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2024 DIGILAW 235 (AP)

Manda Mariyamma v. State of Ap

2024-02-12

KIRANMAYEE MANDAVA, U.DURGA PRASAD RAO

body2024
ORDER Kiranmayee Mandava, J. - This Writ Petition is filed for issuance of Habeas Corpus by declaring the proceedings of the 2nd respondent, in detaining Sri Manda David, S/o. Manda Adam, vide order dated 22.05.2023 in E Office No. 129/2023/C1, as confirmed by the 1st respondent in G.O.Rt.No. 1448 General Administration (SC.I) Department, dated 24.07.2023, as illegal, unconstitutional and sought for set aside of the same and set the detenue at liberty. 2. The writ petitioner is mother of the detenue, Sri Manda David. The petitioner contends that the 2nd respondent vide proceedings in E Office. No. 129/2023/C1, dated 22.05.2023, passed an order of detention under Sec 3(1) & (2) read with Sec.2(f) of the A.P Prevention of Dangerous Activities of Bootleggers and Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, (Act No. 1 of 1986), placing the detenue under detention in Central Prison, Rajamahendravaram, East Godavari District. The said order of detention was confirmed by the 1st respondent vide G.O.Rt.No. 1448, dated 24.07.2023 treating the detenue as 'drug offender' as defined under Sec.2(f) of the A.P. Prevention of Bootleggers and Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986. The following are the cases, which have been taken into consideration by the 2nd respondent, while placing the detenue under detention: S.No Crime No. Provision of law Date of offence Police Station 1. 305/2022 U/Sec.8 (c) r/w 20(b) (ii)(B) of NDPS Act, 1985. 24.07.2022 Nagarampalem PS 2. 425/2022 U/Sec.8 (c) r/w. 20 (b) (ii)(B) NDPS Act, 1985 10.10.2022 Nagarampalem PS 3. 72/2023 U/Sec.143,147,148,3 07,324 r/w 149 IPC, Sec 8 (c) r/w 20 (b) (ii) B) NDPS Act, 1985 10.03.2023 Nagarampalem PS 3. The petitioner contends that out of three (3) cases registered against him, in all the cases, the detenue was granted bail. The detaining authority did not take into consideration the said fact while arriving at the satisfaction. The petitioner contends that copies of bail orders were not furnished to the detenue enabling him to submit his representation. 4. The 2nd respondent filed his counter affidavit, stating that the detenue is habitual offender and his committing offences affecting the public order involving in illegal possession and sale of prohibited Ganja, Cannabis (Hemp). With a view to prevent the detenue from acting in a manner prejudicial to the public order, the order of detention was passed. 4. The 2nd respondent filed his counter affidavit, stating that the detenue is habitual offender and his committing offences affecting the public order involving in illegal possession and sale of prohibited Ganja, Cannabis (Hemp). With a view to prevent the detenue from acting in a manner prejudicial to the public order, the order of detention was passed. The quantum of punishment provided under regular law under which the crimes were registered against the detenue, would not be sufficient to deter the criminal activities of the detenue. 5. Heard learned counsel for the petitioner, Sri K. Vijaya Raju, and Sri Khader Basha, Special Government Pleader, representing the learned Advocate General for the respondents. 6. The primary contention of the learned counsel for the petitioner is that the detenue was released on bail as on the date of detention and the bail order copies have not been placed by the sponsoring authority before the detaining authority, which makes the order of detention an invalid one, as being passed without considering the material facts. In support of her contentions, she relies on the decision of this Court in W.P.No. 16187 of 2023, wherein it is observed at Para No. 14, as under: '14. This Court in W.P. No. 16861 of 2023 relied on the judgment of the composite High Court in S. Sathu v. Government of Andhra Pradesh, represented by its Chief Secretary, and the judgments of the Apex Court in Union of India & Ors v. Manoharlal Narang, Mehrunissa v. State of Maharashtra, Vasanthu Sumalatha v. State of Andhra Pradesh and others, M. Ahamedkutty v. Union of India and another and Anant Sakharam Raut v. State of Maharashtra wherein, the Apex Court has held that non consideration of the bail order would amount to non application of mind as non consideration of relevant and important material is fatal to the detention order and if the detaining authority had considered the order, it may have persuaded him to desist from passing the order of detention.' 7. The petitioner further contends that the copies of the bail orders were not furnished to the detenue to enable him to make an effective representation. 8. On the other hand, the learned counsel for the respondents would submit that mere non furnishing of bail order copies would not vitiate the proceedings. The petitioner further contends that the copies of the bail orders were not furnished to the detenue to enable him to make an effective representation. 8. On the other hand, the learned counsel for the respondents would submit that mere non furnishing of bail order copies would not vitiate the proceedings. He placed reliance on the decision of the Hon'ble Supreme Court in the case of Sunila Jain Vs. Union of India, (2006) 3 SCC 321 . 9. We have given our anxious consideration to the contentions of the parties on either side. With regard to the contention of the petitioner that the bail order copies were not furnished to the detenue to enable him to make an effective representation, it has been time and again held by this Court and the Apex court that non furnishing of the bail orders to the detenue, would deprive his right to make an effective representation to the advisory Board. In W.P.No. 26549 of 2023, this Court (wherein both of us were parties to the said judgment), observed as under: '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 3 out of 4 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 been brought to the notice of the latter, considering that conditional bails were granted in favour of detenue and that his movement was already restricted by the judicial orders, the detaining authority would not have ordered preventive detention. We find considerable force in the above argument. Had such information been brought to the notice of the latter, considering that conditional bails were granted in favour of detenue and that his movement was already restricted by the judicial orders, the detaining authority would not have ordered 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. 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. 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. (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. 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. 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 facts of the present case, from a perusal of the grounds of detention, though the detaining authority has referred to the factum of granting of bail to the detenue in three (3) cases, there has been no discussion on the conditions of bail granted in three (3) cases and as to how the detenue has violated the conditions of the said bail orders. And further a perusal of the record, submitted by Sri Khader Basha, the learned Special Government Pleader, representing the learned Advocate General, said to have been furnished to the detenue do not contain the bail order copies, it is therefore evident that neither the sponsoring authority has placed the copies of the bail orders before the detaining authority nor the same were furnished to the detenue. In similar set of facts, this Court, in W.P. No. 26549 of 2023, referred supra, observed as under: '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. 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.' 11. In the light of the above jurisprudence, the opinion arrived at by the detaining authority while ordering detention without referring to the bail orders and the conditions of the bail granted would amount to non consideration of the relevant facts and non application of mind to the facts of the case rendering the satisfaction thus arrived at, otiose. Further, non supply of the bail order copies to the detenue, to enable him to make an effective representation to the advisory board would vitiate the order impugned. Under the said circumstances, the order of the detaining authority, is therefore required to be set aside. 12. Accordingly, the Writ Petition is allowed and the detention order in E Office No. 129/2023/C1, dated 22.05.2023 passed by 2nd respondent and consequential confirmation order vide G.O.Rt. No. 1448, General Administration (SC.I) Department, dated 24.07.2023, issued by the 1st respondent are set aside and the detenue namely, Sri Manda David, S/o. Manda Adam, 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.