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2024 DIGILAW 376 (AP)

Kolapari Bhudamma v. State of Andhra Pradesh

2024-03-19

KIRANMAYEE MANDAVA, U.DURGA PRASAD RAO

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JUDGMENT : Mrs. KIRANMAYEE MANDAVA, J : 1. This writ petition is filed for issue of habeas corpus for production of the detenue, Sri Kolapari Srinubabu, before the Court, and sought for release of the detenue by declaring the proceedings of the 2nd respondent, dated 14.09.2023 vide REV02-GSTOLWOD/46/2023-MAG-CCLA, as confirmed by the 1st respondent in G.O. Rt. No.2231 General Administration (Law and Order) Department, dated 10.11.2023, as illegal and unconstitutional. 2. The petitioner herein is the mother of the detenue. It is stated that the 1st respondent vide proceedings dated 14.09.2023, passed an order of detention against the detenue detaining him in Central Prison, Visakhapatnam, treating the detenue as "drug offender" within the meaning of 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"). It is stated that following offences were taken into consideration while passing an order of detention : Sl. No. Crime No. Provision of law Date of offence Police Station 1. 459/2016 under Section 20(b)(ii), read with 8(c) of NDPS Act, 1985 28.12.2016 SEB (Proh. & Excise) P.S. 2. 32/2019 under Section 20(b)(ii)(c), read with 8(c) of NDPS Act, 1985 14.07.2019 G. Madugula P.S. 3. 15/2023 under Sections 389, 419, 120(b) IPC Section 25 IA Act 21.04.2023 G. Madugula P.S. 4. 175/2023 under Sections 20(b)(ii)(C), 25 read with 8(c) of NDPS Act, 1985 13.07.2023 IV Town P.S. 3. It is contended that in the 1st case, out of the aforesaid four (4) cases, the detenue was granted bail and the sponsoring authority deliberately suppressed the information relating to the grant of bail and that the detaining authority did not even furnished the bail orders to the detenue enabling him to submit an effective representation before advisory board. It is further contended that as on the date of passing of the detention order, the detenue was in judicial custody in connection with Cr.No.175/2023, and the said factum was not taken into consideration while recording the satisfaction about the likely-hood of the detenue being released on bail and the probability of, committing further offences upon such release. It is further contended that as on the date of passing of the detention order, the detenue was in judicial custody in connection with Cr.No.175/2023, and the said factum was not taken into consideration while recording the satisfaction about the likely-hood of the detenue being released on bail and the probability of, committing further offences upon such release. It is further stated that there is no live link between the offences inter se, inasmuch as out of four (4) offences, the 1st offence was alleged to have committed in the year 2016 and the 2nd offence was reported to have committed in the year 2019 and the 3rd offence was registered in the year 2023. It is stated that there is a large gap between each one of offence and the detaining authority failed to record any satisfaction as to which of the alleged offences prompted the authority to come to a satisfaction that there is every possibility that the detenue would indulge in commission of further offences. The petitioner further contends that out of the four (4) offences that had been taking into consideration by the detaining authority, the 3rd offence in Cr.No.15/2023, was registered under the provisions of under Sections 389, 419, 120(b) IPC and Section 25 IA Act. He contends that the said offence would not fall under the definition of the drug offender and the detaining authority while categorizing the detenue as a "drug offender" within the meaning of Section 2(d) of Act No.1 of 1986, has taken into consideration, the said irrelevant factors also into consideration, thereby rendering the order of detention invalid. 4. The counter-affidavit on behalf of 2nd respondent was filed and it is contending that the detenue is selling "ganja" to innocent people and in normal course it would take a longer time to prove the crime against the detenue resulting in the detenue continuing with the commission of offences without any deterrent. It is further stated that all the procedures under the Act were scrupulously followed and an opportunity of making representation before the advisory board was provided and the detenue had duly availed the said remedy and that there is every live link between the offences and the date of detention order. Accordingly, sought for dismissal of the present writ petition. 5. Accordingly, sought for dismissal of the present writ petition. 5. Heard Sri Purna Chandra Reddy, learned Counsel for the petitioner and Special Government Pleader, representing Additional Advocate General for the respondents. 6. The learned Counsel for the petitioner attacks the order of detention on four (4) grounds : (I) Firstly, on the ground that the detenue was under judicial custody when the order of detention was passed and that the detaining authority failed to take into consideration the said factor and failed to apply the principles of triple test laid down by the Hon'ble Supreme Court. (II) Secondly, on the ground that the detenue was granted bail in one (1) case out of the four (4) offences that were taken into consideration by the detaining authority and the detenue was not even provided with bail order copies to enable him to make an effective representation before the advisory board. (III) Thirdly, on the ground that there is no proximity between the offences said to have been committed by the detenue and there is no live link between the date of detention order and the offences that were said to have been committed by the detenue. (IV) Lastly, he contends that out of four (4) offences that formed the basis for passing of the impugned order of detention, one (1) offence i.e., Cr. No.15/2023, do not fall under the definition of drug offender as provided under Section 2(f) of Act 1 of 1986. He vehemently contends that though the order of detention is liable to be set aside on account of all the four (4) grounds that have been raised by him. However, stresses and confines his submission with regard to Ground No.4 alone and relies on the following decision of this Court in WP No.30382 of 2023. 7. He vehemently contends that though the order of detention is liable to be set aside on account of all the four (4) grounds that have been raised by him. However, stresses and confines his submission with regard to Ground No.4 alone and relies on the following decision of this Court in WP No.30382 of 2023. 7. The definition of "Drug Offender" as defined under Section 2(f) of Act 1 of 1986 is observed as follows : "(f) "drug-offender" means a person, who manufactures, stocks, imports, exports, sells or distributes any drug or cultivates any plant or does any other thing in contravention of any of the provisions of the Drugs and Cosmetics Act, 1940 (Central Act XXIII of 1940) or [the Narcotic Drugs and Psychotropic Substances Act, 1985] [(Central Act 61 of 1985)] and the rules, notifications and orders made under either Act, or in contravention of any other Law for the time being in force, or who knowingly expends or applies any money in (furtherance or support of doing of any of the above mentioned things by himself or through any other person or who abets in any other manner the doing of any such thing;" 8. As rightly contended by the learned Counsel for the petitioner, admittedly the 3rd offence in Cr.No.15/2023 is registered under the provisions of Sections 389, 419 and 120(b) IPC Section 25 IA Act, would not fall within the definition of the "Drug Offender". The order of the detaining authority taking into consideration, the said irrelevant offence into consideration while branding the detenue as a "Drug Offender", smacks of non-application of mind and the same would not stand the test of law, which ultimately goes to vitiate the proceedings, irrespective of the alleged gravity of the said offences, defeating the very purpose of the enactment. 9. The learned Counsel for the petitioner relies on the decision of this Court in Mohammed Arif v. State of Andhra Pradesh, wherein the decisions of this Court in the case of M. Govindarajulu v. The State of Andhra Pradesh, WP No.27241 of 2023, was referred to and observed as follows : 10. In the case of M. Govindarajulu v. State of Andhra Pradesh (supra), to which both of us are parties to the judgment, it has been observed as follows: "9. In the case of M. Govindarajulu v. State of Andhra Pradesh (supra), to which both of us are parties to the judgment, it has been observed as follows: "9. Regarding the argument of learned Counsel for the petitioner that irrelevant facts were taken into consideration by the 2nd respondent, we have perused the definition of "goonda" mentioned in Section 2(g) of Act, 01 of 1986. The said section reads thus : "2. (g) "goonda" means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter-XVI or Chapter-XVII or Chapter-XXII of the Indian Penal Code" Thus, the above definition shows that if a person either by himself or as a member or leader of the gang habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter-XVI or XVII or XXII of the Indian Penal Code, he can be termed as "goonda" and the detenu authority may pass order of detention. 10. The crux of the definition is that the detenu must be involved in any of the offences envisaged in Chapter-XVI, or XVII or XXII of the I.P.C., but not others to fall within the definition of "goonda". In this context when the impugned detention order is perused, the 2nd respondent has taken eight crimes into consideration, out of which, except Cr.No.529 of 2021 and Cr.No.531 of 2021 of Chittoor-II Town Police Station, the remaining six relate to offences under the I.P.C., falling within the Chapter-XVI, or XVII or XXII. Therefore, to that extent, the 2nd respondent was right in taking into consideration those six offences as they fall within the definition of "goonda". 11. However, the Cr.No.529 of 2021 and Cr.No.531 of 2021 of Chittoor II Town Police Station are concerned, they were an offence registered under Section 34(1)(i) read with 34(A) of A.P. Excise Act, in which, the detenu was allegedly involved. The brief facts relating to Cr.No.529 of 2021 is that, the detenu and another were illegally, stocked the branded Indian made liquor and in Cr.No.531 of 2021 of Chittoor II Town P.S., the detenu and four others were illegally possessed the branded Indian made liquor. Hence, the above cases were registered against him and charge-sheets were filed before the Special Judicial Magistrate of First Class for Excise, Chittoor. 12. Hence, the above cases were registered against him and charge-sheets were filed before the Special Judicial Magistrate of First Class for Excise, Chittoor. 12. As rightly argued by the learned Counsel for the petitioner, these offences do not fit into the definition of "goonda" as they are only Excise offences, but not offences falling within any of the three chapters of the I.P.C. Therefore, we find force in the argument of the learned Counsel for the petitioner that irrelevant facts were taken into consideration by the 2nd respondent, while branding the detenue as "goonda". In similar circumstances, in WP No.19145 of 2023, the Division Bench of this High Court considering several other cases held as follows : "A reading of the definition of goonda extracted above, clearly shows that it is only when a person habitually commits or attempts to commit or abets the commission of offences punishable under Chapter-XVII or Chapter-XXII of the Indian Penal Code, then only he can be termed as Goonda under the Act. Three crimes i.e., Crime No.36 of 2023, Crime No.33 of 2023 and Crime No.35 of 2023, no doubt pertains to the offences punishable under Chapter-XVII and Chapter-XXII. So, it attracts the definition of Goonda under the Act. But the other crime i.e., Crime No.23 of 2023 is registered only under Section 34(A) of the A.P. Excise Act. It has nothing to do with the offences under the Indian Penal Code much less the offences under Chapters-XVII and XXII of I.P.C. It is only an offence under special enactment under the A.P. Excise Act. So, it does not attract the definition of Goonda under Section 2(g) of the Act. At best, the said crime attracts the definition of Bootlegger as defined under Section 2(b) of the Act. Yet, this Crime No.23 of 2023 is also made basis to pass the impugned order of preventive detention terming the detenu as a Goonda. So, it clearly amounts to taking an irrelevant factor as a ground to pass the impugned order of preventive detention. When an irrelevant factor or ground is taken as basis for passing the order of preventive detention, as rightly contended by the learned Senior Counsel for the petitioner, as per settled law, it would vitiate the order of preventive detention and the same is liable to be set aside on the sole ground. When an irrelevant factor or ground is taken as basis for passing the order of preventive detention, as rightly contended by the learned Senior Counsel for the petitioner, as per settled law, it would vitiate the order of preventive detention and the same is liable to be set aside on the sole ground. The legal position in this regard is no more res nova and the same has been well settled." 11. The principle laid down in the above case would squarely apply to the facts of the present case. Placing reliance on the above decision of this Court, the order impugned in the writ petition is liable to be set aside. 12. Before departing, we would deem it fit to make the following observations: (a) The Sponsoring Authority and the Detaining Authority must scrupulously follow the principles laid down by the Hon'ble Apex Court and this Court in cases relating to preventive detention, with regard to the following procedural issues : (i) In the instances where detenue is already in the judicial custody as on the date of passing of the order of detention, the detaining authority shall record its satisfaction for ordering his detention. (ii) Furnishing of bail orders alongwith relevant material to the detenue to enable him to make an effective representation before the Advisory Board. (iii) While categorizing the detenue, an effort must be made by the Authorities to take into consideration only such of those offences, that would fit into the definition of the relevant categorization of the offender, while leaving out the other irrelevant material. (iv) If at all certain stale instances/offences are also required to be taken into consideration, the Sponsoring Authority and the Detaining Authority must be able to elaborate on the issue as to why the said instances are considered, while passing the order of detention. (b) We are constrained to make these observations, as we have observed in many a cases, that the principles laid down by the Hon'ble Apex Court and this Court, in cases relating to preventive detention have not been followed by the Sponsoring Authority and the Detaining Authority, thereby making the order of detention per se illegal. It is expected that the officers scrupulously follow the judicial dictum, while dealing with the cases relating to preventive detention. 13. It is expected that the officers scrupulously follow the judicial dictum, while dealing with the cases relating to preventive detention. 13. Accordingly, the writ petition is allowed and the detention order in File No.REV02-GSTOLWOD/46/2023-MAG-CCLA, dated 14.09.2023, passed by 2nd respondent, the Collector & District Magistrate, Alluri Seetha Rama Raju District, as confirmed by the 1st respondent in G.O. Rt. No.2231 General Administration (Law and Order) Department, dated 10.11.2023, is hereby set aside and the detenue namely, Sri Kolapari Srinubabu, 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.