Kataru Pedda Venkata ... vs The State Of Andhra Pradesh,
2023 Latest Caselaw 1719 AP

           THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                              AND
               THE HON'BLE SRI JUSTICE V.SRINIVAS
                          I.A.No.1 of 2022
                               IN/AND
                   WRIT PETITION No.36518 of 2022

ORDER:(per Hon'ble Sri Justice V.Srinivas)
       Initially, in this writ petition, the petitioner has challenged the

order of detention of his family friend by name Dumavath Lakshmi,

W/o Venkateswarlu Naik, aged 39 years, in order of detention vide

Rc.MAGL-3/C-339282/2022, dated 17.10.2022 passed by the 2nd

respondent-The Collector & District Magistrate, Prakasam District and

prays to direct the 4th respondent to produce the detenue, who is

detained in Central Prison, Kadapa, YSR District and to set the

detenue at liberty forthwith.

2. Since the said detention order passed by the 2 nd respondent

was confirmed by the 1st respondent, the petitioner filed I.A.No.1 of

2022 to amend the prayer of the writ petition as 'to issue writ order

or direction more particularly one in the nature of writ of Habeas

Corpus under Article 226 of the Constitution of India directing the 4 th

respondent to produce Dumavath Lakshmi Bai W/o late

Venkateswarlu Naik who is now detained in Central Prison, Kadapa,

YSR District before this Court and she may be ordered to be released

forthwith after declaring his detention vide proceedings Rc.MAGL-

3/C-339282/2022, dated 17.10.2022 passed by the 2nd respondent

which was confirmed by the 1st respondent vide G.O.Rt.No.2697

General Administration (SC.I) Department, dated 15.12.2022 as illegal

and unconstitutional and pass such other order or orders which this

Hon'ble Court may deem fit and proper in the circumstances of the

case'.

3. In view of the same, I.A.No.1 of 2022 is allowed and the prayer

of the writ petition is ordered to be amended as prayed for.

4. The Collector and District Magistrate, Prakasam 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.2697

General Administration (SC.I) Department, dated 15.12.2022.

5. Heard Sri D.Purna Chandra Reddy, learned counsel for the

petitioner and Sri Khader Mastan, learned counsel attached to the

office of learned Additional Advocate General for the respondents.

6. Learned counsel for the petitioner submits that the grounds

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

involved in five 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 out of five offences, she was already granted bail in

five crimes, but the same were not even considered by the authority.

Petitioner also relied upon judgments passed by this Court in

W.P.No.5469 of 2022 dated 11.07.2022 as well as the judgment

reported between MunagalaYadamma v. State of Andhra Pradesh1.

7. 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.

8. Per contra, the learned counsel attached to the office of 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 she is a

bootlegger who is selling adulterated liquor and the order impugned

in the Writ Petition do not warrant any interference of this Court

under Article 226 of the Constitution of India.

9. 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 held to be a sine qua non for

12012 (2) SCC 386

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 2 ,

PiyushKanthilalMehatha v. Commissioner of Police Ahmadabad

City 3, MalladhaK.Sriram v. State of Telangana 4 , 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

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 orders. The alleged offences are under the Prohibition laws

only.

2 AIR 1966 SC 740 3 1989 Supp (1) SCC 322.

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

10. In the present case also, 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.

11. 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.

Therefore, the detenue will not fall under the category of Section

2(b) 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.

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

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

respondent vide proceedings in Rc.MAGL-3/C-339282/2022, dated

17.10.2022 as confirmed by the State Government vide

G.O.Rt.No.2697 General Administration (SC.I) Department, dated

15.12.2022. Consequently the detenue namely Dumavath Lakshmi,

W/o Venkateswarlu Naik, aged 39 years, is directed to be released

forthwith by the respondents if the detenue is not required in any

other cases.

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

as to costs.

___________________________ JUSTICE D.V.S.S.SOMAYAJULU

_________________ JUSTICE V.SRINIVAS Date: 29.03.2023 Pab

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

I.A.No.1 of 2022 IN/AND WRIT PETITION No.36518 of 2022

DATE: .03.2023

Pab