IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE 21st 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.21801 OF 2011 Between: Sorakayala Jayamma … Petitioner And The Government of A.P., rep. by its Chief Secretary and others … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITON No.21801 of 2011 ORDER: (per the Hon’ble Sri Justice A.Gopal Reddy) The detention order passed by the Collector & District Magistrate, Y.S.R.District, Kadapa, 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 in Ref.No.C1/205/M/11, dated Sl.No. Crime No. Police station Sections Material seized Arrested/ surrend- ered on 1. Cr.No.118/ 2009-10, dated 22.09.2009 Prohibition & Excise Station, Pulivendula U/s.7A r/w 8(e) of A.P.Prohibi- ion Act, 1995. 20 litres of I.D.Liquor -- 2. Cr.No.155/ 2010-11, dated 07.01.2011 Prohibition & Excise Station, Pulivendula U/s.7A r/w 8(e) of A.P.Prohibi- ion Act, 1995. 20 litres of I.D.Liquor -- 3. Cr.No.202/ 2010-11, dated 06.03.2011 Prohibition & Excise Station Pulivendula U/s.7A r/w 8(e) of A.P.Prohibi- ion Act, 1995. 100 litres of I.D.Liquor -- 25.03.2011, detaining Sorakayala Rama Subbaiah @ Subbarayudu, S/o.Subbanna, aged about 40 years, R/o.D.No.3-8-49, Bakarapuram, Pulivendula Town, Y.S.R.District, as approved by the Government of Andhra Pradesh in G.O.Rt.No.1402, General Administration (Law & Order.II) Department dt. 01.04.2011 and conﬁrmed in G.O.Rt.No.1777, General Administration (Law & Order.II) Department dt. 29.04.2011, 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 i.e., her husband 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 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 injurious to health”. In all the three cases, the detenu was arrested and later enlarged on bail by the Judicial Magistrate of First Class, Pulivendula, before whom the charge sheets were ﬁled. As the detenu was continuously involving in bootlegging activities, i.e., 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 Pulivendula village and there is need to detain the detenu under the Act 1 of 1986 and passed the impugned detention order dt. 25.03.2011 ordering that the detenu be detained from the date of service of the order in the Central Prison, Cherlapally, R.R.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 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. 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, i.e., English and Telugu and the same was acknowledged by him. The Government in their order in G.O.Rt.No.1402 dt. 01.04.2011, in exercise of power under sub-section (3) of Section 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, the investigating oﬃcers of Excise Department and upon perusing the grounds of detention and the connected records, opined that there is suﬃcient cause for the detention of the detenu, Sorakayala Rama Subbaiah @ Subbarayudu. 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.1777, dated 29.04.2011, 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 i.e., 30.03.2011. 3. Sri D.Kodanda Rami Reddy, learned counsel for the petitioner contends that there was no continuity of the incidents and there was a long gap of 15 months between the ﬁrst incident and the second incident. There is absolutely no basis for arriving at the conclusion that the detenu has been continuously and repeatedly committing the same type of oﬀences. There was a time gap of 19 days from the date of the third incident and to the date of the detention order. The ﬁrst two incidents was to the eﬀect that the detenu was found carrying 20 litres of arrack in a plastic can. The third incident is that while the detenu was driving his two wheeler, two persons who were sitting on his back were found carrying 50 litres of arrack each in two gunny bags. Mere transport of small quantities of arrack would not make the detenu liable for the detention as there is absolutely no allegation that any person who consumed the arrack supplied by the detenu fell ill or the said supply caused wide spread danger to public health. The detaining authority will not be justiﬁed in ordering detention on the ground that the detenu is acting in a manner prejudicial to the maintenance of public order. In the absence of putting forth the material by the sponsoring authority that the illicitly distilled liquor was put to sale and in all the crimes, he was found in possession of the I.D.Liquor, it cannot be presumed that the same was sold to consumers to term him as a bootlegger as deﬁned under Section 2(b) of the Act. He lastly contends that the Government has not assigned any reasons to ﬁx the maximum period of detention and hence, the same is liable to be set aside. 4. Learned Special Government Pleader representing Advocate General while sustaining the order of detention impugned in the writ petition contended that while passing the impugned detention order, all the constitutional safeguards have been complied with by furnishing the documents to the detenu which are necessary both in English and Telugu vernacular languages and informing the detenu that he has a right to make a representation and when the matter is placed before the advisory board the detention order has been confirmed by the Government, which 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.1402, dated 01.04.2011, and conﬁrmed in G.O.Rt.No.1777, dated 29.04.2011, can be sustained or not?” 6. Before dealing with the rival submissions, it would be appropriate to notice relevant statutory provisions. 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. 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.” 7. In all the cases, the detenu was found to be in possession of illicitly distilled liquor, 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 all the crimes, the detenu was arrested on the information received about illegal sales of ID liquor. 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. 9. 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. 10. 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. 11. The detaining authority referred to the fact that bail was granted in all the cases. The orders granting bail were also placed before the detaining authority and were supplied to the detenu. 12. It is settled proposition of law in a case where detenu is released on bail conditionally 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) 13. 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. 14. 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 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. 15. 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). 16. In Suresh v. State of Maharashtra[2], the Supreme Court held that the maximum period prescribed under the relevant detention laws is one year and when no period is mentioned in an order, the implication is that the detention is for a maximum period of one year (or two years as the case may be). Detention beyond the maximum period will be illegal. 17. In the light of the above discussion, if we consider the grounds of detention and material papers enclosed with it, an irresistible conclusion can be drawn that the detenu was habituated in commission of crimes and is accustomed to possession, transporting and selling of illicitly distilled liquor in and around Pulivendula Town, Y.S.R.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. 18. For the conclusions reached by us, we are of the opinion that the detention order, dated 25.03.2011, passed by the Collector and District Magistrate, Y.S.R.District, Kadapa, as approved by the Government in G.O.Rt.No.1402, dated 01.04.2011, and conﬁrmed in G.O.Rt.No.1777, dated 29.04.2011, does not suﬀer from any illegality warranting interference by this Court. 19. The Writ Petition is, accordingly, dismissed. _____________________ A. GOPAL REDDY, J __________________)_ R. KANTHA RAO, J 21st November, 2011. lmv HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.21801 of 2011 21-11-2011 lmv [1][4] AIR 1992 SC 979 = (1992) 2 SCC 177 [2] AIR 1983 SC 181