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2024 DIGILAW 1352 (AP)

Shabana v. Collector And District Magistrate

2024-09-24

HARINATH N., R.RAGHUNANDAN RAO

body2024
ORDER: (Harinath N., J.) : The writ petition is filed challenging the order of detention vide C1/1753/M/2023, dated 20.12.2023 issued by the 1st respondent. 2. The petitioner is the wife of detenu who was detained vide order of detention dated 20.12.2023. The 2nd respondent confirmed the detention order and issued G.O.Rt.No.294 General Administration (SC.I) Department, dated 07.02.2024. The detenu was involved in the following 06 cases. S.No. Crime No. Police Station Offences under Sections 1. Cr.No.228 of 2014 Atmakur Police Station Sections 324 read with 34 IPC and Section 3(i)(x) SC/ST POA Act 2. Cr.No.124 of 2015 Atmakur Police Station Section 323, 307 read with 34 IPC 3. Cr.No.103 of 2016 Atmakur Police Station Section 392 IPC 4. Cr.No.213 of 2018 Atmakur Police Station Section 326 IPC 5. Cr.No.108 of 2021 Atmakur Police Station Section 3(i)(r)(s) of SC/ST of POA Act 6. Cr.No.307 of 2021 Atmakur Police Station Section 457, 380 IPC 3. The learned counsel for the petitioner submits that the sponsoring authority has suppressed the vital information to the detaining authority. It is the specific case of the petitioner that the petitioner was released on bail in two cases and that the bail orders were not furnished to the 1st respondent. 4. It is also the contention of the petitioner that not forwarding the bail orders to the 1st respondent has eclipsed the 1st respondent from considering the facts and circumstances for grant of bail. It is also submitted that there is a possibility for the respondents to take a different view had the detaining authority furnished all information without suppressing the relevant material. 5. It is also stated that out of 06 cases the detenu was arrested in Cr.No.34 of 2023 and Cr.No.106 of 2023. He was produced through a P.T. Warrant in Cr.No.107 of 2023. In Cr.No.146 of 2022, Cr.No.204 of 2023 and Cr.No.296 of 2023 he was served notices under Section 41-A Cr.P.C., 6. It is submitted that, the detention order was passed without application of the standard safeguards. It is also submitted that three other cases where notices under Section 41-A Cr.P.C., were issued would itself indicate that the police did not consider arrest of the detenu necessary in those cases and issued Section 41-a Cr.P.C., and instead of proceeding under section 41-b Cr.P.C., 7. It is also submitted that three other cases where notices under Section 41-A Cr.P.C., were issued would itself indicate that the police did not consider arrest of the detenu necessary in those cases and issued Section 41-a Cr.P.C., and instead of proceeding under section 41-b Cr.P.C., 7. It is submitted that, the investigating officers in Cr.Nos.146 of 2022, 204 of 2023, 296 of 2023 of Atmakur Police Station were convinced that the petitioner would comply with the conditions stipulated under Section 41-a of Cr.P.C., It is also submitted that the detenu was acquitted in Cr.No.146 of 2022 as the matter was compromised, the copy of the Award was not forwarded to the detaining authority. There are no grounds for branding the detenu under the definition of Goonda as defined under Section 2(g) of the Andhra Pradesh Prevention of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (herein after be referred as ‘the Act’). 8. The State in their counter has narrated the details of all cases which were registered against the detenu. It is also submitted that the detenu was involved in Bodily Offences, offences against Woman and simple hurt cases without respecting law. It is also submitted that the police are maintaining a rowdy sheet bearing No.627 at Atmakur Police Station and that his activities would come within the definition of Goonda as defined under Section 2(g) of the Act. 9. It is also submitted that the detenu was involved in six other cases during the year 2014 and 2021 and that all those cases were only referred to in the order of detention, but were not relied upon for passing the order of detention. It is also submitted that, the procedure established under law was followed for passing the order of detention and ample opportunity was granted to the detenu to make a representation to the concerned authority and that the detenu was also given an opportunity of personal hearing. It is submitted that the detenu is a habitual criminal and became incorrigible. The only option left with the law enforcing agencies is to detain him by issuing the detention order, which is completely in accordance with law. 10. The learned counsel for the petitioner placed reliance on the Judgment of the composite High Court at Hyderabad passed in the matter of Vasanthu Sumalatha Vs. The only option left with the law enforcing agencies is to detain him by issuing the detention order, which is completely in accordance with law. 10. The learned counsel for the petitioner placed reliance on the Judgment of the composite High Court at Hyderabad passed in the matter of Vasanthu Sumalatha Vs. State of Andhra Pradesh, MANU/AP/0602/2015, wherein, at paragraph 7, it was held as follows ; “7. The Constitutional imperatives of Article 22(5), and the dual obligation imposed on the authority making the order of preventive detention, are twofold: (1) The detaining authority must, as soon as may be, i.e. as soon as practicable, after the detention order is passed, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention, (M. Ahamedkutty v. Union of India ; Mangalbhai Motiram Patel v. State of Maharashtra ; Kamleshkumar Ishwardas Patel v. Union of India), i.e., to be furnished with sufficient particulars to enable him to make a representation which, on being considered, may obtain relief to him. The inclusion of an irrelevant or non-existent ground, among other relevant grounds, is an infringement of the first of the rights and the inclusion of an obscure or vague ground, among other clear and definite grounds, is an infringement of the second of the rights. In either case there is an invasion of the constitutional rights of the detenu entitling him to approach the Court for relief. The reason why the inclusion of even a simple irrelevant or obscure ground, among several relevant and clear grounds, is an invasion of the detenu’s constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds, and it cannot substitute its objective decision for the subjective satisfaction of the detaining authority. (Mohd. Yousuf Rather v. State of J&K”. 11. The subjective satisfaction for passing the order of detention would depend on case to case basis. The authority passing the order of detention has to ensure that the procedural safeguards before passing the detention order ought to be followed scrupulously. 12. Preventive detention is a method of deterring an antisocial element from disturbing the peace and fabric of the society. The subjective satisfaction for passing the order of detention would depend on case to case basis. The authority passing the order of detention has to ensure that the procedural safeguards before passing the detention order ought to be followed scrupulously. 12. Preventive detention is a method of deterring an antisocial element from disturbing the peace and fabric of the society. However, the extreme action on part of the State denying the fundamental right in the form of detaining him for a considerable period of time has to be exercised by following the necessary safeguards. On the other hand, it is the responsibility of the State to ensure peace in the society and strive towards a crime free society. The State has an equal responsibility of protecting the citizens’ fundamental rights. The antisocial elements definitely infringe upon the fundamental rights of the citizens in the society to a large extent. 13. Passing an order of detention without appropriate grounds and without reference to the conduct of the detenu would have to be set aside. The detention order must enlist the specific reasons for detaining the detenu which withstand the judicial review and oversight. 14. The officers concerned in proposing and issuing orders of detention are the instrumentalities of the state. It is essential for them to prepare a proper check-list and review each case of detention on its individual merits before proposing the issuance of a detention order. It is a bounden duty of the officer proposing to the competent authority to pass an order of detention against anyone to submit to such authority all and relevant material relating to the offence(s) registered against the proposed detenu. 15. It is the bounden duty of the detaining authority to ensure that they consider the material available in detail and pass necessary orders by incorporating the relevant aspects imposing the order of detention. Non-furnishing of relevant material to the detaining authority and issuance of the order of detention without considering the relevant material has to be set aside as the same is an arbitrary act on part of the state. 16. Non-furnishing of relevant material to the detaining authority and issuance of the order of detention without considering the relevant material has to be set aside as the same is an arbitrary act on part of the state. 16. The preamble of the AP Prevention of Dangerous Activities, Bootleggers, Dacoits, Drug offenders, Goondas, Immoral Traffic offenders and Land Grabbers Act, 1986 is as follows ; “An act to provide for preventive detention of bootleggers, dacoits, drug offenders, goondas, immoral traffic offenders and land grabbers for preventing their dangerous activities prejudicial to the maintenance of public order. Whereas public order is adversely affected every now and then by the dangerous activities of certain persons, who are known as bootleggers, dacoits, drug offenders, goondas, immoral traffic offenders and land-grabbers. And whereas having regard to the resources and influence of the persons by whom, the large scale on which, and the manner in which the dangerous activities are being clandestinely organised and carried on in violation of law by them, as bootleggers, dacoits, drug-offenders, goondas, immoral traffic offenders or land-grabbers in the State of Andhra Pradesh and particularly in its urban areas, it is necessary to have a special law in the State of Andhra Pradesh to provide for preventive detention of these six classes of persons and for matters connected therewith”. 17. The Act is enacted keeping in view the necessity of keeping the dangerous elements in the society under detention to deter them from disrupting the public order. However, the purpose of the Act is defeated by the lethargic attitude of the officers concerned in completely disregarding the prescribed safeguards which ought to have been followed before passing the detention orders. 18. The order of detention which is under challenge in the writ petition is evidently passed without considering the relevant material which was not furnished to the detaining authority by the concerned officer. It is evident that the detaining authority has not detailed the acquittal/Lok Adalat compromise one case. 19. There is no justification for passing the order of detention except for stating that the order of detention is passed to prevent the detenue from indulging in dangerous, clandestine and illegal activities prejudicial to the maintenance of public order. 20. It is evident that the detaining authority has not detailed the acquittal/Lok Adalat compromise one case. 19. There is no justification for passing the order of detention except for stating that the order of detention is passed to prevent the detenue from indulging in dangerous, clandestine and illegal activities prejudicial to the maintenance of public order. 20. This cannot be considered as subjective satisfaction when the details of the acquittal/Lok Adalat compromise in one case and issuance of Section 41-a Cr.P.C., notice in three of the cases and other factors are missing in the detention order. The detention order has to be set aside. In view of the law laid down by the Hon’ble Supreme Court in Rekha Vs. State of Tamilnadu, (2011) 5 SCC 244 and Champion R. Sangma Vs. State of Meghalaya and Another, 2015 ALL MR (Cri) 3673 (S.C.), the order of detention vide proceedings C1/1753/M/2023, dated 20.12.2023 issued by the 1st respondent deserves to be set aside. 21. For the aforesaid reasons, the writ petition is allowed and the order of detention vide proceedings C1/1753/M/2023, dated 20.12.2023 which was confirmed by the 2nd respondent vide G.O.Rt.No.294 General Administration (SC.I) Department, dated 07.02.2024 is hereby set aside and consequently the detenu by name Pathan Nabi Khan @ Nabi, S/o.late Rasool Khan, shall be set at liberty, if he is not required in any other case. There shall be no order as to costs. As a sequel pending miscellaneous petitions, if any, in this writ petition shall stand closed.