional counter affidavit filed by the 2nd respondent was only to assist this Court and that none of the cases mentioned in that list are relevant for the order of detention as the detenue was being detained on the ground that he was a Goonda, whereas the cases set out in the list in the additional counter affidavit of the 2nd respondent relate to the offences which fall outside the relevant Chapters of the Indian Penal Code. He would contend that the said cases are not relevant for the purpose of deciding whether the detenue should be placed under detention or not and as such none of these cases, set out above, were considered at the time of the passing of the detention order. 7. The learned Special Government Pleader would also contend that Crime Nos. 453 and 457/2020 were mentioned only to highlight the fact that the rowdy sheet had already been opened against the detenue and the same would show that the detenue is a habitual offender whose presence in society would be prejudicial to the public order. The learned Special Government Pleader would contend that the detaining authority was not considering Crime Nos. 453 and 457/2020 and that the mention of these crimes was only to state that the proceedings issued for opening a rowdy sheet against the detenue contain these details and nothing more. He would contend that the said mention of Crime Nos. 453 and 457/2020, without placing the record relating to these crimes, before the detaining authority, would not in any manner, reflect the validity of the detention order. 8. Learned Special Government Pleader would contend that the contention of the learned counsel for the petitioner that perusal of the documents relating to Crime No. 86/2024 would demonstrate the innocence of the detenue, cannot be accepted as such conclusions can only be drawn after a full-fledged trial. He would further contend that an order of detention arises out of the subjective satisfaction of the detaining authority and it is not an objective satisfaction which requires to be tested on certain stringent grounds. 9. Learned Special Government Pleader would contend that there are no discrepancies/lacunae in the procedural safeguards enumerated by the Courts, in various judgments are that the order of detention requires to be upheld. Consideration of the Court: 10. The scope of judicial review of an order of detention, passed under any law of preventive detention, has been settled by a long line of decisions by the Hon’ble Supreme Court. It is settled law, that the satisfaction required for passing an order of detention is the subjective satisfaction of the detaining authority and not any objective satisfaction. The scope of judicial review of an order of detention, passed under any law of preventive detention, has been settled by a long line of decisions by the Hon’ble Supreme Court. It is settled law, that the satisfaction required for passing an order of detention is the subjective satisfaction of the detaining authority and not any objective satisfaction. For this reason, judicial review of an order of preventive detention has been in the nature of verifying whether there has been any violation of various procedural safeguards which are set out explicitly or arise on an implied basis. 11. The Hon’ble Supreme Court in Ameena Begum vs. State of Telangana; Asha Devi vs. K. Shivaraj, Additional Chief Secretary to the Government of Gujarat and Ahamed Nassar vs. State of Tamil Nadu and Others, cited by the learned counsel for the petitioner, have taken the view that one of the crucial procedural safeguards available to a person whose liberty has been deprived, is to see whether all the relevant material, required to form an opinion as to whether the detenu should be detained in preventive detention or not, has been placed before the detaining authority and that any shortfall of all the relevant documents would vitiate the order of detention. 12. In the present case, the application for rejection of bail in Crime No. 201/2023 and the order of rejection of such application are admittedly not placed before the detaining authority before the impugned order of detention had been passed. 13. The detaining authority had also mentioned Crime Nos. 453 and 457/2020 for coming to the conclusion that an order of preventive detention has to be passed against the detenue. However, no material relating to these two crimes was placed before the detaining authority. 14. Though, the learned special government pleader has contended that, Crime Nos. 453 and 457 of 2023 have not been taken into consideration, while passing the order of detention, the fact remains that they have been mentioned in the order. Such mention of these criminal complaints can only mean that these crimes were also taken into account, by the 2nd respondent, while deciding whether an order of detention is to be passed against the detenu or not. The records relating to these two complaints against the detenu have not been placed before the 2nd respondent. 15. Such mention of these criminal complaints can only mean that these crimes were also taken into account, by the 2nd respondent, while deciding whether an order of detention is to be passed against the detenu or not. The records relating to these two complaints against the detenu have not been placed before the 2nd respondent. 15. In Khaja Bilal Ahmed v. State of Telangana, (2020) 13 SCC 632 : (2020) 4 SCC (Cri) 629 : 2019 SCC Online SC 1657 the Hon’ble Supreme Court, while dealing with the issue of whether the mention of stale cases can be ignored as they were not taken into account, in the order of detention, should be looked into, had held as follows: 23. In the present case, the order of detention states that the fourteen cases were referred to demonstrate the “antecedent criminal history and conduct of the appellant.” The order of detention records that a “rowdy sheet” is being maintained at PS Rain Bazar of Hyderabad City and the appellant “could not mend his criminal way of life” and continued to indulge in similar offences after being released on bail. In the counter-affidavit filed before the High Court, the detaining authority recorded that these cases were “referred by way of his criminal background ...... (and) are not relied upon.” The detaining authority stated that the cases which were registered against the appellant between 2009 and 2016 “are not at all considered for passing the detention order” and were “referred by way of his criminal background only.” This averment is plainly contradictory. The order of detention does, as a matter of fact, refer to the criminal cases which were instituted between 2007 and 2016. In order to overcome the objection that these cases are stale and do not provide a live link with the order of detention, it was contended that they were not relied on but were referred to only to indicate the antecedent background of the detenu. If the pending cases were not considered for passing the order of detention, it defies logic as to why they were referred to in the first place in the order of detention. The purpose of the Telangana Offenders Act, 1986 is to prevent any person from acting in a manner prejudicial to the maintenance of public order. If the pending cases were not considered for passing the order of detention, it defies logic as to why they were referred to in the first place in the order of detention. The purpose of the Telangana Offenders Act, 1986 is to prevent any person from acting in a manner prejudicial to the maintenance of public order. For this purpose, Section 3 prescribes that the detaining authority must be satisfied that the person to be detained is likely to indulge in illegal activities in the future and act in a manner prejudicial to the maintenance of public order. The satisfaction to be arrived at by the detaining authority must not be based on irrelevant or invalid grounds. It must be arrived at on the basis of relevant material; material which is not stale and has a live link with the satisfaction of the detaining authority. The order of detention may refer to the previous criminal antecedents only if they have a direct nexus or link with the immediate need to detain an individual. If the previous criminal activities of the appellant could indicate his tendency or inclination to act in a manner prejudicial to the maintenance of public order, then it may have a bearing on the subjective satisfaction of the detaining authority. However, in the absence of a clear indication of a causal connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future. 16. Following this line of reasoning, it must be held, in the present case also, that the mention of crime no. 453 and 457 of 2020, in the detention order, cannot be treated as having no consequence and it must be held that the filing of such complaints, against the detenu had a bearing on the detention order. The non filing of the records of these cases before the 2nd respondent would have to be considered. 17. In Vasanthu Sumalatha and Others vs. State of Andhra Pradesh Rep. The non filing of the records of these cases before the 2nd respondent would have to be considered. 17. In Vasanthu Sumalatha and Others vs. State of Andhra Pradesh Rep. by its Chief Secretary, Hyderabad and Others, 2015 SCC Online Hyd 790 : (2016) 1 ALT 738 (DB) : (2016) 2 ALD (Cri) 156 a division bench of the erstwhile High Court at Hyderabad, for the State of Telangana and the State of Andhra Pradesh, had held as follows: 41. The subjective satisfaction of the detaining authority is, however, not wholly immune from judicial review. There is an area, limited though it be, within which the validity of the subjective satisfaction can be subjected to judicial scrutiny. As subjective satisfaction, is a condition precedent for exercise of the power conferred on the Executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority. If it is not, the condition precedent would not be fulfilled, and the exercise of power would be illegal. [Khudiram Das (supra)]. Subjective satisfaction notwithstanding, the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention. [Khudiram Das (supra); Bhut Nath Mete (supra)]. If there be found in the Statute, expressly or by implication, matters which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those matters. The authority must call its attention to the matters which it is bound to consider. [Khudiram Das (supra)]. The satisfaction of the authority must be grounded “on materials which are of rationally probative value.” The grounds on which the satisfaction is based must be such as a rational human being can consider as being connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the Statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. [Khudiram Das (supra); Pratap Singh v. State of Punjab, AIR 1964 SC 72 ; Machindar v. King, AIR 1950 FC 129]. 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) 1 ALT 176 (DB) : 2013 Cri. L.J. 585; Durgam Subramanvam v. Government of A.P. (2013) 4 ALT 243 (DB); Kamal Kishore Saini (supra); M. Ahmedkutty (supra)]. Non-placing 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 affected the satisfaction of the detaining authority. [Rushikesh Tanaji Bhoite v. State of Maharashtra, (2012) 2 ALT (Crl.) 14 (SC) : (2012) 3 SCJ 168 : (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 (supra)] 18. A division bench of this Court, in its judgment dated 10.11.2023, in W.P. No. 26549 of 2023, in the case of D. Bhavana vs. State of Andhra Pradesh and Others, following Vasanthu Sumalatha and Others vs. State of Andhra Pradesh Rep. by its Chief Secretary, Hyderabad and Others had held that non production of such material would be fatal to the detention order: 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 out of 4 cases which were taken for consideration, the detenue was granted bail in almost 3 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. 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 36 to 192 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. 19. We are in respectful agreement with the above judgments and hold that the order of detention, dated 16.03.2024, is invalid as it considered the effect of crime no. 453 and 457 of 2020, on the detenu, without the relevant material being placed before the 2nd respondent. The order of detention also suffers from the flaw of the bail cancellation application and its order of rejection, in crime No. 201 of 2023, not being placed before the 2nd respondent. 20. For the aforesaid reasons, this writ petition is allowed, without costs, by setting aside the order of detention, bearing No. REVMAGLOPDL (PRC)/13/2023-SA (MAGL-1) KCO, dated 16.03.2024, passed by the 2nd respondent and consequential proceedings of the 1st respondent vide G.O.Rt. No. 776 General Administration (SC-I) Department dated 25.04.2024, with a further direction to the respondents to forthwith release the detenu Sri Konduri Manikanta @ Pandu @ KTM Pandu, if he is not needed for any other case. 21. As a sequel, pending miscellaneous applications, if any, shall stand closed.