Muddada Appayya vs Collector And District Magistrate (FAC) & Others

V. Srinivas, J

In this writ petition, the petitioner is challenging the order of detention of his son by name Muddada Narsinga Rao, S/o Appayya, aged 30 years, in order of detention vide Rc.No.1991/2022/C1, dated 28.10.2022 passed by the 1st respondent-The Collector and District Magistrate(FAC), Parvathipuram-Manyam District, which was confirmed by the 2nd respondent vide G.O.Rt.No.2720, General Administration (SC.I) Department, dated 19.12.2022 and prays to direct the respondent authorities to set the detenue at liberty forthwith.

The petitioner herein is the father of detenue. The Collector and District Magistrate, Parvathipuram Manyam District, while categorizing the detenue as a “Bootlegger” within the definition of Section 3(2)r/w 2(b) of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short, ‘the Act 1 of 1986’) passed the impugned order of detention. The said order of detention came to be confirmed by the Government vide G.O.Rt.No.2720, General Administration (SC.I) Department, dated 19.12.2022.

Counter-affidavit is not filed by the respondents.

Heard Sri P. Nagendra Reddy, learned counsel for the petitioner and Sri Khader Mastan, learned counsel attached to the office of learned Additional Advocate General for the respondents.

Learned counsel for the petitioner submits that the detenue was allegedly involved in seven crimes under Section 7(A) r/w.8(e) of Andhra Pradesh Prohibition Act, 1995 and they can be dealt under general laws and that he was granted bail in some of the cases. It is also stated that if the detenue really involved in commission of any offence after releasing on bail, police are entitled to seek cancellation of bail, but the same was not even considered by the authority. The petitioner also relied upon judgment passed by this Court in W.P.No.36027 of 2022 dated 07.12.2022 as well as the judgment reported between Munagala Yadamma v. State of Andhra Pradesh 2012 (2) SCC 386.

It is brought to the notice of this Court by the learned counsel for the writ petitioner that the issue in the present writ petition is squarely covered by the order of this Court in W.P.No.36027 of 2022 dated 07.12.2022. The learned counsel for the petitioner further submits that the preventive detention order shall not be passed or confirmed in these circumstances.

Learned counsel for the respondents submits that the detenue is a habitual offender; that he is a bootlegger who is selling adulterated liquor etc., and his acts are prejudicial to the public order and hence the orders impugned in the writ petition do not warrant any interference of this Court under Article 226 of the Constitution of India.

A perusal of the order passed by this Court in W.P.No.36027 of 2022 clearly demonstrates that the existence of element of disturbance to the public order is a sine qua non for invoking the provisions of Section 3 of the Act 1 of 1986. The said power, conferred on the authorities, is required to be exercised with a lot of care, caution and circumspection and that same cannot be exercised in a routine and mechanical manner. In Chittipothula China Muthyalu (W.P.No.5469 of 2022 dated 11.07.2022), this Court considering the rule position stated in Ram Manohar Lohiya v. State of Bihar AIR 1966 SC 740 , Piyush Kanthilal Mehatha v. Commissioner of Police Ahmedabad City 1989 Supp (1) SCC 322, MalladhaK.Sriram v. State of Telangana Crl.A.No.561 of 2022 (Supreme Court of India), held that the satisfaction, as stipulated under Section 3 of the Act, should necessarily be a subjective satisfaction and is required to be on the basis of cogent and convincing material and not on the foundation of stale and sterile reasons. Recording of reasons for such satisfaction is also indispensable and imperative. In the judgment of the Hon’ble Supreme Court in Rekha v. State of Tamilnadu 2011 (5) SCC 244 , so long as ordinary criminal law is adequate to deal with the offences, preventive detention without subjecting an individual to the procedure of free and fair trial would infringe the fundamental right to life and liberty guaranteed under Chapter III of Constitution of India. These factors are missing in the impugned orders. The alleged offences are under the Prohibition laws only.

A perusal of the detention order and grounds of detention, would show that the detaining authority has passed the detention order in a mechanical manner and no opinion has been expressed by the detaining authority as well sponsoring authority as to whether the preventive detention of detenue was essential or not, and no such discussion was made in the order.

Having regard to the facts of this case, this Court could not find that the order of detention has any material to either substantiate or justify the said allegation that the detenue is a ‘Bootlegger’ whose activities would be actually prejudicial to public order. Hence, we are of the considered opinion that the detenue will not fall under the category of Section 3(2) r/w 2(b) of the Act.

Accordingly, this Writ Petition is allowed setting aside the order of detention passed by the 1st respondent-The Collector and District Magistrate(FAC), Parvathipuram-Manyam District vide proceedings in Rc.No.1991/2022/C1, dated 28.10.2022 as confirmed by the State Government vide G.O.Rt.No.2720, General Administration (SC.I) Department, dated 19.12.2022. Consequently the detenue namely Muddada Narsinga Rao, S/o Appayya, aged 30 years, is directed to be released forthwith by the respondents if the detenue is not required in any other cases. No order as to costs.

Miscellaneous petitions pending if any, stand closed.