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2023 DIGILAW 439 (AP)

Challapalyam Prameela v. State of A. P.

2023-02-22

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 her husband Challapalyam Mohan Babu @ Mohan, S/o. Murugaiah, aged 42 years, permanent resident of Chinna Nakkalampalli Village, H/o. Pachikapallam, Vedurukuppam Mandal, Chittoor District, who was detained as per the Detention order in Proc.No.REV-CSECOPDL( PRC)/14/2022-MAGL4 dated 15.06.2022 passed by 2nd respondent under Section 3 (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.1635, 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 seven 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.65/2022, dt.19.05.2020, u/s 7(B) r/w 8(A) & 8(B) of the A.P. Prohibition Amendment Act, 2020 2. Vedurukuppam P.S. Cr.No.23/2022, dt.12.03.2022, u/s 7(B) r/w 8(A) & 8(B) of the A.P. Prohibition Amendment Act, 2020 3. Special Enforcement Bureau of Karvetinagaram Cr. No.429/2021, dt.01.11.2021, u/s 7-B r/w 8-B of APP Act 1995. 4. Special Enforcement Bureau of Karvetinagaram Cr. No.40/2021, dt.30.01.2021, u/s 8(e) of APP Act 1995. 5. Special Enforcement Bureau of Karvetinagaram Cr. No.173/2020, dt.11.05.2020, u/s 34(e) of AP Excise Act 1968. 6. Vedurukuppam P.S. Cr.No.149/2020, dt.05.06.2020, u/s 188 IPC & Sec 7(a) r/w 8(e) of A.P. Prohibition Act, 1995. 7. Special Enforcement Bureau of Karvetinagaram Cr. No.63/2020, dt.09.03.2020, u/s 34(e) of the A.P. Excise Act, 1968 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 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 seven crimes which were taken as a ground for detention, the detenue was not directly involved in most of the offences except one crime. 6. Smt. K. Durgamba, learned counsel for petitioner severely challenged the detention order on the main thrust of argument that out of the seven crimes which were taken as a ground for detention, the detenue was not directly involved in most of the offences except one crime. In other six cases, he was neither present at the scene of offence nor the police arrested him at the spot. However, he was implicated in those six crimes on the alleged identification by the raid party or the confession of a co-accused or by the information of some mediators that the ownership of the contraband found at the scene was that of the detenue and others. She further argued that there were no independent mediators in most of the cases for effecting either seizure or destruction of the contraband. Therefore, 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 six cases has to be decided only after a full-fledged trial. She would strongly urge that having regard to the nature of the crimes, the general law can sufficiently take care of such cases and hence the Detaining Authority ought not to have passed detention order on the basis of such 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) Learned counsel further argued that in Cr.No.40/2021, Cr.No.173/2020 and Cr.No.63/2020 the analyst report would only disclose that the sample is fermented wash and fit for distillation, but the report does not specifically state that the sample contains illicitly distilled liquor which is unfit for human consumption. She 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. She 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 further argued that the 2nd respondent has not taken into consideration this aspect before ordering detention. She 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 seven crimes. They 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 all 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). 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 manner prejudicial to the maintenance of public order. 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 for preventing 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 seven cases either under A.P.Excise Act or 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. The first case is Cr.No.65/2022 of Vedurukuppam P.S. The FIR and other records would show that on 19.05.2022 at about 04.30 PM in forest area, Near Chinna Nakkalampalli Village of Vedurukuppam Mandal when the police went to the spot the detenue and his wife escaped away by leaving a plastic can containing 20 litres of ID liquor. The police in the presence of mediators destroyed the contraband and the other material. The police in the presence of mediators destroyed the contraband and the other material. As rightly argued by the petitioner's counsel, it is not known as to how the police have identified the detenue. Further, except the two mahila constables, no independent mediators were secured to prepare the seizure mahazarnama. Therefore, the complicity of the detenue in this crime is a doubtful fact which has to be resolved only after a full-fledged trial. 12. The second case is Cr.No.23/2022 of Vedurukuppam P.S. As per FIR, on 12.03.2022 at about 04.30 PM when the police reached Nakkalapalli Tank Bund in Vedurukuppam, some unknown offenders were preparing illicit liquor and on seeing the police they left a plastic can containing 5 liters of ID liquor and ran away. At the spot the police found 600 liters of F.J. Wash and they destroyed the contraband and other material under police proceedings. In this case also it is quite surprising as to how the police could know that one of the offenders is the present detenue. Further, there are no independent mediators for police proceedings. In this case also the involvement of deteneu is a doubtful one which should be determined after a full-fledged trial. 13. The third case is Cr.No.429/2021. The record shows that on 01.11.2021 at about 5:20 PM when the Excise party proceeded to RKVB Peta situated towards west of Rajulakandriga village, on the way they found A-1 Athimanjeri Ponnuswamy coming with a bag and on search the police found arrack packets. On further enquiry he reveled as if accused No.2-the detenue has given him about 20 liters of ID arrack, out of which, he sold 10 liters on previous day and while he was carrying remaining 10 liters, the police caught him. On such confession of A1, the police registered a case against him as well as the detenue. Needles to emphasize that the detenue was not found at the spot and he was not arrested there. The case against him hinges on the alleged confession statement of A1. How far the confession of co-accused is legally relevant and on the basis of such confession statement, whether the detenue can be punished or not will be decided only after full-fledged trial. 14. The fourth case is Cr.No.40/2021. The case against him hinges on the alleged confession statement of A1. How far the confession of co-accused is legally relevant and on the basis of such confession statement, whether the detenue can be punished or not will be decided only after full-fledged trial. 14. The fourth case is Cr.No.40/2021. The facts in FIR would reveal that on 29.01.2021 when the staff of SEB and Excise police went towards forest area in Nuthanakaluva of Vedurukupam Mandal, they found one person preparing ID liquor in a drum and on seeing the police he retreated. The police identified him as the detenue. The police seized the contraband and prepared a special report. In this case also the detenue was not arrested at the spot and his identification is a questionable fact. His complicity can be decided only after a full-fledged trial. 15. The fifth case is Cr.No.173/2020. As per FIR, on 11.05.2020 when the police of Prohibition and Excise went to a place about 2.5 KMs away from Vedurukuppam, they found some iron drums covered with gunny bags and none was present there. They found water, black jaggery and some other material which is used for preparation of ID liquor. On enquiry, they came to know that those materials belong to A1-Parameswaran and A2-the detenue. The police prepared a special report and booked a case. It is quite amazing to know how the police have fixed the liability on the accused including the detenue in this case as admittedly none was present at the scene when the raid party went there. So, the complicity of the detenue in this case is highly questionable one which can be decided only after a full-fledged trial. 16. The sixth case is Cr.No.149/2020. The FIR would reveal that on 05.06.2020 at about 11 hours the police have arrested A1 to A9 including the detenue and seized a plastic box from them which contains 20 liters of ID liquor. They also seized a blue drum containing 500 liters of jaggery wash, 20 liters of ID liquor and 50 liters of Black jagger at a place near Chinna Nakkalam Palli Harijana Wada, Vedurukuppam Mandal. The police have prepared arrest-cum-confession mahazarnama and booked case against all the accused. In this case the detenue was arrested at the spot and the police have seized the contraband from the possession of all the accused. 17. The seventh case is Cr.No.63/2020. The police have prepared arrest-cum-confession mahazarnama and booked case against all the accused. In this case the detenue was arrested at the spot and the police have seized the contraband from the possession of all the accused. 17. The seventh case is Cr.No.63/2020. The facts in FIR would show that on 09.03.2020 at about 9.30 AM the P & EI Enforcement staff, Chittoor went to the outskirts of Chinna Nakkkalapalyam Village of Vedurukuppam Mandal and conducted searches and found five plastic drums covered with gunny bags. None was present there. They also found black jaggery, water and other material which is used for preparation of ID liquor. Later on enquiry they came to know that the contraband belong to A1-Govindarajulu and A2-the detenue. The police booked a case accordingly. 18. Thus on a close scrutiny, above cases would show that except in Cr.No.149/2020, in other six cases, the participation of the detenue is a doubtful one, as in some of those cases the detenue was not physically present and in some cases he allegedly absconded on seeing the raid party and therefore no arrest was effected at the spot. Further there are no independent mediators for the seizure and destruction of the contraband. 19. Above all, as rightly argued by the counsel for the petitioner, in Cr.No.40/2021, Cr.No.173/2020 and Cr.No.63/2020 the analyst reports would only disclose that the sample is fermented wash and fit for distillation, but they do not specifically state that the sample contains illicitly distilled liquor, unfit for human consumption. 20. In view of the above facts, the complicity of the detenue in those cases can be decided only after the trial. It is true that 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 was allegedly involved, prima facie establish his involvement even if prosecution case 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 above cases to consider them as a ground to record detention order. We are constrained to hold that the Detaining Authority has not mentioned in his order as to how he is satisfied with the above cases to consider them as a ground to record detention order. So far as preventive detention is concerned, in our considered view, the 2nd respondent ought not to have taken into consideration such cases which can be taken care by general law, for ordering detention. At the outset we find preventive detention of the detenue is per se illegal and unwarranted. 21. Accordingly, this Writ Petition is allowed and the detention order in REV-CSECOPDL(PRC)/14/2022-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., Challapalyam Mohan Babu @ Mohan, aged 42 years, S/o Murugaiah, R/o Chinna Nakkalampalli Village, H/o Pachikapallam, 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.