THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.No.24200 OF 2009 ORDER: (per Hon’ble Sri Justice Nooty Ramamohana Rao) This writ of Habeas Corpus has been instituted by the father of detune, against whom the 2nd respondent – District Magistrate and Collector, East Godavari, passed Orders of detention on 27-10-2009, exercising the power available to him under Section 3 of the Andhra Pradesh Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 ( Act No.1 of 1986) (henceforth referred to as ‘the P.D. Act’). The 2nd respondent – District Magistrate and Collector, while passing Orders on 27-10-2009, has set out in detail the grounds for ordering the detention. It was stated that on 06-04-2008, at about 4-00 pm., the Prohibition & Excise Inspector, Rajahmundry, has apprehended the detune for carrying one gunny bag containing 30 liters of illicitly distilled liquor. A case was registered in that regard in Crime No.7 of 2008-09, dated 06-04-2008, by Prohibition & Excise Station, Rajahmundry North. On 15-12-2008, at about 6-00 am, the detune was again detained along with two other persons near about Arts College main gate, while he was carrying one black plastic can containing 10 liters of illicitly distilled liquor. Again on 19-06-2008, at about 11- 00 am, the detune was found carrying on two gunny bags containing 90 liters of illicitly distilled liquor and hence, arrested. On 21-11-2008, at about 4-45 pm, the Prohibition & Excise Inspector, Rajahmundry, along with the rest of the staff when approached the residence of the detune and found illicitly distilled liquor being sold there, the detune and his family members have attacked the Assistant Excise Superintendent and caused injuries to him and the other supporting excise staff. Crime No.545 of 2008-09, was booked by the Prohibition & Excise Station, Rajahmundry North, about the sale of illicitly distilled liquor. It was further mentioned that the Station House Officer, I Town Police Station, Rajahmundry, also booked Crime No.414 of 2008, under Sections 332 & 307 r/w Section 34 of the Indian Penal Code, and the same is under trial on the file of the II Additional Assistant Sessions Judge’s Court, Rajahmundry. The District Magistrate and Collector went on record that on 12-06- 2009, at about 4-00 am., the Prohibition & Excise Sub Inspector, Peddapuram, while conducting route-watch exercise at Vadisaleru Village of Rangampeta Mandal, arrested the detune with 20 liters of illicitly distilled liquor and Crime No.168 of 2009-10 was booked accordingly on 12-06-2009. Taking these circumstances into consideration, the satisfaction has been recorded by the District Magistrate and Collector about the necessity to detain the detune. The Order passed by the District Collector and Magistrate was considered by the Government along with the report submitted by the Advisory Board constituted and confirmed the said Orders. This order of detention has been attacked on various grounds and importantly, alleging that stray instances of remote past have been taken into account and consideration and that clear instances of false cases booked against the detune were taken into account and consideration. Further, it was contended that no material, much less, any papers concerning Crime No.414 of 2008, on the file of the I Town Police Station, Rajahmundry, have been furnished by the 2nd respondent and hence, the Order of detention is vitiated, inasmuch as, the detune has been denied the effective right to defend himself against the same. The ‘P.D.Act’ has been ushered in for achieving maintenance of law and order situation satisfactorily and to prevent its deterioration by acts indulged in by certain individuals. The Act is intended to preventively detain such persons, who answer the definition of Boot Leggers, Dacoits, Drug Offenders, etcetera, who indulge in acts considered prejudicial to public order. Before answering as to what acts constitute or cause breach of public order, it will be important to notice the definition of the expression ‘Boot Legger’, as was set out in Section 2(b) of the Act, in the following words: “boot-legger” means a person, who distills 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 applied 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.” The expression ‘Boot Legger’ was defined in a very wide manner, so that, any person who distils any liquor or even transports the same contrary to the provisions contained in A.P. Excise Act, 1968 and the rules made thereunder, will also get attracted. In the instant case, the District Magistrate and Collector has certain material before him, to demonstrate that the detune was either manufacturing and/or transporting liquor illicitly brewed and distilled. Therefore, the formation of an opinion by the District Collector that the detune is a Boot Legger, cannot be faulted, as the same is based upon the facts leading to prosecution launched by Prohibition & Excise Department against the detune in several cases and that too with regular periodicity. Now, let us have a look at the principles enunciated by the Supreme Court in various judgments to distinguish the elements of ‘public order’ from ‘law and order’. In RAM MANOHAR LOHIA v. STATE OF BIHAR[1], and it is held as under: “ ……… Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State……….” I n ARM GHOSH v. STATE OF WEST BENGAL[2], it was set out as under: "Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chambermaids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its effect upon the public tranquility there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community…..” Again in KANU BISWAS v. STATE OF WEST BENGAL[3], it is held as follows: "The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order........ is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above case is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of society undisturbed?" In SUBHASH BHANDARI v. DISTRICT MAGISTRATE, LUCKNOW[4], it is stated thus : "A solitary act of omission or commission can be taken into consideration for being subjectively satisfied, by the detaining authority to pass an order of detention if the reach, effect and potentiality of the act is such that it disturbs public tranquility by creating terror and panic iii the society or a considerable number of the people in a specified Locality where the act is alleged to have been committed. Thus it is the degree and extent of the reach of the act upon the society which is vital for considering the question whether a man has committed only a breach of law and order or has acted in a manner likely to cause disturbance to public order." From the above decisions, it clearly emerges that the potentiality of the acts indulged in by the individual and their likely impact upon the tranquility of the society marks out such men as possible offenders of public order. Going by the definition of the expression “boot legger”, in the Act and the material gathered for forming the grounds of detention, clearly mark out, the detenue to be a boot legger. Sub-section (1) of Section 3 gave power to the State Government to detain any ‘Boot Legger’ to prevent him from acting, in any manner, prejudicial to the maintenance of public order. Sub-section (2) of Section 3 enables the State Government to delegate on to the District Magistrate or the Commissioner of Police to perform same powers as are exercisable by the State Government under Sub-section (1) of Section 3. That is how the District Magistrate has come to pass order of preventive detention against the detune in the instant case. Article 22 of our Constitution provides for protection against arrest and detention in certain cases. While Clause (1) thereof mandates that no person arrested shall be detained in custody without being informed of grounds for such arrest, Clause (5) requires the authority making the order of preventive detention to communicate to such a person the grounds on which the said order has been made and afford him the earliest opportunity of making a representation against the order. Therefore, it was imperative, for the detaining authority to make available to the detune, the grounds upon which the decision was rested by him and the background material, while ordering the detention. Sri Challa Dhanunjaya, the learned counsel for the petitioner, has submitted that one of the grounds based upon by the District Magistrate for ordering the detention was involvement of the detune in Crime No.414 of 2008 by the I Town Police Station, Rajahmundry and no material is supplied in that regard, though asked for and hence, the detune was denied an effective opportunity to represent against his detention. He would submit that this particular case has obviously weighed heavily on the mind of the detaining authority. The learned counsel, in support of this plea, has also placed strong reliance upon the judgments rendered by the Supreme Court in GURDIP SINGH v. UNION OF INDIA[5] and in THAHIRA HARIS AND OTHERS v. GOVERNMENT OF KARNATAKA AND OTHERS[6] Per contra, the learned Assistant Government Pleader would submit that the reasons or grounds, which weighed with the District Magistrate are all relating to the involvement of the detune in various cases, prosecution for which has been launched by the Prohibition & Excise Department. The actual reference to Crime No.414 of 2008, booked by I Town Police Station, Rajahmundry, is purely incidental and the same has been referred to in connection with Crime No.545 of 2008-09, dated 21-11-2008, on the file of the Prohibition & Excise Station, Rajahmundry. The learned Assistant Government Pleader would submit that it is the activities relating to either distillation or transportation of illicit liquor indulged in by the detune, which enables the District Magistrate to consider as to whether such activities are, in any manner, prejudicial to the maintenance of public order and hence, the involvement of the detune or the rest of his family members in Crime No.414 of 2008, on the file of the I Town Police Station, Rajahmundry, is not a material or substantive factor or element that lead to the formation of the necessary opinion. The learned Assistant Government Pleader places reliance upon the judgment rendered by the Supreme Court in Mst. L.M.S. Ummu Saleema v. B.B. Gujaral[7] in support of her contention. Two questions of importance fall for our consideration; (1) whether the activities of the detune are justifiably considered as causing prejudice to public order or not; and (2) whether the detune has been denied his fundamental right of making an effective representation against his preventive detention by failure to supply the material or grounds, which formed the basis for the opinion of the District Magistrate for preventively detain him. The District Magistrate while passing the impugned order of detention has clearly set out as to what material has been examined by him for formulating his opinion. He started with the incident that was reported against the detune on 06-04-2008, wherein the Prohibition & Excise Inspector, ESTF, Rajahmundry, apprehended the detune while he was carrying a gunny bag containing 30 liters of illicitly distilled liquor. This led to registering Crime No.7 of 2008-09, by the said Prohibition & Excise staff. Again on 15-04-2008, the Prohibition & Excise staff have apprehended the detune while he was carrying one black plastic can containing 10 liters of illicitly distilled liquor. That led to registering Crime No.24 of 2008-09, against the detune. Again on 19-07-2008, at about 11-00 am., the Prohibition & Excise Inspector apprehended the detune while he was in possession of two gunny bags containing 90 liters of illicitly distilled liquor, which led to registering Crime No.203 of 2008-09 by him. Again on 21-11-2008, the Prohibition & Excise Inspector, Rajahmundry, along with his staff in the presence of the Assistant Excise Superintendent, Rajahmundry, conducted a raid at the residence of the detune on a definite information received by them that illicitly distilled liquor was being sold there at. That incident, ultimately, resulted in registering Crime No.545 of 2008-09 by the Prohibition & Excise Station, Rajahmundry, while this event of raid also led to certain unpleasant developments including assault of the Prohibition & Excise officials resulting in injuries being sustained by them, which led to registering Crime No.414 of 2008, by the I Town Police Station, Rajahmundry. It would at once be appropriate to notice that the order of detention did not stop here with this event. The District Magistrate has further considered the event that took place on 12-06-2009, when the Prohibition & Excise Sub Inspector, Peddapuram, apprehended the detune at Vadisaleru Village of Rangampeta Mandal, East Godavari District, while he was carrying 20 liters of illicitly distilled liquor. It is, therefore, crystal clear that the District Magistrate has chronologically referred to the acts prejudicial to public order indulged in by the detune at regular intervals. If the District Magistrate had really based his conclusion or satisfaction solely upon the incident that occurred on 21- 11-2008, perhaps, it would have been a different matter, but however, the District Magistrate had proceeded to consider the further fact that on 12-06-2009, the detune was apprehended by the Prohibition & Excise staff at a far off place from Rajahmundry town in East Godavari District. Clearly, the District Magistrate has recorded the pre and post events in the detention order in a chronological manner and in that process, he had referred to Crime No.414 of 2008 booked by the I Town Police Station, Rajahmundry. Hence, it will be improper to hold that the incident that led to Crime No.414 of 2008 has played a substantial role for the District Magistrate to be satisfied of the dangerous activities which are prejudicial to public order indulged in by the detune. As was noticed supra, the various activities indulged in by the detune, which, obviously, weighed with the District Magistrate, all related to either distillation or sale or transportation of illicitly distilled liquor contrary to the provisions of the A.P. Excise Act, 1968 and the Rules made thereunder. Those activities rendered the detune answer the definition of ‘Boot Legger’ and but for this, perhaps, the District Magistrate would not have ordered for his detention. It is not the case of the District Magistrate that the detune also answers the description of a dacoit or goonda or an immoral traffic offender or a land grabber, for him to be detained. Therefore, in our considered opinion, the District Magistrate was very clear in formulating an opinion that the detune was a ‘Boot Legger’ and, therefore, he has based his opinion in this regard substantially on the five instances, which led to registering the cases narrated supra by the Prohibition & Excise staff and incidentally, the crime booked by the I Town Police Station, was mentioned only as it has also happened on 21-11-2008, when Crime No.545 of 2008-09 was booked by the Prohibition & Excise staff. Hence, we are satisfied that the substratum of the opinion of the District Magistrate is centering around his formulating the opinion that the detune was a ‘Boot Legger’, requiring his preventive detention, but not on other material. When once the formulation of the opinion by the District Magistrate warranting preventive detention is based upon the activities of the detune as a ‘Boot Legger’, the fact that no material is supplied to the detune relating to Crime No.414 of 2008 pales itself into insignificance. It is not obligatory for the District Magistrate to supply material concerning everything that has been mentioned or referred to in the order of detention. What was required of him was the supply of the material, which formed the substance of grounds of detention. Since, we have come to the conclusion that the material relating to Crime No.414 of 2008, registered by the I Town Police Station, Rajahmundry, did not form the basis, non –supply of any material in that regard did not vitiate the exercise of power by the District Magistrate. The learned counsel for the petitioner has relied upon the judgment rendered by the Supreme Court in GURDIP SINGH’s case (cited 5 supra), wherein it was made crystal clear that if documents, which form the basis of the order of detention, are not served on the detenu along with the ground of detention, there will be no service of the grounds of detention in the eye of law and such a circumstance would vitiate the order of detention. Similarly, in THAHIRA HARIS’s case (cited 6 supra), the Supreme Court has analysed the core principles enshrined by Clause (5) of Article 22 and held that all basic facts and particulars, which influenced the detaining authority in arriving at the requisite satisfaction for ordering detention, must be communicated to the detune. It was explicitly made clear that all the basic facts and materials relied upon in the grounds by the District Magistrate are invariably to be supplied to the deteune as part of an effective right in the hands of the detune to represent against such detention. These safeguards are held as essentially procedural in character and their efficacy depends upon the care and caution and the sense of responsibility with which they are regarded by the detaining authority. In fact, the Supreme Court has once again reiterated the principle enunciated in GOLAM ALIAS GOLAM MALLICK VS THE STATE OF WEST BENGAL[8], wherein it has been set out that all basic facts and material particulars, which have influenced the authority in making the order of detention will be covered by “grounds” within the contemplation of Article 22(5) of our Constitution. Keeping these well settled principles on the subject in view, we are clearly of the opinion that what has weighed with the District Magistrate while making the order of detention, were the facts and material, which formed the basis behind various crimes registered against the detune by the Prohibition & Excise staff, so as to render the detune to be treated as a ‘Boot Legger’. Whenever he has been apprehended he was found carrying or possessing illicitly distilled liquor by a fairly high quantity and hence, it is those prejudicial acts of the detune, which rendered the District Magistrate to arrive at a conclusion that the acts indulged in by the detune are prejudicial activities to maintenance of public order. But for this, the District Magistrate clearly would not have any necessity to invoke the provisions of sub-section (2) of Section 3 of the Act for preventively detaining the detune. Hence, in our opinion, non-furnishing of material relating to Crime No.414 of 2008 registered by the I Town Police Station, Rajahmundry, against the detune has not vitiated the order of detention made by the District Collector & Magistrate. Therefore, we find no justification to interfere with the order of detention. The writ petition is, therefore, dismissed, but in the circumstances, without costs. ------------------ D.S.R.Varma, J --------------------------------- Nooty Ramamohana Rao, J mrk March 2010 [1] 1966 CRL.L.J 608 [2] 1970 CRL.L.J. 1136 [3] 1972 CRL.L.J. 1006 [4] 1982 CRL.L.J. 1191 [5] AIR 1981 (SC) 362 [6] (2009) 3 SCC (CRI) 1432 [7] (1981) 3 SCC 317 [8] (1975) 2 SCC 4