*THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU +Writ Petition No.12475 of 2008 %Date: 16-07-2008 #Between: Between: Pamarthi Lakshman Rao S/o. Rama Rao, Near Sivalayam, Pangidigudem Road, Jangareddygudem, West Godavari District. ..... PETITIONER AND The Collector & District Magistrate, Eluru, West Godavari District and 2 others. .....RESPONDENT(S) ! Counsel for Petitioner : Sri C.Padmanabha Reddy, Senior Counsel, representing Sri C.Praveen Kumar, Advocate ^Counsel for Respondents : THE ADVOCATE GENERAL <GIST: > HEAD NOTE: ? Cases referred 1. (2005) 3 SCC 666 2. AIR 1981 SC 1621 3. AIR 1981 SC 1191 4. AIR 1980 SC 765 5. (2006) 3 SCC 321 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SIXTEENTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION No. 12475 of 2008 Between: Pamarthi Lakshman Rao S/o. Rama Rao, Near Sivalayam, Pangidigudem Road, Jangareddygudem, West Godavari District. ..... PETITIONER AND 1 The Collector & District Magistrate, Eluru, West Godavari District. 2 The Chief Secretary, Government of A.P., Secretariat, Hyderabad. 3 The Superintendent, Central Jail, Rajahmundry. .....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 issue a Writ of Habeas Corpus under Article 226 of the Constitution of India directing the respondents to produce Sri Pamarthi Rama Rao, Son of Veerabhadrudu, now detained in Central Prison, Rajahmundry, before this Hon'ble Court and he may be ordered to be released forthwith after declaring his detention is illegal and void and pass such other order or orders in the interest of Justice. Counsel for the Petitioner : MR.C.PRAVEEN KUMAR Counsel for the Respondents : THE ADVOCATE GENERAL The Court made the following : THE HON’BLE SRI JUSTICE D.S.R. VARMA AND THE HON’BLE SRI JUSTICE K.C. BHANU WRIT PETITION No.12475 of 2008 ORAL ORDER: (per the HON’BLE SRI JUSTICE D.S.R.VARMA) Heard Sri C.Padmanabha Reddy, learned Senior Counsel, representing Sri C.Praveen Kumar, learned counsel appearing for the petitioner, as well as learned Assistant Government Pleader, representing learned Advocate General, appearing for the respondents. 2. In the present Writ of Habeas Corpus, the petitioner seeks production of his father viz., Sri Pamarthi Rama Rao, S/o. Veerabhadrudu, aged about 53 years, resident of Jangareddygudem, Jangareddygudem Mandal, West Godavari District, who is now lodged in Central Prison, Rajahmundry, before this Court, and to release him forthwith. 3. The facts, in brief, are as under: The father of the petitioner was allegedly involved in trafficking of illicit liquor in and around Jangareddygudem Mandal, West Godavari District. Taking into account of his frequent involvement in the said activity, the competent authority i.e., the Collector and District Magistrate, West Godavari District, the first respondent herein, exercising the jurisdiction conferred under Section 3 (1) (2) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas and Immoral Traffic Offenders and Land Grabbers Act, 1986 (for brevity “the Act”), initially passed an order, dated 14- 03-2008, in proceedings Spl.Rc.No.P&ES/Confidential/2/2008. Consequently, the alleged detenu was taken into custody on 17-03-2008 and the same was forwarded to the Government for approval. The Advisory Board, constituted under Section 9 of the Act, reviewed the case of the alleged detenu, on 10-04- 2008, and eventually the Government had passed the final order vide G.O.Rt.No.2385, General Administration (Law & Order.II) Department, dated 22-04-2008, confirming the order passed by the competent authority, and as a result of which the alleged detenu was directed to be detained for a period of 12 (twelve) months from the date of his detention i.e., 17-03-2008. Aggrieved by the same, the petitioner has filed the present writ petition seeking production of his father and to release him forthwith. 4. The grounds for ordering detention in the impugned order, dated 14-03-2008, are as under: 1. Crime No.84/07-08, dated 10.5.2007 u/s 7(A) r/w 8(e) of A.P. Prohibition Act of Prohibition & Excise Station, Jangareddygudem involving 3 lts of I.D. Liquor by the Prohibition & Excise Sub Inspector, Enforcement, Eluru at Jangareddygudem. In this case the chemical analysis report revealed that the contraband seized from him is illicitly distilled liquor, unfit for human consumption and injurious to health. Later he was enlarged on bail. Charge sheet was filed in this case. The case is pending trial in C.C.No.106/08. 2. Crime No.364/07-08, dated 29.8.2007 u/s 7(A) r/w 8(e) of A.P. Prohibition Act of Prohibition & Excise Station, Jangareddygudem. In this case he was arrested with 20 lts of I.D. Liquor by the Prohibition & Excise Sub Inspector, Jangareddygudem at Jangareddygudem. His son Pamarthi Yesubabu absconded from the scene of offence leaving a bag containing ten (10) liters of I.D. Liquor and was arrested on 8.10.2007. In this case the chemical analysis report revealed that the contraband seized from them is illicitly distilled liquor, unfit for human consumption and injurious to health. Later he was enlarged on bail. Charge sheet was filed in this case. The case is pending trial in C.C.No.106/08. 3. Crime No.526 /07-08, dated 21.10.2007 in Jangareddygudem P & E Station. On 21.10.2007 at about 5.30 A.M. the P&E Sub Inspector, Jangareddygudem arrested Chilaka Venkateswara Rao, S/o. late Ramanna, R/o. Daseyapalem, Buttaigudem mandal and Tellam Pentayya, S/o. Kamudu, R/o. Daseyapalem, Buttaigudem mandal while they were transporting fifty (50) liters of I.D. Liquor on scooter for supply to Pamarthi Ramarao, S/o. Veerabhadrudu, R/o. Jangareddygudem. He is third accused (A3) in this case and was arrested on 23.11.2007. Further on analysis of the samples drawn in this case, the quantity seized is found to be illicitly distilled liquor, unfit for human consumption and injurious to health. Later he was enlarged on bail. The charge sheet was filed in this case in the Court of Hon’ble JFCM, Jangareddygudem. 4. Crime No.642 /07-08, dated 22.11.2007 u/s 7(A) r/w 8(e) of A.P. Prohibition Act of Prohibition & Excise Station, Jangareddygudem. In this case he was arrested with 10 lts of I.D. Liquor by the Prohibition & Excise Inspector, Jangareddygudem at Marlagudem. In this case the chemical analysis report revealed that the contraband seized from them is illicitly distilled liquor, unfit for human consumption and injurious to health. Later he was enlarged on bail. Charge sheet was filed in this case. The case is pending trial in C.C.No.109/08. 5. In the preamble of the impugned order of detention, it has been categorically pointed out by the competent authority that from the material placed before it, the authority is satisfied that the alleged detenu was constantly indulging in bootlegging activities in Jangareddygudem village and causing hindrance to the public peace and that he was a habitual offender in committing the offences under A.P. Prohibition Act, 1995. It was further stated by the competent authority that the four cases, which were already extracted above, in which he was arrested by the Prohibition and Excise officials, were considered as the grounds for his detention. 6. From a conjoint reading of the said observation and narration of the four cases, referred to above, it appears, it is only those four cases, which were taken into consideration, for passing the impugned order of detention and no other material. 7. However, in the very same order, after narrating the four cases, which were taken into consideration, for passing the impugned order of detention, it was further as under: “Previously he was also arrested and was released on bail in the following cases registered in Jangareddygudem Prohibition & Excise Station.” 8. In this context, as many as 11 cases were cited by the competent authority and it was observed that in all those cases the alleged detenue had deliberately violated the provisions of A.P. Prohibition Act, 1995, and thus, he can be called as “Bootlegger”, as defined under Section 2 (b) of the Act and the explanation thereunder. 9. Now, it is the contention of the learned Senior Counsel appearing for the petitioner that – (i) the other 11 cases initiated against the alleged detenu in the past, which found place in the impugned order of detention, were all stale subject matters and the competent authority ought not have taken them into consideration for passing the impugned order of detention; and (ii) when those 11 cases have been taken into consideration, the competent authority is under obligation to supply the entire material pertaining to those 11 cases in which the detenu was allegedly involved, but the same was not supplied to the alleged detenu in order to make an effective representation to the Advisory Body or the Government under Article 22 (5) of the Constitution of India. 10. On the other hand, it is the contention of learned Assistant Government Pleader, representing learned Advocate General, that the competent authority had taken into consideration only four cases and the other 11 cases, which were cited in the impugned order of detention, relate to the past and the competent authority had referred it only in a casual manner. Therefore, since those 11 cases, in which the alleged detenu was involved in the past, were not taken into consideration for the purpose of passing the impugned order of detention, the competent authority is not under obligation to supply any material pertaining to those 11 cases so as to enable the alleged detenu to make an effective representation under Article 22 (5) of the Constitution of India. 11. In this background, firstly, it is necessary to examine the first contention raised by learned Senior Counsel appearing for the petitioner. 12. It is to be seen that in the preamble of the impugned order, dated 14-03- 2008, itself, it was specifically pointed out by the competent authority that those four cases in which the alleged detenu was arrested by the Prohibition and Excise officials were considered as the grounds for his detention and thereafter the said four grounds have been detailed. 13. From the above, it is obvious that the competent authority had taken into consideration only those four cases for the purpose of passing the impugned order of detention and no other grounds were taken into consideration. However, as a matter of information, a passing reference had been made regarding the previous involvement of the alleged detenu in various similar other offences, but the same were not taken as the basis for passing the impugned order of detention. 14. Therefore, as contended by the learned Senior Counsel, all those 11 cases, in which the alleged detenu was involved in the past for similar offences, are indeed stale, and the question raised by the learned Senior Counsel would arise only when such stale instances of the past were taken into consideration for the purpose of passing the impugned order of detention. 15. In view of the above observations and as noticed from the record, it is only those four cases that have been taken into consideration by the competent authority for passing the impugned order of detention. 16. But, it was not clearly mentioned in the impugned order that the past conduct of the alleged detenu was also taken into consideration for passing the impugned order of detention. If really it were the intention of the competent authority to take into account the said 11 cases for passing the order of detention, the language employed would have been different. In other words, those 11 cases also would have been tagged on to the four cases, which were actually taken as the basis for passing the impugned order of detention, and in total all the 15 cases would have been made as the basis for passing the impugned order of detention. 17. From a bare perusal of the impugned order, it is abundantly clear that only four cases have been taken into consideration for passing the impugned order of detention. Therefore, the nature of the other 11 cases and the effect thereof would be not only stale in nature, but also just passing observations relating to the other material which have been on record. But, we are of the considered view that certainly the other 11 cases were not at all the foundation for passing the impugned order of detention along with the four cases. The intention of the competent authority is explicitly clear with the very language employed at the threshold of the impugned order of detention that those four cases only were taken into consideration for the purpose of passing the order of detention. 18. In COLLECTOR & DISTRICT MAGISTRATE vs. SANGALA KONDAMMA the apex Court observed as under: “Thus, if the facts placed before the detaining authority are proximate to each other and the last of the facts mentioned is proximate to the order of detention then the earlier incidents cannot be treated as stale and detention order cannot be set aside.” 19. Coming to the case on hand, as already been observed, all the past instances, which have been referred to in 11 cases, were of the years 2000 to 2005, whereas the other four cases, which have been specifically mentioned as the grounds for passing the impugned order of detention, were of the year 2007. Therefore, in the teeth of the judgment of the apex Court, the past 11 cases, even if taken into consideration, cannot be treated as proximate instances and they have to be treated as stale instances only and no reliance can be placed on such instances for the purpose of passing the order of detention. 20. The above proposition laid down by the apex Court is unexceptional. But, that question does not arise in the present case, inasmuch as, it has been made explicitly clear by the competent authority that the four cases that took place in the year 2007 alone were taken into consideration for passing the order of detention. The narration of those 11 cases that had allegedly taken place are neither proximate nor they can be taken into consideration, as they are stale. Therefore, any further authoritative pronouncement by this Court is not required, for the simple reason that the competent authority had already made a specific mention, in this regard. 21. Therefore, it is not the view of this Court as to whether the other 11 cases, which were referred to in the order of detention, are relevant or not for the purpose of passing the order of detention. In fact, it is the explicit intention of the competent authority itself that the other 11 cases referred to are not relevant and the order of detention was founded on four cases pertaining to the year 2007 only. 22. Therefore, this Court need not express any view on the relevancy and proximity of those 11 cases for the purpose of passing the impugned order. In other words, if the intention of the competent authority is not explicit, perhaps, it is for this Court to examine the issue as to whether the intention of the competent authority was to rely on those 11 cases also along with the four cases, which were actually relied on. That exercise is not necessary for this Court in the light of the intention of the competent authority being made clear by taking into consideration the four cases only for passing the impugned order of detention. 23. Therefore, we are of the considered view that the competent authority had relied on only four cases that had taken place in 2007. The other 11 cases that had allegedly taken place from 2000 to 2005, though a reference was made, does not have any bearing on the impugned order or the same are capable of vitiating the impugned order. 24. Now, as regards the second question raised by the learned Senior Counsel appearing for the petitioner that the documents pertaining to 11 cases, which have been referred to in the impugned order, no material had been supplied to the alleged detenu to enable him to make an effective representation as envisaged under Article 22 (5) of the Constitution of India is concerned, as a matter of fact, in view of the finding recorded by us, while dealing with the first question, that the competent authority did not, in fact, rely on the other material and which, in fact, is to be treated as stale and not proximate, addressing the present question is purely academic in nature. 25. In other words, when the other 11 cases were found to be not relied on by the competent authority, such cases, though find a place in the impugned order, it is a futile exercise for the competent authority to supply any material pertaining to those cases. 26. In this regard, the learned Senior Counsel places heavy reliance on the judgment of the apex Court in KIRTI KUMAR CHAMANLAL KUNDALIYA vs. STATE OF GUJARAT wherein their Lordships of the apex Court observed as under: “……Once the documents are referred to in the grounds of detention it become the bounden duty of the detaining authority to supply the same to the detenu as part of the grounds or pari passu the grounds of detention……” 27. In the said case, the only ground taken before the High Court of Gujarat was that two documents referred to in the order of detention were not supplied to the detenu. This contention was rejected by the High Court on the ground that the said documents were merely referred to and not relied on by the detaining authority and after having examined the documents it found that the same were not relevant. In such circumstances, their Lordships of the apex Court made the above observations. 28. In the said case, it was not explicitly made clear that what were the grounds actually referred to for the purpose of passing the order of detention. In those circumstances, the High Court, after calling for the records and examining the same on its own, recorded a finding that some material is not relevant. However, since some cases were referred to, all such material that was referred to in the order of detention, was found to be furnished to enable the detenu to make an effective representation under Article 22 (5) of the Constitution of India. 29. The above observations of the apex Court are absolutely unexceptionable in the light of the facts and circumstances of the said case. 30. But, in the case on hand, that situation is not existing. As already noticed, the competent authority had already made it abundantly clear in the impugned order itself that reliance was placed only on four cases of the year 2007. Therefore, the observations made by the apex Court in KIRTI KUMAR CHAMANLAL’s case (2 supra) are not applicable to the facts and circumstances of the case on hand. In other words, if the competent authority did not employ the language in explicit terms in the order of detention, then only the principle laid down in KIRTI KUMAR CHAMANLAL’s case (2 supra) would have to be made applicable. 31. In L.M.S. UMMU SALEEMA vs. B.B. GUJARAL, which was rendered subsequent to the judgment referred to above (2 supra), a Bench consisting of three Hon’ble Judges of the apex Court, observed as under: “……It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of Art. 22 (5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the Fundamental Rights guaranteed by Art. 22 (5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention. In the case before us we are satisfied that such were the two documents, copies of which were not furnished to the detenu. We are satisfied that the documents cannot be said to be documents which were relied upon by the detaining authority in making the order of detention. Therefore, the detenu could not properly complain that he was prevented from making an effective representation. There was no violation of the right guaranteed by Art. 22 of the Constitution.” 32. In fact, in RAMCHANDRA A. KAMAT vs. UNION OF INDIA, a Bench consisting of three Hon’ble Judges of the apex Court observed as under: “……It may not be necessary for the detaining authority to supply copies of all the documents relied upon in the grounds of detention at the time when the grounds are furnished to the detenu but once the detenu states that for effective representation it is necessary that he should have copies of the statements and documents referred to in the grounds of detention, it is the duty of the detaining authority to furnish them with reasonable expedition. The detaining authority cannot decline to furnish copies of the documents on the ground that the grounds were sufficiently datailed to enable the petitioner to make an effective representation. ……” 33. In the said case, the detenu had asked for certain material to enable him to make effective representation to the higher authorities and upon which there was a denial of some material. In those circumstances, the above observations were made by their Lordships. 34. It is obvious that there is a right and duty cast upon both the detenu and the detaining authority to the effect that the detenu can ask for the relevant material, on which the order of detention was passed, to be supplied to him and the detaining authority shall supply such material to the detenu. 35. Therefore, it is again obvious that the material, which was referred to for the purpose of passing the order of detention, has to be necessarily supplied to the detenu, if asked for, as was observed in SUNILA JAIN vs. UNION OF INDIA to the effect that all the documents placed before the detaining authority are not required to be supplied; only relevant and vital documents are required to be supplied. 36. In SUNILA JAIN’s case (supra 5), their Lordships further observed as under: “……The Constitutional mandate can be said to be violated, provided (1) the impairment has been caused to be subjective satisfaction to be arrived at by the detaining authority; and (2) if relevant facts had not been considered or the relevant or vital documents have not been placed before the detaining authority.” 37. From the above, it is made obvious that the material, which was specifically relied on for the purpose of passing the order of detention shall have to be essentially supplied to the detenu in order to protect his right guaranteed under Article 22 (5) of the Constitution of India. 38. To put it in a different way, as pointed out in SUNILA JAIN’s case (5 supra), the grounds of detention must be subjective satisfaction of the detaining authority and the material relevant to such grounds alone have to be supplied. 39. Again, coming back to the case on hand, it is to be seen that it was expressly made clear that the competent authority had expressed its satisfaction for passing the impugned order of detention basing on four cases only. Therefore, it is not for this Court to travel beyond the explicit intention of the detaining authority and draw certain presumptions in favour of the alleged detenu and against the competent authority. 40. We are of the further view that the cases referred to or relied on should be explicitly clear, without there being any ambiguity or vagueness. In other words, mere mentioning of certain cases does not necessarily constitute, at all circumstances, a reference or reliance. Therefore, mentioning of every incident or case, which has no bearing on passing of the order of detention, cannot be treated as the matters referred to, followed by essentially supplying of the relevant documents to such irrelevant grounds. 41. Having