R Suchithra vs The State Of Andhra Pradesh
2023 Latest Caselaw 2972 AP

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

                 THE HON'BLE SRI JUSTICE V.SRINIVAS

                   WRIT PETITION No.4202 of 2023

ORDER:(per Hon'ble Sri Justice V.Srinivas)
       In this writ petition, the petitioner is challenging the order of

detention of her husband by name A.Francis Babu @ Francis @ Frances,

S/o.B.Aron, aged 26 years, in order of detention vide REV-

CSEC0PDL(PRC)/30/2022-MAGL4 dated 14.10.2022 passed by the 2nd

respondent-The Collector and District Magistrate, Chittoor District,

which was confirmed by the 1st respondent vide G.O.Rt.No.2615,

General Administration (SC.I) Department, dated 05.12.2022 and prays

to direct the respondent authorities to set the detenue at liberty

forthwith.

2. The Collector and District Magistrate, Chittoor District, while

categorizing the detenue as a "Bootlegger" within the definition of

Section 3(1) and 3(2) 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 not filed by the respondents.

4. Heard Sri M.M.M.Srinivasa Rao, learned counsel for the

petitioner and Sri Syed KhaderMastan, learned counsel attached to the

office of the learned Additional Advocate General for the respondents.

5. Learned counsel for the petitioner submits that the detenue is

in judicial custody at the time of passing of detention order; that the

Hon'ble Apex Court time and again held that the detaining authority

has to record its satisfaction about the necessity to pass the detention

order;that five cases under Section 7(B) r/w.8(B) of Andhra Pradesh

Prohibition Amendment Act, 2020 were foisted against the petitioner

for statistical purpose, which are not at all grievous offence and they

can be dealt under general laws; and that he was already granted bail

in all the above cases but the same were not even considered by the

authority. It is also submitted that the representation submitted by

the petitioner for recall of detention order was rejected by the 2nd

respondent. The learned counsel also relied upon judgment of the

Hon'ble Supreme Court in Syed Sabeena v. The State of Telangana1.

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 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.

1 Crl.A.No.909 of 2022 (SLP.(Crl).No.4283 of 2022) (Supreme Court of India)

7. The learned counsel appearing for the respondents submitted

that the detenue is a habitual offender and his acts are prejudicial to

the public order; that he is a bootlegger who is selling distilled liquor,

which is unfit for human consumption and injurious to health and that

having regard to the gravity of the offences, the orders impugned in

the writ petition do not warrant any interference of this Court and the

present writ petition is not maintainable.

8. A perusal of the order passed by this Court in Chittipothula

China Muthyalu (W.P.No.5469 of 2022 dated 11.07.2022) clearly

shows 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 a lot of care, caution and circumspection

and that same cannot be exercised in a routine and mechanical manner.

In the said order, this Court considering the rule position stated in Ram

Manohar Lohiya v. State of Bihar 2 PiyuhhaanthilalMehatha v.

Commihhioner of Police Ahmadabad City 3 Malladhaa.Sriram v.

State of Telangana4, held that the satisfaction, as stipulated under

Section 3 of the Act, should necessarily be a subjective satisfaction and

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

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

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 order. The alleged offences are under the

Prohibition laws only.

9. In Syed Sabeena case at Para No.17 it is held by the APEX Court

that: "in any case, the State is not without a remedy, as in case the

detenue is much a menace to the society as is being alleged, then the

prosecution should seek for the cancellation of his bail and/or move an

appeal to the Higher Court. But definitely seeking shelter under the

preventive detention law is not the proper remedy under the facts and

circumstances of the case."

10. Admittedly, the detention order was passed when the detenue

is in judicial custody basing on five cases that were registered against

him and he was granted bail in all those cases. The said facts are not

disputed by the learned counsel for the respondents nor did they even

file a counter to deny the case of petitioner. 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 the

considered opinion that the orders impugned were made without

proper application of mind and there is a serious procedural violation.

Hence, we are of the opinion that the detenue will not fall under the

category of Section 2(b) of the Act since the order of detention does

not show 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. Accordingly, this Writ Petition is allowed setting aside the order

of detention passed by the 2nd respondent in REV-

CSEC0PDL(PRC)/30/2022-MAGL4, dated 14.10.2022 as confirmed by

the State Government in G.O.Rt.No.2615, General Administration

(SC.I) Department, dated 05.12.2022. Consequently, the detenue

namely Francis Babu @ Francis @ Frances, aged 26 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.

13. Miscellaneous petitions pending if any, stand closed.

___________________________ JUSTICE D.V.S.S.SOMAYAJULU

_________________ JUSTICE V.SRINIVAS Date: 09.05.2023

Note:

Issue C.C. today.

B/o.

Pab

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

WRIT PETITION No.4202 of 2023

DATE: 09.05.2023

Pab