APHC010387972025 IN THE HIGH COURT OF ANDHRA PRADESH MONDAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA WRIT PETITION NO: 19681/2025 Between: 1. POTHINENI SAROJINI, W/O. LATE PAMULU, AGED ABOUT 55 YEARS, R/O. VEJENDIA VILLAGE, CHEBROLU MANDAL, GUNTUR DISTRICT. 1. THE STATE OF AP, REP. BY SECRETARIAT BUILDINGS, VELAGAPUDI GUNTUR, ANDHRA PRADESH. 2. THE COLLECTOR DISTRICT MAGISTRATE, GUNTUR, GUNTUR DISTRICT. 3. THE SUPERINTENDENT OF POLICE, GUNTUR, GUNTUR DISTRICT. 4. THE SUPERINTENDENT OF JAIL, CENTRAL PRISON, RAJAMAHENDRAVARAM, EAST GODAVARI DISTRICT. 5. THE SUBINSPECTOR OF POLICE, CHEBROLU PS, GUNTUR DISTRICT. Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased topleased to issue an order, Writ or direction, more particularly one in IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA WRIT PETITION NO: 19681/2025 POTHINENI SAROJINI, W/O. LATE PAMULU, AGED ABOUT 55 YEARS, R/O. VEJENDIA VILLAGE, CHEBROLU MANDAL, GUNTUR ...PETITIONER AND THE STATE OF AP, REP. BY ITS CHIEF SECRETARY, SECRETARIAT BUILDINGS, VELAGAPUDI GUNTUR, ANDHRA THE COLLECTOR DISTRICT MAGISTRATE, GUNTUR, GUNTUR THE SUPERINTENDENT OF POLICE, GUNTUR, GUNTUR THE SUPERINTENDENT OF JAIL, CENTRAL PRISON, RAJAMAHENDRAVARAM, EAST GODAVARI DISTRICT. THE SUBINSPECTOR OF POLICE, CHEBROLU PS, GUNTUR ...RESPONDENT(S): Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased topleased to issue an order, Writ or direction, more particularly one in IN THE HIGH COURT OF ANDHRA PRADESH [3558] THE TWENTY FOURTH DAY OF NOVEMBER THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA POTHINENI SAROJINI, W/O. LATE PAMULU, AGED ABOUT 55 YEARS, R/O. VEJENDIA VILLAGE, CHEBROLU MANDAL, GUNTUR ...PETITIONER ITS CHIEF SECRETARY, SECRETARIAT BUILDINGS, VELAGAPUDI GUNTUR, ANDHRA THE COLLECTOR DISTRICT MAGISTRATE, GUNTUR, GUNTUR THE SUPERINTENDENT OF POLICE, GUNTUR, GUNTUR THE SUPERINTENDENT OF JAIL, CENTRAL PRISON, RAJAMAHENDRAVARAM, EAST GODAVARI DISTRICT. THE SUBINSPECTOR OF POLICE, CHEBROLU PS, GUNTUR ...RESPONDENT(S): Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased topleased to issue an order, Writ or direction, more particularly one in 2 CMR,J & GTK,J W.P.No.19681 of 2025 nature of HABEAS CORPUS, directing the Respondents to produce the detenue by name Pothineni Gopi, S/o. Late Pamulu, Aged about 35 years, R/o. Vejendia Village, Chebrolu Mandal, Guntur District and set him at liberty by declaring the detention order dated 21-05-2025 in Rc.No. REVGNT- CSEC0PDL(PRC)/5/2025-SA(C1) COLGNT passed by 2ND Respondent and the order in G.O.Rt No. 1070, dt. 01-06-2025 issued by General Administration(SC.I) Department, dated 01-06-2025 approved by the 1 Respondent and G.O.Rt No.1309 issued by General Administration(S C.I) Department, dated 10-07-2025 passed by 1ST Respondent confirming 12 months of detention as illegal, arbitrary and contrary to the provisions of Act No.1 of 1986 and Article 21 of the Constitution of India and to pass Counsel for the Petitioner: 1. PADALA VENKATA SRIRAM REDDY Counsel for the Respondent(S): 1. ADDL ADVOCATE GENERAL 3 CMR,J & GTK,J W.P.No.19681 of 2025 The Court made the following: ORDER: (Per Hon’ble Sri Justice Cheekati Manavendranath Roy) Challenging the order of preventive detention dated 21.05.2025 passed by respondent No.2-The Collector and District Magistrate, Guntur, whereby, considering the seven crimes that were registered against him, he has passed an order of preventive detention against Pothineni Gopi, terming him as a “Goonda” and “drug offender”, which in-turn was confirmed by the State, as per G.O.Rt.No.1309 GAD (SC.I), Department, dated 10.07.2025, the instant writ petition has been filed by the petitioner. 2. Heard Mr. Padala Venkata Sriram Reddy, learned counsel for the petitioner and Mr. Kirthi Teja Kondaveeti, learned Government Pleader attached to the office of learned Additional Advocate General appearing for the respondents Nos.1 to 5. 3. The petitioner is the mother of a person by name Pothineni Gopi (hereinafter referred to as ‘detenu’). About seven crimes were registered against him, which are shown in the table at page No.2 of the impugned order of preventive detention passed by respondent No.2. The 1st, 3rd, 5th and 6th crimes are registered for the offences punishable under Indian Penal Code, 1860 (for short ‘IPC’) and Bharatiya Nyaya Sanhita, 2023 (for short, ‘BNS’), respectively, the 2nd crime is only a preventive measure initiated under Section 109 of Code of Criminal Procedure and the 4th and 7th crimes are registered for the offences punishable under Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’). Therefore, as crimes punishable under IPC were registered against him, he was considered as “Goonda”, as defined under Section 2(g) of Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (hereinafter referred as ‘the Act’) and as offences under NDPS Act were also registered against him, he was 4 CMR,J & GTK,J W.P.No.19681 of 2025 considered to be a “drug offender” under the Act. As the detenu is indulging himself in commission of the said crimes repeatedly, respondent No.2 was of the opinion that he has to be detained preventively to prevent him from committing similar nature of offences in future and according to him passing the said order of preventive detention is essential in the interest of maintenance of public order and in the larger interest of the public. Therefore, he has passed the impugned order of preventive detention dated 21.05.2025 against the detenu and the same was in-turn, after complying with the procedure prescribed under law, confirmed by the State, as per the G.O.Rt.No.1309 GAD (SC.I), Department, dated 10.07.2025. 4. The impugned order of preventive detention is now challenged by the petitioner, who is the mother of the detenu, mainly on two grounds. It is contended that the crime registered under Section 498A of IPC of Chebrolu Police Station in crime No.202 of 2022 cannot be considered to term the detenu as a “Goonda” as defined under the Act and even the proceedings initiated under Section 109 of Code of Criminal Procedure by Chebrolu Police, as a preventive measure, is not an offence and yet a crime was registered, which is not permissible under law and these two crimes were also taken into consideration for the purpose of terming him as “Goonda” and passing the impugned order of preventive detention and taking such irrelevant material for the purpose of passing the order of preventive detention is not valid under law. Therefore, according to the petitioner, it vitiates the order of preventive detention. The second ground on which the petitioner sought to impeach the legal validity of the impugned order of detention is, though a crime under NDPS Act was registered on the ground that the detenu has been in possession of Ganja and involving in sale of the same, no report of the analyst is produced before the Court to prove that the contraband that was seized from the possession of the detenu is infact Ganja. Therefore, the petitioner 5 CMR,J & GTK,J W.P.No.19681 of 2025 contends that the impugned order of preventive detention is also bad in law on that ground also. 5. We have meticulously perused the impugned order of detention, which in-turn was confirmed by the Stated by the G.O. referred to supra. As noticed supra, terming the detenu as both “Goonda” and “drug offender” on the basis of the above seven crimes that were registered against him, the order of preventive detention came to be passed by the detaining authority. Section 2(g) defines “Goonda”. As per the definition, “Goonda” means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVII and Chapter XXII of IPC. Therefore, it is only when it is found that a person has been repeatedly committing the offences punishable under Chapter XVII and Chapter XXII of IPC alone is to be considered as a “Goonda”. Section 498A of IPC is covered by Chapter XX-A of IPC. Therefore, when it is not an offence covered by Chapter XVII and Chapter XXII, a person cannot be termed as “Goonda” for the purpose of initiating proceedings under the Act and to pass an order of preventive detention. Similarly, Section 109 of Code of Criminal Procedure is only a preventive measure and is not a penal provision so as to register any crime against it. This Court has already, earlier, deprecated the practice of registering crimes while initiating proceedings under Sections 107 and 109 of Code of Criminal Procedure, etc., which are only preventive measures and not penal in nature. Curiously, a crime was registered, while initiating proceedings under Section 109 of Code of Criminal Procedure. Even, the said proceedings under Section 107 of Code of Criminal Procedure are not falling within the purview of the offences punishable under Chapter XVII and Chapter XXII of IPC to term a person as “Goonda”, as defined under Section 2(g) of the Act. Therefore, the detaining authority has taken into consideration the said two crimes registered under Sections 109 of Code of Criminal Procedure and 498A of IPC also to term the detenu as 6 CMR,J & GTK,J W.P.No.19681 of 2025 “Goonda”, which is not permissible under law. It amounts to taking irrelevant material into consideration for the purpose of passing the order of preventive detention. Therefore, on the said ground itself the order of preventive detention is bad in law and it cannot be legally sustained. 6. Even though two crimes under NDPS Act were registered against the detenu and although it is the version of the detaining authority that the detenu was in possession of Ganja and involving himself in sale of the same and that the said contraband was sent to the chemical analyst to determine whether the contraband is Ganja or not, no report of the analyst is produced and same is not referred to in the impugned order of preventive detention to prove that the chemical analyst has opined that the contraband is Ganja. Even, in the counter affidavit that was filed by the respondents, at para No.48, it is clearly stated that the contraband was sent to the chemical analyst and the said report was received. The said report is not placed on record. It is either available along with the material enclosed to the order of preventive detention or it is produced before the Court. Therefore, there is no sufficient material on record even to hold that the detenu was a “drug offender” as required under law. The relevant material necessary to pass an order of preventive detention shall be placed before the detaining authority and he has to consider the same and apply his mind and then pass an order of preventive detention against the detenu. When the report of the chemical analyst is not produced before the detaining authority, the State cannot improve its case even by way of taking a plea in the counter affidavit subsequently. The said legal position has been dealt with by the Apex Court in Mohinder Singh Gill and another Vs. The Chief Election Commissioner1. The said proposition of law laid down by the Apex Court was followed by the Supreme Court subsequently, in the case of Dipak Babaria and another v. State of Gujarat 2. Therefore, the impugned 1 (1978) 1 SCC 405 2 (2014) 3 SCC 502 7 CMR,J & GTK,J W.P.No.19681 of 2025 order of preventive detention is not valid under law for the aforesaid reasons. So, it cannot be sustained and it is liable to be set-aside. 7. In fine, the Writ Petition is allowed setting aside the impugned order of preventive detention, passed by respondent No.2 dated 21.05.2025, against the detenu, who is the son of the petitioner by name Pothineni Gopi and the consequential G.O.Rt.No.1309, GAD (SC.I), Department, dated 10.07.2025 that was passed confirming the said order. The detenu by name Pothineni Gopi shall be forthwith released and set at liberty, if not required in any other case. There shall be no order as to costs. As a sequel, Interlocutory Applications pending, if any, shall stand closed. ________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY _____________________________ JUSTICE TUHIN KUMAR GEDELA Date: 24.11.2025 MDP