Allowed

Battula Jyothi v. The State of Andhra Pradesh

Andhra Pradesh HC15 Nov 2022WP/15366/2022

Case brief

AI extract

What is this about?

The High Court allowed a habeas corpus petition challenging a preventive detention order under the AP Bootleggers Act. The court set aside the order due to the detaining authority's lack of application of mind regarding doubtful evidence and the fact that the detainee was already on bail in other cases.

What did the court decide?

Detention order and consequential confirmation order set aside; Detenu Bathula Bala Guravaiah directed to be released forthwith.

Battula Jyothi Vs The State of Andhra… — Pension and Retirement Benefits | Andhra Pradesh HC (2022)

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HON’BLE SRI JUSTICE U. DURGA PRASAD RAO AND

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HON’BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

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Writ Petition No.15366 OF 2022

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ORDER: ( Per Hon’ble Sri Justice U. Durga Prasad Rao)

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In this Habeas Corpus petition, the petitioner prays for release of her husband Bathula Bala Guravaiah, S/o Brahmaiah, R/o D.No.12-2-206, 20^th Ward, Erukula Colony, Macherla Town, Guntur District who was detained and lodged in Central Prison, Rajamahendravaram as per the detention order vide proceedings in Proc.No.719/2021-C1, dated 22.03.2022 of the 2^nd respondent/ The District Collector & District Magistrate, Guntur under Section 3(2) r/w 3(1) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (1 of 1986) [for short, ‘ the Act 1 of 1986 ’] and consequential confirmation order of the 1^st respondent vide G.O.Rt.No.848, dated 10.05.2022.

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2. The 2^nd respondent has passed the detention order dated 22.03.2022 on the ground that the detenue was involved in

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following three cases and thus he is a ‘Bootlegger’ within the meaning of Section 2(b) of the Act 1 of 1986 and his activities are prejudicial to the maintenance of public health and public order.

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1	Crime No.243/2020, Prohibition (Amended District.	dated 15.11.2020 U/s 7(A) r/w 8(e) of A.P. ) Act, 2020 of SEB Station, Macherla of Guntur
2	Crime No.177/2021, Prohibition (Amende (Amended) Act, 2020	dated 09.10.2021 U/s 7(A) r/w 8(e) of A.P. d) Act, 2020 & 50(A) of A.P. Prohibition of SEB Station, Macherla of Guntur District.
3	Crime No.184/2021, Prohibition (Amended District.	dated 20.10.2021 U/s 7(A) r/w 8(e) of A.P. ) Act, 2020 of SEB Station, Macherla of Guntur

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3. The detention order is challenged in this writ petition on the

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main ground that the detenue is an innocent person and not committed any of the offences mentioned in the detention order; the cases in which he is involved can be effectively dealt with under the general law and his activities are not prejudicial to the maintenance of public health and public order ; the Detaining Authority has not applied his mind in issuing the detention order, inasmuch as, of the three crimes which were taken as a ground to pass detention order, in Crime No.177/2021 of SEB Station, Macherla, there was no physical presence and participation of the

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detenue at the time of alleged offence but he was falsely implicated

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on the basis of alleged confession of co-accused and on the alleged

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confession of the detenue in a subsequent case. Thus the detention order per se is illegal.

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4. The 2^nd respondent filed counter and opposed the writ petition.

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5. Heard arguments of Sri Raja Reddy Koneti, learned counsel

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for the petitioner and Special Government Pleader representing learned Advocate General for respondents.

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6. While vehemently opposing the detention order, learned counsel for the petitioner Sri Raja Reddy Koneti, firstly argued that of the three crimes which were taken as a ground for detention, the detenue was not directly involved in Crime No.177/2021 of SEB Station, Macherla and the police did not arrest him at the spot.

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However, he was implicated in that case on the alleged confessional statements of co-accused. Learned counsel thus

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argued that the participation of the detenue in the said offence is a myth, if not highly doubtful and the said aspect can be decided

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only after a full-fledged trial. Therefore, the general law can take care of such aspects. However, detention order ought not to have been passed on the basis of such highly doubtful case. Learned counsel would lament that, the 2^nd respondent who is the Detaining Authority has not bestowed his attention to these crucial facts in right perspective while passing the detention order. Hence the detention is per se illegal.

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(a) Secondly, he would argue that the offences which were taken as a ground for detention are all common offences and they can be dealt with under general laws. They are not grave offences and therefore the activities of detenue cannot be said to be prejudicial to the maintenance of public order. He would argue that when general laws are sufficient to deal with the offences, the draconian law of preventive detention cannot be pressed into service. On this aspect also he relied upon (1) Shaik Nazneen v.

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The State of Telangana¹ (2) Munagala Yadamma v. State of Andhra Pradesh² and (3) order of this Court dated 11.07.2022

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1 2022 LiveLaw (SC) 559

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2 (2012) 2 SCC 386

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in W.P.No.5469 of 2022 (Chittipothula Chinna Muthyalu v.

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State of Andhra Pradesh).

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7 . In oppugnation, staunchly supporting the detention order,

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learned Special Government Pleader would argue that Section-3 of Act 1 of 1986 speaks of ‘satisfaction’ of the Detaining Authority to pass a detention order. When the statute left an action dependent upon the opinion of the authority concerned, the judicial review will be constricted primarily to know whether procedural fairness was scrupulously followed. He placed reliance on Amarendra Kumar Pandey v. Union of India.³ He would submit that in this case the procedure was meticulously followed and basing on the materials placed, the 2^nd respondent formed the opinion and hence the detention order is sustainable.

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(a) Nextly he argued that the activities of the detenue are very much prejudicial to the maintenance of public order because in all the above three crimes, the detenue was dealing with ID liquor and the chemical examiner on testing the samples opined that the contraband seized was ID liquor which was unfit for

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3 2022 LiveLaw (SC) 600

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human consumption and injurious to health. When the activities of detenue create grave or widespread danger to life or public health, it can be construed that he acted in a manner prejudicial to the maintenance of public order and preventive detention can be ordered. On this aspect he placed reliance on Doddi Sharada v.

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Collector and District Magistrate, Hyderabad⁴ .

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(b) Refuting the petitioner’s argument that in one Crime the detenue was not involved and that he was falsely implicated, learned Special G.P would argue that the detenue was very much involved in all the three crimes, as the co-accused who was arrested at the spot has clearly admitted that he was supplying the ID liquor to the detenue and selling in retail. Further, in Crime No.184/2021, the detenue was directly involved in the offence and he was intercepted and arrested by the police and during the interrogation, he admitted his complicity not only in that case but also in the previous case i.e., Crime No.177/2021. Therefore, the involvement of the detenue cannot be doubted. The aforesaid cases, he would argue, would clinchingly establish that the detenue

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is a habitual offender and his activities are prejudicial to the 4 2005 (2) ALT 244 = 2005(1) APLJ 328

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maintenance of public order and unless stern action is taken against

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him by applying the Preventive Detention Law, it would be difficult to maintain the public order and public health. He thus supported the impugned order and prayed to dismiss the writ petition.

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8. The point for consideration is whether there are merits in the writ petition to allow?

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9. Point: We gave our anxious consideration to above

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respective arguments. The first and foremost argument of learned counsel for the petitioner is about the non application of discretion and mind by the 2^nd respondent in a judicious manner to the materials placed before him. Petitioner’s case is that of the three crimes, in Crime No.177/2021 of SEB Station, Macherla, there was no physical presence and participation of the detenue but he was arrayed as an accused in that case on an alleged confession of coaccused. It is argued by the counsel for the petitioner that confession of a co-accused is a weak piece of evidence and the prosecution during trial must prove the guilt of accused

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independently and the confessional statement can be taken only as a corroborative piece of evidence but not as substantive evidence. That being so, the 2^nd respondent without considering the fact that there was no direct involvement of the detenue in Crime No.177/2021 and his complicity was based only on the confessional statement of the co-accused, ought not to have accepted that case as one of the grounds for ordering preventive detention. It is also the vehement argument of the counsel for the petitioner that the prosecution tried to substantiate its case against the detenue on the allegation that in a subsequent case he allegedly confessed his participation in crime No.177/2021. Learned counsel would argue that confession of an accused before the police officer is inadmissible in evidence under the relevant provisions of Indian Evidence Act and therefore such an alleged confession also cannot be taken into consideration. This aspect was also not considered in right perspective by the 2^nd respondent. Therefore, of the three crimes, Crime No.177/2021 cannot be taken into consideration for ordering preventive detention to deprive the fundamental right of liberty of the detenue. It is also the argument of the learned

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counsel that the remaining two cases are concerned, they can be effectively dealt with under general law but there is no necessity to employ the provisions of Act 1 of 1986 .

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10. As rightly argued by learned Special Government Pleader, the Detaining Authority upon considering the materials and other facts can form an opinion that there is a likelihood of a person who is involved in a series of crimes to repeat similar offences and order for preventive detention. In Haradhan Shah v. The State of West Bengal⁵ relied upon by Special Government Pleader, the Apex Court considering its various other decisions, held that granting bail in the offences which were taken for consideration is not a bar against the District Magistrate in issuing the preventive detention order. Nor the detention order which is passed during the pendency of prosecution will violate the order. The detention is a precautionary measure based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of surrounding circumstances.

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5 AIR 1974 SC 2154 = 1975(3) SCC 198

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11. There is no demur about the discretionary power of the

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Detaining Authority in this regard. However, the crux of the argument of the petitioner is not about the lack of power of Detaining Authority to order preventive detention against a person who is involved in a series of crimes. On the other hand, the argument of learned counsel for the petitioner is that of the 3 crimes which were considered for ordering preventive detention, the complicity of the detenue in one Crime i.e., Crime No.177/2021 is highly doubtful because the detenue was not found at the scene of offence nor he was arrested at the spot in that case. The contention of the petitioner is that the detenue was implicated in the aforesaid case on the strength of the alleged confessional statements of the co-accused. Thus it is the contention of the petitioner that a duty is cast on the Sponsoring Authority to place before the 2^nd respondent, all the relevant materials for consideration and thereupon it is the avowed duty of the Detaining Authority / 2^nd respondent to carefully consider the materials so placed before him and analyze the facts involved therein to come to a conclusion whether on the basis of such materials, preventive

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detention could be ordered. The petitioner attributes total lack of application of mind on the part of the 2^nd respondent.

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12. On perusal of the materials placed before us by both parties,

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we find considerable force in the argument of the petitioner that the 2^nd respondent has not bestowed his attention and applied his mind to the materials placed before him in right perspective. Admittedly the Detaining Authority has considered three crimes registered against the detenue to order detention. On perusal of the copies of the FIRs and other material in those cases, we found that in Crime No.177/2021, the detenue’s presence was not noted at the scene of offence. In the said crime it appears the prosecution arrayed the detenue as accused on the strength of the confession of co-accused. Of course, the prosecution claims that in Crime No.184/2021 the detenue was directly involved and during the course of his interrogation in that crime, he allegedly confessed his complicity in that crime as well as in Crime No.177/2021. As rightly argued by learned counsel for the petitioner the confession of the co-accused is a weak piece of evidence. Except for corroborative purpose it cannot be taken as a substantive evidence. So also confession of

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the detenue in another case will be of no avail to the prosecution. Therefore, the 2^nd respondent in our considered view ought not to have taken Crime No.177/2021 as a ground for ordering preventive detention to deprive the detenue of his personal liberty. Unfortunately, the 2^nd respondent has not applied his mind in right perspective before ordering preventive detention. The remaining two crimes are concerned, the material papers filed along with counter of the 2^nd respondent would show that the detenue is granted bail in those two matters long prior to the date of detention order. They were conditional bails. In that view, the prosecution, instead of seeking for cancellation of bail, seeking for his preventive detention, amounts to curbing his personal liberty. When the totality of the circumstances are taken into consideration, of the three cases, in one crime the participation of the detenue is a doubtful one and it has to be determined only after full-fledged trial, whereas the remaining two cases are concerned, he was already on bail. The prosecution without seeking for cancellation of the bails rushed for his preventive detention which is untenable.

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13. In the result, the writ petition is allowed and detention order

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in Proc.No.719/2021-C1, dated 22.03.2022 passed by the 2^nd respondent and consequential confirmation order vide G.O.Rt.No.848, dated 10.05.2022 issued by the 1^st respondent are set aside and the detenue, namely Bathula Bala Guravaiah, S/o Brahmaiah, R/o D.No.12-2-206, 20^th Ward, Erukula Colony, Macherla Town, Guntur District is directed to be released forthwith by the respondents if the detenue is not required in any other cases. No costs.

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As a sequel, interlocutory applications pending, if any, shall stand closed.

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__________________________ U. DURGA PRASAD RAO, J

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____________________________

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B.V.L.N. CHAKRAVARTHI, J

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15.11.2022 Krk

Battula Jyothi v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Battula Jyothi v. The State of Andhra Pradesh

Case brief

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