* HONOURABLE SRI JUSTICE A.GOPAL REDDY AND HONOURABLE SRI JUSTICE RAJA ELANGO + WRIT PETITION No. 11238 of 2011 %Dated 29-09-2011 # 1. Kattuboina Siva @ Kattimeni Siva, S/o.Venkata Rao ..... PETITIONER VERSUS $ 1. The Collector & District Magistrate, East Godavari District, Kakinada. 2. The Chief Secretary, Government of Andhra Pradesh, Hyderabad. 3. The Superintendent, Cnetral Jail, Rajahmundry. .… RESPONDENTS ! Counsel for Petitioner : SRI C.PRAVEEN KUMAR ^ Counsel for Respondents : The Advocate General Cases. < GIST : > HEAD NOTE : ? Cases referred : --- 1. 2005(2) ALT 244 (F.B.) 2. 2006(3) SCC 321 3. 2005(3) SCC 666 4. AIR 1992 SC 979 5. AIR 1990 SC 225 6. AIR 1975 XSC 1517=1975 Crl.L.J.1328 7. (1990)3 SCC 15 8. 1992 Cri.L.J.2924=(1992)1 SCC 434 HONOURABLE SRI JUSTICE A.GOPAL REDDY AND HONOURABLE SRI JUSTICE RAJA ELANGO WRIT PETITION No. 11238 of 2011 Between: Kattuboina Siva @ Kattimeni Siva …. Petitioner and The Collector & District Magistrate, Kakinada and others …. Respondents This court made the following: HONOURABLE SRI JUSTICE A.GOPAL REDDY AND HONOURABLE SRI JUSTICE RAJA ELANGO WRIT PETITION No.11238 of 2011 ORDER :- (per AGR, J) The Collector & District Magistrate, Kakinada, (for short, “the detaining authority”) in exercise of powers conferred on him under Section 3(1) read with 3(2) of the 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), in Proceedings No.C1/M/123/2011, dated 07.02.2011, directed the detention of Kattubooina Siva @ Kattimeni Siva, (hereinafter referred to as “the detenu”), with a view to prevent him from acting in a manner prejudicial to the maintenance of public order. The detention order, dated 07.02.2011, as approved by the Government of Andhra Pradesh in G.O.Rt.No.703, General Administration (L&O.II) Department, dated 17.02.2011, and as confirmed by the Government in G.O.Rt.No.1134, General Administration, (Law & Order.II) Department, dated 15.03.2011, is challenged by the father of detenu by means of present writ petition praying for issuance of a writ of ‘Habeas Corpus’ to release his son, i.e., the detenu from detention. 2. Before we proceed to consider the contentions raised in the writ petition, we may profitably refer to factual allegations made in the grounds of detention so far they are relevant for our present purposes. 3. Briefly stated the alleged activities of the detenu as set out in the grounds of detention, dated 07.02.2011, are that prior to the detention, the alleged detenu was arrested in the following cases booked by the Prohibition and Excise Officials of Rajahmundry. 1. Cr.No.242/10-11, dated 01.06.2010 of Prohibition and Excise Station, Rajahmundry, the alleged detenu was found in preparation of 1000 litres of Fermented Jaggery wash (F.J.Wash), which is fit for distillation of I.D.liquor. 2. Cr.No.294/2010-11, dated 18.06.2010 of Prohibition and Excise Station, Rajahmundry the alleged detenu was found in possession of 35 litres of I.D.Liquor. 3. Cr.No.535/10-11, dated 08.08.2010, of Prohibition and Excise Station, Rajahmundry, the alleged detenu and his father were found in possession of 1000 litres of Fermented Jaggery Wash. 4. Out of the above referred cases, the detenu was found to be in possession of F.J.wash in two cases, which is fit for distillation of Illicitly Distilled liquor (I.D. liquor), in contravention of the provisions of the A.P.Prohibition Act, 1995 and in crime No.294/2010-11, dated 18.06.2010, he was found in possession of 35 litres of I.D.Liquor. In all the cases, contraband was seized and samples were drawn and sent for chemical analysis. As per the Chemical Analysts’ reports, it was found that F.J.wash fit for distillation of I.D.liquor contains Fusel oil and Acids etc., and in case of I.D.Liquor, it was found illicitly distilled liquor injurious to health and unfit for human consumption. 5. In all the above cases, the detenu was arrested and produced before the Court. As the detenu was continuously involving in the bootlegging activities i.e., possessing, preparing, storing and sale of I.D.liquor for money gain in Rajahmundry, which is unfit for human consumption, and as it will adversely affect the public health, the sponsoring authority that is Prohibition and Excise Inspector, ESTF, Rajahmundry, placed all the material before the Collector and District Magistrate, East Godavari District. The Collector and District Magistrate, East Godavari District in exercise of the powers vested in him under sub-sections (1) and (2) of Section 3 of the Act 1/1986 ordered for his detention until further orders and be lodged in Central Prison, Rajahmundry, by the impugned order. The Government issued G.O.Rt.No.703, General Administration (Law & Order) Department, dated 17.02.2011, in exercise of the powers under sub-Section (3) of Section 3 of the Act 1/1986, accorded approval to the order of detention passed by the Collector. Thereafter, the Government referred the matter to the Advisory Board constituted under Section 9 of the Act 1/1986, which, after hearing the detenu, the Investigating Officers and after perusing the connected records made available to it, opined that there is sufficient cause for the detention of the detenu, Kattuboina Siva @ Kattimeni Siva. The Government after taking into consideration the report of the Advisory Board and the material available on record, in exercise of the powers conferred under sub- section (1) of Section 12 r/w 13 of the Act 1/1986, through G.O.Rt.No.1134, General Administration (Law & Order.II) Department, dated 15.03.2011, confirmed the order of detention and directed that the detention of the detenu be continued for a period of 12 months from the date of his detention i.e. 08.02.2011. Hence this writ of Habeas Corpus has been filed by the father of the alleged detenu contending that the detenu was surrendered before the Court on 20.08.2010 and then he was released on bail and thereafter no incident took place till 07.02.2011 i.e., the day on which the order of detention was passed; that if really the detenu was present at the time of alleged incidents, there is no reason why he was not arrested for nearly three months; that as per the record the detenu himself surrendered before the Court on 20.08.2010; that after the accused surrendered before the Court on 20.08.2010, he was released on bail on executing a bond for Rs.2,000/- with one surety for a like sum and certain conditions were imposed. The material supplied to the detenu along with the grounds indicates that the said order was passed in Crime No.242/2010-11. The papers, which are placed before the detaining authority, does not contain that portion of the order, which imposed the condition; that in respect of incidents 1 and 3 referred to in the grounds of detention, the substance alleged to have been seized is F.J.wash. Neither the grounds of detention nor the analysts’ report reveals that the said wash is unfit for human consumption nor injurious to health; that there is no material to show that the detenu was either manufacturing I.D.liquor or was indulging in transport of F.J.wash for the purpose of making I.D.liquor. Therefore, he prayed for setting aside the detention order. 6. A detailed counter affidavit has been filed by the Collector and District Magistrate reproducing the order of detention and the grounds of detention, stating that upon perusing the material placed before him, by the sponsoring authority, he was satisfied that the detenu shall be prevented from further indulging into similar offences in future and thereby he passed the order of detention, by serving the detention order as well as the grounds of detention and material relied upon for passing the detention order in English and Vernacular language i.e., Telugu and duly informing that he has a right to make a representation to the detaining authority and Advisory Board and thus the constitutional and statutory mandate has been complied with. At the time of taking the detenu into custody, the order of detention and the grounds of detention were served on him to enable him to make an effective representation to the Detaining Authority, Chief Secretary to Government and Advisory Board. It is further submitted that the Government issued G.O.Rt.No.703, General Administration (Law & Order.II) Department, dated 17.02.2011, approving the order of detention. It is further submitted that all the bail applications and the bail orders were placed before the detenu and the detenu has acknowledged the receipt of the same. As the detenu was caught while he was in possession of F.J.Wash, which is useful for distillation of I.D.liquor, and also in possession of I.D.liquor, it cannot be said that he is not involved in bootlegging activities and that there is no material to show that the detenu was either manufacturing I.D.liquor or was indulging in transport of F.J.wash for the purpose of making I.D.liquor. 7. Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the petitioner contends that out of the three incidents, the last incident is on 08.08.2010 and the report of the chemical examiner clearly discloses that the F.J.wash was fit for distillation of I.D.liquor. In the absence of any whisper in the grounds that the wash is likely to be used for distillation and fermented wash itself is not an intoxicant, he cannot be termed as a bootlegger to detain under the provisions of the Act. The bail orders passed by the Magistrate in Crl.M.P.No.3165 of 2010, dated 20.08.2010, were not placed before the detaining authority and the same is also not communicated to the petitioner as no attestation at the last page of the order is obtained from the detenu. Therefore, the same amounts to total non-application of the mind by the detaining authority. Two of the grounds mentioned out of the three i.e., F.J.wash was found in the garden belongs to the detenu’s father are irrelevant grounds. Then remains only one crime where the detenu was found in possession of the I.D.liquor. Therefore, the detention is liable to be set aside. In support of the same, reliance is placed on Doddi Sharada v. Collector and District Magistrate[1]. He further contends that once the bail order contains the conditions that the detenu have to attend before concerned S.H.O. from 10:00 AM to 12:00 Noon on every Sunday for two months, the same has not been taken into consideration by the detaining authority. In support of the same, reliance is placed on Sunila Jain v. Union of India and another[2]. 8. Smt.Mohana Reddy, learned Government Pleader contends that a person who indulges in manufacturing of I.D.Liquors also comes under the definition of Bootlegger, since the F.J.wash is fit for distillation of I.D.liquor. Therefore, the detaining authority taking into consideration of the same, passed the detention order. In support of the same, reliance is placed on Collector & District Magistrate v. Sangala Kondamma[3]. 9. In view of the above rival submissions, the points that cropped up for consideration are:- 1) Whether the two grounds mentioned with regard to the possession of F.J.Wash, fit for distillation are irrelevant to vitiate the detention order? 2) The unexplained delay between the date of last offence and the order of detention when the detenu was on bail, will vitiate for non application of mind in ordering the detention or not? 10. Before we proceed to answer the points, it is appropriate to refer to the definitions of ‘acting in any manner prejudicial to the maintenance of public order’ and ‘boot-legger’, which are defined in Section 2(a) & (b) of the Act 1 of 1986, as follows:- “Sec.2(a):- ‘acting in any manner prejudicial to the maintenance of public order’ means when a boot-legger, a dacoit, 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.” “Sec.2(b):- ‘boot-legger’ 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 ny 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 ny other manner the doing of any such thing;” 11. This Court in number of judgments held that the activities of detenu 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 made thereunder, which affect adversely or is likely to affect adversely to the maintenance of public order, are prejudicial to the maintenance of public order. POINT No.1:- 13. In crime No.242/10-11, dated 01.06.2010, when the excise officials visited the cashew garden belonging to the detenu’s father, the detenu was found stirring something with his right hand in a plastic drum and on seeing the excise officials he absconded from the scene of offence and thereafter excise officials found five plastic drums with F.J.Wash, each drum containing 200 litres of F.J.Wash, equivalent to 1000 litres, fit for distillation of I.D.Liquor. Similarly in crime No.535/2010-11, dated 08.08.2010, when the excise officials proceeded to the cashew garden, the detenu and his father were doing something at the Hearth. On seeing them both of them absconded and found 1000 litres of F.J.Wash fit for distillation. Whereas in Crime No.294/2010-11, dated 18.06.2010, the detenu was found to be in possession of 35 litres of I.D.liquor. Admittedly, when the samples of F.J.Wash seized by the excise officials were sent for analysis, it was found that the F.J.Wash fit for distillation contains fusel oil and acids etc., which are injurious to health. 14. Explanation of Section 2(a) makes it clear that 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. The legislative intent has to be kept in view while dealing with detention under the Act, as held by the Supreme Court in Harpreet Kaur v. State of Maharashtra[4]. Therefore, the submission made by the learned Senior Counsel that in the absence of any whisper that the samples, where the F.J.Wash was seized, is not fit for human consumption or injurious to health, the detenu cannot be termed as a boot-legger or that his activities are in any manner prejudicial to the maintenance of public order, does not command acceptance. It is needless to say that any 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 made thereunder, and supplies any other material whatsoever in furtherance or in support of doing of any of the above mentioned things, by himself or through any other person or who abets in any other manner for doing of any such thing, is termed as a boot-legger and his activities are prejudicial to the maintenance of public order. Therefore, point No.1 is answered against the petitioner. POINT No.2:- 15. The last such incident mentioned in the detention order is dated 08.08.2010, whereunder the detenu along with his father were found doing something at the hearth and on seeing the excise officials, they absconded from the scene of offence, where 1000 litres of F.J.Wash fit for distillation of I.D.Liquor was found in the garden belonging to the detenu’s father. On registering the crimes, the detenu who surrendered before the Judicial First Class Magistrate in Crime No.242/2010-11 obtained bail on 20.08.2010 on condition of his depositing the amount specified in the bail order with one surety for the likesum on condition that the detenu attends before the concerned S.H.O. from 10:00 A.M. to 12 Noon on every Sunday for two months and accordingly, the application is allowed. Thereafter by a docket order, dated 03.09.2010, the petition filed by the detenu to accept his surrender before the Court, was allowed and he was directed to appear before the Court after receipt of summons, whereas in crime No.294/2010-11, by order dated 01.06.2010, the detenu was ordered to be released on bail on his executing a bond for a sum of Rs.5,000/- with one surety for the likesum. No incident, which resulted in registering a crime in the similar offences, has been noticed from the said date till the date of the detention order i.e., for a period of six months. 16. In T.A.ABDUL RAHMAN V. STATE OF KERALA[5], the Supreme Court summarized the delay in passing detention order and also execution of detention order in paragraphs 11 and 12. We are only concerned with the delay in execution of the detention order. The Supreme Court while considering the question when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, held that such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner. After considering the facts of the case, the Supreme Court while observing that the detaining authority has attempted to explain the laxity that has occasioned in passing the impugned order, but miserably failed in explaining the delay of three months in securing the arrest of the detenu from the date of the passing of the order, and keeps stunned silence on that score held that non explanation of the delay in execution throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority vitiating the validity of the order of detention. 17. In Sk.SERAJUL V. STATE OF W.B.[6], the Supreme Court held that “if there is any delay in making the order of detention or in arresting the detenu which is prima facie unreasonable, the State must give reasons explaining the delay. Here there is no explanation for the delay which has occurred at both stages and in the absence of such explanation, we are not at all satisfied that the District Magistrate, Burdwan applied his mind and arrived at a real and genuine subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner. The condition precedent for the making of the order of detention was, therefore, not satisfied, and consequently the order of detention must be quashed and set aside.” 18. In ABBU SALAM V. UNION OF INDIA[7], the Supreme Court after referring to its earlier decision in SK. SERAJUL (3 supra) held that there is no decision where a court has gone to the extent of holding that a mere delay in arresting the accused renders the detention invalid. In the instant case, the delay, if at all, is only about 1½ months and the explanation offered for the delay is reasonable. 19. In P.U. IQBAL V. UNION OF INDIA[8], the Apex Court at paras 8 and 9 held as under: “(8) There is indeed a plethora of authorities explaining the purpose and avowed object of preventive detention in express and explicit language. We think that all those decisions of this Court on this aspect need not be recapitulated and recited. But it would suffice to refer to the decision of this Court in Ashok Kumar v. Delhi Administration, (1982) 2 SCC 403 : (1982 Crl.L.J.1191), wherein the following observation is made: "Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing". (9) In view of the above object of the preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenu and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority will defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate the entire proceedings.” 20. From a plain reading of the provisions of the Act 1 of 1986, the object of detention under Section 3 of the Act 1 of 1986 is not to punish but to prevent commission of offence. Sub-section (1) of Section 3 of the Act 1 of 1986 allows the detention of person only if the appropriate detaining authority is satisfied that with a view to prevent such person from carrying on any of the offensive activities enumerated therein, it is necessary to detain such person. The satisfaction of the detaining authority is not a subjective one based on his beliefs or prejudices. There must be a real likelihood of the person being able to indulge in such activities, the influence of such likelihood being drawn from objective data. 21. It is well settled that the ordinary laws are meant to punish for the infraction of law, which has already taken place. Preventive detention is meant not to be by way of punishment, but is intended to prevent a person from violating law in future. Resort is taken to preventive detention in order to remove a person from the Society so that he is incapacitated from taking the law into his own hands and violating the same with impunity. 22. In the case on hand, in all the three crimes registered, the detenu surrendered before the Court on 20.08.2010 and was released on bail and thereafter no incident took place till 07.02.2011, the day on which the detention order was passed. There is no proximity in the detention of the detenu and the order of detention. The papers, which were placed before the detaining authority, whether contains that portion of the order which imposed the condition in enlarging the detenu on bail by the Magistrate or not, cannot be gone into. Suffice it to say the conditions imposed in the order were not noticed by the Collector while passing the impugned order. 23. In the counter filed by the respondents, except stating that taking into account all the three crimes registered against the detenu and in order to curb his illegal activates for preventive measure and basing on the chemical analysis report in crime No.294/2010-11 that the F.J.wash was unfit for human consumption and injurious to health, detention order has been passed, but has not properly explained the delay in passing the detention order. The Chemical analysis report was received on 20.07.2010 in crime No.242/2010-11; on 22.07.2010 in crime No.294/2010-11; and on 20.08.2010 in crime No.535/10-11 i.e., much prior to the enlarging the petitioner on bail, which were taken into consideration for enlarging the detenu on bail by the Magistrate. 24. In view of the delay from the date of last crime and the date of the detention order and in the absence of any explanation offered by the District Collector for the delay occurred in passing the detention order and since the live connection with the last incident; the date of detention order; and the vital link with the offending activity is snapped due to delay in passing the impugned detention order, it can be presumed that the District Collector failed to apply his mind in arriving at a real and genuine subjective satisfaction necessitating the detention of the detenu with a view to preventing him from acting in a manner prejudicial to the public order. In view of the foregoing discussion and since the condition precedent for making the order of detention, was not satisfied, we are of the view that the detention order is liable to be quashed. 25. In the result, the