Allowed

Kataru Pedda Venkata Narasimhulu, v. The State of Andhra Pradesh

Andhra Pradesh HC29 Mar 2023WP/36518/2022

Case brief

AI extract

What is this about?

The High Court quashed the preventive detention order against a woman alleged to be a bootlegger, holding the authority failed to apply its mind as she was already on bail. The Court found no cogent material to justify detaining her under the Prevention of Dangerous Activities Act regarding offences under the Prohibition Act.

What did the court decide?

Writ Petition allowed; detention order quashed; the detenue directed to be released forthwith.

Kataru Pedda Venkata Narasimhulu, Vs The… — 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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I.A.No.1 of 2022 IN/AND

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WRIT PETITION No.36518 of 2022

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

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Initially, in this writ petition, the petitioner has challenged the order of detention of his family friend by name Dumavath Lakshmi, W/o Venkateswarlu Naik, aged 39 years, in order of detention vide Rc.MAGL-3/C-339282/2022, dated 17.10.2022 passed by the 2^nd respondent-The Collector & District Magistrate, Prakasam District and prays to direct the 4^th respondent to produce the detenue, who is detained in Central Prison, Kadapa, YSR District and to set the detenue at liberty forthwith.

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Since the said detention order passed by the 2^nd respondent was confirmed by the 1^st respondent, the petitioner filed I.A.No.1 of 2022 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 under Article 226 of the Constitution of India directing the 4^th respondent to produce Dumavath Lakshmi Bai W/o late Venkateswarlu Naik who is now detained in Central Prison, Kadapa, YSR District before this Court and she may be ordered to be released forthwith after declaring his detention vide proceedings Rc.MAGL3/C-339282/2022, dated 17.10.2022 passed by the 2^nd respondent which was confirmed by the 1^st respondent vide G.O.Rt.No.2697

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General Administration (SC.I) Department, dated 15.12.2022 as illegal and unconstitutional and pass such other order or orders which this Hon’ble Court may deem fit and proper in the circumstances of the case’.

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In view of the same, I.A.No.1 of 2022 is allowed and the prayer of the writ petition is ordered to be amended as prayed for.

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The Collector and District Magistrate, Prakasam District, while categorizing the detenue as a “Bootlegger” within the definition of Section 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.2697 General Administration (SC.I) Department, dated 15.12.2022.

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Heard Sri D.Purna Chandra Reddy, learned counsel for the petitioner and Sri 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 detention are not at all grievous offences, that she was allegedly involved in five crimes under Section 7(A) r/w.8 (e) of Andhra Pradesh Prohibition Act, 1995 and they can be dealt under general laws. It is also stated that out of five offences, she was already granted bail in

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five crimes, but the same were not even considered by the authority. Petitioner also relied upon judgments passed by this Court in W.P.No.5469 of 2022 dated 11.07.2022 as well as the judgment reported between MunagalaYadamma v. State of Andhra Pradesh¹ .

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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.5469 of 2022 dated 11.07.2022. Copy of said order is placed on record. The learned 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, the learned counsel attached to the office of the 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 a habitual offender and argues that her acts are prejudicial to the public order, that she is a bootlegger who is selling adulterated liquor and the order impugned in the Writ Petition do not warrant any interference of this Court under Article 226 of the Constitution of India.

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A perusal of the order passed by this Court in W.P.No.5469 of 2022 clearly demonstrates that the existence of element of disturbance to the public order is held to be a sine qua non for

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12012 (2) SCC 386

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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 Bihar² , PiyushKanthilalMehatha v. Commissioner of Police Ahmadabad City³ , MalladhaK.Sriram v. State of Telangana⁴ , 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 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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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.

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Having regard to the facts of this case, this Court is of considered opinion that the 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 2(b) of the Act and that 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.

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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.MAGL-3/C-339282/2022, dated 17.10.2022 as confirmed by the State Government vide G.O.Rt.No.2697 General Administration (SC.I) Department, dated 15.12.2022. Consequently the detenue namely Dumavath Lakshmi,

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W/o Venkateswarlu Naik, aged 39 years, is directed to be released

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forthwith by the respondents if the detenue is not required in any

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other cases.

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