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2019 DIGILAW 358 (AP)

S. Raja Babu v. State of A. P.

2019-12-06

J.K.MAHESHWARI, M.SEETHARAMA MURTI

body2019
ORDER : M. Seetharama Murti, J. 1. This writ petition, under Article 226 of the Constitution of India, is filed by the petitioner challenging the detention of his brother, S. Krishna, under the order of detention, dated 27.04.2019, passed by the 2nd respondent - Collector & District Magistrate, East Godavari District, which was confirmed by the 1st respondent-Government of Andhra Pradesh under G.O.Rt. No. 1141, dated 23.05.2019. 2. We have heard the submissions of learned counsel for the petitioner, and of learned Special Government Pleader representing the learned Additional Advocate General appearing for the respondents. We have perused the material record. 3. To begin with, it is apt to note that the following two cases, which were registered against the detenu, are only taken into consideration for his detention under the provisions of the Andhra Pradesh Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986 (for short 'the Act'). (i). Cr.No. 201 of 2019, dated 30.03.2019, of Prathipadu Prohibition & Excise Station under Section 7(A) read with 8(e) of A.P. Prohibition (Amended) Act, 1997. On 30.03.2019 at about 6:00 a.m. the Prohibition & Excise Sub Inspector, Prathipadu, found you in presence of mediator near YRC canal bund in Pedasankarlapudi village limits of Prathipadu Mandal with a gunny bag containing three polythene covers each with 10 Lts totalling 30 Lts of ID liquor. Your co-accused Saina Rambabu, S/o. Sanyasirao, R/o. Siripuram (V) was arrested with 20 Its of ID liquor thus it was 50 Its of ID liquor. The Prohibition & Excise Sub Inspector arrested you, drawn 300 ml of ID liquor into one clean bottle for analysis purpose as sample, sealed the sample bottle and the bag with polythene covers containing remaining I.D. liquor, affixed identity slips and seized entire property under cover of a mediators report and registered the report as F.I.R. in Cr. No. 201 of 2019 under Section 7(A) read with 8(e) of A.P. Prohibition Act, 1995 of Prohibition & Excise Station, Prathipadu. You along with co-accused were produced before the Hon'ble JFCM Court, Prathipadu for remand. Though the Additional Public Prosecutor opposed bail, you were granted bail on 10.04.2019 by the Hon'ble JFCM Court on executing bond of Rs. No. 201 of 2019 under Section 7(A) read with 8(e) of A.P. Prohibition Act, 1995 of Prohibition & Excise Station, Prathipadu. You along with co-accused were produced before the Hon'ble JFCM Court, Prathipadu for remand. Though the Additional Public Prosecutor opposed bail, you were granted bail on 10.04.2019 by the Hon'ble JFCM Court on executing bond of Rs. 10,000/- with two sureties for a like sum of each and a condition that you should appear before the Station House Officer, Prohibition and Excise Station, Prathipadu on every Monday between 10:00 a.m. to 5:00 p.m. Further, on analysis of the sample drawn in this case, the quantity seized is found to be "illicitly distilled liquor, unfit for human consumption and injurious to health". The case is under trial in the Hon'ble JFCM Court of Prathipadu in C.C. No. 403 of 2019. (ii). Crime No. 76 of 2018, dated 20.02.2018 of Prathipadu Prohibition & Excise Station under Section 7(A) read with 8(e) of A.P. Prohibition (Amended) Act, 1997. On 20.02.2018, at about 6:00 p.m., the Prohibition and Excise Sub Inspector, Prathipadu in presence of mediators found you with a mica bag near bus stand in Prathipadu village limits of Prathipadu Mandal. On examination, the mica bag found with one polythene cover with 10 Its of ID liquor. On enquiry, you revealed that you distilled the ID liquor in Pedasankarlapudi village limits, distributing the same to the ID sellers to gain profit. You also confessed and explained how you escaped from the Prohibition and Excise Station, Prathipadu on 02.02.2018. Then the Prohibition & Excise Sub Inspector arrested you, drawn 300 ml of ID liquor into one clean bottle for analysis purpose as sample, sealed the sample bottle and the mica bag with polythene covers containing remaining I.D. liquor, affixed identity slips and seized entire property under cover of a mediators report drafted at the place of offence and registered the mediator's report as F.I.R. in crime No. 76 of 2018 under Section 7(A) read with 8(e) of A.P. Prohibition Act, 1995 of Prohibition & Excise Station, Prathipadu. You were produced before the Hon'ble JFCM, Prathipadu and remanded for judicial custody by the Hon'ble Court. Though A.P.P. opposed bail, you were granted bail on 07.03.2018 by the Hon'ble JFCM Court, Prathipadu on your executing a bond for Rs. 10,000/- with two sureties for a like sum of each. You were produced before the Hon'ble JFCM, Prathipadu and remanded for judicial custody by the Hon'ble Court. Though A.P.P. opposed bail, you were granted bail on 07.03.2018 by the Hon'ble JFCM Court, Prathipadu on your executing a bond for Rs. 10,000/- with two sureties for a like sum of each. Further, on analysis of the sample drawn in this case, the quantity seized is found to be "illicitly distilled liquor, unfit for consumption and injurious to health". The case is under trial in the Hon'ble JFCM Court of Prathipadu in C.C. No. 407 of 2019. 4. Learned counsel for the petitioner submitted as follows: 'The detention order refers to two crimes only. In both the said crimes, the detenu is enlarged on bail. Though his bail applications were opposed, the Court concerned did not find any tenable objections in the submissions of the prosecutor and enlarged the detenu on bail. In the grounds, there was a reference to five crimes; but, in the grounds itself, it is stated that the said crimes are not taken into consideration for the detention of the detenu. Therefore, there is no basis to say that number of cases are booked against the detenu. When only two crimes are taken into consideration, it is unjust to say that number of crimes are booked against the detenu and that he is a bootlegger. Though subjective satisfaction is enough, on mere registration of crimes it cannot be said that the detenu is a boot-legger. Till convictions are recorded, he shall be presumed to be innocent. The authority must act rationally and must be satisfied subjectively or otherwise of future mischief. The Courts are required to undertake investigation of the sufficiency of materials on which subjective satisfaction is grounded. There is no such material in this case. Though the satisfaction is only subjective, the satisfaction cannot be considered as conferring unfettered discretion immune from judicial review. The authority must act rationally and must be satisfied subjectively or otherwise of future mischief. The Courts are required to undertake investigation of the sufficiency of materials on which subjective satisfaction is grounded. There is no such material in this case. Though the satisfaction is only subjective, the satisfaction cannot be considered as conferring unfettered discretion immune from judicial review. Though in the grounds of detention a reference was made to five more crimes in which the detenu is an accused by stating that the same are not considered for passing the detention order, the observation in the detention order, which deals with only two crimes, to the effect that the detenu is repeatedly committing the offences only shows that grounds extraneous were taken into consideration and those extraneous considerations influenced the mind of the 2nd respondent - District Collector, who passed the order. The 1st respondent, without independent application of mind, mechanically confirmed the order of the 2nd respondent. Therefore, the detention order is unjustified. Personal liberty is a precious right and such right cannot be curtailed on the basis of alleged involvement in two crimes. There are no grounds much less valid grounds justifying the detention.' 5. Learned Special Government Pleader, while supporting the order of the 2nd respondent and the confirmation order of the 1st respondent - Government, contended as follows: 'Illicit distilled liquor is seized in the two subject crimes booked against the detenu. The said illicit liquor on the analysis by a chemical examiner of Prohibition & Excise Laboratory was found to be unfit for human consumption and injurious to health. The detenu is indulging in illegal activities in a clandestine manner and is repeatedly violating the provisions of the AP Prohibition (Amended) Act, 1997, to gain monetary benefits at the cost of the health of the poor people. Number of ID liquor cases are booked against him. Illegal activities being organised by him are causing grave and widespread danger to public life and peaceful coexistence. His illegal activities are prejudicial to the maintenance of public order. Thus, he is a bootlegger as defined in Section 2(b) of the Act. Disposal of the cases booked against him will take a long time. Therefore, till he is proved guilty, his detention is necessary to curb his illegal, clandestine and dangerous activities, which will adversely affect public health and public order. Thus, he is a bootlegger as defined in Section 2(b) of the Act. Disposal of the cases booked against him will take a long time. Therefore, till he is proved guilty, his detention is necessary to curb his illegal, clandestine and dangerous activities, which will adversely affect public health and public order. The subjective satisfaction is sufficient for passing an order of detention. Therefore, the 2nd respondent is justified in passing the detention order, having taken into consideration all relevant and proximate grounds for detention. The detention order is necessary to prevent the detenu from acting in any manner prejudicial to the maintenance of the public order. Hence, the writ petition is liable to be dismissed.' 6. We have given earnest consideration to the submissions. 7. Though the grounds of detention make a reference to five more crimes, in which the detenu is an accused for the offences punishable under A.P. Excise Act, 1968, the detention order, however, reflects that the above referred two cases are only taken into consideration. The calendar cases arising out of those five crimes are under trial. Therefore, the reliance is only on the above said two crimes. In both the said crimes, admittedly, the detenu was enlarged on bail and the calendar cases are under trial. The order of detention does not refer to convictions, if any, secured by the State against the detenu. In the two crimes, on which reliance is placed, the State could not successfully oppose for grant of bail. If the apprehension of the detaining authority was true, the bail applications in the two crimes should have been successfully opposed by bringing to the notice of the Courts concerned that the apprehension is based on reasonable belief and that the apprehension is well founded. However, the State failed in the above regard and eventually the detenu was enlarged on bail in both the said crimes. The bail orders in the said two crimes are not challenged before the higher fora. Though five crimes are of the year, 2017, we wonder why the Calendar Cases are not taken on file till the year 2019 and why the cases are under trial till now. No reasons are forthcoming for not commencing trials in the said five cases pending against the detenu. Though five crimes are of the year, 2017, we wonder why the Calendar Cases are not taken on file till the year 2019 and why the cases are under trial till now. No reasons are forthcoming for not commencing trials in the said five cases pending against the detenu. Therefore, the State, which is not showing the required seriousness in seeing that the detenu is not enlarged on bail or in securing convictions of the detenu, as per law, by promptly conducting investigation and commencing & concluding trials, cannot be heard to say that the prosecutions launched will take a long time and that it is not immediately possible to prevent the detenu from indulging in similar activities prejudicial to the public health and order. The detenu is enlarged on bail is a circumstance favourable to the detenu and merely on the ground that in the two crimes the trials are not yet commenced, the order of detention as confirmed by the State cannot be sustained. As rightly contended by learned counsel for the petitioner, though in the grounds of detention five crimes are mentioned and it is also stated that they are not considered for the detention of the detenu, yet, in the order of the 2nd respondent, which is impugned, it is stated that the detenu is indulging in illegal activities in a clandestine manner repeatedly. If only two crimes are considered for detention, it is not possible to arrive at such a conclusion by the 2nd respondent in his order. The said observation itself shows that the 2nd respondent was influenced by extraneous considerations, which are not considered as grounds for detention of the detenu. Therefore, the statements in the detention order cannot be said to have been made responsibly. In our considered view, merely because the detenu was arraigned as an accused in two crimes in which he was enlarged on bail, it cannot be said that there is an imperative need to detain him; therefore, allowing his detention would amount to regarding the orders impugned as orders of punishment for crimes passed without trials, though the orders are purporting to be orders of preventive detention. On wholesome consideration we find that the satisfaction said to have been arrived at by the authority is not based on materials, which are of rationally probative value. On wholesome consideration we find that the satisfaction said to have been arrived at by the authority is not based on materials, which are of rationally probative value. We accordingly hold that there are no justifiable grounds for the detention of the detenu. 8. For the aforesaid reasons, we are of the opinion that the impugned detention order and the confirmation order are unsustainable under facts. 9. It is pertinent to mention that in view of the resolution supra, there is no need to advert to the other grounds sought to be urged in support of the attack of the detention of the detenu. Before parting, it is to be noted that though some decisions are cited on either side, there is no need to refer to the decisions as the issue is amenable for resolution on facts peculiar to the case and is resolved accordingly. 10. In the result, the Writ Petition is allowed setting aside the order of detention, dated 27.04.2019, passed against the petitioner's brother, S. Krishna, and the consequential confirmation thereof by the Government of Andhra Pradesh under G.O.Rt. No. 1141, dated 23.05.2019. The said detenu shall be set at liberty forthwith unless his confinement is required in relation to any other case. No order as to costs. Pending miscellaneous applications, if any, shall stand closed.