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2024 DIGILAW 5 (AP)

Pangi Guru S/o Somra v. State of Andhra Pradesh

2024-01-02

KIRANMAYEE MANDAVA, U.DURGA PRASAD RAO

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JUDGMENT : U. DURGA PRASAD RAO, J. 1. Challenging the detention order passed by the 3rd respondent vide REV02-MGSTOLWOD/34/2023-MAG-CCLA, dated 01/08/2023, against the detenu namely Bodnayak Upendra @ Ramesh S/o Nilo, basing on the three crimes registered against the detenu in various police stations and the consequential confirmation order passed by the 1st respondent vide G.O. Rt. No. 1920, General Administration (SC-I) Department, dated 25.09.2023, the detenu’s brother filed the present writ petition. 2. Heard Sri Gundala Siva Prasad Reddy, learned counsel for petitioner and learned Government Pleader representing the office of the learned Additional Advocate General. 3. Learned Special Government Pleader representing the office of the learned Additional Advocate General filed counter and opposed the writ petition. 4. Learned counsel for petitioner assails the detention order on two main grounds. Firstly that, out of three crimes which have been taken into consideration for ordering detention order, the detenu was granted bail in respect of all crimes, however by the time of passing of detention order, the detenu is in judicial custody in respect of one matter and the said fact was admitted in the counter of the respondents. He would further submit that the sponsoring authority has not placed the material relating to the granting of bail in respect of two cases before the Detaining Authority and consequently, no discussion was made by Detaining Authority with regard to the consequences of the granting of bail. He would further submit that bail orders were not furnished to the detenu so as to make an effective representation before the State Government/Advisory Board. For this grave procedural violation, he would argue, the detention per se became illegal. On this aspect, he placed reliance on the order of a Division Bench of this Court in W.P. No. 17210 of 2022. Learned counsel thus prayed to set aside the impugned detention order. 5. In oppugnation, learned Special Government Pleader, while supporting the detention order, vehemently argued that the Detaining Authority has taken into consideration the bail granted to the detenu in respect of two cases by the time of passing of the detention order and having been satisfied that the offences which may be prejudicial to the maintenance of public order, he ordered preventive detention and therefore, his order does not suffer from any procedural irregularities. He, thus prayed to dismiss the writ petition. 6. He, thus prayed to dismiss the writ petition. 6. The point for consideration is whether the order of the 3rd respondent suffers from any legal infirmities and if so, the detention order dated 01.08.2023 is liable to be set aside? 7. We have given anxious consideration to the above respective arguments. As can be seen from the detention order dated 01.08.2023 and the grounds of detention, admittedly, the detaining authority has taken into consideration five cases for ordering detention. Then, a perusal of the counter filed by the 3rd respondent would show that as on the date of passing of detention order, the detenu was granted bail in respect of two crimes. 8. Now, a perusal of the detention order shows that the Detaining Authority has only mentioned that the detenu was involved in three cases. Except that, the Detaining Authority has not specifically mentioned about the detenu obtaining bail in respect of two crimes by the date of passing of the detention order. This indicates that the Sponsoring Authority has not placed before him the copies of the bail applications and bail orders. Then, we perused the material papers filed along with the counter by the 3rd respondent. In those material papers, the copies of the bail orders are not found place. It also indicates that copies of the bail orders were not furnished to the detenu as mandated by the procedure. 9. In W.P. No. 17210 of 2022, a Division Bench of this Court has observed as follows with regard to the consequence of non-furnishing of the bail orders to the Detaining Authority and non-furnishing the same to the Detenu: “8........One of such procedural safeguards is that if the detenu 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. 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, 2015 SCC Online Hyd 790 : (2016) 1 ALT 738 (DB), 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 vs. Collector and District Magistrate, Chittoor, 2013 Cri. L.J. 585, Durgam Subramanyam vs. Government of A.P. 2013 (4) ALT 243 (DB), State of U.P. vs. Kamal Kishore Saini, (1988) 1 SCC 287 , M. Ahamedkutty vs. Union of India, 1990 (1) SCR 209 : 1990 (2) SCC 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 vs. 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......” 9. It should be noted that in the above decision, the judgment in Sunila Jain’s Case, MANU/SC/8053/2006 : (2006) 3 SCC 321 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 detenu. It should be noted that in the above decision, the judgment in Sunila Jain’s Case, MANU/SC/8053/2006 : (2006) 3 SCC 321 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 detenu. 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 vs. State of Telangana, 2016 SCC Online Hyd 718 : (2017) 1 ALD (Crl) 224 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. 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 vs. 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.” Division Bench of this Court further observed as follows: “Thus, in essence, the conditional bail orders were neither considered nor furnished to the detenu, meaning thereby, the detention became illegal and unsustainable. On this ground alone, the detention order is liable to be set aside.” 10. The above decision in our view squarely applies to the case on hand as in the instant case also the bail orders were neither placed before the Detaining Authority nor furnished to the detenu to enable him to make an effective representation before the Advisory Board. On this ground alone, the detention order is liable to be set aside. 11. So far as the second ground is concerned, the submission of the petitioner is that the Detaining Authority has not specifically mentioned that the detenu is likely to get bail and thereby, the possibility of his repeating the similar type of offences cannot be obviated and therefore, the preventive detention alone is the effective remedy. It is argued that without arriving at such subjective satisfaction, the Detaining Authority has mechanically ordered the preventive detention and therefore, the said order is unjust and illegal. 12. Thus, as rightly argued by learned counsel for petitioner, there was no discussion about the detenu’s languishing in judicial custody in respect of one crime and the possibility of his obtaining bail and repeating the similar type of crimes. There is no proper analysis of the facts to arrive at subjective satisfaction of the Detaining Authority. 13. In W.P. No. 1803 of 2021, a Division Bench of this Court has observed as follows: “9. There is no proper analysis of the facts to arrive at subjective satisfaction of the Detaining Authority. 13. In W.P. No. 1803 of 2021, a Division Bench of this Court has observed as follows: “9. On a reading of the above, does not, in our view, show that there was any apprehension or any possibility of the detenu being released on bail. As observed by the Hon'ble Apex Court in Kamarunnisa vs. Union of India, (1991) 1 SCC 128 even in a case of a person in custody, a detention order can be validly passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. From a reading of the above, it is very much evident, the detaining authority was aware the detenu was in custody as on the date of passing of the order, but, there is no material placed before him to show that there is every likelihood of he being released on bail. Merely saying that there is every likelihood of detenu being granted/released on bail, as he was released in other cases may not satisfy the test as laid down in Champion R. Sangma's Case (2015) 16 SCC 253 and Kamarunnisa's Case (supra). Though the petitioner has been released in 7 out of 10 cases, no material has been placed on record to show that he has made any application seeking release on bail in the following three cases: (i) Crime No. 55 of 2020 of T. Sundupalli P.S. (ii) Crime No. 150 of 2020 of Sidhout P.S. (iii) Crime No. 122 of 2020 of Vontimitta P.S.” 14. From the above decision, it is clear that when a detenu is already under judicial custody in connection with some or all cases, the Detaining Authority has to take note of the factum of his judicial custody and record its satisfaction that there is a likelihood of his being released on bail so as to buttress the preventive detention order. From the above decision, it is clear that when a detenu is already under judicial custody in connection with some or all cases, the Detaining Authority has to take note of the factum of his judicial custody and record its satisfaction that there is a likelihood of his being released on bail so as to buttress the preventive detention order. In the instant case, there is no such discussion in the impugned detention order. In this ground also, the preventive detention fails. 15. On a conspectus of the facts and law as narrated supra, this writ petition is allowed and the detention order in REV02-MGSTOLWOD/34/2023-MAG-CCLA, dated 01/08/2023, passed by the 3rd respondent-District Collector, Paderu, Alluri Seetharamaraju District, is hereby set aside and the detenu namely Bodnayak Upendra @ Ramesh S/o Nilo, is directed to be released forthwith by the respondents if the detenu is not required in any other cases. No costs. 16. As a sequel, interlocutory applications pending, if any, in this case shall stand closed.