Smt. Lalbi v. The State Of Andhra Pradesh

THE HON' BLE SRI JUSTICE C. V. NAGARJUNA REDDY Date: 26th June, 2018 Between:

Smt. Lalbi w/o Ergamreddy Naga Dasthagiri Reddy ... Petitioner And The State of A.P., and 3 others ... Respondents COUNSEL FOR PETITIONER :

Mr. S. Dushyanth Reddy COUNSEL FOR RESPONDENTS :

Mr. C.S. Surya Prakash Rao, Special G.P., for the respondents THE COURT MADE THE FOLLOWING:

THE HON' BLE SRI JUSTICE C.V. NAGARJUNA REDDY ORDER: (per the Hon' ble Sri Justice C.V. Nagarjuna Reddy) This Writ Petition is filed for issue of Habeas Corpus, directing the release of Eragamreddy Naga Dasthagiri Reddy, the husband of the petitioner, (for short, 'the detenu'), after quashing of the detention order Reference No.C1/76/M/2018, dated 21.02.2018, of the respondent No.2.

At the hearing, Mr. S. Dushyanth Reddy, learned counsel for the petitioner, submitted that in the impugned detention order, respondent No.2 has not recorded his subjective satisfaction that there is a possibility of the detenu being released on bail and repeat similar offences.

Learned Government Pleader for Home has fairly not disputed that not only the impugned detention order does not contain such a satisfaction but also if such satisfaction is not recorded by the detaining authority in the detention order, the same cannot be sustained as per the settled legal position in the light of N. Meera Rani v. Government of Tamil Nadu1.

1 (1989) 4 SCC 418

In N. Meera Rani (1 supra), the Supreme Court held as under: "Applying the above settled principle to the facts of the present case we have no doubt that the detention order, in the present case, must be quashed for this reason alone. The detention order read with its annexure indicates the detaining authority's awareness of the fact of detenu's jail custody at the time of the making of the detention order. However, there is no indication therein that the detaining authority considered it likely that the detenu could be released on bail. In fact, the contents of the order, particularly, the above quoted para 18 show the satisfaction of the detaining authority that there was ample material to prove the detenu's complicity in the bank dacoity including sharing of the booty in spite of absence of his name in the FIR as one of the dacoits.

On these facts, the order of detention passed in the present case on September 7, 1988 and its confirmation by the State Government on October 25, 1988 is clearly invalid since the same was made when the detenu was already in jail custody for the offence of bank dacoity with no prospect of his release. It does not satisfy the test indicated by the Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan (AIR 1964 SC 334). We hold the detention order to be invalid for this reason alone and express no opinion on merits about the grounds of detention."

In our opinion, what is relevant to the detaining authority to consider is whether a person who is already in custody is likely to be released on bail and only if he is satisfied that there is such a possibility, he can pass a detention order so as to prevent him from being released and repeating the offences which are likely to disturb public order. Insisting on recording of such satisfaction is based on the fact that as the person is already in custody, there is no need for detaining him under the preventive detention laws. Therefore, the Courts, by way of various judicial pronouncements, have made it obligatory on the part of the detaining authority to record its satisfaction that there is a likelihood of the detenu being released on bail and repeat the offences.

In this view of the matter, failure of respondent No.2 to record his satisfaction referred to above renders the impugned detention order wholly illegal and unsustainable.

For the aforementioned reasons, the impugned detention order Reference No.C1/76/M/2018 dated 21.02.2018 of respondent No.2, is set aside and the Writ Petition is allowed.

__________________________ C.V. NAGARJUNA REDDY, J ____________________________ GUDISEVA SHYAM PRASAD, J 26th June, 2018 ksm

THE HON' BLE SRI JUSTICE C.V. NAGARJUNA REDDY 26th June, 2018 ksm