Andhra Pradesh High Court - Amravati
Gadwala Ganesh vs The State Of Andhra Pradesh on 21 March, 2023
Bench: D.V.S.S.Somayajulu, V Srinivas
THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
AND
THE HON'BLE SRI JUSTICE V.SRINIVAS
WRIT PETITION No.36435 of 2022
ORDER:(per Hon'ble Sri Justice V.Srinivas)
In this writ petition, the petitioner is challenging the order of
detention of his mother Smt.Gadwala Yashodamma, W/o late Nagaraju,
Aged 55 years, in order of detention vide Proceedings
No.RC.C1/285/M/2022, dated 22.06.2022 passed by the 2nd
respondent-The Collector & District Magistrate, Nandyal, Nandyal
District which was confirmed by the 1st respondent-the State as per
G.O.Rt.No.1689, General Administration (SC.I) Department, dated
16.08.2022 and prays to direct the respondent authorities to set the
detenue at liberty forthwith.
3. The Collector and District Magistrate, Nandyal, Nandyal District,
while categorizing the detenue as a "Bootlegger" within the definition
of Section 3(2) r/w Section 3(1) 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.1689, General Administration (SC.I) Department,
16.08.2022.
4. Heard Sri K.Rathangapani Reddy, learned counsel for the
petitioner and learned Additional Advocate General for the
respondents.
5. Learned counsel Sri K.Rathangapani Reddy submits that the
grounds for detention are not at all grievous offences, that she was
allegedly involved in eight crimes under Section 7(A)& 7(B) r/w.8(e) of
AP Prohibition (Amendment) Act 2020, and they can be dealt under
general laws. The petitioner also relied upon judgments passed by this
Court in W.P.No.5469 of 2022 as well as the judgment reported
between MunagalaYadamma v. State of Andhra Pradesh1.
6. It is brought to the notice of this Court by the learned counsel
Sri K.Rathangapani Reddy that the issue in the present Writ Petition is
squarely covered by the order of this Court in W.P.No.5469 of 2022.
Copy of the said order is placed on record. The counsel for the
petitioner further submits that the preventive detention shall not be
passed or confirmed in these circumstances.
7. Inspite of opportunities counter not filed by the respondents,
but justifying the order impugned, the learned Additional Advocate
General submits that as the detenue is habitual offender and her acts
are prejudicial to the public order, the 2nd respondent-District
12012 (2) SCC 386
Magistrate passed the detention order that she is a bootlegger who is
selling adulterated liquor, the orders impugned in the Writ Petition do
not warrants any interference of this Court under Article 226 of the
Constitution of India.
8. A perusal of the order passed by this Court in W.P.No.5469 of
2022 clearly demonstrates that the existence of element of
disturbance to the public order is 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 a lot of care,
caution and circumspection and that same cannot be exercised in a
routine and mechanical manner. In Chittipothula China Muthyalucase
(W.P.No.5469 of 2022), this Court considering the rule position stated
in Ram Manohar Lohiya v. State of Bihar and another 2
PiyushKanthilal Mehatha v. Commissioner of Police Ahmadabad
City and another3 Malladha K.Sriram v. State of Telangana and
others4, and held that the satisfaction, as stipulated under Section 3
of the Act, should necessarily be a subjective satisfaction and is
required to be on the basis of cogent and convincing material and not
on the foundation of stare and sterile reasons. Recording of reasons for
2 AIR 1966 SC 740
3 1989 Supp (1) SCC 322.
4 Crl.A.No.561 of 2022 (Supreme Court of India)
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 orders. The alleged offences are under the
Prohibition laws only.
9. Even in the present case also the detenue was already on
enlarged on bail even prior to detention order and the said fact is not
disputed by the respondents. 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.
10. Having regard to the facts of this case, this Court is of
considered opinion as order impugned was made without proper
application of mind and there is a serious procedural violation.
Therefore, the detenue will not fall under the category of Section 3(2)
r/w Section 3(1) of the Act and that 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 and 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.C1/285/M/2022, dated 22.06.2022 as confirmed by the State
Government vide G.O.Rt.No.1689, General Administration (SC.I)
Department, dated 16.08.2022 and consequently the detenue namely
Smt.Gadwala Yashodamma, W/o late Nagaraju, Aged 55 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:21.03.2023
krs
THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
AND
THE HON'BLE SRI JUSTICE V.SRINIVAS
WRIT PETITION No.36435 of 2022
DATE: 21.03.2023
krs
