Allowed

Sondi Guruvulu v. State of Andhra Pradesh

Andhra Pradesh HC10 Apr 2023WP/36282/2022

Case brief

AI extract

What is this about?

In this writ petition challenging the detention of Sondi Vinod under the A.P. Prevention of Dangerous Activities of Bootleggers Act, the Supreme Court held the detention order illegal. The Court found the order passed mechanically without proper application of mind, failing to consider the detainee's bail status or establish prejudice to public order, violating procedural safeguards.

What did the court decide?

The order of detention was set aside, the petitioner Sondi Vinod is directed to be released forthwith, and pending miscellaneous petitions are closed.

Sondi Guruvulu Vs State of Andhra… — Pension and Retirement Benefits | Andhra Pradesh HC (2023)

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

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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WRIT PETITION No.36282 of 2022

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

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In this writ petition, the petitioner is challenging the order of detention of his son Sondi Vinod, S/o.Sondi Guruvulu, in order of detention vide RC.No.1587/2022/C1, dt.21.09.2022 passed by the 2^nd respondent-The Collector & District Magistrate, Parvathipuram Manyam District @ Parvathipuram which was confirmed by the 1^st respondent-the State as per G.O.Rt.No.2463, General Administration (SC.I) Department, dated 18.11.2022 and prays to direct the respondent authorities to set the detenue at liberty forthwith.

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The Collector and District Magistrate, Parvathipuram Manyam District @ Parvathipuram, while categorizing the detenue as a “Bootlegger” within the definition of Section 3(1) & (2) r/w. Section 2(a) & 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.2463, General Administration (SC.I) Department, 18.11.2022.

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Heard Sri P.Raj Kumar, learned counsel for the petitioner and Sri Syed Khader Mastan, learned counsel attached to the office of learned Additional Advocate General for the respondents.

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Learned counsel for the petitioner submits that the grounds for

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detention are not at all grievous offences and in fact the impugned detention order came to be passed on the allegation that the detenue has been involved as many as five Excise Cases, it is found out of five cases, in three cases involvement and participation was shown basing on the confession of other accused.

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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.15360 of 2022. Copy of said order is placed on record. The counsel for the petitioner further submits that the preventive detention shall not be passed or confirmed in these circumstances.

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Per contra, Sri Syed Khader Mastan, learned counsel attached to the office of learned 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 habitual offender and approved/conformed by 1^st respondent is based on justified grounds, there is no basis for the allegation that the detention order was passed on vague, irrelevant and the detenue is continuously indulging bootlegging activity. The learned counsel further submits that as per the ratio laid down by the Constitution Bench of Hon’ble Supreme Court reported in Haradhan Saha v. State

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of West Bengal¹ , wherein held that “the essential concept of preventive detention is not to punish him for something he has done, but to prevent him from doing it. The basis of detention is the satisfaction of the executive for the reasonable probability of likelihood of detenue acting in a manner similar to his past acts and preventing him by detention from doing the same” and he argues that his acts are prejudicial to the public order, that he is a bootlegger, who is selling adulterated liquor and the orders impugned in the Writ Petition do not warrants any interference of this Court under Article 226 of the Constitution of India.

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A perusal of the orders passed by this Court in W.P.No.15360 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 W.P.No.15360 of 2022, this Court considered the rule position stated in MunagalaYadammav. State of Andhra Pradesh² , Abdul Sathar Ibrahim Manik v. Union of India³

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1 (1975) 3 SCC 198

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22012 (2) SCC 386

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3MANU/AP/0145/1997

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and Sheela Bai v. State of Andhra Pradesh⁴ , 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.

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In Union of India v. Dimple Happy Dhakad⁵ , the Apex Court held that; while discharging the constitutional obligation to enforce the fundamental rights of the people, more particularly, the right to personal liberty, the gravity of the allegations cannot influence the process and that to enforce the fundamental rights of the people, more particularly, the right to personal liberty, certain minimum procedural safeguards are required to be “zealously watched and enforced by the court”. In this particular case, on perusal of the material placed on record, the respondents No.1 and 2 did not follow the ratio laid down in Dimple Happy Dhakad case and on the other hand, held as if they have perused the record and satisfied which is per se illegal.

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So long as ordinary criminal law is adequate to deal with the offences, preventive detention without subjecting an individual to

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4 2014 (4) ALT 22

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5 (2019) 20 SCC 609

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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.

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Even in the present case also the detenue was already enlarged on bail even prior to detention order and the said fact is not disputed in the counter. 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, and no such discussion was made in the order. In addition, the ratio relied on by the respondents in Haradhan Saha (referred to supra) is also not followed. Besides as could be seen from the material papers the grounds of detention which are the basis for passing the order of detention appears to have been passed in a mechanical manner.

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Having regard to the facts of this case, this Court is of considered opinion as order impugned was made without proper application of mind and there is a serious procedural violation. Therefore, the detenue will not fall under the category of Section 3(1) & (2) r/w. Section 2(a) & 2(b) of the Act and that this Court could not find that the order of detention has material to either

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substantiate or justify the said allegation that the detenue is a ‘Bootlegger’ whose activities would be actually prejudicial to public order and for the reasons recorded, this Writ Petition is allowed in terms thereof, setting aside the order of detention passed by the 2^nd respondent vide proceedings in RC.No.1587/2022/C1, dt.21.09.2022 as confirmed by the State Government vide G.O.Rt.No.2463, General Administration (SC.I) Department, dated 18.11.2022 and consequently the detenue namely Sondi Vinod, S/o.Sondi Guruvulu, is directed to be released forthwith by the respondents if the detenue is not required in any other cases.

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