w w w . L a w y e r S e r v i c e s . i n



Vadde Padmamma v/s The State of Telangana, Rep. by its Principal Secretary to Government, Home Department, Secretariat BRKR Bhavan, Hyderabad & Others


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    Writ Petition No. 6568 of 2020

    Decided On, 06 August 2020

    At, High Court of for the State of Telangana

    By, THE HONOURABLE CHIEF JUSTICE MR. RAGHVENDRA SINGH CHAUHAN & THE HONOURABLE MR. JUSTICE B. VIJAYSEN REDDY

    For the Petitioner: M/s. C. Hari Preeth, Advocate. For the Respondents: T. Srikanth Reddy GP for Home.



Judgment Text


B. Vijaysen Reddy, J.

1. The detention order vide Proceedings. No.C1/875 of 2020, dated 20.03.2020 passed against the detenu namely Vadde Venkatappa @ Venkataiah @ Venkatesh, S/o. Nagendrappa by the 3rd respondent, Collector and District Magistrate, Vikarabad District, in exercise of powers conferred under Section 3(1) and (2) of the Prevention of Black-Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act. No.7 of 1980) (for short ‘the Act’) and the consequential Proceedings of the 2nd respondent in G.O.Rt.No.896, Dt.16.05.2020 along with the Memo issued by him in Memo No.133/Spl.(L & O)/A2/2020-3, Dt.16.05.2020 served on the detenu on 20.05.2020, are challenged in this Writ of Habeas Corpus as being illegal and arbitrary.

2. The detention order is passed on three ground cases viz..

1) Cr.No.123 of 2019, U/s.420 IPC Section 7 of EC Act and Clause 17 (e) of TSPDS Control Orders, 2016 Tandur Town P.S.,

2) Cr.No.232 of 2019 U/s.420 IPC Section 7 of EC Act and Clause 17 (e) of TSPDS Control Orders, 2016 Tandur Town P.S., and

3) Cr.No.143 of 2019 U/s.420 IPC Section 7 of EC Act and Clause 17 (e) of TSPDS Control Orders, 2016 Karankote P.S.

3. Heard Mr. C. Hari Preeth, learned counsel for the petitioner and the learned Government Pleader for Home Mr. T. Srikanth Reddy for the respondents.

4. The learned counsel Mr. C. Hari Preeth submitted that the detenu was granted anticipatory bail on 16.12.2019 in Cr.Nos.123 and 232 of 2019 by the Principal Sessions Judge Court at L.B.Nagar, Ranga Reddy District, vide Crl.MP.No.349 of 2019 and 350 of 2019 and in compliance of conditions imposed therein the detenu surrendered before the concerned Police and was released on bail upon furnishing sureties as directed by the Court. In Cr.No.143 of 2019 of Karankote P.S. the detenu was arrested on 10.10.2019 and remanded to judicial custody. The detenu was granted conditional bail on 22.10.2019 in Crl.MP.No.190 of 2019 and was released from jail. The learned counsel further submitted that the detenu is falsely implicated in the above three crimes and in any case the offences relating to Essential Commodities Act r/w.Section 420 IPC do not come under the purview of public order. The competent criminal Court is ceased of all the three criminal cases which relate to diversion of public distribution system (PDS) stocks. There is no sufficient material to treat the detenu as Black Marketer. The opinion formed by the detaining authority that the detenu may indulge in Black Marketing affecting the public distribution system is wholly untenable and vindictive only to curtail the life and liberty of the detenu. The last crime was booked on 07.10.2019 and after a delay of more than five months impugned detention order is passed without any explanation for such delay. The detention order is violative of Article 21 of the Constitution of India.

5. Learned Government Pleader for Home submitted that in all the above three cases the detenu was found to have procuring/purchasing PDS rice for public distribution from white ration card holders/FP shop dealers at cheaper rate, storing and selling the same in black market for pecuniary benefits and having felt that the cases registered against him under ordinary law have no deterrent effect, the detention order is passed. Further the detenu continued his clandestine PDS rice business one after the other in a quick succession in a span of five months and he was involved in three offences on a regular basis and having satisfied that the activities of the detenu are prejudicial to the maintenance of supplies of commodities, it was necessary to detain him and hence impugned order is passed with a view to prevent him from indulging in such activities, in the interest of community at large. The detenu is a “black marketeer” under Section 3(1) and (2) of the Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980. The detaining authority having considered the entire material placed before her, including the bail petitions and orders passed therein and having satisfied that the detenu is obstructing in the process of supply of essential commodities to the poor and needy people which is in contravention of Clause 17 of TSPDS (Control) Order 2016 and Section 7 of the Act, r/w Section 420 IPC passed the detention order duly following the well established procedure under the law and in strict compliance of provisions of the Act.

6. Preventive detention is an extreme step, which can be resorted to by an executive authority as a last resort. Before passing of detention order the authority has to keep in mind that liberty of an individual, which is a precious and cherished fundamental right guaranteed under Article 21 of the Constitution of India, is being deprived. In the process of depriving an individual of such valuable right to life and personal liberty, the authority has to satisfy itself that the activities of the detenu are of such nature which cannot be curbed except for passing the detention order. Personal liberty of an individual which is a precious and basic human right cannot be allowed to be trampled with at the whims and fancies of the executive authorities. The detention order needs to be passed for genuine and bona fide reasons and not on extraneous grounds. It should subserve the purpose and object of the Act under which the authority has drawn its power. The detention order may be passed under Section 3 of the Act if the Government is satisfied that a person is to be detained, with a view to prevent him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. The main object for passing the detention order being “maintenance of supplies of commodities essential to the community” it has to be ensured that such object is achieved. The detention order should pass the test of proximate theory, which had been reiterated in catena of decisions rendered by the Hon’ble Apex Court. If there is no proximity and live-connection between the detention order and the prejudicial activities, the detention order is liable to be stamped down as being passed in arbitrary and colourable exercise of power since it amounts to deprivation of personal liberty of an individual guaranteed under Article 21 of the Constitution of India.

In KISHORI MOHAN BERA Vs. STATE OF WEST BENGAL (1972) 3 SCC 845) the Hon’ble Apex Court held at page 847, para 4 as under:

“The Act confers extraordinary power on the executive to detain a person without recourse to the ordinary laws of the land and to trial by Courts. Obviously, such a power places the personal liberty of such a person in extreme peril against which he is provided with a limited right of challenge only. There can, therefore, be no doubt that such a law has to be strictly construed. Equally also, the power conferred by such a law has to be exercised with extreme care and scrupulously within the bounds laid down in such a law.”

In YUMMAN ONGBI LEMBI LEIMA Vs. STATE OF MANIPUR AND OTHERS (2012) 2 Supreme Court Cases 6), the Apex Court held at para 27 as under:

“27. As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order.”

Further, in STATE OF MAHARASHTRA Vs. BHAURAO PUNJABRAO GAWANDE (2008) 3 SCC 613) it is held at para 23 as under:

“23…… personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a Government was established, their second object, equally important, was to protect the people against the Government. That is why, while conferring extensive powers on the Government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as ‘fundamental’.”

7. Now coming to the facts of the present case, the first crime was registered on 23.05.2019, the second and third crimes were registered on 07.10.2019 and the detention order was passed on 20.03.2020. There is a gap of about 5 months between the date of registration of last two crimes and the date of detention order. The delay between the prejudicial activities (i.e. on 07.10.2019 when the last two crimes were registered) and the detention order on the face of it is inordinate delay, and such delay is not explained in the detention order. The delay should not only be explained, but also satisfactorily explained. In the detention order, which runs into seven pages, there is no reference at all about the delay. When there is an unexplained delay in passing the detention order, the genuineness of the proceedings becomes doubtful. Unless such delay is explained the Court does not have any alternative but to hold that the detention order is passed for extraneous considerations. For, the very purpose of preventive detention is defeated inasmuch as the detenu is allowed to go to scot-free for a period of five and a half months from the date when the last prejudicial act was committed.

In T.A. ABDUL RAHMAN Vs. STATE OF KERALA (1989) 4 SCC 741) it was held as under:

The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case.

Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.

The Hon’ble Supreme Court of India in LAKSHMAN KHATIK Vs. THE STATE OF WEST BENGAL (AIR 1974 SC 1264) held at para 5 as under:

“5. All the three grounds on which the District Magistrate purports to have reached the required satisfaction are based on incidents which took place in rapid succession in the month of August, 1971. The first incident of unloading 5 bags of rice took place in the afternoon of 3-8-1971. The second incident took place on 5-8-1971 also in the afternoon practically at the same place as the first incident. This time also some rice was removed from the trucks carrying rice. The third incident took place in the afternoon of 20-8-1971 also at the same place. That also related to the removal of some rice from loaded trucks It is not clear from the record whether the petitioner was prosecuted for the theft, especially, when it is seen that the first incident of removal of rice was witnessed by two constables. However that might be, it appears to us that the District Magistrate could not have been possibly satisfied about the need for detention on 22-3-1972 having regard to the detenu's conduct some 7 months earlier. Indeed mere delay in passing a detention order is not conclusive, but we have to see the type of grounds given and consider whether such grounds could really weigh with an officer some 7 months later in coming to the conclusion that it was necessary to detain the petitioner to prevent him from cting in a manner prejudicial to the maintenance of essential supplies of foodgrains. It is not explained why there was such a long delay in passing the order. The District Magistrate appears almost to have passed an order of conviction and sentence for offences committed about 7 months earlier. The authorities concerned must have due regard to the object with which the order is passed, and if the object was to prevent disruption of supplies of food grains one should think that prompt action in such matters should be taken as soon as incidents like those which are referred to in the grounds have taken place. In our opinion the order of detention is invalid.”

In PRADEEP NILKANTH PATURKAR Vs. S. RAMA MURTHY AND OTHERS (1999 Suppl.2 SCC 61) it was held as under:

13. Coming to the case on hand, the detention order was passed after 5 months and 8 days from the date of the registration of the last case and more than 4 months from submission of the proposal. What disturbs our mind is that the statements fr

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om the witnesses A to E were obtained only after the detenu became successful in getting bail in all the prohibition cases registered against him, that too in the later part of March 1991. These statements are very much referred to in the grounds of detention and relied upon by the detaining authority along with the registration of the cases under the Act. 14. Under the above circumstances, taking into consideration of the un-explained delay whether short or long especially when the appellant has taken a specific plea of delay, we are constrained to quash the detention order. Accordingly we allow the appeal, set aside the judgment of the High Court and quash the impugned detention order. The detenu is directed to be set at liberty forthwith.” 8. In the light of the above observations, impugned detention order dated 20.03.2020 is liable to be set aside and this writ petition is liable to be allowed. In the result, the Writ Petition is allowed. The impugned detention order dated 20.03.2020 passed by the respondent No.3, and the consequential confirmation order vide G.O.Rt. No.896, dated 16.05.2020 passed by the respondent No.2 are, hereby set aside. The respondents are directed to set the detenu, namely Vadde Venkatappa @ Venkataiah @ Venkatesh, S/o. Nagendrappa, at liberty forthwith, in case he is no longer detained in the criminal cases, which have been registered so far against him. As a sequel, the miscellaneous petitions, pending if any, shall stand closed. There shall be no order as to costs.
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05-05-2020 R. Sreedhar Versus The Principal Secretary, Government of Tamil Nadu, Home Department, Chief Secretariat, Chennai & Others High Court of Judicature at Madras
04-05-2020 A. Palanisamy @ Palaniappan Versus The Home Secretary (Prison IV) Home Department, Secretariat, Chennai & Others High Court of Judicature at Madras
29-04-2020 AM (Zimbabwe) Versus Secretary of State for the Home Department United Kingdom Supreme Court
28-04-2020 HRT Builders, rep. by its Managing Partner Thondepu Ratna Srinivas Versus State of A.P. rep by its Principal Secretary, Home Department, Velagapudi & Another High Court of Andhra Pradesh
21-04-2020 Deodutta Gangadhar Marathe Versus The State of Maharashtra through Secretary, Department of Home, Mantralaya & Others High Court of Judicature at Bombay
21-04-2020 A. Mallikarjuna Versus Government of India Ministry of Home Affairs, Disaster Management Division, Represented by its Secretary & Others High Court of Karnataka
17-04-2020 Santhosha Nanban Home for Boys, Rep by its Superintendent Dorothy Marry Versus Union of India, Rep by The Chief Secretary to Government, Government of Puducherry, Chief Secretariat, Puducherry & Others High Court of Judicature at Madras