Andhra Pradesh High Court - Amravati
Annam Venkatakrishnaraju, vs The State Of Andhra Pradesh, on 4 March, 2021
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami, C. Praveen Kumar
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE Mr. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE Mr. JUSTICE C. PRAVEEN KUMAR
WRIT PETITION No.23313 of 2020
(Through Video Conferencing)
Annam Venkatakrishnaraju
S/o. Annam Rama Rao, a/a.38 years,
Occ: Business, r/o.Dr.No.2-61, Gosavedu,
Gampalagudem Mandal,
Krishna District. ... Petitioner
Versus
The State of Andhra Pradesh,
Rep.by its Principal Secretary,
Department of Home,
Secretariat Buildings,
Velagapudi, Guntur District
and 4 others. ... Respondents
Counsel for the petitioner : Mr. P.V.N.Kiran Kumar
Counsel for respondents : Mr. Syed Khader Masthan,
GP attached to the office of
Addl.Advocate General
Date of hearing : 25.02.2021
Date of Order : 04.03.2021
ORDER
(Per Arup Kumar Goswami, CJ) This petition, in the nature of Writ of Habeas Corpus, was filed by brother of the detenu, viz., 'Annam Sambasiva Rao @ Samba', who is lodged in Central Prison, Rajamahendravaram, East Godavari District, praying for release and to set him free, after declaring his detention under Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short, 'the Act'), as unconstitutional and illegal.
2. The respondent No.3/The District Collector, Krishna District, Machilipatnam, passed an order on 03.09.2020 under Section under Section 3(2) read with Section 3(1) of the Act, 2 HCJ & CPKJ W.P. No.23313 of 2020 treating the detenu as a 'bootlegger' under Section 2(b) of the Act and directing to lodge him in Central Prison, Rajamahendravaram, East Godavari District.
3. The Government had accorded approval of the detention order under Section 3(3) of the Act, on 11.09.2020. The Advisory Board, on 15.10.2020, recorded its opinion that there is sufficient cause for detention. Subsequently, on 26.10.2020, respondent No.2/Chief Secretary, Government of Andhra Pradesh, in exercise of powers conferred under Section 12(1) read with Section 13 of the Act, confirmed the order of the detention made by the Collector and District Magistrate, Krishna District, Machilipatnam and directed that the detention of the detenu be continued for a period of 12 months from the date of his detention i.e., from 04.09.2020.
4. Reference was made to 20 cases in the grounds of detention, and the same read as follows:
"1) Cr.No.154 of 2017, u/s.420, 273 r/w.34 IPC and Sec.5 & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
2) Cr.No.223 of 2018, u/s.420, 273 r/w.34 IPC and Sec.5 & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
3) Cr.No.240 of 2018, u/s.420, 273 r/w.34 IPC and Sec.5 & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
4) Cr.No.20 of 2019, u/s.420, 273 r/w.34 IPC and Sec.5 & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
5) Cr.No.154 of 2019, u/s.34(A) of A.P. Excise Act of Gampalagudem PS. 3 HCJ & CPKJ W.P. No.23313 of 2020
6) Cr.No.155 of 2019, u/s.420, 273 r/w.34 IPC and Sec.5 & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
7) Cr.No.161 of 2019, u/s.273, 420 r/w.34 IPC and Sec.5 & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
8) Cr.No.185 of 2019, u/s.273, 420 r/w.34 IPC and Sec.5 & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
9) Cr.No.193 of 2019, u/s.273, 420 r/w.34 IPC and Sec.5 & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
10) Cr.No.197 of 2019, u/s.273, 420 r/w.34 IPC and Sec.5 & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
11) Cr.No.228 of 2019, u/s.273, 420 IPC and Sec.5 & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
12) Cr.No.232 of 2019, u/s.273, 420 r/w.34 IPC and Sec.5 & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
13) Cr.No.42 of 2020, u/s.270, 273, 328 r/w.34 IPC and Sec.5 & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS. 4 HCJ & CPKJ W.P. No.23313 of 2020
14) Cr.No.169 of 2020, u/s.273, 328, 420 r/w.34 IPC and Sec.5(1) & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
15) Cr.No.265 of 2020, u/s.273, 328, 420 r/w.34 IPC and Sec.5(1) & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
16) Cr.No.315 of 2020, u/s.34(A) of the A.P. Excise Act of Gampalagudem PS.
17) Cr.No.321 of 2020, u/s.34(A) of the A.P. Excise Act of Gampalagudem PS.
18) Cr.No.333 of 2020, u/s.273, 328, 420 r/w.34 IPC and Sec.5(1) & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
19) Cr.No.354 of 2020, u/s.273, 328, 420 r/w.34 IPC and Sec.5(1) & 22 of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 of Gampalagudem PS.
20) Cr.No.355 of 2020, u/s.34(1)(a)(i) of the A.P. Excise Amendment Act, 2020 of Gampalagudem PS."
5. Section 2(b) of the Act defines 'boot-legger' as under:
'boot-legger' means a person, who distils, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any of the provisions of the Andhra Pradesh Excise Act, 1968 and the rules, notifications and orders made thereunder, or in contravention of any other law for the time being in force, or who 5 HCJ & CPKJ W.P. No.23313 of 2020 knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or support of the doing of any of the above mentioned things himself or through any other person, or who abets in any other manner the doing of any such thing;"
6. Learned counsel for the petitioner submits that the detaining authority has taken into consideration irrelevant consideration as the offences punishable under Chapter XVII or Chapter XXII of the Indian Penal Code, 1860, as well as the provisions of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003, namely, Cr.No.154 of 2017, Cr.No.223 of 2018, Cr.No.240 of 2018, Cr.No.20 of 2019, Cr.No.155 of 2019, Cr.No.161 of 2019, Cr.No.185 of 2019, Cr.No.193 of 2019, Cr.No.197 of 2019, Cr.No.228 of 2019, Cr.No.232 of 2019, Cr.No.42 of 2020, Cr.No.169 of 2020, Cr.No.265 of 2020, Cr.No.333 of 2020 and Cr.No.354 of 2020 of Gampalagudem Police Station, are taken into consideration. He submits that anybody involved in the said offences does not come within the meaning of 'boot-legger' as defined in Section 2(b) of the Act. Therefore, for having taken into consideration irrelevant grounds while passing the order of detention, the same is vitiated and as such on this ground alone, the order of detention is liable to be set aside and quashed.
7. The learned counsel for the petitioner placed reliance on the decisions in Shibban Lal Saksena v. State of U.P., reported in AIR 1954 SC 179, S.Prasad Reddy v.
Collector and District Magistrate, Anantapur (Andhra Pradesh)(D.B), reported in 2005 (3) ALT 487, and Thallapuneni Venkateswarlu v. Collector and District Magistrate, Cuddapah and others, reported in 2004 (5) ALT 250.
8. Mr.Syed Khader Masthan, learned Government Pleader attached to the office of Addl. Advocate General, appearing for the respondents, supports the order of detention and contends that the Writ Petition is liable to be dismissed.
6 HCJ & CPKJ W.P. No.23313 of 2020
9. We have heard the learned counsel for the parties and perused the materials on record.
10. Learned counsel for the petitioner is correct in submitting that a person, who commits an offence punishable under Chapter XVII or Chapter XXII of the Indian Penal Code as well as the provisions of Cigarette & Tobacco Product Prohibition of Advertisement & Regulation of Trade and Commerce Protection & Supply Distribution Act, 2003 does not come within the definition of a 'boot-legger'.
11. Personal liberty of an individual is sacrosanct. Personal liberty has been kept in a very high pedestal in our constitutional scheme and this Court has a solemn duty to protect an individual against illegal and arbitrary detention. As the personal liberty of a person has to be jealously protected, the Court has to scrutinise with utmost care and caution as to whether the requirement of law has been meticulously followed and where such requirement of law is breached even in the slightest measure, the Court has to strike down the order of detention.
12. The Hon'ble Supreme Court in the case of Shibban Lal Saksena (Supra) observed as under:
"The Government itself, in its communication dated the 13th of March, 1953, has plainly admitted that one of the grounds upon which the original order of detention Was passed is unsubstantial or non-existence and cannot be made a ground of detention. The question is, whether in such circumstances the original order made under Section 3(1)(a) of the Act can be allowed to stand. The answer, in our opinion, can only be in the negative. The detaining authority gave here two grounds for detaining the petitioner. We can neither decide whether these grounds are good or bad, nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority 7 HCJ & CPKJ W.P. No.23313 of 2020 and contributed to the creation of the satisfaction on the basis of which the detention order was made.
To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subject decision of the executive authority which is against the legislative policy underlying the statute. In such cases, we think, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. This principle, which was recognised by the Federal Court in the case of 'Keshav Talpade v. Emperor', AIR 1943 Federal Court 1 seems to us to be quite sound and applicable to the facts of this case."
13. In Shiv Prasad Bhatnagar v. State of Madhya Pradesh and another, reported in AIR 1981 SC 870, the Hon'ble Supreme Court observed that it is well settled that grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, staleness and vagueness are vices any single one of which is sufficient to vitiate a ground of detention and a single vicious ground is sufficient to vitiate an order of detention.
14. In the case of S.Prasad Reddy (supra), at paragraphs 68 and 70, it was stated by this Court as under:
"68. Firstly, the offence other than Chapters XVI, XVII and XXII of Indian Penal Code cannot be taken into consideration for bringing a person within the definition of "Goonda" and secondly, it is highly improbable as to which of the offences influenced the mind of the detaining authority to arrive at subjective satisfaction to issue the detention Order. When detention Order is composed, on relevant and irrelevant grounds, it does not survive to the extent of relevant grounds and the entire detention Order falls to ground. Therefore, we are of the considered view that the 8 HCJ & CPKJ W.P. No.23313 of 2020 Order is not sustainable and accordingly it is set aside and the detenu shall be released forthwith, if he is not required in any other case.
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70. The learned Senior Counsel would at the threshold submits that the 1st ground itself is an irrelevant ground, inasmuch as the security proceedings initiated cannot be considered as substantial ground for issuing the Order of detention. Further, he also submits that in other grounds, not only the offences falling under Chapters XVI, XVII and XXII of Indian Penal Code were mentioned, but also other provisions under the Explosive Substances Act were also taken into consideration. Therefore, we are of the considered view that the Order of detention is not sustainable inasmuch as, irrelevant and extraneous grounds were taken into consideration. Accordingly, the detention Order is set aside and the detenu is released forthwith, if he is not required in any other case."
15. In the case of Thallapuneni Venkateswarlu (supra), this Court, at paragraphs 9 and 15, observed as under:
"9. In the instant case, admittedly, the detaining authority has not only considered Section 379 IPC but also taken into consideration Section 20 of Forest Act, which is not covered by the provisions of the Act. Therefore, in such a situation, the entire order as passed by the authority has to be struck down.
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15. The learned Advocate General however tried to convince this Court that Section 379 IPC is referable to Chapter XVII and that itself constitutes a sufficient ground to enable the detaining authority to pass the order. In our considered opinion, the contention cannot be accepted. When the 9 HCJ & CPKJ W.P. No.23313 of 2020 detaining authority has taken into consideration both relevant and irrelevant grounds, the entire order of detention has to be set aside and it cannot salvage the order to the extent of Section 379 IPC. We are not inclined to go into the aspect whether Section 379 IPC has been properly invoked so as to bring it within the parameters of 2(a) of the Act. Suffice it to say that it is not open for the detaining authority to consider the provisions, which are not relevant and which are not stipulated under the Act so as to invoke the detention order."
16. Having regard to the judgments as noted above, it is crystal clear that even if one ground is irrelevant, the same would vitiate the detention order as a whole. Admittedly, in the instant case, irrelevant grounds have been taken into consideration while passing the order of detention.
17. In that view of the matter, the detention order cannot be sustained in law and, therefore, the same is set aside and quashed.
18. Accordingly, the writ petition is allowed. The detenu shall be released forthwith, if he is not required in any other case. Pending miscellaneous applications, if any, shall stand closed.
ARUP KUMAR GOSWAMI, CJ C. PRAVEEN KUMAR, J GM