Allowed

Pachabottu Velamganamma v. The State of Andhra Pradesh

Andhra Pradesh HC29 Mar 2023WP/32597/2022

Case brief

AI extract

What is this about?

This order allowed a writ petition challenging an order of preventive detention against the petitioner's son. The High Court set aside the detention, finding it based on stale grounds, lacking justification, and substituting ordinary law with preventive detention.

What did the court decide?

The detention order passed vide Rc.C1(Magl)/149/2022, dt.20.06.2022, confirmed by G.O.Rt.No.1688, dated 16.08.2022, is set aside, and the detenue is directed to be released forthwith.

Pachabottu Velamganamma Vs The State of… — Criminal Trial and Appeal | Andhra Pradesh HC (2023)

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

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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WRIT PETITION No.32597 of 2022

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

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In this writ petition, the petitioner is challenging the order of detention of her son Pachabottu Deva @ Ganesh, S/o.late Yesu, in order of detention vide Rc.C1(Magl)/149/2022, dt.20.06.2022 passed by the 2^nd respondent-The Collector & District Magistrate, SPSR Nellore District and confirmed by the 1^st respondent-the State as per G.O.Rt.No.1688, General Administration (SC.I) Department, dated 16.08.2022 and prays to direct the respondent authorities to set the detenue at liberty forthwith.

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The Collector and District Magistrate, SPSR Nellore 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 said order of detention came to be confirmed by the Government vide G.O.Rt.No.1688, General Administration (SC.I) Department, 16.08.2022.

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Heard Sri Siva Prasad Reddy Venati, learned counsel for the petitioner and Sri 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 after passing the prevention orders by 2^nd respondent, the 2nd respondent passed the order of detention based on the stale and non-existing grounds, thereby the order of detention is liable to be set aside.

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Learned counsel for the petitioner further submits that subsequent to 16.10.2021, there is no new case that was registered against the detenue, in-fact, the last case was ended before Lok Adalat on 16.10.2021, though there is no fresh incident, the 2nd respondent passed the order of preventive detention for statistical purpose. The learned counsel further submits that on perusal of detention order there are six cases shown and that all the six cases are old cases and no new case registered against the detenue from the past eight months.

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Learned counsel for the petitioner further submits that the detenue was granted bails in three out of six cases, first and last case ended in Lok Adalat and that, in the grounds of detention, strangely it is found, the 2nd respondent did not even supply the relevant documents for enabling the detenue to make effective representation before the competent authority and the 2nd respondent without knowing the contents of bail applications and orders thereon, passed an order of preventive detention.

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Learned counsel for the petitioner further submits that the order of detention passed against the detenue is illegal and not

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maintainable and penal laws are sufficient to deal with the offenses said to have committed by the detenue. He further submits that the detenue will not fall under the said criteria (Goonda) and no material is placed either to substantiate or justify the allegation that the detenue is a ‘Goonda’.

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Learned counsel for the petitioner relied upon the judgment of Hon’ble Supreme Court in Banka Sneha Sheela v. State of Telangana¹ in which the Hon’ble Supreme Court referred Munagala Yadamma v. State of Andhra Pradesh² and Rekha v. State of Tamilnadu³ . The learned counsel for the petitioner brought to the notice of this Court a judgment of Apex Court in T.A.Abdul Rehman v. State of Kerala and others⁴ and Ram Manohar Lohiya v. State of Bihar⁵ .

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On the other hand, reiterating the averments made in the counter affidavit filed by the respondents, it is submitted by the learned counsel attached to the office of Additional Advocate General that having regard to the gravity of the offenses including the offenses said to have committed by detenue is under Section 302 of IPC and NDPS Act, which are disturbance of public order, thereby, the orders

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1 2021 (9) SCC 415

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2 2012 (2) SCC 386

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3 2011 (5) SCC 244

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4 1989 (4) SCC 741

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5 AIR 1966 SC 740

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impugned in the Writ Petition do not warrants any interference of this Court under Article 226 of the Constitution of India.

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A perusal three judge Bench judgment of Apex Court in Rekha Case (referred to supra) , in which the principle followed and 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 similar cases have been given. Hence, the detention order in question cannot be sustained” .

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In Dr.Ram Manohar Lohia case (referred to supra), a Constitution Bench of the Supreme Court, speaking through M.Hidayathullah,J(as his Lordship then was), explained the difference between disturbance to law and order and that of public order. The Court has explained the whole concept of ‘public order’ and ‘law and order’, by observing that one has to imagine three concentric circles wherein law and order represents the largest circle, within which is the next circle representing public order and the smallest circle represents security of the State. The Court has in detail pointed out the difference between the maintenance of law and order and that of public order…….

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It is also settled law that when ordinary law is capable of dealing with the alleged prejudicial activities of the detenue, the provisions of

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preventive detention law cannot be invoked. The executive authority has to keep in mind before the detention order passes that ordinary law will not act as deterrent on the activities of the detenue.

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After considering above, on perusal of the facts in this case there is no finding on the proximity of detenue will commit similar offenses and apparently in between the last date of offense and date of passing of detention order near or about eight(8) months and there is no discussion in the impugned detention order as to how the activities of the detenue would affect the public order and also the compelling reasons for invoking the provisions of Act 1 of 1986, when ordinary law is sufficient. Preventive detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes in which detenue may have committed and detention order cannot be used as an instrument to keep a person in perpetual custody. Moreso, it is available on the record placed before this Court that shows that the first crime and sixth crime were settled before Lok Adalat that is enough/sole ground to set aside the detention order and that the detaining authority did not consider that out of six cases in three cases bail was granted and no finding on public order. Simply because detenue committed offenses under IPC is not sufficient and committing an offence under NDPS Act is not relevant.

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Having regard to the above, in the present case also the detenue will not fall under the category of Section 2(g) of the Act and that this Court could not find that the order of detention do not have any material to either substantiate or justify the said allegation that the detenue is a ‘Goonda’ and for the reasons recorded, this Writ Petition is allowed in terms thereof, setting aside the order of detention passed by the 2^nd respondent vide proceedings in Rc.C1(Magl)/149/2022, dt.20.06.2022 as confirmed by the State Government vide G.O.Rt.No.1688, General Administration (SC.I) Department, dated 16.08.2022 and consequently the detenue namely Pachabottu Deva @ Ganesh, S/o.late Yesu, is directed to be released forthwith by the respondents if the detenue is not required in any other cases.

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