Allowed

Matra Sravan Kumar v. the State of Andhra Pradesh

Andhra Pradesh HC20 Mar 2023WP/39492/2022

Case brief

AI extract

What is this about?

The High Court allowed a habeas corpus petition quashing preventive detention orders against the petitioner's mother. The Court held that mere violation of prohibition laws, without material showing a grave danger to public order or immediate harm, is insufficient to justify detention under the relevant Act, especially when the detenu is on bail.

What did the court decide?

The detention order and confirmation order dated 17.08.2022 and 26.08.2022 were set aside; the detenu was directed to be released forthwith unless required in other cases.

Matra Sravan Kumar Vs the State… — Constitutional and Fundamental Rights | Andhra Pradesh HC (2023)

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

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and

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HON’BLE SRI JUSTICE V. SRINIVAS

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WRIT PETITION No.39492 of 2022

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ORDER: (per D.V.S.S.Somayajulu, J)

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This Writ Petition is filed in the nature of Habeas Corpus seeking declaration that a preventive detention order dated 17.08.2022 and the consequential order of approval and confirmation dated 26.08.2022 has been contrary to law and to direct the respondents to release the petitioner’s mother viz., Smt. Matra Elizabeth.

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This Court has heard Sri Venkata Rama Rao Kota, learned counsel for the petitioner and Sri Sayed Khadar Masthan, learned counsel representing learned Additional Advocate General appearing for the respondents.

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Learned counsel for the petitioner submits that the petitioner’s mother was booked for certain offences under the A.P. Prohibition and Excise Act, 1995. In all there are five cases, which were registered against her. Learned counsel for the petitioner submits that she was released on bail in all five cases and that she is attending the Court on

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all the dates of hearing of the respective cases, as the investigation is already completed. Despite the same, learned counsel submits that the petitioner’s mother was detained under the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short “Act No.1 of 1986”) by virtue of the order passed on 17.08.2022 and the subsequent confirmation order. Learned counsel submits that in view of the judgment of the Division Bench, dated 11.07.2022 in W.P.No.5469 of 2022, merely because a person is charged under the A.P. Prohibition and Excise Act, 1995, the provisions of Act 1 of 1986 cannot be pressed into service. He points out that the said judgment authoritatively decided the matter. Therefore, it is submitted that the entire exercise in this case is vitiated due to non-application of mind and the failure to follow the law.

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In reply to this, it is argued by Sri Sayed Khadar Mashtan that the orders passed are eminently justified. It is submitted when it is a conflict between individual’s liberty and public order and safety, greater weight should be given to the public order. It is stated that due procedures were

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followed and also there are series of offences which are committed by the detenue. It is also mentioned that all these aspects were considered and the affect on public order was also looked into before the impugned orders were passed. Learned counsel submits that the Court should not take a hyper liberal view and it should keep in mind the detrimental effect to public order etc., caused by the detenu and her continuous illegal activities.

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COURT:

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On perusal of the documents filed and the

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submissions made by the learned counsels, it is clear that the mother of the petitioner in this case is essentially charged under the provisions of the A.P. Prohibition and Excise Act, 1995, in four out of five cases. Only in the 5^th case she is stated to be in illegal possession and selling of 150 grams of Ganja and 18 grams of ganja powder.

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The contention urged is that the detenu was out

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of bail in all the cases and that she is attending the Court regularly. This aspect is not actually denied in the counters filed. Even otherwise the law on the subject is very clear. The fact that the accused has been granted bail is a factum

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that should have been considered before the impugned orders are passed. The law on the subject is clear and the same is not being repeated once again. This Court also notices the point urged by the learned counsel that the affect of the alleged illegal activities should be on public order and this should be based upon material available. While it is the subjective decision, it cannot be an arbitrary decision and should be a decision arrived at on the basis of materials.

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1. Section 3 (1) of the Act 1 of 1986 is as follows:

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“Section 3: Power to make orders detaining certain persons:- (1) The Government may, if satisfied with respect to any bootlegger, dacoit, drug-offender, goonda, immoral traffic offender or land-grabber that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.”

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Therefore, it is clear from a plain language interpretation that the orders should be passed in the interest of preventing detention from acting in a manner “prejudicial to the maintenance of the public order”.

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This is defined in Section 2 (a) and 2 (b) of the Act

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1 of 1986 are as follows:

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“2. Definitions:- In this Act, unless the context otherwise requires,-

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(a) "acting in any manner prejudicial to the maintenance of public order" means when a bootlegger, a dacoit, a drug offender, a goonda, an immoral traffic offender or a land-grabber is engaged or is making preparations for engaging in any of his activities as such, which affect adversely, or are likely to affect adversely, the maintenance of public order:

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Explanation:- For the purpose of this clause public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life or public health.” (b) "boot-legger" means a person, who distils, manufactures, stores, transports, imports, exports sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any of the provisions of the Andhra Pradesh Excise Act, 1968 and the rules, notifications and orders made thereunder, or in contravention of any other law for the time being in force, or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or support

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of the doing of any of the above mentioned things himself or through any other person, or who abets in any other manner the doing of any such thing;

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The first rule of actual interpretation is plain language interpretation. In this case the public order shall be deemed to have been affected if the actions of the detenu are directly causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof. In addition there should be “a grave or widespread danger to life or public health.” Therefore, it is clear that there should be a likelihood of immediate harm being caused or an imminent likelihood of harm or danger being caused. In addition, the action should also create a feeling of alarm or feeling of insecurity among the portion or among the general public. Lastly, there should be a likelihood of grave or widespread danger to life or public health.

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A reading of this would make it very clear that the harm should be in the process of being caused or there is an imminent threat of such a harm appearing. If such a harm is not found, at least there should be a feeling of alarm or a

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fear of insecurity among the general public or a section of the public. Lastly, there should be a grave or widespread danger to life of “public”. Each of these words is significant. There should be “grave” / serious or widespread danger to the “public”. The feeling of alarm is also among the general public or a section of the public. The principle of ejusdem generis is also applicable here and the interpretation, therefore, must be that the harm, danger, alarm or insecurity should be among the general public or a section of the public. Unless these elements are present either separately or in conjunction with each other, this Court is of the opinion that the order of detention cannot be passed. The general law of the land can only be invoked if these elements are not present to prosecute the accused or the detenu.

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If the impugned order is read against this backdrop, it is clear that there is no material available to show that the activity of the detenu is causing or is likely to cause harm, danger alarm or feeling of insecurity among the general public or a section of the public. In addition, there should be a grave or widespread danger. None of these elements are present in the case. In addition, the Division

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Bench clearly held in W.P.No.5469 of 2022 that the mere fact that the person is a bootlegger or is involved in selling illicit liquor would not be enough to invoke the provisions of the Act. After considering the leading case on the subject, the Division Bench came to the conclusion that the allegation of disturbance of public order is a mandatory principle condition or sine qua non. The Division Bench said that this power should be exercised carefully and based upon cogent and convincing material. Ultimately, it is held that the mere fact that the individual is a bootlegger cannot be a ground to press into service of this Act.

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This Court also holds that the reading of the impugned orders of the detention and confirmation have not really recorded the reasons as are warranted by law. Paragraphs 2, 3 and 6 and the other parts of the order merely record that the petitioner’s mother activities are disturbing the peaceful life of innocent people. In the opinion of this court the said satisfaction is not borne out by record nor is it in accordance with the definitions, which are mentioned above.

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Hence, this Court holds that the Writ Petition should be allowed and it is accordingly allowed. The order of detention dated17.08.2022 vide Ref.No.602/2022/C1 passed by the 4^th respondent and G.O.Rt.No.1775, dated 26.08.2022 along with consequential order of Confirmed Orders of approval and confirmation passed by the 1^st respondent vide G.O.Rt.No.2186, dated 18.10.2022 are both set aside. The detenu Matra Elizabeth is directed to be released forthwith, unless she is required in any other case. There shall be no order as to costs.

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Consequently, Miscellaneous Applications

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pending in these Writ Petitions, if any, shall stand closed.

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__________________________ D.V.S.S.SOMAYAJULU, J

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________________ V. SRINIVAS, J

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Date:20.03.2023

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Note: Issue CC in 1 day B/o Ssv

Matra Sravan Kumar v. the State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Matra Sravan Kumar v. the State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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