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2024 DIGILAW 746 (AP)

Shaik Akhila v. State Of Andhra Pradesh

2024-07-05

HARINATH.N, R.RAGHUNANDAN RAO

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JUDGMENT : Heard Sri Manikanta Thota, learned counsel appearing for the petitioner and Sri Vishnu Teja, learned Special G.P. in the office of the learned Advocate General. 2. The detenue in the present case was arrayed as an accused in the following cases – Sl.No. Crime No. and date Police Station Offences under Sections 1. Crime No.296/2019 Lalapet Police Station U/S 143, 120 (b), 435 r/w 34 of I.P.C& Sec 8(c) r/w 20(b)(ii)(A) NDPS Act, 1985 2. Crime No.297/2019 Lalapet Police Station U/S 143, 120 (b), 435 r/w 34 of I.P.C& Sec 8(c) r/w 20(b)(ii)(A) NDPS Act, 1985 3. Crime No.298/2019 Lalapet Police Station U/S 143, 120 (b), 435 r/w 34 of I.P.C& Sec 8(c) r/w 20(b)(ii)(A) NDPS Act, 1985 4. Crime No.299/2019 Lalapet Police Station U/S 143, 120 (b), 435 r/w 34 of I.P.C& Sec 8(c) r/w 20(b)(ii)(A) NDPS Act, 1985 5 Crime No.303/2019 Lalapet Police Station U/S 143, 120 (b), 435 r/w 34 of I.P.C& Sec 8(c) r/w 20(b)(ii)(A) NDPS Act, 1985 6 Crime No.214/2023 Lalapet Police Station U/s 394 of I.P.C. 7 Crime No.210/2023 Lalapet Police Station U/s 384 of I.P.C. 8 Crime No.653/2023 Nallapadu Police Station U/s 384 of I.P.C. 9 Crime No.212/2023 Kothapet Police Station U/s 386 of I.P.C. 3. The detenue was arrested in Crime No.214 of 2023 of Lalapet Police Station and sent to judicial custody. While he was in jail, the 2nd respondent passed an order of detention on 14.07.2023, under Section 2 (g) of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short 'the Act'). This order of detention was approved by the 1st respondent, by way of G.O.Rt.No.1468, dated 25.07.2023 and thereafter, confirmed by G.O.Rt.No.1845, dated 19.09.2023. The grounds of detention recorded the 9 cases mentioned above. The order of detention against the detenue was passed on the ground that the said 9 cases of arson, unlawful assembly, conspiracy, extortion and robbery showed a consistent behaviour of committing criminal offences and that the detenue would continue to indulge in such offences unless he is prevented from committing these offences by detaining him in prison. The grounds of detention also state that 9 cases mentioned above are of such a nature as to disturb public order. 4. The grounds of detention also state that 9 cases mentioned above are of such a nature as to disturb public order. 4. Aggrieved by the said order of detention and subsequent confirmation by the 1st respondent, the mother of the detenue has approached this Court by way of the present writ petition. 5. Sri Manikanta Thota, learned counsel appearing for the petitioner raised the following grounds: a) The 2nd respondent had not recorded any satisfaction that there was a likelihood of the detenue being released from judicial custody and the absence of recording such satisfaction would be fatal to the detention order. For this purpose, he relied upon the judgment of the Hon'ble Supreme Court in Champion R. Sangma vs. State of Meghalaya and Anr ., (2015) 16 SCC 253 and the judgments of a Division Bench of this Court in W.P.No.1803 of 2021 and W.P.No.3359 of 2024. b) The offences set out in the detention order are offences of ordinary nature, which can be dealt with by the regular Criminal Law provisions and there is no need to invoke the provisions of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986 (hereinafter referred to as 'the Act'). c) The offences set out in the detention order do not affect the public order and in any event there is no discussion on the question of whether such offences alleged to have been committed by the detenue affected the public order. d) Section 9 of the Act requires the detention order to be confirmed by an Advisory Committee consisting of persons, who had been Judges of the High Court or were eligible to be appointed as High Court Judges. However, neither the detention order nor any of the subsequent proceedings give details of members of such Advisory Committee and it should be taken that the members of the Advisory Committee except the Chairman, did not meet the requirements of Section 9 of the Act and as such conformation by the Advisory Committee is invalid. e) No material was placed by the sponsoring authority before the 2nd respondent to show the involvement of the detenue in any of the crimes mentioned above. As such the necessary material to show that the detenue was involved in any of these crimes was never before the 2nd respondent. 6. e) No material was placed by the sponsoring authority before the 2nd respondent to show the involvement of the detenue in any of the crimes mentioned above. As such the necessary material to show that the detenue was involved in any of these crimes was never before the 2nd respondent. 6. Sri Vishnu Teja, learned counsel appearing for the learned Advocate General would contend that the detenue had moved bail petition on 14.07.2023 and that this fact was taken into account by the 2nd respondent, while passing the order of detention and the same has also been recorded at paragraph No.37 of the counter affidavit filed by the 2nd respondent. “In reply to Ground No.(Y) of the affidavit, it is submitted that, as on the date of passing detention order, the detenue was in judicial custody and it is learnt that he applied for bail on 14.07.2023 and as there is imminent possibility of the detenue coming out of the prison on bail, in order to prevent him from committing offences which are prejudicial to the maintenance of public order, I have passed detention order.” Consideration of the Court : 7. The first ground raised by the learned counsel for the petitioner is that the order of detention had been passed against the detenue while he was in jail, without any finding that there was a possibility of the detenu being released from jail and the same is not permissible. 8. A co-accused of the detenue in Crime No.214 of 2023 has been detained by way of an order dated 14.07.2023 passed against the said co-accused person. The mother of the co-accused had moved W.P.No.31131 of 2023 against the said detention order and the same grounds raised were raised in the said writ petition. 9. A Division Bench of this Court, in W.P. No. 31131 of 2023, while considering the question of whether a detention order can be passed against a person, who is in judicial custody and after considering various judgments of the Hon'ble Supreme Court cited in that case, had summed up the law as follows: “The law, as can be seen from the above, can be summarised in the following manner. There is no bar against passing an order of preventive detention merely on the ground that the detenue is already in prison. There is no bar against passing an order of preventive detention merely on the ground that the detenue is already in prison. However, the question of whether such an order can be passed, would be dependent on the facts of each case. The detaining authority, before passing an order of detention should find that there was a possibility of the proposed detenue being released from jail. This possibility can be gleaned from various sources and factors. A non-exhaustive list would be where the detaining authority finds that, the proposed detenue has applied for bail; the proposed detenue has obtained bail in similar cases and consequently bail, if applied for in future could be granted on this ground; a co accused of the detenue, who is placed in a situation similar to the proposed detenue, has obtained bail, and there is a possibility of the proposed detenue getting bail if he applied, etc. The said finding would have to be given on the basis of cogent factors and a mere statement to that effect, without explaining and enumerating the factors which gave rise to such a finding, would not be sufficient discharge of that duty by the detaining officer.” 10. In the present case, the 2nd respondent detaining authority had observed, in the order of detention that “Sri Shaik Saida Vali @ Shabbir Ali, S/o Jani Basha, Muslim by Caste, near Market, Islampet, Narasaraopet town, Palnadu District, who is in judicial remand in pursuance of Cr. No. 214 of 2023 of Lalapet P.S., and likely to be enlarged on bail in the above nine (9) criminal cases shall be detained in the Central Prison, Rajamahendravaram…” 11. As held by a Division of this Court, in W.P.No. 31131 of 2023, a mere statement that there was a likelihood of the detenue being released on bail, without details, is not sufficient. The law is quite clear on this issue. Consequently, the order of detention would have to be set aside on this ground. In view of this finding, none of the other grounds need to be considered. 12. The law is quite clear on this issue. Consequently, the order of detention would have to be set aside on this ground. In view of this finding, none of the other grounds need to be considered. 12. Accordingly, the writ petition is allowed and the order of detention in R.C.No.53/2023/C4 dated 14.07.2023 passed by the 2nd respondent, and the proceedings of confirmation by the 1st respondent in G.O.Rt.No.1845, dated 19.09.2023 are set aside and consequently the detenue, viz., Sri Shaik Saida Vali @ Shabbir Ali, S/o. Jani Basha, aged 20 years, R/o. Islampet, Narasaraopet, Palnadu District, shall be, forthwith, set at liberty, if he is not required in any other case. There shall be no order as to costs. As a sequel pending miscellaneous petitions, if any, in this writ petition shall stand closed.