Amrutha Durga vs The State Of Ap
2023 Latest Caselaw 3087 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.41766 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     Amrutha    Venkayya,

S/o.Kotaiah,        aged        41     years,      vide     Rc.No.REV-

MGSR0PDL(PRC)/5/2022-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.2722 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.,

Amrutha Venkayya, S./o.Kotaiah, before this Court and set him

at liberty forthwith by declaring the order of detention vide

proceedings Rc.No.REV-MGSR0PDL(PRC)/5/2022-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.2722 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 same, I.A.No.1 of 2023 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) and

7(B) r/w.8(B) and 8(E) of Andhra Pradesh Prohibition Act, 1995

and they can be dealt under general laws. It is also stated that

the detenue was already granted bail in all the six crimes; 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 judgments passed by this Court in

Gadwala Brahmaiah v. State of Andhra Pradesh1. As well the

judgment of the Hon'ble Supreme Court in MunagalaYadamma

v. State of Andhra Pradesh2.

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 do not warrant any interference of

this Court under Article 226 of the Constitution of India.

1 2023 SCC Online AP 431 22012 (2) SCC 386

8. A perusal of the order passed by this Court in W.P.No.5469

of 2022 and Gadwala Brahmaiah case, 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 3 ,

PiyushKanthilalMehatha v. Commissioner of Police

Ahmadabad City and another4, MalladhaK.Sriram v. State

of Telangana and others5, 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 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

3 AIR 1966 SC 740 4 1989 Supp (1) SCC 322.

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

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. 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. 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. 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 and there are serious procedural

violation 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. This Court

could not find that for order of detention the authority had

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)/5/2022-

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

Government vide G.O.Rt.No.2722, General Administration (SC.I)

Department, dated 19.12.2022. Consequently, the detenue

namely Amrutha Venkayya, S/o.Kotaiah, aged 41 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.41766 of 2022

DATE: 12.05.2023

krs