* THE HON'BLE SRI JUSTICE V.ESWARAIAH AND THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +WRIT PETITION No.25401 of 2010 % 09-11-2010 # A.Srinivas s/o Satyanarayana Rao, Aged about 39 years, Occ: Business, R/o: Flat No. 517/A, Janapirya Apartments, SR Nayak Nagar, IDA Jeedimetla, Hyderabad. … Petitioner Vs. $ 1. The Government of Andhra Pradesh, Rep. By its Chief Secretary, Secretariat Buildings, Hyderabad. 2. The Superintendent, Central Prinson, Rajahmundry, East Godavari District. 3. The District Collector, East Godavari District at Kakinada. … Respondents ! Counsel for the Petitioner : Sri D.Purnachandra Reddy Counsel for the Respondent: The Advocate General < Gist: > Head Note: ? Cases referred: 1. AIR 1989 SC 1282 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE NINETH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH AND THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No. 25401 OF 2010 Between: A.Srinivas ..... Petitioner AND The Government of Andhra Pradesh, Rep. By its Chief Secretary, Secretariat Buildings, Hyderabad and others .....Respondents The Court made the following : ORAL ORDER: (per THE HON’BLE SRI JUSTICE V.ESWARAIAH) The cousin of the detenu Sri Rayuda Vishnu Murthy @ Vishnu s/o Suryanarayana, filed this writ of habeas corpus seeking his release and to declare his detention as illegal. The Collector and District Magistrate, East Godavari District, made an order of detention under Sec.3(1) & (2) read with Sec.2(a) & (b) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act 1 of 1986) (for brevity the Act) for his detention in Central Prison, Rajahmundry from the date of service of the said order. The detention order was served on the detenu on 27.4.2010. The Advisory Board constituted under Sec. 9 of the Act revived the order of detention and opined that there is sufficient cause for detention of the detenu and pursuant to the said report of the Advisory Board and the material available on record, the Government in exercise of the powers conferred under Sub-Section (1) of Sec. 12 read with Sec. 13 of the Act, 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. Thus, the order of detention was approved by the first respondent – Government and GO Rt. No. 2342 General Administration (Law & Order) Department, dated 12.5.2010 came to be issued. Questioning the same, the present writ petition is filed. The detention order is made on the ground that the detenu has involved himself in committing the offence of possessing, transporting, selling and distributing the illicit distilled liquor in contravention of Sec. 7-A and 8(e) of the Prohibition (Amendment) Act, 1997 and also abetted the commission of the said illegal activities and thus he is a bootlegger and that the activity of said bootlegger is directly causing and calculated to cause widespread danger to public order, public health and a feeling of insecurity in the locality of Nadipudi village of Amalapuram Mandal and its surrounding areas, as evident from the records placed before him in Cr. No. 217 of 2006-07 dated 27.3.2007, (2) Cr. No. 99/2007-2008 dated 11.9.2007, (3) Cr. No. 88/2009-10 dated 16.8.2009, all on the file of the Prohibition and Excise Station, Amalapuram and (4) Cr. No. 9/2010-11 dated 26.1.2010 of P.S. Ambajipeta. Thus it is stated that the activities of the detenu/bootlegger are affecting and also likely to affect adversely the maintenance of public order in the said area. In view of the aforesaid material placed before the third respondent and on the information that the said detenu is acting and calculated to act in a manner prejudicial to the maintenance of public order and as it is necessary to prevent him from acting further, the said order of detention is passed. As per the grounds mentioned in the grounds of detention, particulars of four cases are furnished. The first case in Cr. No. 217 of 2006-2007 dated 27.3.2007 of Prohibition and Excise Station, Amalapuram, was registered under Sec. 7(A) and 8(e) of the Prohibition (Amendment) Act, on the ground that on 27.3.2007 at about 7.00 a.m. the Excise Inspector, Amalapuram, along with his staff and two mediators, while conducting patrolling in suspected area of Nadipudi village limits, they found A-1 Rayudu Durgarao and A-2, the detenu, were flaming one stick stove with a live still and on seeing the excise staff, the detenu ran away from the spot. On examining the live still, they found three aluminum vessels and one of them was a big vessel of about ten liters, fermented jaggery wash and in a similar vessel, they found five liters of illicit distilled liquor in it and also found hot water in a vessel. When A-1 was questioned by the excise officials, he stated that A-1 and A-2, the detenu, are manufacturing illicit distilled liquor and A-1 is working under A-2 on daily coolie of Rs.150/- and also helped him in preparation of the I.D. liquor and selling the same in retail. Then the Excise Inspector arrested A-1, took samples of fermented jaggery wash and I.D. liquor and registered the said crime. A-1 was produced before the Addl. Judicial Magistrate of First Class, Amalapuram on 27.3.2007, who remanded him to judicial custody and later he was released on bail. The samples which were drawn from the contraband were sent for analysis by the Chemical Examiner, who on analysis, opined that it is I.D. liquor unfit for human consumption and injurious to health. The detenu surrendered before the Addl. Judicial Magistrate of First Class, Amalapuram and later he was released on bail. The case in Cr. No.99/2007-08 dated 11.9.2007 on the file of the Prohibition and Excise Station, Amalapuram, was also registered under Sec. 7(A) and 8(e) of the Prohibition (Amendment) Act, 1997. It is stated that while the Excise Inspector, Amalapuram, along with the staff, were on patrol duty, in suspected place of Nadipudi village, on 11.9.2007, they found one person holding a ten liters can and on seeing the excise officials, he ran away by leaving the can. The staff of the raid party chased him, but in vain. Ten liters of I.D. liquor was found in the said can. Samples were taken and sent for chemical analysis and the Chemical Analyst, who analyzed the sample, opined that it is I.D. liquor, injurious to health. At the request of the Inspector, Prohibition and Excise, Amalapuram, the detenu who surrendered in Cr. No. 217/2006-07, was produced before the Addl. Judicial Magistrate of First Class, Amalapuram, on production warrant, and he was remanded to judicial custody and later released on bail. The case was charge sheeted. Cr. No. 88/2009-10 of Prohibition and Excise Station, Amalapuram was registered under Sec. 7(A) and 8(e) of the Prohibition (Amendment) Act, 1997. The said case was registered on similar grounds. On the information, the excise officials proceeded to the village limits of Nadipudi village and found two persons working on live still and on seeking them, the two persons escaped by swimming the drainage canal and reached the other side and ran towards G.Agraharam village. The raid party tried their best to catch hold them, but in vain. Both the escaped persons are old accused and identified by the raid party and one among them is the detenu. On examination of the surroundings of the live still, they found five earthen pots each with nearly 100 liters of fermented jaggery wash and one ten liters can full of I.D. liquor and one empty can of ten liters. They also obtained samples and the Chemical Examiner on analysis, opined that the sample is I.D. liquor unfit for human consumption. The case was registered on 16.8.2009 and on 17.8.2009, the detenu was arrested and produced before the Addl. Judicial Magistrate of First Class, Amalapuram and later he was released on bail. The fourth case in Cr. No. 9 of 2010 dated 26.1.2010 of Ambajipeta police Station was registered for the offence under Sec. 188, 284, 304 IPC and Sec. 7(A) of A.P. Prohibition (Amendment) Act, 1997 and Sec. 37(A) of the A.P. Excise Act, 1968. It is stated that the Deputy Superintendent of Police, Amalapuram, along with staff and mediators proceeded to the community hall in Prabhakar Nagar of G.Agraharam village of Ambajipeta Mandal and they noticed two persons holding plastic tins and on seeing the officials, they tried to escape. The Deputy Superintendent of Police, Amalapuram, took them into custody with the help of the staff. When the accused were questioned, the detenu and another informed that they are manufacturing I.D. liquor, selling the same in the surrounding villages. It is also stated that the accused No.1 sold ten liters of I.D. liquor to Pechetty Ramakrishna, who in turn sold to consumers by mixing some kind of spirit and it came to be known that some persons died after drinking I.D. liquor that was purchased from Pechetty Ramakrishna. The I.D. liquor so found was seized and samples were drawn and a case was registered on 26.1.2010. Though it is stated that the detenu was arrested on 27.1.2010, but nothing has been stated whether he was released or not. According to the remand report, the detenu was shown as Accused No.6 but not as A-2 as reflected in the grounds of the detention order. Learned counsel appearing for the petitioner submits that the correct and factual information has not been placed before the Collector and District Magistrate. It is stated that the detenu was implicated in all the four cases for statistical purpose, even though he was not involved in any of the four offences. Insofar as the first case i.e. Cr. No. 217/2006-07 is concerned, it is stated that admittedly, the detenu was not present at the time of inspection and it was alleged that on seeing the raid party, the detenu ran away and the efforts made by the authorities to arrest him have failed. However, charge sheet was filed in the case, which was numbered as CC No. 154 of 2008 and the learned Addl. Judicial Magistrate of First Class, Amalapuram, after full- fledged trial, acquitted the detenu and other accused on merits holding that when Nadipudi village is having President and Panchayat Secretary, PW-3, the Inspector of Excise, ought to have ascertained the survey number in which the still was being run illegally. It is further observed that the mediators have deposed that the mediation report was drafted in the police station and no independent witness has been examined and even the property was destroyed without permission from the authorities and that too without following the procedure and accordingly held that the prosecution has failed to prove guilt of the accused beyond reasonable doubt. It is stated that the contention of the Excise authorities that the detenu escaped on seeing the Excise officials, is improbable inasmuch it cannot be said that the Excise officials with so much of staff, have filed to apprehend the detenu. So far as the second case in Cr. No.99/2007-08 dated 11.9.2007 is concerned, it is stated that the detention order was passed on 22.4.2010; whereas, charge sheet was filed in the above crime and it was numbered as CC No. 412 of 2008 and the learned Addl. Judicial Magistrate of First Class, Amalapuram, by judgment dated 13.4.2008 i.e. eleven days prior to the passing of detention order, held that the detenu not guilty and acquitted him on merits, as can be seen from copy of the judgment in the above CC. From the perusal of the judgment, it is evident that according to the prosecution, the detenu ran away from the scene of offence by throwing the can and that the said can was identified by PW-1, but PW-1, Sub-Inspector of Prohibition and Excise, failed to bring the witnesses as mediators and, therefore, held that on consideration of Ex.P-1, special report alone, the detenu cannot be connected with the crime. It is further held that the analyst report does not contain the dispatch number and it does not disclose from whom the unexpended portion of the sample was sent to the concerned police. It is further held that the seizure of the I.D. liquor creates a doubt and accordingly the unexpended portion of the sample bottle was declined to be taken into account to connect the accused with the alleged crime. Except the sole evidence of the excise officials, no other evidence is forthcoming to establish the guilt of the accused and accordingly, the detenu was found not guilty. However, it is stated that had the information of acquittal of the detenu been placed before the Detaining Authority, the Detaining Authority would have taken into consideration the acquittal of the detenu and it is not known what order he would have passed. Therefore, non-furnishing of the information with regard to vital aspect, has prejudiced the case of the detenu. With regard to the third case in Cr. No.88/2009-10 dated 16.8.2009, it is submitted by the learned counsel for the petitioner that a perusal of the special report also creates a doubt as to how the crime was registered against the detenu. It is the case of the prosecution that on 16.8.2009 at about 4.45 p.m., the Excise Inspector along with staff noticed the detenu and other persons standing at the live still and on seeing them, the said persons escaped by swimming over the drainage canal and reached the other side. However, it is pertinent to note that in the said case, charge sheet was filed and the case was taken on file as CC No. 685 of 2009 and the learned Addl. Judicial Magistrate of Firs Class, Amalapuram, by his judgment dated 24.6.2010, acquitted the detenu and another, on merits on similar grounds, as aforesaid in the two cases. Insofar as the fourth case viz. in Cr.No. 9 of 2010 dated 26.1.2010 of Ambajipeta Police Station, is concerned, it is stated in the grounds of detention that the particulars of the arrest and release of the detenu on bail in the first three cases is mentioned whereas, in the instant case, except saying the date of arrest i.e. on the next day of the registration of crime, it is not stated as to whether he was released on bail or not. It is stated that, in fact, the detenu never applied for the grant of bail after his arrest on 26.1.2010 and he is lingering in judicial custody. Had the said information of his continuance in the judicial custody in the Central Prison, Rajahmundry, been placed before the District Collector, he might not have passed the detention order, as he was already suffering judicial custody. It is stated that it is not in dispute that the detention order was served on the detenu in the Central Prison, Rajahmundry on 27.4.2010 and the material was served on mother of the detenu. Thus it is stated that except using the phraseology and the words appearing in Section 3 of the Act, there is no material to show that the detenu is a bootlegger within the meaning of Sec.2(b) and that he is acting in the manner prejudicial to the maintenance of public order, as defined under Sec. 2(a). Under Sec.3(1) of the Act if the Detaining Authority satisfies with respect to any bootlegger, to prevent him from acting in any manner prejudicial to the maintenance of public order and if it is necessary to do so, he can make an order directing that person to be detained. It is stated that the detenu was already in jail from 27.1.2010 and, therefore, there was no requirement to pass the detention order so as to prevent him from any activity of bootlegging for the purpose of maintenance of public order. It is stated that in none of the cases the Excise authorities are able to establish the activities of bootlegging of the detenu either under A.P. Excise Act or A.P. Prohibition Act. When the detenu was already in jail and the said fact about his detention in the jail and other factum of his acquittal in other cases was brought to the notice of the District Collector, the District Collector would not have passed the said detention order. It is stated that when the detention order is passed on four grounds, since the information with regard to ground Nos.2 and 4, was not correctly placed before the District Collector, the detention order is unsustainable. In support of his contention, learned counsel places reliance on a decision Dharamdas Shamlal Agarwal Vs. The Police Commissioner and another ([1]). In the said case, the detention order was made based on five registered case, out of which, two cases which ended in acquittal, were not brought to the notice of the Detaining Authority. On that ground, the Supreme Court held that the detention order vitiates the requisite subjective satisfaction, rendering the detention order invalid. The relevant paragraph No.12, is reproduced hereunder: From the above decisions it emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. It is clear to our mind that in the case on hand, at the time when the detaining authority passed the detention order this vital fact, namely, the acquittals of the detenu in case Nos. mentioned at serial Nos. 2 and 3 have not been brought to his notice and on the other hand they were withheld and the detaining authority was given to understand that the trial of those cases were pending. The explanation given by the learned counsel for the respondents, as we have already pointed out, cannot be accepted for a moment. The result is that the non placing of the material fact--namely the acquittal of detenu in the above-said two cases resulting in non- application of mind of the detaining authority to the said fact has vitiated the requisite subjective satisfaction, rendering the impugned detention order invalid. The learned counsel for the petitioner submit that when the information about his non-moving the bail application in Cr. No. 9 of 2010 of Ambajipeta Police Station dated 26.1.2010 and about his continuance in judicial custody was not brought to the notice of the District Collector apart from his continuance in the judicial custody from 27.1.2010 till passing of the detention order dated 22.4.2010, it cannot be said that the detenu is acting and also calculated to act in a manner prejudicial to the maintenance of public order. It is further stated that the opinion of the District Collector that it is not possible to immediately prevent the detenu from indulging in similar activities prejudicial to the public order is without any basis, more so, when the detenu is in jail without filing any bail application. In view of the aforesaid facts and circumstances, we are unable to sustain the order of detention and we also do not see any material to establish that the activities of the detenu are affecting the community creating a sense of insecurity, danger to life and health of public in that locality. The so called huge disturbance, which is said to have been affecting the life of the community of the locality by the acts of the detenu affecting public order and that it was not possible to immediately prevent the detenu from indulging in similar prejudicial activities affecting public health and order was routinely mentioned in the detention order without actually applying the mind by the Detaining Authority. It is the subjective satisfaction of the Detaining Authority, while making the order under Sec. 3 of the Act, which is of prime importance. As all the factual aspects have not been placed before the Detaining Authority, as stated supra, the subjective satisfaction of the Detaining Authority is vitiated and the detention order is unsustainable and is accordingly liable to be quashed. The writ petition is accordingly allowed and the detention order in Rc. No. A3/104/2010 dated 22.4.2010 is quashed. No order as to cost. ________________ Justice V.Eswaraiah ___________________________ Justice Samudrala Govindarajulu November 9, 2010 MAS LR Copy to be marked //BO// //DSR// [1] AIR 1989 S.C. 1282