IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, the 15th day of November, Two Thousand and Eleven PRESENT HON'BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R. KANTHA RAO WRIT PETITION No.6565 OF 2011 Between: Banoth Baddi … Petitioner And The Collector & District Magistrte, Khammam And another … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITON No.6565 of 2011 ORDER: (per the Hon’ble Sri Justice A.Gopal Reddy) The detention order passed by the Collector & District Magistrate, Sl.No. Crime No. Police station Sections Material seized Arrested on 1. COR.No.1586/ 09-10, dated 29.12.2009 Prohibition & Excise Station, Khammam U/s.7A r/w 8(3) of A.P.Prohibi- ion Act, 1995. 20 litres of I.D.Liquor 20.04.2010 2. COR.No.1887/ 09-10, dated 06.02.2010 Prohibition & Excise Station, Khammam U/s.7A r/w 8(3) of A.P.Prohibi- ion Act, 1995. 15 litres of I.D.Liquor 20.04.2010 3. COR.No.2089/ 09-10, dated 13.03.2010 Prohibition & Excise Station, Khammam U/s.7A r/w 8(3) of A.P.Prohibi- ion Act, 1995. 20 litres of I.D.Liquor 20.04.2010 4. COR.No.1494/ 09-10, dated 27.11.2010 Prohibition & Excise Station, Khammam U/s.7A r/w 8(3) of A.P.Prohibi- ion Act, 1995. 25 litres of I.D.Liquor -- Khammam, 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 bearing Cr.No.529/P&Ex/2010/A5, dated 27.11.2010, detaining Banoth Dhanumurthi, S/o.Pedda Biksham, R/o.Pedda Thanda Village of Khammam Rural Mandal, as approved by the Government of Andhra Pradesh in G.O.Rt.No.5853, General Administration (Law & Order.II) Department, dated 04.12.2010 and confirmed in G.O.Rt.No.6153, General Administration (Law & Order.II) Department, dated 22.12.2010, is challenged by the mother of detenu by means of present writ petition praying for issuance of a writ of Habeas Corpus to release the detenu i.e., her son from detention. 2. The grounds of detention, set out in the backdrop of the detailed factual matrix which were made available to the detaining authority about various illegal activities committed by the detenu, which according to the detaining authority amounted to acting in any manner prejudicial to the maintenance of public order, are briefly detailed in the table given below:- In all the above cases, the contraband was seized, samples were drawn and sent for chemical examination to the Government Chemical Examiner, Prohibition and Excise, Regional Prohibition and Excise Laboratory, Warangal. As per the Chemical Analysis Reports, it was found that all the samples drawn from the seized contraband were found to be “illicitly distilled liquor, unfit for human consumption and injurious to health”. Out of the four crimes mentioned above, the detenu was arrested and enlarged on bail in respect of three crimes i.e., Sl.Nos.1 to 3, but in the fourth crime i.e., Sl.No.4, the detenu was arrested; and was sent to judicial custody and lodged at Sub-Jail, Khammam. As the detenu was continuously involving in bootlegging activities, i.e., possession, transportation and sale of illicitly distilled liquor, which is unfit for human consumption, for money gain 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 Khammam town and there is need to detain the detenu under the Act 1 of 1986 and passed the impugned detention order dated 27.11.2010 ordering that the detenu be detained from the date of service of the order in the Central Prison, Warrangal, 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 Board, and had a right to be heard personally or through a friend, who is not an Advocate, by the Advisory Board, if he so desires. Pursuant to the detention order, the detenu was taken into custody on 28.11.2010. 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.5853 dt. 04.12.2010, 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 and the investigating officer of Excise Department and after perusing the records, opined that there is sufficient cause for the detention of the detenu, Banoth Dhamurthy, S/o.Pedda Biksham. 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.6153 dt. 22.12.2010 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., 28.11.2010. 3. Sri P.Prabhakar Reddy, learned counsel for the petitioner contended that in the first three crimes mentioned above, no I.D.liquor was seized from the possession of the detenu, but was seized from the scooter which was left by the detenu while running away on seeing the excise officers. Mere seizure of I.D.liquor from the scooter does not imply that the detenu was in possession of I.D.Liquor. The alleged incidents in three cases were taken place on 29.12.2009, 06.02.2010 and 13.03.2010 respectively and the detenu was arrested on 20.04.2010 and later he was released on bail. The detenu’s name was said to have been disclosed by the mediators, who were introduced by the police. The report of the Chemical Examiner’s about the presence of alcohol, acid and fusel oil in the seized material, cannot be relied upon. Mere presence of fusel oil by itself is not injurious to health. Only when fusel oil is separated from liquor and consumed in large quantities, it is injurious. In the absence of mentioning permissible limits in the Chemical Examiner’s report, terming the sample as injurious to health is not sustainable. Every person who was described as bootlegger cannot be detained preventively under the Act 1 of 1986. The incidents mentioned in the detention order will not affect any maintenance of public order. He further contends that the detenu was enlarged on bail in the first three crimes and the said fact has not been considered by the detaining authority and, therefore, the detention order passed is totally by non- application of mind. The Advisory Board or the Government has not considered the representations, dated 25.01.2011 and 10.02.2011 submitted to the respondents before confirming the detention order and no reply is given to the detenu with regard to rejection of the representations. Therefore, the detention order is liable to be set aside. 4. Per contra, learned Special Government Pleader representing learned Advocate General while sustaining the order of detention impugned in the writ petition contends that the detenu was found to be in possession of huge quantity of illicitly distilled liquor and the 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. Therefore, the detention order needs no interference. 5. 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.5853, dated 04.12.2010, and confirmed in G.O.Rt.No.6153, dated 22.12.2010, can be sustained or not?” P O I N T :- 6. Before dealing with the rival submissions, it would be appropriate to notice relevant statutory provisions:- 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”, which 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.” Section 2(b) of the Act 1 of 1986 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. 7. In all the four crimes, as detailed in the grounds of detention, the detenu was found to be in possession of illicitly distilled liquor. The contraband seized was sent for chemical examination. In crime Nos.1 and 3, the detenu absconded on seeing the search parties, whereas in crime Nos.2 and 4, he was found carrying 15 litres and 25 litres of I.D.liquor respectively. In the first three crimes, the detenu was arrested and was enlarged on bail and in the fourth crime he was arrested and was kept in the judicial custody at Sub-Jail, Khammam. 8. In HARPREET KAUR V. STATE OF MAHARASHTRA[1], 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 stores the ID liquor can be termed as a bootlegger for proceeding under the Act 1 of 1986. 9. In the case on hand, it is clear that the detenu was found in possession of I.D.liquor, which was injurious to health. Therefore, he can be termed as a bootlegger under the provisions of the Act 1 of 1986. 10. 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 V. UNION OF INIDA[2], 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) 11. The contention of the learned counsel for the petitioner is that the detenu was enlarged on bail in the first three crimes and the said fact has not been considered by the detaining authority while passing the detention order. Admittedly, the detaining authority referred to the fact that bail was granted in three crimes, where the detenu was arrested and produced before the Magistrate for remand. In the fourth crime, the detenu was arrested, but was not released on bail. The orders granting bail in the first three cases were also placed before the detaining authority and were supplied to the detenu. 12. Once the report of the Chemical Analyst discloses that the sample of contraband is illicitly distilled liquor unfit for human consumption and injurious to health, it impliedly mean that consumption of such liquor causes danger to life and public health and then the public order shall be deemed to have been adversely affected. 13. Further, we do not see any merit in the contention of the learned counsel for the petitioner that failure to consider the representations, dated 25.01.2011 and 10.02.2011 made by the detenu will vitiate the detention order. Admittedly, both the representations were made after confirmation of the detention order in G.O.Rt.No.6153, dated 22.12.2010. 14. This Court in Amritha v. Collector and District Magistrate, Hyderabad[3], held that where the detention order has been made under Section 3 by the Collector and District Magistrate or a Commissioner of Police in exercise of the powers conferred by sub-section (2) of section 3 and when the order of detention has been approved by the State Government, the State Government becomes the detaining authority from the date of such approval. Any representation has to be made to the State Government/detaining authority and the State Government is obliged to consider such a representation independently if made prior to the confirmation of the detention order (emphasis supplied) and failure on its part to do so results in further detention illegal. But the same is not the case on hand. As per the grounds raised in ground No.6, the representations were admittedly made after confirmation of the detention order and the same were rejected by the Government. 15. 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 Khammam town 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. 16. For the conclusions reached by us, we are of the opinion that the detention order, dated 27.11.2010, passed by the Collector and District Magistrate, Khammam, as approved by the Government in G.O.Rt.No.5853, dated 04.12.2010 and confirmed in G.O.Rt.No.6153, dated 22.12.2010, does not suffer from any illegality warranting interference by this court. 17. The Writ Petition is, accordingly, dismissed. There shall be no order as to costs. _____________________ A. GOPAL REDDY, J ____________________ R. KANTHA RAO, J 15-11-2011 LMV HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.6565 of 2011 15-11-2011 lmv [1] AIR 1992 SC 979 = (1992) 2 SCC 177 [2] (2006)3 SCC 321 [3] 2008 Cri.L.J.3123