IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWELTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE D.S.R.VARMA AND HON'BLE SRI JUSTICE R. KANTHA RAO WRIT PETITION No.4413 of 2009 Between: Smt.P.Laxmamma. … Petitioner And 1. The Station House Officer, (Excise) Malakpet police station, Hyderabad. 2. The Prohibition and Excise Superintendent, Dhoolpet, (FAC), Hyderabad. 3. The District Collector, Hyderabad. 4. The Chief Secretary to Government (Home), Government of A.P., Secretariat,Hyderabad. 5. The Secretary, rep. By its Advisory Board, Government of A.P., Hyderabad. 6. The Prl. Secretary, Political, GAD, Rep. By its Advisory Board, Government of A.P., Hyderabad. … Respondents The Court made the following: HON'BLE SRI JUSTICE D.S.R.VARMA AND HON'BLE SRI JUSTICE R. KANTHA RAO WRIT PETITION No.4413 OF 2009 ORAL ORDER: - (per the Hon’ble Sri Justice D.S.R.Varma) Heard the learned counsel appearing for the petitioner as well as the learned Assistant Government Pleader, representing the learned Advocate General, appearing for respondents 1 to 6. 2. This writ petition is filed by the wife of the alleged detenu, by name P.Krishnaiah, S/o.Narayana, seeking a writ of Habeas Corpus declaring the impugned detention order vide proceedings No.B2/276/2008/Esd., dated 29.12.2008, passed by respondent No.3 as illegal, arbitrary, violation of rule of law, due process of law and violation of principles of natural justice and violation of Article 21 of the Constitution of India and also to declare the order of confirmation passed by respondent No.4, vide G.O.Rt.No.382, dated 24.01.2009, as illegal, arbitrary and against the law. 3. The facts of the case, in nutshell, are that the alleged detenu has been detained in four cases, alleged to have been committed on 16.10.2008, 17.10.2008, 22.10.2008 and 18.11.2008, for the offences punishable under Sections 7(a) r/w 8(e) of A.P.Prohibition Act, 4. Obviously, in all the offences, the detenu was found in possession of huge quantity of illicit liquor, which was unfit for human consumption and injurious to health. 5. On account of the frequent involvement by the detenu, in these kind of offences, and in order to prevent him from his involvement, the 3rd respondent-District Collector invoked his jurisdiction, vested with him, under Sections 3(1)(iii) r/w 2(a)(b) of A.P.Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Gundas, Immoral Traffic Offenders and Land Grabber Act, 1986 (for brevity, “Act 1 of 1986”). 6. The learned counsel appearing for the petitioner contends mainly on two grounds, firstly, the 3rd respondent had arbitrarily showed the detenu as having involved in four offences, within a short span of a week, which according to him is something unusual and secondly, the detenu was not given an opportunity of being represented by his friend before the Board constituted under the Act, who is subsequently impleaded as a party – 5th respondent. 7. An additional affidavit also has been filed making a specific allegation that before the Advisory Board the friend of the petitioner, by name Dr.Giri, who was present before the Board, was not given an opportunity of representing the case of the detenu. The detenu being an illiterate person was not able to represent his case properly before the Board. This procedure has been contemplated under Section 11 of Act 1 of 1986. Therefore, according to the learned counsel, this omission on the part of the Board, in not giving an opportunity to the friend of the detenu, to represent his case, vitiates the whole procedure including the eventual decision taken by the 3rd respondent, who is the detaining authority. 8. At the outset, we are of the view that these contentions cannot be sustained. 9. As regards the first contention, it is to be seen that the very object of the Act 1 of 1986 is to prevent the offences against the society or the offences which are injurious or hazardous to the society at large and affects the social order, the 3rd respondent can prevent the same by taking recourse of his power vested under Section 3 of Act 1 of 1986. 10. As regards the second contention that on four occasions in a week, the detenu was shown as involved in the same kind of offences, cannot be treated as the basis to arrive at the conclusion that the act of detaining authority is arbitrary, it is only just a question of fact and the fact that the detenu was found to have involved in four occasions in a week, cannot be said to be something unusual or strange, which is capable of branding the impugned proceedings of the 3rd respondent as arbitrary and hence are liable to be set aside. 11. Regarding the second contention of the learned counsel, it has been brought to the notice of this Court, by filing additional affidavit, that one Dr.Giri accompanied the alleged detenu and appeared before the 5th respondent to represent the detenu, but he was not given an opportunity of representing his friend. Hence, the act of the Board and its consequential recommendation of the Government accepting the order of detention, passed by the Collector, are to be declared as vitiated. It is to be seen that in the counter-affidavit, filed on behalf of the Board, it has been stated that nobody accompanied the detenu and, therefore, the Board heard the detenu and it is the undisputed fact and further it has been stated that since nobody had accompanied the detenu, there was no occasion for the Board to record about the presence or non presence of any person who was identified as the friend of the detenu. 12. In this regard, it is to be further seen that it is only the petitioner who made this allegation. Since it is a question of fact, it ought to have been supported by an affidavit filed by the said Dr.Giri. But, there is no such affidavit and, therefore, the allegation leveled by the petitioner cannot be believed nor an adverse order can be passed against the respondents. 13. As already pointed out, when the petitioner makes a specific allegation that he was not being represented by his friend properly and the same is hit by Section 11 of the Act 1 of 1986, the burden heavily lies on the detenu by way of taking appropriate steps, if necessary, by obtaining an affidavit filed by his friend who was allegedly present before the Board and no such information or any other proof is coming forth, this Court can presume that the detenu was really wanted to represent a person by name Dr.Giri and he was not given an opportunity to defend effectively the detenu. On such premise, this Court cannot proceed and declare the impugned order, passed by the 3rd respondent, as illegal and arbitrary. 14. In this connection, the learned counsel appearing for the petitioner relies on a judgment of the apex Court reported in State of A.P. v. Balajangam Subbarajamma[1], wherein it was observed that it is unreasonable in not giving an opportunity to a friend. But, in the said case, it appears that there was a concrete proof that the friend of the alleged detenu was present before the Court and he was not given opportunity. In such an event, the apex Court made those above observations. In view of the factual distinction between the said case and the case on hand, we feel that the proposition laid down by the apex Court though unexceptionable cannot be made applicable to the present case. 15. Accordingly, the writ petition is dismissed, at the stage of admission. There shall be no order as to costs. ________________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE R.KANTHA RAO 12.10.2009. Lmv [1] (1989) 1 Supreme Court Cases 193