Andhra Pradesh High Court - Amravati
Paltthiya Srinu vs The State Of Andhra Pradesh on 20 October, 2022
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
AND
HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
Writ Petition No.15517 OF 2022
ORDER:(Per Hon'ble Sri Justice U. Durga Prasad Rao) In this writ petition filed under Article 226 of the Constitution of India the petitioner challenging the detention of his brother Sri Palthiya Balaji, S/o. Hanuma, under order of detention in Rc.No.C/9/MAG1/2022 dated 02.05.2022 passed by the 3rd respondent - The District Magistrate & Collector, NTR District, Vijayawada under Section 3(1) & 3(2) r/w Section 2(a) & (b) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (1 of 1986) [for short, „the Act 1 of 1986'] and prayed to direct the respondent authorities to set the detenue at liberty forthwith.
2. The 3rd respondent has passed the detention order dated 02.05.2022 on the ground that the detenue was involved in committing the offences of possession, sale / distribution of illicitly distilled liquor in contraventions of Section 7(a) r/w 8(e) of the 2 Andhra Pradesh Prohibition (Amendment) Act, 2020 and also abetting the commission of the said illegal activities and he was involved in following five cases and thus he is a „Bootlegger‟ within the meaning of Section 2(b) of the Act 1 of 1986 and his activities are prejudicial to the maintenance of public health and public order.
1 Cr.No.72/2021 dated 05.02.2021 of Reddigudem P.S. 2 Cr.No.153/2021 dated 03.10.2021 of Special Enforcement Bureau Station, Mylavaram 3 Cr.No.384/2021 dated 22.11.2021 of Reddigudem P.S. 4 Cr.No.419/2021 dated 30.11.2021 of Reddigudem P.S. 5 Cr.No.53/2022 dated 28.03.2022 of Special Enforcement Bureau Station, Mylavaram
3. The detention order is challenged in this writ petition on the grounds that the cases in which the detenue is involved can be effectively dealt with under the general law and his activities are not prejudicial to the maintenance of public health and public order; in all the five crimes which were taken as a ground for issuing detention order, the detenue was granted bail even before the date of detention order and the said fact was not taken into consideration by the Detaining Authority while passing the 3 detention order; though more than three months elapsed after the date of detention order, so far the Government neither passed the confirmation order and issued the G.O nor set aside the detention order in terms of Section-12 and hence the detention per se is illegal.
4. The 3rd respondent filed counter and opposed the writ petition.
5. Heard arguments of Sri M.P.V.N.V. Sastry, learned counsel for the petitioner and learned Special Government Pleader representing learned Advocate General for respondents.
6. While vehemently opposing the detention order, learned counsel for the petitioner Sri M.P.V.N.V. Sastry, firstly argued that the detention order was passed on 02.05.2022 by the 3rd respondent and though more than three months elapsed after the detention order, so far the Government neither passed the confirmation order and issued the G.O nor set aside the detention order in terms of Section-12 and released the detenue within three months of the 4 detention as mandated under Section 12 of the Act 1 of 1986. Therefore, the detention per se is illegal and liable to be set aside.
(b) He would further argue that in all the five cases the detenue was granted bail even before the detention. It indicates the concerned jurisdictional Court prima facie considered that the detenue was not involved in those cases and accordingly granted bail. Unfortunately, the Detaining Authority has not considered this fact before ordering detention. He thus prayed to allow the writ petition.
7. In oppugnation, supporting the detention order, learned Special Government Pleader would argue that Section-3 of Act 1 of 1986 speaks of „satisfaction‟ of the Detaining Authority to pass a detention order. When the statute left an action dependent upon the opinion of the authority concerned by using the expression as „is satisfied‟ or „is of the opinion‟ or „if it has reason to believe‟ or „if it consider necessary‟, then the opinion of such authority is conclusive, provided the procedure prescribed by the Act or Rules for formation of the opinion was duly followed and the authority acted bonafide and the authority himself formed the opinion. In 5 such case the judicial review will be constricted primarily to know whether procedural fairness was scrupulously followed. He placed reliance on Amarendra Kumar Pandey v. Union of India.1 He would submit that in this case the procedure was meticulously followed and basing on the materials placed, the 2nd respondent formed the opinion. Hence the detention order is sustainable.
(a) Nextly he argued that merely a person is on bail is not a ground to claim immunity from the preventive detention. Conversely, the possibility of misusing the freedom granted under bail will be more in the case of habitual offenders. Therefore, in this case having regard to the past history of the detenue in involving in the repeated crimes of similar nature, the Detaining Authority made a logical prognosis of his future behaviour. Therefore, that the detenue was on bail in the above cases is of no consequence. He placed reliance on Haradhan Shah v. The State of West Bengal2.
1 2022 LiveLaw (SC) 600 2 AIR 1974 SC 2154 = 1975(3) SCC 198 6
(b) Nextly he argued that the activities of the detenue are very much prejudicial to the maintenance of public order because in all the above 5 crimes, the detenue was dealing with ID liquor and the chemical examiner on testing the samples opined that the contraband seized was ID liquor which was unfit for human consumption and injurious to health. When the activities of detenue create grave or widespread danger to life or public health, it can be construed that he acted in a manner prejudicial to the maintenance of public order and preventive detention can be ordered. On this aspect he placed reliance on Doddi Sharada v. Collector and District Magistrate, Hyderabad3.
(c) Refuting the petitioner‟s argument that in five crimes the detenue‟s involvement is a myth and he was falsely implicated, learned Special Government Pleader would argue that the detenue was involved in all the five crimes which were taken into consideration. Since he is a habitual offender the police have easily identified him in five crimes. Therefore, the involvement of the detenue in all the five crimes cannot be doubted. The 3rd respondent has rightly considered all these aspects and ordered 3 2005 (2) ALT 244 = 2005(1) APLJ 328 7 detention. He thus supported the impugned order and prayed to dismiss the writ petition.
8. The point for consideration is whether there are merits in the writ petition to allow?
9. Point: We gave our anxious consideration to above respective arguments. The first argument of learned counsel for the petitioner is about the procedural violation. As rightly argued by learned Special Government Pleader, a person on bail is neither immuned nor insulated from preventive detention. The Detaining Authority upon considering the materials and other facts can still form an opinion that there is a likelihood of misuse of the bail by such person to repeat similar offences and order for preventive detention. In Haradhan Shah's case (2 supra) relied upon by Special Government Pleader, the Apex Court considering its various other decisions, held that granting bail in the offences which were taken for consideration is not a bar against the District Magistrate in issuing the preventive detention order. Nor the detention order which is passed during the pendency of prosecution 8 will violate the order. The detention is a precautionary measure based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of surrounding circumstances.
10. There is no demur about the discretionary power of the Detaining Authority in this regard. However, the crux of the argument of the petitioner is not about the lack of power of Detaining Authority to order preventive detention against a person who is on bail. On the other hand, the main plank of argument of learned counsel for the petitioner is that though the detention order was passed on 02.05.2022 and approved by the 1st respondent within 12 days by issuing G.O.Rt.No.837, dated 10.05.2022, however subsequently the 1st respondent has not passed confirmation order and issued consequential G.O nor set aside the detention within three months from the date of detention and therefore the detention per se is illegal and liable to be set aside. 9
11. In this regard a perusal of the record would show that admittedly the detention order was passed on 02.05.2022 and the 1st respondent have issued G.O.Rt.No.837, dated 10.05.2022 according approval for the order of detention. So far so good, however no material is placed by the respondents to show that the confirmation order was passed thereafter within 3 months after detention, in terms of Section 12 of the Act 1 of 1986. Further, in the counter the respondents have not taken a specific plea that confirmation order was passed and the consequential G.O. was issued. In this context, it is apposite to extract the relevant provisions:
Section-3 "3.Power to make order detaining certain persons:- (1) The Government may, if satisfied with respect to any bootlegger, 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.
10
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."
Section-12 "12. Action upon report of Advisory Board-(1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period specified in Section 13 as they think fit.
(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith." Section-13 "13. Maximum period of detention - The maximum period for which any person may be detained, in pursuance of any detention order made under this act which has been confirmed under Section 12 shall be twelve months from the date of detention."
12. When the scheme of the Act as envisaged in the above provisions is perused, under Section-13 the maximum period of detention under this Act shall be twelve months from the date of detention. Be that it may, we will find in the Section-3 that the said 11 period of detention of twelve months is not in one stretch and it is regulated by Section-3. Then as per Section-3(3) after making initial detention order, the officer passing the detention order shall report to the Government within twelve days for approval. Then the Government as per Section-3(2) proviso can extend the period of detention at the first instance for three months and amend such order from time to time for further period not exceeding three months at any one time. Then according to Section-12 of the Act, 1986, the Government on the report of the Advisory Board, may confirm the detention order and continue the same not exceeding the maximum period specified in Section-13 i.e., twelve months from the date of detention.
13. Thus the detention at the first instance shall not exceed three months as per proviso to Section 3(2). Then the Government shall act upon the report of Advisory Board within the said initial period of three months of detention and either confirm the detention or set aside.
12
14. In the instant case as already observed supra, the respondents neither took a plea in counter nor produced any material to show that the Advisory Board has passed any order within the time prescribed and consequently the 1st respondent issued consequential G.O confirming the detention within three months after detention in terms of Section 3(2) proviso. The three months period was completed by 02.08.2022. However, in terms of Section 12 the Government have not passed any confirmation order within the stipulated time.
15. It is true that in Section-12 no time limit is prescribed for confirming the detention order by the Government. However, when the above provisions are studied conjunctively, one can understand that three months limitation is implicit in Section-12. Our view is fortified by the following decisions:
(a) In Nirmal Kumar Khandelwal v. Union of India4 ‟s case the petitioner was detained w.e.f 24.10.1977 by an order passed by Secretary to the Government of Maharashtra U/s 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling 4 1978 AIR (SUPREME COURT) 1155 = 1978(2) SCC 508 13 Activities Act, 1974 (for short "COFEPOSA"). Reference was made to the Advisory Board on 24.11.1977 and the Board rejected the representation of the detenu on 23.12.1977. However, the detention was challenged mainly on the ground that no confirmation order was passed by the Government within three months of the commencement of the detention as per Section-8(f) of COFEPOSA and so the detention beyond initial period of three months was violative of Article-22(4) of the Constitution of India.
It was contended on behalf of the Government that Article 22(4) or COFEPOSA did not stipulate that the confirmation shall be made within three months from the commencement of the detention. However, considering Section 8(f) of the Act, the Apex Court held that the confirmation ought to be made within three months of the date of detention by the appropriate Government and since no order of confirmation was made thereunder, the further detention of the petitioner after the expiry of three months was without the authority of law. Section-12 of the Act, 1986 can be said to be in pari materia with Section-8(f) of COFEPOSA.
14
16. The decision in Shibapada Mukherjee V. State of West Bengal5 is also in similar lines. On 30.04.1971 the District Magistrate passed the detention order U/s 3(1) and (3) of West Bengal (Prevention of Violent Activities) Act and on the same day reported the said fact to the State Government. The petitioner was however arrested on 04.05.1971. The State Government gave its approval on 11.05.1971. On 02.06.1971 petitioner‟s case was referred to Advisory Board and on 09.07.1971 the Advisory Board reported that there was sufficient cause for detention. On 07.08.1971 the State Government gave confirmation U/s 12 of the Act. Thus the order of confirmation and continuation of detention was made after the expiry of three months from the date of arrest and detention of the petitioner. The petitioner inter alia challenged the detention order on the ground that the confirmation order was passed by the Government after expiry of three months and hence the arrest and detention was illegal. It was contended by the State that Section-12(1) of the Act does not lay down in any express terms the time within which the State Government has to confirm the detention order and make a decision to continue the detention 5 1972 AIR (SUPREME COURT) 1356 = 1974(3) SCC 50 15 of the detenue. The Apex Court held that though Section-12 does not in express terms lay down that the decision to confirm the detention order has to be made before the expiry of three months, such a time limit is implicit in the Section. Ultimately, the detention order was set aside. The above decision squarely applies to the case on hand.
17. In that view, the detention in our considered view, is illegal and unsustainable. Accordingly, the writ petition is allowed and the detention order in Rc.No.C/9/MAG1/2022 dated 02.05.2022 passed by 3rd respondent - The District Magistrate & Collector, NTR District, Vijayawada is hereby set aside and the detenue namely Sri Palthiya Balaji, S/o Hanuma is directed to be released forthwith by the respondents if the detenue is not required in any other cases. No costs.
16
As a sequel, interlocutory applications pending, if any, shall stand closed.
_________________________ U.DURGA PRASAD RAO, J ___________________________ B.V.L.N. CHAKRAVARTHI, J 20.10.2022 Krk / Mva