Nandu Bai vs .The State Of Andhra Pradesh,
2023 Latest Caselaw 2077 AP

            THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                               AND
                THE HON'BLE SRI JUSTICE V.SRINIVAS

                     WRIT PETITION No.465 of 2023

ORDER:(per Hon'ble Sri Justice V.Srinivas)
       In this writ petition, the petitioner is challenging the order of

detention of her husband by name Sri Lala Naik @ Noonsavath Lala

Naik S/o N.Game Naik @ Geme Naik @ Gemen Naik, aged 46 years, in

order of detention vide Rc.No.MAGL/673/2022             dated 25.08.2022

passed by the 2nd respondent-The District Collector and District

Magistrate, Sri Satya Sai District, which was confirmed by the 1st

respondent vide G.O.Rt.No.2211, General Administration (SC.I)

Department, dated 22.10.2022 and prays to direct the respondent

authorities to set the detenue at liberty forthwith.

2. The District Collector and District Magistrate, Sri Satya Sai

District, while categorizing the detenue as a "Bootlegger" within the

definition of Section 2(b) 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') passed the impugned order of detention. The said order of

detention came to be confirmed by the Government vide

G.O.Rt.No.2211, General Administration (SC.I) Department, dated

22.10.2022.

3. Heard Sri K.Sakthi Niranjan Guptha, learned counsel for the

petitioner and Sri Syed Khader Mastan, learned Additional Advocate

General for the respondents.

4. Learned counsel for the petitioner submits that the grounds

for detention are not at all grievous offences, that he was allegedly

involved in four crimes under Section 7(A) r/w.8(e) of Andhra Pradesh

Prohibition Act, 1995 and they can be dealt under general laws. It is

also stated that he was already granted bail in those crimes, but the

same were not even considered by the authority. Petitioner also

relied upon judgment passed by this Court in Battula Jyothi v. the

State of Andhra Pradesh 1 , Mallada K Sri Ram v. State of

Telangana2, Eede Jayalakshmi v. The State of Andhra Pradesh3 as

well as the order passed by this Court in W.P.No.5469 of 2022 dated

11.07.2022.

5. It is brought to the notice of this Court by the learned counsel

for the writ petitioner that the issue in the present writ petition is

squarely covered by the order of this Court in W.P.No.5469 of 2022

dated 11.07.2022. Copy of said order is placed on record. The learned

counsel for the petitioner further submits that the preventive

detention shall not be passed or confirmed in these circumstances.

2022 0 Supreme (AP) 483

2022(2) ALT (Cri.)SC) 214 (DB)

2022(1) ALT Online (AP) 10319 (DB)

6. Per contra, the learned Additional Advocate General

reiterating the averments made in the counter affidavit filed by the

respondents, justifying the order of the District Magistrate as the

detenue is a habitual offender and argues that her acts are

prejudicial to the public order, that he is a bootlegger who is selling

adulterated liquor, the order impugned in the writ petition do not

warrant any interference of this Court under Article 226 of the

Constitution of India.

7. A perusal of the order passed by this Court in W.P.No.5469 of

2022 dated 11.07.2022 clearly demonstrates that the existence of

element of disturbance to the public order is held to be a sine qua

non for invoking the provisions of Section 3 of the Act 1 of 1986. The

said power, conferred on the authorities, is required to be exercised

with lot of care, caution and circumspection and that same cannot be

exercised in a routine and mechanical manner. In Chittipothula

China Muthyalu (W.P.No.5469 of 2022), this Court considering the

rule position stated in Ram Manohar Lohiya v. State of Bihar 4 ,

Piyush Kanthilal Mehatha v. Commissioner of Police Ahmadabad

City5, Malladha K.Sriram v. State of Telangana6, held that the

satisfaction, as stipulated under Section 3 of the Act, should

4 AIR 1966 SC 740 5 1989 Supp (1) SCC 322.

6 Crl.A.No.561 of 2022 (Supreme Court of India)

necessarily be a subjective satisfaction and is required to be on the

basis of cogent and convincing material and not on the foundation of

stale and sterile reasons. Recording of reasons for such satisfaction is

also indispensable and imperative. So long as ordinary criminal law is

adequate to deal with the offences, preventive detention without

subjecting an individual to the procedure of free and fair trial would

infringe the fundamental right to life and liberty guaranteed under

Chapter III of Constitution of India. These factors are missing in the

impugned order. The alleged offences are under the Prohibition laws

only.

8. In the present case the detenue was already enlarged on bail

even prior to detention order and the said fact is not disputed in the

counter. A perusal of the detention order and grounds of detention,

would show the detaining authority as well sponsoring authority has

not taken into consideration the fact that the detenue was on bail in

all those cases and no opinion has been expressed as to whether the

preventive detention of detenue was essential or not, and no such

discussion was made in the order.

9. Having regard to the facts of this case, this Court is of

considered opinion that the order impugned was made without

proper application of mind and there is a serious procedural violation.

The detenue will not fall under the category of Section 2(b) of the

Act and this Court could not find that the order of detention has any

material to either substantiate or justify the said allegation that the

detenue is a 'Bootlegger' whose activities would be actually

prejudicial to public order.

10. For the reasons recorded, this Writ Petition is allowed in terms

thereof, setting aside the order of detention passed by the 2nd

respondent vide proceedings in Rc.No.MAGL/673/2022 dated

25.08.2022 as confirmed by the State Government vide

G.O.Rt.No.2211, General Administration (SC.I) Department, dated

22.10.2022. Consequently the detenue namely Sri Lala Naik @

Noonsavath Lala Naik S/o N.Game Naik @ Geme Naik @ Gemen Naik,

aged 46 years, is directed to be released forthwith by the

respondents if the detenue is not required in any other cases.

11. Miscellaneous petitions pending if any, stand closed. No order

as to costs.

___________________________ JUSTICE D.V.S.S.SOMAYAJULU

_________________ JUSTICE V.SRINIVAS Date: 19.04.2023 Pab

Issue C.C. today.

THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU AND THE HON'BLE SRI JUSTICE V.SRINIVAS

WRIT PETITION No.465 of 2023

DATE: .04.2023

Pab