Guthula Purushotham vs The State Of Ap
2023 Latest Caselaw 1504 AP

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

             Writ Petition No.39708 of 2022

ORDER: (per Sri Justice D.V.S.S.Somayajulu)


     Heard learned counsel for the petitioner and learned

Additional Advocate General Sri Syed Khader Masthan.

     The learned counsel for petitioner points out that the

order of detention, dt.08.11.2022 is passed against the

detenue in five cases mentioned therein are all of the

offences under Andhra Pradesh Prohibition Act, 1995 (for

short 'the Act'). Relying upon the Division Bench judgment

of this Court in Writ Petition No.5469 of 2022 and other

judgments, learned counsel for petitioner argues that

merely because a person is the accused of offences under

the Act, he cannot be classified as Goonda, unless all the

other stringent tests prescribed by the Act of actually

made. He points out that there is no danger to public life or

to the public order. Lastly, he submits that as on the date

of detention order, the detenue was already in custody and

points out that the detaining authority did not record

necessary reasons while passing the order as laid down by
 the Hon'ble Supreme Court in number of cases, where in a

triple        test     was    prescribed.   He   also   relies     upon

Dharmendra Suganchand Chelawat and another v.

Union of India and others1 and Munagala Yadamma v.

State of Andhra Pradesh and others2 in support of his

contention.            In reply to this, learned Additional Advocate

General appearing for the respondents states that the effect

of public health and public order were considered before

the order was passed. He points out despite of registering

number of cases, the detenue is continuing her activities

and therefore there is likelihood of harm to public health

and order. He points out that the page number (3) and (4)

of the orders, these aspects were discussed in detail and

also points out that in bold print, it is disclosed that the

detenue was likely to be released on bail and thereafter

indulge in criminal activities. Therefore, learned

Government Pleader justifies the detention. He also points

out that admittedly as per the chemical examiner's report,

the material seized from the detenue is illicitly distilled

liquor, which is unfit for the human consumption. This

(1990) 1 SCC 746

(2012) 2 SCC 386 Court after examining the facts, notices that admittedly the

petitioner was the accused only of the offences under the

Prohibition Act. As per the judgment of the Division Bench

of this Court mentioned earlier, merely because a person is

accused of the offences under the prohibition Act is a

bootlegger and the provision of Preventive Detention Act

cannot be invoked unless and until all the other conditions

of the order etc., being affected are clearly made out. The

same is not present in this case other than entirety

reproduction of language a clear satisfaction is necessary

not recorded.

In addition, it is admitted fact that the detenue was

in custody. Therefore, Triple test stipulated by the Hon'ble

Supreme Court should be scrupulously followed. In the

case on hand it is only the Superintendent of Police who

has felt that there is likelihood of the detenue is being

released on bail and committing further crimes. A

satisfaction that is necessary to be recorded by the

detaining authority is not visible from the reading of this

order. It is the dissatisfaction held to be mandatory by the

Hon'ble Supreme Court of India and this is fatal to the case of the respondent. This court is of the opinion that Writ

Petition should be allowed.

This writ petition is accordingly allowed, detenue is

directed to be released unless she is wanted in other cases.

As a sequel, Miscellaneous Applications, if any,

pending shall also stand dismissed.

________________________________ JUSTICE D.V.S.S.SOMAYAJULU

________________________ JUSTICE V. SRINIVAS

Date: 17.03.2023 AG/VNB

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

Writ Petition No.39708 of 2022

Dated: 17.03.2023 AG