Meka Venkateswaramma vs The State Of Andhra Pradesh,
2023 Latest Caselaw 3086 AP

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

           THE HON'BLE SRI JUSTICE V.SRINIVAS

                  I.A.NO.1 OF 2023 IN/AND
               WRIT PETITION No.41767 of 2022

ORDER:(per Hon'ble Sri Justice V.Srinivas)

      Initially, in this writ petition, the petitioner challenged the

order of detention of her husband Meka Raju, S/o.Venkateswara

Rao, aged 43 years, vide Rc.No.REV-MGSR0PDL(PRC)/4/2022-

SA(MAGL-1)-KCO,         dated   02.11.2022      passed   by   the   2nd

respondent-The Collector & District Magistrate, Krishna District,

and prays to direct the respondent authorities to set the detenue

at liberty forthwith.

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

respondent was confirmed by the 1st respondent vide

G.O.Rt.No.2721 General Administration (SC.I) Department,

dated 19.12.2022, then the petitioner filed I.A.No.1 of 2023 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 directing the 4th respondent, the Superintendent, Central

Prison, Rajamahendravaram, to produce the detenue viz., Meka

Raju, S/o.Venkateswara Rao, before this Court and set him at

liberty forthwith by declaring the order of detention vide

proceedings Rc.No.REV-MGSR0PDL(PRC)/4/2022-SA(MAGL-1)-

KCO, dated 02.11.2022 passed by the 2nd respondent and

consequential confirmation order issued by the 1st respondent

vide G.O.Rt.No.2721 General Administration (SC.I) Department,

dated 19.12.20222 as illegal, arbitrary, against the principles of

natural justice, against Article 21 of the Constitution of India and

to 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 confirmation orders, the petitioner challenged

the said order by filing I.A.No.1 of 2023 and the same is allowed

and the prayer of the writ petition is ordered to be amended as

prayed for.

4. The Collector and District Magistrate, Krishna District,

while categorizing the detenue as a "Bootlegger" within the

definition of Section 3(1) and 3(2) r/w.2(a) and 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 same was confirmed by the 1st

Respondent-State.

5. Heard Sri K.V.Aditya Chowdary, learned counsel for the

petitioner and Sri Syed 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

offences alleged against the detenue is 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 crimes, the

detenue was already granted bail in four crimes and in one crime

he was served with Section 41(A) Cr.P.C. notice; that the

sponsoring authority did not place the copies of bail orders along

with grounds of detention before the detaining authority to come

to the right conclusion and that the detention authority erred in

passing the impugned order without considering the material. He

relied upon judgment of the Hon'ble Supreme Court in

MunagalaYadamma v. State of Andhra Pradesh1.

7. Per contra, Sri Syed Khader Mastan, learned counsel

attached to the office of 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 his acts are

prejudicial to the public order and that he is a bootlegger who is

selling adulterated liquor. He further states that the order

impugned in the writ petition does not warrant any interference

of this Court under Article 226 of the Constitution of India.

12012 (2) SCC 386

8. 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 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), this Court considering

the rule position stated in Ram Manohar Lohiya v. State of

Bihar and another 2 , PiyushKanthilalMehatha v.

Commissioner of Police Ahmadabad City and another 3 ,

MalladhaK.Sriram v. State of Telangana and others4, and

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 stare 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

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

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

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. In the present case also the detenue was already enlarged

on bail even prior to detention order and the said fact is not

disputed by the respondents. Moreover, in Cr.No.233 of 2022 of

Bandar Taluk P.S., the police themselves issued notice under

Section 41(A) Cr.P.C. and asking the detenue to offer his

explanation for the purpose of investigation. It does mean to say

the prosecution itself not sure of the detenue is an accused in

the said crime i.e., Cr.No.233 of 2022 and as indicated above in

the remaining cases the detenue was already granted bails.

Thus, on 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.

10. Having regard to the facts of this case, this Court is of

considered opinion that the order impugned was passed without

proper application of mind. There are serious procedural

violations also. The detenue will not fall under the category of

Section 3(1) and 3(2) r/w.2(a) and 2(b) of the Act and that this

Court could not find that the order of detention has 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 Rc.No.REV-MGSR0PDL(PRC)/4/2022-

SA(MAGL-1)-KCO, dated 02.11.2022 as confirmed by the State

Government vide G.O.Rt.No.2721 General Administration (SC.I)

Department, dated 19.12.20222. Consequently, the detenue

namely Meka Raju, S/o.Venkateswara Rao, aged 43 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: 12.05.2023 Note: Issue C.C. today B/o.

Krs

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

I.A.NO.1 OF 2023 IN/AND WRIT PETITION No.41767 of 2022

DATE: 12.05.2023

krs