Shaik Mabb Bi vs The State Of Andhra Pradesh,
2023 Latest Caselaw 1625 AP

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       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                               and
HON'BLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA
                    I.A.No.1 of 2023
                        in / and
             WRIT PETITION No.39085 of 2022

ORDER: (per D.V.S.S.Somayajulu, J)

       I.A.No.1 of 2023 is filed to amend the prayer in the

Writ Petition.   Since no objection is raised by the learned

counsel appearing for the respondents, this application is

allowed. Office is directed to make necessary amendment to

the prayer in the Writ Petition.

2) This Writ Petition is filed in the nature of Habeas

Corpus seeking declaration that a preventive detention order,

dated 07.09.2022, passed by the 2nd respondent and the

consequential order of approval and confirmation, dated

01.11.2022, passed by the 1st respondent, have been

contrary to law and to direct the respondents to release the

petitioner's son viz., Shaik Imran S/o Late Maqbul forthwith.

3) This Court has heard Sri V. Nitesh, learned

counsel for the petitioner and Sri Sayed Khadar Masthan,

learned counsel representing learned Additional Advocate

General appearing for the respondents.

4) Learned counsel for the petitioner points out that

the detenu is the son of the writ petitioner. The orders of

detention were passed on 07.09.2022 under the A.P.

Prevention of Dangerous Activities of Bootleggers, Dacoits,

Drug Offenders, Goondas, Immoral Traffic Offenders and

Land Grabbers Act, 1986 (for short "Act No.1 of 1986") on

the ground that he is a dangerous criminal with a

voluminous criminal record. It is pointed out that the first

case referred to in the detention order was ended in acquittal

in March, 2020 and the order of detention was passed on

07.09.2022, which is more than 1 ½ years later. The next

two cases referred to are cases of bind over under Section

110 Cr.P.C. and the 4th, 5th, 6th and 7th cases are relating to

alleged offecnes under the A.P. Prohibition Act. Learned

counsel submits that merely because of a person is

bootlegger he cannot be charged under the Act 1 of 1986,

particularly when there is no threat to public security etc. It

is also submitted that the detention order was passed when

the detenu was under custody in Crime No.144 of 2022 (case

No.6). Learned counsel submits that the petitioner's

activities do not affect public order or cause danger to public

health; that two of the cases which are "bound over" cases

cannot be called as crime and lastly when the detenu was

under custody the order was passed contrary to the settled

criminal law without recording the fact that he is likely to

commit similar crimes if he is released. He relies upon the

cases reported in Dharmendra Suganchand Chelawat and

another v Union of India and others1and Surya Prakash

Sharma v State of U.P. and Others2 in support of his

contention. He also relies upon the Division Bench judgment

of this Court reported in Mohammed Fayaz Ali v The Chief

Secretary, Government of A.P. and Ors., 3.

5) In reply to this learned counsel appearing for the

respondents argues the matter at length and states that the

order was passed after considering all the material on record

as the writ petitioner is a habitual offender and he is acting

in a manner detrimental to the public interest. The public

analyst report clearly shows that the action of the detenu is

likely to cause harm to the public since adulterated material

is being sold. It is also pointed out that the order notices the

(1990) 1 SCC 746

1994 Supp (3) SCC 195

Manu/AP/0059/2009

fact that he is maintaining a gang in Nandyal area and,

therefore, he is prejudicial to the interest of the public.

6) Learned counsel further justifies the orders and

states that public safety is more important than individual

safety and the detrimental effect of the activities by the sale

of adulterated illicit liquor etc., is a clear and visible danger.

He submits that the authority need not wait till the

adulteration results in actual harm and can issue such order

to prevent the danger. Therefore, he prays that the Writ

should be dismissed.

7) This Court after considering the submissions

made notices that the majority of the offences i.e., four out of

seven offences in this case are offences under the A.P.

Prohibition Act. The likelihood of grave and widespread

danger to life or public health is not visible from a reading of

the order. The danger, in the opinion of this court, should be

grave and also widespread. The fact that the detenu is

dealing in illicit liquor and it is likely to affect or harm or

cause a danger to the general public or a section of the

general public is also not borne out by record. The Division

Bench judgment of this Court passed in W.P.No.5469 of

2022 clearly applies to the facts and circumstances of the

case. The Division Bench considered all the aspects and

pronounced the reasoned order which mandates the

recording of danger to the public harm and public safety

based upon tangible materials for justifying the detention.

Such material is conspicuously lacking.

8) The first case in which the detenu is charged

ended in acquittal long prior to the passing of the impugned

order. Therefore, the clear and proximate danger or

continuity test also applies and this is not considered in the

order of detention of a person.

9) Lastly, the case law cited by the learned counsel

for the petitioner are clearly applicable to the facts and

circumstances of the case. In Dharmendra Suganchand

Chelawat case (1 supra) the accused was in custody in the

order of detention was passed. In paragraph 21 the following

was held:

"21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware

of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the contest of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."

10) This was followed in Surya Prakash Sharma

case (2 supra). A coordinate Division Bench of this Court in

the case of Mohammed Fayaz Ali (3 supra) noted the

submissions that to attract the definition of Goonda the

detenu must have been habitually committing the offences

under Chapter 16, 17 and 22 of IPC. In the case on hand, as

noted earlier, the first offence ended in acquittal long prior to

the detention order. The subsequent offences are not

offences under Chapters 16, 17 or 22 of IPC. It cannot be

said that the detenu is, therefore, habitually committing

offences.

11) In addition, the Division Bench also noticed that

a sole case registered with serious offences cannot be a basis

for satisfaction that the petitioner is a "habitual offender".

The Bench relied upon Dwarika Prasad case4 to hold that

even if one of the grounds or reasons which lead to the

subjective satisfaction of the detaining authority is non-

existent or misconceived or irrelevant, the order of detention

would be invalid.

12) In the opinion of this Court all the judgments

relied upon by the leaned counsel for the petitioner are

clearly applicable to the facts of the case. The conclusions

reached by the authority are not backed up by clear and

cogent material. Irrelevant facts are considered for arriving

at conclusions. Last but not the least merely arraying him

as bootlegger is not enough to classify him as a "Goonda"

unless and until the detrimental effect on the public health

or grave danger to the public health etc., from his activity is

tangible and visible.

Manu/SC/0127/1974 = 1975 CriLJ221

13) Since none of these elements are present the Writ

Petition is allowed, the 4th respondent is directed to release

the detenu, who is in central prison, Kadapa, and he is

directed to be set at large immediately, unless he is required

in another crime. There shall be no order as to costs.

14) Consequently, Miscellaneous Applications

pending in these Writ Petitions, if any, shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J

______________________________________ VENKATA JYOTHIRMAI PRATAPA, J

Date:23.03.2023 Ssv