Gurrala Bhagaymma v. The state of Andhra Pradesh

Andhra Pradesh HC14 Jun 2023WP/1195/2023

Case brief

AI extract

What is this about?

This order interprets two applications seeking to amend prayers in Writ Petition No.1195 of 2023 challenging a detention order. It directs amendment to include a writ of habeas corpus and allows the amended petition based on grounds that detention violates constitutional protections when ordinary laws suffice. The court sets aside the detention order.

What did the court decide?

Detention order set aside; detenue directed to be released forthwith if not required for other cases.

Gurrala Bhagaymma Vs The state of… — Pension and Retirement Benefits | Andhra Pradesh HC (2023)

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THE HON’BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

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AND

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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I.A.NO.1 OF 2023

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IN/AND WRIT PETITION No.1195 of 2023

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ORDER: (per Hon’ble Sri Justice V.Srinivas)

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Initially, in this writ petition, the petitioner challenged the

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order of detention of her son Gurrala Kranthi Kumar, S/o.G.Narayana, aged 24 years, vide REV-

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CSECOPDL(PRC)/7/2022-SA(C1)-COLLKRNL, dated 28.11.2022 passed by the 2^nd respondent-The Collector & District Magistrate, Kurnool District and prays to direct the respondent authorities to set the detenue at liberty forthwith.

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Since the said detention order passed by the 2^nd respondent was confirmed by the 1^st respondent vide G.O.Rt.No.181 General Administration (SC.I) Department, dated 27.01.2023, then the petitioner filed I.A.No.1 of 2023 to amend the prayer of the writ petition as ‘to issue writ order or direction more particularly one in the nature of writ of Habeas Corpus under Article 226 of the Constitution of India directing the 4^th respondent to produce the detenue viz., Gurrala Kranthi Kumar, S/o.G.Narayana, who is now detained in Central Prison, Kadapa, YSR Kadapa District before this Court and order for his release forthwith, after declaring his detention vide proceedings REV-

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CSECOPDL(PRC)/7/2022-SA(C1)-COLLKRNL, dated 28.11.2022 passed by the 2^nd respondent which was confirmed by the 1^st respondent vide G.O.Rt.No.181 General Administration (SC.I) Department, dated 27.01.2023 as illegal and unconstitutional and pass such other order or orders which this Hon’ble Court may deem fit and proper in the circumstances of the case’.

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In view of the confirmation orders and same is challenged in this writ petition by filing application vide I.A.No.1 of 2023, thus, the same is allowed and the prayer of the writ petition is ordered to be amended as prayed for.

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The Collector and District Magistrate, Kurnool District, while categorizing the detenue as “Goonda” within the definition of 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 1 of 1986’) and passed the impugned order of detention. The same was confirmed by the 1^st Respondent-State.

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Heard Sri V.Nitesh, learned counsel for the petitioner and Sri Syed Khader Mastan, learned counsel attached to the office of learned Additional Advocate General for the respondents.

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Learned counsel for the petitioner submits that the authorities erred in passing the impugned order of detention

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without invoking the ordinary law of the land; that out of the fifteen crimes, which are basis for passing the impugned order, in eight cases the detenue was acquitted and one case is bind over case; that even though in Cr.No.727 of 2021 the detenue was acquitted vide C.C.No.4039 of 2022 on the file of Additional Junior Civil Judge, Kurnool, the sponsoring authority suppressed the said fact by showing that the same is pending for investigation; that the penal laws are sufficient to deal with the situation and invoking of preventive detention is not necessary and that the impugned order of detention shall be approved by the Government within a period of twelve days otherwise the said order shall not remain in force as prescribed under Section 3(3) of the Act. He relied upon judgments of this Court in W.P.Nos.39085 of 2022 and 1965 of 2009 . Copies of the said orders were placed on record.

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It is brought to the notice of this Court by the learned counsel for the writ petitioner that the issue in the present Writ Petition is squarely covered by the order of this Court in W.P.No.30649 of 2022, dated 06.03.2023. A copy of the said order is placed on record.

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On the other hand, reiterating the averments made in the counter affidavit filed by the respondents, it is submitted by

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Sri Syed Khader Mastan, learned counsel attached to the office of Additional Advocate General that having regard to the gravity of the offences, the orders impugned in the Writ Petition do not warrant any interference of this Court under Article 226 of the Constitution of India.

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A perusal of the order dated 06.03.2023 passed by this Court in W.P.No.30649 of 2022 clearly demonstrates that all the issues that have been raised in the present Writ Petition were also raised in the aforesaid Writ Petition and this Court discussed the law laid down in Gattu Kavitha v. State of

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Telangana¹ case and Rushikesh Thanaji Bhoite v. State of Maharastra² case and three judge Bench judgment of Apex Court in Rekha v. State of Tamilnadu³ case, in which the Apex Court held as follows:

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“ The detaining authority was not even aware whether a bail application of the accused was pending when he passed the detention order, rather the detaining authority passed the detention order under the impression that no bail application of the accused was pending, but in similar cases bail had been granted by the courts. We have already stated above that no details of alleged

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1 2017(1) ALD Crl.224

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2 (2012) 2 SCC 72

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32011 (5) SCC 244

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similar cases have been given. Hence, the detention order in question cannot be sustained” .

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10. In Syed Sabeena v. The State of Telangana and others⁴

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at Para No.17 it is held by the APEX Court that: “in any case, the State is not without a remedy, as in case the detenue is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case."

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Recently, the Hon’ble Supreme Court in Pramod Singla v. Union of India and Others⁵ , held at Para No.48 as follows :

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As has been mentioned above, preventive detention laws in India are a colonial legacy, and as such, are extremely powerful laws that have the ability to confer arbitrary power to the state. In such a circumstance, where there is a possibility of an unfettered discretion of power by the Government, this Court must analyze cases arising from such laws with extreme caution and excruciating detail, to ensure that there are checks and balances on the power of the Government. Every procedural rigidity must be

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followed in entirety by the Government in cases of preventive detention, and every lapse in procedure

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4 Crl.A.No.909 of 2022 (SLP(Crl).No.4283 of 2022) (Supreme Court of India)

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5 2023 SCC Online SC 374

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must give rise to a benefit to the case of the detenue .

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The Courts, in circumstances of preventive detention, are conferred with the duty that has been given the utmost importance by the Constitution, which is the protection of individual and civil liberties. This act of protecting civil liberties, is not just the saving of rights of individuals in person and the society at large, but is also an act of preserving our Constitutional ethos, which is a product of a series of struggles against the arbitrary power of the British state.

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After considering the law laid down above, W.P.No.30649 of 2022 was allowed granting relief in favour of the petitioner therein.

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In the counter by the 2^nd respondent it is stated that the detenue said to have committed offences will cause harm, danger and feeling of fear and insecurity among the general public and hence public order is deemed to have been adversely affected. He further stated that the offences committed by him demonstrate the fact that he has been in the habit of committing offences with unflinching regularity, which proves that he is a goonda. Per contra, the learned counsel for the petitioner contends that out of fifteen cases, the detenue was acquitted in eight cases and one is bind over case and the said fact was admitted by the respondents in their counter, thus,

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detention order itself shows the 2^nd respondent did not apply his mind while passing the detention order. In this connection, it is relevant to state Section 2 of the Act, specifically ordines that public order shall be deemed to have been affected if the actions of the detenu are directly causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof. In addition, there should be “a grave or widespread danger to life or public health.” Therefore, there should be a likelihood of immediate harm being caused or an imminent likelihood of harm or danger being caused. In addition, the action should also create a feeling of alarm or feeling of insecurity among the portion or among the general public. Lastly, there should be a likelihood of grave or widespread danger to life or public health. But all these facts are conspicuously absent in the detention order.

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In the present case also, the fact that the detenue was in judicial custody at the time of passing detention order is not considered and no reasons are assigned that he will commit further crimes. If the detenue is in judicial custody, and the State intended to pass detention order, it should strictly follow the triple test i.e., the requirement test laid down in the case of

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Kamarunnisa v Union of India⁶ in which it was held “an order of detention can be validly passed against a person in custody (1) 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. This court notices that the order of detention did not meet this triple test and that there is no material”. In the present case also the law laid down in Karimunna’s case has not been considered.

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It is not clear how the authorities concluded that ordinary law is not sufficient to stop the alleged crimes. It is clear from the detention order the offences made against the detenue can be dealt with under the penal laws and which are sufficient to deal with the situation and that invoking provisions of preventive detention is completely unnecessary as settled by this Court in several judgments. This Court could not find that the order of detention refers to clear material to either substantiate or justify the said allegation that the detenue is a ‘Goonda’.

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6 (1991) 1 SCC 128

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For the aforesaid reasons, this Writ Petition is allowed, setting aside the order of detention passed by the 2^nd respondent vide proceedings in REV-CSECOPDL(PRC)/7/2022SA(C1)-COLLKRNL, dated 28.11.2022 as confirmed by the State Government vide G.O.Rt.No.181 General Administration (SC.I) Department, dated 27.01.2023. Consequently, the detenue namely Gurrala Kranthi Kumar, S/o.G.Narayana, aged 24 years, is directed to be released forthwith by the respondents if the detenue is not required in any other cases. No orders as to costs.

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Miscellaneous petitions pending if any, stand closed.

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_________________________________ JUSTICE D.V.S.S.SOMAYAJULU

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______________________ JUSTICE V.SRINIVAS

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Date: .06.2023 Issue C.C. today B/o. krs

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THE HON’BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

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AND

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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I.A.NO.1 of 2023 IN/AND

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WRIT PETITION No.1195 of 2023

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DATE: .06.2023

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krs

Gurrala Bhagaymma v. The state of Andhra Pradesh

Case brief

What is this about?

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Gurrala Bhagaymma v. The state of Andhra Pradesh

Case brief

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