Allowed

K. Rajesh. v. State of Andhra Pradesh

Telangana HC16 Oct 2012WP/29166/2012

Case brief

AI extract

What is this about?

The court allowed a writ petition for Habeas Corpus, setting aside orders of detention and confirming the detenu's release. The judgment held that where ordinary laws are sufficient to punish the alleged offenses, preventive detention under relevant acts is unlawful and cannot substitute for criminal trial processes.

What did the court decide?

The impugned detention orders confirmed by the Government are set aside, and the detenu is directed to be released forthwith if not required for another offence.

K. Rajesh. Vs State of Andhra Pradesh — Pension and Retirement Benefits | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD

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W.P. No. 29166 of 2012

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O r d e r: (Per Sri. N.V. Ramana, J.)

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This writ petition is filed praying to issue a Writ of Habeas Corpus directing the respondents to produce the detenu before this Court and set him at liberty by quashing the proceedings in Rc. No. C/3/2012, dated 29.02.20121, issued by respondent No.2, namely the Collector and District Magistrate, West Godavari, ordering the detention of the detenu in prison, as confirmed vide orders issued by respondent No.1-Government in G.O. Rt. No. 1450, General Administration (Law & Order.II) Department, dated 30.03.2012, as illegal, arbitrary, null and void.

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The petitioner is the brother of the detenu, namely Donga Yedukondalu. He states that his brother has been shown as accused in three excise cases, being Crime Nos. 265/2010-11, dated 11.07.2010; 954/2010-11, dated 25.01.2011 and 787/2011-12, dated 22.10.2011 on the file of Narasapuram Prohibition and Excise Station, which were registered for the offences punishable under Sections 7(A) read with Section 8(e) of the A.P. Prohibition Act, 1995. The detenu having been arrested was remanded to judicial custody in the said case, and later he was also released on bail. The said cases are still pending trial on the file of the Additional Judicial First Class Magistrate, Narasapuram. The petitioner states that his brother is a toddy tapper by profession and does business in toddy and that he is innocent and that he was implicated in the said cases by a liquor shop owner, which is adjacent to the place of the toddy business of his brother.

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While so, respondent No.2-Collector and District Magistrate (hereinafter referred to as ‘the Detaining Authority’), in exercise of the power conferred on him under 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, passed the order of detention dated 29.02.2012, ordering the detention of the detenu, stating that the detenu is a habitual offender, that he has been found to be in possession of illicitly distilled liquor, which is unfit for human consumption and injurious to public health, and in spite of

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registration of three cases for the offences punishable under the A.P. Prohibition Act, 1995, upon his release on bail, he is committing the very same offences, that the activities of the detenu are causing grave and widespread danger to public life and their peaceful co-existence and causing a feeling of insecurity among the general public and that his acts are prejudicial to the maintenance of public order, and as the laws under which he is charged are insufficient to curb his activities, it is necessary to detain him under the Detention Laws. Subsequently, respondent No.1-Government, based on the recommendations of the Advisory Committee, issued orders in G.O. Rt. No. 1450, dated 30.03.2012, confirming the order of detention.

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The learned counsel for the petitioner submitted that the cases registered against the detenu are false and they are still at the stage of trial. According to him, mere possession of illicitly distilled liquor by the detenu, which is unfit for human consumption, cannot be a ground to detain the detenu under the Preventive Detention Act, particularly when no disturbance of public tranquility is caused. He submitted that when the A.P. Prohibition Act, 1995 is sufficient to deal with the offences alleged to have been committed by the detenu, it was not proper on the part of respondent No.2-Detaining Authority, to pass orders of detention, and therefore, the order passed by respondent No.2-Detaining, for the detention of the detenu, as confirmed by respondent No.1-Government, be declared illegal. In support of this argument, he placed reliance on the judgment of the Apex Court in Rekha v. State of Tamil Nadu^[1] , which was later followed by it in an unreported judgment in Munagala Yadamma v. State of Andhra Pradesh^[2] . He thus prayed that the order of detention, passed by respondent No.2-Detaining Authority, as confirmed by respondent No.1-Government, be set aside and the detenu be set at liberty forthwith.

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Respondent No.2, namely the District Collector, Krishna filed detailed counter.

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The learned Assistant Government Pleader representing the learned Advocate General for the respondents-State while reiterating the stand taken by respondent No.2 in the counter submitted that the petitioner is a habitual offender. He submitted that the detenu in spite of registration of three crimes under the A.P. Prohibition Act, 1995, the detenu is habitually indulging in clandestine possession, transportation and selling/distribution of illicitly distilled liquor, which is unfit for human consumption, injurious to public health and resulting in

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disturbance of public order, and therefore, respondent No.2-Detaining Authority has passed the order of detention, for the detention of the detenu in prison, under the provisions of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, which was confirmed by respondent No.1-Government, and no interference is warranted therewith, particularly when it is passed with subjective satisfaction of respondent No.2. He placed reliance on the judgment Collector & District Magistrate v. Sangala Kondamma^[3] G. Reddeiah v. The Government of A.P .^[4] and R.D. Bhasin v. State of Maharashtra^[5] . He thus prayed that the order of detention passed by respondent No.2-Detaining Authority, as confirmed by respondent No.1-Government, be confirmed and the writ petition be dismissed. Heard the learned counsel appearing for the petitioner and the learned Assistant Government Pleader representing the learned Advocate General for the respondents-State and perused the material produced by the respondents.

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In the light of the arguments advanced, the question that arises for consideration in this writ petition is:

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When the ordinary laws, namely A.P. Prohibition Act, under which the detenu is charged, are sufficient to deal with the offences alleged to have been committed by the detenu, whether respondent No.1-Detaining Authority, is justified in passing the orders of detention, under the Detention Law, for detention of the alleged detenu in prison, which was also confirmed by respondent No.2-Government?

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This Court in W.P. No. 34457 of 2011, by order dated 28.03.2012, having considered the above question, following the law laid down by the Apex Court in Munagala Yadamma v. State of A.P., set aside the order of detention, holding that the ordinary laws under which the detenu was charged was sufficient to deal with the offences committed by him, and there was no need to detain the detenu under the Preventive Detention Laws.

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I n Munagala Yadamma v. State of A.P. a similar order of detention, passed by the District Collector on the ground that the detenu was habitually indulging in commission of offences under the excise laws, as confirmed by the Government and upheld by the High Court, was assailed before the Apex Court in appeal. It was contended on behalf of the detenu that when the ordinary laws under which the detenu was charged are sufficient to deal with the offences

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alleged to have been committed by the detenu, there was no reason for the Detaining Authority to pass order of detention against the detenu under the Preventive Laws. The Apex Court having considered the said contention, set aside the order of detention passed by the District Collector as confirmed by the Government and the High Court, and in doing so, it followed the law laid down by it earlier in Rekha v. State of Tamil Nadu. The Apex Court further held as follows:

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No doubt, the offences alleged to have been committed by the appellant are such as to attract punishment under the Andhra Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases if for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial. Accordingly, while following the three-Judge Bench decision in Rekha’s case (supra), we allow the appeal and set aside the order passed by the High Court dated 20^th July, 2011 and also quash the Detention Order dated 15^th February, 2011, issued by the Collector and District Magistrate, Ranga Reddy District, Andhra Pradesh.

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In the case on hand, admittedly, three crimes, namely Crime Nos. 265/2010-11, dated 11.07.2010; 954/2010-11, dated 25.01.2011 and 787/2011-12, dated 22.10.2011 on the file of Prohibition and Excise Station, Narsapuram, which were registered for the offences punishable under Sections 7(A) read with Section 8(e) of the A.P. Prohibition Act, 1995, were registered against the detenu under the A.P. Prohibition Act, 1995. The charges leveled against the detenu in the said crimes is that he was found in possession of Illicitly distilled liquor, which is unfit for human consumption and injurious to health. All the crimes registered against the detenu, are pending trial on the file of the Additional Judicial First Class Magistrate, Narsapuram. Except the said cases registered against the detenu, which are pending trial, there is no allegation made by the respondents against the detenu, either in the order of detention or in the counter filed by respondent No.2-Detaining Authority, that his alleged illegal activities have disturbed the public order, resulting in violence and damage to public property. In the absence of any made against the detenu that his activities have disturbed the public order or peace and resulted in damage to public property, and having regard to the fact that the detenu, for being in possession of illicitly distilled liquor, he is being tried for the offences punishable under the provisions of the A.P. Prohibition Act, we are of the considered opinion that there was no

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need for respondent No.2-Detaining Authority, to pass order of detention against the detenu.

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Since the laws under which the detenu is charged, are sufficient to deal with the offences alleged to have been committed by the detenu, and the respondents having failed to show that the ordinary law under which he is charged, is not sufficient to deal with the alleged activities of the detenu, unless he is detained under the detention laws, and further considering the fact that similar order of detention, passed by the Detaining Authority, on similar set of facts, namely that the detenus were indulging in manufacture, transportation and sale of illicitly distilled liquor, consumption of which is injurious to human health, were set aside by the Apex Court in Munagala Yadamma v. State of A.P., by following the law laid down by it earlier in Rekha v. State of Tamil Nadu, and further having regard to the fact that the law laid down in Rekha v. State of Tamil Nadu, was followed by the Apex Court in its recent judgment in K. Nageswara Naidu v. Collector &

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District Magistrate, Y.S.R. Kadapa Distric t^[6] , we are of the considered opinion that following the said judgments, and for the reasons recorded above, the impugned orders of detention, passed by respondent No.2-Detaining Authority, as confirmed by respondent No.1-Government, also cannot be sustained and are liable to be set aside.

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Accordingly, the order of detention dated 29.02.2012, passed by respondent No.2-Detaining Authority, as confirmed by respondent No.1-Government, by orders issued in G.O. Rt. No. 1450, dated 30.03.2012, are set aside. The detenu is directed to be released forthwith from prison, if he is not required in any other offence.

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Accordingly, the writ petition is allowed. No costs.

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N.V. RAMANA, J.

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_____________________ P. DURGA PRASAD, J.

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Dated: 16^th October, 2012 KSR

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