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2023 DIGILAW 422 (AP)

Kurudu Suryavathi v. State of Andhra Pradesh

2023-02-21

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

body2023
ORDER : 1. This Habeas Corpus petition is filed by the petitioner under Article 226 of the Constitution of India for release of her husband Kurudu Chakra Rao S/o Narayana Murthy, Age 53 years R/o Tirumalayapalem Village, Gokavaram Mandal, East Godavari District, who was detained as per the Detention order in ROC No. Magrl.1(SEB)/444017/2022, dated 13.09.2022 passed by 2nd respondent under Section 3(2) r/w Section 3(1) 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. 2502, General Administration (SC-I) Department, dated 22.11.2022. 2. The detention order dated 13.09.2022 was passed by 2nd respondent on the ground that the detenue was involved in following five 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 Special Enforcement Bureau Station, Korukonda, Cr. No. 433/2022, A3, dated 10.05.2022 U/s 7(B) r/w 8(c) of A.P Prohibition Amendment Act, 2020 2 Special Enforcement Bureau Station, Korukonda, Cr. No. 252/2022, dated 24.03.2022 U/s 7(B) r/w 8(B) of A.P. Prohibition Amendment Act, 2020 3 Gokavaram P.S. Cr. No. 42/2022, dated 24.01.2022, U/s 7(B) r/w 8(A) and (B) of A.P. Prohibition Amendment Act, 2020 4 Special Enforcement Bureau Station, Korukonda, Cr. No. 1052/2021, dated 12.12.2021 U/s 7(B) r/w 8(A) and (B) of A.P Prohibition Amendment Act, 2020 5 Special Enforcement Bureau Station, Korukonda, Cr. No. 885/2021, dated 28.10.2021 U/s 7(B) r/w 8(A) of A.P Prohibition Amendment Act, 2020 3. Hence the writ petition. 4. The 2nd respondent filed the counter and opposed the writ petition. 5. Heard arguments of learned counsel for the petitioner Sri K.L.N. Swamy and learned Special Government Pleader representing learned Advocate General on behalf of respondents. 6. Sri K.L.N. Swamy, learned counsel for petitioner severely challenged the detention order on the main thrust of argument that out of the five 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 three cases, he was neither present at the scene of offence nor the police arrested him at the spot. In other three cases, he was neither present at the scene of offence nor the police arrested him at the spot. However, he was implicated in those three crimes on the alleged identification by the raid party or on the alleged 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 three cases has to 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 strength of such highly doubtful cases. Learned counsel lamented that the 2nd respondent who is Detaining Authority has not bestowed her attention to the crucial factual and legal aspects in right perspective while passing the detention order: (a) Learned counsel would further argue that in Cr. No. 885/2021 the analyst report would only disclose that the sample is fermented wash and fit for distillation, 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 would further submit that the 2nd respondent has not taken into consideration this aspect before ordering detention. Learned counsel would thus conclude that except in two cases, 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 five crimes. Those 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. Those 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 a 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 five cases under A.P. Prohibtion 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. In Cr. No. 433/2022 and Cr. No. 252/2022 of Korukonda PS, the contents in FIR and remand report would show that the detenue was present at the scene and he was arrested along with other accused. The contraband seized from the accused was sent for chemical analysis and the analyst opined that the sample contains ID liquor unfit for human consumption and injurious to the public health. In these two cases, as argued by learned counsel for the petitioner there are no independent mediators except the police and one Grama Mahila Samrakshana Karyadarshi (GMSK): (a) The remaining three cases are concerned, in Cr. No. 42/2022 the detenue was not present at the spot and police have arrested him there. On the other hand, as per FIR and remand report, the police found A1-Sammangi Satyavathi while selling 10 litres of ID arrack in the outskirts of Tirumalayapalem Village, Gokavaram mandal and on interrogation she stated that she purchased the arrack from A2 the detenue. So, on the basis of confession of co-accused the case is registered against the detenue. So far as Cr. So, on the basis of confession of co-accused the case is registered against the detenue. So far as Cr. No. 1052/2021 and Cr. No. 885/2021 are concerned, the prosecution case is that the detenue who was preparing the ID liquor, escaped on seeing the raid party. The police have seized the contraband and prepared the report. As rightly argued by the learned counsel for the petitioner, the detenue was not arrested on the spot and it is not known how the police could identify him because nothing was mentioned that they have previous knowledge about the detenue. There are no independent mediators for the alleged seizure of the contraband. Added to it, in Cr. No. 885/2021, the analyst report would show that the sample sent to him contained fermented wash fit for distillation. However, he is not mentioned in the report whether the said wash is unfit for human consumption and injurious to the public health or not. 12. So, at the outset out of the five cases referred to the Detaining Authority by the Sponsoring Authority, in three cases the participation of the detenue at the spot is a doubtful one and the said aspect can be determined only after full-fledged trial. In our considered view, the Detaining Authority ought not to have considered such doubtful cases for ordering preventive detention. In remaining two cases, there are no independent mediators worth the name. It must be mentioned here that unlike the preventive detention, the preventive detention adversely effects the liberty of an individual only on the premise that he may involve in habitual offences. Therefore, while ordering preventive detention, the Detaining Authority shall meticulously scrutinize the materials placed before it and analyze the same to know whether there is a prima facie material to warrant preventive detention. It is true that at the stage of ordering preventive detention, the Detaining Authority may not act like a trial Court in deciding the veracity of the prosecution case. However, at the same time the duty is cast on the Detaining Authority to make a holistic view over the cases presented before him to find out whether the complicity of the detenue can be inferred even if the cases are not challenged. However, at the same time the duty is cast on the Detaining Authority to make a holistic view over the cases presented before him to find out whether the complicity of the detenue can be inferred even if the cases are not challenged. In the instant case, as stated supra, the participation of the detenue in three cases is a doubtful one and remaining two cases there are no independent mediators for seizure of contraband. Considering all these aspects, we are of the view that the 2nd respondent ought not to have considered such cases for ordering detention. Hence, we find the preventive detention of the detenue is perse illegal and unwarranted. 13. Accordingly, this Writ Petition is allowed and the detention order in ROC No. Magrl.1(SEB)/444017/2022, dated 13.09.2022 passed by 2nd respondent/The Collector and District Magistrate, East Godavari, Rajamahendravaram is hereby set aside and the detenue Kurudu Chakra Rao S/o Narayana Murthy, Age 53 years R/o Tirumalayapalem Village, Gokavaram Mandal, East Godavari District is directed to be released forthwith by the respondents if the detenue is not required in any other cases. No costs. 14. As a sequel, interlocutory applications pending, if any, shall stand closed.