IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SECOND DAY OF MAY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 7077 of 2008 Between: N. Kamala, W/o. N. Damodar Goud, R/o. D.NO. 2347, Tilaknagar, Godavarikhani, Karimnagar District. ..... PETITIONER AND 1 The Collector & District Magistrate, Karimnagar District. 2 The Chief Secretary, Government of Andhra Pradesh, Secretariat, Hyderabad. 3 The Superintendent, Central Jail, Warangal. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a Writ order or direction more one in the nature of the Writ of Habeas Corpus Under Article 226 of the Constitution of India directing the respondents to produce Sri Narella Damodar Goud Alias Bapu Goud, S/o. Rajaiah now detained in Central Prison, Warangal, before this Hon'ble Court and he may be released forthwith after declaring is illegal and void. Counsel for the Petitioner: SMT A.GAYATRI REDDY Counsel for the Respondents: THE ADVOCATE GENERAL The Court made the following : THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.7077 OF 2008 O R D E R: (Per B.Seshasayana Reddy,J) 1. This Writ Petition under Article 226 of the Constitution of India has been filed by Smt.N.Kamala, w/o N.Damodar Goud (hereinafter referred to as the detenu) challenging the correctness and validity of the detention order dated 30-11-2007 passed by the District Magistrate, Karimnagar in exercise of the powers conferred on him under sections 3(1) and 3(2) r/w Section 2(a) and 2(b) of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short the Act, 1986) with a view to prevent the detenu from acting in a manner prejudicial to the maintenance of public order. 2. Briefly stated the alleged activities of the detenu as set out in the grounds of the detention order dated 30.11.2007 are: On 8.6.2007 at about 1.30 p.m. under the supervision of Deputy Commissioner, Prohibition & Excise, Karimnagar and Assistant Commissioner, Prohibition & Excise, Karimnagar surprised the house of Perika Mohan, S/o Samuel, aged 39 years and seized one litre of Rectified Spirit. Perika Mohan made a confessional statement that he and the detenu are doing jointly transporting, storage, manufacturing and sale of spurious liquor and diluted rectified spirit in and around Godavarikhani, Karimnagar District. He further confessed that he transported and supplied spurious liquor and rectified spirit from Hyderabad to Godavarikhani and stored in the house of A3-Kolahala Satyanarayana and selling it to A4 Ganta Bheemaiah, A5 Janagama Rajaiah and A6 Vainala Raju, a licensee of M/s Durga Nagulamma Wines, Kannala. The samples of rectified spirit seized from the possession of A3, A4 and A5 and the samples of diluted liquor bottles seized from M/s Durga Nagulamma Wines, Kannala came to be sent for chemical analysis. Thereupon a case in COR No.148/07-08, dated 8.6.2007 came to be registered against seven accused persons including the detenu herein. The samples came to be sent to Government Regional Prohibition and Excise Laboratory, Warangal. The chemical examiner tested the sample and opined that the samples are diluted rectified spirit/ spurious liquor/Indian made liquor. Sample bearing No.12597 is found to be unfit for human consumption and injurious to health. A charge sheet came to be filed before the concerned Court, which took the charge sheet on file as C.C.No.35 of 2007. 3. The Assistant Commissioner (Enforcement), Karimnagar searched the house of Pebba Srinivas Goud and seized 1.400 litres of spurious liquor, 600 ml of chemicals in two bottles of 500 ml quantity each containing 250 mo and 350 ml respectively, 500 m. grams black substance in a plastic box used for preparation of spurious liquor. The said P.Srinivas Goud confessed that the detenu supplied rectified spirit to him. The raid party arrested Pebba Srinivas Goud and sent the samples drawn from the seized spurious liquor for chemical analysis. The report of the Chemical analyst revealed that the sample contains suspended articles unfit for human consumption and injurious to health. A case in C.O.R.No.110/07-08 came to be registered. After completing investigation, a charge sheet came to be filed before the concerned Court, which took the charge sheet on file as C.C.No.407 of 2007. 4. On 11.6.2007 State Task Force Party, Hyderabad, arrested the detenu and seized 50 litres of rectified spirit and 288 fake excise adhesive labels for being used for preparation of spurious liquor. Pursuant to his confessional statement, 20 litres of rectified spirit came to be seized from R.Anjaneyulu, Karmanghat, Hyderabad and whereas fake excise adhesive labels, liquid (chemical), corking machine, corks, caramel, screen printing film plate came to be seized from M.Srinivas Goud at Badepalli, Jadcherla, Mahaboobnagar District. A case in C.O.R.No.12/07-08 came to be registered against the detenu and others. The samples of the seized liquor and other material came to be sent to Government Regional Prohibition and Excise Laboratory, Warangal. On analysis, the chemical examiner opined that the samples are rectified spirit/coloured diluted rectified spirit. The District Collector, Karimnagar in exercise of the powers vested on him under section 2 of Sec.3 r/w Section 3(1) of the Act, 1986 formed the opinion that it is difficult for the department to catch the detenu at every occasion of commission of offence to detect an offence and book a case against him and therefore proceeded to pass the order detaining the detenu under the provisions of the Act, 1986 with a view to prevent the detenu from transportation, manufacturing and sale of spurious liquor and rectified spirit in and around Godavarikhani of Karimnagar District and also in Hyderabad and Adilabad District. 5. The grounds of detention and relevant documents came to be furnished to the detenu. He was also informed of his right to make representation against the detention order to the detaining authority and also to the Advisory Board. 6. The Government approved the order of detention vide G.O.Rt.No.7441 General Administration (Law and Order II) Department dated 10.12.2007. The Advisory Board heard the detenu and departmental officials and perused the connected records and opined that there is sufficient cause for detention of detenu. Basing on the opinion of the Advisory Board, the Government issued G.O.Rt.No.67 General Administration (Law and Order II) Department dated 4.1.2008 in exercise of power under sub-section (1) of Section 12 read with Section 13 of the Act, 1986 confirming the order of detention. The said order is under challenge in this Writ Petition. 7. Heard learned counsel for the petitioner and learned Advocate General appearing for the respondent. 8. The learned counsel appearing for the petitioner submits that the detenu is not directly involved in C.O.R.No.148/07-08 and C.O.R.No.110/07-08 and no part of illicit liquor or any contraband came to be seized from the possession of detenu in respect of these two crimes and therefore the facts stated therein are irrelevant to consider whether the detenu is required to be dealt with under the provisions of the Act, 1986. She further submits that with regard to C.O.R.No.12/07-08, the accusation against the detenu is that he is found to be in possession of 50 litres of rectified spirit and 288 fake excise adhesive labels. Solitary incident alleged to have been taken place on 11.6.2007 is not sufficient to infer that the activity of the detenu is prejudicial to the maintenance of the public order. She further submits that the Public Analyst report in respect of sample which is the subject matter in C.O.R.No.12/07-08 does not indicate that it is injurious to health. She would further submit that the observation of the detaining authority that the samples collected in all three crimes are found to be injurious to health is contrary to the material placed on record and therefore, the order of the detention suffers from serious infirmity and the same is liable to be set aside. 9. Learned Advocate General submits that the activity of the detenu in transporting, preparing and sale of spurious liquor and rectified spirit is prejudicial to the maintenance of public order and thus the order of detention impugned in this Writ Petition is not liable to be interfered with. 10. Indisputably the name of the detenu in C.O.R.Nos.148/07-08 and 110/07-08 came to be implicated basing on the confessional statement of the co-accused. No part of the liquor or contraband with reference to the above two crimes came to be seized from possession of the detenu. In respect to C.O.R.NO.12/07-08, State Task Force (Enforcement), Hyderabad allegedly found the detenu in possession of 50 litres of rectified spirit and 288 fake excise adhesive labels. Samples of rectified spirit seized from the possession of detenu came to be sent to Government Regional Prohibition and Excise Laboratory, Warangal. On analysis, the chemical examiner has given his opinion, which reads as under: “SL.NOS.9004 to 9007 contain alcohol as shown in the column. They are rectified spirit. Sl.No.9008 contains alcohol as shown in the column. It is coloured diluted rectified spirit. S.No.9009 contains alcohol as shown in the column. It is liquor.” 11. The report does not indicate that the sample is injurious to health. But the detaining authority has misconstrued report in respect of C.O.R.NO.12/07-08 and proceeded to observe that the sample is injurious to health. For better appreciation, I may refer the relevant portion of the detention order and it is thus: “ In the above case, he was the main accused (A1) and he was supplying rectified spirit and preparing spurious liquor. In all the above cases, on analysis the contraband liquor involved was found to be spurious and diluted liquor which is unfit for human consumption and also found injurious to health. It is evident from the above facts that he was actively indulging in bootlegging activities of possession, transportation, preparing and sale of spurious liquor and rectified spirit in Godavarikhani of Karimnagar District deliberately violating the provisions of A.P. Excise Act in spite of existence of ban on sale of arrack. Consumption of rectified spirit and spurious liquor being transported, stored, supplied and sold by him is injurious to consuming public and if it is allowed unchecked there is every danger of leading to liquor tragedies costing many lives of the poor people.” 12. The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof. 13. Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and services essential to the community, prevention of dangerous activities of bootleggers, dacoits, drug offenders, goondas, immoral traffic offenders and land grabbers, smuggling and black-marketing activities, etc. demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life. 14. In considering and interpreting preventive detention laws, courts ought to show greatest concern and solitude in upholding and safeguarding the fundamental right of liberty of the citizen, however, without forgetting the historical background in which the necessity – an unhappy necessity – was felt by the makers of the Constitution in incorporating provisions of preventive detention in the Constitution itself. While no doubt it is the duty of the Court to safeguard against any encroachment on the life and liberty of individuals, at the same time the authorities who have the responsibility to discharge the functions vested in them under the law of the country should not be impeded or interfered with without justification vide the decisions of the Supreme Court in A.K.ROY V. UNION OF INDIA, BHUT NATH METE V. STATE OF W.B, STATE OF W.B. v. ASHOK DEY and ADM V. SHIVAKANT SHUKLA. 15. Subjective satisfaction being a condition precedent for the exercise of the power of preventive detention conferred on the executive, the court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. 16. An order of detention can be challenged on certain grounds, such as, the order is not passed by the competent authority; condition precedent for the exercise of power does not exist; subjective satisfaction arrived at by the detaining authority is irrational; the order is mala fide; there is non application of mind on the part of the detaining authority in passing the order; the grounds are, or one of the grounds is, vague, indefinite, irrelevant, extraneous, non existent or stale; the order is belated; the persona against whom an order is passed is already in jail; the order is punitive in nature; the order is not approved by the State/Central Government as required by law; failure to refer the case of the detenu to the Board constituted under the statute; the order was quashed/revoked and again a fresh order of detention was made without new facts, etc. 17. If the order impugned in this Writ Petition is tested keeping in view the proposition of law laid down by the Supreme Court in the above referred to cases, we are of the considered view that the subjective satisfaction recorded by the detaining authority is based on misapprehension of the material placed on record. We have extracted in the aforesaid paragraphs of the judgment the subjective satisfaction recorded by the detaining authority. It is explicit that the detaining authority proceeded to pass the order on the premise that the sample collected from the rectified spirit seized from the possession of the accused are injurious to health. But, the report is otherwise. Therefore, the order under challenge cannot be sustained and the same is liable to be set aside. 18. Accordingly, this Writ Petition is allowed setting aside the detention order dated 30-11-2007 passed by the District Collector and Magistrate, Karimnagar in exercise of the powers conferred on him under sections 3(1) and 3(2) r/w Section 2(a) and 2(b) of the A.P. Prevention of Bangerous Activities of Bootleggers, Dacoits, Drugg Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 and the detenu-Nerella Damodar goud alias Bapu Goud is directed to be set at liberty forthwith, if he is otherwise not required in any other crime. 2nd May, 2008. ( A.GOPAL REDDY, J ) TNB (B.SESHASAYANA REDDY,J) ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Collector & District Magistrate, Karimnagar District. 2 The Chief Secretary, Government of Andhra Pradesh, Secretariat, Hyderabad. 3 The Superintendent, Central Jail, Warangal. 4. 2CCs to Advocate General, High Court of A.P., Hyderabad. 5. 2CD copies Form-NIC-OGS/WP{SPJS}