Dasa Kavitha, vs The State Of A.P, on 19 November, 2020

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Andhra Pradesh High Court - Amravati

Dasa Kavitha, vs The State Of A.P, on 19 November, 2020

1. The petitioner, who is wife of detenu namely Dasa Sekhar, has approached this Court by filing the present Petition, under Article 226 of the Constitution of India, with a prayer to issue writ of Habeas Corpus directing the authority to produce the detenu and also prayed to set him free forthwith, by declaring the detention order, dated 27.07.2020, vide Rc.C1/85/M/2020, passed by the Collector and District Magistrate, Krishna District at Machilipatnam, respondent No.2 herein, which was approved by the State of Andhra Pradesh through its Chief Secretary (General Administration (SC.I) Department, in G.O.RT. No.1228, dated 06.08.2020, respondent No.1 herein, as illegal, arbitrary and unconstitutional.

2. Short fact of the case is that on 27.07.2020 vide Rc.C1/85/M/2020, the Collector and District Magistrate, respondent No.2, in exercise of power conferred upon him under Sub-Section 2 of Section 3 read with Sub-Section 1 of Section 3 of Andhra Pradesh Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (hereinafter referred to as 'the Act of 1986') read with G.O.Rt. No.1004, General Administration (SC- I) department, dated 18.06.2020, of the Government of Andhra Pradesh, ordered for detention of Sri Dasa Sekhar, husband of the petitioner, in Central Prison, Rajahmahendravaram, East Godavari District. The said order was passed in view of proposal sent by the Superintendent of Police, Krishna. At the time of passing of order dated 27.07.2020, RK,J & JUD,J 2 WP No.17067/2020 respondent No.2, in its order, had noticed that the detenu was in judicial remand at Nandigama, Sub-Jail, Krishna District. It was recorded that the detenu was a potential habitual Gutkha trader and he used to procure banned Gutkha and Khainies from bordering states in bulk quantity and selling the same in and around Nandigama Sub-Division area. It was considered that the said act was negligent and malignant, likely to harm and was dangerous to public life and also in disobedience to quarantine rule as it was noxious food. The order, dated 27.07.2020, passed by respondent No.2, is reproduced herein below:

"GOVERNMENT OF ANDHRA PRADESH Proceedings of the Collector & District Magistrate, Krishna District.

Present:-A.M.D.IMTIAZ, I.A.S., Rc.C1/85/M/2020, Dt.27.07.2020 ORDERS OF DETENTION UNDER SECTION 3(2) R/W SECTION 3(1) OF ANDHRA PRADESH PREVENTION OF DANGEROUS ACTIVITIES OF BOOT LEGGERS, DACOITS, DRUG OFFENDERS, GOONDAS, IMMORAL TRAFFIC OFFENDERS AND LAND GRABBERS ACT, 1986 (Act 1 of 1986).

Whereas information laid down before me by the Superintendent of Police Krishna and after careful examination of the material placed before me, Sri Dasa Sekhar, S/o.Venkaiah, 43 years, Kanchikacherla, now in Judicial remand at Nandigama Sub Jail, Krishna district, resident of Paritala village, Kanchikacherla Mandal is a potential habitual Gutkha Trader. The said person used to procure banned Gutkha and Khainies from bordering states in bulk quantity and selling the same in and around Nandigama Sub Division area which is negligent and malignant act likely to harm and is dangerous to public life and is disobedience to quarantine rule, as it is noxious food.

The act of the detenue is inexcusable and there is nothing to show mercy on him. Hence the detenue is deserved to be treated as a "Goonda" U/s.2(g) of A.P. Prevention of Dangerous activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act 1 of 1986). Unless the detenue Sri Kothamasu Chakradhar @ Chakri is detained under Preventive Detention of Bootleggers, Drug-

RK,J & JUD,J 3 WP No.17067/2020 Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Land Grabbers Act 1986, his illegal activities of procuring banned Gutkha and Khainies from bordering states in bulk quantity and selling the same in and around Nandigama Sub Division area cannot be prevented and the public cannot be saved from his evil activities. The dangerous activities which are negligent and malignant act likely to harm and is dangerous to public life and is disobedience to quarantine rule, as it is noxious food by Sri Dasa Sekhar, S/o.Venkaiah, 43 years, Kanchikacherla, R/o.Paritala village, Kanchikacherla Mandal, Krishna district shall be curtailed for the welfare of the society in the way of detention under the said Act.

Therefore, I, A.M.D.Imtiaz, IAS, Collector and District Magistrate, Krishna District satisfied with the above information and in exercising the powers conferred upon me under Sub- Section (2) of Section (3) R/w Sub-Section (1) of Section (3) of Andhra Pradesh Prevention of Dangerous activities of Bootleggers, Dacoits, Drug offenders and Land Grabbers Act, 1986 R/w GO.Rt.No.1004, General Administration (SC.-I) department, dt.18.06.2020 of the Government of Andhra Pradesh, Amaravathi do hereby order for detention of Sri Dasa Sekhar, S/o.Venkaiah, 43 years, Kanchikacherla, R/o.Paritala Village, Kanchikacherla Mandal, Krishna district in the Central Prison, Rajamahendravaram, East Godavari district.

The grounds of detention on which this Order has been made will be communicated to him.

His case will be referred to the Advisory Board for review and opinion under section 10 of A.P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act 1 of 1986) and he has right to make representation (i) to me (the undersigned) before this order is approved by the Government or

(ii) to the Chief Secretary, Govt. of AP, Amaravathi, Vijayawada or

(iii) to the Advisory Board or to all of them. He has also a right to be heard personally or through a friend who is not an advocate by the Advisory Board, if he so desires. The date of hearing by the Advisory Board will be communicated to him. If he chooses to do so, he may submit his properly addressed representation with sufficient copies to the Superintendent Central Prison, RK,J & JUD,J 4 WP No.17067/2020 Rajamahendravaram, East Godavari District for onward transmission (i) to me (the undersigned) before this order is approved by the Government or (ii) to the Chief Secretary, Government of Andhra Pradesh, Amaravathi, Vijayawada or (iii) to the Advisory Board.

Given under my hand and seal of this the 27th day of July, two thousand and twenty.

Sd/-xxxxx Collector and District Magistrate Krishna"

3. The aforesaid order makes it clear that the grounds of detention order would be communicated to the detenu. In the Writ Petition it has been pleaded that certain offences were referred in the grounds of detention, which were said to be communicated to the petitioner and same are referred to herein below:

"1. Crime No.36/2016 on the file of PS., Kanchikacherla registered for the offences under Sections 269, 270, 271, 273, 420, 418 R/w.34 IPC and Section 5 and 22 of COTPA Act - Acquitted.

2. Crime No.153/2016 on the file of PS., Kanchikacherla registered for the offences under Sections 269, 270, 271, 273, 420, 418 R/w.34 IPC and Section 5 and 22 of COTPA Act - Convicted.

3. Crime No.268/2018 on the file of PS., Kanchikacherla registered for the offences under Sections 269, 270, 271, 273, 328 R/w.34 IPC and Section 5 and 22 of COTPA Act - Quashed.

4. Crime No.50/2019 on the file of PS., Kanchikacherla registered for the offences under Sections 269, 270, 271, 273, 420, 418 R/w.34 IPC and Section 5 and 22 of COTPA Act - Acquitted.

5. Crime No.59/2019 on the file of PS., Kanchikacherla registered for the offences under Sections 269, 270, 271, 273 R/w.34 IPC and Section 5(1) and 22 of COTPA Act - Acquitted.

6. Crime No.107/2019, U/s.110-E Cr.P.S. (CON).

7. Crime No.214/2019 on the file of PS., Kanchikacherla registered for the offences under Sections 269, 270, 271, 273 R/w.34 IPC and Section 5 and 22 of COTPA Act and Section 8(c) R/w.20(b)(ii) of NDPS Act - Acquitted.

RK,J & JUD,J 5 WP No.17067/2020

8. Crime No.309/2019 on the file of PS., Kanchikacherla registered for the offences under Sections 269, 270, 271, 273, 420, 418 R/w.34 IPC and Section 5 and 22 of COTPA Act - (Quashed copy of the order filed).

9. Crime No.347/2019 on the file of PS., Kanchikacherla registered for the offences under Sections 269, 270, 271, 273, 420, 418 R/w.34 IPC and Section 5 and 22 of COTPA Act - Quashed.

10. Crime No.373/2019 on the file of PS., Kanchikacherla registered for the offences under Sections 269, 270, 271, 273, 406, 420 R/w.34 IPC and Section 5 and 22 of COTPA Act - Quashed.

11. Crime No.241/2020 on the file of PS., Kanchikacherla registered for the offences under Sections 269, 270, 271, 273, 406, 420 R/w.34 IPC and Section 5 and 22 of COTPA Act - (UI) not correct - (Quashed copy filed).

12. Crime No.717/2020 on the file of PS., Kanchikacherla registered for the offences under Sections 269, 270, 271, 273, 328 R/w.34 IPC and Section 5 and 22 of COTPA Act - (UI) - Not correct quashed copy filed.

13. Crime No.745/2020 on the file of PS., Kanchikacherla registered for the offences under Sections 328, 269, 270, 273 R/w.34 IPC and Section 5(1) and 22 of COTPA Act and Section 8(c) R/w.20(b)(c) of NDPS Act - (UI) (Now pending in the High Court for quashing)".

4. The said detention order was finally confirmed vide G.O.RT. No.1228, dated 06.08.2020, which has been brought on record as Annexure P-2. The confirmation order by the Government, under the signature of Chief Secretary to the Government, is as follows:

"In exercise of powers conferred under sub-section (3) of Section-3 of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act No.1 of 1986), the Government hereby accord approval for the Order of Detention 1st read above, made by the Collector & District Magistrate, Krishna District, Machilipatnam, under the provisions of Section-3(1) & (2) r/w Section 2(g) of the said Act, in detaining RK,J & JUD,J 6 WP No.17067/2020 Sri Dasa Sekhar, S/o.Venkaiah, Aged 43 years, Kanchikacherla, now at Paritala Village, Kanchikacherla Mandal, Krishna District, Machilipatnam, Andhra Pradesh State."

5. Sri Raja Reddy Koneti, learned counsel for the petitioner, at the very out set, has argued that the grounds on which detention order was passed were not at all tenable in the eye of law. He argued that, even in the grounds, the detaining authority had noticed that out of 13 cases, in 4 cases the detenu was already acquitted; in 6 cases proceedings/FIRs were quashed; one case i.e., Crime No.107 of 2019 was initiated under Section 110-E of Cr.P.C.; in one case i.e., Crime No.745 of 2020, on the file of PS., Kanchikacherla, quash petition is already pending, and in one case i.e., Crime No.153 of 2016, on the file of PS., Kanchikacherla, was registered for the offences under Sections 269, 270, 271, 273, 420, 418 R/w.34 IPC and Sections 5 and 22 of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as, 'the COTPA Act'), there was an order of conviction and this ground was stale one. According to learned counsel for the petitioner, that, in none of the cases, the petitioner would have been considered as 'Goonda' under the Act of 1986. Learned counsel has emphatically argued that, almost in similar situation, detention orders were set-aside by a Division Bench of this Court in two habeas corpus petitions i.e., W.P. Nos.15556 and 15613 of 2020, by order dated 20.10.2020. The detention orders therein, which were passed almost on the same date as in the present case, were set-aside and both the detenues were set at liberty. In W.P. No.15613 of 2020, a Division Bench of this Court, in its order dated 20.10.2020, considered the definition of 'Goonda' under Section 2(g) of the Act of 1986 and the fact that most of the cases which were set as RK,J & JUD,J 7 WP No.17067/2020 grounds were set-aside by this Court. In the aforesaid two cases also, detention orders passed by the Collector and District Magistrate were passed on 27.07.2020 and they were confirmed by the Government on 05.08.2020 and 06.08.2020. The said two Writ Petitions were allowed by way of setting aside the detention orders.

6. Learned counsel for the petitioner has referred to the order passed by learned single Judge of this Court in Criminal Petition No. 5421 of 2019 and other connected Petitions; wherein, by a detailed order dated 18.12.2019, the learned single Judge had set-aside criminal proceeding/FIRs in almost 55 cases. The learned single Judge in its order, dated 18.12.2019, also deprecated the action of the Police in lodging FIRs in respect of very same offences under the Food Safety and Standards Act, 2006 (for short, 'the FSS Act') and other Acts even though there was no complete ban on tobacco products like Gutkhas and Khainies by the Central Government. The learned single Judge has elaborately discussed the cases and also examined application of provisions contained in Sections 153, 268, 272 and 273 of IPC, the provisions contained in the COTPA Act, FSS Act and the Act of 1986 and as such observing that those provisions were regulatory in nature, quashed the proceeding/FIRs in about 55 cases by allowing the Criminal Petitions. The learned single Judge by order dated 18.12.2019 has also specifically examined the earlier order passed by a learned single Judge of this Court in Criminal Petition No.3731 of 2018 and batch and observed that the order copies in both the batch of aforesaid Criminal Petitions be widely circulated by the Director General of Police and the Chief Secretary of the Andhra Pradesh throughout the State of Andhra Pradesh so that the time and efforts of the Police are devoted to more serious crimes.

RK,J & JUD,J 8 WP No.17067/2020

7. In the present proceedings, by order dated 03.11.2020, earlier, on the prayer made by learned counsel for the petitioner, it was directed to place the records of both the Writ Petitions i.e., W.P. No.15556 of 2020 and 15613 of 2020 along with the record of the present case. Accordingly, we have examined orders passed in W.P. Nos.15556 and 15613 of 2020, as discussed herein above.

8. In this case a detailed counter-affidavit has been filed by respondent No.2, Collector and District Magistrate, Krishna District at Machilipatnam. In the counter-affidavit it is stated that the detenu used to procure banned Gutkha and Khainies from bordering states in bulk quantity and selling the same in and around Nandigama Sub-Division area, which is negligent and malignant act likely to harm and is dangerous to public life and is disobedience to the quarantine rule as it is noxious food. It has been stated in Paragraph No.3 that the detenu is creating large scale fear and panic among the people thereby adversely affecting the public order, apart from disturbing tranquillity in the area. The statement made in Paragraph No.4 of the counter-affidavit is reproduced herein below.

"4. It is respectfully submitted that the detenue has committed the following criminal cases registered on the file of Kanchikacherla Police Station, Krishna District.

1. Cr.No.36/2016: U/secs. 269, 270, 271, 273, 420, 418 r/w 34 IPC & Sec.5 & 22 of CTPPARTCPSD Act of Kanchikacherla P.S. (Acquitted)

2. Cr.No.153/2016: U/secs. 269, 270, 271, 273, 420, 418 r/w 34 IPC & Sec.5 & 22 of CTPPARTCPSD Act of Kanchikacherla P.S. (Conviction)

3. Cr.No.268/2018: U/secs. 269, 270, 328 r/w 34 IPC & Sec.5 & 22 of CTPPARTCPSD Act of Kanchikacherla P.S. (Quashed)

4. Cr.No.50/2019: U/secs. 269, 270, 273, 418, 420 r/w 34 IPC & Sec.5 & 22 of CTPPARTCPSD Act of Kanchikacherla P.S. (Acquitted) RK,J & JUD,J 9 WP No.17067/2020

5. Cr.No.59/2019: U/secs. 269, 270, 273 r/w 34 IPC & Sec.5 & 22 of CTPPARTCPSD Act of Kanchikacherla P.S. (Acquitted)

6. Cr.No.107/2019: U/s.110-E Cr.P.S. (Conviction)

7. Cr.No.214/2019: U/Secs. 269, 270, 271, 273 IPC and Section 5 and 22 of COTPA Act and Section 8(c) R/w.20(b)(ii)(c) of NDPS Act of Kanchikacherla PS. (Acquitted)

8. Cr.No.309/2019: U/secs.269, 270, 271, 273, 420, 418 R/w.34 IPC and Section 5 and 22 of CTPPRTCPSD Act of Kanchikacherla PS.

9. Cr.No.347/2019: U/secs.269, 270, 271, 273, 420, 418 R/w.34 IPC and Section 5 and 22 of CTPPRTCPSD Act of Kanchikacharla PS (Quashed)

10. Cr.No.373/2019: U/secs.269, 270, 271, 273, 406, 420 IPC and Section 5 and 22 of CTPPRTCPSD Act of Kanchikacharla PS (Quashed)

11. Cr.No.241/2020: U/secs.328, 269, 270, 271, 273, 406, 420 IPC and Section 5 and 22 of CTPPRTCPSD Act of Kanchikacherla PS (UI)

12. Cr.No.717/2020: U/secs.269, 270, 273, 328 R/W.34 IPC and Section 5 and 22 of COTPA Act of Kanchikacharla PS (under investigation) Hence, the detenue deserve to be treated as a "Goonda"

U/s 2(g) of A.P. Prevention of Dangerous activities of Boot Leggers, Dacoits, Drug offenders, Goondas, Immoral Traffick Offenders and Land Grabbers Act, 1986 (Act 1 of 1986). Unless he is detained under Preventive Detention of Bootleggers, Drug- Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, his illegal activities of procuring banned Gutkha and Khainies from bordering states in bulk quantity and selling the same in and around Nandigama Sub-Division area cannot be prevented and the public cannot be saved from your evil activities."

9. Paragraph No.6 of the counter-affidavit is also reproduced herein below:

"6. It is submitted that the detention order was executed on the detenue on 01.08.2020 duly serving English version copies of the detention order, grounds of detention and relied documents in English on the same day, duly reading and explaining its contents RK,J & JUD,J 10 WP No.17067/2020 in his vernacular language i.e., Telugu in the presence of the Jail authorities and he acknowledged the receipt of the same, duly signing on each page in English and the Jailor has also attested the same. Further, he was also furnished with Telugu translated copies of the detention order, grounds of detention and relied upon documents on 01.08.2020 in the presence of the Jail authorities and he acknowledged the receipt of the same, duly signing in English and the Jailor, Central Prison, Hyderabad has also attested the same."

10. Thereafter, the detention order along with the grounds were placed before the Government within time as required under Section 3 of the Act of 1986 and on consideration, the Government within a period of 12 days from the date of passing of the detention order approved the same vide G.O.RT.No.1228, General Administration (SC.I) Department, dated 06.08.2020, and communicated to the detenu through the jail authority. In view of the statement made in Paragraph No.8 of the counter-affidavit, it is evident that the Advisory Board in its meeting held on 08.09.2020, submitted its report/opinion to the Government on 17.08.2020 as required under Section 11(2) of the Act of 1986. It would be appropriate to simply reproduce Paragraph No.8 of the counter-affidavit, which is as follows:

"8. It is submitted that subsequently, the Government, as required under Sec. 10 of the Act, within the mandatory period of (3) weeks, referred the case of the detenue to the Advisory Board, constituted under Sec. 9 of the Act to review the case of the detenue and submit its report within a period of (7) weeks as required under sec. 11(1) of the Act. The Advisory Board, in its review meeting held on 08.09.2020 upon hearing the detenue and the concerned police officials and upon considering the entire material placed before it, submitted its report/opinion to the Government on 17.08.2020 as required under Sec. 11(2) of the Act within the mandatory period of (7) weeks. The Government, upon receipt of the report from the Advisory Board and upon considering the entire material independently, passed the final orders of conformation, as per Sec. 12(1) r/w 13 of the Act, vide RK,J & JUD,J 11 WP No.17067/2020 G.O.Rt.No.1228 General Administration (SC-I) Department, dt.06.08.2020 and the same was communicated to the detenue, through the Jail authorities."

11. On examination of the statement made in Paragraph No.8 of the counter-affidavit, it appears that the detention order, which was approved, has been confirmed by the Government on 06.08.2020 and it appears that the case of the detenu was reviewed/examined by the Advisory Board on 08.09.2020. Meaning thereby that even without the approval of Advisory Board, the Government by the impugned order i.e., vide G.O.RT. No.1228, General Administration (SC.I) Department, dated 06.08.2020, has confirmed the detention of the detenu.

12. Sri Syed Khader Mastan, learned Government Pleader, attached to the office of learned Additional Advocate General, has vigorously opposed the Writ Petition and submitted that there is no illegality or irregularity in either of the orders passed by the Collector and District Magistrate, respondent No.2, and also the Government G.O. issued under the signature of the Chief Secretary by way of it's confirmation on 06.08.2020.

13. Normally, before confirmation of the detention order by the Government, the detenu must be produced before the Advisory Board and only after approval of the Advisory Board, the detention order can be confirmed. However, in the present case, it is evident from the statement made in Paragraph No.8 of the counter-affidavit, that the Advisory Board held its meeting on 08.09.2020, whereas the confirmation order by the Government is dated 06.08.2020.

14. Sri Raja Reddy Koneti, learned counsel for the petitioner, has emphasized that the orders considered by the detaining authority and the grounds of detention does not fulfil the definition of 'Goonda' as specified RK,J & JUD,J 12 WP No.17067/2020 under the Act of 1986. He persuaded the Court that the learned single Judge in the cases referred hereinabove has already held that dealing with tobacco cannot be termed as an offence, rather it can be regulated under different Acts. According to him, if any of the alleged acts of the petitioner is not treated as a cognizable offence, there was no application of either of the Chapters of Indian Penal Code.

15. It is pertinent to reproduce the definition of 'Goonda' as defined under Section 2(g) of the Act of 1986, which is reproduced herein below:

"'goonda' means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVIII or Chapter XXII of the Indian Penal Code."

16. Dealing with the tobacco either for carrying or selling has already been considered in number of cases by this Court as no offence. In such case, there cannot be application of either of the Chapters XIV, XVII or Chapter XXII of the Indian Penal Code and as such, according to learned counsel for the petitioner, in the absence of establishing the detenu as 'goonda', issuance of detention order is per se illegal and not sustainable in the eye of law. He has further placed reliance on an unreported Division Bench judgment of Hon'ble Patna High Court in M/s.Prabhat Zarda Factory India Private Limited v. The State of Bihar and others1 and submits that no State can even declare the 'tobacco' as food and as such there is no application of any provision of Food Safety and Standards Act, 2006 and in the absence of basic ingredient of such offence, there was no reason for application of either of provisions in the cases which were taken as ground for detention of the detenu.

1 (Civil Writ Jurisdiction Case No.3805 of 2015, Dt.19.07.2016) RK,J & JUD,J 13 WP No.17067/2020

17. Sri Raja Reddy Koneti, learned counsel for the petitioner, has also argued that out of 13 cases which were relating to certain crime numbers, first case was of the year 2016 and considering the fact that it was stale one, there was no reason for treating the said case as one of the grounds for detention. He further submits that in remaining cases either the detenu was acquitted or proceedings/FIRs were quashed by this Court and only one case was left, which is also under challenge by way of filing a quash application before this Court. According to learned counsel for the petitioner, if presently it is treated for the time being that one proceeding in Crime No.745 of 2020 on the file of Kanchikacherla PS., is pending, the detenu cannot be termed as habitual offender.

18. Besides hearing learned counsel for the parties, we have minutely examined the entire materials on record. It is not in dispute that almost in similar circumstance i.e., in relation to cases on which detention orders by the Collector and District Magistrate were passed on the same date i.e., 27.07.2020, and the finding was confirmed on 06.08.2020, a Division Bench of this Court has already quashed the detention orders and set both the detenues at liberty. In the present case, on examination of the detention order, dated 27.07.2020, passed by respondent No.2, Collector and District Magistrate, it is evident that the detaining authority had noticed that on the date of passing of the order the detenu was in judicial custody, on the strength of remand order passed by the Court. Though the detaining authority has noticed this fact, he has not at all whispered as to whether the detenu was trying for bail or likely to be released on bail and there was any apprehension that if he comes out from the jail, he will again indulge in the same act relating to carrying or selling of cigarettes and tobacco products. However, we are not at the moment dealing with the question whether carrying cigarettes, khainies and tobacco products is RK,J & JUD,J 14 WP No.17067/2020 only regulatory or not but time without number it has been held that if a person is proposed to be detained under preventive detention Act and is in custody, the detention order must reflect that the detenu is likely to come out of the jail and there is also reasonable apprehension that if he comes out, he will again indulge in the same activity. In absence of any such finding, the order of detention passed by the Collector and District Magistrate on this score alone is liable to be set-aside.

19. The other defect which has been noticed is that nothing has been indicated that the detenu was proposed to be detained for how many months. The Act of 1986 says that no one can be detained continuously for three (3) months, with extension by an order which may continue up to 12 months. However, in either of the orders i.e., order dated 27.07.2020 passed by the Collector and District Magistrate and the G.O.RT. No.1228, dated 06.08.2020, passed by the Chief Secretary of the Andhra Pradesh Government, which has been reproduced herein above, there is no whisper as to the period for which the detenu was proposed to be detained.

20. Besides aforesaid grounds, the order of detention is liable to be set- aside on the ground that though the respondent No.2, in its order dated 27.07.2020, has passed detention order of the detenu, he, in its order itself, has communicated that grounds for detention shall be communicated to him. This itself reflects non application of mind by respondent No.2 in relation to the so called grounds which were proposed to be communicated to the detenu. In normal course, it is required that detention order must reflect detailed reason for passing the detention order. Since preventive detention provision is invoked by way of infringing fundamental right of a citizen, guaranteed under Articles 21 and 22 of the RK,J & JUD,J 15 WP No.17067/2020 Constitution of India, in mechanical manner such steps on the part of the Government are not permissible. Even the grounds which have been brought on record shows that in four (4) cases the petitioner was already acquitted, in six (6) cases the proceedings/FIRs were quashed, one (1) case was under the provisions of 110-E of Cr.P.C., which has got no relation with either of the Chapters i.e., Chapters XIV, XVII and XXII of the Indian Penal Code, in one (1) case conviction order was passed is a case of the year 2016, thereafter only one case remained regarding which statement has been made in the Writ Petition that petitioner has filed Criminal Petition for quashment of the proceedings. If one case is treated as alive case, certainly the detenu cannot be termed as habitual offender.

21. In the counter-affidavit it appears that an incorrect fact has been made by the Collector and District Magistrict, Krishna District at Machilipatnam. In Paragraph No.4, he has referred Crime No.717 of 2020, registered under Sections 269, 270, 273, 328 R/w.34 IPC and Sections 5 and 22 of the COTPA Act on the file of Kanchikacherla Police Station as it was under investigation. This affidavit was sworn by the District Collector on 03.10.2020; whereas in the present Writ Petition, the petitioner has brought on record the order, dated 08.09.2020, passed in Criminal Petition No.3714 of 2020, whereby a learned single Judge of this Court has quashed the proceedings against the detenu in Crime No.717 of 2020. Moreover, in Paragraph No.5 Sub-paragraph 12 of the Writ Petition, the petitioner in specific term while referring to Crime No.717 of 2020, on the file of Kanchikacherla Police Station, registered for the offences under Sections 269, 270, 271, 273, 328 R/w.34 IPC and Sections 5 and 22 of the COTPA Act, has stated the word '(UI)' i.e., under investigation was not correct and quash copy filed. The said order is at Page No.28 of the Writ Petition i.e., Criminal Petition No.3714 of 2020. The Court is of the opinion RK,J & JUD,J 16 WP No.17067/2020 that since responsible official was swearing affidavit, it was required for him to examine whether the statement in the counter-affidavit was correct or not. However, we are refraining from recording any adverse observation on this very issue but on going through the entire material available on record, the Court is of the considered opinion that detention order, dated 27.07.2020, passed by the Collector and District Magistrate, Krishna District at Machilipatnam, which was confirmed by the Chief Secretary, Government of Andhra Pradesh vide G.O.RT. No.1228, dated 06.08.2020, are not sustainable in the eye of law and as such both the orders are hereby set-aside. Respondents are directed to release the detenu namely Dasa Sekhar, forthwith, if not wanted in any other case.

22. Accordingly, with the above direction, the Writ Petition is allowed. No order as to costs.

23. As a sequel, miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.

________________________ RAKESH KUMAR, J ________________________ J.UMA DEVI, J Date:19-11-2020.

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