P.D. Act - Several criminal cases of illicit liquor - Their lordships of High court held that Hence, I am of the opinion that the periodical involvement of the detenu in various excise offences at regular interval, which have been chronicled in the Detention Order do not lend sufficient support for the Detaining Authority to pass a Preventive Detention Order against the husband of the petitioner. - The contention canvassed by Sri Vivekananda has, in fact, been effectively answered by the Supreme Court in REKHA's case and that was the reason why in MUNAGALA's case, the Supreme Court has held that preventive detention is not the measure that should be applied merely because several cases have been registered against the detenu earlier. I am bound, in law and on principle, by the ratio laid down in REKHA's case and MUNAGALA's case. = Stm. Sheela Bai..... Petitioner. The State of A.P. and another......RESPONDENTS = 2014 (March. Part ) http://judis.nic.in/judis_andhra/filename=11093

 P.D. Act - Several criminal cases of illicit liquor - Their lordships of High court held that  Hence, I am of the opinion that the periodical involvement of the detenu in various excise offences at regular interval, which have been chronicled in the Detention Order do not lend sufficient support for the Detaining Authority to pass a Preventive Detention Order against the husband of the petitioner.  - The contention canvassed by Sri Vivekananda has, in fact, been effectively answered by the Supreme Court in REKHA's case and that was the reason why in MUNAGALA's  case, the Supreme Court has held that preventive detention is not the measure
that should be applied merely because several cases have been registered against
the detenu earlier.  I am bound, in law and on principle, by the ratio laid down in REKHA's case and MUNAGALA's case.     = 
  
It appears that when the Detaining Authority sought
for the opinion of the Professor of Medicine & Chief Physician, Osmania General
Hospital, Hyderabad, he has pointed out the ill-effects of consumption of
illicit liquor on the health of the consumers.  The Detaining Authority, after
considering this material, had formed an opinion that the detenu was engaged in
preparation and sale of illicitly distilled liquor, which would have adverse
effect in maintenance of public order and also is a source for grave and
wide-spread danger to the public health.  Therefore, the Detaining Authority is
satisfied that the Provisions of the Andhra Pradesh Prevention of Dangerous
Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic
Offenders and Land Grabbers Act, 1986 (henceforth referred to as 'the Act'),
should be invoked and he should be detained in custody.  The Detaining Authority
has formed his opinion, based upon subjective satisfaction of the factors spelt
out by him in the following manner:
"       It is imperative to prevent you from acting in any manner prejudicial to
maintenance of Public Order, but I feel that recourse to normal law would
involve considerable time and may not be effective deterrent in preventing you
from indulging in further activities prejudicial to maintenance of public order
in and around Janardhanreddy nagar of Jillellaguda, Saroornagar Rangareddy
District under Excise Station limits of Saroornagar, Rangareddy District." =

 Hence, I am of the opinion that the periodical involvement of the detenu
in various excise offences at regular interval, which have been chronicled in
the Detention Order do not lend sufficient support for the Detaining Authority
to pass a Preventive Detention Order against the husband of the petitioner.  
The
contention canvassed by Sri Vivekananda has, in fact, been effectively answered
by the Supreme Court in REKHA's case and that was the reason why in MUNAGALA's      
case, the Supreme Court has held that preventive detention is not the measure
that should be applied merely because several cases have been registered against
the detenu earlier.  
I am bound, in law and on principle, by the ratio laid down in REKHA's case and MUNAGALA's case.     
        Accordingly, the Writ Petition stands allowed at the admission stage, but
however, without costs and the detenu shall be set at liberty forthwith.
Consequently, the miscellaneous petitions, if any, shall stand disposed of.

2014 (March. Part ) http://judis.nic.in/judis_andhra/filename=11093

THE HON'BLE SRI JUSTICE  NOOTY RAMAMOHANA RAO  
        

W.P.NO.4686 OF 2014  

28-03-2014

Stm. Sheela Bai..... Petitioner.

The State of A.P. and another......RESPONDENTS  

For the Appellant:  M. Laxman Rao


For the Respondents : Advocate General,
                       G.P. for Home .

<Gist:

>Head Note:

?CITATIONS:

1. 2012 (2) SCC 386
2.2011 (10) SCALE 224
3. (2011) 5 SCC 244
4.(1975) 3 SCC 198
5. 2012(2) SCC 176

THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

W.P.No.4686 of 2014

O R D E R:


The petitioner is the wife of the detenu and hence, challenges the Order of
Preventive Detention, passed by the 2nd respondent on 24-09-2013, in this Writ
Petition.
It is stated that the detenu has been indulging in paddling prohibited
intoxicants, such as sale of arrack and spurious and illicit liquor.  It also
appears that he is being prosecuted in Crime No.202 of 2011/12 of Prohibition &
Excise Station, Saroornagar, Ranga Reddy District, which case was booked against
him after the Task Force raided his premises and detected 70 illicit liquor
sachets, each containing 100 milli liters.  The criminal Court concerned has
released him on bail in the said case.  The Government Chemical Examiner, who
analyzed the sample, declared it as 'illicitly distilled liquor', which is unfit
for potable purposes.  The detenu was again booked in Crime No.396 of 2011/12
registered on 25-10-2011, after another raid on his premises resulted in
detecting 106 illicit liquor sachets, each containing 100 milli liters.  Even in
this case, he was enlarged on bail later on.  The Government Chemical Examiner
filed his report disclosing that the material is illicitly distilled liquor and
the same is unfit for human consumption.  Again, on 02-11-2011, another raid on
the premises of the detenu has helped in detecting 100 illicitly distilled
liquor sachets, each containing 100 milli liters.  He was released on bail in
this case also.  On 04-03-2013, again, the Enforcement Directorate, when raided
the premises of the detenu, it resulted in detecting 170 illicit liquor sachets,
each containing 100 milli liters.  Similarly, cases were booked against him on
15-05-2013 and 28-05-2013.  The detenu was again enlarged on bail by the
criminal Court concerned.  It appears that when the Detaining Authority sought
for the opinion of the Professor of Medicine & Chief Physician, Osmania General
Hospital, Hyderabad, he has pointed out the ill-effects of consumption of
illicit liquor on the health of the consumers.  The Detaining Authority, after
considering this material, had formed an opinion that the detenu was engaged in
preparation and sale of illicitly distilled liquor, which would have adverse
effect in maintenance of public order and also is a source for grave and
wide-spread danger to the public health.  Therefore, the Detaining Authority is
satisfied that the Provisions of the Andhra Pradesh Prevention of Dangerous
Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic
Offenders and Land Grabbers Act, 1986 (henceforth referred to as 'the Act'),
should be invoked and he should be detained in custody.  The Detaining Authority
has formed his opinion, based upon subjective satisfaction of the factors spelt
out by him in the following manner:
"       It is imperative to prevent you from acting in any manner prejudicial to
maintenance of Public Order, but I feel that recourse to normal law would
involve considerable time and may not be effective deterrent in preventing you
from indulging in further activities prejudicial to maintenance of public order
in and around Janardhanreddy nagar of Jillellaguda, Saroornagar Rangareddy
District under Excise Station limits of Saroornagar, Rangareddy District."

        It appears that the State Government had accorded its approval to the said
Detention Order, in terms of sub-section (3) of Section 3 of the said Act.
Subsequently, the Advisory Board on Preventive Detentions, constituted under
Section 9 of the said Act, reviewed the case of the detenu on 11-10-2013 and
tendered an opinion that there is sufficient cause for the preventive detention
of the detenu.  Thus, these orders have given rise to the present Writ Petition.
        Heard Sri M. Laxman Rao, learned counsel for the petitioner and Sri Y.V.
Vivekananda, learned Special Government Pleader attached to the learned Advocate
General for the respondents.
        Sri Laxman Rao, learned counsel for the petitioner would urge that in
exactly identical fact situation prevailing in MUNAGALA YADAMMA v. THE STATE OF  
ANDHRA PRADESH AND OTHERS1, the Supreme Court, after considering the earlier      
Judgments rendered by it in G. REDDELAH v. THE GOVERNMENT OF ANDHRA PRADESH AND              
ANOTHER2 and REKHA v. STATE OF TAMIL NADU AND OTHER3, had come to the conclusion            
that where the offences complained of against the detenu are liable to be tried
by the ordinary law of the land, the preventive detention shall not be resorted
to by the State.  He, therefore, submits that the present case is squarely
covered by the ratio laid down by the Supreme Court in MUNAGALA YADAMMA's case    
cited (1) supra.
        Per contra, Sri Vivekanda, learned Special Government Pleader appearing
for the respondents, would submit that a close look at the Provisions of the Act
in question will clearly bring out a distinction in the instant case.  According
to him, Section 2(a) of the Act defined the expressions "Acting in any manner
prejudicial to the maintenance of public order" in the following words:
"2(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."

Based thereon, Sri Vivekananda would contend that a habitual offender, who has
taken to bootlegging activities, is liable to be detained so as to prevent him
from engaging in future or making preparations for engaging in any such
bootlegging activity, which would be prejudicial to the maintenance of public
order.  Therefore, the exercise of power by the Detaining Authority in terms of
and in accordance with Section 3 of the Act cannot be taken exception to.  Sri
Vivekananda would further contend that when this distinction is kept in view,
the Judgment of the Supreme Court in MUNAGALA YADAMMA's case, is clearly    
distinguishable.
        It would be essential to notice that the Supreme Court in HARADHAN SAHA,
MADAN LAL AGARWALA v. STATE OF WEST BENGAL4, has crisply drawn the distinction          
between the preventive detention and criminal prosecution, in the following
manner:
"The essential concept of preventive detention is that detention of a person is
not to punish him for something has done, but to prevent him from doing it."


In view of this principle, the Preventive Detention Order passed by the
Detaining Authority has got to be judged on the touchstone of its
sustainability, but however, it should also be kept in view that a three-Judge
Bench of the Supreme Court in REKHA's case cited (3) supra, after exhaustively
reviewing the earlier Judgments rendered by it, had held in para 32 that, the
view expressed by it earlier in HARADHAN's case cited (4) supra, does not mean
that it was laid down that in all cases the authorities can take recourse to
both criminal proceedings as well as the preventive detention, even though, in
the view of the Court, the former is sufficient to deal with the situation.
Thus, the principle enunciated by the Constitution Bench in HARADHAN's case has
been explained in REKHA's case.  In REKHA's case, it was clearly held that the
right to liberty guaranteed by our Constitution by Article 21 means that, before
sending a person to a prison, a trial must ordinarily be held giving him an
opportunity of placing his defense through a lawyer.  It should also be noted
that the Three-Judge Bench of the Supreme Court had an occasion to consider the
principle relating to the proximate live link to the preventive detention and
the antecedent activities concerned.  In YUMMAN ONGBI LEMBI LEIMA v. STATE OF      
MANIPUR AND OTHERS 5, in para 27, the principle that should be observed by  
Courts has been crystallized in the following manner:
"As has been observed in various cases of similar nature by this Court, the
personal liberty of an individual is the most precious and prized right
guaranteed under the Constitution in Part III thereof.  The State has been
granted the power to curb such rights under criminal laws as also under the laws
of preventive detention, which, therefore, are required to be exercised with due
caution as well as upon a proper appreciation of the facts as to whether such
acts are in any way prejudicial to the interest and the scrutiny of the State
and its citizens, or seek to disturb public law and order, warranting the
issuance of such an order.  An individual incident of an offence under the Penal
Code, however heinous, is sufficient to make out a case for issuance of an order
of preventive detention."

In this context, the Supreme Court in MUNAGALA YADAMMA's case cited (1) supra,  
after noticing Judgments in REKHA's case and YUMMAN ONGBI's case, has held as    
under:
"10. Having considered the submissions made on behalf of the respective parties,
we are unable to accept the submissions made on behalf of the State in view of
the fact that the decision in Rekha's case (supra), in our view, clearly covers
the facts of this case as well.  The offences complained of against the
appellant are of a nature which can be dealt with under the ordinary law of the
land.  Taking recourse to the provisions of preventive detention is contrary to
the constitutional guarantees enshrined in Articles 19 and 21 of the
Constitution and sufficient grounds have to be made out by the detaining
authorities to invoke such provisions.  In fact, recently, in Criminal Appeal
No.26 of 2012, Ymman Ongbi Lembi Leima Vs. State of Manipur & Ors., we had  
occasion to consider the same issue and the three-Judge Bench had held that the
personal liberty of an individual is the most precious and prized right
guaranteed under the Constitution in Part III thereof.  The State has been
granted the power to curb such rights under criminal laws, as also under the
laws of preventive detention, which, therefore, are required to be exercised
with due caution as well as upon a proper appreciation of the facts as to
whether such acts are in any way prejudicial to the interest and the security of
the State and its citizens, or seek to disturb public law and order, warranting
the issuance of such an order.

11. No doubt, the offences alleged to have been committed by the appellant are
such as to attract punishment under the Andhra Pradesh Prohibition Act, but that
in our view has to be done under the said laws and taking recourse to preventive
detention laws would not be warranted.  Preventive detention involves detaining
of a person without trial in order to prevent him / her from committing certain
types of offences.  But such detention cannot be made a substitute for the
ordinary law and absolve the investigating authorities of their normal functions
of investigating crimes which the detenue may have committed.  After all,
preventive detention in most cases is for a year only and cannot be used as an
instrument to keep a person in perpetual custody without trial.  Accordingly,
while following the three-Judge Bench decision in Rekha's case (supra), we allow
the appeal and set aside the order passed by the High Court dated 20th July,
2011, and also quash the Detention Order dated 15th February, 2011, issue by the
Collector and District Magistrate, Ranga Reddy District, Andhra Pradesh."

The principle is, if an earlier Judgment of the Supreme Court has been
understood by subsequent Judgments of the Supreme Court in a particular manner
and the principle is also explained, that becomes the legal principle that
should be followed by all inferior Courts and Tribunals.  In view of the
principle enunciated in REKHA's case and YUMMAN ONGBI's case and followed in  
MUNAGALA's case, it emerges that so long as the ordinary criminal law is
adequate to deal with the offences said to have been indulged in by a detenu,
then, using the power of preventive detention without subjecting the detenu to
the procedure of free and fair trial does not fit into the constitutional scheme
of guaranteed liberty.
        Hence, I am of the opinion that the periodical involvement of the detenu
in various excise offences at regular interval, which have been chronicled in
the Detention Order do not lend sufficient support for the Detaining Authority
to pass a Preventive Detention Order against the husband of the petitioner.  The
contention canvassed by Sri Vivekananda has, in fact, been effectively answered
by the Supreme Court in REKHA's case and that was the reason why in MUNAGALA's      
case, the Supreme Court has held that preventive detention is not the measure
that should be applied merely because several cases have been registered against
the detenu earlier.  I am bound, in law and on principle, by the ratio laid down
in REKHA's case and MUNAGALA's case.     
        Accordingly, the Writ Petition stands allowed at the admission stage, but
however, without costs and the detenu shall be set at liberty forthwith.
Consequently, the miscellaneous petitions, if any, shall stand disposed of.

____________________________    
NOOTY RAMAMOHANA RAO, J.