THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO WP No.13313/2011 Dt. 20-7-2011 Munagala Yadamma ..Petitioner ..Appellants/A-1,A-2 & A-5 V. 1. The State of Andhra Pradesh, represented by the Collector and District Magistrate, Ranga Reddy District, and another. ..Respondents ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO WP No.13313/2011 ORDER (per the Honourable Justice A.GOPAL REDDY) The detention order passed by the Collector & District Magistrate, Ranga Reddy District, in exercise of powers conferred under Section 3(1) read with 2(a) and (b) of A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short “the Act 1 of 1986”) in Proceedings No.C1/253/2011 dt. 15-2- 2011, detaining Munagala Anjaiah, S/o Gandaiah, r/o H.No.1-28, Muslim Basthi, Narsinghi Village, Rajanderanagar Mandal, Ranga Reddy District, as approved by the Government of Andhra Pradesh in G.O.Rt.No.772, General Administration (Law & Order.II) Department dt. 23-2-2011 and confirmed in S.No. Cr.No. Police Station Sections Material seized Arrested on Released on bail 1 COR No.19/2010-11 dt. 8-4-2010 Prohibition & Excise Station, Rajendranagar U/s.7A r/w 8(e) of A.P. Prohibition Act,1995. 108 illicit distilled liquor sachets 9-4-10 10-4-10 2 COR No.153/2010-11 dt. 27-5-2010 Station House Officer, Rajendranagar U/s.7A r/w 8(e) of A.P. Prohibition Act,1995 242 illicit distilled liquor sachets 27-5-10 29-5-10 3 COR No.365/2010-11 dt. 30-7-2010 Station House Officer, Rajendranagar u/s.7A r/w 8(e) of A.P. Prohibition Act,1995 250 illicit distilled liquor sachets 30-7-10 2-8-10 4 COR No.475/2010-11 dt. 27-8-2010 Prohibition & Excise Station, Rajendranagar u/s.7A r/w 8(e) of A.P. Prohibition Act,1995 130 illicit distilled liquor sachets 27-8-10 30-8-10 5 COR No.843/2010-11 dt. 18-11-2010 Prohibition & Excise Station, Rajendranagar u/s.7A r/w 8(e) of A.P. Prohibition Act,1995 85 illicit distilled liquor sachets 25-11-10 (Surren- dered) 25-11-10 6 COR No.881/2010-11 dt. 26-11-2010 Prohibition & Excise Station, Rajendranagar u/s.7A r/w 8(e) of A.P. Prohibition Act,1995 186 illicit distilled liquor sachets 14-12-10 20-12-10 7 COR No.976/2010-11 dt. 14-12-2010 Prohibition & Excise Station, Rajendranagar. u/s.7A r/w 8(e) of A.P. Prohibition Act,1995 112 illicit distilled liquor sachets 14-12-10 20-12-10 G.O.Rt.No.1267, General Administration (Law & Order.II) Department dt. 24-3-2011, is challenged by the wife of detenu by means of present writ petition praying for issuance of a writ of ‘Habeas Corpus’ to release the detenu ie., her husband from detention. Briefly stated the list of cases as shown in the ground of detention dt. 15-2-2011, which have been considered by the detaining authority for drawing his subjective satisfaction: In all the above cases, the contraband was seized and samples were drawn and sent for chemical examination to the Government Chemical Examiner, Prohibition and Excise, Hyderabad. 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”. As the detenu was continuously involving in bootlegging activities, ie., possession, transportation and sale of illicitly distilled liquor for money grain, which is unfit for human consumption, the detaining authority felt that recourse to normal law would involve considerable time and may not be effective deterrent in preventing the detenu from indulging in further activities prejudicial to maintenance of public order in and around Narsingi village and there is need to detain the detenu under the Act 1 of 1986 and passed the impugned detention order dt. 15-2-2011 ordering that the detenu be detained from the date of service of the order in the Central Prison, Cherlapally, Ranga Reddy District, by making it clear that the detenu had a right to make representation to the detaining authority, Chief Secretary to the Government and the Advisory Boar, and had a right to be heard personally or through a friend who is not an Advocate, by the Advisory Board, if detenu so desires. Pursuant to the detention order, the detenu was taken into custody on 15-2-2011. At the time of taking the detenu into custody, the order of detention, grounds of detention and material relied upon were served on the detenu in both the languages, ie., English and Telugu and the same was acknowledged by him. The Government in their order in G.O.Rt.No.772 dt. 23-2-2011, in exercise of power under sub-section (3) of Sec.3 of the Act 1 of 1986, accorded approval of the order of detention passed by the detaining authority. Thereafter, the Government referred the matter to the Advisory Board constituted under Section 9 of the Act 1 of 1986. The Advisory Board after hearing the detenu, wife and son of the detenu, and investigating officers of Excise Department and after considering the representation submitted by the wife of the detenu dt. 16-3-2011 and upon perusing the grounds of detention and the connected records, opined that there is sufficient cause for the detention of the detenu, Munagala Anjaiah. The Government after taking into consideration the report of the Advisory Board and the material available on record, in exercise of the power conferred under sub-section (1) of Section 12 r/w 13 of the Act 1 of 1986 through G.O.Rt.No.1267 dt. 24-3-2011 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 ie., 15-2-2011. Sri B.V. Bakshi, learned counsel for the petitioner contended that in the absence of putting forth the material by the sponsoring authority that the illicitly distilled liquor was put to sale and the detenu was caught red handed, mention of illegal sale is a non existing ground with the ground of possessing ID liquor, which would vitiate the detention order and is liable to be set-aside. In support of the said contention, he placed reliance on the judgment of the Supreme Court in DWARIKA PRASAD SAHU V. STATE OF BIHAR[1]. He further contended that the detenu was enlarged on bail unconditionally in all the cases and the said fact has not been considered by the detaining authority and therefore, the detention order passed is total non-application of mind. He lastly contended that the sponsoring authority has not put forth any evidence that the ID liquor was consumed by the general public to come to a conclusion that it will adversely affect the maintenance of public order Learned Special Government Pleader representing Advocate General while sustaining the order of detention impugned in the writ petition contended that in all the seven crimes, the detenu was found to be in possession of huge quantity of illicit distilled liquor and chemical analysts reports show that the same is unfit for human consumption and injurious to health, which will adversely affect the maintenance of public order as held by this court in DODDI SHARADA V.COLLECTOR, DISTRICT MAGISTRATE, HYDERABAD DISTRICT HYDERABAD[2]. She further contended that since no conditions have been imposed while enlarging the detenu on bail, it is not necessary to make a discussion of the bail granted by the detaining authority. In support of the said submission, she placed reliance on the judgment of the Supreme Court in SUNILA JAIL V. UNION OF INDIA[3]. She further contended that the material placed before the detaining authority is sufficient to hold that the detenu was continuously involving in bootlegging activities, which necessitated the authorities to pass the detention order, which has been approved by the State Government. The subjective satisfaction reached by the detaining authority cannot be a subject matter of judicial review unless the same is established to be perverse, and therefore the detention order is not liable to be interfered with. 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.772 dated 23-2-2011 and confirmed in G.O.Rt.No.1267 dated 24-3-2011 can be sustained or not?” Before dealing with the rival submissions, it is would be apprp0riate to notice relevant statutory provisions Sections 2( b ) of the Act 1 ot 1986defines “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: "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.” In all the seven crimes, as detailed in the grounds of detention, the detenu was found to be in possession of illicitly distilled liquor sachets of 100 ml, as detailed in the table as above. The contraband seized was sent for chemical examination. The Chemical Examiner found that the seized contraband was found to be “illicitly distilled liquor, unfit for human consumption and injurious to health”. In Crime Nos.1,3,4,6,7, the detenu was arrested on the information received about illegal sales of ID liquor, whereas in Crime Nos.2 and 5, son and wife of the detenu were arrested, which fact has not been specifically denied in Ground No.IV of the writ affidavit, but contended that arrest is improbable. In HARPREET KAUR V. STATE OF MAHARASHTRA[4] the Supreme Court while dealing with identical provision of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 similar to the Act 1 of 1986 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 further held as under: “The explanation to S. 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 wide-spread 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. Explanation to Section 2(a) of the Act 1 of 1986 makes it clear that any activity of any of the persons referred to in section 2 (a) of the Act 1 of 1986, acting in any manner prejudicial to the maintenance of public order, includes the bootlegger and the person who directly or indirectly manufactures, stores, transports, imports, exports, sells or distributes any liquor in contravention of any of the provisions of the Andhra Pradesh Excise Act, 1968 comes within the definition of bootlegger. Any person who is in possession of the ID liquor or and stores the ID liquor can be termed as a bootlegger for proceeding under the Act 1 of 1986. In view of the same, we do not find any merit in the contention advanced by the learned counsel for the petitioner that non-existing ground has been included with the existing ground to term the detenu as a bootlegger and the detaining authority cannot detain the detenu under the Act 1 of 1986. The submission made by the learned counsel that detenu was enlarged on bail unconditionally in all the cases, which fact has not been considered by the detaining authority and therefore the detention order passed is total non-application of mind does not merit consideration. The detaining authority referred to the fact that bail was granted in all the crimes, where the detenu was arrested and produced before the Magistrate for remand. The orders granting bail were also placed before the detaining authority and were supplied to the detenu. It is settled proposition of law in a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu. (See: Abdul Sathar Ibrahim Manik v. Union of India and Ors., [1992(1) SCC 1]. Explaining the same in SUNILA JAIN (3 supra), the Supreme Court held as under: “…It is no doubt true that whether a detenu on the date of the passing of the order of detention was in custody or not, would be a relevant fact. It would also be a relevant fact that whether he is free on that date and if he is, whether he is subjected to certain conditions in pursuance of and in furtherance of the order of bail. If pursuant to or in furtherance of such conditions he may not be able to flee from justice, that may be held to be relevant consideration for the purpose of passing an order of detention but the converse is not true. Some such other grounds raised in the application for bail and forming the basis of passing an order of bail may also be held to be relevant. It would, however, not be correct to contend that irrespective of the nature of the application for bail or irrespective of the nature of the restrictions, if any, placed by the court of competent jurisdiction in releasing the detenu on bail, the same must invariably and mandatorily be placed before the detaining authority and the copies thereof supplied to the detenu.” (para 18) Further, we do not find any merit in the contention of the learned counsel for the petitioner that the sponsoring authority has not put forth any evidence that ID liquor was consumed by the general public to come to a conclusion that it will adversely affect the maintenance of public order. Once the report of the Chemical Analyst is disclosed that the sample of contraband is illicitly distilled liquor unfit for human consumption and injuries to health, it impliedly means that the consumption of such liquor causes danger to life and public health, then the public order shall be deemed to have been adversely affected. It is now fairly well settled that once the explanation to Sec.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 referred to in clauses (i) and (iii) of Section 2 (a) directly or indirectly 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 as held by the Supreme Court in HARPREET KAUR (4 supra). In the light of the above discussion, if we consider the grounds of detention and papers enclosed with it, an irresistible conclusion can be drawn that the detenu was habituated in commission of crimes and is accustomed to commit crimes of manufacturing, transporting and selling of illicit liquor in and around Narshinghi village, Rajendranagar Mandal, Ranga Reddy District and also abetting commission of such crimes through other persons and he is a bootlegger within the meaning of Section 2(b) of the Act 1 of 1986. For the conclusions reached by us, we are of the opinion that the detention order dt. 15-2- 2011 passed by the Collector and District Magistrate, Ranga Reddy District, as approved by the Government in G.O.Rt.No.772 dated 23-2-2011 and confirmed in G.O.Rt.No.1267 dated 24-3-2011 does not suffer from any illegality warranting interference by this court. The writ petition is accordingly dismissed. --------------------- A.GOPAL REDDY,J ------------------ RAJA ELANGO,J DT. 20-7-2011 Kmr [1] AIR 1975 SC 134 [2] 2005 (2) ALT 244 [3] (2006) 3 SCC 321 [4] AIR 1992 SC 979 = (1992) 2 SCC 177