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2024 DIGILAW 298 (AP)

Punnati Satyavathi v. State of Andhra Pradesh

2024-02-28

MRS.KIRANMAYEE MANDAVA, U.DURGA PRASAD RAO

body2024
JUDGMENT : Mrs. KIRANMAYEE MANDAVA, J : 1. This writ petition is filed under Article 226 of the Constitution of India for issuance of a writ of habeas corpus by declaring the proceedings of the 3rd respondent in RC No.50/2023/C1 dated 30.06.2023, as confirmed by the 1st respondent vide proceedings in G.O. Rt. No.1323, dated 10.07.2023 and G.O. Rt. No.1787, dated 07.09.2023, detaining the detenue, Smt. Valluri Roja, W/o. (late) Ravi Kumar, as illegal and unconstitutional. 2. The petitioner is the sister of the detenue, and she contends that the 3rd respondent vide RC No.50/2023/C1 dated 30.06.2023, passed an order of detention under the provisions of Section 3(1) and 3(2) read with Section 2(f) of A.P. Prevention of Dangerous Activities of Bootleggers and Dacoits, Drug Offender Goondas Immoral Traffic Offenders and Land Grabbers Act, 1986, (for short "Act 1 of 1986") for indulging in activities in contravention of the NDPS Act, 1985. It is stated that the detenue was granted bail in all the cases, by the date of detention. The following are the cases that were taken into consideration while passing the order of the detention : Sl. No. Crime No. Provision of law Date of offence Police Station 1. 443/2017 Under Section 8(C) read with of 20(b)(ii)(A), of NDPS Act 03.11.2017 Tadepalli P.S. 2. 353/2019 Under Section 8(C) read with of 20(b)(ii)(B), of NDPS Act 29.06.2019 Tadepalli P.S. 3. 130/2022 Under Section 8(C) read with of 20(b)(ii)(B), of NDPS Act 02.02.2022 Tadepalli P.S. 4. 25/2022 Under Section 8(C) read with of 20(b)(ii)(B), of NDPS Act 09.01.2023 Tadepalli P.S. 3. The petitioner contends that a case which was registered in the year 2017, was also taken into consideration while passing the order of detention and contends that the same lacks proximity between the first offence to the date of detention, and between the remaining offences. In the absence of live link between the offences and in the absence of satisfaction being recorded to the effect that the detenue has been regularly indulging herself in commission of such offences, the order of detention is liable to be set aside. In the absence of live link between the offences and in the absence of satisfaction being recorded to the effect that the detenue has been regularly indulging herself in commission of such offences, the order of detention is liable to be set aside. The petitioner further contends that out of four (4) cases, the detenue was granted bails in majority of the cases and contends that the sponsoring authority did not place the said bail orders before the detaining authority and as on the date of passing of the detention order the detenue was in judicial custody. The petitioner further contends that in the absence of the satisfaction being recorded, the detention order would not be sustainable. It is further contended by the petitioner that the order of the detention was passed in a mechanical manner on vague, irrelevant and non-existent grounds. It is further submitted that the detenue is tested HIV positive and sought for release by setting-aside the order of detention. 4. The 2nd respondent filed his counter-affidavit stating that the drug offences committed by the detenue would cause widespread danger to public health and create a feeling of insecurity amongst the general public and if the said offences are not hindered, would cause prejudice to the maintenance of public order. Although four cases were registered against the detenue in the past, she did not mend her ways and continued to indulge in commission of similar offences. It is further submitted by the 2nd respondent that as per the public analyst report, the contraband seized would cause widespread damage to public health. With regard to averment that the detenue being HIV patient, it is stated that their office is unaware of the same as no representation has been received in their office in the said regard. 5. Heard Sri. Regulagadda Venkatesh, learned Counsel for the petitioner and Sri Khader Basha, learned Special Government Pleader, representing the learned Advocate General for the respondents. 6. 5. Heard Sri. Regulagadda Venkatesh, learned Counsel for the petitioner and Sri Khader Basha, learned Special Government Pleader, representing the learned Advocate General for the respondents. 6. The learned Counsel for petitioner, relying on the decision of the Hon'ble Apex Court in the case of Khaza Bilal Ahmed v. The State of Telangana, WP No.1199 of 2023, (2020) 13 SCC 632 and a decision of the High Court of Telangana, contends that in the absence of proximity between the four (4) offences, and the order of detention, and in the absence of the satisfaction of the detaining authority being recorded as to why he had to take into consideration the stale incidents, the order of detention would not stand in the eye of law. 7. On the other hand, Sri Khader Basha, the learned Special Government Pleader, while making a distinction between the decision of the Supreme Court in Khaja Bilal Ahmed's case (supra) and the facts of the present case, contends that in the case of Khaja Bilal Ahmed's case (supra), the offences committed by the detenue were categorized as "Goonda", falling within the meaning of Section 2(g) of Act of 1 of 1986. Whereas in the subject case, he contends, the detention order was passed for commission of "drug offences", where potentiality of the crime to cause public ill health is more and even an isolated singular offence also, would cause devastating effect on maintenance of public order, whereas in the case of "Goonda", where gravity of the offence would invariably effect "a person" individually, but in latter, a series of such offences, may cause prejudice to maintenance of public order. He contends that in such cases, ingredient of "proximity" is required whereas in the present nature of case a singular case would cause adverse impact on younger section of the society at large. Thus, having tried to distinguish between the judgment of the Hon'ble Supreme Court and the facts of the present case, he prays for dismissal of the writ petition. 8. The 1st offence was registered on 03.11.2017, and the 2nd offence was registered on 29.06.2019, where the gap is almost nineteen (19) months and thereafter, the 3rd offence was registered on 02.02.2022. Evidently there exists a gap of more than two and half years between 2nd and 3rd offence. The 4th offence was registered on 09.01.2023. 8. The 1st offence was registered on 03.11.2017, and the 2nd offence was registered on 29.06.2019, where the gap is almost nineteen (19) months and thereafter, the 3rd offence was registered on 02.02.2022. Evidently there exists a gap of more than two and half years between 2nd and 3rd offence. The 4th offence was registered on 09.01.2023. Again between 3rd offence and 4th offence, there is a gap of almost one (1) year. The order of detention apparently lacks recording of satisfaction by the detaining authority, regarding the stale incidents being taken into consideration. 9. The detaining authority having taken into consideration certain stale incidents right from 2017 failed to show as to how an offence committed in the year 2017 had a nexus or proximity with the next offence/s alleged to have been committed after a considerable period of more than one and half years. The provisions under Section 3 of Act 1 of 1986, provides that with a view to prevent the Dacoits, Drug Offenders, Goondas, Bootleggers, etc., in any manner prejudicial to the maintenance of the public order if it is necessary to do so, the detaining authority may pass an order of preventive detention. Thus, in the light of the statuary provisions, in the nature of present case, the detaining authority, has to record a subjective satisfaction reflecting his application of mind with regard to, either the frequency of the offences, in short intervals, or having regard to the nature and the gravity of the offence, though the same may have arisen in long intervals. The order must reflect the parameters that formed the basis for his decision. When stale incidents were taken into consideration, authority must give reasons as to why and what circumstances that led him to consider the stale incidents having regard to the nature of offence. In the absence of satisfaction being manifested from the order of detention, the order would be vitiated. In the case on hand, the detaining authority, except referring to the dates of incidents, did not draw any satisfaction on the basis of the facts placed before it. 10. The Hon'ble Supreme Court in the case of Sama Aruna v. State of Telangana, (2018) 12 SCC 150 = MANU/SC/0638/2017, it is observed that : "15. In the case on hand, the detaining authority, except referring to the dates of incidents, did not draw any satisfaction on the basis of the facts placed before it. 10. The Hon'ble Supreme Court in the case of Sama Aruna v. State of Telangana, (2018) 12 SCC 150 = MANU/SC/0638/2017, it is observed that : "15. 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 detenu 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 detenu 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. 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 detenu is going to engage in, or make preparation for engaging in such activities." (Emphasis supplied). "16........ 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) 11. The Hon'ble Supreme Court in the case of Khaja Bilal Ahmed v. The State of Telangana (supra), observed that : "15........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. 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." 12. This Court in WP No.26306 of 2023, observed as under : "10. The next contention of the petitioner is that out of five cases taken up for consideration, in two cases i.e., in Cr.No.44/2010, the detenue was acquitted due to compromise before Lok Adalat Bench at Nellore, and in Cr.No.14/2016, charge-sheet was filed and after trial the detenue was acquitted in concerned CC No.308/2016 as per judgment dated 28.06.2019 by learned V Additional Judicial First Class Magistrate, Nellore and those two cases do not form live link to the current activities of detenue and since stale and irrelevant materials were taken as a ground for preventive detention, such detention per se became illegal. (a) We find force in the above contention. Those two crimes are of the years 2010 and 2016 and Cr.No.44/2010 ended in acquittal out of Lok Adalat award on 04.02.2012 and CC No.308/2016 ended in acquittal after trial on 28.06.2019, whereas detention order was passed long after on 29.09.2023. (a) We find force in the above contention. Those two crimes are of the years 2010 and 2016 and Cr.No.44/2010 ended in acquittal out of Lok Adalat award on 04.02.2012 and CC No.308/2016 ended in acquittal after trial on 28.06.2019, whereas detention order was passed long after on 29.09.2023. Thus, there was no live link between those two matters and the detention order. Remaining three matters are concerned, Cr.No.84/2017 was of the year 2017 and Cr.No.31/2023 and Cr.No.134/2023 are of the year 2023. Therefore, there is a wide gap between first three crimes and remaining two", this Court, further, referring to the decision of the Hon'ble Supreme Court in the case of Khaja Bilal Ahmed v. The State of Telangana (supra), observed that : "(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." 13. In the light of the forgoing, this Court is of the view that in the absence of any reasons by the detaining authority as to the material that was before him, which compelled him not to take any other decision other than detaining the detenue, the order of detention would not be sustainable. As observed by the Hon'ble Supreme Court when stale incidents are taken into consideration, the order should reflect the satisfaction of the detaining authority saying that the previous criminal antecedents would indicate his inclination to commit offences in future and which should be prevented. In the facts of the present case, there is no such satisfaction being recorded. In the absence of the same, following the decision of the Hon'ble Supreme Court and the decision of this Court, the order of detention is liable to be set aside. 14. For the above said reasons, the writ petition is allowed and the detention order dated 30.06.2023 vide dated RC No.50/2023/C1, passed by 3rd respondent, the Collector & District Magistrate, Guntur District, as confirmed by the 1st respondent vide G.O. Rt. No.1323, dated 10.07.2023 and G.O. Rt. 14. For the above said reasons, the writ petition is allowed and the detention order dated 30.06.2023 vide dated RC No.50/2023/C1, passed by 3rd respondent, the Collector & District Magistrate, Guntur District, as confirmed by the 1st respondent vide G.O. Rt. No.1323, dated 10.07.2023 and G.O. Rt. No.1787, dated 07.09.2023, is set aside and the detenue namely, Smt. Valluri Roja, W/o. (Late) Ravi Kumar, is directed to be released forthwith by the respondents, if the detenue is not required in any other cases. No costs. 15. As a sequel, interlocutory applications pending, if any, shall stand closed.