Andhra Pradesh High Court - Amravati
Chintha Chinni vs The State Of Andhra Pradesh on 3 August, 2021
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami, Ninala Jayasurya
IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE NINALA JAYASURYA
WRIT PETITION No.8172 of 2021
(Taken up through video conferencing)
Chintha Chinni
S/o. Venkateswara Rao, Aged about 34 years,
R/o.30/963-1, Near Ganganamma Temple,
Pedda Vullingapalem, Machilipatnam Post,
Machilipatnam, Krishna District,
Presently resident of Grandhalayam Road,
Kosuru Village and Mandal, Guntur District.
.. Petitioner.
Versus
The State of Andhra Pradesh,
through the Principal Secretary,
Department of Home,
Secretariat, Velagapudi, Amaravathi,
Guntur District, and others.
.. Respondents.
Counsel for the petitioner : Mr. P. Rajasekhar,
for Mr. Sai Gangadhar Chamarty
Counsel for the respondents : Mr. Syed Khader Masthan
Date of hearing : 14.07.2021
Date of order : 03.08.2021
ORDER
(per Arup Kumar Goswami, CJ) Heard Mr. P. Rajasekhar, learned counsel representing Mr. Sai Gangadhar Chamarty, learned counsel for the petitioner. Also heard Mr. Syed Khader Masthan, learned Government Pleader appearing for the respondents.
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2. This writ petition is filed challenging an order dated 18.03.2021 passed by the Collector and District Magistrate, Krishna District, respondent No.2 herein, in purported exercise of power under Section 3(3)(a) of the Andhra Pradesh Prevention of Anti-Social and Hazardous Activities Act, 1980, (for short, 'the Act of 1980'), ordering externment of the petitioner and directing him to remove himself outside the Krishna District for a period of six months with effect from the date of receipt of the order, so as to prevent him from entering into Krishna District and further directing him to give prior intimation to respondent No.2 before entering into the District for his appearance before Robertsonpet Police Station once in a week till the Mandal Parishad Territorial Constituency and Zilla Parishad Territorial Constituency elections are completed and after that, once in a month till the trial is completed, as directed by this Court in I.A.No.1 of 2021 in Crl.P.No.4734 of 2020.
3. The aforesaid order dated 18.03.2021 states that the petitioner was involved in repeated crimes within the limits of Inaguduru Police Station and Robertsonpet Police Station. It also recites that the Superintendent of Police, Krishna, Machilipatnam, had informed respondent No.2- Collector and District Magistrate, Krishna, that the petitioner is a habitual criminal and formed a gang consisting of his associates and followers to terrorize the common public and his movements are hazardous to public peace and tranquillity and that he is creating panic in the town with a view to frighten the witnesses in a recent brutal murder case in which he is the prime accused and that if he was allowed to move freely, there was every likelihood of his indulging in more and more violent activities and there would also be threat to his life from his opponents. It is further noted in the said order that the petitioner 3 HCJ & NJS,J W.P.No.8172 of 2021 is a sordid person and is in the habit of picking up unnecessary quarrels with public over trivial issues to show his highhandedness and does not hesitate to attack them physically for no valid reason and in spite legal action being taken against him, being a rowdy sheeter, he did not try to mend his attitude and continued his rowdy activities in Machilipatnam town.
4. While passing the aforesaid order dated 18.03.2021, respondent No.2-Collector and District Magistrate, Krishna District, relied on seven crimes registered against the petitioner, which are as follows:
1. Crime No.119 of 2014 of Inuguduru Police Station registered for the offences under Sections 341, 427, 324 and 506 r/w 34 I.P.C.
2. Crime No.118 of 2008 of Inuguduru Police Station registered for the offence under Section 324 r/w 34 I.P.C.
3. Crime No.123 of 2009 of Inuguduru Police Station registered for the offences under Sections 341 and 506 r/w 34 I.P.C.
4. Crime No.146 of 2015 of Inuguduru Police Station registered for the offences under Sections 506 and 323 r/w 34 I.P.C.
5. Crime No.147 of 2015 of Inuguduru Police Station registered for the offence under Section 324 r/w 34 I.P.C.
6. Crime No.192 of 2020 of Robertsonpet Police Station registered for the offences under Sections 120(b), 302 and 109 r/w 34 and 37 I.P.C.
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7. Crime No.40 of 2021 of Robertsonpet Police Station registered for the offences under Sections 353 and 506 I.P.C.
5. In the petition, it is averred that the petitioner had contested in the municipal elections of Machilipatnam and he had secured 780 votes, whereas the winning candidate had secured 800 votes. It is pleaded that the impugned order was passed at the behest of the opponents of the petitioner and the respondents had acted in view of political interference exerted upon them. It is alleged that before passing the impugned order, no notice was served upon the petitioner as contemplated under Section 3(1) of the Act of 1980. It is stated that in no case so far registered against him, the petitioner was convicted by a competent Court of law and that out of the seven crimes referred to in the impugned order, two cases ended in acquittal and three of them ended in compromise in Lok Adalat. Thus, only two cases, i.e., Crime No.192 of 2020 and Crime No.40 of 2021, are pending against the petitioner. While in Crime No.192 of 2020, preliminary charge sheet was filed, investigation is underway in Crime No.40 of 2021. It is also stated that in view of the absence of the petitioner, theft of valuables of more than Rs.3.00 lakhs took place in his house, in relation to which offence, Crime No.134 of 2020 was registered on the basis of complaint lodged by his wife. The mandatory procedure contemplated under Section 3 of the Act of 1980 being not complied with, it is asserted that the impugned order is liable to be set aside.
6. A counter-affidavit was filed by respondent No.2-Collector and District Magistrate, Krishna District, denying the allegations made by the petitioner. It is stated that notice dated 16.03.2021 was refused to be received by the petitioner, as would be evident from the panchanama 5 HCJ & NJS,J W.P.No.8172 of 2021 dated 16.03.2021 executed in the presence of Village Revenue Officer, Ward Women Protection Secretary of 23rd Division, Police Constable No. 2458 (Abdul Raqub), Inspector of Police, Robertsonpet Police Station and Inspector of Police, Inaguduru Police Station. It is pleaded that the procedure contemplated under Section 3 of the Act of 1980 was duly followed. It is also asserted that there is no bar in relying upon the cases that ended in acquittal or which resulted in compromise.
7. Mr. P. Rajasekhar, learned counsel appearing for the petitioner, submits that no notice was served on the petitioner before passing the impugned order and as the entire process was initiated at the instance of the Inspector of Police, Robertsonpet Police Station, no reliance can be placed on the Panchanama. It is also submitted that though the notice was purportedly issued on 16.03.2021 requiring the petitioner to submit his explanation within a period of three days, within a period of two days from the date of issuance of such notice, i.e., on 18.03.2021, the impugned order came to be passed and, therefore, on this ground alone, the impugned order cannot be sustained. It is further submitted that though there is a reference to the notice dated 16.03.2021 in the order dated 18.03.2021 and the report of the Inspector of Police, Robertson Police Station, dated 16.03.2021, respondent No.2 did not advert to the same to conclude as to whether the notice was duly served. He further submits that as no notice was served upon the petitioner, he was denied opportunity of tendering an explanation and also the right to consult and to be defended by a counsel of his choice. Learned counsel submits that there is total non-application of mind in passing the impugned order as, by no stretch of imagination, on the basis of the materials on record, the petitioner could have been considered to be a goonda within the meaning 6 HCJ & NJS,J W.P.No.8172 of 2021 of Section 2(e) of the Act of 1980. In support of his submission, Mr. P. Rajasekhar places reliance on Shalini Soni and others v. Union of India and others, reported in (1980) 4 SCC 544, Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta, reported in (1995) 3 SCC 237, and Jagan Nath Biswas v. State of West Bengal, reported in (1975) 4 SCC 115.
8. On the other hand, Mr. Syed Khader Masthan, learned counsel appearing for the respondents, supports the impugned order and submits that there is no infirmity in the order assailed and, therefore, the writ petition is liable to be dismissed.
9. At the outset, it would be appropriate to take note of Section 3 of the Act of 1980, which provides for externment of goondas. It reads as follows:
"3. Externment of Goondas- (1) Where it appears to the Commissioner or the District Magistrate-
(a) that any person is a goonda; and
(b) (i) that his movements or acts in the district or any part
thereof are causing or are calculated to cause alarm, danger or harm to persons or property; or
(ii) that there are reasonable grounds for believing that he is engaged or about to engage in the district or any part thereof, in the commission or abetment, of any offence or act specified in sub-clauses (i) to (v) of clause
(e) of section 2; and
(c) that witnesses are not willing to come forward to give evidence against him by reason of apprehension, on their part as regards the safety of their person or property;
7 HCJ & NJS,J W.P.No.8172 of 2021 the Commissioner or the District Magistrate shall, by notice in writing, inform him of the general nature of the material allegations against him in respect of clauses (a), (b) and (c) and give him a reasonable opportunity of tendering an explanation regarding them.
(2) The person against whom an order under this section is proposed to be made, shall have the right to consult and to be defended by a counsel of his choice and shall be given reasonable opportunity of examining himself, if he so desires and also of examining any other witnesses or any relevant document that he may wish to produce in support of his explanation, unless, for reasons to be recorded in writing, the Commissioner or the District Magistrate, is of opinion that the request is made for the purpose of vexation or delay.
(3) The Commissioner or the District Magistrate on being satisfied that the conditions specified in clauses (a), (b) and (c) of sub- section (1) exist, may by order in writing -
(a) direct him to remove himself outside the district or part thereof, as the case may be, by such route, if any, and within such time as may be specified in the order, and to desist from entering the district or the specified part thereof until the expiry of such period, not exceeding six months, as may be specified in the order;
(b) (i) require such person to notify his movements, or to report himself, or to do both, in such manner, at such time and to such authority or person as may be specified in the order;
8 HCJ & NJS,J W.P.No.8172 of 2021
(ii) prohibit or restrict possession or use by him of any such article as may be specified in the order;
(iii) direct him otherwise to conduct himself in such manner as may be specified in the order,-
until the expiration of such period, not exceeding six months, as may be specified in the order."
10. A perusal of Section 3(1) of the Act of 1980 goes to show that the provision requires the Commissioner or the District Magistrate to issue notice in writing informing the person of the general nature of the material allegations against him in respect of clauses (a), (b) and (c) of Section 3(1) and give him a reasonable opportunity of tendering an explanation regarding them.
11. Sub-section (3) of Section 3 of the Act of 1980 provides that if the Commissioner or the District Magistrate is satisfied that the conditions specified in clauses (a), (b) and (c) of sub-section (1) exist, he may, by order in writing, amongst others, direct him to remove himself outside the district or part thereof, as the case may be, by such route, if any, and within such time as may be specified in the order and to desist from entering the district or the specified part thereof until the expiry of such period, not exceeding six months, as may be specified in the order.
12. 'Goonda' is defined under Section 2(e) of the Act of 1980, which reads as follows:
"2. Definitions- In this Act, unless the context otherwise requires,-
(a) ........
(b).......
(c) ......
(d).......
e) "Goonda" means a person who,-
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(i) either by himself or as a member or leader of a gang, habitually commits or attempts to commit or abets the commission of, offences punishable under section 294, Chapter XVI, Chapter XVII, or Chapter XXII of the Indian Penal Code, 1860 (Central Act 45 of 1860); or (emphasis supplied)
(ii) having once been convicted of an offence under one or more of the following Acts is again convicted under-
(a) the Opium Act, 1878(Central Act 1 of 1878);
(b) the Dangerous Drugs Act, 1930 (Central Act 2 of 1930);
(c) the Drugs and Cosmetics Act, 1940 (Central Act 23 of 1940);
(d) the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954);
(e) the Essential Commodities Act, 1955 (Central Act 10 of 1955);
(f) the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Central Act 104 of 1956);
(g) sections 25, 26, 27, 28 or 29 of the Arms Act, 1959 (Central Act 54 of 1959);
(h) the Customs Act, 1962 (Central Act 52 of 1962);
(i) the Foreign Exchange Regulation Act, 1973 (Central Act 46 of 1973);
(j) the Andhra Pradesh Excise Act, 1968 (Central Act 17 of 1968);
(k) the Andhra Pradesh Gaming Act, 1974 (Central Act 27 of 1974);
(l) the Andhra Pradesh Prevention of Begging Act, 1977 (Central Act 12 of 1977); or 10 HCJ & NJS,J W.P.No.8172 of 2021
(iii) has been found habitually passing indecent remarks to or teasing, women or girls; or (emphasis supplied)
(iv) has been found habitual in intimidation of law abiding people by acts of violence or by show of force;
or (emphasis supplied)
(v) is habituated - (emphasis supplied)
(a) to commit affray or breach of peace, riot; or
(b) to make forcible collection or subscription, or to threaten people for illegal pecuniary gain for himself or for others; or
(c) to cause alarm, danger, or harm to persons or property;
Explanation:- The word "habitual" or "habituated" wherever used in relation to a person in this clause means a person, who during a period within six months immediately preceding the commencement of an action under section 3, has been found on not less than three occasions to have committed the offences or acts, as the case may be, referred to in sub-clauses (i) to (v) of this clause;" (emphasis supplied)
13. The foundation on the basis of which the impugned order dated 18.03.2021 was passed is that the petitioner was considered to be a goonda. It is not the case projected by the respondents that the petitioner had been convicted more than once in any of the offences under the Acts mentioned under Section 2(e)(ii) of the Act of 1980.
14. Sub-clauses (iii), (iv) and (v) of Clause (e) of Section 2 of the Act of 1980 use the expressions 'habitually', 'habitual' and 'habituated', 11 HCJ & NJS,J W.P.No.8172 of 2021 respectively. The explanation to the definition of goonda in Section 2(e) makes it clear that the word 'habitual' or 'habituated', whenever used in relation to a person in Clause (e), means a person, who during a period within six months immediately preceding the commencement of an action under Section 3, has been found on not less than three occasions to have committed the offences or acts, as the case may be, referred to in sub- clauses (i) to (v) of Clause (e) of Section 2.
15. The action under Section 3 of the Act of 1980 had commenced in the instant case on 18.03.2021. Seven crimes were taken note of by respondent No.2 with regard to the offences committed by the petitioner. Five of them were registered more than five years ago. Crime No.192 of 2020 of Robertsonpet Police Station was registered on 29.06.2020, which is also more than six months prior to the date of commencement of action taken under Section 3 of the Act of 1980. There was only one case, i.e., Crime No.40 of 2021 of Robertsonpet Police Station, which, being registered on 26.02.2021, comes within a period of six months preceding the date of initiation of action under Section 3 of the Act of 1980.
16. In Jagan Nath Biswas (supra), the Hon'ble Supreme Court had observed that unexplained and long delay would be fatal to the plea of subjective satisfaction and there must be some proximity in time to provide a rational nexus between the incidents relied on and the satisfaction arrived at.
17. In Mustakmiya Jabbarmiya Shaik (supra), the Hon'ble Supreme Court reiterated the aforesaid proposition as laid down in Jagan Nath Biswas (supra) that long lapse of time between the alleged prejudicial activity and the detention order loses it significance because the said prejudicial conduct was not approximate in point of time and had no 12 HCJ & NJS,J W.P.No.8172 of 2021 rational connection with the conclusion that the detention was necessary for maintenance of public order and that a stale incident cannot be construed as justifiable ground for passing an order of detention.
18. In Shalini Soni (supra), the Hon'ble Supreme Court laid down that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.
19. Discussion above unequivocally demonstrates that the petitioner could not have been, on the basis of the materials placed, held to be a goonda within the meaning of Section 2(e) of the Act of 1980. The respondent No.2 has not taken into consideration the most relevant consideration as to whether the petitioner can be held to be a goonda within the meaning of Section 2(e) of the Act of 1980. In that view of the matter, the foundation of the impugned order collapses and therefore, it cannot receive judicial imprimatur.
20. In view of the above conclusion, it will not be necessary for this Court to go into the question as to whether any notice was served and/or whether notice was refused by the petitioner as the same has no bearing in the attending facts and circumstances of the case.
21. Resultantly, the impugned order dated 18.03.2021 passed by respondent No.2 - Collector and District Magistrate, Krishna District, is set aside and the writ petition is allowed. No costs. Pending miscellaneous applications, if any, shall stand closed.
ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J
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