THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE RAJA ELANGO W.P.No.3118 of 2011 Date of Order: 04-07-2011 Between: A.Ram Koti ..Petitioner And 1. The Collector & District Magistrate, Krishna at Machilipatnam and others ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE RAJA ELANGO W.P.No.3118 of 2011 Order: (Per Hon’ble Sri Justice A.Gopal Reddy) 1. The order of detention was passed under Section 3(1) & (2) r/w 2 (a) and (h) 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 1/1986”) for detention of Murala Subba Rao s/o Raghavaiah r/o Srikakulam village, Ghantasala Mandal, Krishna District stating that he is repeatedly committing the offence of illegal possession of illicit distilled liquor, which is an offence under A.P. Prohibition Act, 1995, and the cases booked against him under the Prohibition Act are unable to curb his clandestine and dangerous activities which are adversely affecting the public health and public order. Therefore, it is necessitated to prevent him from further indulging in such dangerous activities prejudicial to the maintenance of public order. The grounds of detention of the same date were duly served on the detenu in both languages English and Telugu, when he was taken into custody and presently he was lodged in Central Prison at Rajahmundry. 2. Three crimes were registered against the detenu for his possessing ID liquor of 5, 10 and 10 liters respectively under Section 7(A) r/w 8(e) of A.P. Prohibition Act, 1995, which were mentioned in the grounds of detention; the detenu was produced before the Additional Judicial First Class Magistrate, Avanigadda on 28-01-2010, 08-04-2010 and 25-05-2010 respectively and he was enlarged on bail. In all the three cases, samples were drawn and sent to Government Chemical Examiner of Prohibition and Excise, Regional Excise Laboratory, Kakinada for chemical analysis. The Chemical examiner, who analyzed the samples, opined that “the sample is illicitly distilled liquor unfit for human consumption and injuries to health” by his report dated 26-06-2010. While arresting the detenu he was informed that he had a right to make representation to the detaining authority, Advisory Board and the Chief Secretary to Government, by that the constitutional and statutory mandate has been complied with. The detention order was approved by the Government in G.O.Rt.No.65, General Administration (Law & Order II) Department, dated 06-01-2011 and the order of detention was placed before the Advisory Board, which in its meeting held on 18-01-2011 after going through the grounds of detention and hearing the detenu and the investigating officer opined that “there is sufficient cause for the detention of the detenu, namely, MURALA SUBBA RAO s/o late Raghavaiah r/o Srikakulam village, Ghantasala Mandal, Krishna District”. Basing on the recommendation of the Advisory Board the Government in G.O.Rt.No.343, General Administration (Law & Order.II) Department, dated 24-01-2011 confirmed the order of detention from the date of detention i.e. 27-12-2010. 3. The detention order is challenged by the son-in-law of the detenu by way of Habeas Corpus petition contending that the detenu was found in possession of 5, 10, and 10 liters of ID liquor and mere possession of small quantity will not lead to that he acted in a manner prejudicial to the maintenance of public order in the absence of any allegation that he indulged in sale and distribution of ID liquor. The last incident which was referred in the detention order is 24-05-2010 in which detenu was enlarged on bail on 26-05-2010 and since then no incident had been noticed till the detention order is passed. The order of detention is not proximity to the incident and liable to be quashed. 4. Counter affidavit has been filed by the District Collector who passed the detention order stating that when sponsoring authority placed the material, which clearly shows the detenu was caught red- handed in possession of ID liquor which is unfit for human consumption, he satisfied that the detenu should be prevented further indulging in similar offences. Therefore, the order of detention is on justified grounds. The constitutional and statutory mandate has been complied with by serving the detention order on the detenu which has been approved by the Advisory Board and also by the Government. Though cases were registered against him for the offences under the A.P. Prohibition Act, the detenu has not mend his illegal activities, which necessitated to pass the detention order to prevent him in bootlegging activities. 5. Sri C.Padmanabha Reddy, learned senior counsel for the petitioner contends that under the Act 1/86 it is only manufacture, transport and sale of arrack, which is dangerous to public health, alone would become act prejudicial to the maintenance of public order attracting the provisions of the Act. The facts placed before the detaining authority are not proximate to the order of detention and the detention order was passed 7 months after the last incident which vitiates substantive satisfaction and the detention order will become illegal. In support of his submissions, he placed reliance on the judgments of the Supreme Court in DISTRICT COLLECTOR, ANANTHAPUR v. V.LAXMANNA[1] and PRADEEP NILKANTH PATURKAR v. S.RAMAMURTHI[2]. 6. Per contra, learned Special Government Pleader representing the learned Advocate General supported the order of detention contending that in all the cases analyst report was received on 26-06-2010 and the detention order was passed on 27-12-2010 after expiry of six months. The judgments on which reliance is placed by the learned senior counsel is misplaced to the facts of the present case, since the issue therein was crimes referred to are proximate to each other ornot, and the stale incident can be taken into consideration for passing the detention order and the said contention was not accepted by the Supreme Court in COLLECTOR AND DISTRICT MANAGER, WEST GODAVARI, ELURU, A.P. V. SANGALA KONDAMMA (AIR 2005 SC 1165). Once the chemical analyst report discloses that contra band liquor is unfit for human consumption and injurious to public health which impliedly means that consumption of such liquor dangerous to health and which affects the public order. 7. In view of the submissions, referred to above, the question that falls for consideration is: whether seven months delay in passing the detention order vitiates the said order. 8. It is well settled principle of law that the permission given to the State by Article 21 to deprive a person of his liberty according to procedure established by law is expressly controlled by Article 22 in cases both of punitive and preventive detention. As regards the person who is detained under preventive detention law the safeguards contained in sub-clauses (4) to (7) of Article 22 come into play. Sub- clause (4) states that the preventive detention law shall not provide for the detention of a person for a period longer than three months without his having to be produced before the magistrate as is the requirement of sub-clause (2) However, if he is to be detained beyond the period of three months, it can be done so, only if the Advisory Board mentioned therein reports before the said period of three months that there is, in its opinion, sufficient cause for such detention. It further states that even if the Advisory Board so reports, the person cannot be detained beyond the maximum period prescribed in the laws of detention. 9. The Supreme Court in NARESH KUMAR GOYAL v UNION OF INDIA[3] held it is trite law that an order of detention is not a curative or reformative or punitive action but a preventive action, avowed object of which being to prevent the anti-social and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that 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 so. It, therefore, becomes imperative on the part of the detaining authority as well as the executing authority to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenue 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 preventive action and turn the detention order as a dead letter and frustrate the entire proceedings. Inordinate delay, for which no adequate explanation is furnished, led to the assumption that the live and proximate link between the grounds of detention and the purpose of detention is snapped. 10. The Supreme Court in PRADEEP NILKANTH PATURKAR’s case (2 supra) while dealing with the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act set aside the detention order holding that the said order was passed after 5 months and 8 days from the date of registration of the last case and four months from submission of the proposal and only after the detenu became successful in getting bail in all the prohibition cases registered against him. Those statements are very much referred to in the grounds of detention and relied upon by the detaining authority along with the registration of the cases under the Act. 11. Admittedly, the last crime was registered on 24-05-2010 and chemical analyst report was received 26-06-2010 in all the cases. Therefore, the contention of the petitioner that vital link with the offending activity snapped due to delay in passing the impugned detention order hence it must be presumed to have been passed by total non-application of mind, has to be accepted. Further, the detaining authority has not satisfactorily explained the delay. Therefore, we are of the view that the delay in passing the detention order, satisfaction of the detaining authority gets vitiated. 12. In view of the same, the detention order as well as the consequential confirmation order passed by the State Government cannot be upheld and the same is accordingly set-aside. 13. In the result, writ petition is allowed and the order of detention in Rc.No.782/2010/A3, dated 27-12-2010 as confirmed by the State Government in G.O.Rt.No.343, dated 24-01-2011 is set aside and the detenu, namely, Murala Subba Rao s/o Raghavaiah is set at liberty forthwith if he is not required in any other case. _________________ A.GOPAL REDDY, J. _____________ RAJA ELANGO,J. 04-07-2011 Murthy [1] AIR 2005 SC 2802 [2] AIR 1994 SC 656 [3] (2005) 8 SCC 276