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2024 DIGILAW 385 (AP)

Nandyala Shaik Saleem v. State of AP

2024-03-21

KIRANMAYEE MANDAVA, U.DURGA PRASAD RAO

body2024
ORDER : (Kiranmayee Mandava, J.) 1. This Writ Petition is filed for issuance of Habeas Corpus by directing the 4th respondent to produce the detenue and set him at liberty by declaring the proceedings of the 2nd respondent, in detaining Smt. Khairun Bee, W/o. Abdul Gafoor, vide order dated 20-06-2023 in Rc.No.Cl/513/M/2023, as confirmed by the 1st respondent in G.O.Rt.No.1675 dated 21.08.2023, as illegal and unconstitutional. 2. The petitioner is the brother of the detenue. He contends that the the 2nd respondent vide proceedings dated 20-06-2023, passed an order of detention under Sec.3(1) 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, (for short "Act No.1 of 1986"), placing the detenue under detention in Central Special Prison, Kadapa,. The said order of detention was confirmed by the 1st respondent vide G.O.Rt.No.1675 dated 21.08.2023, treating the detenue as 'Drug offender" as defined under Sec.2 (f) of Act, 1 of 1986. The following are cases, that 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. 104/2008 U/s.20 of NDPS Act 23.08.2008 Bandi Atmakur P.S. 2. 68/2019 U/s.20(b) of NDPS Act 24.04.2019 Kurnool I Town P.S. 3. 360/2019 U/s.20(b) of NDPS Act 26.07.2019 Nandyal Excise P.S. 4. 06/2020 U/s.20(b) of NDPS Act 08.01.2020 Kurnool I Town P.S. 5. 91/2022 U/s.20(b) (ii) (c), 15(c) r/w 8(c) of NDPS Act, 1985 17.05.2022 Duvvur P.S. 6. 202/2022 U/s.20(b) of NDPS Act 18.08.2022 Nandyal III Town P.S. 7. 21/2023 U/s.20(b) (ii) (c), r/w 8(c) and Sec.25 of NDPS Act, 1985 10.03.2023 Bandi Atmakur P.S. 3. The petitioner contends that the sponsoring authority did not place the bail orders before the detaining authority and further that the same were not served on the detenue, in order to enable her to make a representation to the Advisory Board and the government, resulting in passing of the order of confirmation of the detention order. 4. The 2nd respondent filed his counter affidavit. 4. The 2nd respondent filed his counter affidavit. It is stated by the 2nd respondent that the sponsoring authority has placed the entire material before the detaining authority and had also furnished all the information relating to granting of bails to the detenue and it is further stated by him that non furnishing of bail orders will not vitiate the detention order and that the detenue has committed seven (7) offences relating to selling of 'ganja', and in order to prevent from possibility of committing further offences and to ensure maintenance of public order, the order of detention was passed. 5. Heard Sri K. Ram Mohan Reddy, learned counsel of the petitioner and the learned Special Government Pleader representing learned Advocate General for the respondents. 6. The learned counsel for the petitioner contends that though the Hon'ble Supreme Court and this Court, time and again had held that non considering of the bail orders and their non furnishing to the detenue, would deprive the right of the detenue to make an effective representation to the government and render the detention illegal per se illegal. It is contended that, the sponsoring authority did not place the copies of the bail orders before the detaining authority and the same were not furnished to the detenue. He thus, prays to the set aside the order impugned. 7. On the other hand, the learned Special Government Pleader for the respondents doesn't dispute the factum of non supply of bail orders to the petitioner, however contends that non furnishing of the same will not vitiate the proceedings. 8. In order to facilitate the detenue to make an effective representation to the government, it is incumbent on the respondents to furnish him all the necessary material including bail orders, relied upon while passing the order of detention. 9. This Court, time and again had held that non furnishing and non consideration of the relevant material including the copies of the bail orders would render the subjective satisfaction arrived at by the authority redundant, apart from impairing the detenue in making an effective representation to the Advisory Board, thereby, defeating the very purpose of the provisions of Sec.8 of Act, 1 of 1986. In similar set of facts in W.P. No.26551 of 2023, this Court has observed as under: "We find considerable force in the above argument. In similar set of facts in W.P. No.26551 of 2023, this Court has observed as under: "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 (2 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. 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. [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. In Gattu Kavitha case (1 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 light of the above jurisprudence, when facts of the instant case are perused, in the counter filed by the 2nd respondent, it has been specifically admitted and mentioned that out of 3 cases which were taken for consideration, the detenue was granted bail in almost 2 cases. 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 39 to 176 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." 10. 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." 10. In the light of the above jurisprudence, a perusal of the orders impugned in the present case would show that although, according to the petitioner, the detenue was granted bail in all the cases, however as noted from the grounds of detention, barring one (1) case, i.e. Cr. No.21/2023, the factum of granting of bails was not referred to either by the sponsoring authority or by the detaining authority. Which goes to show that the detaining authority did not arrive at subjective satisfaction to the effect that the detenue on being released on bail, would continue to indulge in commission of similar offences and that unless he is prevented by an order of detention, the same would cause prejudice to maintenance of public order. Further as noted from the material papers filed along with the counter affidavit, at pages 51 to 160, which were said to have been served to the detenue do not contain the copies of the bail orders, from which it can reasonably be discerned that the detaining authority had failed to consider the relevant material before arriving at a satisfaction and failed to facilitate the detenue in making an effective representation before the Advisory Board rendering the provisions of Sec.8 of the Act, otiose thus rendering the order of detention invalid. 11. For the above reasons and following the ratio laid down by this Court in the above referred case, the impugned order of detention would not stand the test of law. We accordingly hold that the order of the detention passed by the 2nd respondent as confirmed by the 1st respondent is not sustainable under law and the same is liable to be set aside. 12. The Writ Petition is allowed and the detention order dated 20-06-2023, vide Rc.No.Cl/513/M/2023, passed by 2nd respondent, the Collector 85 District Magistrate, Nandyal District, as confirmed by the 1st respondent vide G.O.Rt.No.1675 dated 21.08.2023, is set aside and the detenue namely, Smt. Khairun Bee, W/o. Abdul Gafoor, is directed to be released forthwith by the respondents, if the detenue is not required in any other cases. No costs. No costs. As a sequel, interlocutory applications pending, if any, shall stand closed.