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2024 DIGILAW 14 (AP)

Seesali Durga v. State of Andhra Pradesh

2024-01-02

KIRANMAYEE MANDAVA, U.DURGA PRASAD RAO

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JUDGMENT : Mrs. KIRANMAYEE MANDAVA, J 1. Present writ of habeas corpus is filed challenging the order of detention passed by the 2nd respondent in No.REV02-MGSTOLWOD/39/2023-MAGCCLA dated 24.07.2023, as confirmed by the 1st respondent in G.O. Rt. No.1847 dated 19.09.2023. 2. The petitioner is wife of the detenue viz., Seesali Ramesh. Petitioner contends that the order of detention was passed against her husband by the 2nd respondent, treating him as "drug offender" as defined under Section 2(f) of the provisions of the A.P. Prevention of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short Act 1 of 1986). The order of detention was approved and confirmed vide G.O. Rt. No.1847 proceedings of the 1st respondent dated 01.08.2023 and 19.09.2023. 3. The following cases, which were registered against the detenue, under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985, were taken into consideration while passing the order of detention : Sl. No. Cr.No. & Sec. of Law Date of offence Sl. No. Cr.No. & Sec. of Law 1 Cr.No.166 of 2021 under Section 20(b)(ii)(C) read with Section 8(C) of NDPS Act, 1985 of Madugula Police Station. 13.06.2021 1 Cr.No.166 of 2021 under Section 20(b)(ii)(C) read with Section 8(C) of NDPS Act, 1985 of Madugula Police Station. 2 Cr.No.374 of 2022 under Section 20(b)(ii)(C) read with 8(c) of NDPS Act, 1985, of II Town Police Station, Visakhapatnam City. 12.07.2022 2 Cr.No.374 of 2022 under Section 20(b)(ii)(C) read with 8(c) of NDPS Act, 1985, of II Town Police Station, Visakhapatnam City. 3 Cr.No.13 of 2023 under Section 20(b)(ii)(C) read with Section 8(c) of NDPS Act, 1985 of Pedabayalu Police Station. 11.05.2023 3 Cr.No.13 of 2023 under Section 20(b)(ii)(C) read with Section 8(c) of NDPS Act, 1985 of Pedabayalu Police Station. 4 Cr.No.74 of 2023 under Section 20(b)(ii)(C) read with Section 8(c) of NDPS Act, 1985 of Paderu Police Station. 04.06.2023 4 Cr.No.74 of 2023 under Section 20(b)(ii)(C) read with Section 8(c) of NDPS Act, 1985 of Paderu Police Station. 4. The petitioner contends that in two cases viz., Crime Nos.166 of 2021 and 374 of 2022, the detenue was granted bail and the sponsoring authority did not place the said material before the detaining authority. And that the said cases were registered against him based on the source of so called confessional statement of the co-accused in the said cases. The petitioner contends that in two cases viz., Crime Nos.166 of 2021 and 374 of 2022, the detenue was granted bail and the sponsoring authority did not place the said material before the detaining authority. And that the said cases were registered against him based on the source of so called confessional statement of the co-accused in the said cases. It is her further contention that the material relied upon by the detaining authority and the subsequent developments such as the approval of the order of preventive detention were not supplied to the detenue within the stipulated period. Further, the provisions of the respective Acts under which, the crimes were registered against him would provide for necessary penal action against the detenue if he was to be found guilty and therefore resorting to the imposition of detention is a deterrent act which curtails the freedom of an individual. Hence, the writ petition. 5. The 2nd respondent filed his counter-affidavit. He states that in Cr.No.374 of 2022, the detenue was arrested on 12.07.2022; in Cr.No.13 of 2023, PT warrant was executed against the accused and he was not arrested; in Cr.No.74 of 2023, he was arrested on 20.07.2023; in Cr.No.166 of 2021, he was arrested and was released. He states that the detenue did not apply to the authorities seeking supply of copies. He further states that the detenue had appeared before the advisory Board and represented his case. Relying on the decision of the Hon'ble Apex Court in the case of Sunila Jain v. Union of India and another, (2006) 3 SCC 321 , he contends that mere non-furnishing of bail orders would not vitiate the detention order. 6. Heard Sri D. Purna Chandra Reddy, learned Counsel for the petitioner and the learned Special Government Pleader Sri Khader Basha representing the learned Advocate General. 7. The learned Counsel for the petitioner submits that the sponsoring authority did not furnish the relevant information before the detaining authority as regards the bail orders that were granted in the case of the petitioner. 7. The learned Counsel for the petitioner submits that the sponsoring authority did not furnish the relevant information before the detaining authority as regards the bail orders that were granted in the case of the petitioner. And further submits that the detaining authority, failed to record his satisfaction, to the point, that on the basis of the material placed before him, there is every likelihood of the detenue being released on bail, and upon such release there is every probability that the detenue would continue to indulge in committing such offences, in prejudice to the public order. He further submits that non furnishing of bail order copies to the petitioner would also vitiate the proceedings inasmuch as, the non-furnishing of bail bonds deprives the detenue from making an effective representation before the advisory Board, defeating the very objective of Section 8 of Act 1 of 1986. The Counsel further relies on the decision of this Court passed in the case of K. Kameswari v. State of A.P. and others, WP No.25532 of 2023. 8. The learned Counsel for the respondent would support the orders of the 1st and 2nd respondents and contends that non-furnishing of bail orders would not vitiate the proceedings and relies on the decision of the Apex Court in the case of Sunila Jain's case (supra). 9. Considered the rival submissions. Non-application of mind by the detaining authority while passing the order of detention, would manifest in the following observations. As noted from the grounds of detention which is verbatim of the proceedings of the sponsoring authority, the detenue was in judicial custody in Cr.No.374 of 2022 and in Cr.No.166 of 2021. However, according to the petitioner, in these two crimes, the detenue was enlarged on bail. The said factum was not taken into consideration, rather the detaining authority was ignorant of the said fact, while passing the order of detention. The detenue was also not provided with the copies of the bail orders, in order to enable him to make a representation. Surprisingly, the 2nd respondent at Para 21 of his counter-affidavit, as a reply to the averment of the petitioner regarding non-furnishing of the bail orders, has stated that the detenue did not apply to the concerned authorities for copies of the bail orders. The detaining authority has totally ignored the mandate of the statute. Surprisingly, the 2nd respondent at Para 21 of his counter-affidavit, as a reply to the averment of the petitioner regarding non-furnishing of the bail orders, has stated that the detenue did not apply to the concerned authorities for copies of the bail orders. The detaining authority has totally ignored the mandate of the statute. The material papers filed alongwith the counter-affidavit of the 2nd respondent is also not containing the bail orders. This strengthens the fact that the copies of the bail orders were not furnished to the detenue and the same were not taken into consideration while passing the order of detention. The failure on the part of the sponsoring authority in not placing the bail orders before the detaining authority, and non-consideration of the same by the detaining authority, has vitiated the order of detention. In WP No.17210 of 2022 in a similar set of facts, this Court has observed as under : "8. ....xxxx 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. In Vasanthu Sumalatha, 2015 SCC Online Hyd. 790 = 2016 (1) ALT 738 (DB), 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 Cri. LJ 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 and M. Ahamedkutty v. Union of India, 1990 (1) SCR 209 = (1990) 2 SCC 1 . (V. Muragesh v. Collector and District Magistrate, Chittoor, 2013 Cri. LJ 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 and M. Ahamedkutty v. Union of India, 1990 (1) SCR 209 = (1990) 2 SCC 1 . 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 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. ..xxxx" While arriving at a satisfaction for passing of the order of detention, if, the factum of granting of bail to the detenue, and the conditions imposed thereunder is ignored, the same would amount non-consideration of the relevant factor and the satisfaction arrived thereon, manifests non-application of mind. 10. As analysed hereinabove by us, the non-consideration of the bail orders and non-furnishing of the same to the detenue, and further, failure of the detaining authority in taking into consideration the factum of judicial custody of the detenue, and its failure in recording a satisfaction to the effect that, there is every possibility of the detenue being released on bail and that if he is so released, there is every likelihood that he would continue to indulge in commission of similar offences, etc., would warrant his detention, clearly deprived the detenue from making an effective representation as guaranteed under Article 22 of the Constitution of India, and the same is in violation of the fundamental rights guaranteed under the Constitution. In the absence of such legal mandate, the so called "satisfaction" as arrived, would be redundant, requiring the order of detention to be set aside. In the absence of such legal mandate, the so called "satisfaction" as arrived, would be redundant, requiring the order of detention to be set aside. In a similar situation this Hon'ble Court in the case of Kamarunnisa, WP No.1803 of 2021, has observed as under : "9. On a reading of the above, does not, in our view, show that there was any apprehension or any possibility of the detenu being released on bail. As observed by the Hon'ble Apex Court in Kamarunnisa's v. Union of India, (1991) 1 SCC 128 , even in a case of a person in custody, a detention order can be validly passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. From a reading of the above, it is very much evident, the detaining authority was aware the detenu was in custody as on the date of passing of the order, but, there is no material placed before him to show that there is every likelihood of he being released on bail. Merely saying that there is every likelihood of detenu being granted/released on bail, as he was released in other cases may not satisfy the test as laid down in Champion R. Sangma v. State of Meghalaya, (2015) 16 SCC 253 and Kamarunnisa's case (supra). Though the petitioner has been released in 7 out of 10 cases, no material has been placed on record to show that he has made any application seeking release on bail in the following three cases : (i) Crime No.55 of 2020 of T. Sundupalli P.S.; (ii) Crime No. 150 of 2020 of Sidhout P.S.; and (iii) Crime No.122 of 2020 of Vontimitta P.S." 11. In view of the above, and by placing reliance on the decisions of this Court in WP Nos.25532 of 2023, 17210 of 2022 and WP No.1803 of 2021, the writ petition is accordingly allowed and the detention order passed by the 2nd respondent in REV02-MGSTOLWOD/39/2023-MAG-CCLA dated 24.07.2023, as confirmed by the 1st respondent in G.O. Rt. No.1847 General Administration (Spl. [Law and Order]) Department, dated 19.09.2023 is hereby set aside and the detenue namely, Seesali Ramesh S/o. late Demulu is directed to be released forthwith by the respondents, if the detenue is not required in any other cases. 12. No costs. As a sequel, interlocutory applications pending, if any, in this case shall stand closed.