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2024 DIGILAW 277 (AP)

Jambu Sujatha v. State of Andhra Pradesh

2024-02-22

KIRANMAYEE MANDAVA, U.DURGA PRASAD RAO

body2024
JUDGMENT ; Mrs. KIRANMAYEE MANDAVA, J : 1. This writ petition is filed for issuance of habeas corpus by declaring the proceedings of the 3rd respondent, in detaining Sri Jambu Ramesh, S/o. Balaiah vide order dated 27.07.2023 in No.Re:C1/309/M/2023, as confirmed by the 1st respondent in G.O. Rt. No.1916, dated 25.09.2023, as illegal and unconstitutional. 2. The writ petitioner is wife of the detenue, Sri Jambu Ramesh. The petitioner submits that the 3rd respondent vide proceedings dated 27.07.2023, passed an order of detention under Section 3(1) & (2) of the A.P. Prevention of Dangerous Activities of Bootleggers and Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, (for short "Act No.1 of 1986"), placing the detenue under detention in Central Prison, Cuddapah. The said order of detention was confirmed by the 1st respondent in G.O. Rt. No.1916, dated 25.09.2023, treating the detenue as 'Drug Offender' as defined under Section 3(1) and 3(2) of the Act 1 of 1986. The following are the cases that have been taken into consideration by the 2nd respondent, while placing the detenue under detention : Sl. No. Crime No. Provision of law Date of offence Police Station 1. 253/2021 Under Sections 272, 273 read with 34 IPC, Section 20(a)(b)(II)(A) of NDPS Act, 1985 10.11.2021 Porumamilla P.S. 2. 105/2022 Under Sections 272, 273 read with 34 IPC, Section 20(a)(b)(II)(A) of NDPS Act, 1985 24.05.2022 Porumamilla P.S. 3. 309/2022 Under Section 8(c) read with 20(b)(II)(B) of NDPS Act, 1985 31.10.2022 Proddutur II Town U/G P.S. 4. 54/2023 Under Section 20(b)(II)(B) of NDPS Act, 1985 19.05.2022 Mydukur P.S. 5. 69/2023 Under Section 8(c) read with 20(b)(II)(C) of NDPS Act, 1985 24.03.2023 Mydukur P.S. 3. The petitioner contends that five (5) cases were registered against the detenue under the provisions of Sections 272 and 273 read with 34 IPC, Section 20(a)(b)(II)(A) of Narcotic Drugs and Psychotropic Substances Act, 1985. It is stated that in all the 5 cases bails were granted, when the 5th crime was registered on 24.03.2023, the detenue was in judicial custody. It is represented that regular bail was granted in four (4) cases and in one case, the detenue was issued with notice under Section 41-A of Cr.P.C. The petitioner primary contends that there is no proximity between the crimes registered. Following is the detailed chart of the crimes that were registered against the petitioner : Sl. It is represented that regular bail was granted in four (4) cases and in one case, the detenue was issued with notice under Section 41-A of Cr.P.C. The petitioner primary contends that there is no proximity between the crimes registered. Following is the detailed chart of the crimes that were registered against the petitioner : Sl. No. Crime No. Date of offence 1. 253/2021 10.11.2021 2. 105/2022 24.05.2022 3. 309/2022 31.10.2022 4. 54/2023 19.05.2022 5. 69/2023 24.03.2023 4. Between the registration of the 1st crime and the 2nd crime there is a gap of 6 months, similarly between the 2nd and 3rd crime, there exists a gap of 5 months. The petitioner contends that lack of proximity between the offences, and in the absence of the reasoning of the detaining authority as to why stale incidents were also required to be taken into consideration, the order of detention would be invalid. 1. The 3rd respondent filed his counter-affidavit, stating that the detenue had indulged in five (5) cases. He is a habitual drug offender within the meaning of Section 2(f) of the "Act 1 of 1986". It is further stated that the offences committed are not against an individual, but are against the society, adversely affecting the public at large. It is stated that as per the Full Bench decision of this Court in Doddi Sharadha v. Collector and District Magistrate, Hyderabad District, Hyderabad and others, reported in MANU/AP/0045/2005, in terms of Explanation to Section 2(a), "Public order" would also mean "danger to public health". It is his further contention that peddling ganza is a very serious crime, if, the quantity recovered from these drug peddlers, goes into circulation the same would create havoc causing endanger to physical and mental health of especially, the youth. It is contended that the detenue did not show any regretful attitude after release on bail, and is continuing in commission of same offences, which are prejudicial to the maintenance of public order. All the cases which were registered on 13.11.2021, 24.05.2022, 31.10.2022, 04.03.2023 and 24.03.2023 are proximate to each other. It is contended that the detenue did not show any regretful attitude after release on bail, and is continuing in commission of same offences, which are prejudicial to the maintenance of public order. All the cases which were registered on 13.11.2021, 24.05.2022, 31.10.2022, 04.03.2023 and 24.03.2023 are proximate to each other. He relied on the decision of the Apex Court in the case of Collector and District Magistrate v. Sangala Kondamma, (2005) 3 SCC 666 , wherein it was held that "in that process some of the incidents/grounds may not be proximate to the order of detention, if they are proximate to each other, the fact that initial few incidents are not proximate the order of detention would not make the order of detention bad". 2. It is further stated that since the activities of the detenue are prejudicial to maintenance of public order, unless he is prevented from involving in commission of such offences, he would continue to engage, in commission of similar offences. It is stated that with a view to prevent the detenue from acting in a manner prejudicial to the public order, the order of detention was passed. 5. Heard, Sri Bhanuprasad, learned Counsel for the petitioner, and Sri Khader Basha, the learned Special Government Pleader, representing the learned Additional Advocate General, for the respondents. 6. The foremost submission of the learned Counsel for the petitioner is that there is no proximity between the crimes registered against the petitioner. The learned Counsel for the petitioner submits that the detaining authority has taken into consideration the stale incidents while concluding that the detenue is a "drug offender" within the meaning of Section 2(f) of Act 1 of 1986. In support of his contention, he relies on the decision of the Apex Court in the case of Sushanta Kumar Banik v. State of Tripura and others, 2022 Live Law (SC) 813 and places specific reliance on Para No.28 of the said decision, wherein, it is observed as follows : "28. In support of his contention, he relies on the decision of the Apex Court in the case of Sushanta Kumar Banik v. State of Tripura and others, 2022 Live Law (SC) 813 and places specific reliance on Para No.28 of the said decision, wherein, it is observed as follows : "28. The preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and, therefore, in prevention detention jurisprudence whatever little safeguards the Constitution and the enactments authorizing such detention provide assume utmost importance and must be strictly adhered to." 7. On the other hand the learned Special Government Pleader contends that in preventive detention cases relating to drug offences, there cannot be any distinction between commercial quantity and less quantity. It is further contended that the activities of the petitioner would cause hindrance to maintenance of public order. He further contends that the judgment relied upon by the learned Counsel for the petitioner in the case of Sushanta Kumar Banik v. State of Tripura and others (supra), would not apply to the present case. 8. A careful perusal of the list of crimes that were registered against the petitioner, shows that there is a gap of six (6) months between the 1st and 2nd offence and nearly five (5) months gap between 2nd and 3rd offence and a gap of around five (5) months between 3rd and 4th offence. The 4th and 5th offence seems to be in close proximity. From the 5th offence to the date of detention, there is again a gap of four (4) months. 9. This Court in the case of S. Jayamma v. The Collector and District Magistrate, Cuddapah and another, 2004 (2) APLJ 71 (HC), held as under : "13. From the survey of the aforesaid decisions, it is observed by the Supreme Court time and again that while it is open for the detaining authority to pass orders of detention, on the basis of subjective satisfaction, but at the same time stale incidents and events which are not proximate in time having no rationale nexus to the alleged pre-judicial act would vitiates the detention order. 14. 14. It is also settled law that even if one stale and not proximate ground is taken into consideration in arriving at the subjective satisfaction, the detention order in its entirety becomes unsustainable. There is no provision in the Act on hand similar to Section 5-A of the Conversation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 where the grounds are severable. In such circumstances, it becomes difficult to discern as to which ground 10 weighed with the detaining authority while passing the detention order. 15. The issue required to be adjudicated is whether the reference in the detention orders regarding the past conduct of the detenue for the purpose of arriving the propensity of criminal acts of the detenue would vitiate the detention order. The judgments are clear on this aspect, which are referred to above. The relevancy and proximity of time are sine quo non for successfully sustaining the order of detention. No hard and fast rule can be fixed and each case has to be decided on its own merits. The Supreme Court considered gap of sixteen months between the offending acts and the detention order and set aside the order of detention holding that the order of detention was based on stale incidents. Therefore, the proximity in time should provide a rational nexus between the incident relied on and the satisfaction arrived at. While there is no prohibition to consider the past events, at the same time, there should be continuous link of events coupled with proximity of time. Under these circumstances only the order of detention would be immune from attack. Accordingly, we answer the reference as follows : While there is no specific bar for the detaining authority to refer to the past events, but at the bare time such events should have a close and continuous link and proximity so as to provide a rational nexus between the incidents relied on and the satisfaction arrived at. 10. And the Hon'ble Supreme Court in the case of Khaja Bilal Ahmed v. The State of Telangana, AIR 2019 Online SC 1808, observed as under : "13. The order of detention in the present case contains a reference to fourteen cases which were instituted against the appellant between 2007 and 2016. 10. And the Hon'ble Supreme Court in the case of Khaja Bilal Ahmed v. The State of Telangana, AIR 2019 Online SC 1808, observed as under : "13. The order of detention in the present case contains a reference to fourteen cases which were instituted against the appellant between 2007 and 2016. The chart provided on behalf of the State Government which has been extracted earlier indicates that out of the fourteen cases, five cases which pertain to 2012 were transferred to the SIT for investigation; there being no change in that position. Four cases pertaining to 2007 are pending trial. The appellant has been acquitted in four cases of 2009, 2011 and 2012. The case of 2016 was compromised in a Lok Adalat on 8th September, 2017. 14. In Sama Aruna v. State of Telangana, 2017 (2) ALD (Crl.) 388 (SC), this Court while construing the provisions of the Telangana Offenders Act, 1986 held : "16. Obviously, therefore, the power to detain, under the 1986 Act can be exercised only for preventing a person from engaging in, or pursuing or taking some action which adversely affects or is likely to affect adversely the maintenance of public order; or for preventing him from making preparations for engaging in such activities. There is little doubt that the conduct or activities of the detenue in the past must be taken into account for coming to the conclusion that he is going to engage in or make preparations for engaging in such activities, for many such persons follow a pattern of criminal activities. But the question is how far back? There is no doubt that only activities so far back can be considered as furnish a cause for preventive detention in the present. That is, only those activities so far back in the past which lead to the conclusion that he is likely to engage in or prepare to engage in such activities in the immediate future can be taken into account. In Golam Hussain v. State of W.B. [Golam Hussain v. State of W.B., (1974) 4 SCC 530 = 1974 SCC (Cri.) 566, this Court observed as follows : SCC P.535, Para 5] "5. No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenue had done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenue had done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the causal connection has been broken in the circumstances of each case." Suffice it to say that in any case, incidents which are said to have taken place nine to fourteen years earlier, cannot form the basis for being satisfied in the present that the detenue is going to engage in, or make preparation for engaging in such activities." (Emphasis supplied). In the facts of that case, the Court held that the order of detention was passed on stale grounds, which could not have been considered as relevant for arriving at the subjective satisfaction that the detenue must be detained. This Court held thus : "17. The detention order must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. See G. Reddeiah v. State of A.P. [G. Reddeiah v. State of A.P., (2012) 2 SCC 389 = (2012) 1 SCC (Cri.) 881] and P.U. Iqbal v. Union of India [P.U. Iqbal v. Union of India, (1992) 1 SCC 434 = 1992 SCC (Cri.)184] (Emphasis supplied). 15. See G. Reddeiah v. State of A.P. [G. Reddeiah v. State of A.P., (2012) 2 SCC 389 = (2012) 1 SCC (Cri.) 881] and P.U. Iqbal v. Union of India [P.U. Iqbal v. Union of India, (1992) 1 SCC 434 = 1992 SCC (Cri.)184] (Emphasis supplied). 15. 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 P.S. 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 detenue. 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 pre-judicial 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 pre-judicial 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 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 pre-judicial 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 detenue engaging in prejudicial activities in the future. 11. This Court following the decision of the Hon'ble Supreme Court in the case of Khaja Bilal Ahmed v. The State of Telangana, WP No.26306 of 2023, observed as under : "10(b). In Khaja Bilal Ahmed v. The State of Telangana, WP No.26306 of 2023, the detention order was dated 25.10.2018. About 14 cases ranging between 2007 and 2016 were taken into consideration for ordering preventive detention. In that context, the Apex Court held that 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 a 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 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 pre-judicial to the maintenance of public order, then it may have a bearing on the subjective satisfaction of the Detaining Authority. If the previous criminal activities of the appellant could indicate his tendency or inclination to act in a manner pre-judicial 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 casual 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. The detention order was accordingly set aside by the Apex Court. (c)...... (d). Applying the above jurisprudence, in the instant case, the fact is that there was a wide gap between first three cases and the remaining two cases. Hence, such stale material, in our view, ought not to be considered for ordering detention. The citation P.U. Iqbal v. Union of India, (1992) 1 SCC 434 = 1992 SCC (Cri.) 184, placed by the learned Special Government Pleader will not improve the case of the respondents. 12. In the light of the above jurisprudence, if the fact situation of the present case is analysed, there is a gap of six (6) months between the 1st offence and the 2nd offence, similarly between the 2nd to 3rd and 3rd to 4th. Although 4th and 5th offences are in close proximity, there is again a gap of four (4) months, between the 5th offence and the date of detention, considering the administrative issues that may have involved in processing of the files, and, placing the same before the detaining authority by the sponsoring authority. Even, if, the said gap between the date of detention and the last offence is ignored. The gap between the first and second offence, similarly the other offences upto the 4th offence, assume importance, and cannot be ignored, inasmuch as, they lack proximity inter se, as well as, with the date of detention. Which obviously amount to taking into consideration of the stale cases which have no proximity to each other. The gap between the first and second offence, similarly the other offences upto the 4th offence, assume importance, and cannot be ignored, inasmuch as, they lack proximity inter se, as well as, with the date of detention. Which obviously amount to taking into consideration of the stale cases which have no proximity to each other. If the stale materials were to be taken into consideration, it casts a heavy burden on the detaining authority to give plausible reasons as to why the stale incidents had been taken into consideration either having regard to the gravity or nature of the offence or conduct of the detenue, or other factors which prompted the authority to take old material into consideration. The satisfaction must manifest from the record. In the absence of such a reasoning, it cannot be said that the detaining authority has arrived at a subjective satisfaction while passing the order of detention. And the order, thus, passed without recording subjective satisfaction gets vitiated. In the light of the principles laid down by the Hon'ble Supreme Court and this Court, that taking into consideration, of the stale incidents while passing the order of detention, would vitiate the decision making process of the detaining authority and the decision arrived thereon. In the light of the principles laid down by the Hon'ble Supreme Court and this Court in the decisions referred supra, the order of detention is deserves to be set aside. 13. For the abovesaid reasons, the writ petition is allowed and the detention order dated 27.07.2023, in No.Re:C1/309/M/2023, passed by 3rd respondent, the District Collector, Y.S.R. District, as confirmed by the 1st respondent in G.O. Rt. No.1916, dated 25.09.2023, is set aside and the detenue namely, Sri Jambu Ramesh S/o. Balaiah, is directed to be released forthwith by the respondents, if the detenue is not required in any other cases. No costs. 14. As a sequel, interlocutory applications pending, if any, shall stand closed.