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2023 DIGILAW 410 (AP)

Kotagaram Markondaiah v. State of Andhra Pradesh

2023-02-20

U.DURGA PRASAD RAO, V.R.K.KRUPA SAGAR

body2023
ORDER : U. Durga Prasad Rao, J. This Habeas Corpus petition is filed by the petitioner under Article 226 of the Constitution of India for release of his brother Dhanapal @ Jakkayulu, S/o. Baduraiah, aged 36 years, permanent resident of Kurivikuppam, Vedurukuppam Mandal, Chittoor District, who was detained as per the Detention order in Proc.No.REV-CSECOPDL(PRC)/15/2022-MAGL4 dated 15.06.2022 passed by 2nd respondent under Section 3(1) and (2) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (1 of 1986) [for short, ‘the Act 1 of 1986’] and later confirmed by the 1st respondent as per the proceedings in G.O.Rt.No.1638, dt:10.08.2022. 2. The detention order dated 15.06.2022 was passed by 2nd respondent on the ground that the detenue was involved in following six cases and thus he is a ‘Bootlegger’ within the meaning of Section 2(b) of the Act 1 of 1986 and his activities are prejudicial to the maintenance of public health and public order. 1. Vedurukuppam P.S. Cr.No.66/2022 u/s 7(B) r/w 8(A) & 8(B) of the A.P. Prohibition Amendment Act, 2020 2. Special Enforcement Bureau of Karvetinagaram Cr. No.251/2021 u/s 34(e) of the A.P. Excise Act, 1968 3. Vedurukuppam P.S. Cr.No.252/2020 u/s 7(B) r/w 8(A) & 8(B) of the A.P. Prohibition Amendment Act, 2020 4. Vedurukuppam P.S. 164/2020 u/s 188 IPC and Sec.7(a) r/w 8(e) of the APP Act. 5. Penumuru P.S. Cr. No.161/2020 u/s 7(B) r/w 8(B) of the A.P. Prohibition Amendment Act, 2020 6. Special Enforcement Bureau of Karvetinagaram Cr. No.97/2020 u/s 34(e) of the A.P. Excise Act, 1968 3. Hence the writ petition. 4. The 2nd respondents filed the counter and opposed the writ petition. 5. Heard arguments of learned counsel for the petitioner Smt. K. Tulasi Durgamba and learned Special Government Pleader representing learned Advocate General on behalf of respondents. 6. Smt. K. Durgamba, learned counsel for petitioner severely challenged the detention order on the main thrust of argument that out of the six crimes, which were taken as a ground for detention, the detenue was not directly involved in most of the offences except one or two. In other four cases, he was neither present at the scene of offence nor the police arrested him at the spot. However, he was implicated in those four crimes on the alleged identification of the raid party or the confession of a co-accused. In other four cases, he was neither present at the scene of offence nor the police arrested him at the spot. However, he was implicated in those four crimes on the alleged identification of the raid party or the confession of a co-accused. There were no independent mediators in those cases. Hence, the participation of the detenue in those cases is a myth, if not highly doubtful and the truth or otherwise of the complicity of the detenue in those four cases can be decided only after full-fledged trial. Therefore, the general law can sufficiently take care of such cases. However, the detaining authority ought not to have passed detention order on the basis of highly doubtful cases. Learned counsel lamented that the 2nd respondent who is detaining authority has not bestowed his attention to the crucial factual and legal aspects in right perspective while passing the detention order. (a) The remaining two cases are concerned, learned counsel would argue, in Cr. No.251/2021 the analyst report would only disclose that the sample is fermented wash and fit for distallation, but it does not specifically state that the sample contains illicitly distilled liquor which is unfit for human consumption. Learned counsel would vehemently argue that unless the contraband seized from an accused is proved to be an illicitly distilled liquor and it is unfit for human consumption and injurious to the public health, the said case cannot be taken into consideration for ordering detention of such accused under the provisions of the Act 1 of 1986. Learned counsel further argued that the 2nd respondent has not taken into consideration this aspect before ordering detention. Learned counsel would thus conclude that except one case, in none of the other cases there is a strong prima facie material to order preventive detention. Learned counsel thus prayed to allow the writ petition and set aside the detention order. 7. Refuting the arguments of the petitioner, learned Special Government Pleader would argue that the detenue was very much involved in all six crimes. The six crimes would show that in some of them detenue was directly arrested at the spot and in some matters though he was present at the spot and preparing ID liquor he skulked away on seeing the raid party. Therefore, his involvement in the crimes is writ large. The six crimes would show that in some of them detenue was directly arrested at the spot and in some matters though he was present at the spot and preparing ID liquor he skulked away on seeing the raid party. Therefore, his involvement in the crimes is writ large. Since he is an habitual offender and deals with illicitly distilled liquor which is unfit for human consumption and injurious to the public health, the 2nd respondent has rightly passed the detention order. He thus prayed to dismiss the writ petition. 8. The point for consideration is whether there are merits in the writ petition to allow? 9. POINT: (a) We have given our thoughtful consideration to the above respective arguments. Under section 3 of Act 1 of 1986, the Government may, upon being satisfied with respect to any bootlegger, dacoit, drug-offender, goonda, immoral traffic offender or land grabber that with a view to prevent 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. (b) Thus, Section 3 empowers the Government that if it satisfied with the category of persons narrated in the said section that, it is necessary to prevent them from acting in any manner prejudicial to the maintenance of public order, then make an order directing that such person be detained. Needless to emphasize that the detention envisaged in Section 3 is a preventive but not punitive detention whose object is mainly to prevent such categorized persons from acting in any manner prejudicial to the maintenance of public order. The clause “acting in any manner prejudicial to the maintenance of public order” is defined under Section 2(a). According to this Section, if any of the categorized persons except the drug offender, engaged or is making preparations for engaging in any one of his activities which effect adversely or are likely to affect adversely, the maintenance of public order it amounts to acting in the any manner prejudicial to the maintenance of public order. In the explanation, the term ‘public order’ is explained. In the explanation, the term ‘public order’ is explained. A public order shall be deemed to have been effected adversely or shall be deemed likely to be affected adversely if any of the activities of any one of the persons referred in section 2(a) directly or indirectly, is causing or calculated to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life or public health. (c) Thus a cumulative study of Section 2(a) and section 3 would give an understanding that in order to prevent a bootlegger from acting in any manner prejudicial to the maintenance of public order, his activities shall appear to the Government that they will effect adversely or likely to affect adversely the maintenance of public order and the public order with reference to bootlegger means his activities cause grave or widespread danger to life or public health. 10. In the above context when the impugned detention order is perused, the 2nd respondent ordered preventive detention of the detenue on the ground that he is involved in six cases under either A.P. Excise Act or A.P. Prohibition Amendment Act, 2020 and thus he is a bootlegger. 11. In the grounds of detention, the particulars of the cases involved by detenue are mentioned. The first case is Cr.No.66/2022 of Vedurukuppam P.S. booked under Section 7(B) R/w Section 8(a) and 8(b) of A.P. Prohibition Amendment Act, 2020. In this case, on 20.05.2022 on information when the raid party went to the Kona, in the forest near Kurivikuppam village, it is alleged, the detenue on seeing the police party escaped. The two police identified him as the detenue and they seized a plastic can containing 15 liters of arak and some of the materials which were used for preparation of arak. They also seized arak wash of 200 liters. On chemical analysis of the arak wash, the analyst opined that it is illicitly distilled liquor unfit for human consumption and injurious to the health. (a) As rightly argued by learned counsel for petitioner, the detenue was not arrested at the spot and it is not known how the police could identify him, because nothing is mentioned that they have previous knowledge about the detenue. There are no independent mediators for the alleged seizure of contraband. (a) As rightly argued by learned counsel for petitioner, the detenue was not arrested at the spot and it is not known how the police could identify him, because nothing is mentioned that they have previous knowledge about the detenue. There are no independent mediators for the alleged seizure of contraband. It is true that the veracity of the prosecution case and involvement of the detenue in the said crime will have to be decided only after full-fledged trial in the said criminal case and at this stage the 2nd respondent who is the Detaining Authority cannot go into such merits. However, in order to test whether the acts of the detenue effect adversely to the maintenance of public order, the detaining authority shall consider whether the cases in which the detenue allegedly involved, prima facie establishes his involvement even if prosecution is unchallenged. We are constrained to hold that the Detaining Authority has not mentioned in his order as to how he is satisfied with the said case. (b) Then the second case is Cr.No.251/2021 of Karvetinagaram P.S. This case is also similar to earlier one. In this case also on 07.06.2021, when the enforcement police went to the spot near a tank in Kurivikuppam village, the detenue who was allegedly preparing fermented jaggery wash had escaped on seeing the raid party. The police have seized the contraband and prepared the special report. In this case also it is not known how the raid party members could identify the detenue. (c) In Cr.No.161/2020 of Penumur P.S. of Chittoor District, on 07.10.2020 the police caught one person by name Y. Doraswamy Reddy near Vidurukuppam-Penumur Road of Gobbilimitta Village when he was carrying 20 liters of ID liquor and on enquiry he allegedly stated that he purchased the said contraband from the present detenue. So on the confession of A1 the police have booked case against the detenue also. Admittedly the detenue was not at the scene and the basis for registering crime against him is the confessional statement of co-accused. It is needless to emphasize that only after a full-fledged trial the complicity of detenue can be determined. So on the confession of A1 the police have booked case against the detenue also. Admittedly the detenue was not at the scene and the basis for registering crime against him is the confessional statement of co-accused. It is needless to emphasize that only after a full-fledged trial the complicity of detenue can be determined. However due to the nature of the facts involved in this case, the Detaining Authority should have analyzed the facts to know whether a prima facie case could be made out against the detenue before ordering detention basing on such case, which hinges on the confession of a co-accused. (d) In Cr.No.97/2020 Karvetinagaram P.S. is also similar type of case. In this case two accused one of whom is the detenue were involved. According to prosecution, 07.04.2020, near the forest area in Kurivikuppam Village the accused were allegedly preparing illicit ID liquor and on seeing the excise officials they escaped. The police identified them and they seized the contraband and booked a case. In this case also the identification of accused including detenue is a doubtful one and the veracity of prosecution case can be decided only after full-fledged trial. (e) Thus in the above four cases narrated supra, the involvement of detenue is a questionable one which has to be decided only after full-fledged trial. The question is whether such cases could be taken into consideration by 2nd respondent to record his satisfaction for ordering preventive detention. In the remaining two cases i.e., Cr.No.252/2020 and Cr.No.164/2020 of Vedurukuppam P.S., the police claimed to have arrested the accused including the detenue at the spot and seized the contraband. However, in Cr.No.164/2020 the analyst report only shows that the sample is fermented wash and fit for distillation. It is not mentioned that the said fermented wash is unfit for human consumption and injurious to the public health. That being so, it is unknown as to how the Detaining Authority considered the activity of detenue in Cr.No.164/2020 as affecting or likely to affect adversely to the maintenance of public order as there was nothing on record to note that the contraband would cause grave or widespread danger to life or public health. 12. Thus, except Cr.No.252/2020, in all other cases the involvement of the detenue is a questionable fact which has to be established after full-fledged trial. 12. Thus, except Cr.No.252/2020, in all other cases the involvement of the detenue is a questionable fact which has to be established after full-fledged trial. So far as preventive detention is concerned, in our considered view, the 2nd respondent ought not to have taken into consideration such cases for ordering detention. At the outset we find preventive detention of the detenue is perse illegal and unwarranted. 13. Accordingly, this Writ Petition is allowed and the detention order in REV-SCEC0PDL(PRC)/15/2022-MAGL4, dated 15.06.2022 passed by 2nd respondent / The Collector and District Magistrate, Chittoor District, A.P. is hereby set aside and the detenue viz., Dhanapal @ Jakkayulu, S/o. Baduraiah, aged 36 years, permanent resident of Kurivikuppam, Vedurukuppam Mandal, Chittoor District is directed to be released forthwith by the respondents if the detenue is not required in any other cases. No costs. As a sequel, interlocutory applications pending, if any, shall stand closed.