Muddada Appayya vs The Collector And District ...
2023 Latest Caselaw 3063 AP

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

                    WRIT PETITION No.988 of 2023

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

detention of his son by name Muddada Narsinga Rao, S/o Appayya,

aged 30 years, in order of detention vide Rc.No.1991/2022/C1, dated

28.10.2022 passed by the 1st respondent-The Collector and District

Magistrate(FAC), Parvathipuram-Manyam District, which was

confirmed by the 2nd respondent vide G.O.Rt.No.2720, General

Administration (SC.I) Department, dated 19.12.2022 and prays to

direct the respondent authorities to set the detenue at liberty

forthwith.

2. The petitioner herein is the father of detenue. The Collector

and District Magistrate, Parvathipuram Manyam District, while

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

Section 3(2)r/w 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.2720,

General Administration (SC.I) Department, dated 19.12.2022.

3. Counter-affidavit is not filed by the respondents.

4. Heard Sri P. Nagendra Reddy, learned counsel for the petitioner

and Sri Khader Mastan, learned counsel attached to the office of

learned Additional Advocate General for the respondents.

5. Learned counsel for the petitioner submits that the detenue

was allegedly involved in seven crimes under Section 7(A) r/w.8(e) of

Andhra Pradesh Prohibition Act, 1995 and they can be dealt under

general laws and that he was granted bail in some of the cases. It is

also stated that if the detenue really involved in commission of any

offence after releasing on bail, police are entitled to seek

cancellation of bail, but the same was not even considered by the

authority. The petitioner also relied upon judgment passed by this

Court in W.P.No.36027 of 2022 dated 07.12.2022 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

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.36027 of 2022

dated 07.12.2022. The learned counsel for the petitioner further

submits that the preventive detention order shall not be passed or

confirmed in these circumstances.

12012 (2) SCC 386

7. Learned counsel for the respondents submits that the detenue

is a habitual offender; that he is a bootlegger who is selling

adulterated liquor etc., and his acts are prejudicial to the public

order and hence 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.36027 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 Muthyalu

(W.P.No.5469 of 2022 dated 11.07.2022), this Court considering the

rule position stated in Ram Manohar Lohiya v. State of Bihar 2 ,

Piyush Kanthilal Mehatha v. Commissioner of Police Ahmedabad

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

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

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

stale and sterile reasons. Recording of reasons for such satisfaction is

also indispensable and imperative. In the judgment of the Hon'ble

Supreme Court in Rekha v. State of Tamilnadu5 , 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. A perusal of the detention order and grounds of detention,

would show that the detaining authority has passed the detention

order in a mechanical manner and no opinion has been expressed by

the detaining authority as well sponsoring authority 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 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. Hence, we are of the considered opinion that the detenue will

not fall under the category of Section 3(2) r/w 2(b) of the Act.

5 2011 (5) SCC 244

11. Accordingly, this Writ Petition is allowed setting aside the

order of detention passed by the 1st respondent-The Collector and

District Magistrate(FAC), Parvathipuram-Manyam District vide

proceedings in Rc.No.1991/2022/C1, dated 28.10.2022 as confirmed

by the State Government vide G.O.Rt.No.2720, General

Administration (SC.I) Department, dated 19.12.2022. Consequently

the detenue namely Muddada Narsinga Rao, S/o Appayya, aged 30

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: 11.05.2023

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.988 of 2023

DATE: .05.2023

Pab