IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SECOND DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE B.CHANDRA KUMAR WRIT PETITION NO : 29004 of 2008 Between: D.Venkata Reddy S/o.D.Seetha Reddy R/o.Pothureddipalli, Nuzvid Rural, Krishna District. ..... PETITIONER AND 1 Government of Andhra Pradesh, rep. by the Chief Secretary, Secretariat, Hyderabad. 2 The Collector & District Magistrate, Krishna District at Machilipatnam. 3 The Superintendent, Central Prison, Rajahmundry. .....RESPONDENTS 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 Writ order or direction more particularly one in the nature of Writ of Habeas Corpus directing the respondents to produce Sri Dalli Seeta Reddy S/o. Sri D.Neelaiah Reddy now detained in Central Prison, Rajahmundry, before this Court and he may be ordered to be released forthwith after declaring his detention order passed by the 2nd respondent in Rc.No.607/2008/A2 dt. 13.10.2008 which was confirmed by the 1st respondent in G.O.Rt.No.6334 dt. 4.11.2008 as illegal and void. Counsel for the Petitioner: MS.DEVINENI RADHA RANI Counsel for the Respondent No.: THE ADVOCATE GENERAL The Court made the following : THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR W.P.No.29004 of 2008 Oral Order: (Per Honourable Sri Justice A.Gopal Reddy) In this writ petition under Article 226 of the Constitution of India the petitioner seeks release of his father, namely, Dalli Seeta Reddy (hereinafter referred to as “the detenue”) who has been detained on 13- 10-2008 by virtue of an order of detention passed by the Collector and District Magistrate, Krishna District, Machilipatnam under Section 3(1)(2) read with Section 2 (a) (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”) on the ground that four incidents referred to in the grounds of detention served on the detenu are stale incidents and the detention order was passed on a mechanical manner and on vague grounds. The detaining authority filed a detailed counter reiterating the grounds of detention. The order of detention was based on the following grounds: 1. The detenu was involved in Cr.No.398/2007 dated 22-11- 2007 of Prohibition & Excise Station, Nuzvid involving 2 liters of illicitly distilled liquor. 2. He was involved in Cr.No.684/2007-08 dated 27-03-2008 of Prohibition & Excise Station, Nuzvid involving 25 liters of illicitly distilled liquor. 3. He was involved in Cr.No.118/2008-09 dated 02-06-2008 of Prohibition & Excise Station, Nuzvid involving 20 liters of illicitly distilled liquor. 4. He was involved in Cr.No.305/2008-09 dated 22-09-2008 of Prohibition & Excise Station, Nuzvid involving 25 liters of illicitly distilled liquor. In all the above cases, the detenu was found to be in possession and transporting illicitly distilled liquor, which is injurious to health and unfit for human consumption, in contravention of the provisions of the A.P. Excise Act, 1968. In all the cases, contraband was seized and samples were drawn and sent for chemical examination to the Government Chemical Examiner, Prohibition and Excise, Kakinada. 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 above cases, the detenu was arrested and produced on 22-11-2007; 27-03-2008; 02-06-2008 and 22-09-2008 respectively before the jurisdictional Magistrate who remanded him and subsequently enlarged on bail on 24-11-2007; 01-04-2008; 05-06-2008 and 25-09-2008 respectively. As the detenu was continuously involving in the bootlegging activities i.e. possession, transportation and sale of illicitly distilled arrack for money gain in Nuzvid Excise Station limits, which is unfit for human consumption, and as it will adversely affect the pubic health, the Collector and District Magistrate, Krishna District, Machilipatnam after satisfying himself that the activities of the detenu are prejudicial to the maintenance of public order and his activities are causing widespread danger to public health and detenu shall be prevented from further indulging in such activities in future, in exercise of the powers vested in him under sub-sections (1) and (2) of Section 3 of the Act, ordered for his detention until further orders in the State Jail for men, Rajahmundry immediately, by the impugned order in ROC.607/2008/A2 dated 13-10- 2008 from the date of service. The Government in their order in G.O.Rt.No.6032, General Administration (Law and Order-II) Department dated 17-10-2008, in exercise of the powers under sub-section (3) of Section 3 of the Act, accorded approval to the order of detention passed by the Collector. Thereafter, the Government referred the matter to the Advisory Board constituted under Section 9 of the Act, which, after hearing the detenu, the investigating officers and after perusing the connected records made available to it, opined that there is sufficient cause for the detention of the detenu, Dalli Seeta Reddy s/o Neelaiah Reddy. The Government after taking into consideration the report of the Advisory Board and the material available on record, in exercise of the powers conferred under sub-section (1) of Section 12 read with Section 13 of the Act, through G.O.Rt.No.6334, General Administration (Law and Order II) Department dated 04-11-2008 confirmed the order of detention and directed that the detention of the detenu be continued for a maximum period of 12 months from the date of his detention i.e. 13-10- 2008. The learned counsel for the petitioner contends that in all the crimes registered against the detenu he was released on bail. The detaining authority failed to explain how Section 2(b) attracts to detain the detenu under Section 3(1)((2) of the Act and the detaining authority failed to explain how the action of the detenu is prejudicial to the maintenance of public order in Nandigama and its surroundings, when in all the crimes it was found that the detenu was transporting the illicitly liquor in Pothireddypalli village, Nuzvid Mandal. The chemical analyst report is silent about the percentage of the fusel oil and also about the word ‘harmful’. She also contends that the remarks of Dr.Balaraju, Chief Physician, Professor & Head of the Department of Medicine, Osmania Medical College and General Hospital have not been supplied, thereby the detenue was prevented from making an effective representation, which is violative of Article 22(5) of the Constitution of India. She further contends that the order of detention was passed in mechanical manner without application of mind. In support of her contention she placed reliance on the following judgments: 1. BOYA THAYAMMA v. GOVERNMENT OF A.P. [1] 2. N.KAMALA v. COLLECTOR & DISTRICT MAGISTRATE, KARIMNAGAR [2] Per contra, the learned Special Government Pleader representing the Advocate General contended that the detenu is an habitual bootlegger of transporting illicitly distilled liquor, which was found to be injurious to the health and the Collector after taking into consideration the chemical analyst reports in all the cases that the seized contraband is unfit for human consumption passed the impugned detention order, in exercise of the powers vested in him under Section 3 of the Act, since activities of the detenu in transporting the illicitly liquor will adversely affect the health of the downtrodden and underprivileged living in the area and as such no interference is warranted by this Court. She further contended that the material, which was relied upon by the detaining authority, has been supplied to the detenu. She also contented that in all the cases the detenu was released on bail as it is a bailable offence and since no condition was imposed while enlarging him on bail, the same were not placed before the detaining authority and since they were not relied upon by the detaining authority, they were not supplied to the detenu, and the bail orders available with the detenu have been filed as additional material papers, it is not open for him to contend that due to non-supply of bail orders, he was prevented from making an effective representation. 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.6032 dated 17-10-2008 and confirmed in G.O.Rt.No.6334 dated 04-11-2008 can be sustained or not?” Before dealing with the rival submissions, it would be appropriate to notice the relevant statutory provisions, which deal with the purpose and intention of the Act 1 of 1986. Sub Section (1) of Section 3 of the Act 1 of 1986 empowers the Government to make orders for detaining certain persons with a view to prevent them from acting in any manner prejudicial to the maintenance of public order. Preventive detention is an anticipatory measure and does not relate to an offence, while criminal proceedings are to punish a person for an offence committed by him under the Indian Penal Code. Sub-section (2) of Section 3 allows the detention of a person only if the appropriate detaining authority with whom the powers are delegated under sub-section (2) of Section 3 is satisfied with a view to prevent such person from carrying on any of the offensive activities enumerated therein, it is necessary to detain such person. The satisfaction of the detaining authority is not a subjective one based on his beliefs or prejudices. There must be a real likelihood of the person being able to indulge in such activities, the inference of such likelihood being drawn from objective data. Sub-Section (2) of Section 3 deals with delegation of powers by the State Government and provides that if the State Government is satisfied having regard to the circumstances prevailing in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, it is necessary to empower District Magistrate or the Commissioner of Police, as the case may be, to exercise the powers of the State Government to order detention of a person as provided by sub-section (1). Sub-section (3) of Section 3 reads as under: “When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless in the meantime, it has been approved by the State Government.” Section 2(b) of the Act defines the word “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 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 bootlegger, 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 to Section 2(a) of the Act reads as under. “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.” The cases on which strong reliance placed by the learned counsel for the petitioner are misplaced to the facts of the present case. In ABDUL SATTAR ABDUL KADAR SHAIKH V. UNION OF INDIA[3] the detenu after unsuccessfully making two earlier attempts again contended that certain documents which he had asked for were not given to him and, therefore, there was failure of justice. Rejecting the contention the Supreme Court stated that the documents he had asked for had no relevance to his detention and no injustice had been done to him by refusing to give him those documents on which no reliance whatsoever was placed by the detaining authority. In ABDUL SATHAR IBRAHIM MANIK v. UNION OF INDIA[4] the Supreme Court after considering the detention order passed under COFEPOSA and after referring to the principles laid in KAMARUNNISSA v. UNION OF INDIA (AIR 1991 SC 1640) in para-13 held that failure to supply bail application and the order refusing bail does not in any manner prejudice the detenu from making a representation particularly when he was fully aware of the contents of application made by himself and also the refusal order. However, when they are not referred to or relied upon the non-supply does not affect the detention. Recently the Supreme Court in SUNITHA JAIN v. UNION OF INDIA[5] referring to all the above judgments held as under: “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.” In HARPREET KAUR V. STATE OF MAHARASHTRA[6] 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. This Court in W.P.No.28793 of 2008 dated 19-03-2009 after referring the above judgment and various other judgments of the Supreme Court was of the view that the conclusion reached by the Division Bench in LALITHA v. STATE OF A.P. AND ANOTHER (2007(2) ALD (Crl.) 181 (AP) is not a biding precedent. It is not in dispute the offences for which the detenu was charged are bailable offences; while releasing him no conditions have been imposed to contend that the detenu may not be able to move freely that the same has not been considered by the detaining authority while passing the relevant order. Only in cases where the conditions have been imposed while enlarging the detenu on bail the said material has to be placed before the detaining authority by the sponsoring authority. If the same has not been placed, the detention order can be held as vitiated by non- application of mind but not otherwise. Therefore, non-placing the bail orders by the sponsoring authority before the detaining authority and non-supply of the said documents to the detenu did not vitiate the detention order. The opinion of Dr. B. Balaraju, Chief Physician, Professor & Head of the Department of Medicine, Osmania Medical College and General Hospital, Hyderabad is merely provided the social malady of consumers who consume illicitly distilled liquor, which must have been exercising the mind of the Collector & District Magistrate charged with the administration of law and order. What were alleged against the detenu were only the four incidents set out in the grounds of detention. There was therefore, no material before the second respondent, other than the four incidents set out in the grounds of detention, which went into the formation of the subjective satisfaction of Collector & District Magistrate and which ought, therefore, to have been communicated to the detenu. The opinion of the Doctor is nothing to do with the illicitly distilled liquor, which was seized from the possession of the detenu, nor the same has been placed before the detaining authority at the time of passing the detention order. We are satisfied that the opinion referred to in the grounds of detention cannot be said to be the document which was relied upon by the detaining authority in making the order of detention. The grounds of detention, referred to above, clearly disclose that detenu was habituated in commission of crimes and is accustomed to commit crimes of transporting and distributing of illicitly distilled liquor, which contains injurious substances and unfit for human consumption. Once the detenu is indulging in bootlegging activities of transport and distribution of illegally manufactured spurious liquor violating the provisions of the Excise Act, which is likely to cause widespread danger to public health and create a feeling of insecurity among the general public and if the same is allowed, there is every possibility of danger to the life or public health, who consumes illicit liquor, which is a prejudicial activity causing danger to public health then public order shall be deemed to have been adversely affected as per legal fiction under explanation to Section 2(a) of the Act. The detaining authority satisfied that the activities, which were carried on by the detenu, would cause prejudice and adversely affect the public health, particularly the downtrodden and the under-privileged in the area and passed the detention order, which was approved by the Government. When the matter is placed before the Advisory Board, the Advisory Board after providing an opportunity to the detenu opined that there is sufficient cause for the detention of the alleged detenu and the same had been accepted by the Government only to prevent the detenu from perpetuating, transporting and distribution of illicitly distilled liquor. The subjective satisfaction arrived at by the detaining authority as approved by the Government is based on sufficient material, which was supplied to the detenu complying the constitutional mandate under Article 22(5) of the Constitution. In view of the same, the detention order passed by the Collector & District Magistrate, Krishna District as approved by the Government in G.O.Rt.No.6032 dated 17-10-2008 and confirmed in G.O.Rt.No.6334 dated 04-11-2008 does not suffer from any illegality or it violates the constitutional/statutory right of the detenu under Article 22(5) of the Constitution rendering the detention order illegal. The writ petition fails and it is accordingly dismissed. _________________ A.GOPAL REDDY, J. __________________ B.CHANDRA KUMAR,J. 02-04-2009 Murthy [1] 2006 (1) ALD (Crl.) 473 [2] W.P.No.7077 of 2008 dated 02-05-2008 [3] (1990) 1 SCC 480 = 1990 (1) Crimes 385 [4] AIR 1991 SC 2261 [5] 2006(4) SCJ 278 [6] AIR 1992 SC979 = (1992) 2 SCC 177