HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE K.G.SHANKAR W.P.NO.21099 OF 2010 Dt.8.12.2010 Between: Sunkara Lakshumma ..Petitioner And The Government of Andhra Pradesh Rep. by its Chief Secretary, Secretariat, Hyderabad and others ..Respondents HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE K.G.SHANKAR W.P.NO.21099 OF 2010 ORDER: (Per Sri Justice V.Eswaraiah) Petitioner – Sunkara Lakshumma is the wife of the detenu – Sunkara Lakshumaiah now lodged in Central Prison, Cherlapalle, Ranga Reddy District, pursuant to the orders passed by the Collector and District Magistrate, Kadapa in Ref.C1/198/M/10, dated 27.3.2010, filed this writ of habeas corpus to declare the said detention order as invalid and illegal. It is the case of the petitioner that the 2nd respondent Collector and District Magistrate, Kadapa passed the order of detention detaining the husband of the petitioner vide proceedings in Ref.C1/198/M/10, dated 27.3.2010, in exercise of powers under Section 3(1) and (2) read with Section 2(a) and 2(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) (hereinafter for short referred to as ‘the Act’) on the ground that the detenu has been indulging in offences of possession, transportation, storage and sale of illicitly distilled arrack in and around Pulivendala town, YSR District (Kadapa District) in the manner prejudicial to the maintenance of public order and tranquility, thereby causing danger to the public health. The said order was passed by the 2nd respondent having satisfied with the records and material placed before him by the Prohibition and Excise Superintendent, Proddatur, that the activities of the detenu fall within the definition of ‘Bootlegger’ as defined under Section 2(b) of the Act. The said order was passed on the ground that the detenu was involved in three crimes i.e., Crime No.136/2008-09, dated 30.7.2008, Crime No.198/2008-09, dated 2.10.2008 and Crime No.201/2009-10, dated 12.1.2010 of Prohibition and Excise Station, Pulivendula. The first case was reported by the Sponsoring Authority stating that during the course of raids conducted by the Prohibition and Excise officials the detenu was found in possession of 20 lts of I.D. arrack (packed in one plastic can kept in one plastic urea bag) while transporting in his TVS 50 XL Moped on 30.7.2008 and the said bag containing 20 lts of ID arrack was seized. Samples were taken from the can and the detenu was arrested under the cover of special report drafted on the spot and accordingly registered case in Cr.No.136 of 2008-09, dated 30.7.2008, under Section 7(A) read with Section 8(e) of A.P. Prohibition Act, 1995. The detenu was sent to the Judicial First Class Magistrate, Pulivendula and after two days he was released on bail. Subsequently, samples were sent to Chemical Examiner and after analysis the Chemical Examiner opined in his report dated 23.8.2008 that the sample is illicitly distilled liquor unfit for human consumption. Thereafter, charge sheet was filed and the court took the case on file as C.C.No.18 of 2009 and the case is under trial before the Judicial Magistrate of First Class. The second case was registered in Cr.No.198/2008- 09, dated 2.10.2008, on similar allegation stating that during the route watch conducted by the Prohibition and Excise officials on 2.10.2008 the detenu and his accomplice were found in possession of 20 lts of ID arrack each (in one plastic can each) while transporting in two TVS 50 XL Mopeds. On suspicion, the detenu and his accomplice were stopped by the excise officials. The Excise officials found one plastic can placed in between petrol tank and seat in each Moped and on questioning the detenu and the accomplice admitted that each plastic can containing 20 lts of ID arrack. Then the Prohibition and Excise officials secured mediators drew two samples (each from one can) into two 180 ml bottles, sealed and labeled and the remaining contraband along with two Mopeds were also seized and the detenu and his accomplice were arrested under the cover of panchanama drafted on the spot and the detenu was arrayed as accused No.2 in the said case in Cr.No.198/2008-09, dated 2.10.2008 under Section 7(A) read with Section 8(e) of the A.P.Prohibition Act, 1995. Both the accused were sent to Judicial First Class Magistrate, Pulivendula along with two sample bottles for judicial custody. Two days thereafter they were released on bail. The sample bottles were sent to the Chemical Examiner and after analysis he opined in his report dated 21.10.2008 that the samples are illicitly distilled liquor unfit for human consumption. After completion of investigation, charge sheet was filed which was taken on file in C.C.No.230 of 2009. The third case was also registered in Crime No.201 of 2009-10 stating that on 12.1.2010 during the route watch conducted by the excise officials the detenu was found in possession of 20 lts of ID arrack (in one plastic can) while transporting on TVS 50 XL Moped. On questioning, the detenu admitted that the plastic can contains 20 lts of ID arrack. The Prohibition and Excise officials drew one sample from the plastic can into 180 ml bottle, sealed and labelled and the remaining contraband along with the vehicle was seized. The detenu was arrested under the cover of special report drafted on the spot and a case was registered in Cr.No.201/2009-10, dated 12.1.2010 under Section 7(A) read with Section 8(e) of the A.P. Prohibition Act, 1995. The detenu was produced before the Judicial First Class Magistrate, Pulivendula along with the sample bottle and was sent to judicial custody. After seven days i.e., on 19.1.2010 he was released on bail. Subsequently, the sample bottle was sent to the Chemical Examiner and after analysis he opined in his report dated 18.2.2010 that the sample is illicitly distilled liquor unfit for human consumption and injurious to health. Thus, it is the case of the detention authority that the Prohibition and Excise officials detected three cases against the detenu within 20 months, that he has been found repeatedly committing the same type of offences knowing fully well that illicit possession and sale of ID arrack is punishable under the Prohibition and Excise laws, that he was released on bail within seven days of arrest and that as per the analysis report of the Chemical Examiner ID arrack seized from the detenu have been found unfit for human consumption and injurious to health. Therefore, it is established that the cases booked against the detenu under the Prohibition laws failed to curb his illegal activities which are found to be dangerous to public health and also prejudicial to the maintenance of public order and therefore the detenu is a bootlegger under Section 2(b) of the Act. The launching of prosecution against the detenu in respect of the above cases under the Prohibition laws also failed to have any desired impact on the clandestine bootlegging activities of the detenu and in the circumstances the detention authority was of the opinion that the detenu has been repeatedly indulging in dangerous bootlegging activities adversely affecting public health and public order and therefore satisfied to invoke the provisions of the Act as all his activities are dangerous to public health and prejudicial to the maintenance of public order and also to prevent from further indulging in bootlegging activity. The said order of detention was also furnished to the detenu and the said order of detention dated 27.3.2010 was approved by the Government under sub-section (3) of Section 3 of the Act vide G.O.Rt.No.1624, General Administration (Law & Order.II) Department, dated 31.3.2010. Thereafter, the matter was placed before the Advisory Board constituted under Section 9 of the Act and the Advisory Board reviewed the case on 19.4.2010 expressing its opinion that there is sufficient cause for the detention of the detenu. Pursuant to the said report, the Government passed orders in G.O.Rt.No.1927, General Administration (Law & Order.II) Department, dated 22.4.2010, in exercise of powers conferred under sub- section (1) of Section 12 read with Section 13 of the Act confirming the order of detention directing the detenu be continued for a period a period of 12 months from the date of his detention i.e., 29.3.2010. Thus, the detenu is in Central Jail, Cherlapalle from 29.3.2010 i.e., more than eight months. Learned counsel appearing for the petitioner submits that there is no continuity of the incidents, that there is a long gap of 15 months between the second incident and the third incident and that there is absolutely no basis for arriving at the conclusion that the detenu has been continuously and repeatedly committing the same type of offences. It is further stated that the three cases have been registered for statistical purpose and that there is absolutely no allegation about the sale and consumption of the alleged ID liquor said to have been found in possession of the detenu. The said three cases are pending trial and the detenu has not been convicted in any of the case. It is stated that the three cases could be dealt with by ordinary criminal courts and in the absence of any material it cannot be said that the provision of the Act are required to be invoked. On the other hand, learned Assistant Government Pleader attached to the office of the Advocate General submits that as per various judgments of this Court it cannot be said that merely because there is a long gap of 15 months between the second crime and the third crime there is no continuity of incidents. It is further stated that 20 lts of ID liquor cannot be said as small quantity when there is no distinction or differentiation between small quantity and big quantity for invoking the provisions of the Act. It is stated that in the instant case under delegation of powers the Collector passed the impugned order of detention dated 27.3.2010 under Section 3(2) of the Act which was approved within the prescribed time and that the matter was placed before the Advisory Board and that the Advisory Board was of the opinion vide its report dated 19.4.2010 that there is sufficient cause for the detention of the detenu and accordingly the Government passed order in G.O.Rt.No.1927, dated 22.4.2010, confirming the order of detention of the detenu for a period of 12 months from the date of his detention. Heard both the learned counsel and perused the records. Admittedly, the first ground on which detention order was passed relates to Cr.No.136 of 2008-09, dated 30.7.2008 of Prohibition and Excise Station, Pulivendula. The said crime was registered on the basis of special report written by the excise officials on the ground that they could not secure any mediators at the scene of offence. The said report indicates that the detenu was said to have been transporting 20 lts of I.D arrack packed in one plastic can kept in one plastic urea bag on TVS 50 XL Moped. There is no averment in the said report that the I.D arrack was meant for sale for human consumption. Under sub-section (1) of Section 102 Cr.P.C., any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under such circumstances which create suspicion of the commission of any offence. Whenever any seizure is to be made on suspicion of committing the office by the suspect, it must be made in the presence of respectable independent witnesses of the locality and if no such independent witnesses are available or coming forward, it is open for the officials to make such seizure in the presence of the suspect. In the instant case, the first and third cases were registered under the cover of special reports. The second case in Crime No.198 of 2008-09, dated 2.10.2008 was also registered by the same Prohibition and Excise officials of Pulivendula alleging that the detenu and his accomplice were found with 20 lts of ID arrack each while transporting on two TVS 50 XL Mopeds. Then the excise officials secured mediators at the scene of offence and they verified the cans in the presence of mediators and found 20 lts of ID arrack in each plastic can. But, no reasons have been assigned as to why they could not secure the independent witnesses of the locality in the first and third cases. It is the specific case of the detenu while applying bail applications in Cr.No.136 of 2008-09 and Cr.No.201/2009-10 that the said cases were registered on the basis of special report on the innocent detenu and the learned Magistrate considering the remand period and the quantity involved in the case enlarged the detenu on bail on his executing a bond for Rs.10,000/- with a single surety for the like sum. It is the case of the detenu in his bail application in Cr.No.198/2008-09 that he was falsely implicated in the cases for statistical purposes and that he is an innocent citizen. As he was in judicial custody since 2.10.2008 on the alleged offence under Section 7(A) read with Section 8(e) of A.P.Prohibition Act keeping in view of the small quantify involved in the case, he was enlarged on bail on 4.10.2008 on similar condition of executing a bond for Rs.10,000/- with a single surety for the like sum. In all the three cases, the detention authority has not indicated anything about the manufacture and sale of I.D liquor except the allegation of transportation of I.D liquor. The detenu is resident of Pulivendla and the excise officials of the same locality registered all the three cases, which create a doubt in registering the cases on the basis special report alone instead of involving the mediators. The charge sheet filed by the excise officials does not indicate anything about the manufacture and sale of I.D liquor and there are no instances as to whether the detenu has sold the I.D liquor to any public and whether any person consumed the said I.D. liquor. Therefore, it cannot be said that the detenu was involved in illicit sale of I.D liquor to various people at Nagarigutta, Jandamanu Veedi, Rajareddy Colony, Yerragudipalem and some other areas in Pulivendula town. We are of the view that when two cases are registered under the cover of special report and it cannot be said that the excise officials are prudent in curbing the menace of illegal possession and sale of I.D liquor. Therefore, it cannot be said that the detenu was found repeatedly involving in illicit possession and transportation of I.D liquor in the area. However, the detenu has already been in detention for more than eight months and about 3 ½ months alone is left for the detention of the detenu. No doubt, the Government after considering the report of the Advisory Board and the material available on record in exercise of powers conferred under Section 12(2) read with Section 13 of the Act confirms the order of detention and directs that the detenu be continued for a period of 12 months. The maximum period specified under Section 13 of the Act for which any person may be detained in pursuance of the detention order would be 12 months from the date of detention. Therefore, we are of the view that the Government is empowered to detain the detenu for a maximum period of 12 months. It does not mean that the State has no power to detain for less than the maximum period of 12 months. Under Section 3(1) of the Act, the power of the Government is specified in respect of any bootlegger to prevent him from acting in a manner prejudicial to the maintenance of public order. The power of the Government under Section 3(1) of the Act to detain any bootlegger can also be delegated by an order specified under sub-section (2) of Section 3 of the Act. In the instant case, the Collector under delegated power of sub-section (2) of Section 3 of the Act passed the impugned order of detention, which was approved by the Government under sub-section (3) of Section 3 of the Act. The Advisory Board constituted under Section 9 of the Act opined that there is sufficient cause for the detention of the detenu and the Government also confirmed the detention order of the detenu for a maximum period of 12 months. We are of the view that the nature of cases involving in high magnitude in bootleggers, dacoits, drug offenders, goondas, immoral traffic offenders and land grabbers from that of less magnitude can be equated on par in so far as the quantum of punishment is concerned. In the instant case, the detenu was found in possession of small quantity of 20 lts on three occasions in which two cases were registered on the basis of special reports by the excise officials themselves. Therefore, we are of the view that the State ought to have exercised its power in so far as the period of detention is concerned depending upon the gravity of the offence. Though we have expressed our opinion with regard to the genuineness or otherwise in registering the first and third cases under the cover of special report prepared by the excise officials, we are not inclined to interfere with the detention order on that ground. As the detenu was already under detention for more than eight months, the period of detention so far undergone by him would be just and proper which would meet the ends of justice. Therefore, we are of the view that it is a fit case where the detenu can be directed to be released. In the result, the writ petition is allowed. The respondents are directed to release the detenu – Sunkara Lakshumaiah who is now lodged in Central Prison, Cherlapalle, Ranga Reddy District, forthwith, if he is not required in any other offence. No order as to costs. ________________ V.ESWARAIAH, J. ________________ K.G.SHANKAR, J. 8.12.2010 kpr