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2023 DIGILAW 465 (AP)

Nadigatla Subbalakshmi v. State of Andhra Pradesh

2023-02-28

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 Son Nadigatla Manikanta @ Madhu S/o Venkataramana, Age 24 years R/o Marlava Village, Peddapuram Mandal, Kakinada District, who was detained as per the Detention Order in Ref. No. Magl-1/138/2022, dated 22.10.2022 passed by the 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. 2718, dated 19.12.2022. 2. The detention order dated 22.10.2022 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 Peddapuram SEB Station, Cr. No. 1105/2021, dated 13.09.2021 U/s 7(B) R/w 8(B) of AP Prohibition (Amendment) Act, 2020 2 Peddapuram SEB Station, Cr. No. 1233/2021, dated 01.10.2021 U/s 8(A) of AP Prohibition (Amendment) Act, 2020 3 Peddapuram SEB Station, Cr. No. 572/2022, dated 17.3.2022 U/s 7(B) r/w 8(A) of AP Prohibition (Amendment) Act, 2020 4 Peddapuram SEB Station, Cr. No. 1089/2022, dated 31.07.2022 U/s 7(B) r/w 8(A) of AP Prohibition (Amendment) Act, 2020 5 Peddapuram SEB Station, Cr. No. 1125/2022, dated 10.08.2022 U/s 7(B) r/w 8(A) of AP 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 P.V.V. Nagaraju and learned Special Government Pleader representing learned Advocate General on behalf of respondents. 6. Sri P.V.V. Nagaraju, learned counsel for the 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. 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. 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 attention to the crucial factual and legal aspects in right perspective while passing the detention order: (a) Learned counsel would further argue that except in Cr. No. 1105/2021, in all remaining crimes 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 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 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. (c) While so, 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. (d) 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. 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. In Cr. No. 1105/2021 of Peddapuram SEB Station, 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 the said case, as argued by learned counsel for the petitioner there are no independent mediators except the special report prepared by police. 12. The remaining four cases are concerned, in Cr. No. 1233/20212, as per FIR and remand report, while the police were moving to conduct raids for prohibition and excise offences and reached near the Yeleru Canal bund which is situated on the west side of the Marlava Village of Peddapuram Mandal, the raid party found three persons viz. A1 Pilli Laxmanudu, A2 Nadigatla Manikanta (detenue) and A3 Peddi Subba Rao standing with polythene covers and stirring the FJ Wash with sticks and on seeing the raid party, they ran away. A1 Pilli Laxmanudu, A2 Nadigatla Manikanta (detenue) and A3 Peddi Subba Rao standing with polythene covers and stirring the FJ Wash with sticks and on seeing the raid party, they ran away. The raid party apprehended A1, but A2 (detenue) and A3 got absconded. In the grounds of appeal it is stated that A1 disclosed the absconded person's name as Nadigatla Manikanta/A2/detenue. So, on the basis of confession of co-accused the case is registered against the detenue and A3. 13. So far as Cr. No. 572/20221 is concerned, the prosecution case is that two persons were stirring the FJ Wash contained in plastic drums at Kandi Kaluva Gattu at Ramavaram Village, Jaggampeta Mandal and on seeing the raid party they tried to run away but the raid party apprehended them; the apprehended persons revealed the name of another person who is involved in this case i.e. Sri Nadigatla Manikanta @ Madhu (detenue). So, on the basis of confession of co-accused the case is registered against the detenue. The police have seized the contraband and prepared mediators report. As rightly argued by the learned counsel for the petitioner, the detenue was not arrested on the spot and his presence is a doubtful one. 14. The fourth case is Cr. No. 1089/2022. The contents in FIR and remand report would show that the detenue was present at the scene and he was arrested. The contraband seized from the accused was sent for chemical analysis and the analyst report would show that the sample sent to him contained fermented wash fit for distillation. However, he has not mentioned in the report whether the said wash is unfit for human consumption and injurious to the public health or not. 15. The fifth case is Cr. No. 1125/2022. As per FIR and other records, the police while on raids for prohibition and excise offences, detected a case of illegal possession of 100 litres FJ wash. One person who was standing in front of plastic drums near Yeleru Kaluva Gattu at Marlava of Peddapuram Mandal, on seeing the raid party ran away. The mediator Mahila Police R.B. Kothuru identified the absconded person as Nadigatla Manikanta (detenue). So, on identification by Mahila Police a case was registered against the detenue. In this case also the presence of detenue was doubtful and his complicity can be decided as per provisions of general law. 16. The mediator Mahila Police R.B. Kothuru identified the absconded person as Nadigatla Manikanta (detenue). So, on identification by Mahila Police a case was registered against the detenue. In this case also the presence of detenue was doubtful and his complicity can be decided as per provisions of general law. 16. 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. Out of the remaining two cases, in Cr. No. 1089/2022, the analyst report does not show that the sample is unfit for human consumption and it is injurious to public health. There are also no independent mediators worth the name. It must be mentioned here that unlike the punitive detention, the preventive detention adversely effects the liberty of an individual. 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, duty is cast on the Detaining Authority to take 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. Further in one case, the analyst report does not speak of injurious nature of sample causing danger to public health. 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 per se illegal and unwarranted. 17. Accordingly, this Writ Petition is allowed and the detention order in Ref. 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 per se illegal and unwarranted. 17. Accordingly, this Writ Petition is allowed and the detention order in Ref. No. Magl-1/138/2022, dated 22.10.2022 passed by the 2nd respondent/The Collector and District Magistrate, Kakinada is hereby set aside and the detenue Nadigatla Manikanta @ Madhu S/o Venkataramana, Age 24 years R/o Marlava Village, Peddapuram Mandal, Kakinada District is directed to be released forthwith by the respondents if the detenue is not required in any other cases. No costs. 18. As a sequel, interlocutory applications pending, if any, shall stand closed.