IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SIXTEENTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 1946 of 2008 Between: Nunavath Chunubai W/o.Banthi Laxmapur Tanda, Jakranpally Mandal Nizamabad District ..... PETITIONER AND 1 The Government of Andhra Pradesh, rep.by its Chief Secretary General Administration (Law and Order II) Department, Secretariat, Hyderabad 2 The District Collector & Executive Magistrate, Nizamabad District 3 The Deputy Commissioner (Proh & Excise), Nizamabad , Nizamabad District .....RESPONDENT(S) Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue an appropriate writ order or direction more particularly one in the nature of writ of Habeas corpus declaring the order in Rc.No.E2/636/2007 dated 20.12.2007 of detention passed by the second respondent and the consequential G.O.Rt.No.7827 dated 31.12.2007 issued by the first respondent confirming the detention as illegal, arbitrary, and violative of Article 21& 22(5) of the Constitution of India and consequently set at liberty and release the detainee i.e. Nunavath Banti @ Bansis, S/o. Ramulu Counsel for the Petitioner: MR.V. RAGHUNATH Counsel for the Respondents: THE ADVOCATE GENERAL The Court made the following : ORDER: (per Sri A. Gopal Reddy, J) The petitioner Nunavath Chunubai is challenging in this writ petition the order dated 20-12-2007 passed by the District Collector and Executive Magistrate, Nizamabad District, the 2nd respondent herein in R.C No.E2/636/2007 by which Nunavath Banti @ Bansis, son of Ramulu, the husband of the petitioner was detained under Section 3 (2) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short, ‘the Act’) with a view to prevent him from further acting in a manner prejudicial to the public order, for a period of three months. The State approved the said order under sub-section (3) of Section 3 of the Act in G.O.Rt.No.7827, dated 31-12-2007. The matter was placed before the Advisory Board 21-01-2008 and the Advisory Board after reviewing the case gave its opinion that “there is sufficient cause for the detention of the detenu, Sri Nunavath Banthi @ Bansi, S/o Ramulu.” On receipt of report from the Advisory Board, the Government in G.O. Rt No.487, dated 30-01-2008 confirmed the order of detention and directed that he be continued in detention for a period of 12 months from the date of detention. The grounds of detention disclose that the detenu was arrested in connection with COR No.629/2005-06, which was registered on 26- 10-2005 on the file of Station House Officer, Armoor under Sections 7(A) and 8(e) of the Andhra Pradesh Prohibition Act, 1995 (for short, ‘the 1995 Act’) on the raid party seizing 7.5 litres of ID liquor which was found to be in illegal transportation by the detenu. When he was produced before the Judicial First Class Magistrate, Armoor for remand, he was released on bail and the samples which were drawn were sent to the Chemical Examiner, Regional Prohibition and Excise Laboratory, Nizamabad, who gave his opinion that the same is ‘illicit distilled liquor containing acidity, fusel oil and other allied impurities’. After investigation, charge sheet is filed against the detenu and the same is pending in C.C No. 262 of 2006 on the file of the learned Judicial First Class Magistrate, Armoor. COR No.266/2006-07 was registered on 29-07-2006 by the Station House Officer, Armoor while the detenu was transporting 50 litres of ID liquor on a scooter and when he was produced before the learned Judicial First Class Magitrate, Armoor, he was released on bail. The samples were sent to the Chemical Examiner, Regional Prohibition and Excise Laboratory, Nizamabad, who opined that the sample is ‘illicit distilled liquor containing acidity, fusel oil and other allied impurities’. COR No. 629/2006-07 was registered under Sections 7 (A) and (e) of the 1995 Act on 16-11-2006 by the Station House Officer, Armoor while the detenu was transporting 51 litres of ID liquor on a scooter. The Chemical Examiner’s report dated 23-11-2006 discloses that the sample is ‘illicit distilled liquor containing acidity, fusel oil and other allied impurities and unfit for potable purpose’. Lastly, a case in COR No.587/2007-08 was registered on 28-11-2007 for the offence under Sections 7 (A) and (e) of the 1995 Act while the detenu was found transporting illegally 80 litres of ID liquor. The samples which were drawn were sent to the Chemical Examiner who opined that ‘the sample is illicit distilled liquor containing acidity, fusel oil and other allied impurities. It is injurious to health and unfit for human consumption’. In view of continuous indulgence of the detenu in transportation of the illicit distilled liquor, to prevent his bootlegging activities, he was detained under Sections 3(1) and 3(2) of the Act. The period of three months time mentioned in the detention order was deleted and substituted as ‘until further orders from the Government’ by the District Collector, the 2nd respondent herein on 28-12-2007. The same has been approved by the Government. Sri V. Raghunath, learned counsel for the petitioners contends that there is nothing on record to show that the alleged detenu was indulging in large scale distribution of illicit distilled liquor. In all the four cases, he was found in possession of small quantities of the distilled liquor. The object of the Act is to order detention of bootleggers and prevent their dangerous activities which are prejudicial to the maintenance of public order where they are indulging in large scale activities. In the absence of any allegation that the detenu is organizing the supply of illicit distilled liquor, the detention order is violative of Article 21 of the Constitution of India and the same is liable to be set aside. The first crime which was registered in the year 2005 is not within the proximity of the other three crimes which have become stale and, therefore, the same cannot be taken into consideration. In support of his submissions, he placed reliance placed on the judgments in Rashidmiya and Chhava Ahmedmiya Shaik v. Police Commissioner, Ahmedabad and another[1] and S. Jayamma v. Collector and District Magistrate, Cuddapah[2]. Learned Government Pleader representing the learned Advocate General contends that in all the first three crimes charge sheets were filed and the detenu was enlarged on bail. All the relevant material has been made available to the detenu and he was given an opportunity by the Advisory Board. The detaining authority satisfied that the acts of the detenu are prejudicial to the maintenance of public order and, therefore, the detention order passed by the Collector and District Magistrate does not suffer from any illegality and the same cannot be judicially reviewed. She also placed reliance on the judgments in Doddi Sharada v. Collector and District Magistrate[3], the Collector and District Magistrate, W.G. Dist. Eluru, Andhra Pradesh and others vs. Sangala Kondamma[4] and District Collector v. V. Laxmanna[5]. In view of the rival submissions, the only point which arises for consideration in this writ petition is whether the detention order passed by the detaining authority and confirmed by the Government in G.O.Rt.No. 7827 dated 31-12-2007 is liable to the set aside. To consider whether the acts of the detenu can be said to be in any manner prejudicial to the maintenance of public order, it is necessary to have a glance over the provisions of the Act. Section 2(a) of the Act, defines “acting in any manner prejudicial to the maintenance of public order” in these terms: (a) "acting in any manner prejudicial to the maintenance of public order" means when a bootlegger, 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; Section 2(b) defines bootlegger in these terms: (b) "bootlegger" 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 by himself or through any other person, or who abets in any other manner the doing of any such thing. Section 3 confers power to make orders detaining certain persons, which reads thus: (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: 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. In Rashidmiya and Chhava Ahmedmiya Shaik’s case (1 supra), the Supreme Court while dealing with the provisions of the Gujarat Prevention of Anti-Social Activities Act (16 of 1985) held that solitary incident is not sufficient to conclude that detenu was habitually committing offences or attempting or abetting commission of offences and the offences registered in the four cases against the detenu on the ground that he was dealing in liquor have no bearing on the question of maintenance of public order in the absence of any other material that those activities of the detenu have adversely affected the maintenance of public order and accordingly, set aside the detention order and ordered that the detenu shall be set at liberty forthwith. In S. Jayamma’s case (2 supra), a Full Bench of this Court held thus: “The relevancy and proximity of time are sine qua non-for successfully sustaining the order of detention. No hard and fast rule can be fixed and each case has to be decided on its own merits. The Supreme Court considered gap of sixteen months between the offending acts and the detention order and set aside the order of detention holding that the order of detention was based on stale incidents. Therefore, the proximity in time should provide a rational nexus between the incident relied on and the satisfaction arrived at. While there is no prohibition to consider the past events, at the same time, there should be continuous link of events coupled with proximity of time. Under these circumstances only the order of detention would be immune from attack. Accordingly, we answer the reference as follows: While there is no specific bar for the detaining authority to refer to the past events, but at the same time such events should have a close and continuous link and proximity so as to provide a rational nexus between the incidents relied on and the satisfaction arrived at” In Sangala Kondamma’s case (4 supra), the facts are that this Court set-aside the detention order passed by the District Collector made under Section 3(1)(2) r/w Section 2(a) and (b) of the Act 1 of 1986, which was approved by the State Government confirming the detention of the detenue for a period of 12 months from the date of detention i.e. from 15-01-2003 after considering the opinion of the Advisory Board, holding that two of the grounds of detention out of five were stale grounds and since the said two stale grounds could not be separated from the other grounds, the satisfaction of the detaining authority got vitiated, therefore, the order of detention cannot be sustained. On further appeal, the Supreme Court while upholding the validity of detention order and setting aside the order of the High Court held that it is not necessary for the detenu to be re-arrested to serve out the rest of the period of detention as he was taken into custody on 15- 01-2003 and was released from detention pursuant to the order of the High Court on 28-04-2003. While upholding the detention order, the Supreme Court observed as under: “… if the facts placed before the detaining authority are proximate to each other and the last of the fact mentioned in proximate to the order of detention then the early incidents cannot be treated as stale and detention order cannot be set aside. In the instant case, it is seen that between the period from 10-1-2001 and 25-10-2002 the detenue was involved in five incidents of bootlegging which are reasonably proximate to each other and the last of the incidents being proximate to the order of detention, we think the High Court was not justified in treating the two incidents of 17-1-2000 and 10-1-2001 as stale by taking them in isolation. In our opinion, the court should have considered the proximity of the incidents between themselves which indicates the possibility of the proposed detenue continuing to indulge in the illegal activities which requires his preventive detention. In the present case, as noticed above, the five incidents recorded in the order of detention being proximate enough to each other shows the continuity of the acts of the detenue. In such a fact situation, we think the High Court erred in coming to the conclusion that two of the five grounds being not proximate to the order of detention and the order of detention was base on stale grounds. While it can be stated that the incidents of 17-1-2000 and 10-1- 2001 could not by themselves have been sufficient grounds to detain the detenue but would certainly become a relevant material along with other three grounds dated 3-2-2002, 6-10- 2002 and 25-10-2002 to come to the conclusion that there is a need for detaining the detenue to prevent him from indulging a similar activities in the future.” In view of the law declared by the Supreme Court in Sangala Kondamma’s case (4 supra) wherein the Supreme Court has not approved the reasoning adopted by this Court that if the earlier incident becomes stale, the entire detention order becomes vitiated. The Supreme Court in Harpreet Kaur V. State of Maharashtra[6] while considering the identical provision of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 held that “Public Order” or “Law and Order” are two different and distinct concepts and there is abundance of authority of this Court drawing a clear distinction between the two, with a view to determining the validity or otherwise of the order of detention, it would be necessary to notice the difference between the two concepts. After referring to the various judgments rendered by it, the Supreme Court held as under: “The explanation to S. 2(a) (supra) brings into effect a legal fiction as to the adverse effect on 'public order'. It provides that if any of the activities of a person referred to in clauses (i)-(iii) of Section 2(a) directly or indirectly causes or is calculated to cause any harm, danger or alarm or a feeling of insecurity among the general pubic or any Section thereof or a grave or a wide-spread danger to life or public health, then public order shall be deemed to have been adversely affected. Thus, it is the fall out of the activity of the "bootlegger" which determines whether public order' has been affected within the meaning of this deeming provision or not. This legislative intent has to be kept in view while dealing with detentions under the Act.” A Full Bench of this Court in Doddi Sharada v. Collector and District Magistrate, Hyderabad[7] after referring various judgments held as under: “ … it is clear that what is necessary for the District Magistrate for arriving at a subjective satisfaction on the basis of the material before him is that the activities of the person are prejudicial to maintenance of public order. In terms of explanation to Section 2 (a) public order would also mean a danger to public health and if the Public Analyst, on a seized sample, was of the opinion that it is not potable or was not fit for human consumption, that in our view, is relevant material for the purpose of arriving at subjective satisfaction. In our view, it is not necessary that the percentages of different constituents of the sample should be mentioned by the Public Analyst. Even if a Public Analyst gives the composition of all the ingredients of the sample without mentioning whether the sample was fit for human consumption or not, it may not be possible for the District Magistrate to know as to whether the sample was injurious to health or not. Basically, it is the opinion of the Public Analyst, which is paramount in determining whether the liquor that was being sold, stored or manufactured, would cause danger to public health.” In the light of the aforementioned law, if we consider the grounds of detention and the relevant material which was placed before the detaining authority viz., the chemical examiner’s reports in all the four cases, it is clear that the samples which were drawn while transporting the illicit distilled liquor contains acidity, fusel oil and other allied impurities etc., which is injurious to health and unfit for human consumption. In all the four cases, when the detenu was produced before the Magistrate, he was released on bail. Therefore, the detaining authority arrived at a subjective satisfaction that registering the cases under the 1995 Act and producing the detenu before the Magistrate will not have the desired result of preventing him from the activities of bootlegging which is prejudicial to the maintenance of public order and, therefore, he was ordered to be detained. The satisfaction was not on a single stale incident. Not only COR No. 629/2005-06, dated 26-10-2005 was registered, but also three more crimes were registered against the detenu for his possession of illicit distilled liquor. In view of the subjective satisfaction reached by the District Collector with whom the powers were delegated by the State Government under Section 3 (2) of the Act, it is necessary to prevent the detenu from further acting in any manner prejudicial to the maintenance of public order affecting public health and peace in the locality in and around Armoor Town and consumption of the illicit distilled liquor will cause wide spread danger to the public health and is prejudicial to the maintenance of public order. Therefore, the impugned order does not suffer from any infirmity or non-application of mind warranting interference by this Court. Further, the Advisory Board reviewed the case of the detenu and gave its opinion that there is sufficient cause for detention of the detenu and after hearing the detenue and considering the entire record, the Government has also affirmed the same. In view of the same, we do not find any merit in any of the submissions made by the learned counsel for the petitioner. The writ petition fails and it is accordingly dismissed. A.GOPAL REDDY, J B.SESHASAYANA REDDY, J 16-04-2008 ks …….... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Government of Andhra Pradesh, rep.by its Chief Secretary General Administration (Law and Order II) Department, Secretariat, Hyderabad 2 The District Collector & Executive Magistrate, Nizamabad District 3 The Deputy Commissioner (Proh & Excise), Nizamabad , Nizamabad District 4 2 CCs to the Advocate General, High Court of Andhra Pradesh, Hyderabad (OUT). 5 2 CD copies. [1] AIR 1989 SC 1703 [2] 2004 (3) ALD 458. [3] 2005 (2) ALT 244 [4] 2005 (3) SCC 666 [5] 2005 (3) SCC 663 [6] AIR 1992 SC 979 = (1992) 2 SCC 177 [7] 2005 Crl.L.J.1916 (FB)