Andhra Pradesh High Court - Amravati
K. Prasad, vs The State Of Andhra Pradesh, on 4 May, 2023
THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
AND
THE HON'BLE SRI JUSTICE V.SRINIVAS
WRIT PETITION No.3571 of 2023
ORDER:(per Hon'ble Sri Justice V.Srinivas)
In this writ petition, the petitioner is challenging the order of
detention of his father by name Sri Kodama Lachumu, S/o Rowthu(L),
aged 55 years, in order of detention vide REV02-
MGST0LWOD/13/2022-MAG-CCLA, dated 16.08.2022 passed by the 2nd
respondent-The Collector and District Magistrate, Alluri
Seetharamaraju District, which was confirmed by the 1st respondent
vide G.O.Rt.No.2188, General Administration (SC.I) Department,
dated 18.10.2022 and prays to direct the respondent authorities to
set the detenue at liberty forthwith.
2. The Collector and District Magistrate, Alluri Seetharamaraju
District, while categorizing the detenue as a "Bootlegger" within the
definition of Section 3(2) r/w.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.
3. Counter affidavit is filed by the 2nd respondent- Collector and
District Magistrate, denying the allegations and the averments made
in the affidavit filed in support of the writ petition stating that the
detenue is a habitual offender and his acts are prejudicial to the
public order and prayed to dismiss the writ petition.
4. Heard Sri P.Kasi Nageswara Rao, learned counsel for the
petitioner and Sri Syed Khader Mastan, learned counsel attached to
the office of the Additional Advocate General for the respondents.
5. Learned counsel for the petitioner submits that the grounds for
detention are not at all grievous offences; that three crimes under
Section 7(B) r/w.8(b) of Andhra Pradesh Prohibition Act, 1995 were
foisted against the father of the petitioner; that all the material
relied on by the detaining authority including confirmation of the
order were not supplied; that the authorities failed to refer the
matter to the Advisory Board within the stipulated time and that this
Court and the Hon'ble Apex Court time and again held that none of
the said activities will not affect the public order. In support of his
submissions and contentions, learned counsel places reliance on the
Judgments in Rekha v. State of Tamilnadu1 and Munagala Yadamma
v. State of Andhra Pradesh2. Besides the learned counsel for the
petitioner also relied on the order dated 11.07.2022 in W.P.No.5469 of
2022 dated 11.07.2022.
6. It is brought to the notice of this Court by the learned counsel
for the petitioner that the issue in the present writ petition is
squarely covered by the order of this Court in W.P.No.36437 of 2022
2011 (5) SCC 244
(2012) 2 Supreme Court Cases 386
dated 21.03.2023. The learned counsel for the petitioner further
submits that the preventive detention shall not be passed or
confirmed in these circumstances.
7. The learned counsel appearing for the respondents reiterating
the averments made in the counter affidavit, justified the order of
the Collector and District Magistrate and argues that the acts of
father of the petitioner are prejudicial to the public order, that he is
a bootlegger who is selling adulterated liquor and that the orders
impugned in the writ petition do not warrant 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 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 3 ,
Piyush Kanthilal Mehatha v. Commissioner of Police Ahmadabad
City4, Malladha K.Sriram v. State of Telangana5, held that the
3 AIR 1966 SC 740
4 1989 Supp (1) SCC 322.
satisfaction, as stipulated under Section 3 of the Act, should
necessarily be a subjective satisfaction but 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 the Constitution of India. These factors are missing in
the impugned orders. The alleged offences are under the Prohibition
laws only.
9. A perusal of the record shows that the detenue was not
supplied with the material within a period of five days and the
Advisory Board also did not take decision within the period of three
weeks from the date of detention dated 16.08.2022. The detention
order and grounds of detention would show that the detaining
authority as well sponsoring authority have not expressed any
opinion as to whether the preventive detention of detenue was
essential or not and no such discussion was made in the orders.
10. Having regard to the facts of this case, this Court is of
considered opinion that the orders impugned were made without
proper application of mind and there is a serious procedural violation.
5 2022 SCC Online SC 424
The detenue will not fall under the category of Section 3(2) r/w.3(1)
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.
11. For the reasons recorded, this Writ Petition is allowed setting
aside the order of detention passed by the 2nd respondent vide
proceedings in REV02-MGST0LWOD/13/2022-MAG-CCLA, dated
16.08.2022 as confirmed by the State Government vide
G.O.Rt.No.2188, General Administration (SC.I) Department, dated
18.10.2022. Consequently, the detenue namely Sri Kodama Lachumu,
S/o Rowthu(L), aged 55 years, is directed to be released forthwith
by the respondents if the detenue is not required in any other cases.
No order as to costs.
12. Miscellaneous petitions pending if any, stand closed.
___________________________
JUSTICE D.V.S.S.SOMAYAJULU
_________________
JUSTICE V.SRINIVAS
Date: .05.2023
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.3571 of 2023
DATE: .05.2023
Pab
