IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY NINETH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE R. KANTHA RAO WRIT PETITION NO : 25035 of 2008 Between: Mrs. V. Sukkamma W/o. Sri V. Yadaiah R/o. 18-1-544/05/135, Parvathi Nagar, Kandikal Gate, Uppuguda, Hyderabad. ..... PETITIONER AND 1 Government of Andhra Pradesh Rep. by its Chief Secretary General Administration (Law & Order.II) Dept., Secretariat, Hyderabad. 2 The Collector & District Magistrate Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ of Mandamus, or any other appropriate writ, order or direction, declaring the Proceedings Rc.No.A1/254/2008, dt.20- 10-2008 issued by the 2nd Respondent and consequential GO.Rt.No.6175 , dt.24-10-2008 issued by the 1st Respondent as illegal, arbitrary, without jurisdiction and contrary to the Sec.3 of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act I of 1986) and set aside the same. Counsel for the Petitioner:MR.C.RAGHU Counsel for the Respondent No.: GP FOR GENERAL ADMINISTRATION The Court made the following : THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE R.KANTHA RAO W.P.No.25035/2008 Oral Judgment: (Per Hon’ble Sri Justice A.Gopal Reddy) In this writ petition, the petitioner Mrs. V. Sukkamma, wife of the detenu-V. Yadaiah, has challenged the order of detention, ordering detention of his husband, issued by the Collector and District Magistrate, Hyderabad in Proceedings RC No.C1/A1/254/2008/ESD dt. 20-10-2008 and approval of the detention by the Government of Andhra Pradesh in G.O.Rt.No.6175 General Administration (Law & Order-II) dt. 24-10-2008 under Section 3(3) of Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers At, 1986 (for short “the Act No.1 of 1986). The Prohibition and Excise Superintendent, Dhoolpet (FAC), Hyderabad forwarded the details of cases booked against the detenu by the Station House Officer, Charminar Excise Station informing that despite booking number of cases against the accused/detenu, he is deliberately violating the provisions of the A.P. Prohibition Act, 1995 and actively indulging in clandestine activities of purchase, transport and sale of illicit distilled liquor and requesting him to pass necessary orders under Section 3 (1) and (3) r/w Sec.2(a) and (b) of the Act No.1 of 1986, for detention of the detenu in order to prevent the individual from further indulging in bootlegging activities and disturbing the public order. On receipt of the said information, the second respondent, namely, the Collector & District Magistrate, Hyderabad, in exercise of the power conferred in him under section 3(1) r/w 2(a) and (b) of the Act No.1 of 1986, passed orders in Proceedings dt. 20-10-2008, ordering for his detention until further orders in the Central Prison, Chenchalaguda, Hyderabad, which is assailed in the present writ petition contending that mere booking of crimes would not per se give power to the second respondent to pass an order under Sec. 3(2) of the Act No.1 of 1986 and submit a report under sub-section 3 and the impugned order does not disclose period of detention. Even the consequential order ie. , G.O.Rt No.6175 dt. 24-10-2008 passed by the first respondent does not disclose the period of detention. Therefore, detention order passed by the second respondent and consequential order passed by the Government in G.O.Rt.No.6175 dt. 24-10-2008 are contrary to Section 3 of Act No.1 of 1986 and violative or Art. 21 of the Constitution of India. The detention order passed by the second respondent is without application of mind and without there being any sufficient material to show that the conduct of the detenu would be prejudicial to the maintenance of public order, and therefore he is entitled to be released. Opposing the writ petition, the second respondent filed counter- affidavit stating that while passing the order of detention in order to determine the conduct of the detenu, he has gone through the various cases booked by the Station House Officer, Charminar Excise Station. They are: 1. COR No.384/2007-08 dt.18-3-2008 of Station House Officer, Charminar Excise Prohibition & Excise Station, Hyderabad, wherein the alleged detenu was found to have been in possession of 187 arrack sachets of illicit distilled liquor, each packet containing about 100 ml illicit liquor. 2. COR No.141/2008-2009 dt. 17-8-2008 of Station House Officer, Charminar Prohibition and Excise Station, Hyderabad, involving 160 litres of illicit distilled liquor. 3. COR No.147/2008-2009 dt. 20-8-2008 of Station House Officer, Charminar Prohibition & Excise Station, Hyderabad, wherein the detenu was alleged to have been found in possession of 1240 sachets of illicit distilled liquor each packet containing about 100 ml illicit liquor. 4. COR No.205/2008-2009 dt. 19-9-2008 of Station House Officer, Charminar Prohibition and Excise Station, Hyderabad, wherein the alleged detenu was alleged to have been found in possession of 800 sachets of illicit distilled liquor, each packet containing about 100 ml. illicit liquor. 5. COR No.234/2008-2009 dt. 14-10-2008 of Station House Officer, Charminar Prohibition and Excise Station, Hyderabad, wherein the alleged detenu was alleged to have been found in possession of 915 sachets of illicit distilled liquor, each packet containing about 100 ml. illicit liquor. In all the above cases, the alleged detenu was found to be in possession and transporting illicit liquor containing poisonous substances, which are injuries to health and unfit for human consumption, in contravention of the provisions of the A.P. Excise Act, 1968. In all the cases contraband was seized and samples were drawn and sent for chemical examination to the Government Chemical Examiner of Prohibition & Excise, Regional Prohibition & Excise Laboratory, Hyderabad. As per the chemical analysts reports, it was found that all the samples drawn from the seized contraband was found to be “illicit distilled liquor, unfit for potable purpose and it is injuries to health”. In COR No.384/2007-08, COR No.141/2008-09, COR No.147/2008-09, and COR No.205/2008-09, the alleged detenu was arrested and produced before the court and subsequently enlarged on bail. As regards COR No.234/2008-09, the alleged detenu was arrested and produced before the court. Pursuant to the order of detention, the detenu was taken into custody on 21- 10-2008 and lodged in Central Prison, Hyderabad. At the time of taking him into custody, order of detention, grounds of detention and material relied upon were served on the detenu both in English and in the vernacular language (Telugu), and the same was acknowledged by him. He was duly informed that he has a right to make representation to the Detaining Authority, Chief Secretary to Government and the Advisory Board. The Government in their order G.O.Rt. No.6175 dt. 24-10-2008, in exercise of power under sub-Section (3) of Section 3 of the Act No.1 of 1986, accorded approval to the order of detention passed by the second respondent. Thereafter, the Government referred the matter to the Advisory Board constituted under Section 9 of the Act No.1 of 1986, which, after hearing the detenu, the investigating officer and after perusing the connected records made available before it, opined that there is sufficient cause for the detention of the detenu, Vanarashi Yadaiah S/o Jangaiah. The Government after due consideration of 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 No.1 of 1986 throughG.O.Rt.No.6692 General Administration (Law & Order.II) Department dt. 22-11-2008 confirmed the order of detention and directed that the detention of the alleged detenu be continued for a period of 12 months from the date of his detention ie., 21-10-2008. In the initial order of detention impugned in the writ petition, the period of detention was not specified for the reason that the order of detention passed by the second respondent would remain in force for a period of 12 days unless it is approved by the Government. Therefore, the detaining authority cannot specify the period of detention in the initial order. Once the order of detention is approved by the Government the material will be placed before the Advisory Board and on the basis of opinion of the Advisory Board, the Government issued G.O.Rt.6692 dt.22-11-2008 fixing the period of detention. Since the detenu was continuously indulging in bootlegging activities it has necessitated for him to pass the order of detention as the activities of the detenu were causing prejudicial to the maintenance of public order, thereby affecting public health. Sri C. Raghu, learned counsel for the petitioner contended that the order of detention does not disclose subjective satisfaction on which the detaining authority comes to a conclusion to detain the detenu. Further, non-mention of the fact of obtaining bail order would amount to arbitrariness and total non-application of mind; therefore, the detention order is liable to be set-aside. For the said proposition, a reliance is placed on the judgment of this court in KALLAY MUTYALAMMA V. DISTRICT COLLECTOR, EAST GODAVARI[1]. He further contended that subjective satisfaction of the detaining authority is traceable only in three cases and omitted the other two cases, which were mentioned in the order of detention, the same amounts to non-application of mind, which would vitiate the detention order, therefore the same is liable to be set-aside. For the said proposition, a reliance is placed on the judgment of this court in PAMULA PITCHAIAH V. GOVERNMENT OF AP [2]. Learned Government Pleader representing Advocate General while sustaining the order of detention impugned in the writ petition contended that in all the five 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. Further, mere non- mention of bail granted in two cases, which are subsequent to the date of order, does not vitiate the detention order and 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. Similarly, the detention order passed by the second respondent need not contain the period of detention; it is only the duty of the approving authority to specific the period of detention. In view of the above rival submissions, 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.6175 dt. 20-10-2008 and confirmed in G.O.Rt. No. 6692 dt. 22- 11-2008 can be sustainable or not?” Before dealing with the rival submissions, it would be appropriate to notice the relevant statutory provisions, which deal with the purpose and intention of Act 1 of 1986. Sub-section (1) of Sec.3 of the Act 1 of 1986 empowers the Government to make orders detaining certain persons with a view to prevent 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). Sub-section (3) of Section 3 reads as under: When any order is made under this section by an officer mentioned in sub-sec. (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. Sections 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. Section 2(a) of the Act 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 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.” In COLLECTOR & DISTRICT MAGISTRATE, ELURU V.SANGALA KONDAMMA[3] this court set-aside the detention order passed by the District Collector made under Sec. 3(1)(2) r/w Sec.2(a) and (b) of the Act 1 of 1986, which was approved by the State Government and confirmed the detention of the detenu for a period of 12 months from the date of detention. On appeal being filed by the detaining authority, the Supreme Court while upholding the detention order observed as under: “……In the instant case, it is seen that between the period from 10-1-2001 and 25-10-2002 the detenue was involved in five incidents of bootlegging which are reasonably proximate to each other and the last of the incidents being proximate to the order of detention, we think the High Court was not justified in treating the two incidents of 17-1-2000 and 10-1-2001 as stale by taking them in isolation. In our opinion, the court should have considered the proximity of the incidents between themselves which indicates the possibility of the proposed detenue continuing to indulge in the illegal activities which requires his preventive detention. In the present case, as noticed above, the five incidents recorded in the order of detention being proximate enough to each other shows the continuity of the acts of the detenue. In such a fact situation, we think the High Court erred in coming to the conclusion that two of the five grounds being not proximate to the order of detention and the order of detention was base on stale grounds.” In R. KALAVATHI V. STATE OF T.N[4], the husband of the appellant was detained under T.N. Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum-Grabbers and Video Pirates Act, 1982, which is pari materia to Act. 1 of 1986. While considering the meaning of word “habitually” the Supreme Court held as under: ”The expression “habit” or “habitual” has not been defined under the Gujarat Prevention of Anti-Social Activities Act, 1985. The word “habitually” does not refer to the frequency of the occasions but to the invariability of a practice and the habit has to be proved by totality of facts. It, therefore, follows that the complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude that a particular person is a “dangerous person” unless there is material suggesting his complicity in such cases, which lead to a reasonable conclusion that the person is a habitual criminal. The word “habitually” means “usually” and “generally”. Almost similar meaning is assigned to the word “habit” in Aiyar’s Judicial Dictionary, 10th Edn., at p. 485. It does not refer to the frequency of the occasions but to the invariability of practice and the habit has to be proved by totality of facts. (See Mustakmiya Jabbarmiya Shaikh v . M.M. Mehta (1995) 3 scc 237)(para 12) The expression “habitually” is very significant. A person is said to be a habitual criminal who by force of habit or inward disposition is accustomed to commit crimes. It implies commission of such crimes repeatedly or persistently and prima facie there should be continuity in the commission of those offences. (See Ayub v. S.N. Sinha (1990) 4 scc 552) (para 13) The Supreme Court in HARPREET KAUR V. STATE OF MAHARASHTRA[5] while considering the identical provision of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 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 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. In KALLY MUTYALAMMA’s case (1 supra) the facts are that five crimes were registered against the alleged detenu; the detenu obtained bail in all crimes, and though the detaining authority made a specific mention of orders of bail in all the four crimes failed to mention order of bail obtained by the detenu in the last crime. Under those circumstances, this court held that when the detaining authority had made a specific mention of the orders of bail in all the earlier crimes, the non- mentioning of the order of bail obtained by the detenu in the last crime would be a vital fact, which is capable of impairing the subjective satisfaction of the detaining authority. In the case on hand, it is no-where averred by the petitioner that by the time of passing of detention order, the petitioner was enlarged on bail in last two crime numbers ie., COR No.205/2008-09 and COR No.234/2008-09 nor any pleading to the said effect. The ground of detention clearly discloses that the detenu was arrested on 14-10-2008 and produced before the court for judicial remand and the detention order was passed on 20-10-2008. Therefore, facts in the above judgment are misplaced to the facts in the present case. This court in G.GOVIND RAJU V. THE COLLECTOR & DISTRICT MAGISTATE, CHITTOOR DISTRICT[6] held that the fact that the Court enlarged the detenu on bail has nothing to do with the power to be exercised by the authority under the provisions of the Act, 1986. The learned counsel for the petitioner has not brought to our notice any provision of the Act, 1986, which mandates the detaining authority that while passing an order of detention, it has to take into consideration the fact that the detenu was enlarged on bail by the Court. The power to be exercised by the Court in granting a regular bail in a criminal case is independent of the power to be exercised by the designated detaining authority under the provisions of Act, 1986. In the absence of any such provision under the Act empowering the detaining authority to take into consideration the factum of detenu being enlarged on bail by the Court while passing an order of detention, it cannot be said that the action of the detaining authority in passing the order of detention is vitiated on account of non-application of mind. In the present case, it is not the case of the petitioner that the detenu was not supplied with necessary documents, so that he lost an opportunity of defending his case efficiently, and it is also not his case that in the last two crimes he obtained bail and observations made by the court while enlarging bail are favourable to him, which were not placed before the detaining authority, and non-mention of order of bail obtained would vitiate the detention order. In the absence of the same, we reject the contention of the learned counsel that non-mention of order of bail obtained/rejected in the two crimes would vitiate the order of detention. The grounds of detention, as referred to above, clearly discloses that detenu was habituated in commission of crimes and is accustomed to commit crimes of transporting and selling of illicit distilled liquor, which contains injuries substances and unfit for human consumption. Once the detenu is indulging in bootlegging activities of purchase, transport, sale 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. 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, transporting and distribution of illicit distilled 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 Ar. 22(5) of the Constitution. In view of the same, the detention