Allowed

Thellamekala Desemma v. The State of Andhra Pradesh

Andhra Pradesh HC11 Apr 2023WP/27930/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an order of preventive detention. The Court quashed the order under the AP PDGOAIATOGA Act, 1986, holding that vital information regarding the detenue's release on bail in six out of seven cases was suppressed. Relying on Rekha v. State of Tamil Nadu, the Court found insufficient material to justify classifying the detainee as a 'Goonda' and direc

What did the court decide?

Order of detention quashed; detenue Thellamekala Avinakshaiah directed to be released forthwith by the respondents.

Thellamekala Desemma Vs The State of… — Pension and Retirement Benefits | Andhra Pradesh HC (2023)

¶1

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

¶2

THE HON’BLE SRI JUSTICE V.SRINIVAS

¶3

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

¶4

WRIT PETITION No.27930 of 2022

¶5

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

¶6

In this writ petition, the petitioner is challenging the order of detention of her husband Thellamekala Avinakshaiah, S/o.Chandra, in order of detention vide REV-MAGL-1/482/2022, dt.07.06.2022 passed by the 2^nd respondent-The Collector & District Magistrate, Tirupati District as confirmed by the 1^st respondent-the State as per G.O.Rt.No.1611, General Administration (SC.I) Department, dated 05.08.2022 and prays to direct the respondent authorities to set the detenue at liberty forthwith.

¶7

During the pendency, I.A.No.1 of 2023 is filed by the petitioner to amend the prayer in W.P.No.27930 of 2022 to the extent of inserting the confirmation orders of detention passed by the 1^st respondent-the State vide G.O.Rt.No.1611, General Administration (SC.I) Department, dated 05.08.2022.

¶8

Learned counsel for the respondent did not raise any objection to consider the said application and the same is therefore ordered.

¶9

The Collector and District Magistrate, Tirupati 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

¶10

¶11

Grabbers Act, 1986 (for short, ‘the Act 1 of 1986’) passed the impugned order of detention. The said order of detention came to be confirmed by the Government vide G.O.Rt.No.1611, General Administration (SC.I) Department, 05.08.2022.

¶12

Heard Sri D.Purna Chandra Reddy, learned counsel for the petitioner and Sri Syed Khader Mastan, learned counsel attached to the office of learned Additional Advocate General for the respondents.

¶13

Learned counsel for the petitioner submits that after passing the prevention orders by 2^nd respondent, they served a spiral binding book consists the order and grounds of detention along with other material relied on by detaining authority, but on perusal, except giving the said paper book no information was given to her son about the developments or other details, such as approving or confirming the order of detention. 8. Learned counsel for the petitioner further submits that having waited for a considerable period as there are no further details about the prevention of detention order and they were put on dark about the details of preventive detention more so as her son is already languishing in Central Prison, Kadapa, this case is filed.

¶14

Learned counsel for the petitioner further submits that in the order of preventive detention it is stated that there are seven(7) cases were registered against her husband, which are originally registered

¶15

¶16

against unknown persons and same are old cases and out of seven cases, her husband was already released on bail in six cases and the same was suppressed as it is a vital information and that in view of non-furnishing the information regarding the bail orders, the detenue could not submit an effective representation before the concerned authorities.

¶17

He further submits that detaining authority did not supply the material relied on by them within the stipulated period of five days and only the order and grounds of detention along with material supplied after about three(3) weeks, but the subsequent developments such as approval and confirmation of the order of preventive detention were not informed to the detenue, thereby, it vitiates the entire order of preventive detention.

¶18

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.

¶19

On the other hand, reiterating the averments made in the counter affidavit filed by the respondents, it is submitted by Sri Syed Khader Mastan, learned counsel attached to the office of Additional Advocate General that having regard to the gravity of the offenses, the orders impugned in the Writ Petition do not warrant any interference of this Court under Article 226 of the Constitution of India.

¶20

¶21

A perusal of the order dated 06.03.2023 passed by this Court in W.P.No.30649 of 2022 clearly demonstrates that this court after discussing the law laid down in Gattu Kavitha v. State of 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 the Apex Court held as follows:

¶22

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

¶23

After considering above, it is clear that the issues raised in the present Writ Petition, were similar to the allegation raised in the aforesaid Writ Petition i.e., W.P.No.30649 of 2022 wherein this Court allowed the said Writ Petition and granted relief in favor of the petitioner in the said Writ Petition.

¶24

In the present case also the detenue will not fall under the category of Section 2(g) of the Act and out of the seven cases, the

¶25

1 2017(1) ALD Crl.224

¶26

2 (2012) 2 SCC 72

¶27

3 2011 (5) SCC 244

¶28

¶29

detenu was already released on bail in six cases and only in one case, bail was not granted. The vital information was not considered and in the opinion of this Court the Judgement of the Apex Court in Rekha's case cited above applies to the facts. This Court could not find in the order of detention or later that there was material to either substantiate or justify the said allegation that the detenue is a ‘Goonda’.

¶30

Hence, this Writ Petition is also allowed for all the reasons mentioned above setting aside the order of detention passed by the 2^nd respondent vide proceedings in REV-MAGL-1/482/2022, dt.07.06.2022 as confirmed by the State Government vide G.O.Rt.No.1611, General Administration (SC.I) Department, dated 05.08.2022 and consequently the detenue namely Thellamekala Avinakshaiah, S/o.Chandra, is directed to be released forthwith by the respondents if the detenue is not required in any other cases.

¶31