Allowed

Gadwala Brahmaiah v. The State of Andhra Pradesh

Andhra Pradesh HC21 Mar 2023WP/36437/2022

Case brief

AI extract

What is this about?

Court allowed writ petition challenging preventive detention of petitioner's wife. Held that detention order lacked material to justify 'bootlegger' classification, failed to consider existing bail, and violated procedural requirements under Article 226. Detention order quashed and wife ordered released.

What did the court decide?

Detention order set aside; detainee directed to be released forthwith if not required in any other case.

Gadwala Brahmaiah Vs The State of Andhra… — Writ and Judicial Review | 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.36437 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 wife Smt.Gadwala Jyothi, W/o. G.Brahmaiah, Aged 31 years, in order of detention vide Rc.C1/85/M/2022, dated 19.05.2022 passed by the 2^nd respondent-The Collector & District Magistrate, Nandyal, Nandyal District which was confirmed by the 1^st respondentthe State as per G.O.Rt.No.1548, General Administration (SC.I) Department, dated 30.07.2022 and prays to direct the respondent authorities to set the detenue at liberty forthwith.

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The Collector and District Magistrate, Nandyal, Nandyal District, while categorizing the detenue as a “Bootlegger” within the definition of Section 3(2) r/w Section 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. The said order of detention came to be confirmed by the Government vide G.O.Rt.No.1548, General Administration (SC.I) Department, 30.07.2022.

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Heard Sri K.Rathangapani Reddy, learned counsel for the petitioner and learned Additional Advocate General for the respondents.

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Learned counsel for the petitioner submits that the grounds for detention are not at all grievous offences, that she was allegedly involved in five crimes under Section 7(A) r/w.8(E) of AP Prohibition (Amendment) Act 2020, and they can be dealt under general laws. The petitioner also relied upon judgments passed by this Court in W.P.No.5469 of 2022 (Copy of said order is placed on record) and W.P.Nos.16434 of 2022. As well the judgment reported between MunagalaYadamma v. State of Andhra Pradesh¹ .

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Inspite of opportunities counter not filed by the respondents, but justifying the order impugned, the learned Additional Advocate General submits that as the detenue is habitual offender and her acts are prejudicial to the public order, the 2^nd respondent-District Magistrate passed the detention order that she is a bootlegger who is selling adulterated liquor 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.Nos.16434 of 2022 and 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,

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12012 (2) SCC 386

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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 and another² PiyushKanthilalMehatha v. Commissioner of Police Ahmadabad City and another³ 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 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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2 AIR 1966 SC 740

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3 1989 Supp (1) SCC 322.

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

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Even in the present case also the detenue was already on 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, and no such discussion was made in the order.

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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(2) r/w Section 3(1) 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 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.C1/85/M/2022, dated 19.05.2022 as confirmed by the State Government vide G.O.Rt.No.1548, General Administration (SC.I) Department, dated 30.07.2022 and consequently the detenue namely Smt.Gadwala Jyothi, W/o G.Brahmaiah, Aged 31 years, is directed to

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be released forthwith by the respondents if the detenue is not

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required in any other cases.

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