IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTEENTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE R. KANTHA RAO WRIT PETITION Nos : 6004 & 6409 of 2008 WP No.6004/2008 Between: D.Rama Krishna S/o.D.Venkataramana R/o.H.No.2-2-21,Palakivari Street A.C.Guards,.Rajahmundry, East Godavari District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, rep.by its Secretary Home Department, Secretariat Buildings, Hyderabad 2 The District Collector and District Magistrate, East Godavari District at Kakinada 3 The Superintendent , Central Prisons, Rajahmundry East Godavari District .....RESPONDENTS 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 a writ of Habeas corpus directing the respondent to produce the detenu Sri Bonthu Venkataramana @ Venkanna presently detained in the Central prison, Rajahmundry, East Godavari District who is the father of the petitioner herein into the court by declaring the order of Detention Ref.No.P1/M/670/2007 dated 14.11.2007 as illegal, null and void and violation of Art.21 of the Constitution of India particularly private liberty of an individual guaranteed under Art.21 of the Constitution of India and also the quash the G.O.Rt.No.7568 GAD Dated 15.12.2007 and direct to release him forthwith and pass Counsel for the Petitioner: MR.K.RAMAMOHAN-MAHADEVA Counsel for the Respondents : THE ADVOCATE GENERAL WRIT PETITION NO : 6409 of 2008 Between: Chittiboina Satyanarayana S/o C. Suryanarayana Alkot Gardens, Rajahmundry, East Godavari District. ..... PETITIONER AND 1 The Collector and District, Magistrate, East Godavari district. 2 The Government of Andhra Pradesh, rep by its Chief Secretary, Secretariat, Hyderabad. 3 The Superintendent, Central, Prison, Rajahmundry, East Godavari District. .....RESPONDENTS 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 a writ of Habeas Corpus Under Art. 226 of the Constitution of India directing the respondents to produce Sri. Bonthu Venkata Ramana @ Venkanna S/o Abaddam now detained in Central Prison, Rajahmundry before this Hon'ble Court and he may be released forthwith after declaring that his detention is illegal and void. Counsel for the Petitioner: MR.C.PRAVEEN KUMAR Counsel for the Respondents.: THE ADVOCATE GENERAL The Court made the following : HON’BLE SRI JUSTICE A. GOPAL REDDY and HON’BLE SRI JUSTICE REDDI KANTHA RAO W.P.Nos.6004 and 6409 of 2008 Common Order: (Per Hon’ble Sri Justice A.Gopal Reddy) B . Rama Krishna (sic) S/o B. Venkata Ramana filed W.P.No.6004/2008 seeking a writ of Habeas Corpus directing the respondents to produce the detenu, B. Venkata Ramana, and set him at liberty by declaring the detention order dt. 14-11-2007 in RC No.C1/M/670/2007 passed by the 2nd respondent, the District Collector, East Godavari District at Kakinada and the order in G.O.Rt.No.7568 General Administration (Law & Order-II) Department dt. 15-12-2007 confirming the detention order as illegal, arbitrary and contrary to Art.21 of the Constitution of India. Chittiboina Satyanarayana, nephew of the detenu also filed WP No.6409/2008 seeking the same relief as prayed in W.P.No.6004/2008. Since both the writ petitions arise out of one and the same detention order, both were heard together and disposed of by this common order. Earlier to the present detention order dt. 14-11- 2007, t h e detenu was detained and lodged in Central Prison, Rajahmundry on 19-8-2004 under A.P. Prevention of Dangerous Activities o f Bottleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (hereinafter referred to as “Act 1 of 1986”) considering three cases registered against him, namely, (1) Cr.No.1129/2003-2004 dt. 3-1-2004; (2) Cr.No.1411/2003-2004 dt. 17-3-2004 and Cr.No.120/2004-2005 dt. 16-5-2004 of Prohibition & Excise Station, Rajahmundry involving 50, 650.8 and 10 litres of I.D. liquor. The detenu successfully challenged his detention in W.P.No.15867/2004, whereunder this court by order dt. 4-10-2004 set- aside the detention order and set him at liberty. In spite of the same, the detenu was continuously indulging in bootlegging activities and three crimes were registered between 5-12-2006 to 6-6-2007. They are: 1. Cr. No.370/06-07 dt. 5-12-2006 of Prohibition and Excise Station, Rajahmundry South involving 1 0 litres of ID liquor by the Prohibition & Excise Sub-Inspector, Rajahmundry South at Alcott Gardens, Rajahmundry. 2. Cr.No.398/06-07 dt. 20-12-2006 of Prohibition & Excise Station, Rajahmundry South involving 205 litres of ID liquor by the Prohibition & Excise Sub-Inspector, Rajahmundry South at Alcott Gardens, Rajahmundry. 3. Cr.No.153/07-08 dt. 3-6-2007 of Prohibition & Excise Station, Rajahmundry North at Kabalcheruvu area, Rajahmundry involving 60 litres of ID liquor. In all the above cases, the detenu was found to be in possession and transporting illicitly distilled liquor containing highly poisonous denaturants like methanol and benzene, which are injuries to health and unfit for human consumption. The illicit liquor produced through crude methods containing higher alcohols like amyl alcohol, butyl alcohol, prophyl alcohol, acids, aldehydes, furfural and other unknown impurities, which are injuries to health and unfit for human consumption. The additional substances found in the illicit liquor will drastically affect the central nervous system causing more intoxication resulting in deterioration of the health of the consumers. In all the cases, contraband was seized and samples were drawn and sent for chemical examination to the Government Chemical Examiner of Prohibition & Excise, Kakinada. As per the chemical analysis 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 injuries to health. In Cr.No.370/06-07 dt. 5-12-2006 and Cr.No.398/2006-2007 dt. 20- 12-2006, the detenu was arrested and produced before II Addl. Judicial First Class Magistrate, Rajahmundry and subsequently enlarged on bail. Cr.No.153/2007-2008 dt. 3-6-2007 was booked against two persons. The detenu who was A-2, was surrendered before the II Addl. Judicial First Class Magistrate, Rajahmundry who remanded him to judicial custody and subsequently he was enlarged on bail. As the detenu was continuously indulging in bootlegging activities ie., possession, transportation and sale of illicit liquor and for preventing him from further acting in any manner prejudicial to the maintenance of public order effecting public health and peace in the locality in Rajahmundry where industrial labour predominantly resides, the second respondent in exercise of power vested in him under sub- sections (1) and (2) of Section 3 read with Section 2(a) and (b) of the Act 1 of 1986 ordered for his detention until further orders in the Central Prison, Rajahmundry by the impugned order dt. 14-11-2007. Pursuant to the order of detention, the detenu was taken into custody on 14-11-2007 and lodged at Central Prison, Rajahmundry. In the impugned order dt. 14-11-2007, it is also stated that the detenu has a right to be informed by the detaining authority under Article 22(5) of the Constitution of India and the detenu has a right to make a representation to the Government under Sec. 8(1) of the Act and also the right to be heard personally or through a friend who is not a legal practitioner by the Advisory Board, if he so desires under Sec. 11(1) and 11(5) of the Act. The detention order was approved by the Government under sub-section (3) of Sec. 3 through G.O.Rt.No.7110 General Administration ( Law & Order-II) dt. 21-11-2007. On referring the matter to the Advisory Board under Sec. 9 of the Act 1 of 1986, the Advisory Board reviewed the case on 12-12-2007 and after having heard the detenu and the investigating officers and after perusing the connected orders, the Advisory Board gave its opinion that “there is sufficient cause for the detention of the detenu, Bonthu Venkata Ramana @ Venkanna S/o Abaddam”. 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 Sec. 13 of the Act 1 of 1986 through G.O.Rt. No.7568, General Administration (Law & Order.II) Department dt. 15-12-2007 confirmed the order of detention and directed that the detention of the alleged detenu be continued for a period of 12 months from the date of his detention ie., 14-11-2007. Questioning the detention order and G.O.Rt.No.7568 dt. 15-12- 2007, WP No.6004/2008 has been filed by the son of the detenu and WP No.6409/2008 by the nephew of the detenu contending that the detention order passed by the second respondent is arbitrary and illegal; that the second respondent failed to see that the close proximity of offences could not be a ground to be considered for passing a detention order as held by this court in LALITHA V. STATE OF ANDHRA PRADESH (2007(3) ALT 693); that the second respondent failed to see that the opinion of the analyst that the liquor is not potable and unfit for human consumption cannot be a relevant material to detain a person; that the detaining authority failed to see that the chemical analysis reports did not indicate that the fusel oil was present in impermissible limit so as to cause widespread danger to life or public health; and in the absence of opinion that the petitioner is acting prejudicial to the maintenance of public order, which is one of the ingredient in S.No.3(i), the detention order is liable to be set-aside. The second respondent filed a counter-affidavit reiterating the allegations leveled in the grounds of detention as well as detention order. On filing a counter-affidavit, the petitioner in WP No. 6004/2008 filed WPMP No.9139/2008 raising a ground that the documents relied upon by the second respondent while passing the detention order, namely, chemical analyst reports have not been supplied, therefore a finding that the sample is illicitly distilled liquor, unfit for human consumption amounts to acting in a manner prejudicial to maintenance of public order cannot be drawn without supplying the said material, and it is not known whether the chemical analyst reports obtained in the previous crimes, which is subject matter of WP No.15867/2004, have been taken into consideration while passing the detention order. Learned counsel for the petitioner submits that due to non- supply of the chemical analyst reports to the detenu, the petitioner is prevented from making an effective representation, and it amounts to violation of Art. 22(5) of the Constitution of India and therefore, the detention order is liable to be set-aside. Further the first two crimes which were referred are not proximity to the third crime and in all the crimes, the detenu was enlarged on bail and all these facts have not been taken into consideration by the detaining authority while passing the detention order and there is no necessity to pass the detention order. In support of his contentions, learned counsel placed reliance on the following judgment: 1. LALITHA V. STATE OF ANDHRA PRADESH[1] On the other hand, learned Government Pleader representing the Advocate General appearing for the respondents contends that all the material which was relied upon by the detaining authority has been supplied to the detenu. Once the detention order has been approved by the Government and confirmed the detention order on considering the report of the Advisory Board, the petitioner cannot complain of any violation of Art. 22(5) of the Constitution of India. In support of his contention, he relied upon the following judgments: 1. DODDI SHARADA v. COLLECTOR AND DISTRICT MAGISTRATE, HYDERABAD[2] 2. SUNILA JAIN V. UNION OF INDIA[3] In the light of the above submissions and pleadings as referred to above, the point that arises for consideration is: “Whether the detention order passed by the second respondent DT. 14- 11-2007 as approved by the Government in G.O.Rt. No.7110, General Administration (L&O.II) Department dt. 21-11-2007 and confirmed in G.O.Rt.No.7568, General Administration (L & O.II) Department dt. 15-12-2007 can be sustained or not? At this stage, we set out the most relevant provisions of the Act before considering in detail the issue involved in the present case. Sections 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. Section 2(a) of the Act 1 of 1986 defines the meaning of the expression “acting in any manner prejudicial to the maintenance of public order” and reads as follows: (a) "acting in any manner prejudicial to the maintenance of public order" means when a boot-legger, 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.” Section 3 confers power to make orders detaining certain persons, which reads as under: (1)The Government may, if satisfied with respect to any boot legger, 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. Section 8 mandates Grounds of order of detention to be disclosed to persons affected by the order, which reads as under: (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the Government. (2) X x x x. The grounds of detention disclose that in the first two crimes, the detenu was arrested and subsequently released on bail. In the third crime, the detenu was surrendered and subsequently he was released on bail. The file produced by the Government Pleader also discloses that all the documents which were relied on by the detaining authority including the chemical analyst reports were supplied and acknowledged by the detenu. In view of the same, we do not see any merit in the submission that due to non-supply of chemical analyst reports to the detenu, he was prevented from making an effective representation against the detention order. It was nextly contended that first two crimes are not proximity to the third crime. In COLLECTOR & DISTRICT MAGISTRATE, ELURU V. SANGALA KONDAMMA[4], this court set-aside the detention order 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 appeal being preferred by the State, the Supreme Court while upholding the detention order observed as under: “…if the facts placed before the detaining authority are proximate to each other and the last of the facts mentioned is 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 detenu 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 detenu 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 show the continuity of the acts of the detenu. 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, the order of detention was based 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 detenu but would certainly become a relevant material along with the 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 detenu to prevent him from indulging in similar activities in the future. In view of the same, we do not find any merit in the contention of the learned counsel for the petitioner that first two crimes are stale and not proximity to the third crime. In fact, first two crimes were also proximity to the third crime which was registered six months earlier to the 1st and 2nd crimes; therefore, the same will be relevant factor for passing the detention order. The Supreme Court in R. KALAVATHI V. STATE OF TAMILNADU[5] while considering the meaning of word “habitually” in Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug- offenders, Slum-Grabbers and Video Pirates Act, 1982 which is pari materia to the Act 1 of 1986 held as under: : “The expression “habit” or “habitual” has not been defined under the Gujarat Prevention of Anti-Social Activities Act, 1985. The word “habitually” does not refer to the frequency of the occasions but to the invariability of a practice and the habit has to be proved by totality of facts. It, therefore, follows that the complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude that a particular person is a “dangerous person” unless there is material suggesting his complicity in such cases, which lead to a reasonable conclusion that the person is a habitual criminal. The word “habitually” means “usually” and “generally”. Almost similar meaning is assigned to the word “habit” in Aiyar’s Judicial Dictionary, 10th Edn., at p. 485. It does not refer to the frequency of the occasions but to the invariability of practice and the habit has to be proved by totality of facts. (See Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta (1995) 3 scc 237) ( para 12) The expression “habitually” is very significant. A person is said to be a habitual criminal who by force of habit or inward disposition is accustomed to commit crimes. It implies commission of such crimes repeatedly or persistently and prima facie there should be continuity in the commission of those offences. (See Ayub v. S.N. Sinha (1990) 4 SCC 552 (para 13). 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: 7 : “The explanation to Section 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 widespread 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.” In the light of the law laid down in the aforementioned judgments, the judgment on which much reliance has been placed by the learned counsel for the petitioner will not have any bearing on the facts of the present case since in the case of LALITHA ( 1 supra) this court held that mere registering crimes is not sufficient for passing order of detention and there must be further material to satisfy the condition that detenu is acting in any manner prejudicial to maintenance of public order. This court in LALITHA (1 supra) has not noticed the judgment of the Supreme Court in HARPREET KAUR (4 supra), which is directly applicable to the point in issue. In DODDI SHARADA (2 supra) this Court after considering the various decisions and provisions of Act 1 of 1986, answered the reference as under. “In the light of all these judgments, 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