THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 15362 of 2010 Date of Order: 18-08-2010 Between: Md.Ibrahim, S/o.Chotemiya ..Petitioner and 1. The State of A.P., rep. by its Chief Secretary Secretariat, Hyderabad and others ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 15362 of 2010 Oral Order: (Per Honourable Sri Justice A.Gopal Reddy) 1. By means of filing this writ petition under Article 226 of the Constitution, the petitioner challenges the detention order passed against him by the Collector and District Magistrate, Rangareddy District in Proc.No.A3/525/2010, dated 24.04.2010, as approved by the Government in G.O.Rt.No.2032, General Administration (Law & Order II) Department, dated 28.04.2010 and confirmed in G.O.Rt.No.2341 General Administration (Law & Order II) Department, dated 12.05.2010 in exercise of the powers conferred under sub-Section (1) of Section 12 r/w 13 of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act 1/1986). 2. The alleged facts as set out in the grounds of detention dated 24.04.2010 are that prior to the detention the alleged detenu was arrested in the following cases booked by the Prohibition and Excise Officials of Pargi Station, Rangareddy District. 1. COR.No.840/2009-10 of S.H.O., Pargi, Rangareddy District, the alleged detenu was found to have been in possession of 20 liters of Illicitly Distilled liquor (I.D. liquor). 2. COR.No.627/2009-10, dated 17.02.2010 of S.H.O., Pargi, Rangareddy District, the alleged detenu was found to have been in possession of 20 liters of I.D. liquor. 3. COR.No.355/2009-10 of S.H.O., Pargi, Rangareddy District the alleged detenu was found to have been in possession of 30 liters of I.D. liquor. 4. COR.No.198/2009-10 of S.H.O., Pargi, Rangareddy District the alleged detenu was found to have been in possession of 25 liters of I.D. liquor. 3. In all the above cases, the detenu was found to be in manufacturing, possession and transporting Illicitly Distilled liquor (I.D. liquor), which are injuries to health and unfit for human consumption, in contravention of the provisions of the A.P. Prohibition Act, 1995. In all the cases, contraband were seized and samples were drawn and sent to the Regional Prohibition and Excise Laboratory, Hyderabad. As per the Chemical Analysts reports, it was found that all the samples drawn from the seized contraband was found to be “illicitly distilled liquor unfit for human consumption and injurious to health.” 4. In all the above cases, detenu was arrested and produced before the Court and subsequently enlarged on bail. As the detenu was continuously involving in the bootlegging activities i.e., possession, transportation and sale of I.D.liquor for money gain in Chowdapur Village, Kulkacherla Mandal, Rangareddy District, which is unfit for human consumption, and as it will adversely affect the public health particularly, the Collector and District Magistrate, Rangareddy District in exercise of the powers vested in him under Section 3(1) read with 2(a) and (b) sub-sections (1) and (2) of Section 3 of the Act 1/1986 ordered for his detention until further orders in the Central Prison, Cherlapally, Rangareddy District, by the impugned order in Proc.No.A3/525/2010, dated 24.04.2010 from the date of service of that order on the alleged detenu. The Government in its order in G.O.Rt.No.2032, General Administration (Law & Order.II) Department, dated 28.04.2010, 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, Mohd.Ibrahim. 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 Section 13 of the Act 1/1986, through G.O.Rt.No.2341, General Administration (Law & Order.II) Department, dated 12.05.2010 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., 24.04.2010. 5. Hence, this writ of Habeas Corpus has been filed contending that the activities of the detenu do not come within the ambit of 'bootlegger' as defined under Section 2 (b) of the Act 1 of 1986 and no offence has been committed so as to attract the definition of "bootlegger" and as such the order of detention cannot be sustained. There is no standard proof or material to show that the detenu has sold Illicitly Distilled Liquor anywhere and it is merely on suspicion based upon the statements of detenu in the special Reports prepared by the Excise Officials, and the detenu has no past conduct of showing any bad antecedents in order to make the present order of detention. In all the cases, the detenu was enlarged on bail by the jurisdictional Magistrate, and the Collector before passing the order of detention has not taken into consideration the said aspect and, therefore, there was non-application of mind by the detaining authority while passing the order of detention; that the activities i.e. mere disturbance of Law and Order or a Stray act in violation of the Law cannot be held to be subversive of public order unless the activities affect the public order and the alleged detenu cannot be detained. The criminal offences relate to the field of Law and Order, but such offence would not necessarily give rise to a situation of disturbing public order and selling of illicit liquor without something more would not give rise to a problem of public order which may amount to violation of the provisions of the Prohibition Act that itself is not sufficient to detain the detenu. Therefore, prayed for setting aside the detention order. 6. The second respondent-Collector filed his counter-affidavit while explaining the reasons for passing the order of detention as detailed in the detention order and its confirmation stated that as the detenu is involved in four crimes and he was found in possession of Illicitly Distilled Liquor in Chowdapur Village, Kulkacheral Mandal, Rangareddy District and when the same was sent for chemical examination, the Chemical Examiner opined that the same is unfit for human consumption and injuries to health and taking into consideration of the law declared by this court in DODDI SHARADA v. COLLECTOR, DISTRICT MAGISTRATE, HYDERABAD DISTRICT, HYDERABAD[1] passed the detention order to prevent the detenu from further indulging in bootlegging activities, as the launching of criminal prosecution against the detenu under the Excise Act has failed to curb his illegal activities since in all the cases he was released on bail. It is further submitted that on 02.12.2009 crime No.627/2009-10 was registered against the detenu and the detenu has absconded from the scene of offence. The said crime was registered in the presence of the panchas and 20 liters of I.D.Liquor was seized from the house of the detenu and the original panchanama did not have the left thumb impression of the detenu and hence, it is false to aver in the affidavit that the left thumb impression on the panchanama is fake, prepared for the purpose of registration of the above crime against the detenu. All the material relied on was served on the detenu, both in English and Telugu languages, so as to make an effective representation under Art. 22 (5) of the Constitution of India. It is further submitted that the representation dated 05.05.2010 addressed to the Government, was considered by the Government and the same was rejected vide G.O.Rt.No.2888, dated 14.06.2010 and the said order was served on the detenu at Central Prison, Cherlapally. In fact, the detenu appeared before the Advisory Board on 07.05.2010 and after hearing him and the officials, the Advisory Board opined that there is sufficient cause for detaining him for a period of 12 months from the date of his detention. Basing upon the opinion of the Advisory Board, the Government issued G.O.Rt.No.2341 dt. 12.05.2010 confirming the detention order. He placed reliance on the crimes registered against the detenu and the Chemical Analysis reports for passing the detention order. 7. Learned counsel for the petitioner contends that the formation of the opinion by the Collector is bad. The Panchanama and the recovery on 02.12.2009 is false. When it is stated that the detenu is absconded, his signing in the Panchanama does not arise. If one ground is irrelevant, the whole detention order is liable to be set aside. He nextly contended that detaining the detenu for 12 months is contrary to sub-section (2) of Section 3, which provides for periodical review of the detention, which is initially for three months. For the said proposition reliance is place on the judgment of this Court in Poosala Narsayya v. The Stae of A.P.[2] 8. On the other hand, learned Special Government Pleader representing the learned Advocate General sustained the detention order contending that the detenu is involved in four cases, which were registered against the detenu and the Detaining Authority formed an opinion that the ordinary criminal law would not curb the illegal activities of the detenu, therefore, it necessitated for detaining the detenu in the above crimes. When the matter is placed before the Advisory board, the Board was of the view that there is sufficient cause for the detention of the detenu. Basing on the recommendation of the Advisory Board, the Government issued impugned G.O.Rt.No.2341, dated 12-05-2010 detaining the detenu for a period of 12 months from the date of his detention. The judgment on which reliance is placed on by the learned counsel for the petitioner has been reviewed by this court subsequently by Review WP.MP.No.17887 of 2006 dated 21.07.2006. 9. In the light of the above submissions and pleadings the point that arises for consideration is: "Whether the detention order passed by the Detaining Authority as approved by the Government in G.O.Rt.No.2032 dated 28.04.2010 and confirmed in G.O.Rt.No.2341 dated 12.05.2010 can be sustained or not?" 10. Before dealing with the rival submissions, it would be appropriate to notice relevant statutory provisions, which deal with the purpose and intention of the Act 1 of 1986. Sub Section (1) of Section 3 of the Act 1 of 1986 empowers the Government to make orders for detaining certain persons with a view to prevent them from acting in any manner prejudicial to the maintenance of public order. Preventive detention is an anticipatory measure and does not relate to an offence, while criminal proceedings are to punish a person for an offence committed by him under the Indian Penal Code. Sub-section (2) of Section 3 allows the detention of a person only if the appropriate detaining authority with which the powers are delegated under sub-section (2) of Section 3 is satisfied 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 inference of such likelihood being drawn from objective data. Sub-Section (2) of Section 3 deals with delegation of powers by the state Government and provides that if the State Government is satisfied having regard to the circumstances prevailing in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, it is necessary to empower District Magistrate or the Commissioner of Police, as the case may be, to exercise the powers of the State Government to order detention of a person as provided by sub-section (1). 11. Sub-section (3) of Section 3 reads as under: "when any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State 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 State Government." 12. Section 2 (b) defines "bootlegger", which reads as follows: "2.(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 abovementioned things by himself or through any other person, or who abets in any other manner the doing of any such thing.” 13. Section 2 (a) of the Act defines the meaning of the expression "acting in any manner prejudicial to the maintenance of public order" which reads as follows: (a) "acting in any manner prejudicial to the maintenance of public order" means when a bootlegger, 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". Explanation to Section 2 (a) of the Act reads as under: "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. " 14. The Supreme Court in MUKTAKMIYA JABBARMIYA SHAIKH v. M.M.MEHTA[3] after referring to its earlier judgment in ARUN GHOSH V. STATE OF W. B. ((1970) 1 SCC 98) wherein HIDAYATULLAH, C.J. (as he then was) dealt with the distinction between the ‘law and order’ and ‘public order’ and also the judgment of the Supreme Court in PIYUSH KANTILAL MEHTA V. COMMISSIONER OF POLICE[4] held that "if any act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come within the purview of public order which can be dealt with under ordinary general law of the land". Since the criminal activities as alleged against the detenu are under the Indian Penal Code and under Arms Act, detention order was quashed, which is not applicable to the detention order passed against the persons for his bootlegging activities. Once the explanation to Section 2 (a) of the Act 1 of 1986 brings into effect a legal fiction as to the adverse effect on "public order", if any of the activities of a person referred to in clause (a) 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 of widespread danger to life or public health, then public order shall be deemed to have been adversely affected as held in HARPREET KAUR v. STATE OF MAHARASHTRA[5]. 15. This Court in GHANTASALA NARASIMHA RAO v. CHIEF SECRETARY TO THE GOVERNMENT[6] after referring its various earlier judgments and also the Full Bench Judgment in DODDI SHARADA (1 supra) including LALITHA v. STATE OF ANDHRA PRADESH[7] held that detenu was habituated in commission of crimes and is accustomed to commit crimes of manufacturing, transporting and selling of I.D. liquor, which contains injuries substances and unfit for human consumption. Once the detenu is indulging in bootlegging activities of transport and distribution of illegally manufactured spurious liquor violating the provisions of the Excise act, which is likely to cause widespread danger to public health and create a feeling of insecurity among the general public and if the same is allowed, there is every possibility of danger to the life of public health who consumes illicit liquor, which is a prejudicial activity causing danger to public health and maintenance of public order. The detaining authority satisfied that the activities, which were carried on by the detenu, would cause prejudice and adversely affect the public health, particularly the downtrodden and the under-privileged in the area and passed the detention order, which was approved by the Government and when the matter is placed before the Advisory Board, the Advisory Board after providing an opportunity to the detenu, opined that there is sufficient cause for the detention of the alleged detenu and the same had been accepted by the Government only to prevent the detenu from perpetuating, manufacturing, transporting and distribution of illicitly distilled liquor. The subjective satisfaction arrived at by the detaining authority as approved by the Government is based on sufficient material, which was supplied to the detenu complying the constitutional mandate under Article 22 (5) of the Constitution. In view of the same, the detention order passed by the Collector and District Magistrate, Khammam District, as approved by the Government in G.O.Rt.No.5774, dated 02-12-2009 and confirmed in G.O.Rt.No.633, dated 08-02-2010 does not suffer from any illegality or it violates the constitutional/statutory right under of the detenu under Article 22 (5) of the Constitution rendering the detention order illegal. 16. In view of the same, we do not see any substance in the contention advanced by the learned counsel for the petitioner that unless the alleged activities of the detenu either affect or likely to affect adversely the maintenance of public order, the detenu cannot be detained. 17. The writ petition fails and it is accordingly dismissed at the stage of admission. ________________ A.GOPAL REDDY, J. _____________ K.C.BHANU,J. 18-08-2010 LMV [1] 2005(2) ALT 244 (FB) [2] 2006 Cri.L.J. 3258 [3] (1995) 3 SCC 237 [4] 1989 Supp (1) SCC 322 [5] AIR 1992 SC 979 = (1992) 2 SCC 177 [6] 2009 (3) ALT 34 [7] 2007(3) ALT 693