THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO W.P.No.7129 of 2010 Date of Order: 09-07-2010 Between: Smt.V.Swaroopa ..Petitioner and 1.Govt. 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 RAJA ELANGO W.P.No.7129 of 2010 Oral Order: (Per Honourable Sri Justice A.Gopal Reddy) 1. In this writ petition filed under Article 226 of the Constitution, the petitioner—Vemula Swaroopa, wife of the detenu—Vemula Pedda Sammaiah, challenges the detention order passed against her husband by the Collector and District Magistrate, Khammam District in Cr.No.292/2009 P&Ex./A3 dated 26-11-2009, as confirmed by the Government in G.O.Rt.No.633, dated 08-02-2010 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. Briefly stated the alleged facts as set out in the grounds of detention dated 26-11-2009 are that prior to the detention the alleged detenu was arrested in the following cases booked by the Prohibition and Excise Officials of Khammam District. 1. Cr.No.579/2007-2008 of Prohibition and Excise Station, Manuguru, Khammam District, the alleged detenu was found to have been in possession of 60 liters of Illicitly Distilled liquor (I.D. liquor). 2. Cr.No.429/2008-2009 dated 25-09-2008 of Prohibition and Excise Station, Manuguru for involving 15 liters of I.D. liquor in three polythene covers in a gunny bag. 3. Cr.No.637/2008-2009 of Prohibition and Excise Station, Manuguru for involving 5 liters of I.D.liquor. 4. Cr.No.75/2009-2010 of Prohibition and Excise Station, Manuguru for involving 15 liters of I.D.liquor. 5. Cr.No.372/2009-2010 of Prohibition and Excise Station, Manuguru for involving 40 liters of I.D. liquor in eight polythene covers in a gunny bag. 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 was seized and samples were drawn and sent to the Government Chemical Examiner, Warangal. As per he Chemical Analysts reports, it was found that all the samples drawn from the seized contraband was found to be “illicitly distilled liquor containing sediment, injuries to health and unfit for human consumption.” 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., manufacturing, possession, transportation and sale of I.D.liquor for money gain in Gollakothur Village, Manuguru Mandal, Khammam District, which is unfit for human consumption, and as it will adversely affect the public health particularly, the Collector and District Magistrate, Khammam District in exercise of the powers vested in him under sub-sections (1) and (2) of Section 3 of the Act 1/1986 ordered for his detention until further orders and be lodged in Central Prison, Warangal, by the impugned order in Cr.No.292/2009 P&Ex./A3 dated 26-11-2009 from the date of service. The Government in their order in G.O.Rt.No.5744, General Administration (Law & Order) Department, dated 02-12-2009, 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, Vemula Pedda Sammaiah. 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 13 of the Act 1/1986, through G.O.Rt.No.633 General Administration (Law & Order.II) Department, dated 08-02-2010 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. 19-01-2010. 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 1/1986; 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, the detenu cannot be detained. The criminal offence is 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. 5. The second respondent—Collector filed a 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 five crimes and he was found in possession of I.D.liquor apart from its manufacturing with the help of others. The jaggary fermented wash about 1500 liters fit for distillation was destroyed on the spot and 60 liters of ID liquor was seized in Cr.No.579/2007-2008; 15 liters of ID liquor in Cr.No.429/2008-2009; 5 liters of ID liquor in Cr.No.637/2008-2009 and the jaggery fermented wash about 600 liters fit for distillation was destroyed on the spot and 15 liters of ID liquor was seized in Cr.No.75/2009-2010 and lastly found 40 liters of ID liquor packed in a gunny bag transporting in 8 polythene covers and in all the cases charge sheets have been filed and cases are pending for trial. As the detenu was continuously indulged in ‘bootlegging’ activities in spite of cases registered against him under the provisions of A.P. Prohibition Act and ordinary penal laws failed to curb the illegal activities, then it is necessitated to pass the detention order against the detenu. 6. Learned counsel for the petitioner, Sri Y.Balaji, by placing reliance on the Full Bench judgment of this Court in DODDI SHARADA v. COLLECTOR, DISTRICT MAGISTRATE, HYDERABAD DISTRICT, HYDERABAD[1] contended that unless the grounds of detention specifically advert to the fact that the percentage of the fusel oil or other impurities found in the seized liquor constitutes a grave or wide spread danger to life or public health, it is not open to the detaining authority to order detention. Unless the alleged activities of the detenu either affect or likely to affect adversely the maintenance of public order, the detenu cannot be detained. For the said proposition, he placed reliance on the Division Bench judgment of this Court in BOYA CHINNA SUBBARAYUDU v. THE COLLECTOR AND DISTRICT MAGISTRATE, KURNOOL[2]. He also contends that accused is presumed to be innocent till the guilt is proved beyond reasonable doubt. Therefore, when the cases are already filed against the accused, detention order cannot be passed, depriving the liberty of the detenu, which violates Article 21 of the Constitution of India. 7. On the other hand, Smt. Mohana, the learned Government Pleader representing the Advocate General contended that the detenu is a habitual bootlegger of manufacturing and transporting I.D. liquor and the Collector after taking into consideration the Chemical Analyst reports in all the cases that the seized contraband is unfit for human consumption, in exercise of the power under Section 3 of Act 1 of 1986 has rightly ordered for his detention, as the activity of the detenu in manufacturing and transporting of the I.D. liquor will adversely affect the health of the downtrodden and underprivileged living in the area and as such no interference is warranted by this Court. 8. 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 Detaining Authority as approved by the Government in G.O.Rt.No.5744 dated 02-12-2009 and confirmed in G.O.Rt.No.633 dated 08- 02-2010 can be sustained or not?" 9. 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 whom 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). 10. 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." 11. 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.” 12. 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. " 13. 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]. 14. 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 once 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 I.D. 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. 15. Admittedly, in the present case, the detenu was supplied all the material on which the detention order has been passed; the subjective satisfaction reached by the detaining authority that bootlegging activities of the detenu cannot be prevented under the ordinary laws, which necessitated to detain the detenu under the Preventive Detention Act, 1986 to prevent him from indulging bootlegging activities, which are dangerous to public health and prejudicial to the maintenance of public order. Therefore, the detention order passed by the Collector & 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. Having regard to the conclusions reached by us, we do not see any substance in the contentions advanced by the learned counsel for the petitioner that unless the alleged activities of the detenu either affect or likely to affect aversely the maintenance of public order, the detenu cannot be detained and the detenu is presumed to be innocent till the guilt is proved beyond reasonable doubt. 17. The writ petition fails and is accordingly dismissed at the stage of admission. ________________ A.GOPAL REDDY, J. _____________ RAJA ELANGO,J. 09-07-2010 L.R.Copy to be marked: Yes/No (bo) Murthy [1] 2005(2) ALT 244 (FB) [2] 1995 (1) ALT 58 (DB) [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