*THE HON'BLE SRI JUSTICE P.S.NARAYANA & THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO +W.P.No.8980 of 2007 % 16-5-2007 # Smt.Lalitha .. Petitioner Vs. $ The State of A.P. Rep. by Chief Secretary to Government Secretariat, Hyderabad and another .. Respondents <HEAD NOTE: <GIST: ! Counsel for petitioner : Sri T.V. Ramana Rao ^ Counsel for respondents : Advocate General ? CASES REFERRED : 1. 2005(2) ALT 244 (FB) 2. 2006(3) SCC 321 3. 2003(1) ALT (Crl) 181 (D.B.) 4. 1998(1) ALT (Crl) 190 (D.B.) 5. 1997(2) ALT (Crl) 130 (D.B.) 6.1995(1) An.W.R. 345 (D.B.) 7. AIR 1989 S.C. 1703 8. 1997(1) ALT (Crl) 184(D.B.) 9. 1998(2) ALT 660(D.B.) 10. 1994(4) ALT 743 (D.B.) 11. 2000(4) ALT 540(D.B.) 12. 2004(5) ALT 250(D.B.) 13. 2005(3) ALT 487 (D.B.) 14. AIR 1989 S.C. 364 15. AIR 1981 S.C. 431 16. (2002) 3 SCC 754 17. AIR 1975 S.C. 609 18. AIR 1975 S.C. 808 19. AIR 1975 S.C. 1165 20. AIR 1974 S.C. 1214 21. AIR 1972 S.C. 1669 22. AIR 1975 S.C. 473 23. AIR 1975 S.C. 522 24. AIR 1975 S.C. 1093 25. AIR 1974 S.C. 1336 26. 2006(3) SCC 321 THE HON'BLE SRI JUSTICE P.S.NARAYANA & THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.No.8980 of 2007 Date : -5-2007 Between: Smt.Lalitha w/o.Banoth Sammaiah .. Petitioner And The State of A.P. Rep. by Chief Secretary to Government, Secretariat, Hyderabad and another .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA & THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.No.8980 of 2007 ORDER: ( per P.S. Narayana.,J) 1. Smt.Lalitha, w/o.Banoth Sammaiah, filed the present Writ Petition praying for a writ of Habeas Corpus directing the respondents to produce the detenu by name Banoth Sammaiah s/o.Balu Naik, aged 28 years, R/o. K.K. Nagar Mandal, Kamanpur of Karimnagar District and set him at liberty by declaring the detention order dated 7-4- 2007 in Rc.No.306/2007/P&Ex/A3 passed by the 2nd respondent and the order in G.O.Rt.No.1942, General Administration (Law and Order.II) Department dated 12-4- 2007 passed by the 1st respondent approving the detention order as illegal, arbitrary and contrary to the provisions of Act No.1 of 1986 and Article 21 of the Constitution of India and to pass such other suitable orders. 2. It is stated that the petitioner is a resident of K.K. Nagar, Godavarikhani of Kamanpur Mandal of Karimnagar District and eking out livelihood by working as a daily agricultural labour and she is the wife of the detenu by name Banoth Sammaiah and her husband also is working as agricultural labour and they are poor and belong to socially and economically backward class community. It is stated that the 2nd respondent herein passed the order dated 7-4-2007 in Rc.No.306/2007/P&Ex/A3 exercising the powers under Section 3(1) and 3(2) of A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (hereinafter in short referred to as “Act” for the purpose of convenience) on the ground that the detenu was involved in three criminal cases i.e., (i) C.O.R.No.19/2006-07 dated 20-4-2006, (ii) C.O.R.No.470/2006-07 dated 29-12-2006 and (iii) C.O.R.No.635/2006-07 dated 12-3-2007 under Section 7- A r/w. Section 8(e) of A.P. Prohibition & Excise Act 1995 on the file of Prohibition & Excise Station, Godavarikhani-II of Karimnagar District. It is further stated that charge sheet was filed in all the above said cases on 28-3-2007 and they are pending for trial. The detenu was taken into custody on 7-4-2007 and is detained in Central Prison, Warangal. The detenu was served with the detention order dated 7-4-2007 and the grounds of detention and in the grounds of detention only three cases as aforesaid were referred to for initiation of the proceedings under Section 3 of the Act. It is also stated that the involvement of the detenu in the above referred cases is yet to be established by the competent court in which the charge sheet was filed. Except the above said three cases, the detenu was not involved in any other case nor he was convicted for any other offence. The passing of the impugned order referring to the above three criminal cases is irrelevant and does not constitute a ground for initiating proceedings under Section 3 of the Act. The acts of the detenu alleged in the above criminal cases does not constitute any offence or acting in any manner prejudicial to the maintenance of public order even if they were taken on their face value and as such the detention order is liable to be set aside. The detention order passed by the 2nd respondent did not appreciate the material placed before it and had passed the order mechanically and the material placed before the 2nd respondent does not warrant passing of the detention order dated 7-4- 2007. It is also stated that the 1st respondent-detaining authority relied on three crimes referred above in which the detenu was stated to have involved in possession of 5 litres of I.D. Liquor, 20 litres of I.D. liquor and 5 litres of I.D. liquor respectively. The possession of small quantity of liquor does not cause any prejudice to the maintenance of public order. Further, the grounds shown in the detention order are stale, irrelevant and hence the detention order is liable to be set aside and it is not known which ground influenced the detention authority in passing the impugned order. Further, the detenu was arrested in all the three cases and was released on bail and charge sheet was also filed. The detaining authority did not place orders granting bail to the detenu and copies of charge sheet filed in the above cases along with the grounds of detention order so as to enable the detenu to make effective representation to the detaining authority and to the Government and on this ground alone the impugned order is liable to be set aside. It is further stated that the Hon’ble Supreme Court in a number of cases was pleased to hold that the documents which were referred to and relied on by the detaining authority must form part of the detention order and failure to serve documents i.e., bail order and charge sheet, vitiates the detention order. In such circumstances, the petitioner filed the present Writ Petition under Article 226 of the Constitution of India. 3. A counter affidavit is filed on behalf of the 2nd respondent wherein it was stated that the order of detention against the detenu Banoth Sammaiah was passed by exercising the powers under Section 3(1) and (2) r/w. Section 2(a) and (b) of the Act as he had been indulging in the offences of possession, transportation and sale of I.D. liquor in and around K.K. Nagar, Godavarikhani of Karimnagar District in the manner prejudicial to the maintenance of public order and tranquility thereby causing danger to the public health. The illicitly distilled liquor sold by the detenu was prepared in crude methods and it was causing wide spread danger to the public health. Upon perusing the record placed by the Sponsoring Authority i.e., Prohibition & Excise superintendent, Peddapalle, Karimnagar District, it is clear that the activities of the detenu fall within the definition of Bootlegger as defined under Section 2(b) of the Act and accordingly the impugned order was passed on satisfying that the circumstances exist for passing the order of detention. It is also further stated that while passing the impugned order, in order to determine the conduct of the detenu, the 2nd respondent had gone through various cases registered against him. On 20-4-2006 at about 6.50 P.M. the Excise officials proceeded to the house of the detenu on reliable information that he was in possession of I.D. liquor and found him in possession of a can with 5 litres of I.D. liquor. The said contraband was seized from his possession and the sample drawn was sent for chemical analysis and C.O.R.No.19-2006 was registered under Section 7(A) r/w. Section 8(3) of A.P. Prohibition & Excise Act 1995 of Prohibition and Excise Station, Godavarikhani.II and that the detenu was arrested and sent to judicial custody. The Chemical Examiner, Warangal, analysed the sample and in his report in C.E.No.647/2006 Sl.No.11823 dated 22-8-2006 opined that the sample is illicitly distilled liquor containing sediment. It was also opined that the same is injurious to the health and unfit for human consumption. After completing the investigation charge sheet was filed before the Judicial First Class Magistrate, Manthani and it is yet to be numbered. Further, on 29-12-2006 at about 12.30 P.M. when the Excise Officials proceeded to the house of the detenu on reliable information of sale of I.D. liquor and proceeded to Railway Track 7B, Vittalnagar, Godavarikhani, they found the detenu in possession of 20 litres of I.D. liquor. The said contraband was seized from his possession and the sample drawn was sent for chemical analysis and C.O.R.No.470/2006-07 was registered under Section 7(A) r/w. Section 8(e) of A.P. Prohibition and Excise Act 1995 of Prohibition and Excise Station, Godavarikhani.II and the detenu was arrested and sent to judicial custody. The Chemical Examiner, Warangal, analysed the sample and in his report in C.E.No.119/2007 Sl.No.3068, dated 29-1-2007, it was opined that the sample written statement illicitly distilled liquor containing sediment and the same is injurious to health and unfit for human consumption. After completing the investigation, charge sheet was filed before the Judicial First Class Magistrate, Godavarikhani and it is yet to be numbered. It is further stated that on 12-3-2007 at about 8 A.M. the Excise officials proceeded to the house of the detenu on reliable information of sale of I.D. liquor, proceeded to 5 Incline Chowrastha, Godavarikhani and found the detenu in possession of 5 litres of I.D. liquor. The said contraband was seized from the possession of the detenu and the sample drawn was sent for chemical analysis. On that the detenu was arrested and sent to judicial custody and C.O.R.No.635/2006-07 was registered. The Chemical Examiner, Warangal, analysed the sample and in his report in C.E.No.402/2007, Sl.No.6868, dated 23-3-2007 opined that the sample is illicitly distilled liquor containing sediment and the same is injurious to health and unfit for human consumption. After completing the investigation, charge sheet was filed before the Judicial First Class Magistrate, Godavarikhani and it is yet to be numbered. Thus the activities of the detenu clearly fall within the definition of “Bootlegger” as defined under Section 2(b) of the Act requiring passing of the order of detention. Upon perusing of the material papers, the 2nd respondent is satisfied that the detenu shall be prevented from further indulging himself in similar offences in future and thereby the order of detention was passed on justified grounds on 7-4-2007. It is further stated that the detenu was taken into custody on 7-4-2007 and lodged at Central Prison, Warangal and at the time of taking him into custody the order of detention, the grounds of detention and the material relied upon were served on the detenu and the same was acknowledged by him. The detenu was duly informed that he has a right to make representation to the Detaining Authority, Chief Secretary to Government and Advisory Board and thus the Constitutional and statutory mandate had been complied with. It is further stated that the Government issued G.O.Rt.No.1942, General Administration (Law & Order.II) Department, dated 12-4-2007 approving the order of detention and the order of detention passed against the detenu will be placed before the Advisory Board in its meeting to be held on 30-4-2007 and after the Advisory Board rendering its opinion the Government would pass appropriate orders. Further it is stated that the detention order under the Act was passed only to prevent the detenu from further indulging in such bootlegging activities. It is further stated that the competent Court would try the cases and pass appropriate orders, but that does not bar the detaining authority from passing the order of detention against the detenu with a view to prevent him from further indulging in such illegal activities on perusing the material placed before it on justified grounds. It cannot be said that the detention order is liable to be set aside on the ground that he was not convicted or the truth or otherwise of the above cases is not yet established by the competent Court. It is also further stated that the crimes referred to in the order of detention are of the same Excise Year 2006-07 and in all the crimes the detenu was caught red-handedly while he was in possession of I.D. liquor and hence it cannot be said that the crimes are irrelevant for arriving at the subjective satisfaction. Further it is stated that it is not correct to state that the crimes mentioned in the detention order are stale. The first crime was registered in April 2006, the second was registered in the month of December 2006 and the third was registered in the month of March 2007 and the order of detention was passed against the detenu on 7-4-2007 and as such it cannot be said that the crimes registered are stale, irrelevant and the order of detention is liable to be set aside on the said grounds. It is further stated that the ordinary Excise Laws failed to curb the illegal activities of the detenu and hence he was continuously indulging in bootlegging activities despite registration of crimes against him and hence the order of detention against the detenu to prevent him further indulging in such activities was passed. It is further stated that in COR.No.19/2006-07 the detenu was found in possession of 5 litres of I.D. liquor, in C.O.R.No.470/2006-07 the detenu was found in possession of 20 litres of I.D. liquor and in C.O.R.No.635/2006-07 the detenu was found in possession of 5 litres of I.D. liquor. Further it is stated that by consuming the said I.D. liquor, there would be wide spread danger to the public health and it would cause prejudice to the maintenance of public order and therefore it is not the quantity of the liquor but quality of the liquor is the criterion under the provisions of the Act. The detenu was in possession of I.D. liquor and after analysis of the sample, the Chemical Examiner opined that it is illicitly distilled liquor and injurious to health and unfit for human consumption. It is further stated that the order of detention was made basing on the decision of this Court in Doddi Sharada Vs. Collector and District Magistrate[1] wherein it was held that the opinion of the Analyst is paramount to determine whether the liquor seized would cause danger to the public health. The opinion of the Analyst that the liquor is not potable and unfit for human consumption is the relevant material to detain a person. Hence it cannot be said that the order of detention is liable to be set aside on this ground. It is also further stated that in C.O.R.No.19/2006-07 registered on 20-4-2006, the detenu was enlarged on bail on 21-4-2006; in C.O.R.No.470/2006-07 the detenu was arrested on 29-12- 2006 and was released on bail on 2-1-2007 and in C.O.R.No.635/2006-07 the detenu was arrested on 12-3- 2007 and was released on bail on 13-3-2007. As the said offences are bailable in nature, the detenu was enlarged on bail within one or two days of his arrest. It is further stated that the detention order was passed placing reliance on Sunila Jain Vs. Union of India [2] wherein it was held that if a person had been released on bail on the ground that the offence is bailable it would not be necessary to bring the said fact before the detaining authority. The detaining authority will have to satisfy himself on the basis of the material placed on record as to whether the order of preventive detention should be passed against the detenu or not. The 2nd respondent had arrived at the subjective satisfaction on the basis of the Chemical Examiner’s Report and the same were served on the detenu and it cannot be said that the order of detention is vitiated on the ground that the bail application and bail orders were not served on the detenu and it would affect the right to make an effective representation to the detaining authority and the Government. This is the stand taken by the 2nd respondent in the counter affidavit. 4. Heard Sri T.V. Ramana Rao, the Counsel representing the writ petitioner and also the learned Adovcate General. 5. The Counsel on record addressed elaborate submissions and also placed reliance on certain decisions to substantiate their respective contentions. The grounds specified being self-explanatory which already had been referred to supra, the same need not be repeated again. Section 2(b) of the Act defines ‘boot- legger’ as hereunder : “boot-legger means a person, who distils manufacturers, 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 above mentioned things by himself or through any other person, or who abets in any other manner the doing of any such thing”. Section 3 of the Act dealing with Power to make orders detaining certain persons reads as hereunder : (1) The Government may, if satisfied with respect to any bootlegger, 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 of 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.” In Section 3(1), the words “… from acting in any manner prejudicial to the maintenance of public order…” would assume some importance. In sub-section (2) proviso, the words “…. shall not in the first instance exceed three months” also may be relevant in this context. In M.Laxmi Bai Vs. Commissioner of Police [3] it was observed at paras 8, 9, 15 to 18 as hereunder : “If a bootlegger sells ID arrack, which contains harmful substances, certainly he can be detained on the ground that his activities constitute grave danger to life or public health. A person cannot be detained under Section 3(1) unless the acts in which he is indulging affect or likely to affect adversely to the maintenance of public order. If the Chemical Examiner’s report does not disclose as to what is the permissible level of the fusil oil and impermissible limits so as to cause grave or widespread danger to life or public health, the detaining authority is not justified in ordering detention. Boya Chinna Subbarayudu V. The Collector and District Magistrate, Kurnool and others (1994(3) ALT 467 (D.B.) If the order of detention is not in accordance with law, it cannot be sustained and the same is liable to be quashed on the ground that there was no material to show that the contraband, if consumed, will result in grave or widespread danger to life or public health. Smt.Konala Syama,a v. The Collector & District Magistrate, East Godavari District.(1996(4) ALT 205(D.B.). In K.Aruna Kumari v. Govt. of A.P. (1988) 1 SCC 296) the Supreme Court held that if material and vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed, it would vitiate the subjective satisfaction rendering the detention order illegal. I n Shivprasad Bhatnagar v. State of Madhya Pradesh (AIR 1981 S.C. 870) the Supreme Court held as follows: “It is now well settled that grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, staleness and vagueness are vices, any single one of which is sufficient to vitiate the ground of detention. And, a single vicious ground is sufficient to vitiate an order of detention.” The Supreme Court further held that : “The second ground of detention suffers from both the vice of staleness because of the passage of time since the happening of some of the incidents, and the vice of irrelevance because they relate to ‘law and order’ and not to ‘the maintenance of public order’. The detenu is therefore entitled to be released.” In Raji Reddi V. The Collector & District Magistrate, Adilabad (1996(4) ALT 305(D.B.) a Division Bench of this Court held that the detaining authority has to prove that the detenu is continuously engaged in activities in a manner prejudicial to the maintenance of public order before ordering detention and an isolated incident cannot be made a basis to show the detenu as habitual offender and the order of detention passed by the authority in a mechanical manner without applying its mind to the facts of the case is unsustainable.” I n K.Ramamohan Reddy Vs. Chief Secretary to Government [4] it was held at paras 5, 6, 7, 8, 9 and 10 as hereunder : “The law is well settled that all the relevant material containing in the grounds, form the basis of order of detention and therefore the said material should have been considered by 2nd respondent, the detaining authority, and the detenu should be supplied with the same, failure forms vice of non- application of mind by the detaining authority. Undoubtedly, the bail application, the order granting the bail and also orders issuing NBW should be taken into consideration by the detaining authority. It is important to notice that order granting bail to the detenu might indicate that there was, prima facie, no case against the detenu, in which he was involved. Hence it is a favourable material to the detenu, which has to be considered by the detaining authority before he comes to the subjective satisfaction. Admittedly the detaining authority has not considered the order granting bail to the detenu. It is only stated that he was aware of the said fact. Awareness of a fact is totally different from considering the said fact. Only in the process of consideration the application of mind will be involved. Awareness of a fact does not amount to consideration. Awareness is only knowledge of a fact, which is neutral circumstance, whereas the consideration is an active application of the mind on the known facts. In formation of an opinion whether a person is liable to be placed under preventive detention or not, active application of the mind of the detaining authority is what is needed. Learned Counsel