High Court · 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), 55 years, detention REV02- MGST0LWOD/13/2022-MAG-CCLA, dated 16.08.2022 passed by the 2nd respondent-The Collector 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 2 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 1 2011 (5) SCC 244 2 (2012) 2 Supreme Court Cases 386 3 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. 4 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 5 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,

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. 6 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