Andhra Pradesh High Court - Amravati
Chittipothula Chinna Muthyalu vs The State Of Andhra Pradesh on 11 July, 2022
HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
HON'BLE SMT JUSTICE V.SUJATHA
W.P.No.5469 of 2022
ORDER:(per AVSS,J) Challenge in the present Writ Petition is to the order of detention passed by the District Collector and the District Magistrate, Anantapur District-2nd respondent herein, vide proceedings Rc.No.MC1/5424/2021, dated 12.12.2021, under Section 3(2) of the Andhra Pradesh prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic offenders and Land Grabbers Act, 1986 (for short 'the Act'), as confirmed by the 1st respondent vide G.O.Rt.No.168, General Administration (SC.I) Department, dated 01.02.2022, under Section 12(1) read with Section 13 of the Act.
2. The very basis for the respondents for initiating the action under provisions of the Act is registration of five crimes against the petitioner's son. The particulars of the said crimes are as follows:
"i) Cr.No.272 of 2020, on the file of the Peddavaduguru Police Station.
ii) Cr.No.303 of 2020, on the file of the Peddavaduguru Police Station.
iii) Cr.No.360 of 2021, on the file of the Gooty Police Station.
iv) Cr.No.209 of 2021, on the file of the Peddavaduguru Police Station.
v) Cr.No.285 of 2021, on the file of the Peddavaduguru Police Station."
3. The above crimes came to be registered for the alleged offences punishable under Section 7(a) r/w Section 8(e) of the Andhra Pradesh Prohibition (Amendment) Act, 2020. Except in 2 AVSS,J & VS,J W.P.No.5469 of 2022 Crime No.360 of 2021, on the file of the Gooty Police Station, charge sheets have been filed in the rest of the crimes. It is also pertinent to note that, in all the above five crimes, the detenu is on bail. On the basis of the recommendations of the Superintendent of Police, Anantapuram District, dated 30.11.2021, by treating the petitioner's son/detenu as a Boot Legger under provisions of Section 2(b) of the Act, the 2nd respondent-Collector and District Magistrate, passed an order of detention and subsequently, the State Government, after referring the same to the Advisory Board and after submission of report by the said Board, passed an order vide G.O.Rt.No.168, General Administration (SC.I) Department, dated 01.02.2022, confirming the order of detention, while observing that the order of detention shall continue for a period of 12 months from date of detention i.e., 16.12.2021.
4. In the above background, the present Writ Petition came to be instituted by the father of the detenu.
5. Resisting the Writ Petition, counter affidavit is filed by the 2nd respondent-Collector and the District Magistrate, denying the allegations and the averments made in the affidavit filed in support of the Writ Petition and in the direction of justifying the action impugned in the Writ Petition.
6. Heard Sri N.Chandra Sekhar Reddy, learned counsel for the petitioner and Sri P.Sudhakar Reddy, learned Additional Advocate General, for the State, for the respondents. 3
AVSS,J & VS,J W.P.No.5469 of 2022
7. Sri N.Chandra Sekhar Reddy, learned counsel for the petitioner, while vehemently attacking the order of detention, contends that the order of detention passed by the 2nd respondent-Collector and the District Magistrate, as confirmed by the State Government, is highly illegal, arbitrary, unreasonable and violative of Articles 14 and 21 of the Constitution of India, besides being opposed to the very spirit and object of the provisions of the Act. In elaboration, it is further contended by the learned counsel that, in all crimes registered against the petitioner's son, he is on bail and he is strictly adhering to the conditions of bail; that the police registered all the crimes against the petitioner only on extra judicial confession of the detenu and, in the absence of any other incriminating material/evidence, the respondent authorities are not justified in invoking the provisions of the Act. It is further submitted by the learned counsel that there is absolutely no evidence/material available on record to show that the activities of the alleged detenu are causing impact on the public order. It is further maintained by the learned counsel that, in absence of any finding that the activities of the detenu as Boot Legger is effecting the public order, the order of detention passed by the respondents is neither sustainable nor tenable in the eye of law. It is further contended that in the absence of any complaint from the public as to the alleged activities of the detenu, the respondents are not justified in resorting to the impugned action.
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AVSS,J & VS,J W.P.No.5469 of 2022
8. In support of his submissions and contentions, learned counsel for the petitioner places reliance on the judgments of the Hon'ble Supreme Court in Ram Manohar Lohia vs. State of Bihar and another 1 , Piyush Kantilal Mehta vs. Commissioner of Police, Ahmedabad City and another2 and Mallada K Sri Ram vs. The State of Telangana and Others3.
9. On the contrary, Sri P.Sudhakar Reddy, learned Additional Advocate General, while strongly supporting the case of the respondents, contends that the detenu in the instant case squarely falls under the definition of "Boot Legger" as defined under Section 2(b) of the Act and as his activities are adversely affecting the public order and health, the respondent authorities are perfectly justified in passing the order of detention against the petitioner's son. It is further submitted by the learned Additional Advocate General that, by taking into consideration the remarks offered by Additional DME, Medical Superintendent (FAC), Govt, General Hospital, Ananthapuramu, and the report of the sponsoring authority, the 2nd respondent passed the order of detention by strictly adhering to the provisions of the Act, as such, by any stretch of imagination, the impugned action cannot be faulted. To bolster his submissions and contentions, learned Additional Advocate General takes support of the judgment of the Constitutional Bench of the Hon'ble Supreme 1 AIR 1966 SC 740 2 1989 Supp (1) Supreme Court Cases 322 3 Criminal Appeal No.561 of 2022 5 AVSS,J & VS,J W.P.No.5469 of 2022 Court in the case of the Haradhan Shah vs. State of West Bengal and other4.
10. In the above background, now the issue which this Court is called upon to consider and answer in the present Writ Petition is:
"Whether the order of detention passed by the Collector and the District Magistrate as confirmed by the State Government is sustainable and tenable?"
11. The State of Andhra Pradesh enacted the instant legislation to provide for preventive detention of Dangerous Activities of Boot-Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic offenders and Land Grabbers for preventing their dangerous activities prejudicial to the maintenance of public order. Since the said legislation deals with and involves the personal liberty of the citizens as enshrined under Article 21 of the Constitution of India, strict and scrupulous adherence to the provisions of the said legislation is highly essential and mandatory.
12. The sum and substance of the case of the petitioner, as advocated by the learned counsel for the petitioner is that, in the absence of involvement of element of public order as defined under Clause (a) of Section 2 of the Act, the invocation of the provisions of the Act by the respondents herein is impermissible and unwarranted.
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1975 (3) SCC 198 6 AVSS,J & VS,J W.P.No.5469 of 2022
13. Strongly resisting the said contention, learned Additional Advocate General contends that the detenu in the instant case squarely falls under the definition of Boot Legger as per Section 2(b) of the Act and that his activities clearly attract the provisions of Section 2(a) of the Act and also explanation to the said provision of law.
14. In order to consider the rival contentions advanced by the learned counsel, it would be highly appropriate and apposite to refer to the provisions of the Act. Sections 2(a) and (b) of the Act read as follows:
"(a) "acting in any manner prejudicial to the maintenance of public order" means when a boot-legger, a dacoit, a drug offender, a goonda, an immoral traffic offender or a land-grabber is engaged or is making preparations for engaging in any of his activities as such which affect adversely, or are likely to affect adversely, the maintenance of public order:
Explanation:- For the purpose of this clause public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life or public health.
(b) "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 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;"
15. Another important provision of law which is germane and relevant for the adjudication of the issue on hand is Section 3 of the Act, which deals with the power to make order detaining certain persons. The said provision of law reads in the following manner:
7
AVSS,J & VS,J W.P.No.5469 of 2022 "3. Power to make order detaining certain persons :- (1) The Government may, if satisfied with respect to any boot-legger, dacoit, drug-offender, goonda, immoral traffic offender or land-grabber that with a view to preventing 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.
(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Government are satisfied that it is necessary so to do, they may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub- section(1), exercise the powers conferred by the said sub-section:
Provided that the period specified in the order made by the Government under this sub-section shall not in the first instance, exceed three months, but the Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
(3) When any order is made under this section by an officer mentioned in sub-section(2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the Government."
16. A reading of the above provisions of law makes it very much evident that the recording of satisfaction by the authorities is indispensable and mandatory. In the instant case, the 2nd respondent-Collector and the District Magistrate, while passing the order of detention, assigned and set out the following grounds:
"i) Process of prosecution of cases against the detenu under the provisions of the Andhra Pradesh Prohibition (Amendment) Act, 2020, takes long time and prosecution proceedings would take long period of time.
ii) Detenu is causing wide spread danger to public health and creating a feeling of insecurity among the general public of that locality.
iii) If the activities of the detenu are allowed unhindered and unchecked, there is every danger of leading to liquor tragedies costing many lives of poor people within the limits of Gooty and its surround villages and thereby affecting the public order.
iv) Government is implementing various welfare schemes for the benefit of the downtrodden and the sales of illicitly distilled liquor is badly affecting consumer's health, the financial status, social status of public and ultimately the public order.
v) Offenders are again and again resorting to the same offences without caring the ordinary cases booked under the Prohibition Act.
vi) It is difficult for the department to catch at every occasion of commission of the offence.
vii) To detect an offence while violating the law of land is a laborious process involving meticulous planning and hundreds of man-hours.8
AVSS,J & VS,J W.P.No.5469 of 2022
viii) It is not possible to immediately prevent the detenu from indulging in similar prejudicial activities to public health and order.
ix) Action taken against the detenu under normal provisions of law by registering the cases, sending him for remand and putting him up for trail had no effect in curbing his unlawful activities which are prejudicial to the maintenance of public order."
x) Therefore, there is no objection except to invoke the extraordinary jurisdiction conferred on the District Collector and the District Magistrate under Section 3(1) of the Act as an extreme measure in order to prevent Bootlegging activities of the person and to save public from grave threat to their health.
17. In order to consider the above said aspects, it would be highly essential and appropriate to refer to the law laid down by the Hon'ble Supreme Court in the above referred judgments.
18. The Constitutional Bench of the Hon'ble Supreme Court while dealing with the public order in the case of the Ram Manohar Lohia vs. State of Bihar and another (first cited supra) held as follows:
"54. We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression "public order" take in every kind of disorders or only some of them? The answer to this serves to distinguish "public order" from "law and order because the latter undoubtedly takes in all of them, Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before if can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
55. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.9
AVSS,J & VS,J W.P.No.5469 of 2022 By using the expression "maintenance of law and order the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules."
19. In the case of the Piyush Kantilal Mehta vs. Commissioner of Police, Ahmedabad City and another (second cited supra), the Hon'ble Supreme Court held thus:
"2. The grounds on which the impugned order of detention has been made run into seven pages. The relevant portions of which are extracted below:
In pursuance to Section 9(1) of the Gujarat Prevention of Anti-social Activities Act, 1985. Shri Piyush Kantilal Shah is hereby informed the grounds of detention as under:
You are indulging into anti-social activities by hoarding illegal foreign liquor and also selling it through yourself and through your servants near Navrangpura Municipal Bus-stand and Navrang High School, Ahmedabad. That the cases have been registered against you under Bombay Prohibition Act, 1949 and in which you have been arrested.
_______________________________________________________________ Sr.No. Police Stn. C.R.No. Sections Qty.seized Result ______________________________________________________________
1. Navrangpura 62/88 Prohibition Act 21795 Pending Sections 66(b), Ml.Ltr.
65(a)(e), 81 foreign
liquor
2. Navangpura 114/88 Prohibition Act 139750 Pending
Sections 66(b) Ml.Ltr,. investigation
65(a)(e), 116(b) foreign
and 98 liquor
_______________________________________________________________ Carefully considering the complaint, identification marks on your face and charge-sheet, it appears that you are a prohibition bootlegger and you are indulging into sale of foreign liquor in the aforesaid areas and you continue your anti-social activities. In the aforesaid area, you, your servants and associates indulge into use of force and violence and also beat innocent citizens by which an atmosphere of fear is created and by indulging into such activities, you are causing hindrance to maintenance of public order. You also show dangerous weapons to the citizens and also create an atmosphere of fear and you are carrying on illegal liquor business. Because of your fear, citizens residing nearby are not in a position to speak anything against you and also do not file complaint against you. Because of your activities and your associates.
the people of the aforesaid area feel insecurity of their life and property and all these activities are causing hindrance to public order.
To substantiate that you are indulging into anti-social activities and that your activities are against the public order, certain persons residing in the aforesaid area who are peace loving have also given statements and the copy of the aforesaid statements are given to you... Taking into consideration all that has been stated aforesaid, I am fully satisfied that you are prohibition bootlegger and by indulging into use of force and violence, you continue to indulge into illegal sale of liquor and you create an atmosphere of fear and terror by beating innocent citizens. That action against you has been taken under ordinary law and you have been released on bail. After being released on bail, you have continued your illegal anti-social activities and therefore if once again actions are taken under ordinary law against you, there are possibilities 10 AVSS,J & VS,J W.P.No.5469 of 2022 of your being released on bail and your continuing anti-social activities and since it is necessary to prevent you immediately for maintenance of public order, and since there is no other alternative, as a last resort, I order to detain you under the aforesaid Act.
14. In the grounds of detention, two criminal cases have been mentioned. It is not disputed that in one of them the petitioner has been acquitted. In the FIR relating to case No. 62/88, the allegations against the petitioner are that he was caught red-handed with English wines with foreign marks without any legal pass or permission. In the FIR of the other case being case No. 144/88, the offence alleged to have been committed by the petitioner was that the petitioner was caught while travelling in an Ambassador car with 295 bottles containing foreign liquor without any pass, permit or licence. These cases have been mentioned in the detention order, presumably with a view to substantiating the allegation that the petitioner is a bootlegger. There can be no doubt that the offences that have been alleged to have been committed by the petitioner have no bearing on the question of maintenance of public order.
15. It is also alleged in the grounds of detention that the petitioner, his servants and associates indulge in the use of force and violence and also beat innocent citizens by which an atmosphere of fear is created and by indulging in such activities, the petitioner is causing hindrance to the maintenance of public order. It is further alleged that the petitioner shows dangerous weapons to the citizens and thereby creates an atmosphere of fear. These allegations are very general in character without reference to any particular incident or incidents in support of such allegations. The detaining authority has sought to substantiate the said allegations and connect the activities of the petitioner with the question of maintenance of public order by the statements of five witnesses. Apart from that the petitioner is high-handed and fierce by nature; his high-handedness and bickering nature have caused terror to the public of the area; he is not afraid of the police, his activities are anti-social, he always keeps with hits a knife and a revolver and he threatens surrounding people.
16. It is submitted by Dr. Chitale that the allegations which have been made by the said five witnesses against the petitioner are also very general character and do not involve the question of public order. Counsel submits that there is a distinction between law and order' and 'public order. The allegations made against the petitioner may give rise to a question of law and order but, surely, they have nothing to do with the question of public order. A person may be very fierce by nature, but so long as the public generally are not affected by his activities or conduct, the question of maintenance of public order will not arise. In order that an activity may be said to affect adversely the maintenance of public order, there must be materials to show that there has been a feeling of insecurity among the general public. If any act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come within the purview of 'public order".
17. In this connection, we may refer to a decision of this Court in Pushkar Mukherjee v. State of West Bengal where the distinction between "law and order' and 'public order' has been clearly laid down. Ramaswami, J. speaking for the court observed as follows: (SCC pp. 14-
15) Does the expression "public order" take in every kind of infraction of order or only some categories thereof. It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and asault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at 11 AVSS,J & VS,J W.P.No.5469 of 2022 large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act.
18. In the instant case, the detaining authority, in our opinion, has failed to substantiate that the alleged anti-social activities of the petitioner adversely affect or are likely to affect adversely the maintenance of public order. It is true some incidents of beating by the petitioner had taken place, as alleged by the witnesses. But, such incidents, in our view, do not have any bearing on the maintenance of public order. The petitioner may be punished for the alleged offences committed by him but, surely, the acts constituting the offences cannot be said to have affected the even tempo of the life of the community. It may be that the petitioner is a bootlegger within the meaning of Section 2(b) of the Act. but merely because he is a bootlegger he cannot be preventively detained under the provisions of the Act unless, as laid down in sub-section (4) of Section 3 of the Act, his activities as a bootlegger affect adversely or adversely or are likely to affect adversely the maintenance of public order. We have carefully considered the offences alleged against the petitioner in the order of detention and also the allegations made by the witnesses and, in our opinion, these offences or the allegations cannot be said to have created any feeling of insecurity or panic or terror among the members of the public of the area in question giving rise to the question of maintenance of public order. The order of detention cannot, therefore, be upheld."
20. In the case of the Mallada K Sri Ram vs. State of Telangana and others (third cited supra), the Hon'ble Supreme Court at Para Nos.15 to 17, held as under:
"15. A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the "maintenance of public order". In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRS which were registered against the detenu are capable of being dealt by the ordinary course of criminal law.
16. We also note that after notice was issued by this Court, the respondents have been served. No counter affidavit has been filed. We have declined to allow any further adjournment for filing a counter affidavit since a detailed and comprehensive counter affidavit which was filed before the High Court is already on the record and the present proceedings have been argued on the basis of the material as it stood 12 AVSS,J & VS,J W.P.No.5469 of 2022 before the High Court. The liberty of the citizen cannot be left to the lethargy of and the delays on the part of the state. Further, in the counter affidavit filed before the High Court, the respondents have argued that the detenu must move the Advisory Board and the writ petition has been filed in a premature fashion. However, in Arnab Manoranjan Goswami v. State of Maharashtra", a two-judge Bench of this Court has held that while the ordinary procedural hierarchy among courts must be respected, the High Court's writ jurisdiction under Article 226 extends to protecting the personal liberty a persons who have demonstrated that the instrumentality of the State is being weaponised for using the force of criminal law:
"68. Mr Kapil Sibal, Mr Amit Desai and Mr Chander Uday Singh are undoubtedly right in submitting that the procedural hierarchy of courts in matters concerning the grant of bail needs to be respected. However, there was a failure of the High Court to discharge its adjudicatory function at two levels- first in declining to evaluate prima facie at the interim stage in a petition for quashing the FIR as to whether an arguable case has been made out, and secondly, in declining interim bail, as a consequence of its failure to render a prima facie opinion on the first. The High Court did have the power to protect the citizen by an interim order in a petition invoking Article 226. Where the High Court has failed to do so, this Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met. The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponised for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defence against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions."
17. It is also relevant to note, that in the last five years, this Court has quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the orders of detention
10. At least ten detention orders: under the Telangana Act of 1986 have been set aside by the High Court of Telangana in the last one year itself. These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent- state. We direct the respondents to take stock of challenges to detention orders pending before the Advisory Board, High Court and Supreme Court and evaluate the fairness of the detention order against lawful standards."
21. Coming to the Judgment cited by the learned Additional Advocate General- in the case of Haradhan Shah vs. The State of West Bengal (fourth cited supra), while dealing with the provisions of Maintenance of Internal Security Act, 1971, the Constitutional Bench of the Hon'ble Supreme Court at para Nos.32 to 34 held as follows:
"32.The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is 13 AVSS,J & VS,J W.P.No.5469 of 2022 not a parallel proceeding. It does not over lap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.
33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu.
34. The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. The State of West Bengal reported in A.I.R. 1972 S.C. 2256, Ashim Kumar Ray v. State of West Bengal reported in A.I.R. 1972 S.C. 2561., Abdul Aziz v. The Distt. Magistrate, Burdwan & Ors. reported in A.I.R. 1973 S.C. 770 and Debu Mahto v. The State of West Bengal reported in A.I.R. 1974 S C. 816 correctly lay down the principles to be followed as to whether a detention order is valid or not. The, decision in Biram Chand v. State of Uttar Pradesh & Ors. reported in A.I.R. 1974 S.C. 1161 Which is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can be broadly stated are these. First merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under-the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate, issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances."
22. The existence of the element of disturbance to the public order is a sine qua non for invoking the provisions of Section 3 of the Act. The said power, conferred on the authorities, is required to be exercised with lot of care, caution and circumspection and the same cannot be exercised in a routine and mechanical manner and absolutely not on the foundation of assumptions, presumptions and surmises. Since the power, conferred under Section 3 of the Act, is undoubtedly an exception to the normal 14 AVSS,J & VS,J W.P.No.5469 of 2022 procedure under the criminal laws and as the authorities ultimately deal with the Fundamental Right of personal liberty of the citizens as enshrined under Article 21 of the Constitution of India strict adherence to the mandatory provisions of the Statute is indispensible. It is a settled legal position 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. It is also a settled and well established principle of law that 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 the Constitution of India.
23. In the considered opinion of this Court, the ratio laid down by the Hon'ble Apex Court in the judgments cited by the learned counsel for the petitioner is squarely applicable to the present case.
24. In the case on hand, there is no material to show that there is a feeling of insecurity among the general public which is a condition precedent for meddling with the liberty of an individual under the Act as per the judgment of the Hon'ble Apex Court in the case of Piyush Kantilal Mehta vs. Commissioner of Police, 15 AVSS,J & VS,J W.P.No.5469 of 2022 Ahmedabad City and another (second cited supra). It is absolutely not the case of the respondents herein that the offences alleged against the detenu have created a feeling of insecurity or panic or terror among the public of the area in question, giving rise to the question of maintenance of public order. It is very much evident from a reading of the grounds assigned by the respondents in the order of detention that the said grounds are neither sustainable nor tenable in view of the law laid down by the Hon'ble Apex Court in the above referred judgments cited by the learned counsel for the petitioner. The judgment of the Hon'ble Apex Court in the case Haradhan Shah vs. State of West Bengal and other (fourth cited supra), having regard to the facts and circumstances of the case, would not render any assistance to the petitioner herein. By any stretch of imagination, it can neither be interfered nor concluded that the allegations as contained in the order of detention would constitute public disorder. In the considered opinion of this Court, the case of the respondents herein also cannot be justified in the light of the explanation to Section 2 (a) of the Act in view of the ratio laid down in the above referred judgments. It is very much clear from the above referred judgments that simply because an individual is a Boot Legger, the same would not be sufficient to press into service the provisions of the Act.
25. For the aforesaid reasons, Writ Petition is allowed, setting aside the order of detention passed by the 2nd respondent vide Rc.No.MC1/5424/2021, dated 12.12.2021 as 16 AVSS,J & VS,J W.P.No.5469 of 2022 confirmed by the State Government vide G.O.Rt.No.168, General Administration (SC.I) Department, dated 01.02.2022 and consequently, the detenu, namely Chittipothula Chowdappa @ Choudappa, son of Chittipothula Chinna Muthyalu, shall be set at liberty forthwith, if he is not required in any other case. There shall be no order as to costs.
Miscellaneous Petitions pending, if any, in this Writ Petition shall stand closed.
_________________________ JUSTICE A.V.SESHA SAI __________________________ JUSTICE SMT V.SUJATHA Date:11.07.2022 vsl