Andhra Pradesh High Court – Amravati
Kothapalli Pavani vs The State Of AP
BENCH – THE HON’BLE SRI JUSTICE D.V.S.S. SOMAYAJULU AND THE HON’BLE SRI JUSTICE V. SRINIVAS
WRIT PETITION No.1378 of 2023
DATE OF JUDGEMENT – 9 MAY 2023
INTRODUCTION –
This case is about the writ petition which is challenging the order of the detention of the husband of the petitioner.
The relevant provision followed in this case are as follows –
A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986.
Section – 3 Power to make order detaining certain persons: –
(1) The Government finds if any boot-legger, dacoit, drug-offender, goonda, immoral traffic offender or land-grabber is acting in any manner prejudicial to the maintenance of public order and if it is necessary so to do, can make an order directing that such person be detained.
(2) A District Magistrate or Commissioner of Police may also, if satisfied as provided in subsection (1), exercise the powers granted by the said subsection if the Government is of the opinion that doing so is necessary considering any circumstances existing or likely to exist in any area within the local limits of their jurisdiction. The Government may make this determination by issuing an order in writing.
Article 226 in The Constitution of India 1949
Power of High Courts to issue certain writs –
Any High Court may issue directions, orders, or writs, including those in the nature of writs of habeas corpus, mandamus, prohibitions, quo warranto, and certiorari, or any of them, to any person or authority, including in appropriate cases, any Government, within those territories, regardless of what Article 32 says. These writs may be used to enforce any of the rights granted by Part III and for other purposes.
Andhra Pradesh Prohibition Act, 1995
Section 7-B. Prohibition of Boot Legging Activities:
It is forbidden to produce, transport, set, purchase, import, export, or store any alcoholic beverages, as well as to supply or transport any raw materials to produce alcoholic beverages illegally or covertly, in violation of the provisions of the A.P. Excise Act, 1968.
Section 8-B. Penalty for sale, export, import and transport of alcoholic liquor manufactured illegally and clandestinely:
Whoever violates section 7-B of this Act by engaging in the sale, export, import, or transportation of illegally distilled alcoholic beverages is subject to imprisonment for a term that must not be less than one year but may not exceed eight years, as well as fines that must not be less than Rs. 2 lakhs for a first offence and Rs. 5 lakhs for a second, upon conviction.
FACTS –
Learned counsel for the petitioner submits that the grounds for detention are not at all grievous offences, that he was allegedly involved in seven crimes under Sections 34(A), 34(e) and 7(B) r/w.8(B) of Andhra Pradesh Prohibition Act, 1995 and they can be dealt under general laws. It is also stated that the detenue was already granted bail in five crimes, out of seven crimes.
The learned counsel for the respondent supports the order of the District Magistrate as the detenue is a habitual offender and argues that his acts are prejudicial to the public order, that he is a bootlegger who is selling adulterated liquor. He states that the order impugned in the writ petition do not warrant any interference of this Court under Article 226 of the Constitution of India.
The court observed that 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.
As per the contention of the petitioner, the detenue was granted bail in five crimes, out of seven crimes, but the said fact is not considered by the detaining authority. The detaining authority as well sponsoring authority has not taken into consideration the said fact and no opinion has been expressed as to whether the preventive detention of detenue was essential or not in the order. It was not clear how the authority came to the conclusion that the ordinary law was not sufficient to stop the alleged crimes.
JUDGEMENT –
The Court held that the orders impugned were made without proper application of mind and there is a serious procedural violation. The order of detention does not show any material to justify that the detenue is a ‘Bootlegger’ whose activities would be actually prejudicial to public order. The detenue will not fall under the category of Section 3(1) and 3(2) of the act.
This Writ Petition is allowed, setting aside the order of detention passed by the 2nd respondent (The Collector and District Magistrate, YSR district). The detenue namely Kothapalli Raghurami Reddy, was directed to be released forthwith by the respondents if the detenue is not required in any other cases.
JUDGEMENT REVIEWED BY HARSHIT JAIN
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