HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R. KANTHA RAO W.P.No.30131 of 2011 Dated: 14-12-2011 Between: Gubbala Hari Babu …Petitioner AND Government of A.P., Rep. by its Principal Secretary, Home Department, Secretariat Buildings, Hyderabad and others Respondents. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R. KANTHA RAO W.P.No.30131 of 2011 ORDER: (Per Hon’ble Sri Justice A. Gopal Reddy) District Collector-East Godavari District-second respondent herein (for short ‘detaining authority) in exercise of powers conferred on him under Section 3(1) and (2) read with Section 2(a) and (b) of the A.P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act 1/86) (hereinafter called as ‘Act’) read with G.O.Rt.No.4083, General Administration (L&O II) Department, dated 13.9.2011 vide proceedings in R.C.No.C1(M)/734/2011 dated 5.10.2011 directed for detention of Gubbala Srinu (for short ‘detenu’), resident of Gandepalli Village and Mandal of East Godavari District with a view to prevent him from indulging further in boot legging activities as he was acting in the manner prejudicial to the maintenance of public order. The detention order has been approved by the State Government in G.O.Rt.No.4700, General Administration (L&O.II) Department and confirmed in G.O.Rt.No.5146 dated 15.11.2011 under sub-section (1) of Section 12 read with Section 13 of the Act for continuation of the detention for a period of 12 months from the date of his detention. Pursuant to the same, the detenu was lodged at Central Prison, Rajahmundry on 8.10.2010 and all the grounds of detention and material relied upon by the detaining authority were served on the detenu both in English and Telugu by complying with the constitutional mandate i.e. duly informing him about his right to make a representation to the detaining authority, the Chief Secretary to Government and Advisiory Board. On confirmation of the detention order the present writ petition has been filed challenging the detention order on the ground that in the grounds of detention, as many as 8 crimes registered against the detenu were referred to by the detaining authority, whereas, the details of four crimes were only mentioned and the copies of remaining four crimes have not been supplied to the detenu. Therefore, the detenu was prevented from making an effective representation which is in violation of the rights guaranteed under Article 22(5) of the Constitution of India. Further in the grounds of detention, a reference is made that several oral complaints were received against the detenu about his illegal activities of causing widespread danger to the public health and in feeling of insecurity among the general public in the locality. However, the gist of the alleged oral complaints has not been supplied to the detenu, which amounts to denying the reasonable opportunity to the detenu to make an effective representation and therefore, the whole process of detention is vitiated. Second respondent-detaining authority filed a counter affidavit stating that after going through the various cases registered against the detenu, the second respondent has taken only four crimes into consideration, wherein the detenu was found in possession of illicit distilled liquor. After registering the crimes, samples were drawn, got analyzed through chemical examiner, who opined that it is illicit distilled liquor unfit for human consumption and injurious to health and it is containing fusel oil and acids etc., which are injurious to public health. On verifying the said four crimes and the report of the chemical analysis, he satisfied that the detenu shall be prevented from further indulging in similar offences in future and therefore, the order of detention was passed and accordingly he was lodged at Central Prison, Rajahmundry. He stated that all the copies of the crimes on which reliance is placed were served on the detenu. In the grounds of detention eight crimes in which the detenu was involved were mentioned to show his antecedents and to show that he is habitually committing the boot legging crimes after enlarging on bail, which necessitated to pass the detention order and out of those eight crimes, he (detaining authority) has considered only four crimes in arriving at subjective satisfaction for passing the detention order and the material on which he placed reliance in four crimes were also served on the detenu. Further on 1.9.2011, 4.9.2011 and 7.9.2011 G.D. entries were made in the Prohibition and Excise Station on the oral complaints made against the detenu and the material thereof was also served to the detenu to enable him to make an effective representation. With regard to the other four crimes referred in the order of detention, only a passing reference was made to show the antecedents of detenu that he is continuously involving in boot legging activities and therefore, the detention order is not vitiated. Sri T.Bal Reddy, learned senior counsel appearing for the petitioner contends that in the grounds of detention order, the detaining authority though referred to the involvement of the detenu in eight crimes and also the oral complaints received against him, the material pertaining to only four crimes mentioned in the grounds of detention was supplied to the detenu and the material for the remaining four crimes has not been supplied for making effective representation and therefore, the detention order is liable to be set aside. In support of the said submission, reliance is placed on the Judgment of the Apex Court i n Mohd. Dhana Ali Khan v. State of West Bengal[1] and Smt. Shalini Soni v. Union of India and others[2]. He further contends that when the detaining authority has relied upon the several oral complaints received against the detenu, the material in respect of the said oral complaints ought to have been furnished to the detenu. In similar circumstance, this Court allowed W.P.No.24151 of 2004 dated 27.1.2005 holding that the oral complaints were not communicated to the detenu and therefore, his rights under Article 22(5) of Constitution of India gets violated. In view of the same, the learned counsel contends that the impugned detention order passed by the detaining authority is liable to be set aside as the same has been passed in violation of Article 22(5) of Constitution of India. On the other hand, Smt.Mohana Reddy, learned Special Government Pleader appearing for the respondents sought to sustain the detention order contending that the second respondent passed the detention order, wherein he categorically stated that he referred to the oral complaints only to show that the detenu is an habitual offender and the detention order was passed only on the basis of four crimes, in which the detenu was found in possession of I.D. liquor. On the basis of the oral complaints received against the detenu, G.D. entries were made and the same are also supplied to the detenu in due compliance with the constitutional mandate under Article 22(5). In the light of the above, the point that arises for consideration is ‘whether the detention order passed by the detaining authority-second respondent as confirmed by the State Government suffers from any illegality infringing the constitutional mandate under Article 22(5) of the Constitution of India and the same is liable to be set aside or not?’ POINT: Section 2(g) of the Act defines “goonda” which means “ a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code. The Apex Court in L.M.S. Ummu Saleema V. B.B.Gujraj[3], which is at a later point of time to Kirit Kumar V. Union of India wherein Justice O.Chinnapa Reddy speaking for a three-Judge Bench after extracting the ratio laid down in ICCHU DEVI CHORARIA V. UNION OF INDIA (1980) 4 SCC 531) and KHUDIRAM DAS V. STATE OF W.B.(1975) 2 SCC 81=AIR 1975 SC 550) held at para 5 as under: “…It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an 2ment of Article 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the fundamental rights guaranteed by Article 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention. In the case before us we are satisfied that such were the two documents, copies of which were not furnished to the detenu. We are satisfied that the documents cannot be said to be documents which were relied upon by the detaining authority in making the order of detention. Therefore, the detenu could not properly complain that he was prevented from making an effective representation. There was no violation of the right guaranteed by Article 22 of the Constitution.” The Supreme Court in Harpreet Kaur v. State of Maharashtra[4] while dealing with identical provision of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 analogous to the Act 1 of 1986 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 further 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 public 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. Explanation to Section 2(a) of the Act 1 of 1986 makes it clear that any activity of any of the persons referred to in section 2 (a) of the Act 1 of 1986, acting in any manner prejudicial to the maintenance of public order, includes the bootlegger and the person who directly or indirectly manufactures, stores, transports, imports, exports, sells or distributes any liquor in contravention of any of the provisions of the Andhra Pradesh Excise Act, 1968 comes within the definition of bootlegger. Any person who is in possession of the ID liquor or stores the ID liquor can be termed as a bootlegger for proceeding under the Act 1 of 1986. In the case on hand, no-doubt, there is a reference of eight crimes and after referring to the gist of the offences, the detaining authority relied upon four crimes registered against the detenu. In all those four crimes, the detenu along with others was found to be in possession of arrack/illicit distilled liquor and the samples drawn therefrom were sent to chemical analysis and the same were found to be injurious to public health. Therefore, we do not see any merit in the contention advanced by the learned counsel for the petitioner that non- supply of the documents/material with regard to the other crimes to the detenu about which a passing observation is made by the detaining authority is in utter violation of Article 22(5) of the Constitution of India and therefore, the detention order is vitiated. The next submission made by the learned counsel for the petitioner that the oral complaints received against the illegal activities of the detenu were not furnished to the detenu and the same is also in violation of Article 22(5) of the Constitution of India and therefore, the detention order is vitiated as held by this Court in W.P.No.24151 of 2004 dated 27.1.2005 also does not merit consideration for the reason that on the basis of oral complaints, G.D. entries were made on 1.9.2011, 4.9.2011 and 7.9.2011 and the copies thereof were also furnished to the detenu. Since no other ground has been urged by the learned counsel for the petitioner, we are satisfied that the detaining authority duly complied with the constitutional mandate by supplying the documents/material on which reliance is placed and therefore, the impugned detention order as confirmed by the State Government does not suffer from any illegality warranting interference by this Court. The writ petition is accordingly dismissed. No costs. _________________ (A. GOPAL REDDY, J.) _______________ (R. KANTHA RAO, J.) DECEMBER 14, 2011 TSR [1] AIR 1976 SC 734 [2] AIR 1981 SC 431 [3] AIR 1981 SC 1991 [4] AIR 1992 SC 979 = (1992) 2 SCC 177