Research › Search › Judgment

Andhra High Court · body

2022 DIGILAW 787 (AP)

Kasani Venkateswaramma v. State of Andhra Pradesh

2022-08-24

B.V.L.N.CHAKRAVARTHI, U.DURGA PRASAD RAO

body2022
JUDGMENT U.DURGA PRASAD RAO, J. - In this writ petition filed under Article 226 of the Constitution of India the petitioner challenging the detention of her husband Sri Kasani Venkata Satyanarayana @ Konda S/o Satyanarayana under orders of detention in Rc.No.REV-CSECOPDL(PRC)/1/2022-SA-(C1)-KCO, dtd. 4/5/2022 passed by the 2nd respondent-District Collector and District Magistrate, Machilipatnam and prayed to direct the respondent authorities to set the detenu at liberty forthwith. 2. The 2nd respondent passed the impugned detention order against the detenu Kasani Venkata Satyanarayana @ Konda S/o Satyanarayana exercising the powers vested in him under Sec. 3(1) & (2) 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 "Act, 1986") treating the detenu as "BootLeggar" under Sec. 2(b) of the Act, 1986 and on the subjective satisfaction that the detenu is acting and also calculated to act in a manner prejudicial to the maintenance of public order since he is involved in the following five cases: 3. In the grounds of detention, the synopsis of each case has been mentioned as follows: (a) Ground No.1: (Crime No.212/2020, dt: 4/9/2020 of the Kruthivennu Police Station u/S 7(B) r/w 8(B) of the Andhra Pradesh Prohibition (Amendment) Act, 2020) On 4/9/2020 at 18.30 hrs, the S.I of Police, Kruthivennu PS along with staff rushed to Kunkudu Chettla Dibba in the outskirts Podu H/o Nidamarru Village and found the detenu manufacturing ID liquor in aluminum vessels and kept already manufactured ID liquor of about 5 liters in plastic bag. The S.I and his staff arrested the detenu and as there were no independent mediators, prepared occurrence report and seized the contraband and registered Crime No.212 of 2020 for the offences U/s 7(B) r/w 8(B) of the Andhra Pradesh Prohibition (Amendment) Act, 2020. Later the detenu was enlarged on bail. Charge-sheet was filed before learned Judicial First Class Magistrate, Bantumilli. (b) Ground No.2: (Crime No.227/2021, dt: 16/6/2021 of the Kruthivennu Police Station U/s 7(B) r/w 8(B) of the Andhra Pradesh Prohibition (Amendment) Act, 2020) On 16/6/2021 at 19.00 hrs. the S.I of Police, Kruthivennu PS, along with staff rushed to Ramalayam in the outskirts of Podu H/o Nidamarru Village and found the detenu and other person by name Borra Balaji, S/o Swamy having two plastic cans which contain 10 liters each of ID Liquor. the S.I of Police, Kruthivennu PS, along with staff rushed to Ramalayam in the outskirts of Podu H/o Nidamarru Village and found the detenu and other person by name Borra Balaji, S/o Swamy having two plastic cans which contain 10 liters each of ID Liquor. The S.I and his staff arrested the detenu and Borra Balaji and as there were no independent mediators, prepared occurrence report and seized the contraband and registered Crime No.227 of 2021 for the offences U/s 7(B) r/w 8(B) of the Andhra Pradesh Prohibition (Amendment) Act, 2020. Later the detenu and Borra Balaji were enlarged on bail. Charge-sheet was filed before learned Judicial First Class Magistrate, Bantumilli. (c) Ground No.3: (Crime No.322/2021, dt: 11/9/2021 of the Kruthivennu Police Station U/s 7(B) r/w 8(B) of the Andhra Pradesh Prohibition (Amendment) Act, 2020) On 11/9/2021 at 19.30 hrs, the S.I of Police, Kruthivennu PS, along with staff rushed to detenu's house of Podu H/o Nidamarru Village and found the detenu and other person by name Nadkuditi Pothuraju, S/o Naga Bhushanam having two plastic cans containing 5 liters each of ID Liquor. The S.I and his staff arrested the detenu and Nadkuditi Pothuraju and as there were no independent mediators, prepared occurrence report and seized the contraband and registered Crime No.322 of 2021 for the offences U/s 7(B) r/w 8(B) of the Andhra Pradesh Prohibition (Amendment) Act, 2020. Later the detenu and Nadkuditi Pothuraju were enlarged on bail. Charge-sheet was filed before learned Judicial First Class Magistrate, Bantumilli. (d) Ground No.4: (Crime No.454/2021, dt:20/12/2021 of the Kruthivennu Police Station U/s 7(B) r/w 8(B) of the Andhra Pradesh Prohibition (Amendment) Act, 2020) On 20/12/2021 at 11.00 hrs, the S.I of Police, Kruthivennu PS, along with staff rushed to detenu's house of Podu H/o Nidamarru Village and found the detenu possessing a plastic can which contains 5 liters of ID Liquor. The S.I and his staff arrested the detenu and as there were no independent mediators, prepared occurrence report and seized the contraband and registered Crime No.454 of 2021 for the offences U/s 7(B) r/w 8(B) of the Andhra Pradesh Prohibition (Amendment) Act, 2020. Later the detenu was enlarged on bail. Charge-sheet was filed before learned Judicial First Class Magistrate, Bantumilli. The S.I and his staff arrested the detenu and as there were no independent mediators, prepared occurrence report and seized the contraband and registered Crime No.454 of 2021 for the offences U/s 7(B) r/w 8(B) of the Andhra Pradesh Prohibition (Amendment) Act, 2020. Later the detenu was enlarged on bail. Charge-sheet was filed before learned Judicial First Class Magistrate, Bantumilli. (e)Ground No.5: (Crime No.16/2022, dt:28/1/2022 of the Special Enforcement Bureau Station, Bantumilli, U/s 7(B) r/w 8(B) of the Andhra Pradesh Prohibition (Amendment) Act, 2020) On 28/1/2022 at 09.00 hrs, the Special Enforcement Bureau (SEB) Sub Inspector, Bantumilli, along with mediator GMSK (Mahila Police, Nidamarru [v] and staff proceeded to Gantlamma Talli Temple in Podu Village of Kruthivennu Mandal and found the detenu having 4 liters of ID liquor. The SEB Sub Inspector and his staff arrested the detenu, prepared mediator report and seized the contraband and registered Crime No.16 of 2022 for the offences U/s 7(B) r/w 8(B) of the Andhra Pradesh Prohibition (Amendment) Act, 2020. Later the detenu was enlarged on bail. Charge-sheet was filed before learned Judicial First Class Magistrate, Bantumilli. Besides, one 'SUSPECT SHEET' [16/2021] was opened against the detenu basing on the above crimes on 1/12/2021 in Kruthivennu PS. (f) Thus on the strength of above material, the 2nd respondent was satisfied that the detenu is a habitual offender and involved in bootlegging activities of purchase, transportation and sale of illicitly distilled liquor and ordered for his preventive detention. Hence the writ petition. 4. It is pleaded that the impugned order of the 2nd respondent is without application of mind and in violation of life and personal liberty of the detenu guaranteed under Article 21 of the Constitution of India. The preventive detention is unwarranted, unjust and illegal, inasmuch as, the detenu was never involved in the alleged offences and he was falsely implicated. Even otherwise he can be adequately dealt with for those offences under common law and preventive detention need not be invoked. There is no ground for preventive detention since there is no material to hold that the alleged illegal activities of detenu have ever caused any widespread danger to the public safety nor public felt insecurity due to his activities. The detenu was enlarged on bail in all the cases in spite of the resistance put forth by the Excise police, which implies that the above cases were falsely implicated. 5. The detenu was enlarged on bail in all the cases in spite of the resistance put forth by the Excise police, which implies that the above cases were falsely implicated. 5. It is further pleaded that though the detention order was passed on 4/5/2022, till date it was not confirmed by the appropriate Government and therefore the detention is void ab initio. No valid grounds were recorded in the impugned detention order except extracting the synopsis of five criminal cases. 6. The respondent No.2 filed counter and opposed the writ petition. (a) It is contended that after following due process, the detention order was passed and the detenu was detained. The detention was approved by the Government vide G.O.Rt.No.867, dtd. 12/5/2022. Later the detenu was produced before the Advisory Board on 20/6/2022. It is contended that mere grant of bail in the criminal cases is not a ground to contend that the detention order is bad at law. On the contrary, the fact that he is involved in five identical cases indicates that the ordinary law is not sufficient to deal with the detenu who is a habitual offender. Therefore the contention that the ordinary law is sufficient to deal with the detenu is farfetching as he is a habitual offender and his activities are prejudicial to the maintenance of public order. The further contention that the detention order was passed without application of mind is incorrect. The detaining authority had recorded the satisfaction on an objective consideration of the facts and law. The other petition averments are false and hence the petition may be dismissed. 7. We have heard learned counsel for the petitioner Sri Narasimha Rao Gudiseva and learned Special Government Pleader representing learned Advocate General. 8. The argument of learned counsel for the petitioner is too fold - that the detenu is innocent and because of political rivalry series of excise cases were foisted against him and such false cases cannot be made a ground for his preventive detention and even assuming that he committed the offences referred in the detention order, still the general law can take care of such offences and the authorities need not shore upon the draconian preventive detention law, as the activities of the detenu would not adversely effect the maintenance of public order. 9. 9. His next argument is that the Government have not so far confirmed the detention of the detenu in spite of the report of the Advisory Board opining in favour of detention. In fact the Government has not taken any decision so far in terms of Sec. 12 of the Act, 1986. Learned counsel would argue that since as per proviso to Sec. 3(2) of the Act, 1986, the initial period of detention shall be only for three months, the Government have to take a decision regarding the confirmation of detention before the commencement of next three months period. He would submit that in this case the detention was on 4/5/2022 as per the impugned detention order. As per Sec. 3(2) proviso, the initial period of detention shall not exceed three months, meaning thereby, the said period of three months completes by 4/8/2022. If the Government proposes to confirm the detention basing on the report of the Advisory Board, it should take a decision in terms of Sec. -12 before 4/8/2022. However, learned counsel would emphasize, till date the Government have not taken any decision regarding such confirmation and no material is placed before this Court in that regard. Therefore, the further detention is not sustainable under law. In this regard, he relied upon Nirmal Kumar Khandelwal v. Union of India, 1978 AIR (SUPREME COURT) 1155 = 1978(2) SCC 508 . and Shibapada Mukherjee v. State of West Bengal, 1972 AIR (SUPREME COURT) 1356 = 1974(3) SCC 50 . He thus prayed to allow the writ petition. 10. Per contra, learned Special G.P appearing for learned Advocate General argued that since the boot-legging activities of the detenu cause injury and danger to the health of the public, his detention under the Act, 1986 is legally perfect and sustainable. So far as the second point urged by the petitioner is concerned, learned Special G.P. argued that the Government vide G.O.Rt.No.867, dtd. 12/5/2022 have approved the detention order passed by the 2nd respondent and so far as confirmation is concerned, there is no time limitation mentioned in the Sec. 12 of the Act, 1986. 11. The point for consideration is whether there are merits in the writ petition to allow ? 12. POINT: We have given our anxious consideration to the above respective arguments of the both the learned counsel. 11. The point for consideration is whether there are merits in the writ petition to allow ? 12. POINT: We have given our anxious consideration to the above respective arguments of the both the learned counsel. At first we would like to take up the second point raised by the learned counsel for the petitioner. It is apposite to extract the relevant provisions: Sec. 3 "3.Power to make order 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. (2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Government are satisfied that it is necessary so to do, they may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-sec. (1) exercise the powers conferred by the said subsec. . Provided that the period specified in the order made by the Government under this sub-sec. shall not in the first instance, exceed three months, but the Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period, from time to time by, any period not exceeding three months at any one time. (3) When any order is made under this sec. by an officer mentioned in sub-sec. (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the Government." Sec. 12 "12. Action upon report of Advisory Board-(1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period specified in Sec. 13 as they think fit. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith." Sec. 13 "13. Maximum period of detention - The maximum period for which any person may be detained, in pursuance of any detention order made under this act which has been confirmed under Sec. 12 shall be twelve months from the date of detention." 13. When the scheme of the Act as envisaged in the above provisions is perused, under Sec. 13 the maximum period of detention under this Act shall be twelve months from the date of detention. Be that it may, we will find in the Sec. 3 that the said period of detention of twelve months is not in one stretch and it is regulated by Sec. 3. Then as per Sec. 3(3) after making initial detention order, the officer passing the detention order shall report to the Government within twelve days for approval. Then the Government as per Sec. 3(2) proviso can extend the period of detention at the first instance for three months and amend such order from time to time for further period not exceeding three months at any one time. Then according to Sec. 12 of the Act, 1986, the Government on the report of the Advisory Board, may confirm the detention order and continue the same not exceeding the maximum period specified in Sec. 13 i.e., twelve months from the date of detention. 14. Thus the detention at the first instance shall not exceed three months as per proviso to Sec. 3(2), the Government shall act upon the report of Advisory Board within the said initial period of three months of detention and either confirm the detention or set aside. 15. 14. Thus the detention at the first instance shall not exceed three months as per proviso to Sec. 3(2), the Government shall act upon the report of Advisory Board within the said initial period of three months of detention and either confirm the detention or set aside. 15. In the instant case the detention order was passed on 4/5/2022 by the 2nd respondent and submitted to the Government for its approval and the Government in exercise of the powers conferred U/s 3(3) of the Act, 1986, approved the detention order vide G.O.Rt.No.867, dtd. 12/5/2022 i.e., within twelve days from the date of detention. In that view, the detention will hold good for three months as per Sec. 3(2) proviso. The said period of three months completes by 4/8/2022 and the Government, in terms of Sec. 12, have to take a decision on the report of the Advisory Board before 4/8/2022. It is true that in Sec. 12 no time limit is prescribed for confirming the detention order by the Government. However, when the above provisions are studied conjunctively, one can understand that three months limitation is implicit in Sec. 12. Our view is fortified by the decisions relied upon by the petitioner. (a) In Nirmal Kumar Khandelwal's case (1 supra) the petitioner was detained w.e.f 24/10/1977 by an order passed by Secretary to the Government of Maharashtra U/s 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA"). Reference was made to the Advisory Board on 24/11/1977 and the Board rejected the representation of the detenu on 23/12/1977. However, the detention was challenged mainly on the ground that no confirmation order was passed by the Government within three months of the commencement of the detention as per Sec. 8(f) of COFEPOSA and so the detention beyond initial period of three months was violative of Article-22(4) of the Constitution of India. It was contended on behalf of the Government that Article 22(4) or COFEPOSA did not stipulate that the confirmation shall be made within three months from the commencement of the detention. It was contended on behalf of the Government that Article 22(4) or COFEPOSA did not stipulate that the confirmation shall be made within three months from the commencement of the detention. However, considering Sec. 8(f) of the Act, the Apex Court held that the confirmation ought to be made within three months of the date of detention by the appropriate Government and since no order of confirmation was made thereunder, the further detention of the petitioner after the expiry of three months was without the authority of law. Sec. 12 of the Act, 1986 can be said to be in pari materia with Sec. 8(f) of COFEPOSA. 16. The decision in Shibapada Mukherjee's Case (2 supra) is also in similar lines. On 30/4/1971 the District Magistrate passed the detention order U/s 3(1) and (3) of West Bengal (Prevention of Violent Activities) Act and on the same day reported the said fact to the State Government. The petitioner was however arrested on 4/5/1971. The State Government gave its approval on 11/5/1971. On 2/6/1971 petitioner's case was referred to Advisory Board and on 9/7/1971 the Advisory Board reported that there was sufficient cause for detention. On 7/8/1971 the State Government gave confirmation U/s 12 of the Act. Thus the order of confirmation and continuation of detention was made after the expiry of three months from the date of arrest and detention of the petitioner. The petitioner inter alia challenged the detention order on the ground that the confirmation order was passed by the Government after expiry of three months and hence the arrest and detention was illegal. It was contended by the State that Sec. 12(1) of the Act does not lay down in any express terms the time within which the State Government has to confirm the detention order and make a decision to continue the detention of the detenu. The Apex Court held that though Sec. -12 does not in express terms lay down that the decision to confirm the detention order has to be made before the expiry of three months, such a time limit is implicit in the Sec. . Ultimately, the detention order was set aside. The above decision squarely applies to the case on hand. 17. Ultimately, the detention order was set aside. The above decision squarely applies to the case on hand. 17. In the light of the above jurisprudence, it is clear that the Government have to take a decision within three months from the initial detention but the Government have not taken a decision in terms of the Sec. 12 and thereby the detention of the detenu is unjust and illegal as rightly contended by the petitioner. In that view, it is not necessary for us to discuss about the other point of argument raised by the learned counsel for the petitioner. 18. Accordingly, the writ petition is allowed and the detention order in Rc.No.REV-CSECOPDL(PRC)/1/2022-SA-(C1)-KCO, dtd. 4/5/2022 passed by the 2nd respondent-District Collector & District Magistrate, Machilipatnam is hereby set aside and the detenu namely Kasani Venkata Satyanarayana @ Konda S/o Satyanarayana is directed to be released forthwith by the respondents if the detenu is not required in any other cases. No costs.