Nandyala Shaik Saleem vs State of AP

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2024 Supreme(AP) 1403

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
U. DURGA PRASAD RAO, KIRANMAYEE MANDAVA, JJ.
Nandyala Shaik Saleem - Appellant
Versus
The State of AP and Ors. – Respondents
Writ Petition No. 1757 of 2024
Decided On : 21-03-2024

Important Points

Non-consideration of bail orders in preventive detention renders the detention order illegal, impairing the detenue's right to make an effective representation.

Subject

Constitutional Law - Preventive Detention

Act Referred

ANDHRA PRADESH PREVENTION OF DANGEROUS ACTIVITIES OF BOOT LEGGERS, DACOITS, DRUG OFFENDERS, GOONDAS IMMORAL TRAFFIC OFFENDERS AND LAND GRABBERS ACT : S.2(f), S.3(1)
CONSTITUTION OF INDIA : Art.22, Art.22(5)

Headnote

(A) A.P. Prevention of Dangerous Activities of Bootleggers and Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 - Sections 2(f) and 3(1) - Habeas Corpus petition - Detention order confirmed without considering bail orders - Non-furnishing of bail orders to the detenue impairs the right to make an effective representation, rendering the detention illegal. (Paras 2, 9, 10)

(B) Preventive Detention - Safeguards - The detaining authority must consider all relevant materials, including bail orders, to ensure the subjective satisfaction required for lawful detention. (Paras 9, 10)

Facts of the case:
The petitioner, brother of the detenue, challenged the detention of Smt. Khairun Bee under the A.P. Act, claiming that bail orders were not considered, impairing her right to representation. The detenue was accused of multiple drug-related offenses.

Findings of Court:
The court found that the failure to consider bail orders invalidated the detention order, as it did not allow the detenue to make an effective representation.

Issues: The main issues were whether the non-consideration of bail orders rendered the detention order illegal and whether the detaining authority's subjective satisfaction was valid.

Ratio Decidendi: The court ruled that non-furnishing and non-consideration of bail orders vitiate the detention order, as they are vital for the detaining authority's satisfaction.

Result: The Writ Petition is allowed, and the detention order is set aside.

Advocates Appeared:
For the Appellant : K. Mohan Rami Reddy.
For the Respondents:The Advocate General.

ORDER :

(Kiranmayee Mandava, J.)

1. This Writ Petition is filed for issuance of Habeas Corpus by directing the 4th respondent to produce the detenue and set him at liberty by declaring the proceedings of the 2nd respondent, in detaining Smt. Khairun Bee, W/o. Abdul Gafoor, vide order dated 20-06-2023 in Rc.No.Cl/513/M/2023, as confirmed by the 1st respondent in G.O.Rt.No.1675 dated 21.08.2023, as illegal and unconstitutional.

2. The petitioner is the brother of the detenue. He contends that the the 2nd respondent vide proceedings dated 20-06-2023, passed an order of detention under Sec.3(1) read with Sec.2(f) of the A.P Prevention of Dangerous Activities of Bootleggers and Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, (for short "Act No.1 of 1986"), placing the detenue under detention in Central Special Prison, Kadapa,. The said order of detention was confirmed by the 1st respondent vide G.O.Rt.No.1675 dated 21.08.2023, treating the detenue as 'Drug offender" as defined under Sec.2 (f) of Act, 1 of 1986. The following are cases, that have been taken into consideration by the 2nd respondent, while placing the detenue under detention:

S.No.	Crime No.	Provision of law	Date of offence	Police Station
1.	104/2008	U/s.20 of NDPS Act	23.08.2008	Bandi Atmakur P.S.
2.	68/2019	U/s.20(b) of NDPS Act	24.04.2019	Kurnool I Town P.S.
3.	360/2019	U/s.20(b) of NDPS Act	26.07.2019	Nandyal Excise P.S.
4.	06/2020	U/s.20(b) of NDPS Act	08.01.2020	Kurnool I Town P.S.
5.	91/2022	U/s.20(b) (ii) (c), 15(c) r/w 8(c) of NDPS Act, 1985	17.05.2022	Duvvur P.S.
6.	202/2022	U/s.20(b) of NDPS Act	18.08.2022	Nandyal III Town P.S.
7.	21/2023	U/s.20(b) (ii) (c), r/w 8(c) and Sec.25 of NDPS Act, 1985	10.03.2023	Bandi Atmakur P.S.

3. The petitioner contends that the sponsoring authority did not place the bail orders before the detaining authority and further that the same were not served on the detenue, in order to enable her to make a representation to the Advisory Board and the government, resulting in passing of the order of confirmation of the detention order.

4. The 2nd respondent filed his counter affidavit. It is stated by the 2nd respondent that the sponsoring authority has placed the entire material before the detaining authority and had also furnished all the information relating to granting of bails to the detenue and it is further stated by him that non furnishing of bail orders will not vitiate the detention order and that the detenue has committed seven (7) offences relating to selling of 'ganja', and in order to prevent from possibility of committing further offences and to ensure maintenance of public order, the order of detention was passed.

5. Heard Sri K. Ram Mohan Reddy, learned counsel of the petitioner and the learned Special Government Pleader representing learned Advocate General for the respondents.

6. The learned counsel for the petitioner contends that though the Hon'ble Supreme Court and this Court, time and again had held that non considering of the bail orders and their non furnishing to the detenue, would deprive the right of the detenue to make an effective representation to the government and render the detention illegal per se illegal. It is contended that, the sponsoring authority did not place the copies of the bail orders before the detaining authority and the same were not furnished to the detenue. He thus, prays to the set aside the order impugned.

7. On the other hand, the learned Special Government Pleader for the respondents doesn't dispute the factum of non supply of bail orders to the petitioner, however contends that non furnishing of the same will not vitiate the proceedings.

8. In order to facilitate the detenue to make an effective representation to the government, it is i